CORNELL LAW LIBRARY Digitized by Microsoft® CJcrn^U Slam ^rl^nol ICibtaty Digitized by Microsoft® •yp. — » Cornell University Library KD 600.G54 1900 A translation of Glanville / 3 1924 021 674 399 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Library, 2008. 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® Ccgd CloBsic Series YOLUME ONE GLANVILLE Digitized by Microsoft® Xegal Classic Series GLANVILLE Introductioa by Joseph Henry Beale, Jr., A.M., LL.E. LITTLETON'S TENURES Introduction by Eugene Wambaugh, LL.D. BRITTON Introduction by Hon. Simeon E. Baldwin. MIRROUR OF JUSTICE Introduction by Hon. William C. Robinson, also FLETA, and others. Digitized by Microsoft® A TRANSLATION OF GLANVILLE BY JOHN BEAMES, ESQ. -OF Lincoln's inn, barrister at law TO WHICH ARE ADDED NOTES ^Multa ignoramus, quse nobis non laterent, si Veterum lectio nobis esset familiaris. Macrob. WITH AN INTRODUCTION BY JOSEPH HENRY BEALE, Jr., A.M.,LL.B, PROFESSOR OF LAW IN HARVARD UNIVERSITY WASHINGTON, D. C. JOHN BYRNE & CO. .LAW PUBLISHERS AND BOOKSELLERS 1900 Digitized by Microsoft® Copyrighted, 1900 BY JOHN BYRNE & COMPANY. Digitized by Microsoft® TO SIR SAMUEL ROMILLY, THE FOLLOWING WORK IS INSCKIBED AS A MARK OF THE HIGH RESPECT WITH WHICH HIS ABILITIES, AS A SENATOR, AND HIS TALENTS, AS AN ADVOCATE, ARE VIEWED BY THE TRANSLATOR. Digitized by Microsoft® Digitized by Microsoft® A TREATISE THE LAWS AND CUSTOMS KINGDOM OF ENGLAND COMPOSED IN THE TIME OF KING HENRY THE SECOND The illustrious Ranulph de Glanville, who of all in that age was the most skilled in the Laws of the Realm, and the ancient Customs thereof, then holding the helm of Justice. Tlie present work contains those Laws and Customs only, according to which Pleas are determined in the King's Court, the Exchequer, and before the Justices, wheresoever they may be. Digitized by Microsoft® Digitized by Microsoft® INTRODUCTION. BY JOSEPH HENRY BEALE, JR., A.M., LL.B., PROFESSOR OP LAW IN HARVARD UNIVERSITY. I. EANULPH DE GLANYILLE. Eanulph de Glanville was born in the Suffolk Stratford, about 1130 a.d. He is believed to have been the son of Sir Hervey de Glanville, Chamberlain to King Stephen, and the grandson of that Eanulph de Glan- ville who came over with the Conqueror. The family- was an important one, owning much land in the counties of Suffolk and Norfolk. Glanville's public life began in 1164, when he was appointed sheriff of Yorkshire ; an office which he continued to hold for six years. In 1171 he was appointed Governor of Richmond Castle, and in 1174, sheriff of Lancashire. The Scots having invaded England in that year, he led the forces of Lancashire and Richmond against them, and (joining the sheriff of Yorkshire and his forces) surprised and routed the Scots at Alnwick, and took King William the Lion prisoner. For this victory Glanville de- served, as he certainly received, the credit ; and from that time no man stood higher than he in the favor of King Henry II. He was sheriff of Westmoreland from 1175 to 1179 ; sheriff of Yorkshire a second time, from iii Digitized by Microsoft® IV 1177 to his death ; judge of the King's Court in 1176, and Chief Justiciar in 1180. lie was also emplo^^edin many distinguished public services. In 1177 he was sent as ambassador to Flanders. In 1182 he led an army against the Welsh. In 1184, with Archbishop Baldwin, he was sent as ambassador to Eice ap Grif- fin, Prince of South Wales. In his next Welsh expe- dition, a few years later (again with Baldwin), he preached a crusade. In 1186 he was ambassador to the King of France, and was active in negotiating the peace of Gisors. In 1189, while Henry was struggling with his rebellious sons and with Philip of France in Normandy, he was sent to Canterbury to treat with the Chapter ; was soon again in Normandy with Henry ; and finally returned to England to raise an army for his master's service, a work in which he was engaged at the time of Henry's death. These great ofiices were due to his personal merit and to the great services he rendered to his country ; but they appear to have been the result, also, of the personal friendship and affection of the King. He was one of the witnesses to Henry's will, and a trustee of the King's bequest of 5,000 marks of silver to certain religious and charitable institutions, and of 300 marks of gold' for marrying poor free women of England. He was named by Henry as custodian of Queen Eleanor, and as treasurer of his private fortune. A pretty picture of the King's feeling toward him occurs in the account of the arrival of Glanville's messenger in London, after the battle of Alnwick. Digitized by Microsoft® The messenger arrived at midnight and insisted on seeing the King. Being admitted to the royal cham- ber he boldly approached the King's bed and roused him from sleep. lie, springing up, cried, " Who is it? " " T am the messenger of Kanulph of Glanville, your faithful subject, and I come from him to your highness as a bearer of good tidings." " Is our Eanulph well ? " cried the King, moved less by the promised good tidings than by his love for the sender of them. " My lord is well," was the answer, '•' and he holds your enemy, the King of the Scots, a prisoner at Eichraond."' Upon the death of ITenry, Glanville's positioji was a difficult one. Henry, conservative, though a re- former, had established the government of his king- dom on a foundation of law and justice, and had created an effective and pure administrative machine. The new King appeared to have no sympathy with his father's principles of government. He was rash, radical and careless of regular details of administration, and Glanville, in the words of a contemporary, " In his old age saw the King doing many things in a new- fangled way, without wisdom or forethought." He was present at the coronation of Eichard, and was sent by him to quell a riot against the Jews which disgraced the ceremony. About his next acts we have different accounts. He had taken the cross in 1186. "Whether he asked and received his dismissal from Kichard in order to join the army, then about to start for the Holy Land, or whether, as another account has it. Digitized by Microsoft® VI he 'was removed and imprisoned by Eichard and obliged to purchase his freedom by a fine of 15,000 pounds of silver, we cannot certainly tell. At any rate, he set out for Palestine together with Baldwin, Archbishop of Canterbury, and his nephew Hubert, then bishop of Salisbury ; the three were placed in command of the English forces by Kichard (who was obliged to delay his own departure), and Glanville in 1190 died before Acre, by disease, the result of the unhealthy climate. He left one son and three daughters, whom he had already enriched from his great fortune. He founded the priory of Butley, the Abbey of Leiston, and a hospital at Somerton. Glanville impressed his contemporaries as a man strong both in body and in mind. A man of integrity and prudence, " most faithful in fortune or misfortune," " Wise, grave and eloquent," " The King's eye ; " "A name above every name, who spoke among the princes and was adored by the people." He was a man wise, just and charitable, whose fellowship was sought and opinions valued b}^ wits and by scholars. One scandal only attacked him. He is charged with falsely con- demning to death for rape Sir Gilbert de Plumpton, in order that his widow might be married to Glan- ville's friend and steward, Kainer ; Sir Gilbert's pun- ishment was commuted by the King to imprisonment for life. The tale is quite inconsistent with all we know of Glanville's character and with his position in the King's affection, and may safely be disbelieved. His family shared in his success. No less than seven Digitized by Microsoft® Vll of his near relatives iield high judicial position under Henry or his sons. Few other families have rendered greater service to England than that of Eanulph de Glanville, ambassador, administrator, general, judge and jurist. [Incidents of Glanville's life and character are reported in all the chroniclers of the time. Especially valuable are the accounts in Hoveden, Benedictus Abbas, Giraldus Cambrensis, Newburgh, Eichard of Devizes, and Dioeto. The fullest modern sketch of his life is by Professor Maitland, in the Dictionary of National Biography. Other modern biograpliies are tlaose of Foss (Judges of England, i, 376); Thomas Wright (Biographia Britannica, 275); Lord Campbell (Lives of the Chief Justices, i, 19); and Professor Gross (Sources and Literature of English History, 315). Many interesting documents bearing on Glanville's genealogy and his property are printed in Glanville-Richards' " Records of tlie Anglo-Norman House of Glanville."] II. THE AUTHOESHIP OF THE TREATISE. The following " Treatise on the Laws and Customs of the Kingdom of England," waS published between 11S7 and 1189 ; it mentions a fine made in the former year, and it is filled with references to Henry, as then ■King. It had a high contemporary reputation. Copies of the book were multiplied, and many manuscripts still exist. It forms part of several collections of laws made by contemporaries of Glanville himself. It was translated, or partly translated, into French imme- diately after Glanville's death, and it was revised and an attempt made to bring it down, to date two genera- Digitized by Microsoft® Vlll tions later. It was finally superseded by Bracton's completer and more elaborate treatise. The Avork itself is anonymous, the manuscripts stat- ing only that it was composed in the time of Henry II., " Glanville then holding the helm of justice." Early tradition, however, asserts that it was written by Glanville himself, and that fact was accepted as un- doubted from the thirteenth to the nineteenth century. Modern scholars have expressed doubt of it. Little- ton's objection (in his " Life of Henry II.") that Glan- ville could not have written the book because he was not in orders, may be dismissed at once. The greater officers of the administration, whether in orders or not, must have had sufficient Latin to dictate a Latin treatise to a clerk, and Glanville was particularly com- mended for his eloquence by more than one contem- porary. Hunter's objection (in the preface to his " Fines ") is that Glanville, at the time the treatise was written, Avas too busy in public affairs to have com- posed such a work, and he suggests that the author may have been William de Glanville, a justice in the next reign ; who was, in fact, Glanville's son, and (from 1186) his secretary. But this is the merest guess. Professor Maitland conjectures (for a rather fanciful reason, perhaps) that the author may have been Hubert "Walter. Liebermann, on the other hand, defends Glanville's authorship. Certainly there is little ex- ternal proof that Glanville was the author of the treatise, though it must have been written by some one in high position and repute to have obtained so imme- Digitized by Microsoft® LX diate a success. The internal evidence does not lead us much further. The style is that of a person speak- ing with authority, but not necessarily the authority of the Chief Justiciar himself. The claim of Hubert Walter to the authorship cannot be dismissed without further examination. Hubert was a nephew of Glanville's wife ; according to one account, of Glanville himself, Glanville's younger brother having married his wife's sister. Whether Hervey Walter, Hubert's father, was really, as this ac- count has it, Hervey de Glanville or not, it is certain that Hubert was brought up in intimacy with Glanville's family, became his secretary, and was regarded by him as a valued counsellor. Pie was made Dean of Tork in 1186, being succeeded as secretary by Glanville's son William. He soon became Bishop of Salisbury, Archbishop of Canterbury, and later Chief Justiciar and Chancellor of the Kingdom. He is described as a man of foresight and wisdom ; it is said of him that his heart was in human affairs rather than divine, and that he knew all the laws of the kingdom. He was, however, a man " of little eloquence ; " indeed, one chronicler ridicules his Latin style. Did Glanville write the whole treatise ? or did Hubert Walter write it ? Or did they collaborate on it ? Perhaps we can reach a conjectural conclusion by a more careful examination of the treatise itself. The most striking feature of the treatise is, that it is based upon a collection of writs. Omitting the Intro- duction and the last book, on Pleas of the Crown, just Digitized by Microsoft® one-third of the chapters into which it is divided con- sists of writs. These are of all kinds, directed to Lords' Courts, to County Courts, and to Ecclesiastical Courts, as well as writs returnable in the King's Courts. Later writers have made free use of writs, but here they are the skeleton of the whole treatise. They fulfil the function of judgment-rolls in Bracton's book, and of decisions in Coke and later writers. The collection of these eighty writs must have been a work of several years, since some of the writs were certainly of rare occurrence. The Chief Justice, or his clerk, attested all the writs, and either of them had both oppor- tunity and reason for making such a' collection ; hardly another man in the kingdom would have been likely to do it. A large part of the treatise is written in a crabbed and inelegant, though usually a clear style. In a few passages, however, near the beginning of the book, we find an elevation of thought and elegance of diction often admired and imitated. The Introduction, in particular, and the seventh chapter of the second book, in praise of the assize (which, according to tradition, Glanville had a hand in inventing, or, at least, in establishing), are worthy of a man " sapiens simul et eloquens " ; in sharp contrast with other parts of the work, which indicate an author who " omnia regni novit jura," but was surely " non eloquio pollens." The iirst ten books of the treatise are carefully written, the commentary is full, the subject well de- veloped. The last four books, on the other hand, seem Digitized by Microsoft® XI to have been hurriedly thrown together. The propor- tion of writ to text is more than twice that in the pre- ceding books ; indeed, in the book devoted to the County Courts (in which Glanville had presided for years, and must have become as familiar with the law and procedure as with those of the King's Courts),, there is almost no comment. It seems possible that a proposed full commentary on the County Court prac- tice, for which an elaborate collection of writs was at hand, was abandoned. The exact date of the work is fixed by the only two dated documents — two fines, of June 27 and about November 1, 1187. Fines were then novel, and they were described carefully. It seems likely that the passage, which occurs toward the end of the treatise, was written soon after the dates of enrollment. Both fines were enrolled in Glanville's presence. We may now conjecture that the author, or authors, of the treatise had for years been collecting writs, either for preservation as useful precedents, or possibly with the object of composing a commentary upon them. The collection finished, it would not be a matter of much time or difficulty for one who knew the law^, writs in hand, to dictate his commentary to a secretarj'" also learned in the law. If the collector was Glanville, and the secretary Hubert, we may suppose that the actual work of composition was begun in 1185, or 1186; not, apparently, a time of strenuous labor for either. Passages of particular importance or of espe- cial interest to Glanville would be composed by Digitized by Microsoft® xu Ijiixi Avith care ; the actual form of the remainder might safely be left to his competent secretary, sub- ject only to revision by himself. In 1186 the Dean of York died, and the succession was given to Hubert ; and Glanville soon set out on his embassy to the King of France. In spite of this, however, time still remained for the completion of the work in the rather less polished form of the later books. In February, 1187, Glanville and Hubert were sitting together in the •Court at Westminster ; and from that month to the beginning of 1189 (with the exception of Lent, 1188, Avhen Glanville was preaching his crusade in Wales), both appear to have remained in England, without .serious interruption from public business. The year 1188, in fact, seems to have been one of the least busy ■of Glanville's official life ; and, until his time was absorbed by the troubles of the closing year of the reign, there was nothing to prevent a continuance of the work. The last hurried chapters may well, there- fore, have been completed in 1188. There is, then, nothing against the early and persistent ■tradition that Glanville wrote the treatise, and much in its favor ; though most of the actual composition may have been the work of Hubert Walter. [The fullest discussion of the authorship of " Glanville" may- be found in Pollock and Maitland's "History of the English Law," i, 163. Reeves' discussion (" History of the English Law," Einlayson's Edition, i, 254) and Foss's (" Judges of England," i, 180) are also worth consulting upon this point. Liebermann (" Einleitung," p. 73) supports the theory of Glanville's author- .ship ; and in the " Zeitschrift fur romanische Philologie," xix. Digitized by Microsoft® Xlll 51, he gives interesting proof of tlie early popularity of the treatise. See also Professor Maitland's article, " Glanville Re- vised," in the Harvard Law Review, vi, 1. The life and character of Hubert may be found in the " Actus Pontificum Cantuariensium"of Gervase. Glanville's and Hubert's itineraries may be found in Eyton's " Itinerary of Henry II."] III. THE CHAKACTEE OF THE TEEATISE. " A Treatise on the Law and Customs of the King- dom of England " is the earliest systematic treatise on law written in modern times. A few collections of law and decretals, like the Decretum of Gratian and the *' Assises of Jerusalem," had, to be sure, been published earlier ; but they were not, like this book, regular expo- sitions of an existing system of law. Bracton's work was modelled on Glanville, and, through Bracton, Glan- ville thus fixed the type of the modern commentary -on law. An imitation, in many parts an exact copy, •of this book was later published in Scotland under the title " Regiam Majestatem," and the claim was vigor- ously made for a time that it was the original, Glanville the imitation. This notion, improbable on its iace, was absolutely disproved by arguments set forth in Beames' Introduction. The first edition of the treatise was printed by E.. Tottel in small 12mo, about the year 1554. Coke says that this was done by suggestion of Sir William Stanford, the learned judge and author. The second edition was printed by Thomas "Wright in 1604. The text was corrected by the collation of " various manu- Digitized by Microsoft® XIV scripts." This edition was exactly reprinted, omitting- the preface, in 1673. The treatise was again printed in the first volume of Ilouard's " Traites sur les Cou- tumes Anglo-Normandes'^ in quarto, Eouen, 1776. The last Latin edition was published by John Eayner, 8\'o, 1780, collated with the Bodleian, the Cottonian,, the Ilarleian and Doctor MiUes's manuscripts by J. E. Wilmot. The Latin text is also printed as an appendix to Phillips's "Englische Reichs undEechtsgeschichte,"' ii, 335: Berlin, 1828. A collation of Glanville with the " Eegiam Majestatem " may be found in the Acts of the Parliament of Scotland, i, 133. An English, translation by John Bearaes, with notes, was published in octavo, London, 1812, and iS reprinted in the present edition. This treatise is more than a nnere law book. It is a monument to the genius of one of the greatest legal reformers of all time. Henry II. came to the throne, after a long period of anarchy, to find count- less systems of law administered by a confused and confusing mass of popular courts and feudal courts, lie at once set himself to bring order and unity out of anarchy and chaos. He made the King's Court the common court of the land ; he determined its jurisdic- tion as against the church, the lords and the sheriffs ^ and he made it the guardian of a King's jseace, which should protect high and low throughout the whole land. The establishment of peace was in fact the chief object of his stormy career. Glanville's treatise shows us the method he took to secure his object. Digitized by Microsoft® XV By a free use of writs running from the King or his Justiciar, he limited the.jurisdictionof all other courts, and subordinated them to the King's Court. By a regular system of removal from lord to county, and from county to King, he secured the gradual unifica- tion of the law. The lord's courts had administered the customs of each manor ; each county court, too, had its customs, all based upon the Germanic law, but differing materially in the several counties, and espe- cially in the several ancient divisions of the kingdom. The King's Court now began to develop a common law, partly Anglo-Saxon in its origin, partly Norman, but molded largely by Henry's formal or informal legislation, and tempered, as Glanville several times asserts, by equity. To increase the influence of the King's courts and to bring them to the people, Henry relied on an already existing institution, the iter or eyre ; but he so im- proved the system as to make it almost a new inven- tion. The Kingdom was divided into circuits, each made up of a number of neighboring counties ; and judges were appointed to ride each circuit, holding a King's court in each county, and thus bringing every part of the Kingdom under the direct control of the King. Glanville himself became one of the first judges of the Northern Circuit. One of the most important of Henry's provisions for securing the King's peace was the invention of writs for the protection of peaceful seisin, and the preven- tion of disseisin, even by the true owner. These writs Digitized by Microsoft® XVI put an end to forcible self-help, and brought every legal dispute over dispossession into the King's Court. The writs of novel disseisin, of mort d'ancestor, and of darrein presentment, established by Henry's legis- lation, became the basis of the land law. Another reform, of even more far-reaching conse- quence, was his invention of a more rational method of establishing the truth of facts. In place of trial by ordeal, by compurgation, or by battle, he provided the assise (soon followed by the jury) as a means of elicit- ing truth. Trial by jury in the King's Court, by favor or by right, became so popular as eventually to de, prive the other courts of their litigation ; and so satis- factory as to cultivate in the people of England a respect for law and a willingness to abide by its deci- sions that have been characteristic of the race for centuries. The doctrine of res judicata seems to have been adopted at this time as another rule tending to th& preservation of peace. When Glanville wrote, it had not been fully settled that the judgment even in a writ of right was necessarily final; Glanville's strong opinion that it was so no doubt settled the law as we now have it. In the work of reform Henrj' appears to have found in Glanville an enthusiastic and an able helper. This treatise is full of praise of the King and his legislation. The peaceful governing of its people is a great object of regal power, it is asserted. The king, who loves- peace and is the author of it, conducts himself justly,. Digitized by Microsoft® XVll discreetly, and mercifully toward his subjects. His will is law, if promulgated as such by the advice of his nobles ; that and reasonable customs, long used, form the Laws of England, which may usefully, in part at least, be reduced to writing. lY. THE TREATISE AND THE LAW. It is possible from Glanville's treatise to get a rather complete picture of the common law at the end of the reign of Henry II. In the lord's courts were regularly brought not only the suits of the villein tenants, but all suits concerning land held of the lord. Suits of the latter sort, however, must be begun by the King's writ ; if the lord refused justice, resort might be had to the county court in all suits involving freehold land ; and the lord might on his own motion adjourn a question of difficulty into the King's court. The county court had original jurisdiction of questions of villeinage and of customary service, and of any question sent to it by the King's writ ; and it had jurisdiction over writs of right removed from the lord's court. It apparently, also, had jurisdiction of disputes as to title or pos- session of personal property. The ecclesiastical courts had jurisdiction of questions of marriage and legitimacy, of wills, and of disputes involving ecclesiastical questions only ; the King's court would prohibit them by writ from interfering in other matters. The procedure in the King's court did not differ greatly from the present procedure. A suit was begun by writ, served by the sheriff, and enforced by the, Digitized by Microsoft® XVIU ■distraint of the defendant's land. The most important feature of the procedure was the elaborate system of rules governing essoins or continuances. By a skilful use of essoins the defendant or tenant could prolong proceedings on a writ of right for years ; the fact that in the new possessory assises few essoins were allowed, and the proceedings were therefore much prompter, ■ contributed greatly to the favor with which they were received. Final judgment in the King's court was by this time enrolled ; and the method of conveying land by levying a fine was in full operation. The law of real property in its essential features was fully formed. The whole law of tenures and incidents had been finally settled ; but the rules of inheritance and of transfer by will were still uncertain. The doc- trines of warranty (now obsolete), according to which the grantor of a party could be called into a suit, or in the technical phrase vouched to warranty, and thus substituted for the original party, were still of the highest importance in practice. The modern mort- gage, i. e. the grant on condition, was as yet unknown : Glanville's mortgage of land, like the pledge of person- alty in his time, is a mere grant of custody by way of .security. The law of personal property was little developed. Doctrines as to pledge and bailment, derived from the old Germanic law, were applied in the county courts ; there, for instance, the absolute responsibility of the bailee was still enforced. Through the writ of detinue .and the action on the case, the King's courts were soon Digitized by Microsoft® XIX to take control of these subjects, and to establish the modern law of bailments and carriers. Certain formal contracts were enforced by the King's court. The writ of debt would lie as a result of a loan, a sale, or an obligation created by charter. Eedress for breach of ordinary jcontracts could be obtained only in the ecclesiastical courts, which might deal with the sin of deceit. Not for three centuries did the King's court work out a doctrine by which a party might be held to perform his simple contract. No action of damages for tort would lie. There is as yet no trace of the process by which (working from appeals of felony to writ of trespass against the King's peace and actions on the case) the King's court would eventually work out the modern law of tort. So far as there was any remedy for torts it was in the inferior courts. The King's court could at this time punish all felo- nies except theft, jurisdiction over which it obtained by Magna Charta. It was a long time before it obtained exclusive jurisdiction over felony, or took control, as " custos morum," of misdemeanors. Such law, it may be admitted, was rude and unsatis- factory ; but it was a long advance over what had gone before, and it had within itself the germ of the modern Common Law. Joseph H. Beale, Je. Haevard UNrvEEsriT, October, 1900. Digitized by Microsoft® Digitized by Microsoft® THE TRANSLATOR TO THE READER. vJf Ranulph de Glanville, the re- puted Author of the following Treatise, Lord Coke spea"ks in terms of the highest encomium. He informs us, that Grianville was Chief Justice in the Reign of Henry the Second, that he wrote profoundly on part of the Laws of England, and that his Works were extant at that day. " And," continues his Lordship, " in token " of my thankfulness to that worthy Judge, " whom I cite many times in these Re- " ports, (as I have done in my former) " for the fruit which I confess myself to vii Digitized by Microsoft® Vlll have reaped out of the fair field of his Labors, I will for the honor of him and of his name and posterity, which remain to this day (as I have good cause to know) impart and publish, both to all future and succeeding Ages, what I found of great antiquity and of undoubted verity, the original whereof remaineth with me at this day, and followeth in these words : Ranulplius de GlanviUa, Jiisticiarius Anglice, Fundator fuit domus de Butteley, in Comitatu Suffolcice, quce fundata erat anno Regis Henrici, filii Im- peratricis, decimo septimo, et anno Domini 1171. quo anno Thomas Becket, Cantu- ariensis ArcMejnscopus, erat occisus. Et dictus Ramdphus nascehatur in Villa de Stratford, in comitatu Suffolcice, et hahidt Manerium de Benliall, cum toto Dominio, e dono dicti Regis Henrici. Et diixit in uxorem quandam Bertam, filiam Domini Theobaldi de Valeymz, Senioris domini de Parham : qui Theobaldus per Cliartam Digitized by Microsoft® IX " suam dedit dido Ranulplio et Bertce Uxori " sucB totam terram de Brochous, cum per- " tinentiis, in qua domus de Butteley sita " est, cum aliis terris et tenementis, in lihero " maritagio. Prcedictus vero Ramdphus " procreavit tres filias de dicta Berta (viz.) " Matildam, Amabiliam, et Helewisam, qui- " 6ms dedit terram suam ante progressum " suum versus Terram Sanctamy The do- cument then proceeds with a minute accu- racy to trace our Author's Descendants, and finishes the sketch by informing us — " quod prcefatus Ranulphus de Glanvilla ^^ fuit vir prceclarissimus genere, nfpote de " nohili sanguine, vir insuper strenuissimus " corpore, qui provectiori cetate, ad Terram " sanctam properavit, et ibidem contra inimi- " cos Cruris Cliristi strenuissime usque ad "■ necem dimicavif^^ The paucity of these facts may be, in some measure, remedied, by consulting the Annals of our Second 1 Co. 8. Rep. pref . Digitized by Microsoft® Henry, where the name of Glanville not unfrequently occurs. We hear of him in 1171, as Fermour of the Honor of Earl Conan : ^ — in 1172, as having the custody of that Honor, and the Fair of Hoiland;^ — and in 1174, as still retain- ing the same Honor, and accounting for the Capture and Ransoms of Prisoners, &c. taken in War.^ In the latter year he is said to have distinguished himself, as the General who took the King of Scot- land Prisoner/ In 1175, he still retained the Honor of Earl Conan,^ and filled the Office of Sheriff of Yorkshire.^ In 1176, he was made a Justice of the King's Court, and a Justice Itinerant." In the same year, he accounted for Westmoreland by the hands of Reiner, his Dapifer or Steward, a privilege conceded to the great alone.^ 1 Madox's Exch. 439. ■'- Ibid. 203. 3 Ibid. 253. * Hume's Hist. 6 Mad. Excli. 297. e i^i^. §7. ' Hoveden, p. 600. « Mad. Exch. 662. Digitized by Microsoft® In 1180, he was made Chief Justiciary of all England, as we are informed by his cotemporary Roger Hoveden, whose words are too remarkable to be omitted. Hen- ricus Rex Anglice pater constituit Ranul- phum de Olanvilla summum Justiciarimn totius Anglice^ cujus sapientia conditce sunt leges subscriptce, quas Anglicanns vocamus.^ The Chief Justiciary, presided in the Curia Regis next to the King, as Chief Judge in all civil and criminal questions ; and governed the Realm like a Vice-Roy, when the King was beyond Sea, an event of frequent recurrence in that age. In fine, this officer was invested with a power that placed him far above every other subject. No sooner had Glanville arrived at this elevated post, than he exerted him- self to restore and confirm many ancient Laws calculated for the good of the Realm.^ How much to the satisfaction of 1 Hoveden, p. 600. n. 40. "■ Mad. Exch. 24. Digitized by Microsoft® Xll Henry the Second Glanville filled, this arduous situation, we may infer, from finding additional honors heaped upon him by that able and politic Prince. In 1183, our Author held the place of Dapi- fer to the King,^ and, in the same year, he was appointed Fermour of Yorkshire : ^ situations, it is to be presumed, not incom- patible with that of Chief Justiciary, which he appears to have retained, until the death of Henry the Second,^ and that with un- diminished honor, if we except the im- putation cast upon him for condemning Sir Gilbert de Plumptun to death, but which seems to be refuted by the confi- dence continued to be reposed in him by the discerning Henry.* Immediately after the death of that Prince, he assumed the Order of the Cross, and perished fighting 1 Mad. Exch. 35. ^ ibid. 225. 8 Leg. Anglo-Sax. p. 339. * Hoveden, p. 622, 628. Note 10. Digitized by Microsoft® XUl valiantly at the Siege of Aeon in the year 1190.1 But, whether the same identical person successively occupied these various situ- ations, and, at different periods of his life, filled the rather opposite and inconsistent characters of an able General and a pro- found Lawyer — a skilful Courtier and an enlightened Legislator, is a doubt which has been entertained by some very respec- table Writers. Nor has it passed without a* question, whether the present Treatise was really composed by the person whose name it bears. Lord Littleton, indeed, ia inclined to infer, that it was not written by Glanville, but by some Clergyman under his direction.^ These doubts may serve to evince the ingenuity of those who have suggested them, but they prove nothing:. When the various situations 1 Spelm. Gloss, ad voo. Justitia ; and Plowden, 368. b. "■ Hist. Hen. II. Digitized by Microsoft® XIV ■Glanville is stated to have filled are repre- sented as incompatible, and we start at Taeholding the grave Lawyer divest himself of his robes to girt on the armour of the soldier, we forget the manners of the age when Glanville florished. When we sup- pose, that because the work is composed in Latin, it was not written by a Layman, we beg the question : and, having assumed, that no Layman, whatever his parts, what- ever his application, could have been suffi- ciently skilled to write such Latin as our Author has employed, we pay but a sorry compliment to the age, and rather too hastily conclude that we have proved, what, indeed, we have merely taken for granted. When, in fine, we infer, that the knowledge of Law displayed in the Work, and the labor consumed in com- posing it, are no less inconsistent with the Tiigh and elevated station of Glanville, than incompatible with his employments, we forget, that his rise was progressive, and Digitized by Microsoft® XV that, as there are but few things to which a truly great mind is inadequate, the pro- duction of a small volume upon that Law ivhich it was daily in the habit of dis- pensing, ought not, whatever the merit of the work may be, to be ranked amongst the number. It must not, however, be concealed, that Mr. Selden mentions a cir- cumstance which, at the first glance, ap- pears to go a great way in determining the question. " I know the authority of " that Treatise," says he, in speaking of the present work, " is suspected, and "' some of the best and ancientest copies " having the name of E. de N. which I " have heard from diligent searchers in " this kind of Learning affirmed to have ■" been sometimes E. de Narbrough, and ^' not R. de Glanvilla, it hath been thought " to be another's work, and of later time. " But as, on the other side, I dare not " be confident that it is Glanville's, so I ■" make little question, that it is as ancient Digitized by Microsoft® XTl " as his time, if not his work. The teste "■ of the precedents of writs under his- " name, the language, especially the name " of Justitia always for that which we now " from ancient time called JusticiariuSy " (and Justitia waS so used in writers under " Henry the Second) and the Law deli- " vered in it tasteth not of any later age." ^ Though the latter part of this Extract may he reasonably thought to furnish a sufficient answer to the doubt expressed in the former part, the Translator cannot but observe upon the singularity, that none " of the best and ancientest copies " are forthcoming in support of the fact they are said to prove. With respect to the Work itself now submitted to the Public in an English dress, it is said to be the first performance that has any thing like the appearance of 1 Seidell, opera omnia. 1669. Digitized by Microsoft® XVll a Treatise on the subject of Jurisprudence, since the dissolution of the Roman Empire.^ But this is not correct, if the Assises of Jerusalem, compiled, as we are informed in the preamble, in 1099 — the System of Feudal Law, composed by the two Mila- nese Lawyers in 1150, and the Decretum of Gratian, published about the same time, be considered as Treatises on Law. It seems, however, to be unquestionable, that the present Treatise is the earliest and most ancient work On the subject of English Jurisprudence, from which any clear and coherent account of it is to be obtained. Dr. Robertson, indeed, informs us, " that in no country of Europe was there " at that time, any collection of Customs, " nor had any attempt been made to render " Law fixed. The first undertaking of that " kind was by Glanville, Lord Chief Justice " of England, in his Tractatus de Legibus 1 See 1. Reeves's Hist. Eng. Law. 323. Digitized by Microsoft® XVlll " et consuetudinibus,^ composed about the "Year 1181."=' It has been thought, that Glanville drew up this compendium of the Laws of Eng- land for the pubhc use, by the express command of Henry the Second, a conjec- ture which, Mr. Madox observes, is not only favored by a certain MS. remaining- in the Library of Corpus Christi College, Cambridge, written in a hand of the age of Edward the Second, in which there is a Treatise entituled Leges Henrici Secundi, agreeing in many passages with the printed copy of Glanville, but also by the manner of our Author's writing, especially in the Prologue.^ There is also in the Cottonian collection a MS. of Glanville, which bears, the Title of Laws of Henry the Second. But Mr. Eeeves informs us, this manner 1 Robertson's Charles 5. Vol. 1. p. 296. 2 Vide Infra p.' 198. Note 3. 3 Madox's Exch. 133. and Note. Digitized by IVIicrosoft® XIX of entituling Treatises was not then un- common.^ The present work appears to have re- mained in MS. until the Year 1554, when, as Sir Edward Coke apprises us, it was, by the persuasion and procurement of Sir WiUiam Stanford, a grave and learned Judge of the common Pleas, first printed.^ With many peculiar circumstances, how- ever, to create an Interest in its favor, the fate of the work has been most singular. Indebted to its intrinsic merit alone for tho high compliment it has long enjoyed, in being looked up to as an authority from which there was no appeal, curiosity has given way to an opinion, that whilst it was venerable for its antiquity, it was also useless, for it was obsolete. That many parts of it are obsolete, it would be idle to deny; but that the work itself is 1 Reeves's Hist. Eng. Law. 1. 213. 2 4 Inst. 345. Digitized by Microsoft® XX by no means so entirely obsolete as generally assumed, will be fully evident to every impartial and candid Reader. But were it entirely obsolete, it would not necessarily follow, that it would be useless, the terms not being, at least in the science of Jurisprudence, either convertible or syno- nymous, however fashionable, or, more properly speaking, convenient it may be to esteem them such. Multa ignoramus quce nobis non laterent, si Veterum lectio nobis esset familiaris. The Law of Modern Times is intimately connected with that of our Forefathers, and the decisions of the present day are not unfrequently built upon principles that are enveloped in the almost impervious mist of far distant ages. But to these principles must the Student ascend, if he would merit the name of a Lawyer; and, if the labor be severe, he must reconcile it to himself by reflecting, that it was submitted to by a Coke, a Hale, a Blackstone. Led by the soundness of Digitized by Microsoft® XXI their judgments, to investigate the earher ages of our Jurisprudence, those great men considered nothing useless, though it possi- bly might happen to be obsolete, which tended to enlighten their minds, and shew them the fundamental principles of those Laws, which they afterwards no less admi- rably illustrated, than ably administered. But the brightness of the example instead of exciting emulation seems to have de- pressed it: and Glanville, Bracton, and Fleta have been suffered to crumble on the shelf, whilst Edition has rapidly followed Edition of those more modern Authors, who have advocated their cause, by draw- ing so deeply from the rich and inexhaus- tible mines, which their pages present to the English Lawyer. It remains to speak of the Translation now submitted to the Public. Fidelity has been the principal object of the Translator. If more be demanded, he would shelter Digitized by Microsoft® xxu himself under the high name of Sir WiUiam Jones. " Elegance, on a subject so deli- " cate as Law, must be sacrificed, without " mercy, to exactness'." Next to fidelity, simplicity has been aimed at, as most in unison with the original, and, perhaps, the best adapted for transfusing its spirit into the English Language. Not that with these two objects immediately before him, the Translator would be understood as conceding, that he has sacrificed any beauty, any elegance of expression generally abound- ing in, or spread over, the original work. He could not sacrifice that which never existed. The style of Glanville, destitute of every grace, and dry and harsh in the extreme, professedly aims at the peculiar qualities which characterise it. Stilo vul- gari et verbis curialibus utens ex industrial ad notitiam comparandum eis, qui hujusmodi vulgaritate minus sunt exercitati, are the very terms in which he describes his own manner of writing. So successfully has he Digitized by Microsoft® XXUl accomplished his object, that he imposes •upon his Translator a Task not altogether unlike that of acquiring a new language. Yet to these difficulties the Translator reluctantly alludes, for though they may, in some measure, atone for those errors into which he is apprehensive he has often fallen, he is conscious, the merit of his attempt is not to be estimated by its ardu- ousness, but its utility. With respect to the Annotations, it was the Translator's original intention to have confined himself to a mere explanation of the obsolete Terms. But, anxious to render the work more extensively useful, he has not unfrequently departed from his first design. Among the works occasionally referred to, the Reader will recognise the Regiam Majestatem — so termed from the words with which it commences. This work has been sometimes received, as con- taining the genuine ancient Law of Scot- Digitized by Microsoft® XXIV land — sometimes rejected, as a mere spuri- ous fabrication. Among the names in collision on this point are those of Skene, Erskine, Lord Kaims, Houard, Dairy m pie, Craig, Lord Stair and Dr. Eobertson. Nor has there been less dispute whether Glan- ville, or the Regiam Majestatem be the original work. But this question is said to be satisfactorily disposed of by Mr. David- son, who has published a pamphlet express- ly on the subject, and has proved, if it were necessary to prove, what is rendered indu- bitable by the internal Evidence of the two Works, that Glanville is the original ; ob- serving, at the same time, " that Glanville " is regular, methodical, and consistent " throughout ; whereas the Regiam Majes- " tatem goes out of Glanville's method for " no other assignable reason, than to dis- " guise the matter, and is thereby rendered " confused, unsystematical, and in many " places contradictory." The Translator has not been able to meet with Mr. David- Digitized by Microsoft® XXV son's work, but is indebted to the preface attached to the last Edition of Glanville for this Summary of it. " To this observa- " tion upon the method of the E-egiam " Majestatem," says Mr. Reeves, " it may " be added, that, on a comparison of the " account given of things in that and in " Glanville, it plainly appears, that the " Scotch Author is more clear,, explicit, " and defined ; and that he writes very " often with a view to explain the other, " in the same manner in which the writer " of our Fleta, explains his predecessor " Bracton. This is remarkable in number- " less instances all through the Book, and " is, perhaps, as decisive a mark of a copy " as can be. The other Scotch Laws, " which follow the Regiam Majestatem in " Skene's collection, contribute greatly to " confirm the suspicion. These, as they " are of a later date than several English " Statutes which they resemble, must be " admitted to be copied from them ; and Digitized by Microsoft® XXVI ' so closely are the originals followed, that ' the very words of them are retained. ' This is particularly remarkable of the ' Eeign of Eobert the Second, in which is ' the Statute of quia Emptores, and others ' plainly copied from our Laws, without ' any attempt to conceal the imitation. ' These Laws, at least, can impose upon ' no one ; and when viewed with the ' Eegiam Majestatem at their liead, and ' compared with Glanville and the English ' Statute Book, they seem to declare very ' intelligibly to the world, that this piece ' of Scotch Jurisprudence is borrowed from ' ours." ^ Nor is the enlightened and liberal Historian Dr. Robertson more favorably disposed towards that claim, which some of his countrymen have put in, for the originality of the Regiam Majestatem. " The Regiam Majestatem ascribed to "David the first seems," he observes, "to 1 Reeves's Hist. Eng. Law 225. Digitized by Microsoft® xxvu be an imitation and a servile one, of Glanville. Several Scottish Antiquaries, under the influence of that pious credu- lity, which disposes men to assent with- out hesitation to whatever they deem for the honor of their native country, con- tend zealously, that the Regiam Majes- tatem is a production prior to the Trea- tise of Glanville ; and have brought themselves to believe, that a nation, in a superior state of improvement, borrowed its Laws from one considerably less advanced in its political progress. The internal Evidence (were it my province to examine it) by which this theory rhight be refuted is in my opinion decisive. The external circumstances, which have seduced Scottish Authors into this mis- take, have been explained with so much precision and candor by Sir David Dal- rymple, in his Examination of some of the arguments for the high antiquity of the Regiam Majestatem, Eding, 1767. Digitized by Microsoft® XXVIU " 4to, that it is to be hoped, the contro- " versy will not be again revived." ^ In dismissing this subject, it may be remarked in the words of Mr. Reeves, that it seems unnecessary to contend for the originality of the Eegiam Majestatem, whilst a doubt of much more importance remains unsettled — whether that Treatise, as well as the others in the publication of Skene, are now, or ever were, any part of the Law of Scotland, on which, as we have already observed, so many eminent men differ. On the other hand, the authenticity of Glanville, as the code of Law existing in this country during the Reign of Henry the Second, has been admitted, either expressly or impliedly by all the English Lawyers, who have florished in the long interval which has elapsed from that period to the present, and never has been ques- tioned, if we except a solitary dictum, 1 Hist. Charles 5. Vol. 1. p. 396. Digitized by Microsoft® XXIX which, as it equally affected the credit of Bracton, and was totally unauthorised, is refuted by a thousand circumstances, if it were an object to mention them.^ But to return from this digression. Though the Translator had not the good fortune to meet with Mr. Davidson's Pam- phlet, he was more successful in discovering Skene's translation of the Regiam Majes- tatem, deposited in Lincoln's Inn Library. The Translator intended to have noticed such parts of the Regiam Majestatem, as coincided with Glanville. But, after having, with some attention, perused the former Book, he found the similarity between the two works so very general, and the corres- pondence so exact, that the Regiam Majes- tatem might frequently be taken as a verbal Translation of Glanville, or, at least, as another Edition of the same Treatise, in 1 Plowd. 357. Digitized by Microsoft® XXX which the writer had made some shght additions and alterations, and had capri- ciously amused himself in contriving an arrangement totally different, though far less happy and systematical. The Trans- lator has, therefore, generally contented himself with noticing those deviations between the two works, which were more immediately relevant to his subjects. Nor has he always stopped here, but has availed himself of the Regiam Majestatem, when- ever it was less ambiguous, or more decided than Glanville, which from the very circum- stance of its being a posterior publication, it sometimes naturally will happen to be. In addition to the Regiam Majestatem, reference has been occasionally made to the Grand Custumary of Normandy, Brac- ton, Fleta, Britton, Coke, Hale, &c. &c. Some of these references serve to corro- borate — some to illustrate the Text : some tend to shew that a Law was not peculiar to this Country, and some that a similar Digitized by Microsoft® XXXI E,ule has been adopted even in Modern Times by a neighboring State. In consult- ing the Laws of that state, and noticing those instances of strong or faint resem- blance between them and the Code of Henry "the Second, the Translator acted in defer- •ence to the suggestions of a Gentleman, -who, though possessed of the most profound legal knowledge, is yet more entitled to our admiration for his singular liberality of sen- timent, and urbanity of manners. If the TQore enlightened mind derive no benefit from the plan which has been adopted in the notes, and anticipate the Result ; yet, it is hoped, the Student may receive some advantage from it. But, if the Translator has been too diffuse in some instances, he has, on other occasions, contented himself with a bare reference. He has been averse to swell the Notes, where a bare citation would serve to direct the Student, if disposed to extend his inquiries. In addition to the Translator's own Notes, the Reader is fur- Digitized by Microsoft® xxxu nished with a few annotations extracted from a copy of Glanville, formerly belonging to Mr. Justice Aland, and now deposited in the collection of the Eoyal Institution. Yet, should it be observed, it is not per- fectly clear whether these annotations were made by that learned Judge, or by the Eeverend Mr. Elstob, a gentleman deeply versed in Anglo-Saxon Literature. By way of distinction, these Annotations are particularised by (Al. MS.) In order to render the work as complete as the limited ability of the Translator would allow, he has subjoined the more important, and only the more important various Read- ings, as furnished by the Bodleian, the Cot- tonian, the Harleian and Dr. Milles's MSS. The MS. of Glanville deposited in Lincoln's Inn Library has not been consulted. The Translator concludes these cursory observations with a brief summary of the Digitized by Microsoft® XXXIU contents of Glanville, availing himselt, in some measure, of that contained in Mr. Reeves's History. Our Author in general confines himself to such matters only as were the objects of jurisdiction in the Curia Regis, and divides his work into fourteen Books. The two first of which treat of the Writ of Right, when originally commenced in the Curia Regis, and of all its stages, the Summons — Essoins — Appearance — Plead- ings — Duel or Grand Assise — Judgment and Execution. The Third speaks of vouch- ing to Warranty, which with the two former Books, comprises a lucid account of the proceedings in a Writ of Right for the recovery of Land. The fourth Book is employed upon rights of Advowson, the fifth upon Villenage, and the sixth upon Dower. The seventh treats upon Alienation, Des- cents, Succession, Wardship, and Testa- ments. The eighth is upon final Concords, Digitized by Microsoft® XXXIV and Records in general. The ninth is upon Homage, Eelief, Fealty, Services, and Pur- prestures. The tenth treats of Debts and matters of Contract ; and the eleventh upon Attornies. Having thus disposed of Actions commenced originally in the Curia Regis, our author, in his twelfth Book, speaks of Writs of Right, when brought in the Lord's Court, and the manner of removing theni from thence to the County Court and Curia Regis, which leads him to mention somo other "Writs determinable before the Sheriff. In his thirteenth Book, he treats of Assises, and Disseisins. The last Book is wholly taken up in discussing the doctrine of Pleas- of the Crown. JOHN BEAMES. It was intended to have added the names of all those Gentlemen, who subscribed for the work. But the list having been con- sumed in the fire which destroyed Mr. Reed's Premises, and many of the names having been thereby lost, it is become impossible. g: Digitized by Microsoft® PREFACE. i HE Eegal Power should not merely be decorated with Arms to restrain Rebels and Nations making head against it and its realm, but ought likewise to be adorned with Laws for the peaceful governing of its Subjects and its People.^ With such feli- city may our Most Illustrious King conduct himself, in the periods both of Peace and of War, by the force of his right hand, crushing the insolence of the violent and intractable, and, with the sceptre of Equity, moderating his Justice towards the humble and obedient, that as he may be always 1 The introductory part of this Preface is in imitation of that of Justinian's Institutes, and seems strangely to have taken the fancy of the law writers of the age, since Glan- ville is more or less followed by the Regiam Majestatem, Bracton and Fleta. XXXT Digitized by Microsoft® XXXVl victorious in subduing his Enemies, so may he on all occasions shew himself impartially just in the government of his Subjects. But how gracefully — how vigorously — how skilfully, in counteracting the malice of his Foes, our Most Excellent King has, in the season of hostility, conducted his Arms, is manifest to all: since his fame has now spread over the whole World, and his splendid actions reached even the confines of the Globe. How justly — how discreetly — and how mercifully — he, who loves Peace and is the Author of it, has ■conducted himself towards his subjects in the time of Peace, is evident, since the Court of his Highness is regulated with so strict a regard to Equity, that none of the Judges have so hardened a front, or so rash a presumption, as to dare to deviate, Tiowever slightly, from the path of Justice, or to utter a sentence, in any measure contrary to the truth. For there, indeed, the power of his adversary oppresses not Digitized by Microsoft® xxxvu the poor Man, nor doeg either the favor or credit of another's Friends, drive any person from the seat of Judgment. Since each decision is governed by the Laws of the Eealm, and by those Customs which, founded on reason in their introduction, have for a long time prevailed ; and, what is still more laudable, our King disdains not to avail himself of the advice of such men (although his subjects) whom, in gravity of manners, in skill in the Law and Customs of the Realm, in the superiority of their wisdom and Eloquence, he knows to surpass others, and whom he has found by experience most prompt, as far as consistent with reason, in the administration of Justice, by determin- ing Causes and ending suits, acting now with more severity, and now with more lenity, as they see most expedient.^ For the 1 " On these last words," says Lord Littleton, " I would " observe, that, as in those days there was was no distinct ■" Court of Equity, the Judges of the King's Court had " probably a power of mitigating in some cases the rigour Digitized by Microsoft® XXXVlll English Laws, although not written, may as it should seem, and that without any absur- dity, be termed Laws, (since this itself is a Law^that which pleases the Prince has the force of Law^) I mean, those Laws which it is evident were promulgated by the ad- vice of -the Nobles and the authority of the Prince, concerning doubts to be settled in their Assembly. For, if from the mere want of writing only, they should not be considered as Laws, then, unquestionably, writing would seem to confer more authority " of the Law." (Hist, of Life Hen. 3. Vol. 3. p. 315. Oct. Ed.) A strong instance in point the Reader will find in L. 7. c. 1. or the present Translation p. 149. 1 This principle, the very basis of despotism occurs in th& Roman code. (Justin. lustit. L. 1. t. 2. s. 6.) It may very justly be questioned, whether it is not here cited ironically. At all events, the passage of our text can scarcely warrant the conclusion the celebrated M. Houard has drawn from it. But the Reader shall have his own words — Le Texte de notre Auteur prouve qiCapris la conquSte, les Anglois regurent, de Ouillaume le Bdtard, les rn4me» Maximes que nous avians jusques-ld suivies, d Vegard du Droit exclusif, que nos Rois avoient toujours exei'ce, de faire les Loix. (Traites Sur les coutumes Anglo-Normandes par M. Houard. 1. 378.) Digitized by Microsoft® XXXIX upon Laws themselves, than either the Equity of the persons constituting, or the reason of those framing, them. But, to reduce in every instance the Laws and Constitutions of the Realm into writing, would be, in our times, absolutely impos- sible, as well on account of the ignorance of writers, as of the confused multiplicity of the Laws. But, there are some, which, as they more generally occur in Court, and are more frequently used, it appears to me not presumptuous to put into writing, but rather very useful to most persons, and highly necessary to assist the memory. A certain portion of those I therefore intend to reduce into writing, purposely making use of a vulgar style, and of words occurring in Court, in order to instruct those who are less accustomed to this kind of vulgarity. In proof of which, I have distinguished the present work by Books and Chapters. Digitized by Microsoft® Digitized by Microsoft® ioflit 3. OF PLEAS WHICH BELONG TO THE KING'S COURT, OR TO THE SHERIFF; AND OF ESSOINS; AND OTHER PREPARATORY STEPS USUALLY RESORTED TO IN SUITS, UNTIL BOTH PARTIES APPEAR TOGETHER IN COURT. CHAP. I. Pleas are either Criminal or Civil.^ The former are divided into such as appertain to the King's Crown, and such as belong to the Sheriffs of Counties. These Pleas belong to the King's Crown.^ CHAP. II. The crime which, in legal phrase, is termed that of 1 " Now, as out of the old Fields must come the new corn, so " our old Books do excellently expound and express this matter, " as the Law is holden at this day ; and, therefore, Glanville " saith, Placitorum aliud est criminale, aliud Civile, where " Placitum criminale is Placitum coronce. and Plaaitum civile. " Placitum commune, named in this Statute." (Magna Charta.) (Vide 3 Inst. 31.) 2 LL. ^thelbyrti, c. 1. 2. 3. 4. 5. &c. (Al. M. S.) I 1 Digitized by Microsoft® Lsese Majesty, as the death of the King, or a sedition moved in the Realm, or Army ^ — the fraudulent con- cealment of Treasure-trove — The Plea concerning the breaking of the King's peace — Homicide — Burning — Robbery- — Rape — the crime of Falsifying,^ and such other Pleas as are of a similar nature.^ These crimes are either punished capitally, or with loss of Member.* We must, however, except the crime of Theft, which belongs to the Sheriffs of Counties, and is discussed and determined in the County Courts.^ It also apper- 1 " The Committers of these Crimes,'' says the Regiam Majes- tatem, " may be punished not only for any fact or deed, but also for the intent and purpose." (Reg. Maj. L. 1. c. 1.) 2 Crimen falsi, an expression borrowed from tlie Civil Law. (Vide Justin. Inst. 4. 18. 7. &c.) Our author explains its import, L. 14. c. 7. 8 Cap. 2. Hengham Magna, c. 3. p. 7. LL. Canuti E. secul. c. 61. et Somneri Gloss, in voce emenda. (Al. MS.) The Law of Canute alluded to, is in these words : Irrvptio in dotnum et incendium et furtum manifestum et ccedes publica et domini proditio juxta leges humanas sunt inexpidbilia. (Vide LL. Anglo-Saxon. Ed. Wilkins, p. 143.) * Among the Laws of Canute, are some inflicting the punish- ment of loss of members. (LL. Cnnuti, c. 15. 33. &o.) From hence it has been inferred, that Canute first introduced this species of punishment into England. However that may be, the Conqueror's Law forms too remark- able a feature in his Legislation to be passed over in silence. It forbids the punishments of death and hanging for any crime, but orders, that the eyes of the offenders should be plucked out, or their feet or hands &c. amputated, ita quod truncus vivus remaneat in signum proditionis et nequitioe suae! ! (LL. Gul. Conq. p. 318. Ed. Wilkins.) 6 " Theft and manslaughter," says the Regiam Majestatem, " belong to the Sheriff when any certain accuser appears : not " so when those crimes are taken up by dittay." (c. 1. L. 1.) " The Sheriff in the Tourn (for that is to be intended) held plea Digitized by Microsoft® tains to Sheriffs, in case of neglect on the part of Lords of Franchise, to take cognizance of Scuffles,^ blows, and Avounds, unless the Accuser subjoin to his charge, that the offence was committed against the King's Peace.^ CHAP. III. Civil Pleas are divided into such as are discussed and determined in the King's Court only, and such as fall within the Jurisdiction of the Sheriffs of Counties. In the former Court, are discussed and determined, all such Pleas as concern Baronies, Advowsons of Churches, questions of condition, Dower, when the "Woman has been entirely debarred from receiving it ; for breach of Fine made in the King's Court ; concern- ing the performing of Homage, and the receiving of " of Theft," says Lord Coke. But tMs part of his jurisdiction was taken away by 17. c. Mag. Chart. (Vide 2 Inst. 30 — 1.) 1 Medletis, or, as in Harl. Cotton, and Bodl. MS. melletis. From Bracton it is to be collected, that some instances of this offence fell under the Jurisdiction of Lords of Franchise, and on their default, reverted to the Sheriff ; whilst other instances fell under cognizance of the crown, a distinction confirmed by the Eeg. Majestatem (vide Bracton, 154. B. Eeg. Maj. L. 1. c. 2.) The term is said to be derived from the French mesler. (Vide 3 Inst. 66. Spelm. Gloss, and Cowell's Interpreter.) 2 The Reg. Maj. makes this allegation a ground of the Sheriff's Jurisdiction (L. 1. c. 3.) "In this distinction, between the Sher- " iff's Jurisdiction and that of the King, we see the reason of the "allegation in modern Indictments and Writs, "vietarmis" " of the king's crown and dignity," " the Icing's peace," and " the ' ' peace," this last expression being sufficient, after the peace of the " Sheriff had ceased to be distinguished as a separate Jurisdio- " tion." (Vide Reeves's Hist. Eng. Law. 1. 113.) Digitized by Microsoft® Eeliefs, and concerning Purprestures,^ and Debts owing by lay persons. These Pleas, indeed, relate to the propriety of the thing only : concerning those which refer to the possession, and which are discussed and decided by Kecognitions,^ we shall speak in their proper place. CHAP. TV. To the Sheriffs of Counties these Pleas appertain : the Plea concerning the Eight of Freehold, when the Courts of the Lords are proved to have failed in doing justice, the nature of which we shall speak of in another place ; and the Plea concerning Yilleins-born : such Pleas being, in each instance,^ sanctioned by the King's Writ.* 1 Our author explains this term, B. 9. c. 11. 2 Eeeognitioiies. Upon the words faeere reoognitionem. Sir Edward Coke thus comments. — " Cognitio is knowledge or " knowledgement, or opinion, and Recognition is a serious ac- " knowledgement, or opinion upon such matters of fact as they " shall have in charge, and thereupon the Jurors are called Re- " cognitores Assisce," (Vide Co. Litt. 158. b.) Our author treats largely on Recognitions iu the 13th Book, to which we refer the reader. 3 We learn from Bracton, that the Sheriff was in the habit of exercising Jurisdiction over many Pleas which did not belong to him 653 officio ; but, in such cases, he acted by the King's precept, not as Sheriff, but as Justioiarius Regis, (Bracton, 154. b.) The distinction is important, and seems not unknown to the Gx-and Custumary of Normandy. (Vide c. 2.) * Breve, a Writ. When causes became so frequent that the king was unable to attend to them, says Craig, he remitted them, to the Judge, by means of Instruments containing a brief sum- Digitized by Microsoft® CHAP. V, When any one complains ^ to the King, or his Jus- tices, concerning his Eee, or his Freehold, if the com- plaint be such as be proper for the determination of the King's Court, or the King is pleased that it should be decided there, then the party complaining shall have the following Writ of summons. . CHAP. YI. " The King to the Sheriff, Health.^ Command A. " that, without delay, he render to B. one Hyde of Land, " in such a VUl, of which the said JS. complains, that " the aforesaid A. hath deforced him ; and, unless he " does so, summon him by good summoners, that ho be " there, before me, or my Justices, m crastino post octa- " ias clmisi PaschcB at such a place, to show wherefore " he has failed ; and have there the Summoners and " this "Writ. Witness Eanulph de Glanville, at Claren- " don." mary of the chief points. Hence the name Breve. (Craig. Jus. Feud. L. 3. dieg. 17, §. 24.) So early as Henry the first we find, that contemptus Brevium was an offence, subjecting the person guilty of it to be amerced to the king. (LL. Hen. 1. c. 14.) 1 Clamat. Vide Spelm. Gloss, ad voc. Craig. Jus. Feud. L. 3. Dieg. 17. §. 25. and L. 3. dieg. 5. §. 2. 2 Vide Fitz. Nat. Brev. p. 5. Ed. 1687. As this is the first writ we meet with, it may not be improper to observe, that, in ren- dering the writs, the Translator has for obvious reasons endeav- oured to adhere to the technical phraseology generally us^d in that species of process. Digitized by Microsoft® CHAP. VII. The party who is thus summoned either appears at the day appointed, or makes default, or sends a Mes- senger, or Essoin,^ or neither. If he neither appear, nor send an Essoin, his adversary, the Demandant, should, on the day appointed, appear before the Jus- tices, and offer to proceed against him in the suit ; and he shall thus await in Court during three days. If the Tenant appear not on the fourth day, the summoners being present, and alledging that they had duly cited him, and offering to prove it, according to the course of the Court, another Writ shall Issue to summon the Tenant to appear at the distance of fifteen days ^ at 1 Essonium, an Excuse. Sir Edward Coke derives the term from tlie French verb essonier or exonier. He tells us, it is all one with what the civilians call excusatio. Sir Henry Spelman mentions the same derivation, and adds, ex, privativum, soing, cura. The Greek word i^d/ivva0ai has been proposed as another derivation, implying an excuse by means of an oath. The term occurs so early as the Assizes of Jerusalem, (o. 58.) So limited is the doctrine of Essoins in the present day, that it will here suiBce to observe, there were five principal kinds in the x'eign of Henry the second ; I say principal, because there were necessa- rily many others of less importance. These, as enumerated by Sir Edward Coke, were ; 1. de servitio Regis. 3. In terram sanc- tam. 3. Ultra mare. 4. De malo lecti. 5. De malo veniendi; the two last being the same as those ex infirmitate de reseantisa and ex infirmitate veniendi, so frequently mentioned by our author, in the present book. Essoins are said to have been de- rived to us from the Normans. (Vide Assises of Jerusalem, c. 58. le Grand Custum : de Norm, sparsim. Bracton, 336. b. et seq. Fleta L. 6. o. 7. Mirror, 117. et seq. 3 Inst. 135. Spelm. Co well. Les termes de la ley, &c. &c.) 2 In affirmance of this period of time, see Articidi super char- tas, o. 15. and Lord Coke's comment. (3 Inst. 567.) The Norman Digitized by Microsoft® least, in which "Writ he shall be required as well to answer to the original Suit, as for his default in dis- obeying the first summons.^ In this manner, three Summonses shall issue ; and, if the Tenant neither ap- pear at the third summons, nor send, the Tenement shall be taken into the King's hands, and shall so remain, during fifteen days. And, if, within that period, he appear not, the Sei- sin "^ shall be adjudged to his adversary, so that from thenceforth the Tenant shall not be heard, unless in a suit concerning the propriety, and that authorised by the King's Writ of Right.^ If, however, he appear within the fifteen days, and be desirous of replevying the Tenement, he shall be commanded to appear on the fourth day, and he shall have that which he is legally entitled unto ; and thus, if he appear, he may recover code required the same period to render a summons lawful, Grand Custum. de Norm. c. 49. See also Bracton, 334. a. and Fleta, L. 6. c. 6. s. 11. 13. 1 It seems from the Begiam Majestatem, that if the summons were made by one summoner, in the presence of lawful and suffi- cient witnesses, it was good. These witnesses were to verify the summons, before the defendant could be compelled to answer. (Reg. Maj. L. 1. c. 6.) 2 Seisina " is borrowed of the French seisine, ' possessio,' and so it signifleth in our common Law." (Cowell ad voc.) Craig concludes, that as we had the term, so we had the doctrine from the French. (Craig, de Feud. L. 2. Dieg. 7. s. 1.) Sir Edward Coke and Sir Henry Spelman coincided with Cowell and Craig in the derivation. (Co. Litt.) 17. a. Spelm. Gloss, ad voc.) The term, it seems, was used, both by the canonists and civilians. (Cowell ubi supra : vide also Index ad Anglo-Sax, LL. verb. saisiare and references there.) 8 Vide Bracton, 367. a. Digitized by Microsoft® 8 the Seisin. Should he, liowever, appear at the third Summons, and confess the former Summonses, he shall instantly lose the Seisin, unless he can excuse his de- fault by the King's "Warrant, and by the "Writ; which, he should instantly produce. CHAP. Till. " The King to the Justices, Health. I warrant B. " who was at such a place, by my precept, on such a " day, in my service, and, therefore, could not be pres- " ent before you on that day at your Assizes ; and I " command you, that you put him not in default for his " absence that day, nor that he in any respect suffer " loss. Witness, &c." ^ CHAP. IX. If he should deny all the summonses, he shall, as to each of them individuallj'^, corroborate his denial with the oaths of twelve. ^ Should it happen on the day 1 Vide F. N. B. 36. 37. Ed. 1687. 2 Duodecimd manu. The author of the commentaries renders this expression eleven, besides the principal, an interpretation which is more or less confirmed by the following authorities : Co. Litt. 295. a. 2 Inst. 44, and the Diversity of Courts, p. 824. On the other hand, Les Termes de la Ley, in describing the cere- mony as applied to the very object of the text, expressly says, that the principal should be accompanied by twelve. (Ibid, ad voc. ley.) Bracton, when treating of the subject, employs the same ex- Digitized by Microsoft® appointed that either of the Compurgators ^ fail, or should the person of either of them be justly excepted to, and the vacancy occasioned by either of these cir- cumstances not be filled up, the Tenant shall, on ac- count of his default, immediately lose his Seisin.^^^ But, if the Tenant thus completely disprove the sum- monses, he shall on the same day answer to the Action.^ CHAP. X. If the Tenant, being summoned, appear not on the first day, but Essoin himself, such Essoin shall, if reasonable, be received ; and he may, in this manner, essoin himself three times successively ; and, since the pression, and observes, that the land was not to be replevied, be- fore the tenant had waged his law, nor, if he failed in waging it.; and he lays it down, that the Tenant could not wage his Law by means of an Attorney constituted for that purpose, but miist do it personally. (Bracton, 366. a. 410. a. ) As to the origin of waging Law, the reader may consult Cowell ad voc. Laiv and les Termes de la ley ubi supra and Bl. coram. 3. 341. &c. Before we quit this chapter, it may not be amiss to observe, that Sir Edward Coke refers to it to show, that previous to- Magna Charta, he that would make his Law in any Court of Rec- ord, must bring with him fideles Testes. (Co. Litt. 168. b.) 1 Bracton tells us, that it was not necessary that the compur- gators should be of the same rank as their Principal : it was suf- ficient if they were trust- worthy, and of good characters. (Bracton, 410. a.) 2 Mr. Eeeves observes, that the waging of Law is not men- tioned by Glanville, as a mode of proof for the defendant in civil suits. That judicious writer must be understood, as speaking of that proof, which constituted the defence to the Action. 8 Vide Mirror, c. 4. s. 7. Bracton, 366. a. b. 368. a. b. Digitized by Microsoft® 10 -causes, on account of which a person may justly essoin himself, are various, let us consider the different kinds ■of Essoins. CHAP. XI. Of Essoins, some arise on account of ill health, •others from other sources. Of those Essoins which arise from ill health — one kind is that ex infirmitate veniendi — another ex infirmitate de reseantisa} CHAP. XII. If the Tenant, being summoned, should, on the first -day, cast the Essoin de infirmitate veniendi,^ it is in the election of his Adversary, being present, either to 1 Reseantisa, from the French reseant, or resiant, or when anglicised, resiance, a term which Dr. Johnson explains in his dictionary, as meaning a residence, though, as he remarks, it is now only used in Law. In this, its simple sense, our author has used it, in a subsequent part of his work. (L. 12. c. 7.) Yet it assumes a different meaning, as used by the old English and Scotch Lawyers to denote an Essoin, when it indicated, as Skene expresses it, "a long and old sickness, or a resident, heavy in- "iirmity and sore sickness." (Regiam Majestatem, L. 1. c. 8.) An observation in the margin of our author informs us, that this Essoin was synonymous with that de malo lecti ; in other words, this Essoin was resorted to on account of such a severe indisposition as necessarily confined a man to his house or bed. " Or de via Curice, as it is termed in the Norman code. This Essoin was cast, when the party on his way to Court had fallen suddenly sick, and was thereby prevented attending. (Le grand ■Custum. de Norm. c. 39.) Digitized by Microsoft® 11 require from the Essoiner a lawful proof of the truth of the Essoin in question, on that very day/ or that he should find pledges, or bind himself solemnly, that at the day appointed he will have his "Warrantor of the Essoin ; and he may thus Essoin himself three times successivel}'. If, on the third day ,2 he neither -appear nor essoin himself, then let it be ordered, that he be forthcoming in proper person on another day ; or that he send a fit Attorney in his place, to gain or lose for him. Thus, whoever on the appointed daj'' may appear in the place of the Tenant, offering to undertake his defence, whether authorised by his Let- ters, or without them, is immaterial, if it be known, that he be allied to the absent Tenant, he shall be received for him in Court, either to gain or lose.^ It may be asked, what will be the consequence if the Tenant appear at the fourth day, after having cast three Essoins, and warrant all the Essoins ? In that case, he shall prove the truth of each Essoin* by his own oath and that of another ; and, on the same day, he shall answer to the suit. If, on the fourth day, he ^ " Or on another," according to the Cotton. Bodl. and Dr. Milles's MS. 2 "Fourth," aocording to Dr. Milles's MS. and so it undoubt- edly ought to be, as the context evinces. 8 Vide Infra, L. 11. c. 5. * It should seem, from Bracton and Fleta, that such persons only as were inferior in dignity to Barons, were required to prove the truth of their Essoins by their own oaths. (Bracton, 351. b, Fleta, L. 6. c. 10. s. 15.) By the 19th c. of Marlbridge, even these persons were relieved from the obligation. (2 Inst. 136.) Digitized by Microsoft® 12 neither appear nor send an Attorney, let the Tenement be taken into the King's hands, a Writ being issued by the Court for that purpose, directed to the Sheriff of the County, in which such Tenement is situated, which Writ is in the following words : CHAP. XIII. " The King to the Sheriff, health. I command you " that, without delay, you take into my hands the half " of the lands in such a will, which M. claims, as her " Dower, against R. concerning which there is a suit " between them in my Court, and that you make " known the day of the caption to my justices. And " summon, by good Summoners, the aforesaid R, that " he be before me ^ or my justices at Westminster " a crastino ootdbus clausi Paschce in quindecim dies, " to hear his judgment, and have there the Summoners " and this Writ. Witness Eanulph de Glanville at " Westminster, &c." In addition, let the Sheriff of the County be commanded to take the Essoiners, as Defaulters, and to detain them, and for this purpose the following writ shall Issue : CHAP. XIY. " The King to the Sheriff, Health. I command you " that, without delay, you diligently seek, through 1 Vide Madox's Excheq. c. 3. s. 3. Digitized by Microsoft® 13 " your County, A. who has falsely Essoined B. against " C. in my Court, and that you safely keep him, until you *' have my other precept. Witness, &c." The De- fendant himself shall also, in the mean time, be sum- moned to appear before the King, or his Justices, to show why he has not warranted his Essoiner, and to answer to the principal suit. Besides, the Pledges of the Essoiners shall be summoned, by the following Writ. CHAP. XV. " The King to the Sheriff, Health. Summon by ^' good Summoners T. that he be before me, or my " Justices, at "Westminster, in fifteen days from the " Pentecost, to show why he has not had I. before me " at "Westminster, on such a day, to warrant the ^' Essoin that /. made for him in my Court against M. ^' as he pledged himself to have him. And have there *' the Summoners, and this Writ. Witness, &c." CHAP. XYI. But, if the Tenant appear within the fifteen days, and be willing to replevy the Tenement, let him be commanded to attend, on a day appointed, that he may then have justice done him ; and, if he appear on that day, and find pledges, he shall recover his seisin, and may retain it. If he deny all the Summonses, and Digitized by Microsoft® u all the Essoins, and disprove them individually with the oaths of twelve, or if be acknowledge the first Summons, and warrant the three Essoins, and save the fourth day by the King's "Writ of warranty, which he should forthwith produce, he may also retain his Seisin. But, if the Tenant appear not within the fif- teen days, the seisin shall, on the following day, be adjudged to his adversary, so that the Tenant shall never again be heard concerning it, unless by the King's Writ concerning the Kight.^ But the De- mandant shall be put into the possession of the Tene- ment, by the following "Writ, directed to the Sheriff. CHAP. XYII. " The King to the Sheriff, Health. I command you " that, without delay, you deliver possession to M. of " so much land in such a Yill, of which there was a " suit in my Court, between him and J?. ; because the " Seisin of such Land is adjudged to the said M. in my " Court, for the default of i?. Witness, &c." CHAP. XYIII. If any one desire to cast the Essoin de infirmitatt, 1 The severity of this Law was mitigated by 9 Ed. 3. c. 3. whereby none were to lose their land, by reason of non-plevin. A note to this effect is inserted in the margin of our Author ; but the reference to the chapter is erroneous. Digitized by Microsoft® 15 de JResewntisdf he may thrice do it.^ Yet should the Essoiner, on the third day preceding that appointed, at a proper place, and before a proper person, present his Essoin. If, on the third summons, the Tenant appear not, the Court should direct, that it may be seen whether his indisposition amount to a languor,^ or not. For this purpose, let the following Writ issue,, directed to the Sheriff. CHAP. XIX. " The King to the Sheriff, Health. I command you "that, without delay, you send four lawful men^ of " your County to see of the infirmity of which JB. hath " essoined himself in my Court, against li. be a lan- " guor or not. And, if they perceive that it is a lan- " guor, then, that they should put to him a day of one " year and one day, from the day of the view, to ap- "pear before me, or my justices, or that he send a " sufficient Attorney to answer for him. And if they " see that it be not a languor, then, that they put him 1 " And by two Essoiner s," according to Cotton : and Dr.. Milles's MS. 2 Skene explains a languor by " a vehement sickness of body, " or of mind." (Reg. Maj. L. 1. c. 8.) ^ The text is Homines. The Translator submits that it should be milites, a reading warranted by the latter part of this very writ ; and authorised by the concurring testimony of Bracton, Fleta, Grand Custum : of Norm : &c. See also chapter 38. of the present Book — where, a similar object being in view, four- Knights are directed to be sent. Digitized by Microsoft® 16 "a certain day, on which he shall appear, or send a "sufficient Attorney to answer for him. And Sum- " mon, by good Summoners, the aforesaid four Knights, " that they be then there to testify their view, and the "day they put him; and have there the summoners "and this Writ. Witness, &c." It should be ob- served, that two Essoiners, at least, are necessary to cast this Essoin. CHAP. XX. It should also be remarked, that the two first essoins may be cast de infirmitate veniendi, and the third de reseaiitisd. Should that course be adopted, the Court should send to ascertain, whether the indisposition amount to a languor, or not. If, however, the two first essoins should be de reseantisd, and the third de infirmitate veniendi, it shall be ordered as if thej'^ were all de infirmitate veniendi, because the judg. ment must always follow the nature of the last essoin. CHAP. XXI. Should it upon any of these occasions happen, that the party himself should answer in Court, and whilst he was present, a future day should have been ap- pointed him ; if, at that day, he. neither come nor Digitized by Microsoft® 17 send an Attorney, let his, land be taken into the King's hands, and let him be debarred the power of replevying it. And he shall be summoned to appear and hear the judgment at an appointed day — and thus, whether he appear or not, he shall lose the Seisin, on account of his default ; because he cannot afterwards deny the summons, unless by the King's Writ, which he should forthwith produce, and by which he may save his default. But although on any of the days appointed for his appearance, the Tenant should answer in Court, if he lawfully depart, he may recur to his three Essoins, unless he has precluded himself hj an agreement to waive them. If, on the first day, the party should essoin himself, but, on the second, should neither appear nor essoin himself, let the Sheriff be commanded to attach the Essoiner, as a defaulter, and for this purpose let the foregoing Writ be directed to him. CHAP. XXII. But it should be observed, that when a party to a suit has Essoined himself, the Essoiner may also avail himself of a reasonable Essoin. For if any one desir- ous of casting a reasonable Essoin, should commission a person for this purpose, and the Essoiner meets with some reasonable impediment in the way, by which he is prevented being present at the appointed day, he shall be awaited until the fourth day, as his Principal would Digitized by Microsoft® 18 have been ; and if within that period he appear, his Essoin shall be received, on whatever daj' he should come ; and he may thus save the daj's which are past for the same causes for which his principal could. CHAP. xxm. The principal Essoiner is also at liberty, if so dis- posed, to essoin himself by another Essoiner. In this case the second Essoiner must state to the Court, that the Tenant, having a just cause of Essoin, had been de- tained, so that he could not appear at the day appointed, neither to lose nor gain, and that, therefore, he had appointed a certain other person to essoin him ; and that the Essoiner himself had 'met with such an impediment, which had prevented his appearance on that day : — and this he is prepared to prove according to the practice of the Court. By these means, such Essoiner shall be received, and a day shall be granted to the Tenant, through the medium of such Essoiner, upon his undertaking to produce his "Warrantor on such a given day, when the Tenant ought to guarantee his principal Essoiner, and to prove his Essoin in the usual manner. In the same manner, the first Essoiner is to guarantee the second, unless on the first day he himself has proved his Essoins, upon the requisition of the adverse part3^ 1 The Tenant, according to Dr. Milles's MS. Digitized by Microsoft® 19 CHAP. XXI Y. But if the Tenant, desirous of proceeding in the cause, should, after his Essoin cast in Court and within the fourth day, appear, then, if the day was in the first instance fixed through the intervention of the Essoiner, and the adverse party has under these cir- cumstances left the Court, the Demandant ^ cannot recover, as he might on the day past. CHAP. XXY. There is another species of Essoin ; which is permit- ted from the necessity of the case ; and this happens when any one casts the Essoin de ultra mare."^ In that case, if the Essoin be received, the period of fortv days, at least, shall be given to the party essoined. But if,' by means of this or any other reasonable Es- soin, a man would essoin himself for a, longer period, the usual course of the Court shall be followed in giving time. 1 According to the Bodleian MS. it would stand, he (the Tenant) cannot recover, &c. 2 " There is," says the Regiam Majestatem, "another kind of " Excuse or Essoin which is necessary, that is, when any one is " essoined because he is beyond the water of Forth or of " Spey ; and, if this Essoin is found lawful, forty days shall be " granted to him who is excused." (Vide Reg. Maj. L. 1. c. 8.) " The inconveniences resulting from the abuse of the Essoin in our "text were remedied by West. 1. cap. 44, Vide Sir Edward " Coke's Comment. 2 Inst. 251. Digitized by Microsoft® 20 CHAP. XXVI. There are other Essoins which eventually may be resorted to, in order to save the four days, or one of them, by means of Avhich Essoins the adverse party should be awaited in Court : as, for Example, a sudden inundation, or any other unexpected event which could not be foreseen. CHAP. XXYII. The service of the King is also another reasonable cause of Essoin,^ and when this Essoin is proved in Court and allowed, the Suit shall stand over sine die, un- til it appear that the party has returned from the King's service. Hence those who are continually in the King's service, as his Servants,^ shall not avail them- 1 And, as this '^as founded upon a political obligation, it did not extend to excuse the Defendant, if in the service of any- other pex'son. (Bracton, 336. b.) 2 Servientes. This term was received in many different senses. Sometimes it meant, persons holding military rank — Sometimes, Vassals or Tenants only — Sometimes, Esquires. It is, in this latter sense, that Lord Littleton and Dr. Brady seem inclined to think it vs^as more generally used (Litt. Hist. Hen. 3. Vol. 3. p. 87.) Mr. Selden, however, has, in his Treatise on Titles of Honor, proved, that there were some very material distinctions between the terms, and that they were far fi-om being synonymous. Dr. Sullivan, when he meets with the word in a Law of the con- queror, explains it as meaning " the lower soldiers, not knighted, " who had not yet got lands, but were quartered on the Abbies." (Lectures on Laws of England, p. 266.) Sir John Skene inter- prets, what I presume is the same Term, as meaning domestic servants. (Reg. Maj. L. 1. c. 8.) This is, I apprehend, the true Digitized by Microsoft® 21 selves of this Essoin ; but, with respect to their persons, the ordinary course of the Court, and the order of the Law, shall be observed. We must, however, make a distinction, with respect to the foregoing Essoin. The party desirous of availing himself of the Essoin per servitium Megis, will either have been summoned by his adversary previously to entering into such service, or he will have entered into such service in the first instance, and have afterwards been summoned. If he were in the first instance in the King's service, and in the mean time be summoned to answer the suit, the Eule we have above laid down must unquestion- ably prevail. On the other hand, if a party be im- pleaded in the first instance, and he afterwards cast the Essoin per servitium, Begis, it is material to ascer- tain, whether he act by a mandate of the King, or a general or special precept, and be from necessity in such service, or otherwise. If he were called by a pre- cept of the King into his service, then, indeed, the same Law prevails, as in the former instance. But if, on the other hand, voluntarily and without any such precept, he has recently entered into the King's service, . it must be distinguished, whether he has gone beyond sea in that service, or remains within the Eealm. If meaning of the text, notwithstanding that Servientes, when con- nected with the terms domini Regis, sometimes meant a partic- ular description of officers, residing in every County, and pos- sessed of an authority, perhaps, not altogether unlike that of Sheriffs or Coroners, after whom, they are enumerated by Brao- ton. (L. 3. Tr. 2. c. 32.) Digitized by Microsoft^ 22 he has gone beyond Sea, a respite ^ of forty days, at least, shall be allowed him, but, if he should not return within that period, the accustomed course of the Court, and the order of Law shall be observed. At whatever period he appears in Court, and whether personally, or by his Attorney, he must immediately produce the King's Writ, to warrant his preceding Essoins. But if, on the other hand, the Defendant be within the Kealm, and in the service of the King, in that Case it must be regulated by the will and pleasure of the King's Justices, whether a less or a greater period ^ be allowed him to appear and answer, according as it may best suit the King, and may be consistent with the course of Justice. CHAP. XXVIII. It may also happen, that a party is essoined in Court, on account of some indisposition by which he is confined in the same Town where the Court is sitting, having arrived there to prosecute his plea. In this case, let the Court direct, that he appear on the mor- 1 Bespectus, pro mora, dilations vel continuatione temporis. In this sense, the term frequently occurs in our old law books. (Vide Reg. Maj. L. 4. o. 20. and Spelm. Gloss, ad voc.) There is in the Register a writ respectu eomputi vicecomitis habendo, for the respiting a Sheriff's accounts. . There was also respectus Ho- niagii, delaying of Homage. (See Cowell ad voc.) 2 Terminum. " In the Civil Law," says Spelman, " it signifleth " a day set to the Defendant, and in that sense doth Bracton, " Glanville, and some others sometimes use it." (Reliquiae Spel- mannianse p. 71.) Digitized by Microsoft® 23 row ; and thus let him be awaited during three succes- sive days — and for this cause, he shall have a delay of three successive days. If, on the third day, he then so essoin himself, then four Knights should be directed by the Court to attend him for the purpose of ascer- taining, whether he is in sucli a state as to be able to make his appearance in Court, or not ; and, should they be of opinion that he is able, then, they should com- mand him, to attend in Court, and do that which he ought. But, if they should think him unable, and should testify this to the Court, then shall a reasonable time, a delay of fifteen days at the least, be allowed him. CHAP. XXIX. There is also another Essoin, which is sometimes presented in Court — I allude to that, de esse in 2^ere- grinatione. But here a distinction must be made, whether the party who would thus essoin himself was impleaded before h-e undertook his Voyage, or not. Because, in the former case, the course of the Court and the order of Justice shall be observed. But, if he was not summoned previously to his beginning his Travels, then again it must be distinguished whether he went to Jerusalem, or to another place. If to the former place, then a j'^ear and a day, at least, is gener- ally allowed him ; but with respect to other Travels, the time allowed must be regulated by the Will and pleasure of the King, or his Justices, who, keeping in Digitized by Microsoft® 24 view the length or shortness of the Journey, are to temper the Eule as they may think proper.^ CHAP. XXX. In the "Writ directed to the Sheriff, for the purpose of summoning the party, there is the following clause inserted, " and have there the summoners and this "Writ." "When, therefore, the Demandant offers himself in Court on the appointed day, the first inquiry is, whether the Sheriff has the Summoners, and the Writ there present or not ; if he have, and the Summons be proved, the Suit must be proceeded in, in the manner we have mentioned. But, if the Sheriff should neither be present on that da.j, nor appear within the fourth day, to which time the Tenant must be awaited, then let the Sheriff be again commanded by the King's Writ, to summon the Tenant, concerning the principal cause, by a Writ of second Summons, and that he himself appear to shew why he neglected to make the Sum- mons, as enjoined him by the first Writ. The Writ of second Summons contains that which first issued, with the addition of the following clause : " anclheyou your- " self then there present to shew wherefore you did not 1 The Regiam Majestatem lays down the doctrine of Essoins, nearly word for word with Glanville : but adds one species of Essoin not taken notice of by our author — the being absent at a public fair. (L. 1. c. 8.) Digitized by Microsoft® 25 " summon him, as it was commanded you ly my other " Writ, and have there this Writ, and that other Writ." At the day appointed, the Sheriff appearing, either says that he executed the King's precept, or confesses that he has not done it. Should he acknowledge the latter, then he shall be amerced to the King. But, in this case, the Demand- ant shall lose his first day, and the Tenant must be again summoned. But should the Sheriff allege that he had injoined lawful Summoners to execute the first Summons — and they, being present, acknowledge the fact, then not only the Sheriff, but the Summoners shall be amerced,^ if they have not executed such Sum- mons as it was their duty to do ; and thus again the first day will become useless to the Demandant. But if those whom the Sheriff nominated as Sum- moners, being present, should assert that the Sheriff did not injoin them to summon the Tenant, we must then distinguish, whether the Sheriff delivered bis or- der to them in the County Court, as he always ought to do, (in order that, if the complaint be presented some time before a County Court, the party may be attached until the County Court, and then there may be a full Summons,) or in any other manner. If the Sheriff gave his orders to them in the County Court, and this be properly proved, the Summoners shall be amerced, because they cannot contradict a fact, which 1 It should rather seem that in Bracton's time the Summoners- only would be amerced. (Braoton, 336. a.) Digitized by Microsoft® 26 has been transacted in a County Court.^ But if the Sheriff, being out of the County Court, and less pub- licly than he ought, injoin them to summon the Ten- ant, and they deny that he did so injoin them, the Sheriff shall be amerced for not having executed the King's Writ in the manner that he ought. For public Acts of this nature, such as, the injoining Summoners — the taking of Pledges for the prosecuting of Actions — and for Appearances,^ ought to be publicly trans- acted, lest concerning these steps, which are merely preparatory to a final determination, a difficulty should arise, in itself the occasion of procrastinating the de- cision. But if, on the first day, the Summoners should not appear and assert that they had in a legal way executed the first Summons, but should send their Essoiners on the first day, who essoin them, and add, that they had properly executed the first Summons, then the Demandant shall not lose his first day, and they shall be amerced, because they have not ap- peared at the first day to prove that they had execute( the Summons as was injoined them, unless they can excuse their default on that day, by the King's "War- rant. We must, however, not forget, that either the one or the other of the Summoners is permitted legally to excuse himself on the first day, and in that case the Demandant shall not lose the day in question. 1 Because, says Bracton, the County Court has for this purpose a Record (Bracton, 336. a.) The force of Bracton's remark will Jbe seen in the sequel. 2 Tarn in civili negotio, quam criminali. (Bracton, 336. a.) Digitized by Microsoft® 27 CHAP. XXXI. "We have spoken concerning the absence of the Ten- ant, when he is merely summoned, and no Pledges are given. But, if the suit be of a nature to make it requisite, that the Tenant should find Pledges for his appearance, and the Justices or the County Court have recorded them, (which happens in the civil matter of a breach of a Final Concord made in the King's Court before the King or his Justices, and in Novel Desseis- ins) then, if the Tenant neither appear at the first daj^, nor essoin himself, the Pledges are adjudged to be amerced to the King; and the Pledges shall be in- creased as to the principal Cause ; and thus, should the Tenant absent himself~«!i all the three days, the Suit must be proceeded in ; an^ if at the third Summons he should not appear,^ let his Tenement be taken into the King's Hands, and retained in the manner before ex- pressed^the—Pl^lges being amerced, who are to be summoned to be present in Court on a certain day, to hear their Judgment. Should, however, the Plea be of a criminal nature, as, for example, concerning a breach of the King's Peace, then, the proceedings must be according to the course of the Law, as in the above case, with this only difference, that as the party is accused,^ if he fail to appear at the third Summons 1 There is in the original a marginal reference to the 44th, for the 45th, chap, of West, the 1st. '^ " Bectatus," ad rectum vocatus. (Spelm. Glossar. ad voc.) Jtectum not unfrequently meant an accusation. Digitized by Microsoft® 28 his body shall be taken, and his Pledges shall be amerced.^ CHAP. XXXII. Having discussed those points which more frequently arise, in consequence of the absence of the Tenant, it remains to speak, concerning the Demandant's not ap- pearing. If the Demandant indeed appear not on the first day, he may avail himself of the same reasonable Essoins as the Tenant, and that by the same means. If, however, he neither appear nor essoin himself then, the Court should award, that the Tenant, if present, either personally, or by another, as he ought to be, should be unconditionally dismissed. Yet this is not to preclude the Demandant from recovering, under certain restrictions, the same property, if he feel inclined to institute another suit concerning it. And, if the Demandant be again inclined to implead the same Tenant, it may be questioned, what the Law is in that case, and how his default should be punished? As to this, opinions differ. For some say, he shall lose 1 Miscricordia, a fine arbitrarily imposed upon offenders, and so called, says Spelmau, qiiod lenissima imponitur misericordiaf heavy fines being contradistinguished by the significant term, redemptiones. (Gloss, ad voc. see also Co. Litt. 126. b. and Ma- dox's Excheq. c. 14.) In our progress through Glanville, \ve meet with the miserioordia — misericordia domini — miserioordia vice-comitis, and misericordia domini regis — Vide Infra. L. 9. c. 11. et not. Digitized by Microsoft® 29 nothing but his Cost ^ and his Expenses, and his first Writ, but not his cause of Action; but merely be obliged again to begin his suit. ■ Others say, that be shall forfeit his Action against the Tenant totally, and irrevocably, and, on account of the contempt he has been guilty of towards the Court, that he shall likewise be amerced to the King. Others again are of opinion, that he must be amerced to the King, and that it after- wards depends upon the King's pleasure, whether he will be admitted again to institute that Action, or re- instated either unconditionally, or subject to certain restrictions. Thus far it will suffice to have treated, where the Action is prosecuted without any Pledges being given. But, if the Demandant find Pledges for prosecuting his Suit and fail to appear, either person- ally or by another, on the day appointed, then the Tenant shall be unconditionally dismissed. And the Demandant shall lose his "Writ, according to the opin- ion of some, and the whole of his Cost ; and his Pledges shall be amerced, as before stated. But others think, that he shall forfeit his Action, 1 Custum. Sir Edward Coke, in his Commentary on the Sta- tute of Gloucester, observes, that " before that Statute at tlie " common Law, no man recovered any costs of suit, either in " Plea real, personal, or mixt : " and again, " this Statute was " the first that gave costs," (3 Inst. S88.) In support of this po- sition, he cites the present chapter of our author. It is extreme- ly difiicult to discover, how this chapter corroborates Lord Coke's position. Our author merely recites the opposite and floating opinions of others, and drops the subject, without giving any thing like an opinion of his own. Lord Coke's doctrine may be correct ; but, assuredly, Glanville cannot be cited as one of the authorities, on which that doctrine is built. Digitized by Microsoft® 30 and his Pledges, &c. But this is the consequence when the suit belongs to the Demandant only, as it generally does in civil cases. When, however, the Suit does not belong to him only, but the King has an interest in it, as in a criminal Plea, concerning a breach of the King's peace, then, as the Demandant cannot lose the suit, unless as to himself, but is bound to pros- ecute it, his Body shall afterwards be imprisoned and kept safely, until he chuses to prosecute his Appeal,^ and, in addition, his Pledges shall be amerced. CHAP. XXXIII. "When it happens that the Demandant and Tenant are both absent, then the King or his Justices may at their pleasure, if so disposed, punish both parties, the one for his contempt of Court, and the other for his false claim. ^ Upon the word Appeal, as designating a criminal proceeding, it will suffice to refer those readers not connected with the pro- fession to 4 Black. Comm, p. 313. et seq. Digitized by Microsoft® m j|. OF THE PROCEEDINGS USUALLY EESORTED TO ABOUT, OR IMMEDIATELY AFTER THE COMMENCEMENT OF THE SUIT ; AND OF THE DERAIGNING OF THE TENE- MENT BY THE DUEL, OR GRAND ASSISE; AND OF THE CHAMPIONS; AND OF THOSE THINGS WHICH APPERTAIN TO THE DUEL OR GRAND ASSISE. CHAP. I. When, at last, both the litigating Parties are pres- ent in Court, and the Demandant has proceeded to claim the Tenement in question, the Tenant may pray a View of the Land. But, with respect to the time which should be allowed him for this purpose, a distinction is to be made, whether the Tenant has more land in the Vill, where the Land in question is situated, or not. In the latter case, no delay shall be conceded him : but, if he has more Land in the Yill, further time shall be allowed him, and another day given him to appear in Court.^ 1 " After the verification of his Essoins," says the Regiam Ma- jestatem, " he shall have fifteen days for vising and seeing of " the Ground or Land,") (Reg. Maj. L. 1. c. 9.) 31 Digitized by Microsoft® 32 If he then depart from Court, he may again avail himself of three reasonable Essoins, and the Sheriff of the County, where the Lands in question are situated, shall be directed to send free men of his County to view the Land, by the following Writ : CHAP. IL " The King, to the Sheriff, Health. I command " you that, without delay, you send free and lawful " men of the neighbourhood ^ of such a Vill, to view " one Hyde of Land in such a Yill, which II. claims " against R. and of which there is a suit between them " in my Court ; and have four of them before me, or " my Justices, such a day, to testify of their view, and *' what day they put to him. Witness, &c." CHAP. III. After the three reasonable Essoins which accom- pany the view of the Land,^ both parties being again 1 Visineto — " It should be vicineto. Vicinetum is derived of " this word vicinus, and signifieth neighbourhood, or a place " near at hand, or a neighbour place. And the reason, where- " fore, the Jury must be of the neighbourhood is for that vici- " 7111S facta vicini presumitur scire," (Co. Litt. 158. b.) 2 " After three lawful Essoins," says the Reg. Majestatem, " when the parties are passed from the Court to the sight of the " Land, the Pursuer shall beware that he give distinctly the " sight of the same, conformably to the metes contained in the " King's writ. For if he gives the sight thereof otherwise than Digitized by Microsoft® 33 present in Court, the Demandant should set forth his demand ^ and claim in this manner : " I demand against " this II. half a Knight's Fee or two ploughlands, in " such a Yill, as my Eight and Inheritance, of which " my Father, or my Grand Father, was seised in his " Demesne as of Fee in the time of King Henry the ■" First, or after the first Coronation of our Lord the " King, and from whence he took the profits to the " Value of five shillings at least, as in Corn,^ H3,y, and ■" other produce ; and this I am ready to prove by my ^' Freeman I. and, if any accident happen to him, by " such a one, or by a third " (and the Demandant may thus name, as many as he chuses, but one of them only " is contained in the King's writ of Eight, the writ may be can- " celled as null, and of no avail in the Law." (Eeg. Maj. L. 1. «. 9.) 1 It will not suffice, says Bracton, simply to say, " I demand " such Land, as my right," unless the Demandant make out his light, and shew how, and by what means, it has descended to him. Neither will it suffice to allege, that the Ancestor was seised in his Demesne as of his free Tenement only, or in his De- mesne as of Fee only, including, as it does, the freehold and whole possessory right, unless it be added, that he was so seised Tjy right, which comprises the right of Propriety. Nor, again, will these two rights of possession and of propriety, or the dreit dreit, suffice, unless the Ancestor held the Land in question in his Demesne ; for if he held it in service, it will not answer the purpose. Neither will it suffice, that the Ancestor was seised as of Fee, and in right, and in his Demesne, unless it be subjoined that he took the Esplees ; because a momentary seisin is not suf- ficient, without a taking of the Esplees, to found a Suit touching -the right of Propriety. Though all these requisites concur, it was still necessary to add the time of the king. (Bracton, 372. b. 373. a.) 2 Bladis signifleth, says Lord Coke, corn or grain whilst it groweth. (2 Inst. 81.) 3 Digitized by Microsoft® 34 shall wage the Duel, ^ ) " who saw this or heard it : " ^ or the Demandant may use other words thus — " and this I am ready to prove by my Free-man /. to " whom his Father, when on his death-bed, injoined " by the Faith which a Son owes to his Father, that if " he ever heard a claim concerning that Land, he " should prove this as that which his Father saw and heard." ^ 1 The judicial combat appears to have been the most ancient mode of terminating controversies known to the northern na- tions in their original settlements. For Velleius Paterculus, (L. 2. c. 118) apprises us, that all those questions, which were de- cided among the Romans by legal trial, were terminated among the Germans by arms. It was introduced into most, if not all, of those European nations, whom the Gothic tribes subdued. In unison with their passion for arms, it was consecrated by their superstition. Countenanced by their Princes, and sanctioned not unfrequently by the Clergy, it long kept its ground. (Mon- tesq. Spirit of Laws.) One of the earliest restrictions of the practice, which is said to occur in history, was that imposed by our Henry the First, but this merely prohibited the Trial by combat, in questions concerning property of small value. (Brussel usage des Fiefs, vol. ii. p. 963. ) Louis the Seventh, of France, followed this example, and promulgated a similar law. This was imitated by St. Louis ; but his regulations extended only to his own demesnes, (Hist, du France par le Pere Daniel tom. 5. 259.) It was reserved for the steady and masterly hand of our Henry the Second, to give the death blow to the Trial by combat, by the introduction of the Grand Assise — a remedy which, if my memory does not grossly deceive me, is said by Roger Hoveden, to have been invented by Glanville. ^ The champion was relieved from the necessity of taking an oath, that he had seen or heard the fact, and that his ancestor de- sired him to deraign it, by the 41. c. West. 1. Until this altera- tion of the Law took place " it seldom happened," says the act, " but that the champion of the Defendant (it should be De- " mandant, a translation the original French requires) is for- " sworn." (3 Inst. 246.) * It is thus, according to Skene's translation of the Regiara Digitized by Microsoft® 35 The demand and claim of the Demandant being thus made, it shall be at the election of the Tenant, either to defend himself against the Demandant by the Duel,^ or to put himself upon the King's Grand Assise, and Majestatem — "I sick ane man sayes and proponis against N. • that my Father, my guidshir, or my Brother, or Sister, or some ' other of my Parentage or kindred, was in the possession of sic ' ane Land by the space of certain zieres and dayes ; quhilk lyes ' in sic ane Towne, be certain meths and marches, betwixt the ' Lands perteining to sic ane man : quhilk Land I olame to per- ' teine to me heritablie, halden of our Soveraine Lord the King, ' or of sic ane other Lord. Payand to him zierlie therefore ' sameikill and toothers sameikill. Quhilk lands, with the perti- ' nents, perteins to me heritablie, be discent, or succession, be ' the death of sic ane other of my blude and consanguinitie, as ' ni}' awin proper right. The quhilks Lands, with the perti- ' nents, the said N. be force and unjuslie halds fra me. against ' the Law of the Land ; to my great shame and skeatli of ten ' pounds money, mair or lesse. The quhilk gif the said N. ' denyes. I aske an assise of the indwellers of sic ane Towne or ' place ; and referres my claim to God, and ane gude assise of ' neighbours. Provyding that, na suspect persons passe upon the ' said assise. And, mairover, that it sail be lesome to me to ' say, mair gif need beis." (L. 1. c. 10.) 1 "The Trial by Champion in a Writ of Right hath been an- ' ciently allowed by the common Law, and the Tenant in a ' Writ of Eight hath election, either to put himself upon the ' Grand Assise, or upon the Trial by combat, by his Champion ' with the Champion of the Demandant ; which was instituted 'upon this reason, that in respect the Tenant had lost his ' Evidences, or that the same were burnt or imbezeled, or that ' his witnesses were dead, the Law permitted him to try it by ' combat between his Champion and the Champion of the De- ' mandant, hoping that God would give victory to him that ' right had ; and, of whose party the victory fell out, for him ' was judgment finally given, for seldom death ensued hereupon ' (for their weapons were but batounes) victory -only sufficed. " Sir Edward Coke then gives the form of the champions oath ; and adds. " the champions are not bound to fight but until the •' stars appear ; and if the Tenant can defend himself until the " stars appear, the Tenant shall prevail." (3 Inst. 246.) Digitized by Microsoft® 36 require a Recognition to ascertain, which of the two have the greater Eight to the Land in dispute. If he elect the former mode of proceeding, he must deny the right of the Demandant, word for word as the Demandant has set it forth, and this, either in per- son, or by some other fit man. But here we should observe, that after the Tenant has once waged the Duel he must abide by his choice, and cannot after- wards put himself upon the Assise.^ In this stage of the suit, the Tenant may again avail himself of three reasonable Essoins in succession, with respect to his own person and of the same number with regard to the person of his Champion.^ All the Essoins which can with propriety be resorted to having expired, it is requisite, before the Duel can take place, that the De- mandant should appear in Court, accompanied by his Champion armed for the contest. Nor will it suffice, if he then produce any other Champion than one of 1 Assisa is derived, by Cowell, from the French asseoir, to sit. The term has a variety of significations. We shall briefly men- tion some of the chief. — 1. It signifieth a Writ, thus assisa of novel disseisin of Juris Utrum, &o. 3. It signified a Jury. 3. It meant a statute or law, thus assisa panis et cervisice — assisa de Clarendon, &o. 4. It is used for the court, place, or time, where writs of assise were taken. 5. It meant a certain num. ber. 6. It imported a tax, or tribute. 7. It was used for a fine. (Vide Spelm. Gloss. Anglo.-Sax. LL. Ed. Wilkins, p. 328.) 2 Campionis. " Campio dicitur a campo, because the combat " was strucken on the field, and, therefore is called camp-fight, " and he must be liber homo." (3 Inst. 346.) In this derivation Spelman concurs. The reader may consult the latter if desirous of seeing what he terms /ormttZa campi seu duelli. (Gloss.)— Also the mirror, c. 3. s. 34. 35. Bracton, the Assises of Jeru- salem, Grand Custumary of Normandy, &c. Digitized by Microsoft® 37 those, upon whom he put the proof of his claim : neither, indeed, can any other contend for him, after the Duel has been once waged. But if he who has waged the Duel should, in the in- terval pending the Suit, happen to die, a distinction is to be made. If he died a natural death, and this is declared by the Vicinage, (as it ought always to be, if there exist any doubt concerning the fact,) the Demand- ant may in the first place recur to one of those upon whom he placed his proof, or to another proper person, even if he have not named any other, provided that such other be an unobjectionable Witness — and thus the Plea may begin again. If, however, his death was occasioned by his own fault, his Principal shall lose the cause. It may be asked, whether the Champion of the Demandant can substitute another in Court, to make that proof which he took upon himself ? Ac- cording, indeed, to the Law, and ancient custom of the Kealm,^ he cannot appoint any other, unless it be his legitimate Son ; ^ and here it may be observed, that the Champion of the Demandant should be such a person as is a proper Witness of the fact. !N"or is it lawful for the Demandant to prosecute his appeal in his own per- son, because it is not permitted unless by the interven- tion of a proper Witness, who has both heard and seen the fact. 1 Vide Gul. 1. Instituta Saxonioe in textu Roffensi, item Somneri Gloss, ad LL. Hen. in voce Bellum. (Al. MS 2 Vide Mirror, c. 4. s. 11. Digitized by Microsoft® 38 But the Tenant may defend himself, either in his o^vn proper person, if he chuse so to do, or by any other unobjectionable "Witness, if he prefer that course. But, if he has produced a Champion, and such Champion should die in the interval, it may be asked, what the Law is, whether the Tenant may defend himself by another Champion, or whether he ought to lose his suit, or his seisin only ? We must here have recourse to our. former distinction. It should also be remarked, that the Champion of the Tenant cannot substitute another in Court for the purpose of undertaking the defence, unless it be his own lawful ^ Son. But, it frequently happens, that a hired Champion is produced in court, who, on account of a reward, has undertaken the proof. If the adverse party should except to the person of such a Champion, alleging him to be an improper witness, because he had accepted a reward to undertake the proof, and should add, that he was prepared to prove this accusation against the Champion, (if the latter chose to deny it) either by himself or by another, who was present when the Champion had taken the reward, the party shall be heard upon this charge, and the principal Duel shall 1 The Cottonian, Bodleian, and Dr. Milles's MS. concur in omitting lawful, yet, tliat the true reading is as it stands in the Harleian MS. and in the Text, is more than probable, since the son of the Demandant's champion was to be legitimate, and there can be no reason .suggested, why tlie same rule should not prevail, with respect to the Tenant's champion. The Rule itself most probably resulted from the warlike spirit of the age, and the de- sire to keep up the dignity of a species of trial, in which noble-men frequently personally engaged. Digitized by Microsoft® 39 be deferred. If, upon this charge, the Champion of the Demandant should be convicted and conquered in the Duel, then, his Principal shall lose the suit, and the Champion himself, as conquered, shall lose his law, namely, he shall from thenceforth never be admitted in Court, as a "Witness, for the purpose of making proof by Duel, for any other person ; ^ but, with resj>ect to himself, he may be admitted, either in defending his own body, or in prosecuting any atrocious personal injury, as being a violation of the King's Peace. He may also defend by Duel his right to his own Fee and Inheritance. The Duel being finished, a fine of sixty shillings '^ shall be imposed upon the party conquered, in the name of Eecreantise,'^ and besides which he shall lose 1 From the Norman Code we learn, that the conquered Cliam- pion was incompetent as a witness, as a champion, as a juror, &o. (Le Grand Custum. de Norm, sparsim) which indeed coin- cides with the text of Glanville, in point of substance. 2 Quibellumvadiaverit et per judicium defecerit, QOSol. emendet (LL. Hen. 1, c. 59 Ed. Wilkins.) The Mirror says 40s. and the Cottonian MS. of Glanville 9s. whilst the sum fixed by the Nor- man code was 40s. and one penny. (Vide Mirror, c. 3. s. 23. Grand Custumary of Normandy c. 137. ) 8 Recreantisce. " Now the ancient law was, that tlie victory " should be proclaimed, that he that was vanquished should ac- " knowledge his fault in the audience of the people, or pronounce •' the horrible word of crawenf, in the name of recreantise &c. and " presently judgment was to be given, and the recreant should " amittere legem &o." (3 Inst. 247) " 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 Cowardice." (Mirror, 163 Ed. 1768. "If he become recr-eo7ii, that is a cry- " ing coward, or craven, he shall for his perjury lose liberam. Digitized by Microsoft® 40 his Law ; and, if the Champion of the Tenant should be conquered, his Principal shall lose the Land in ques- tion, with all the fruits and produce found upon it at the time of Seisin of the Fee, and never again shall be heard in Court concerning the same Land.^ For those matters, which have been once determined in the King's Court by Duel, remain for ever after unalterable. Upon the determination of the suit, let the Sheriff be commanded by the following Writ, to give possession of the Land to the successful party. CHAP. lY. " The King to the Sheriff, Health. I command you " that, without delay, you give possession to M. of one " Hyde of Land, in such a Vill, concerning which there " was a suit between him and H. in my Court ; because " such Hyde of Land is adjudged to him in my Court, " by the Duel. Witness, &c." " legem. Craven is derived from the Greek word Kpavi/v, a vodfe- " rations : others nearer home of crying and craving forgiveness. " And recreantisa is devised of the French recreance, or giving " back or cowardice ; and sometimes it is called creantia, per " antiphrasen, because he that useth it is not faithful but " breaketh his oath." (3 Inst. 321.) 1 Dominus autem pro quo Duellum siibierat amittet penitus qtiicquid per illud intendebat obtinere. Nee aliquid ulterius ipse vel Heredes sui in quereld eontentionis de cetero poterunt reda- mare. (Le Grand Custoum. de Normand. c. 137.) Digitized by Microsoft® 41 CHAP. V. This is the course of proceeding, when the Demand- ant has been successful in the Duel. But if he has been conquered, in the person of his Champion, then the Tenant shall be freed from his claim, without any possibility of being again disturbed by him. Thus far concerning the Duel,i where the Tenant should chuse or elect that mode of defending himself, against hisi Adversary. CHAP. VI. But, if the Tenant should prefer putting himself upon the King's Grand Assise, the Demandant must either adopt the same course, or decline it. If the- Demandant has once conceded in Court that he would put himself upon the Assise, and has so expressed him- self before the Justices of the Common Pleas,^ he can- 1 In taking leave of the trial by Duel, the Reader will recal to mind Judge Blackstone's observation — that, though this species of Trial is much disused, it is still in force, if the parties chus©^ to abide by it. (3 Comm. 336.) 2 Coram Justiciis in Banco sedentibus is the much controverted passage of the Text. Mr. Beeves conceives it to mean, before- the Justices in open court, observing, that this phrase has been quoted by some persons to shev7, that in the time of Glanville, there were Justices de banco, in the modern sense of those vrords, a construction, he proceeds to remark, virhich this passage will certainly not warrant. (Hist. Eng. Law, 1. 125. in note.) On the same side with Mr. Reeves we find Mr. Madox, who is, un- doubtedly, a very respectable authority, did he not indicate- rather too strong an inclination to intei'pret the passage, ia- Digitized by Microsoft® 42 not afterwards retract, but ought either to stand or fall by the Assise. If he object to put himself upon the Grand Assise, he ought in such case to shew some cause, why the Assise should not proceed between them — such as, that they were of the same blood, and sprung from the same kindred stock from whence the Inheritance itself descended; and if the Demandant take this objection, the Tenant will either admit its validity, or deny it. If he admit it in Court, the Assise itself shall thereby cease, so that the matter shall be verbally pleaded and determined in Court ; because it is then a question in Law, which of the parties is the nearer to the original stock, and as such, the Heir most justly entitled to the favor of his own hypothesis. (Madox's Excheq. c. 19.) Lord Hale follows on the same side. " Neither," says he, " do I find any distinct mention of the court of common " Pleas in the time of this king," — speaking of Henry the second. (Hist. Com. Law, p. 142.) This, it must be confessed, is but negative authority; for though it may possibly be contended, that his Lordship viewed the doctrine of the Text in the same light as Mr. Madox -and Jlr. Reeves view it, yet, it is more probable, that he had forgotten it, or he otherwise would have noticed, if merely to refute, it. As a strong supporter of a contrary doctrine, we find Lord Coke. (3. Inst. 33. See also pref . to 8 Rep. and Co. Litt. 71. b. and Mr. Hargrave's note.) The reasons adduced by Mr. Reeves and those who concur with him, appear by no means conclusive ; and I think it would be far from difiScult to give a complete answer to them, from considering the style and manner of expression peculiar to our author. But as this is purely a speculative point, at least in the present day, I am not anxious to balance it inpulvere scholastico, as Mr. Madox professes to do it, but follow the high authority of Lord Coke, without pretend- ing to assert, that even his opinion may not here be liable to question, so very doubtful is any conclusion which we may come to upon the subject ! ! Digitized by Microsoft® 43 inheritance ; and, in this manner, the nearer Heir shall prove his title, unless his adversary can allege in Court any reason, why such Heir has lost his right, either for a time or perpetually, or that any Ancestor of his had so done ; as, for Example, that he has given or sold or exchanged the Land in question, or, by any other mode which the Law permits, has, alienated it; or if the Heir, or any of his Ancestors, have committed Felony,^ and forfeited their rights entirely, concerning which we shall treat more fully hereafter. Should the suit on any of these grounds be delayed, the matter may incidentally, through the Effect of Pleading having such a tendency, be regularly brought to the Duel. But if he, who has put himself upon the Assise, deny all Kelationship between him and the Demandant, or, at least, insist, that they were not sprung from the same stock, frona which the Inheritance descended, then, recourse must be had to the^ common Kindred of both parties, who for this purpose are to be called into Court, in order that the Relationship of the parties to the suit may be investigated on their testi- mony. If the Relations unanimously affirm, that the 1 Vide Bi-acton, 130. s. 19, 20.— Fleta 43. s. 4. and Britton o. 5. s. 7. and Infra, L. 7. c. 17. &c. 2 But the Cottonian and Dr. Milles's MS. concur in stating it to be, to the Vicinage. That the printed text of Glanville is cor- rect, seems unquestionable, as he mentions a reference to the Vicinage, after that to the kindred had failed. All this is clear : but according to the MS. alluded to, a reference must be made to tlie Vicinage, after the Vicinage, which is assuredly absurd. To this may be added, that the printed text corresponds with another part of Glanville, where an object, not altogether dis- similar, is in view. Vide L. 5. c. 4. Digitized by Microsoft® 44 litigating parties have descended from the same stock, from whence the Inheritance moved, their assertion is conclusive, unless one of the parties strongly persist in asserting the contrary ; and, in such case, recourse shall be had to the Vicinage, whose testimony upon this subject, if it coincide with that of the Helations, must be unreservedly acquiesced in. The same course must be pursued, if the Relations differ in their Testi- mony ; for then the parties must abide by the Verdict of the Vicinage. The Inquisition having been made, if the Parties be unquestionably found and proved to have sprung from the same stock, from which the Inheritance descended, the Assise shall cease, and the suit must verbally proceed, as I have before mentioned. But, if the contrary should appear to the Court and the King's Justices, then, the Demandant who took the objection, that both parties were sprung from the same stock, in order maliciously to prevent the Assise, shall lose his suit. If nothing intervene to impede the progress of the Assise, then the question shall be as finally terminated by that mode of decision as by the Duel. CHAP. VII. The Grand 1 Assise is a certain royal benefit be- 1 Mr. Reeves thinks the term magna in the present passage an interpolation, because the Cottonian, Bodleian, and Harleian MS. omit the word. It is with reluctance I differ from a writer,, to whom the profession is under such very considerable obliga- tions — but I submit, 1st, That the word magna had occurred in the preceding chapter, and all these MS. had concurred in ad- Digitized by Microsoft® 45 stowed upon the people, and emanating from the clem- ency of the prince, with the advice of his nobles. So eflfectually does this proceeding preserve the lives and civil condition of Men,^ that every one may now pos- sess his right in safety, at the same time that he avoids the doubtful event of the Duel. Nor is this all : the severe punishment of an unexpected and premature Death is evaded, or, at least the opprobrium of a last- ing infamy, of that dreadful and ignominious word ^ mitting it. 2ndly, That the connection of the subject shews the Assise spoken of in the two places, to be one and the same pro- ceeding. 3rdly, That in numberless other passages our author characterises this Assise by the term magna, and most, if not all, of the MS. admit it in such passages. 4thly, That the Regiam Majestatem, the Mirror, the Diversity of Courts, Braoton, Fleta, Lord Coke, Judge Blackstone, Cowell, Spelman, Madox, and many others, always speak of this proceeding under the term Grand Assise ; and lastly, that as the word assisa had a variety of meanings, it seems no less consistent with clearness of expres- sion, than compatible with the dignity of a proceeding, intended in its object to effect so remarkable a revolution in our judicial polity, as the abolishing of the Duel, to attach some honorable term of distinction to it. Status integritati tarn salubriter. Our Author alludes to the consequences that befel the conquered champion : he lost his life, or his law &c. But, in losing his law, his condition or state in society, as a civil character, was affected, being no longer capable of waging the Duel for another &c. The Assise, says he, is so regardful of the lives of men — of their condition, as civil Beings, that it exposes neither the one nor the other to any danger. The whole chapter is sufficiently crabbed and quaint ; indeed, the most difficult parts of the whole work are those in which the author has aimed at being elegant. This observation applies with particular force to our Author's Preface. 2 See Note page 40. Digitized by Microsoft® 46 that so disgracefully resounds from the mouth of the conquered Champion. This legal Institution flows from the most profound Equity. For that Justice, which, after many and long delays, is scarcely, if ever, elicited by the Duel, is more advantageously and expeditiously attained, through the benefit of this Institution. This Assise, indeed, allows not so many Essoins as the Duel, as will be seen in the sequel. And by this course of proceeding, both the labor of Men, and the expences of the poor are saved. Besides, by so much as the testimony of many credible witnesses, in judicial proceedings, preponder- ates over that of one only, by so much greater Equity is this Institution regulated than that of the Duel. For since the Duel proceeds upon the testimony of on& Juror, this constitution requires the oaths of twelve lawful men, at least. These are the proceedings which lead to the Assise. The party who puts himself upon the Assise should, from the first, and in order to pre- vent his Adversary from subsequently impleading him,, sue out a Writ for keeping the peace, the suit being already pending between the parties concerning the Tenement, and the Tenant having put himself upon the Assise. CHAP. YIII. "The King to the Sheriff, Health. Prohibit JST. " that he hold not in his Court the Plea which is be- " tween M. and H. of one Hyde of Land, in such a Digitized by Microsoft® 47 " Yill, which the said li. claims against the aforesaid' " M. by my Writ, unless the Duel be waged ; because "Jf. the Tenant hath put himself upon my Assise, "and prays a Kecognition to be made, which of "them have the greater right to that Land. Wit- " ness &c." If the suit be concerning a service, on account of which the Tenant has put himself on the Assise, as he is at liberty to do if he chuse, then, the^ Writ will be as follows. CHAP. IX. "The King to the Sheriff, Health. Prohibit JST. " that he holds not in his Court the Plea which is be- " tween M. and M. of the service of eight shillings, and "of one Quart ^ of Honey, and two stikes* of Eels " which the aforesaid M. exacts of the aforesaid S. for " the Yearly service of his free Tenement that he holds " of him, in such a Vill, for which Tenement the said " R. acknowledges that he owes him eight shillings a " year for every service, unless the Duel be waged be- " tween them, because R. from whom the service is " required, puts himself on my Assise, and prays a Eec- " ognition, whether he owes eight Shillings a j^ear for- " every service, and besides one Quart of Honey, and " two stikes of Eels. Witness &c." '^Seodarii. Vide Spelm. Gloss, ad vocem. 2 Stikis. A stike seems to be 25, sic dicta quod trajecto vimine,. (quod stic dioimus) connectebantur. (Spelm. Gloss, ad voc- stica.) Digitized by Microsoft® 48 CHAP. X. By means of such "Writs, the Tenant may protect himself, and may put himself upon the Assise, until his Adversary, appearing in Court, pray another "Writ, in order that four lawful Knights of the County, and of the Vicinage, might elect twelve lawful Knights from the same Vicinage, who should say, upon their oaths, which of the litigating parties, have the greater right to the Land in question. The "Writ for the summoning of the four Knights is as follows CHAP. XI. " The King to the Sheriff, Health.^ Summon, by " good summoners, four lawful Knights of the Vicinage " of Stoke, that they be at the Pentecost before me, or '" my Justices, at "Westminster, to elect on their oaths, ' " twelve lawful Knights of that Vicinage, who better " know the truth, to return, on their oaths, whether " M. or R. have the greater right in one Hyde of Land " in Stoke, which M. claims against R. by my "Writ, " and of which R. the Tenant, hath put himself upon " my Assise and prays a Eecognition to be made, which " of them have the greater right in that Land ; and, " cause their names to be imbreviated. And summon, " by good Summoners, R. who holds the Land, that 1 Vide F. N. B. 9. Digitized by Microsoft® 49 " he be then there to hear the election, and have there " the Summoners, &c." CHAP. XII. At such day the Tenant may essoin himself, and again have recourse to three reasonable Essoins. And this, indeed, appears but right ; since, as we have explained in a former part of this Treatise, as often as any one appears in Court, and there performs that which the Law requires of him, he may again re- cur to his Essoins. But, then, it would happen, or, at least it might so, that as many, if not a greater number, of Essoins, may intervene in the remedy of the Grand Assise, as of the Duel, which is by no means compatible with what we have already laid down. Let us, then, suppose, that the Tenant has cast three successive Essoins against the election of the twelve, by the four Knights. After these three Essoins, and upon the Tenant appearing in Court, one or more of the four Knights may on the same day cast an Essoin ; and, if this be conceded, the Tenant might again, after the Essoins of the four Knights were expired, essoin himself afresh, and thus the Assise could scarcely, if ever, be brought to a con- clusion. We should, therefore, observe, that a certain just Constitution ^ has been passed, under which the 1 A Constitution, an Institution, an Assise, were promiscuously employed to designate a Statute or Law, 4 Digitized by Microsoft® 50 Court is authorised to expedite the suit, upon the four Knights appearing in Court on the day appointed them, and being prepared to proceed to the election of the twelve Knights. Upon this occasion, whether the Tenant appear or absent himself, the four Knights shall proceed upon their oaths to elect the twelve. But, if the Tenant himself be present in Court, he may possibly have a just cause of Exception against one or more of the Twelve, and concerning this he should be heard in Court. It is usual, indeed, for the purpose of saiisfying the absent party, not to confine the number to be elected to twelve, but to comprise as many more as may incontrovertibly satisfy such absent party, when he return to Court. For Jurors may be excepted against by the same means by which "Witnesses in the Court Christian are justly rejected.^ It should also be observed, that if the party, who has put himself upon the grand Assise, appear, although some of the four Knights are absent, the twelve may be elected by one of the four taking to himself two or three other Knights from the same County, if such happen to be in Court, though not summoned for the purpose, pro- vided such course of proceeding meet with the appro- bation of the Court, and be mutually consented to by the litigating parties. But, for greater caution, and to avoid all possible cavil, it is usual to summon six or more Knights to Court, for the purpose of making the election. 1 " All the persons suspect to either of the party,'' says the Regiam Majestatem, " shall be repelled." ("Vide Reg. Majesta- tem, L. 1. c. 10.) See also Bracton 185. a. Digitized by Microsoft® 51 Indeed, if the object be to expedite the proceedings, it will more avail to follow the direction of the Court, than to observe the accustomed course of the Law. It is, therefore, committed to the discretion, and Judg- ment of the King or his Justices, so to temper the proceeding, as to render it more beneficial and equi- table. CHAP. XIII. But any person may put himself upon the Assise concerning a Service, or Land, and besides, concerning demands of service, and concerning the Eight of Advowson to any Church, l^or is the party confined to this remedy, as against a stranger merely, but he may avail himself of it against his Lord for the pur- pose of ascertaining, whether the Lord has greater Eight to retain the object in question in his Demesne, or the Tenant to hold it of him. It is easy to form a "Writ, adapted to the variety of circumstances. CHAP. XIY. The Election of the twelve Knights having been made, they should be summoned to appear in Court, prepared upon their oaths to declare, which of them, namely, whether the Tenant, or the Demandant, pos- sess the greater right to the property in question. Let the Summons be made by the following Writ — Digitized by Microsoft® 52 CHAP. xy. " The King to the Sheriff, Health. Summon, by ' good Summoners, those twelve Knights E. and iT. ' (naming each) that they be, on such a day, before ' me or my Justices at such a place, prepared on their ' oaths to return, whether E. or N. have greater ' right, in one Hyde of Land, or in the subject matter ' of dispute, which the aforesaid E. claims against ' the aforesaid N. and of which the aforesaid I^. the ' Tenant, has put himself upon our Assise, and has ' prayed a Recognition, which of them have the ' greater right to the thing in question ; and, in the ' mean time, let them view the Land or Tenement it- ' self, of which the service is demanded ; and Sum- ' mon, by good Summoners, N. the Tenant, that he ' be then there to hear that Eecognition, &c." CHAP. XVI. On the day fixed for the attendance of the twelve Knights to take the Eecognition, whether the Tenant appear, or absent himself, the Pecognition shall pro- ceed without delay ; nor shall any Essoin avail the Tenant, because as his presence is not requisite, the Pecognition may proceed without him ; ^ since, if he 1 " The absence of either of the Parties shall not stay the " Assise to proceed, seeing they did consent that the matter " should pass to the knowledge of an Assise." (Regiam Majes- tatem, L, 1. c. 13.) Digitized by Microsoft® 53 were present, he would, by having, when in Court, put himself upon the Grand Assise, be precluded from alleging any reason, why it should be deferred^ It is different with respect to the absence of the Demandant. If he should essoin himself, the Assise shall, for that day, be deferred, and another day shall be given in Court ; because though a Party may lose by his defaultj no one when absent shall gain anything. CHAP. XVII. "When the Assise proceeds to make the Eecognition, the right will be well known either to all the Jurors, or some may know it, and some not, or all may be alike ignorant concerning it. If none of them are acquainted with the truth of the niatter, and this be testified upon their oaths in Court, recourse must be had to others, until such can be found who do know the truth of it. Should it, however, happen that some of them know the truth of the matter, and some not, the latter are to be rejected, and others summoned to Court, until twelve, at least, can be found who are unanimous.^ But, if some of the Jurors should decide for one party, and some of them for the other, then, others must be added, until twelve, at least, can be ob- 1 Concerning this mode of supplying the Jurors, termed in our old Law Books afforciament, the Reader may consult the Mirror, o. 4. s. 34.— Braoton, L. 4. c. 19.— Britton, p. 136.— Fleta, 4. c. 9. s. 9. and Mr. Kelham's Translation of Britton's Pleas of the Crown. Note 23. p. 35. Digitized by Microsoft® 54 tained who agree in favor of one side. Each of the Knights summoned for this purpose ought to swear, that he will neither utter that which is false, nor knowingly conceal the truth. With respect to the knowledge requisite on the part of those sworn, they should be acquainted with the merits of the cause, either from what they have personally seen and heard, or from the declarations of their Fathers, and from other sources equally entitled to credit, as if falling within their own immediate knowledge.^ CHAP. XYIII. "When the twelve Knights, who have appeared for the purpose of making Recognition, entertain no doubt about the truth of the thing, then, the Assise must proceed to ascertain, whether the Demandant, or Tenant, have the greater right to the subject in dispute. But if they decide in favor of the Tenant, or make any other declaration, by which it should suiEciently appear to the King, or his Justices, that the Tenant has greater right to the subject in dispute, then, by the Judgment of the Court, he shall be dismissed, for ever released from the claim of the Demandant, who shall ^ The Reader will remark the singular coincidence, in many respects, between the two proceedings, the Duel and the Grand Assise. This was no doubt intentional, and indicated a wise and political tenderness towards the prejudices of the age, still strongly inclining towards the trial by Battle. Digitized by Microsoft® 55 never again be heard in Court with effect concerning the matter. For those questions which have been once lawfully determined by the King's Grand Assise, shall upon no subsequent occasion be with propriety revived. But, if by this Assise it be decided in Court in favor of the Demandant, then, his Adversary shall lose the Land in question, which shall be restored to the Demandant, together with all the fruits and produce found upon the Land at the time of Seisin.^ CHAP. XIX.2 A PUNISHMENT is ordaiucd for those who rashly swear in this Assise, and is with much propriety in- serted in that Eoyal Institution.^ For if the Jurors 1 " Because," says the Eegiam Majestatem, "the fruits extant " and dependant upon the ground are part of the Land and " ground." (L. 1. c. 12.) ^ It may be here noticed, that the present chapter is one of the authorities to which Lord Coke appeals, in support of his position, that an attaint lay at common Law, both in Pleas real and per- sonal. (2 Inst. 129, 336.) 2 In commenting upon the Statute de finibus levatis. 27. Ed. 1. Mr. Barrington observes, " the Statute consists of four chapters, " and the first states, the great perjury which prevailed among " Jurors at this time, which offence in a witness was not now " punishable by any Act of Parliament ; it may be perhaps " thought a reflection on the common Law to assert, tliat this " crime was totally disregarded, but yet we do not hear of any " such prosecution, except the attaint of a Jury be considered as " such." (Observ. on Anc. Stat. 176.) It will not, I trust, be considered as a want of respect for the high authority in ques- tion, to observe, that the general position intended to be sup- ported, seems to be refuted by the latter part of the passage, if, as I conceive, the Juror was, in those times, of necessity a Digitized by Microsoft® 56 shall, by due course of Law, be convicted, or, by legal Confession, be proved to have perjured themselves in Court, they shall be despoiled of all their Chattels and Moveables, whicK shall be forfeited to the King, although by the great clemency of the Prince, their freehold Tenements are spared. They shall also be thrown into prison, and be there detained for one year at least. In fine, deprived for ever after of their Law, they shall justly incur the mark of perpetual infamy. This penalty is properly ordained, in order that a similarity^ of punishment may deter Men in such a Case, from the unlawful use of an Oath. It should be observed, that the Duel never shall be "waged in a case where the Assise cannot be resorted to. The converse of the proposition equally holds. tvitness : it was part of his qualification that he was a witness, the two characters being then blended. This is, I submit, evi- dent from the 17th chapter, of the present book. A separation of character seems to have been the gradual effect of posterior times. Nor is this all. The punishment of a Juror, when guUty of perjury, appears from the present chapter of Glanville ta have been imposed by an Act of Parliament. If this Act, like most, if not all, of those mentioned in the following pages, be not now extant, it is assuredly no small part of the merit of Glanville, that he has preserved the substance of those public Records, of which no other trace can be found. 1 Our author seems to allude to the punishment inflicted on the conquered Champion — such Champion's cowardice being esteemed a species of perjury, as Lord Coke informs us, with which the perjury of the Jurors in the assise was commensurate. . The same principle pervades the Norman Code — Omnes autem illi, qui perjurio vH Icesione fidei sunt infames, ab hoc etiam sunt repellendi ; et omnes illi qui in bello succubuerunt, (Le Grand Coustoum. de Normand. c. 62.) Digitized by Microsoft® 57 If the Land in question be adjudged to the Demand- ant, he shall be remitted to the Sheriff of the Countyj, where the Land is situated, in order to recover his- possession. And, for this purpose, he shall have the following Writ CHAP. XX. " The King to the Sheriff, Health. I command you " that, without delay, you deliver possession to iV. of " one Hyde of Land, in such a Vill, which he claims " against B. of which the said B. put himself upon my " Assise, because the said B} has recovered that Land, " in my Court by a Eecognition. Witness, &c." CHAP. XXI. But, if there are not any Knights to be found in the- Yicinage, nor in the County itself, who are acquainted with the truth of the matter in dispute, it is a question,, what steps shall be resorted to ? Whether, from that circumstance alone, the Tenant shaU. prevail against his Adversary ? If this be answered in the affirmative, shall the De- mandant lose his Eight, supposing he has any? A doubt, indeed, may be entertained upon this subject- 1 This B. should be N. Digitized by Microsoft® 58 Xet us suppose that two or three lawful men, or even more, provided the number did not exceed twelve, who, as Witnesses of the fact, should offer themselves in Court, to prove it. Let us, even, suppose that they were of such an age as to be qualified to make proof by the Duel, and should make use of all such words in Court, on account of which the Duel is generally awarded. After all this, it may be doubted, whether any of them shall be heard upon the subject. Digitized by Microsoft® looR IJI. OF WARRANTORS ; AND OF TWO LORDS, UNDER ONE OF WHOM, THE DEMANDANT AVOWS, AND UNDER THE OTHER, THE TENANT. CHAP. I. "When the presence of the Tenant only happens to be requisite, and in itself precludes the necessity of any other person appearing to answer, the order of Pleading which is observed in Court is such as we have described. But the presence of another party becomes no less necessary than that of the Tenant, if the latter declare in Court, that the subject in dispute is not his own, but that he merely holds it, as a Loan,^ or a Hireing, or a Pledge, or as committed to his Custody, or in some other mode entrusted to him by another ; or if he should allege, that the property were his own, but that he had a Warrantor ^ from whom he had received 1 Commodatam, loeatam, <&g. The Reader will recognise these Terms as borrowed from the Roman Law. In the tenth Book, our author resumes the discussion of them. 2 Warrantum. Sir Henry Spelman is inclined to derive this Term from the Saxon Primitive War, arma, telum, defensio, &c. Digitized by Microsoft® 60 it, either as a Gift, or Sale, or in Exchange, or, gener- ally, found his Title to the thing upon any other cause of this nature. If the Tenant should declare in Court, that the property is not his own, but belongs to another, then, such other person must be summoned by another "Writ, but yet of a similar nature — and thus the plea shall be commenced anew against him. And when such other person at last appears in Court, he in the same manner will declare, either that the property belongs to him, or not. If the latter, then, the party who had first asserted in Court, that the property did belong to him, shall thereby lose the Land irretrievably, and he shall be summoned to appear in Court, and hear his Judg- ment ; and thus, whether he appear or absent himself, his Adversary shall recover possession. "When the Tenant call a person into Court to warrant the Land, then, a reasonable day shall be given him in Court to produce such person there ; and thus he may anew recur to three Essoins, with respect to his own person, and to the same number, with regard to the person of Dr. Sullivan tells us, it was derived from War, because, in real Actions, the Trial was of old by Combat. Dr. Cowell, however, prefers deriving warrantia from the French garantie or garant. The Doctor notices the stipulatio of the Civilians, but, as he ob- serves, " this reacheth not so far as our warranty." The term, it seems, is of great antiquity, and is said not to have been un- known to the Longobardi in their original settlements. (Spelm. Gloss, ad voc. and Cowell's Interpreter, ad voc. and Sullivan's Lectures, 119.) It does not fall within the scope of these notes, to bring the Law down to the present day. — The translator would otherwise have availed himself largely of Bracton's 5th book. Fleta, L. 5. c. 4. Britton, 197, &c. Co. Litt. 364. b. et seq. and Mr. Butler's admirable annotations. Digitized by Microsoft® 61 his Warrantor. The person cited to warrant having at last appeared in Court, he will either enter into the warranty of the subject in dispute, or decline it. If he adopt the former course, he then becomes a Prin- cipal Party in the suit, so that the remainder of the cause shall be entirely carried on in his name ; but if, previous to this step, he essoin himself, the Tenant cannot excuse himself by an Essoin, but, if absent, shall be adjudged in default. If, however, the person called to warrant, being present in Court, should fail in entering into the warranty, then, the plea must altogether be continued between him and the party who has called him — and thus, by means of pleading conducive to such an end, the matter may come to the decision of the Duel, and that, whether the Tenant can produce his Charter of "Warranty, or not, if he be pre- pared with an unobjectionable Witness to make proof, and he is willing to undertake it. It should be ob- served, that when it is once ascertained, that the per- son cited to warrant ought to take that obligation upon him, the Tenant shall not afterwards lose the property in dispute, because if such property should be recov- ered in Court, the Warrantor shall be bound to make the Tenant a competent equivalent ^ if he possess suf- ficient means so to do, 1 EseawMum, a term used in Domesday. Sir Edward Coke, in speaking of a warranty, observes, that it is a covenant real, an- nexed to Lands, whereby a man and his heirs are bound to war- rant the same " and to yield other Lands and Tenements (which " in old books is called in Excambio) to the value of those that " shall be evicted by a former title," (See Co. Litt. 365. a. and 51 b.) It should seem from Bracton, that if the warrantor had Digitized by Microsoft® 62 CHAP. II. But it sometimes happens, that the person called to Court to warrant is unwilling to appear there, either for that purpose, or to shew that he ought not to war- rant to the Tenant the property in question. In that case, upon the petition of the Tenant, and by the order and indulgence of the Court, the reluctant party shall be compelled to do so, and he shall be summoned by the following Writ. CHAP. III. " The King to the Sheriff, Health. Summon, by " good Summoners, N. that he be before me, or my " Justices, there on a certain day to warrant to R. one " Hyde of Land, in such a Vill, which he claims as his- " Gift, or the Gift of M. his Father, if he wiU war- not sufficient property to make a full restitution, he was to do so as far as his property extended, and the Tenant was to wait, until better times, for the deficiency. If the Warrantor had no prop- erty, he was not, from that circumstance, to be entirely absolved from making restitution, whilst there was any probability of his inheriting property from that person, on account of whoru he was called to warrant. On the other hand, he was 'not bound to warrant the deed of his ancestor, at the expense of any purchase made by himself. — Nor was the recompense to be estimated, beyond the value of the property at the time it was originally warranted. — Nor was one of many warrantors, required to bear the burthen solely, the others being obliged to contribute, (Bracton, 394. b. 395 a. See also le Grand Coustoum. de Norm. c. 50.) Digitized by Microsoft® 63 " rant it to him, or to shew wherefore he ought not to " warrant it to him ; and have the Suramoners and " this Writ. Witness Kanuph, &c." CHAP. IV. On the day appointed, the Warrantor can either essoin himself, or not. If not, then, that indulgence which is allowed to another would be denied him, not being culpable ; which would be no less inconvenient than unjust.^ If he may essoin himself, let us suppose that he has properly essoined himself three times suc- cessively, it should on the third day, according to the Law and practice of the Court, be ordered, that he ap- pear on the fourth day, or send an Attorney. If, on that day, he neither appear nor send an Attorney, it seems a question what steps are to be pursued. Be- cause were the Tenement to be taken into the King's hands, such a step would seem an injustice committed on the right of the Tenant, since he has not been ad- judged in default. But if this course be not pursued, then the right of the Demandant, supposing he possesses any, would be unjustly deferred. And, indeed, the course mentioned 1 "At the day assigned to the warrantor for appearance, he " may essoin himself, or not essoin himself. " If he neither appears, nor sends an Essoin, the power and " benefit of the Law shall be denied to him which is granted to- " others : for it is an unseemly thing and an iniquity (that he " being summoned, appears not by himself nor by another."" (Reg. Maj. L. 1, c. 21.) Digitized by Microsoft® 64 shall be adopted, as most consonant to the Law and Custom of the Eealm. Because, if any one should lose his Land, or merely the possession of it, through the default of his Warrantor, the latter shall be compelled to make him an equivalent recompense, and may, there- fore, by means of the foregoing "Writ, be distrained to appear in Court, and warrant the Tenement itself, or shew some reason on account of which, he should be -exempt from the obligation of warranty. CHAP. Y. It sometimes happens, that the Tenant, although he has a "Warrantor, does not call him into Court, but takes upon himself entirely to dispute the Demand- ■ant's claim. If the Tenant should pursue this course, and should ilose the Land in question by the Duel, he cannot after- wards recover any thing against the Warrantor.^ But, according to this, a question may be proposed, -whether, as any one can defend himself by the Duel, without the assent and presence of his "Warrantor, he can put himself upon the King's Grand Assise, without the assent and presence'^ of the "Warrantor? And, indeed, he may defend himself by the Assise upon a parity of reason as by the Duel. 1 Having laid down the same doctrine, the Eegiam Majestatem adds, " it is so to be understood of all other things debateable, " whereof the Warrantor is not called in lawful time." (L. 1, c. S2.) " Knowledge, according to the Harl. and Bodl. MS. Digitized by Microsoft® 65 CHAP. VI. But it sometimes happens, that the matter is de- ferred on account of the absence of the Lords, when, for example, the Demandant claims the Tenement in question, as belonging to the fee of one Lord, and the Tenant, as belonging to that of another. In such a case, both the Lords must be summoned to Court, in order that, in their presence, the Plea may be heard, and, in the accustomed manner, decided, least any injustice should seem to be done to them when absent. But upon the day on which they are summoned to appear in Court, both or either of them may lawfully cast an Essoin, and this three times in the usual man- ner. Should the Lord of the Tenant have recurred to three Essoins, it should be ordered, that he appear personally in Court, or send his Attorney. If after this, he neither appear, nor send his Attor- ney, let the Tenant be directed to Answer and take the defence upon himself ; and, if he should prevail, he shall retain the Land to himself, and from thenceforth shall do service to the King, because his Lord shall lose his service through his default, until he appear and perform there that which he ought to do. In the same manner, may the Lord of the Demand- ant essoin himself; but, when he at last appear in Court, it may be asked, whether the Lord of the Ten- ant can again essoin himself ? He may, indeed, until 5 Digitized by Microsoft® 66 he has once appeared in Court ; because it is, |;hen, incumbent upon him to allege some reason, why he ought not to wait any longer ; and this Eule equally prevails with respect to the person of either Lord. But if, after having availed himself of three Essoins, the Lord of the Demandant should be absent, it may be a question, what the Law is ? If, indeed, he should have first essoined himself, the Essoiners themselves shall be taken into custody, and the body of the De- mandant himself shall be attached,^ on account of his contempt of Court ; and thus he shall be distrained to appear in Court, that it may be heard what he has to allege. CHAP. YIL "When both the Lords appear in Court, the Lord of the Tenant will warrant the Land in question, as in ^ Attaohiabitur. Attaohiare is said to be derived from the French attacher. It differed from arrestere in many respects. An Arrest, say the old Books, proceeds out of the inferior courts by precept ; an attachment, out of the superior courts by pre- cept, or writ. (Lamb. Eiren. L. 1. c. 16.) An Arrest lies only against the body of a Man ; an Attachment, sometimes against the goods only. Thus Kitch. (fol. 279. b.) says, a man may attach a cow ; and, in another case, that a man may be attached by a hundred sheep ; and it is sometimes awarded against the body and goods together. An Attachment is said to differ from a capias, because the former is more general and extends to the taking of the goods, a capias extending to the body only. An Attachment is laid down as differing from a Distress, inasmuch as it is a Process enumerated to issue, previous to a distress. Thus far our old law Books, (vide Tei'mes de la ley ad voc. attach. Co well's Interpreter and Spelman's Glossary.) Digitized by Microsoft® 67 his Fee, or he will deny that it is so. If he adopt the former course, it remains for him, either to take the defence upon himself, or entrust it to the Tenant, as he may feel disposed ; and whichever course he pur- sues, the right of each of them will be saved, as well that of the Lord as of the Tenant, if their party should prevail in the contest. But, if the contrary should be the result, the Lord shall lose his services, and the Tenant his Land irretrievably. If the Lord of the Tenant, being present in Court, fail in the Warranty, the matter may be interpleaded between them, provided that the Tenant declare, that his Lord had unjustly failed in the Warranty, and, therefore unjustly, be- cause he or his Ancestors had performed such and such specific services to the Lord or his Ancestors, as Lords of that fee, adding that of this fact he has those Avho have heard and seen it, and, in particular, a proper witness to prove it, or some other adequate and suffi- cient testimony ready to be adduced, as the Court shall direct. CHAP. VIII. A SIMILAR distinction must be made, in respect of the person of the Lord of the Demandant. When he appears in Court, he will either claim the Land in question, as in his fee, or not. And thus if he warrant the Title of the Demandant, and claim the Land as within his Fee, it is at his option, either to hold him- self to the proof made by the Demandant, if he be so Digitized by Microsoft® 68 inclined, or to take upon himself to prove his Eight against the other, saving the Eight of both of them, namely, as well his own as that of the Demandant, if their party prevail in the suit. If, however, it happen to be unsuccessful, both the Demandant and his Lord shall lose their right. On the other hand, if the Lord decline to warrant the claim of the Demandant, then, the latter shall be amerced to the King on account of his false claim. Digitized by Microsoft® ifl0h Jt. OF ECCLESIASTICAL ADVOWSONS. CHAP. I. Pleas concerning Ecclesiastical Advowsons ^ are accustomed to be agitated, as well when the church is vacant, as when it is not vacant. If, upon a vacancy of a church, he who is seised of the Advowson should present a Parson ^ to it, and any one should question the Presentation and claim it, then, it must be distin- guished, whether the dispute be concerning the Ad- vowson itself, in other words, the right itself of pre- senting a Parson, or whether it merely relates to the ' Advocationibus. " Advocatio," says Sir Wm. Blackstone, " signifies in Clientelam recipere, the taking into protection, " and therefore is synonymous with Patronage, Patronatus." (2 Comm. 21.) With this concurs Lord Coke — "Advocatio " signifying an advowing, or taking into protection, is as much " as jus patronatus." Again " In Britton Cap. 92. The Patron " is called avow, and the Patrons advoeati, for that they be " either founders or maintainers, or Benefactors of the church, " either by building, donation, or increasing of it, in which re- " spect they were also called patroni, and the advowson jus '' patronatih." His Lordship cites Bracton, L. 4. fol. 240. Fleta, L. 5. c. 14. (see Co. Litt. 17. b. and 119. b. Cowell ad yoc. and Spelm. Gloss, ad voc.) 2 Personam, a Parson. (Vide Co. Litt. 300. a. b. Bl. Comm. 1. 383.) Cowell derives the word from the French personne. 69 Digitized by Microsoft® 70 last Presentation, that is, the Seisin of the right of presenting a Parson. If the dispute merely concern the last Presentation, and the Claimant allege, that he or one of his Ancestors had the last Donation and Pres- entation, then, the Plea shall be discussed bj^ the Assise appointed concerning Ecclesiastical Advovvsons ; and an Assise shall be summoned to make Eecognition, what Patron in time of peace presented the Parson who last died to that Church ; and concerning this Assise we shall speak more fully hereafter,^ when we come to treat of other Eecognitions. The party who by this Assise proves in Court the last Presentation, shall thereby recover Seisin of the Presentationof the vacant Church, concerning which the dispute is ; so that he shall lawfully present a Parson to the Church, saving the right and claim of the Demandant with respect to the Eight of Advowson. But, if the right of Advowson be the sole subject of dispute, then the Demandant should subjoin to his claim, that he, or one of his Ancestors, had the last Presentation of that Church ; or, he should concede, that his Adversary, or one of his Ancestors, had the last Presentation ; or, he should allege, that some third person had the last Presentation ; or, in fine, that he knows not Avho had it. Whichever of these courses he pursues, if his Adver- sary claim the last Presentation, as made in his own person, or in that of one of his Ancestors, the Eecog- 1 L. 13. C. 18. et seq. Digitized by Microsoft® 71 nition shall ia every instance proceed upon the Eight of Presentation, unless in one only of the foregoing cases, namely, when the Demandant concedes to his Adversary, that he or one of his Ancestors, enjoyed the last Presentation, for then, without having recourse to a Recognition, he shall present one Person at least. The last Presentation being decided by the Assise or by some other legal mode, and a Parson being insti- tuted into the Church upon the Presentation of the successful party, then shall the person, who is inclined to contend for the Eight of Advovvson, have the fol- lowing Writ. CHAP. II. " The King to the Sheriff, Health. Command iV". "that, justly and without delay, he relinquishes to H. "the Advowson of the Church, in such a Yill, which " he claims to belong to him, and of which he complains " that he unjustly deforced him ; and, unless he do so, " summon him by good Summoners, that he be on such " a day before us, or our Justices, to shew why he " has failed ; and have there the. Summoners and this " Writ &c." CHAP. III. The Party ^ being summoned may avail himself of the same number of Essoins, and that by the same 1 That is, according to the Cottonian and Dr. Milles's MS. the person wlio has deforced the advowson of the church. Digitized by Microsoft® 72 means, as we have already detailed, in treating concern- ing Pleas affecting Land. Supposing, then, that after having cast three Essoins, he should neither appear nor send an Attorney on the fourth day, it may be asked what the Law is ? In such a case, the seisin of the Presentation of the Church shall be taken into the King's hands, and that by the following "Writ. -CHAP. IV. " The King to the Sheriff, Health. I command you " that, without delay, you take into my hands the " Presentation of the Church, in such a Yill, which If. " claims against R. and concerning which, there is a " Plea in my Court between them, and make known " the day of the Caption to my Justices, &c." CHAP. V. The Sheriff is bound to execute this "Writ, in the following manner: he should go to the Church in question, and there in a public manner, and in the presence of respectable men, declare, that he had seised the Presentation^ of such Church into the King's hands, in which the Seisin shall continue for fifteen days. The Tenant, if he feel so disposed, may* re- 1 The Advowson, Bodl. and Cotton. MS. 2 During the 15 days, Cotton, and Dr. Milles's MS. Digitized by Microsoft® 73 plevy,^ and thus recover it, in the same manner as stated in the first Book. CHAP, yi, All the Essoins to which the Defendant can iiave recourse being terminated, at the dav appointed for the parties in Court, either both, or neither, or one only, of the parties will appear. If one only, or both of them, be absent, the matter must be ordered in a manner similar to that we have formerly explained, in treating of Pleas concerning Land. But if both parties appear in Court, the Demandant should then propound his right as against his Adversary, in the following words: " I demand the Advowson of this Church, as " my right, and appertaining to my Inheritance, and " of which Advowson I Avas seised, or one of my An- " cestors was seised, in the time of King Henry the " 1st, the Grand-father of our Lord King Henry, or " after the Coronation of our Lord the King ; and being " so seised, I presented a Parson to the same Church " when vacant, at one of the before-mentioned periods;. " and I so presented him, that upon my presentation " he was instituted Parson into that Church; and if " any one would deny this, I have some credible Men " who both saw and heard the fact, and are ready to " prove it as the Court shall award, and particularly " such, and such persons." The claim of the Demand- 1 " Replegiare is compounded of re smd plegiare, as much as tO' "say, to redeliver upon pledges or Sureties." (Co. Litt. 145. b.)- Digitized by Microsoft® 74 ant being heard, the Tenant may defend himself by the Duel ; and the proceedings will accordingly, from that period, be conducted in the manner we have formerly explained. Should, however, the Tenant chuse to put himself upon the Grand Assise, he is per- fectly at liberty so to do ; and the Assise must then proceed in the form we have previously detailed. CHAP. YII. But, although a Church be not vacant, a dispute may arise concerning the Advowson of it, if the Parson of the Church, or he who is invested with that Char- acter, derive his Title from one Patron, at the same time as another Person, conceiving, himself to be the more rightful Patron of such Church, lay claim to the Advowson. In such case, the following Writ shall be issued upon his application. CHAP. YIII. " The King to the Sheriff, Health. Summon, by ■" good Summoners, the Clerk N., Parson of such a " Church, that he be before me, or my Justices, at " Westminster, on such a day, to shew of what Patron " he holds himself in that Church, the Advowson of " which the Knight M. claims to belong to him. Sum- '" mon also, by good Summoners, If. who deforced him Digitized by Microsoft® 75 '■'■ of the Advowson, that he be there to shew why he ■" deforced him of that Advowson, and have there the ^' Summoners and this Writ. Witness, &c." CHAP. IX. If, after the Clerk has been summoned, he neither appear on the appointed day, nor send any one to ex- cuse his absence, neither on the first, second, nor third summons, it may be doubted, by what mode he should be distrained to appear in Court, especially if he pos- sess no lay Fee, to which recourse can be, had for such purpose.^ A similar doubt may be proposed upon the course to be pursued, should he, after having thrice ■essoined himself in Court, neither appear on the fourth day, nor send an Attorney to answer for him. Should either of these oases occur, let the Bishop of the place, or his Official, if there happen to be no Bishop, be enjoined to distrain the Clerk to appear in Court, or to punish his default, by taking the Church into his hands, or to distrain the Clerk by some other lawful means. When, at last, the Clerk appear in Court, he will 1 Mr. Madox informs us, when speaking of the King's Debtor, " If he was a Clergyman, and had no lay Fee, whereby he might " be distrained, writs were wont to issue to the Bishop of the " Diocese, commanding him to distrain such Debtor, by his ■" Ecclesiastical Benefices. Many of these writs had in them a " clause importing, that if the Bishop failed to make due Exe- " cution, the King would cause the Debt to be levied on the " Bishop's Barony." (Madox's Excheq. c. 23.) Digitized by Microsoft® 76 either acknowledge the Demandant as Patron, and admit that he was instituted upon his Presentation, or upon that of one of his Ancestors, or he will allege some other person to be the Patron. In the former case, the Plea shall cease in the King's. Court. If the Patron deny the assertion of the Clerk, alleging himself to have been instituted upon his Pres- entation, or that of one of his Ancestors, and be dis- posed to contest this point against the Clerk, the Plea shall be discussed before his Ecclesiastical Judge. But, if the Clerk name another Patron, such Patron should be summoned to appear in Court, which Sum- mons he will either obey, or not. In the latter case,, if he neither appear at the first, second, nor third Summons ; or if, having essoined himself in Court the first, second, and third times, he should neither appear nor send an Attorney on the fourth day, it may be asked, by what means he shall be distrained, and how his default shall be punished ? The Advowson of the Church in question shall indeed be taken into the King's hands, and thus remain for fifteen days ; and if, within that period, the Clerk should not appear, then, the Demandant shall have the Seisin delivered to hira. But what shall be done to the Clerk himself?' Whether shall he from that circumstance, lose his Church ? 1 But, if the Party summoned appear in Court, he 1 He should not lose his church, according to the Regiam. Majestatem, (L. 3. c. 33.) Digitized by Microsoft® 77 will either acknowledge himself Patron of the Church in question, or disclaim all right to the Advowson. Should he pursue the latter course, the Suit shall cease in the King's Court, and the cause must be dis- cussed between the Patron and the Clerk, in the Ecclesiastical Court. But if, whilst the Suit be pend- ing, the Church itself happen to become vacant, it may be asked, to whom the intervening Presentation belongs? If, indeed, there be no doubt moved con- cerning the last Presentation, but the person against whom the Eight of Advowson be sought, or one of his Ancestors had the last Presentation, then, he shall present the Parson in the mean time, and until he lose his Seisin. It is a consequence of the same principle, that if the Advowson of any Church should be seised into the ting's hands on account of the default of the Patron, and, during the fifteen days, it should happen to become vacant, the Patron shall not Avithin that period lose his Presentation. But, if the party sum- moned, should claim the Eight of Advowson, and elect to defend it as his own, then, indeed, the Suit must proceed in the order we have already explained. If he should prevail, he and his Clerk shall be freed from the Claim of their Adversary ; but, if he fail in the Suit, then, he and his Heirs shall for ever lose the Advowson. CHAP. X. But what course shall be pursued with the Clerk, the Parson of the Church, who has declared in Court, Digitized by Microsoft® 78 that he held the living upon his ^ Presentation ? In the King's Court, indeed, nothing farther is to be done in the matter, unless as it concerns the Advowson be- tween the two Patrons. But the Patron, who has recently recovered the Eight of Advowson, shall proceed against the Clerk in the Ecclesiastical Court before the Bishop or his Official, under these restrictions — if, at the time of Presentation, the Person presenting such Clerk was considered to be the Patron, then, the Church shall continue to be held by the Clerk, during the remainder of his life. Forj upon this subject, a Statute has been passed in the Keign of the present King, concerning those Clerks who have obtained Livings upon the Presentation of such Patrons as have, in time of war, violently intruded themselves into Ecclesiastical Ad- vowsons ; and by such Statute it is provided, that Clerks thus presented shall not lose their Churches during their lives. Thus is the question above pro- posed, resolved. But, after the decease of Clerks so presented, the Presentations of the Churches shall re* turn to the rightful Patrons. CHAP. XL As connected with the preceding subject, a question arises. Let us suppose that a Patron has, in the King's Court, recovered the Advowson as against 1 The unsuccessful party. Digitized by Microsoft® 79 another ; and that afterwards, in process of time, th& Clerk of the Church should die. In such a case, can the party against whom the Advowson had been re- covered again demand an Assise, concerning the last. Presentation ; and, if he should obtain a "Writ to sum- mon the Assise, what step must his Adversary resort to? Let us suppose, that he himself had never pre- sented an Incumbe.nt to the church in question, but that his Father, or at least one of his Ancestors, had. so done, and it be objected to him by his Adversary, that he ought not to have a Recognition, because he had already lost the Advowson by the former Judg- ment of the Court, whether, it may be asked, shall the Assise cease on that account, or not ? It appears that it ought 1 to cease, because, not having the last Pres- entation, he never had the Seisin of the Advowson ; but, it seems, that he might well found his claim npon the Seisin of his Father, notwithstanding any thing that maj'' have been done, concerning the Right itself of Presentation. But if the point of the last Presenta- tion can be again agitated, then, it should seem, that the Judgments of the King's Court are not of perpet- ual obligation. For if the Advowson of a Church were once adjudged to any person, it does not appear- consistent with Justice that the Adverse party should by any means, which can be subsequently resorted to, recover any Seisin in that Court, especially against him in whose favor the Advowson has been already 1 The Harl. Bodl. and Cotton. MS. concur in introducing not into this passage. Digitized by Microsoft® 80 decided, unless any new circumstance should inter- vene, on account of which he ought again to be heard. If therefore, an Assise should be summoned for that purpose, it should cease from this circumstance, that although it were conceded that the Claimant, or one of his Ancestors, had the last Presentation, yet it might be alleged, that, if he or his Ancestors had any Right, they lost it by the Judgment of the King's Court ; and, this being proved by the Record of the Court, the Complainant shall lose his cause, and shall in addition be amerced to the King. CHAP. XII. It should be observed, that it sometimes happens, that one Clerk sues another in the Ecclesiastical Court, concerning a Church. Should they derive their Titles through different Patrons, the Ecclesiastical Court may, upon the petition of either of the Patrons, be prohibited from proceeding in the Suit, until it be as- certained, in the King's Court, to which Patron the Advowson of the Church belongs. For this purpose the following Writ shall Issue. CHAP. XIII. " The King to such Ecclesiastical Judges, Health. " i?. hath made known to us, that when I. his Clerk " held the Church, in such a Yill, on his Presentation, Digitized by Microsoft® 81 *' the Advowson being his, as he says, JV. a Clerk, de- " manding the same, as of the Advowson of 31. a *' Knight, draws the said /. into a suit before you in ■" the Court Christian. But if the aforesaid N. should " recover the Church under the Advowson of the afore- " said M. it is clear that the said E. would incur the " loss of his Advowson. And since suits concerning " the Advowsons of Churches belong to my Crown and "Dignity, I prohibit you from proceeding in that " cause, until it be proved in my Court, to which of " them the Advowson of such Church belongs. Wit- " ness, &c." But if, after this Prohibition, they proceed in the ■cause, then, they shall be summoned to appear in the King's Court, and answer for their conduct, by the following "Writ. CHAP. XIY. " The King to the Sheriff, Health.^ Prohibit such *'■ Judges, least they hold plea in the Court Christian, " concerning the Advowson of such a Church, of which " li the Patron of that Church complains, that N. draws " him into a Suit in the Court Christian ; because Pleas " concerning the Advowson of Churches appertain to " my Crown, and Dignity. And summon, by good " Summoners, such Judges, that they appear before me, *• or my Justices, on such a day, to shew wherefore, 1. Vide F. N. B. 89. Digitized by Microsoft® 82 "they held that Plea, contrary to my Dignity, in the "Court Christian. Summon also, bygoodSummoners, " the aforesaid N'., that he be then there to shew where- " fore, he drew the aforesaid B. into a Suit, in the " Court Christian. And have, &c. Witness, &c." Digitized by Microsoft® koh ^. OF THE QUESTION OF CONDITION, AND OF VILLEINS- BORN. CHAP. I. 0[jR subject leads us in the next place to treat of Pleas concerning the Conditions of persons. Questions upon this subject arise, when any one Avould draw another, from a state of freedom, into that of Villen- age ;^ or when any one, being in the latter state, seeks to emancipate himself. "When any one claims another who is in Villenage as his Villein-born,^ he shall have the Writ de nativis, directed to the Sheriff ; and 1 Villenagium. " Villein is from the French word Villaine, "and that, d villA, quiavilloR adscriptus est." — " VillenagiuTn (as ' ' in like cases hath been said where the termination is in aye) is " the service of a Bondman. And yet, a free-man may do the "service of him that is bond." (Co. Litt. 116. a. See also Cowell ad voc. and Mirror, c. 3. s. 28. ) 2 Nativum. In the 6th chapter of the present Book our Author explains the sense in which he uses the term — nativi a primd nativitate sud. " In Glanville," says Lord Littleton, " the nativi " are comprehended under the Term Villenagium, which is used '■ by that Author synonymously with Servitude, and in opposition ' to freedom, as a state, not a tenure.'' (3 Hist. Hen. 3. 189.) Upon the Term nativus, Sir Edward Coke observes, " in the com- mon Law he is called nativus, quia pro majore parte natus est servus." (Co. Litt sed vide Craig. L. 1. Dieg. 4. § 6.) 83 Digitized by Microsoft® 84 by that Writ he shall, before the Sheriff of the County, claim the Villein against him, who holds him in Villen- age. And, if his Villenage be not denied before the Sheriff in the County Court, then the Plea concerning such Yillein-born shall proceed before the Sheriff, as we shall presently explain, between the person claim- ing, and the person in possession, of the Yillein. But, if the Villein allege himself to be a free-man, and give security to the Sheriff to prove the fact, then, the suit shall cease, as far as applies to the County Court ; be- cause the Sheriff ought not any farther to interfere in it.^ But, if the Sheriff persist in hearing the suit, then, he whose condition is questioned shall complain to the Justices, and shall obtain the King's "Writ, in order that, if he should give security to the Sheriff to prove his freedom, the suit may be removed before the Justices of the King's Court, and in the mean time, the party be unmolested. The Writ is as follows. — CHAP. II. " The King to the Sheriff, Health.^ B. complains " to me that iV. draws him to Villenage, although he " is a free-man, as he says. And, therefore, I com- " mand you that, if the said JR. make you secure of "prosecuting his claim, then, that you put the suit " before me, or my Justices, on such a day ; and, in the " mean time, you cause that he be in peace ; and sum- 1 In this the Mirror, (c. 2. s. 28.) concurs. 2 Vide F. N. B. 171. 172. Digitized by Microsoft® 85 " mon, by good Suminoners, the aforesaid N. that he " be then there to shew why, he unjustly draws him to " Villenage. And have there, &c." CHAP. III. Bt the same "Writ, the party who lays claim to the other, as being his Villein, shall be summoned ; and a day shall be appointed him on which he may prosecute his claim. But, if on the day appointed, the person who is claimed as a Villein should neither appear, nor send a Messenger, nor Essoin, let the same course be pursued, as that before described in treating of Pleas, where the Pledges are to be attached. But, if he chuse to essoin himself, he may avail himself of the same number of Essoins, and on the same occasions as Ave have already mentioned. But if the party who claims the other as his Villein, neither appear on that day, nor send, let the other party, if present, be dismissed unconditionally, under such form, namely, that the claimant shall recover so much as by Law he ought to recover, concerning which principle we have spoken more fully, in the preceding part of this Treatise. In the mean time, the party who is claimed as a Villein shall be in Seisin of his freedom. CHAP. IV- BoTH parties being present in Court, the freedom shall be there proved in this manner : the partj'^ who Digitized by Microsoft® 86 claims bis liberty, shallproduceanumber of his nearest relations and kindred, springing from the same stock from which he descended. If their freedom be recog- nized and proved in Court, the party who demands ^ his freedom shall be liberated fi'om the yoke of ser- vitude. But, if the free condition of those produced be denied,^ or a doubt be entertained respecting it, recourse shall be had to the Vicinage, whose Verdict shall ascertain the fact, whether those produced are free, or not : and, according to its decision, the matter shall be adjudged. But, if the party who claims the other as his Villein, should bring forward other persons to prove the contrary, namely, that such persons as the claimant has now brought forward are his Villeins-born, and that they sprung from the same common stock with him, whom he claims as a Villein-born, then, in like manner, should those produced by both sides be recognized as of common kindred, let it be inquired by 1 Proclamat, according to the Bodl. MS, which I follow, pro- clamo, appello, jjrovoco, &o: (Spelm. Gloss, ad voc.) 2 " Yet,'' says the Mirror, " 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 freeman, " although his Father, Mother, Brother, and Cousins, and all his " Parentage, acknowledge themselves to be the Plaintiff's Vil- " leins, and do testify the Defendant to be a Villein." (Mirror, c. 3. s. 23.) We must suppose that this was an improvement posterior to the time of Glanville, since though some part of the Mirror was probably written before the conquest, the other part was written subsequently to the Reign of Henry the 3nd. Few ancient law books would perhaps stand higher than the Mirror, could we clearly ascertain what was original, what was superadded. At present, one part of the work is often a direct refutation of another part. Digitized by Microsoft® 87 the Vicinage,^ which of them are the nearest to him ; and, according as the inquiry turns out, let the Judg- ment be given. In a similar manner, if those produced by one party should^ deny in any respect his relation- ship, or, if a question arise concerning it, every doubt of this nature shall be determined by the Yicinage. The freedom having been sufficiently proved in Court, then, the party whose liberty has been questioned shall be absolved from the claim of him who would draw him to Yillenage, and for ever freed from it. If, however, he should fail in his proof, or, if he should be recovered by his Adversary as his Yillein-born, he shall be irre- coverably adjudged to belong to his Lord, together Avith all the Chattels he possesses. The same form and order are observed in pleading, when a freeman is claimed as a Yillein, or when any one, in a state of Yillenage, aspires of his own accord to freedom. For this purpose, the party whose freedom is impeached shall come to the King's Court, and pray, that the suit might be removed into the same, which being conceded, the suit will then proceed in the form before stated. It must be remarked concerning this Plea, that the Duel cannot be resorted to, in order to prove the free- dom of any one from his Birth.^ 1 " It shall be tried by an Assise," says the Eeg. Majestatem, (L. 2. c. 11.) 2 "Acknowledge him to ie related to them, whilst those pro- " ducedbythe other party should "—Added by Cotton. Bodl. and Dr. Milles's MS. ^ " Orto disprove it." Bodl. and Dr. Milles's MS. The Regina Majestatem is yet more unrestrained—" But, it is to be noted, "that Single combat shall not have place in any plea, to prove or " disprove the liberty or Estate of any man." (L. 2. c. 11.) Digitized by Microsoft® 88 CHAP. Y. Theee are many modes by which a Man, in a state of Villenage, may acquire his freedom.^ Thus if his Lord, being desirous of emancipating him, releases him,- as well from all his own claims, as those of the Lord's Heirs : or, if the Lord give or sell him to another, for the purpose of liberating him. It must, 1 The Mirror enumerates many other modes by which a Villein was enfranchised, besides those stated by Glanville, which ap- pear rather to be put for examples, than as comprising all the instances of emancipation ; and the Mirror confirms most, if not all, of the Examples in the text. (c. 2. s. 28.) The Regiam Majes- tatem informs us, that Holy Orders enfranchised, if taken with the consent of the Lord. The Villein was also enfranchised, if the Lord seduced his wife, for the Law permitted the Villein to receive no other amends. The Villein was likewise Emancipated, if the Lord drew blood of him, or, if the Lord refused to bail him, either in a civil or criminal action in which he was after- wards cleared by Trial. (Regiam Majestatem, L. 2. c. 12.) The act of enfranchisement, when not arising by implication of Law, of which description many of the instances appear to be, was, in ancient times and before writing was common, accompanied by much publicity and ceremony. Qui servum suum liberum facit in Ecclesid, vel Mercato, ve.l Comitatu, vel Hundredo, coram testi- bus et palam, faciat, et liberas ei vias et portas eonficribit apertas, et laneeam et gladium vel quce liberorum arma in manibus ei ponat. (Anglo-Sax. LL. Ed. Wilkins.) When writing became common, the method was, by the Lord's Deed expressly enfran- chising the Villein. Upon the subject of Villenage, Fortescue's words are no less remarkable for the truth and beauty of the sentiment they express, than singular, when it is considei-ed that they were addressed to a Prince. Ab homine et pro vitio introducta est servitus : sed Libertas d Deo hominis est insita naturae. Quare ipsi ab homine sublata semper redire gliseit, ut facit omne quod libertate naturali privatur, (de laudibus legum Anglise, c. 42.) Digitized by Microsoft® 89 however, be observed, that no one in a state of Yillen- age can purchase his freedom with his own Money;, for, in such case, he may, according to the Law and Custom of the Eealm, be again recalled by his Lord to a state of Villenage, all the Chattels of a Yillein-born being understood as so absolutely in the power of bis Lord, as to preclude the former, at least with his own Money, and as against his Lord, from redeeming him- self from Villenage. But, if a stranger with his own Money purchase the Villein's freedom, the Villein may for ever after maintain his freedom against his Lord, who has sold him. "When any one has released a Villein, from all right which he, or his Heirs, could claim in him, or has sold him to a stranger, the Villein who has been thus enfranchised may for ever after de- fend his freedom, as well against the Lord himself, as his Heirs ; whilst he can prove the fact in Court, either by a Charter, or by any other lawful means. And the- question may even be decided by the Duel, if any one deny, that the party has been liberated from his state of Villenage, and, there be a proper Witness, who, having both seen and heard the very fact of Enfran- chisement, is ready to prove his freedom in Court. It should here be remarked, that a man may enfran- chise his Villein-born, so far as the consequences affect- the persons of himself, or his Heirs, but not as they apply to others. Because, if a man born a Villein, but thus rendered free, should be produced in Court, to- make proof against a stranger, or to wage his Law, he Digitized by Microsoft® 90 may be justly precluded, if it be objected against him, and proved in Court, that he was born in a state of Villenage,' although his condition was such that he had been Knighted subsequently to his being enfranchised.^ If a Yillein-born peaceably remain during a year and a day ^ in any privileged Town^ so that he be received in their community or Guild* as a Citizen, he shall from such circumstance be freed from Villenage. 1 " Except he received his liberty and was made free with the " Licence, good-will, and special command of the King." (Eeg_ Maj. L. 3. c. 12.) Lord Littleton ascribes the rule in the text, to a jealousy of judicial proceedings. (3 Hist. Hen. 2. p. 193.) It more probably originated from the chivalric pride of the times. As the great Lords often personally engaged in the combat, their own importance was increased by keeping up the dignity of this mode of Trial. ^ Bracton, L. 1. fol. 6. b. 7. a. But even this period would not operate as a bar to the Lord, if within the year clameuin stium qualitercunque apposuerit.—"lf he remained quietly" are the words of the Regiam Majestatem, during a year and a day in a privileged Town he became free — but out of a privileged town seven years was the period — but this latter prescription held not good against the King. (L._ 3. o. 13.) ^ Villa privilegiafa. Item, .says a Law of the Conqueror, si servi permanserint sine calumnid per annum et diem in civitati- bus nostris vel in hurgis in muro vallatis, vel in eastris nostris, a, die Hid liberi efficiuntur, et liberi d jitgo servitutis suce sint in perpetuum. {I.L. Gul. Conq. 66. Ed. Wilkins, p. 339.) "By privileged Town is meant a Town that had ' ' Franchises by pre- " scription or charter — and this communication of liberty from " thence to a Villein residing among tliem so short a time, shews " the high regard to the Law of such corporations, and likewise " a desire to favor enfranchisement, as much as the settled rules " of property would admit." (3 Hist. Hen. 3. p. 191. Litt.) This part of our Author's text is considerably elucidated by Fleta, L. 4. c. 11. s. 11. and Co. Litt. 137. b. » Oyldam, from the Saxon geldan and gildan. Oildare occurs in Domesday frequently pro solvere, reddere. (Vide Spelman •Gloss.) Digitized by Microsoft® 91 CHAP. YI. ViLLEiNS-BOEN are such from their Birth. Thus, if both the parents are Villeins-born, the Offspring is a Yillein-born.i The same may be said -u-here the Eather is free but the Mother a Yillein-born. If, how- ever, the Mother be free, and the Father a Yillein- born, the same rule prevails, as far as the purity of Condition be in question. If a free-man take to wife a woman born in Yillenage, whilst he so continues bound to the state of Yillenage, he shall as a consequence lose his Law, as if he himself were a Yillein-born.^ If there be any children result- 1 " Those are Villeins who are begot of Villeins and Niefs in " servitude, whether born in matrimony or out of matrimony ; " those also are Villeins who are begotten of Villeins and born " of free-women in matrimony, and those are Villeins who are " begotten of a freeman and a Nief and born out of matri- " mony." (Min-or. c. 2. s. 28. See also Bracton, f ols. 4. 5.) and rieta, L. 1. c. 3. 2 From the extreme brevity and quaintness of the original, it is a matter of some doubt, what the true meaning of the passage is. Lord Littleton gives the passage thus. " We are told by ' Glanville, that in his time, if a freeman maTried a woman born ' in Villenage and who actually lived in that state, he lost there- ' by the benefit of the Law (that is all the legal rights of a f ree- ' man,) and was considered as a Villein by birth, during the life- ' time of his wife, on account of her Villenage." This, however, is at best but a loose paraphrase of Glanville. His Lordship was aware of it, and to confirm his representation of what is said, as he terms it, so indistinctly by Glanville, he refers to Bracton, fol. 5. Mr. Reeves makes this severe penalty upon the Husband to arise, not from the wife living in a state of Villenage, but her holding property in Villenage. Tlie fact is, the text expresses "neither Lord Littleton's Explanation, nor that given by Mr. Digitized by Microsoft® 92 ing from the connection of a Woman born in Villenage belonging to one person, and a Man born in that state belonging to another, the children shall be propor- tionably divided between the two Lords.^ Eeeves. I do not flatter myself to kave succeeded better. la Britton's time, the wife was enfranchised during the coverture. (78. b.) Vide Co. Litt. 123. a. and 137. b. and Mr. Hargrave's notes thereon. 1 " This," exclaims Lord Littleton, " was absolutely putting " children upon the same foot as cattle, or other stock on a farm, " without the regard that is due to the inherent freedom and " dignity of human nature." (3 Hist. Hen. 2. p. 191.) Digitized by Microsoft® m tl. OF DOWER. 1 CHAP. I. The term Dower is used in two senses. Dower,^ in the sense in which it is commonly used, means 1 On the subject of the present Book in general, see Bracton, fo. 92 et seq. and Fleta L. 5. c. 23. et seq. 2 Dos, dower. " Dos is derived," says Sir Edward Coke, " ex donatione, et est quasi donarium." (Co. Litt. 30. b.) Co well and Spelman, however, both deduce it from the French douaire. (Cowell and Spelman's Gloss, ad voc. ) The real objects of Dower are sustenance for the wife, and nurture and education for the children. (Fleta L. 5. Cap. 23.) The Romans were not in the habit of endowing their wives. When, therefore, Tacitus met with this peculiarity among the Germans, he was struck with it. Dotem non Uxor marito sed uxorimaritus affert. (Tacit, de mor. Oerman. 18. ) Though Dower was unknown to the Romans, it seems to have been in use amongst the ancient Hebrews, (Gen. 34. 13. Exodus 22. 16. et al. ) Nor was it unknown to the Grecians, if we may judge from that part of the Odyssey where Vulcan re- claims the Dower he had given to his frail wife. It seems to have been known to the ancient Gauls, (Csesar de bello Gallioo L. 6. c. 18.) And to the Cantabri, (Strabo L. 3.) Craig, how- ever, doubts whether there was any such thing as dower amongst the ancient Northern Nations. (Jus Feud. L. 2. Dieg. 14.) The Goths Aid not allow Dower to exceed a tenth. (Wise- goth. L. 3. t. 1. 1.4.) The Assises of Jerusalem gave a half, (c. 187.) — the same por- tion as the Laws of the Ancient Duchy of Burgundy — (Chass. 93 Digitized by Microsoft® 94 that which any free man at the time of his being' affianced,^ gives to his Bride at the Church Door> For every Man is bound as well by the Ecclesiastical Law, as by the secular, to endow his Bride, at the time of his being alBanced to her. When a man endows his Bride, he either names the Dower, or not. In the latter case, the third part of all the Husband's free- hold Land is understood to be the Wife's Dower ; and the third part of all such freehold Lands as her Hus- band held, at the time of affiancing,^ and of which he consuet. ducat. Burg. rub. 4. s. 6. col. 580.) The Saxons (LL. 'tit. 8.)prceter dotemquam inniiptiis adepta est, allowed the half of what the Husband and Wife subsequently acquired. A Law of Edmund gave the ftaZ/. (LL. Edm.) The io?i5fo&ar'di allowed Dower to extend to the /oiij-fft, part. (L. 3. tit. 4.) The English, the Scotch, and the Normans, following in this respect the Sicil- ians and Neapolitans, have allowed Dower to extend to a third. (Vide LL. Hen. 1. 70. Ed. Wilkins.— Le Grand Custum. de Norm. c. 103.— the Regiam Majm. L. 3. c. 16.) ' Temxiore desponsationis. Affiance and Marriage seem to be perfectly distinct things in the Civil and Canon Laws. (Vido Lyndw. Provinc. 271.) but our law books, it is said, use the terms promiscuously, as being synonymous. (See Co. Litt. 34. a. and Mr. Hargrave's note.) 2 Or at the Door of the Monastery, say the Mirror and Lord Coke. (Mirror, o. 1. s. 3. Co. Litt. 84. a.) The reason for re- quiring the endowment to be made at the door of these places was to give publicity to the transaction. (Bracton 93. a. Fleta. L. 5. c. 33.) 2 Tempore matrimonii is the expression of the Grand Norman. Customary, (c. 103.) and of the Eegiam Majestatem (L. 3. c. 16.) and die quo earn desponsavit is the language of Bracton (92. a.) and Fleta (L. 5. c. 34.) notwithstanding that the 7th chapter of Magna Charta enlarged the M-idow's claim to a third part of all such lands as the Husband is seised of in vita sua or, as it has been translated, during the coverture ; and thus it has stood ever since, though not without having been materially en- croached upon, by the comparatively modern doctriueof Trusts. Digitized by Microsoft® 95 Avas seised in his Demesne, is termed a Woman's rea^ sonable Dower. If, however, the Man name the Dower, and mention more than a third part, such des- ignation shall not avail, as far as it applies to the quantity. It shall be reduced by admeasurement to the third part ; ^ because a Man may endow a Woman of less, but cannot of more, than a third part of his Land.2 CHAP. II. Should it happen, as it sometimes does, that a man endows a Woman, having but a small freehold at the time of his being affianced, he may afterwards enlarge her Dower to the third part or less of the Lands, he may have ^ purchased. But if upon the Assignment of Dower, no mention Avas made concerning purchases, even admitting that at the time of affiance he possessed but a small Estate, 1 For this purpose our Author gives us the form of a Writ,- Cliapter 18th of the present Book. 2 " Lest, by such liberal endowments, the Lord should be de- " frauded of his wardships and other feudal profits." (3 Bl. (^om. 133. See also Grand Gust, de Norm. c. 18.) It is a remarkable peculiarity of Legislation, that the same Law is frequently tlie result of principles the most different — thus, the modern French code tells us, that it will not allow the Dowry to be augmented during the marriage. (Code Napoleon s. 1543.) 'Questus, more properly, says Spelman, qiuestus from quaero, purchased Lands, contradistinguished to Lands acquired by in- heritance. (Vide Spelm. Gloss, ad voc. and Co. Litt. 18. a.) pur- chased Lands were designated under the feudal Law by the feudum novum. (Craig Jus feud. L. 1. Dieg. 10. s. 13.) Digitized by Microsoft® 96 and that he afterwards much increased it, the Wife cannot claim as Dower more than a third part of such Land as her Husband held, at the time of being affi- anced, and when he endowed her. The same Eule pre- vails if a Man, not being possessed of any Land, should endow his Wife with his Chattels,^ and other things, or even with Money. Should he afterwards make considerable purchases in Land and Tenements, the Wife cannot claim any part of such property so ac- quired by purchase ; it being, witli respect to the quan- tity or quality of the Dower assigned to any Woman, a general principle, that if she is satisfied to the extent of her endowment at the door of the Church, she can never afterwards claim as Dower anything beyond it.^ 1 It is curious to observe the fluctuations of Law. Though Glanville in the text expressly lays it down, that a Woman may be endowed of chattels, or money, which, indeed, could have been the only mode of endowing in the still more distant ages of Antiquity, yet this was denied to be law in the Eeign of Henry the fourth, (7. H. 4. 13. b.) The Doctrine of the Courts of Equity in the present day, in admitting equitable bars, seems, in point of substance, to revive the law as laid down by Glan- ville. The doctrine of the text is confirmed by the Regiam Ma- jestatem, and Fleta : but the latter informs us, that Dowers, of the kind now under discussion, were only so far to be recovered, as the chattels of the deceased extended. (L. 5. c. 23.) Hence probably they fell into disuse. 2 " Si enim mulier, quando ducta fuerit in uxorem, concessit et consensu se dotari del mobili vel de terra speciflcata, illud ei debet post decessum mariti sui sufficere, quod in contractu matrimonii concessit se pro dote recipere et consensit." (Le Grand Coustoum. de Normand. c. 103.) "Because she was first content there- with," is the reason the Reg. Maj. gives why she should after- wards be confined strictly to the original designation. (L. 2. c. 16.) Digitized by Microsoft® 97 CHAP. III. It should be understood, that a "Woman ^ cannot, during the life of her Husband, make anj'- disposition of her Dower .2 For since the Wife herself is in a legal sense under the absolute power of her Husband, it is not singular, if the Dower, as well as the Woman her- self and all other things belonging to her, should be considered to be fully at the disposal of the Husband. But any one, having a Wife, may either give or sell her Dower, or, by any other mode he pleases, may alien- ate it in his lifetime ; so that the Wife shall be bound to conform to his will in this as in all other respects which are not contrary to the Law of God. And so far is the Woman bound to obey her Husband, that if her Husband chuses to sell her Dower, and she re- fuses her consent, and the Dower be afterwards sold and bought under these circumstances, the Wife can- not ^ after the death of her Husband claim her Dower 1 Mulier is the expression which our Author generally uses, to ■designate the Wife : but, as Lord Coke informs us, this Term was anciently taken for a wife. (3. Inst. 434.) 2 For which Rule Bracton gives two reasons : 1st. Because the woman has no freehold in her Dower, previously to its being as- signed. 2ly. Because she cannot gainsay her Husband. (Brac- ton 95. b.) ' I have followed all the MS. and the Edition of Glanville pub- lished in 1604, in admitting not into the text. I submit, that this Reading is sanctioned not merely by the previous part of this present chapter, but also by the 13th chapter of the present Book. Yet the Megiam Majestatem taakes the validity of such a .sale to depend upon the wife's consent — but, if she made no op- 7 Digitized by Microsoft® 98 as against the Purchaser, if she confess in Court or is convicted upon the fact that, although she opposed her Husband, the Dower was sold by him. CliAP. IV. Upon the death of the Husband of a "Woman, her Dower, if it has been named, will either be vacant or not. In the former case, the woman may, with the consent of the Heir, enter upon her Dower,^ and retain the position to it, it seems to liave been tantamount to a positive consent. (L. 2. c. 15. 16.) From considering the 13th Chapter of the present Book, one thing seems clear — that in case the Hus- band disposed of his Wife's dower, the Heir was bound to render an equivalent to the Purchaser, if the Land was recovered from him, or to the wife, if it was not so. As to the Heir, therefore, it was immaterial ; and so it perhaps might be considered with, respect to the Wife and the Purchaser, in case the Heir, as Heir, were solvent ; but if otherwise, it ■was highly material to ascer- tain, whose right, that of the wife or that of the purchaser, was paramount. Bracton is more explicit than our Author ; and from him we collect, that a distinction should be made, whether the Dower was originally named, or not. In the /ormer case, the woman could pursue the identical Dower, and wrest it from the hands even of a Purchaser. In the latter she was obliged to re- sort to the Heir for an Equivalent. In tlie first case, from the moment the dower was named, the woman acquired a certain jus et dominium as Bracton expresses it, in the property, which accompanied it into whatever hands it afterwards went, and gave her the right of following and reclaiming it. But, if the endow- ment wex-e general, and no particular land specified, the Wife did not acquire any immediate right, on account of the uncer- tainty ; it being questionable, what identical allotment would fall to her share, until the assignment took place. (Bracton 300. b.) 1 It seems, th£,t the Widow took possession of the property in the same state ia which it existed at the death of her Husband^ Digitized by Microsoft® 99 possession of it. If, however, the Dower be not vacant, either the whole will be so circumstanced, or some part will be vacant, and some not. If a certain part be va- cant, and a certain part not, she may pursue the course we have described, and enter into the part which is vacant ; and for the residue, she shall have a Writ of Eight, directed to her Warrantor^ in order to compel him to do complete Justice concerning the Land, which she claims as appertaining to her reasonable Dower, which Writ shall be as follows : — CHAP. Y. " The King to M. Health. ^ I command you that, '• without delay, you hold full right to A. who was " the Wife of £!. of one Hyde of Land, in such a Vill, " which she claims to belong to her reasonable Dower, " which she holds of you in the same Vill by the free " service of ten shillings, by the year, for every service, "of which N. has deforced her : and unless you do so, " the Sheriff shall,^ least she should anymore complain, " for want of Justice. Witness &c." whether in cultivation, or otherwise, with the fruits, returns, and all other things appertaining to it. (Braoton 98. a. Fleta L. 5. c. 24. s. 2.) 1 Namely, the Heir of her Husband. (Vide Reg. Maj. L. 2. c. 16. ) 2 Vide F. N. B. 18. 3 Among the Constitutions of the Ancient kings, the Mirror informs us, " it was ordained, that after a Plaint of wrong be " sued, that no other have Jurisdiction in the same place, before "the first Plaint be determined: and from thence came this " clause in a Writ of Right, Et nisi feceris vicecomes faciat." (Mirror c. 1. s. 3.) Digitized by Microsoft® 100 CHAP. VI. The Plea shall be discussed in the Court of the "War- rantor by virtue of this Writ, until it be proved that such Court has failed in doing Justice, concerning the nature of which, we shall speak in another place.^ Upon proof of this, the Suit shall be removed into the County Court, through the medium of which, the Suit may, at the pleasure of the King or his Chief Justiciary, be lawfully transferred to the King's Court by the fol- lowing Writ : 2 — CHAP. YII. " The King to the Sheriff, Health. Put before me " or my Justices, on such a day, the suit which is in " your County Court, between A. and ]V. concerning " one Hyde of Land in such a Yill, which the said A. " claims against the aforesaid iT. as her reasonable " Dower. And Summon, by good Summoners, the "aforesaid J^. who holds that Land, that he be then " there with his Plea. And have there," &c. 1 V. Infra L. 12. o. 7. 2 " The Feme, who is Demandant, may remove the same by a " Tolt into the County ; and also may remove the same out of " the County into the Common Pleas by a Pone, <£c. vrithout "shewing any cause in the Writ, as the Demandant shall do in a " Writ of Eight Patent." (F. N. B. 15.) Digitized by Microsoft® 101 CHAP. VIII. Pleas of this description, as, indeed, some others, may be transferred from the County Court to the supreme Court of the King for a variety of Causes : as, on account of any doubt which may arise in the County Court concerning the plea itself, and which that court is unable to decide ; (and when any suit is thus transferred to the Court, then both parties, as well the Tenant as the Demandant, shall be sum- moned.) But, when it has been removed upon the Petition of one of the parties, it will then suffice, if that party be summoned who did not require the re- moval : but, if the suit should be transferred to Court by the consent and prayer of both parties, being pres- ent in Court together, then, neither party ought to be summoned, because the day appointed in Court is known to both of them. Upon the day appointed in Court, either both parties will be absent, or only one will be so, or both will appear. "We have already sufficiently treated concerning the absence of both, or of one only of the parties. If both be present in Court, the Woman shall set forth her claim against her Adversary in the following Avords. " I demand " such Land, as appertaining to such Land, which was " named to me in Dower, and of which my Husband '• endowed me at the door of the Church, the day he " espoused me, as that of which he was invested and " seised at the time when he endowed me."^ 1 It is thus as literally set down in the Translation of the Digitized by Microsoft® 102 Yarious are the Answers which the Adverse party usually gives to a claim of this kind ; in substance, however, he will either deny that she Avas so endowed, or concede it. But, whatever he may allege, the Suit ought not to proceed, Avithout the Heir of the Woman's Husband. He shall, therefore, be summoned to appear in Court to hear the Suit, by the following Writ : — CHAP. IX. " The King to the Sheriff, Health. Summon, by good " Summoners, iV. the Son and Heir of E. that he be " before me, or my Justices, on such a day, to warrant " to J.. Avho was the Wife of the said E. his Father, one " Hyde of Land in such a Yill, which she claims to be- " long to her reasonable Dower of the Gift of the said " E. her Husband, against N. and of Avhich there is a " Suit between them in my Court, if he will Avarrant " that Land ; or to sheAv to her AA'hy he ought not to " do so. And have there &c. Witness &c." CHAP. X. Should the Heir, after having been summoned, neither appear, nor essoin himself, on the first, second, Kegiam Majestatem. — " I claim sic Land, as ane part and per- " tinents of that Land named by my umquhill Husband for my '• Dourie, quherewith he indowed me at tlie kirk dore, tlie' " samine day when he married me, wherein he was vest and " saised at the time he indowed me therewith." (L. 3. c. 16.) Digitized by Microsoft® 103 nor third day ; or if, after having cast the usual Es- soins, he should on the fourth day, neither appear nor send his Attorney, it may be a question, by what means he ought or can be distrained, consistently with the Law and Custom of the Eealm. In the opinion of some, his appearance in Court, shall be compelled, by distraining his Fee.^ And that, therefore, by the direction of the Court so much of his Fee ^ shall be taken into the King's hands as may be necessary to distrain him to appear in Court to shew, whether he ought to warrant the Land in question or not. Whilst others ^ think, that his appearance in Court for such purpose may be effected, by attaching him by Pledges. CHAP. XL Whex, at last, the Heir of the Husband of the "Woman, the complainant, appear in Court, either he 1 He may, according to the Regiam Majestatem, be distrained, or attached by Pledges. (L. 3. c. 16.) ^ Feodum. This word, which has frequently occurred in our progress through Glanville, has given the name to a system. Tlie reader has no doubt perused Mr. Justice Blackstone's account of it, (2 Comm. 44.) and the luminous Annotation w-hiclr Mr. Butler has subjoined to Co. Litt. (Note to 199. a. ) It may not be amiss briefly to mention the leading divisions of Feuds, as the Reader in the course of these pages will find some of these di- visions mentioned, and others alluded to. 1. In proprium et Im- proprium. 2. Iiifrancum et iwu francum. 3. In mascuUnum et femininum. 4. In realeet personale. 5. Inlaicumet ecclesias- ticum. 6. In antiquum et novum. 7. In nobile et ignobile. 8. In ligium et non ligium. 9. In simplex et conditionatiim. 10. In divisibileet Indivisibile. (Craig de Jur. Feud, sparsim.) 3 Namely, says Dr. Milles'a MS. Hugh Bardolph. Digitized by Microsoft® 104 will aflEirm the fact, and concede that the Land in question appertains to the Dower of the "Woman, and that she was endowed of it, and that his Ancestor at the time he endowed her was seised of it as an appur- tenant to the Land which he named in chief, as her Dower, or, he will deny it. If the Pleir admit this in Court, he shall then be bound to recover the Land against the Tenant, if he be disposed to dispute the matter, and then deliver it to the woman ; and thus the contest will be changed into one between the Tenant and the Heir. If, however, the Heir be unwilling to contest the point, he shall be bound to give to the Woman a com- petent equivalent ; because, the "Woman herself shall not afterwards sustain any loss. But, if the Heir himself neither admit nor concede to the "Woman that which she alleges against the Tenant, then, the suit may proceed between the "Woman and the Heir. For a "Woman cannot with Effect bring an Action against any one, without the "Warrantor of her Dower.^ If, therefore, the Heir should absolutelj'- deny the Eight of the Woman, alleging in Court, that she never was en- dowed by his Ancestor, the matter may be decided by the Duel, provided the Woman produce in Court those who heard and saw the Endowment, or any proper Witness who may have heard and seen the fact of her 1 For, as the Regiam Majestatem adds, " the king's writ is of " no force, unless the warrantor be summoned." (L. 3. c. 16.) The Bodleian, Harleian, and CottonianMS. add, that the woman is not bound to answer, without her warrantor. Digitized by Microsoft® 105 being endowed by the Ancestor of the Heir at the Church door, at the time of the Espousals, and be ready to prove such fact against hira. Should the Woman prevail against the Heir in the Duel, then the Heir shall be bound to deliver the Land in question to the Woman,i or to give her an adequate recompense. CHAP. XII. It should be observed, that when any one endow his "Wife in these words. " I give to thee this Land, or " Yill, by name, with all its appurtenances " — if, at that period, he held not any thing appurtenant to it in his Demesne, nor of which he was seised at the time of his Espousals, and he in his lifetime recover it, or by any other lawful means acquire it, the "Wife, after the death of her Husband, may, by the Law of Dower, justly demand such appurtenant, together with the other property of which she was endowed. 1 The Dower being assigned, says Bracton, it shall, in every sense of the word, be enjoyed freely ; and the wife shall not be compelled to contribute any portion of it, towards discharging the Debts of her Husband, which entirely devolve upon the Heir. The Heir shall warrant and defend the Dower, and per- form the judicial services that may be due in respect of it, to tlie County, the Hundred, or the Lord's Court ; whilst the widow, exempt from every other care, devotes her attention solely to the management of her domestic affairs, and to the education of her children. — She shall, however, have her own court, (fo. 98. a.) So effectually were the convenience, the interest, the dignity, of the widow attended to when Bracton wrote ! ! Digitized by Microsoft® 106 CHAP. XIII. It must also be understood, that if the Husband of any Woman, after having endowed her as his Wife, should sell her Dower to any one, his Heir shall be obliged to deliver the Dower to the Woman, if he possibly can ; at the same time he shall be bound to render a reasonable equivalent to the Purchaser, on account of the Sale, or Gift of his Ancestor.^ If, however, the Heir be unable so to do, he shall be bound to make to the woman a reasonable compen- sation. CHAP. XIY. When the Dower of a Woman happen to be so cir- cumstanced, that she is prevented from obtaining any part of it, then, the suit shall from the beginning be car- ried on in the King's Court, and the person in possession of the Dower shall be summoned, by the following Writ :— CHAP. XV. " The King to the Sheriff, Health.* Command If. "that, justly and without delay, he cause A. who was " the Wife of E., to have her reasonable Dower in such 1 An Assignment of Dower carries with it an obligation of warranty under the modern French code. (Code Napoleon, 1547. 1564.) 2 Vide F. N. B. S39. Digitized by Microsoft® 107 •" a Vill, which she claims to have of the Gift of the " said E., her Husband, and of which she has no part, " as she says ; and of which she complains that he has " unjustly deforced her ; and, unless he does so, sum- " mon him, by good Summoners, that he be, on such a " day, before vs, or our Justices, to shew wherefore he " has not done it ; and have there, &c. Witness, &c." CHAP. XYI. Whoever happens to be in possessicn of the Dower, whether the Heir or another person, the Heir ought -always to be present to answer the Woman claiming her Dower. If, therefore, a stranger, and not the Heir, deforce the Woman of her Dower, he shall be sum- moned by this Writ ; but the Heir shall be summoned by the former Writ. CHAP. XYII. The suit between the Heir and the Widow, may be infinitely varied. For the Woman will either claim her Dower, as named, or her reasonable Dower as not named. The Heir also may admit that her Dower was named, but that it differs from that she demands : or he may allege, that no Dower was specified. If the contest between them be concerning Dower "which was named, or concerning different nominations Digitized by Microsoft® 108 of it, then, the Plea may proceed in the manner we have above described. But if a reasonable Dower be demanded, no sjieciiic nomination having been made, the Law is perfectly clear, that the Heir is bound to assign to the Woman as her Dower, a third part of all the freehold Tenements that his Ancestor held in his Demesne, on the day of the Espousals, and this unre- servedly, in every thing, as in Lands, and Tenements, and Ecclesiastical Advowsons,i so that if there should be but one Church in the whole Inheritance, and such happen to fall vacant in the life of the woman, and after the death of her Husband, the Heir shall not, without the Assent of the woman, present a Parson to such Church. From the generality of this Rule we must except the Capital Messuage, which cannot be given in Dower, nor can it be divided, but shall remain entire.^ Nor shall a division be made of those things which other women, who have been previously en- 1 Vide Bracton, 97. a. where the doctrines of the text are cor- roborated, and tlie additional imi^rovements laid down. ^ Yet, from the form of the writ, book 12. c. 20. as given by our author, we may collect, that the Land assigned to the Widow, as her Dower, was to have a messuage upon it, unless, as the Writ sa3^s, land bad been, in the first place, specifically nomi- nated, on which there was no messuage. This inference is corrob- orated b}' Bracton. (97. b.) It was certainly a qualification of tlie severity of the Rule, whicli would turn the Widow out of that House she might possibly long have occupied witli her Hus- band as its mistress. Tlie Widow had further advantages under the 7tli chap, of Mag. Car. These different regulations in favor of the widow, tended to restore the common Law as it stood in the Reign of Canute. Uhi Maritus habiiavit absque lite et abs- que controversia, habitent uxor et infans ubique absque lite. (LL. Canuti, 70. Ed. Wilkins.) Digitized by Microsoft® 109 ■dowed, still hold in Dower.^ Besides, if there should be two or more Manors to be divided, the Chief Manor shall not be. divided, but, together with the capital Messuage, shall remain entire to the Heir, so that the "Widow shall be fully satisfied from the other Manor or Manors. It should also be remarked, that the As- signment of the' Dower shall not be postponed, on account of the Infancy of the Heir. In addition, should any Land have been given by name to a Woman, in Dower, and should a Church have been founded in that Fee, the Woman, after the death of her Husband, shall have the free Presentation ; so as to have it in her power, in case such Church should become vacant, to bestow it upon any proper Clerk.^ But she cannot -confer it upon a College,^ because, by so doing, she would for ever destroy the Eight of the Heir. But if the Husband of the woman happen in his life- time to bestow the Church upon the Clerk, the latter shall, during the whole of his life, retain such Church ; although he were presented subsequently to the period when the woman was endowed of that Land. If, how- ever, the Husband should, in the interval, bestow the Church upon any religious House, the Church ought, after the death of the Husband, to be delivered to his "Widow, so that in the course of her life she may have 1 " The great Third," says Skene, " shall not be computed, in " the division of a second third." (Reg. Maj. L. 3. c. 16.) 2 " Qualified Clerk, in life and literature." (Reg. Maj. L. 3. c. 16.) 8 " Seeing," adds Skene, " a College never dies." (Reg. Maj. 1,. 3. c. 16.) Digitized by Microsoft® 110 a free Presentation. ^ But, after the death of the 'wo- man, and of the Clerk instituted Parson upon her Pres- entation, the Church shall revert to the religious House, and shall for ever after so remain. It may also be observed, that if the wife should, in the lifetime of her Husband, be separated from him on account of in- continence, the Woman shall not be heard upon a claim of Dower.2 The same rule prevails, if she be separated from him on account of Relationship ^ — she shall be debarred from claiming her Dower. And yet her children may inherit, and, by the La'w of the Realm, shall succeed to their Father by hereditary Eight.* 1 " If the Husband gave the Church to any Religious House, " after his decease his Heir shall deliver the church to the "Wife, " so that during all the days of her life she may have the right of " Presentation thereof." (Reg. Majest. L. 2. o. 16.) ^ From a Law of Edmund, which is in every sense of the word a most singular specimen of legislation, the translator makes the following extract : — Si earn (the wife) ex terra ilia dueere vcl it in alter his Thani regionem, turn: sponsio ipsius sitquam Amid paoiscantur, ut Maritus ejus nullam illi injuriam inferat, et si ilia delictum commiserit, ut possint esse propinquiores emen- dationi, si ilia non Jiabeat unde compenset. (LL. Edm. Ed. Wil- kins. ) This was certainly a more polite mode of proceeding than Canute allowed. Under his Law, the wife, if guilty of the offence in the lifetime of her Husband, became infamous, for- feited every thing she possessed to her Husband, and lost both her nose and ears. (LL. Canuti — Ibid.) 5 Par entelam, {vide Spelm. Gloss, ad voo. parentes.) " Paren- " tage and sibness of blude (within degrees defended and for- " bidden,") (Reg. Majest. L. 2. o. 16.) Divorce, generally, is a bar to Dower under the Norman code. (Le Grand Custum. de Norm. o. 102.) * Upon this Rule of Law, Lord Littleton observes, " as the Ca- " ncnical prohibitions extended so far, that divorces frequently " happened, after a cohabitation of many years in a state of wed- "lock supposed lawful, theie was much humanity and equity in Digitized by Microsoft® Ill Observe also, that when the Son and Heir of any on© marries, with the consent of his Father, and, by the Assignment of his Father, endow his "Wife with a cer- tain part of the Land of his Father,^ it may be ques- tioned whether the "Wife can demand any more as dower ? ^ If her Husband die previously to his Father^ it may be doubted, whether she can retain the Land in question, as her Dower, and whether the Father of her Husband be bound to warrant such Land to her ? ^ If " this Law," especially as his Lordship had just observed " such a " separation supposed a nullity in the marriage, and the children " must in strictness have been bastardised by it," had it not thus have been tempered and relaxed. (3 Litt. Hist. Hen. 2. p. 126.) A similar Law forms part of the Modern French code, though clearly the result of different principles — " Dissolution of mar- " riage by Divorce, allowed at Law, shall not deprive the chil- " dren born of the marriage of any of the advantages which were " assured to them by the Laws, or by the marriage contracts of " their Father and Mother." (Code Napoleon, s. 304.) 1 According to the Norman Code, if the Husband, at the time of the marriage, had no Fee, but his father or Grand-father had been present and consented to the marriage, the wife might be endowed out of the Land of the Father or Grand-father, provided there were no other Heirs : if, however, such Father or Grand- father had other Heirs, then, she was to be endowed out of the portion descending to her Husband. But, if the Father or Grand- father did not consent to the marriage, she was entitled to no Dower out of their Lands. (Le Grand Const, de Normand, c. 103.) 2 This is put as a question in the printed text, although the Cot- tonian and Dr. Milles's MS. assert it absolutely, that the wife cannot claim any more in Dower than that of which she has been so endowed. Tliat the printed text is correct seems probable : for we can scarcely suppose the doctrine in question was settled when that contained in the next following passage was unsettled. ' The Eegiam Majestatem lays it down, that the Father of' the Husband shall be compelled to warrant the same to her. (L. 2. c. 16.) Vide Co. Litt. 35. a. Digitized by Microsoft® 112 •a woman have more Land in Dower than she ought, that is, more than belongs to her, let the Sheriff be commanded to admeasure it, and for this purpose the following Writ shall issue CHAP. XVIII. " The King to the Sheriff, Health.^ N. complains to ^' us, that A. his Mother, has more in Dower of his In- " heritance, than she ought to have, and than belongs '"to her to have, to wit, her reasonable Dower. There- " fore, I command you, that justh'- and without delay, "you cause it to be admeasured ; and that, justly and " without delay, you cause the said N. to have what he ""ought of right to have of his inheritance ; and, justly " and without delay, cause the said A. to have what " she ought to have, and what belongs to her to have, " to wit, her reasonable Dower, least he should again ■*' complain for want of Justice. Witness, &c." 1 Vide F. N. B. 331. Digitized by Microsoft® ioolt ^||. OF LAWFUL HEIRS, AND BASTARDS, MALE OR FE- MALE, OF FULL AGE OR MINORS ; AND OF THE CUS- TODY AND PRIVILEGE OF MINORS; AND CONCERN- ING ULTIMATE HEIRS, WHO ARE THE LORDS WHEN THE FEE FALLS INTO THEIR HANDS; AND OF THE HEIRS OF INTESTATES; AND OF USURERS, AND THEIR HEIRS ; AND OF MARRIAGE-HOOD AND OTHER THE DONATIONS OF ANCESTORS ; AND OF THEIR TES- TAMENTS AND DEBTS, ALL WHICH THEIR HEIRS ARE BOUND TO WARRANT. CHAP. I. The terra Dower is received in a different accepta- tion in the Koman Code, according to wiiich, that por- tion which is given to a Man with a Woman is, prop- erly speaking, termed Dower ; but this corresponds with what is usually called, Marriage-hood.^ Every 1 Maritagium. This Term is explained by our Author more fully in the 18th chapter of the present Book. Lord Coke trans- lates the word, marriage: but, to avoid a confusion of ideas, I have rendered it, marriage-hood. The term maritagium appears to have been employed by our ancient vyriters in three senses. 1. To designate marriage, in the modern sense of the Term. S. To import Land given with a Woman in marriage ; such marita- ■gium being either liberum,, or servitio obnoxium, as we shall pres- ently see. 8. To mean the right which a Lord had of disposing of his ward in marriage. (Bracton, 21. a. Spelm. Gloss, ad voo. 2 Bl. Comm. 69. Co. Litt. 21. b. 76. a. and Mag. Car. c. 7.) 8 113 Digitized by Microsoft® 114 free-man possessed of Land may give a certain part of it with his Daughter, or with any other Woman, in Marriage-hood, whether he has any Heir, or not ; or whether his Heir, supposing he has one, consent to such a disposition, or not — nay, though the Heir ex- pressly dissent from, and forbid it. Every one may also give a certain part of his freehold Estate ^ to any person he chuses, in remuneration of his services, or to a religious Establishment in Free-Alms ;2 that, if seisin follow up the Donation, the Land shall perpetually re- main to the person to whom it is given and his Heirs, if the terms of the Gift go to that extent. But, if such a Donation should not be followed up by seisin, nothing can, after the death of the Donor, be claimed with effect in virtue of it, contrary to the will of the Heir ; because such a disposition is usually interpreted by the Law of the Realm, rather as a naked promise, than a real promise or donation. Though it is thus, generally speaking, lawful for a man, in his lifetime, freely to dispose of the reasonable part ^ of his Land, 1 The Assises of Jerusalem permitted a Fief to be dismembered, if it consisted of more Knight's Fees than one, but not otherwise, (c. 265.) 2 Poterit etiam Donatio in liberam eleemosinam, sicut, ecclesiis, catliedralibus, conventualibus, parochialibus, viris religiosis. (Vide Bracton 27. b.) '■ Originally when Lands were given to " the church, they were burdened with military service: this " service the Bishop or Abbot performed in some ages by him- " self, and in others by a delegate : but, when the necessity for it " became less, people, in giving Lands to the church, exacted " no other return than Prayers and such religious Exercises." (Dalrymple's Essay on Feuds, p. 30.) 'It does not appear from Glanville what was considered as this reasonable part. In speaking of the Constitutions of the Digitized by Microsoft® 115 in such manner as he may feel inclined, yet the same permission is not allowed to any one on his death-bed ; because the distribution of the Inheritance would, probably, be then highly imprudent,^ were such an in- dulgence conceded to men, who, in the glow of a sud- den impulse, not unfrequently lose both their memory and reason. Hence, it is to be presumed, that if a Man laboring under a mortal disease, should then for the first time set about making a disposition of his Land, a thing never thought of by him in the hour of health, that the act is rather the result of the Mind's Insanity than of its deliberation. But yet a Gift of this description, ancient kings, the Mirror tells us, that " none might alien but "the fourth part of his Inheritance, without the consent of his " Heirs." (c. 1. s. 3.) Whether this removes the difficulty, is for the Reader to decide. The 33nd chapter of Mag. Car. in- tended to provide a remedy for the abuse of the indulgence stated in the text — vrhich was again affected by the Statute of quia Emptores. The modern French code restrains a gift to the moiety of a man's property, if he leaves one child — to a third of it, if he leaves two — and to a fourth if he leaves three children. Nor does it seem that a man is free from restraint, though he have no child, provided he has Relatives, either Ascendants or Descendants. But, in default of all these, the restraint ceases, and a man may dispose of the whole of his property. (Code Na- poleon, s. 913. 914. 915.) 1 " And some have questioned," says Justice Blackstone, " whether this restraint, which we may trace even from the an- " cient Germans, was not founded upon truer principles of pol- '■ icy, than the power of wantonly disinheriting the Heir by " will, and transferring the Estate, through the dotage or caprice " of the Ancestor, from those of his blood to utter strangers. " For this, it is alleged, maintained the balance of property, and '■ prevented one man growing too big or powerful for his neigli- " hours." (3 Bl. Comm. 373.) Digitized by Microsoft® 116 if made to any one by the last "Will, shall be valid, if done with the consent of the Heir, and confirmed by his acquiescence in it. "When a Man gives part of his Land in Marriage-hood, or in any other manner, his Land consists either of that which is inheritable only, or of that which he has purchased only, or of both de- scriptions. If he possess inheritable Land only, he may, as we have already observed, give a certain por- tion of it to any stranger at his pleasure.'^ But if he has many sons born in "Wedlock,^ he cannot, correctly speaking, without the consent of his Heir, give any part of his Inheritance to a younger son ; because, if this were permitted, it would then frequently happen that the Eldest son would be disinherited, owing to the greater affection which Parents often feel towards their younger children. But, it may be asked, whether a man, having a Son and Heir, can give any part of his Inheritance to his illegitimate son ? If he can, it follows, that the con- dition of the illegitimate son would, in this respect, be preferable to that of the younger son born in "Wed- 1 A liberty that he was not indulged in by the Laws of Alfred, unless under particular circumstances: (LL. Alfred, c. 37.) nor by the Laws of Henry the 1st was this indulgence conceded a Man. Si Bockland habeat, quam ei parentes dederint, non mit- tat earn, extra cognationem suam. (LL. Hen. 1. cap. 70.) ^ Filios viulieratos. " When a Man has a Bastard Son, and " afterwards marries the Mother, and by her has a legitimate " Son, such latter Son, In the language of the Law, is called a " rrmlier, or, as Glanville expresses it in his Latin, filius midie- " ratus." (3 Bl. Comm. 247.) With this interpretation Skene agrees. (Eeg. Maj. L. 2. c. 19.) Digitized by Microsoft® 117 lock ; and yet the Law is so.^ But, if the person, de- sirous of making a donation of part of his Lands, pos- sess only such as he has purchased, he may then make such Gift ; provided it does not extend to the whole of his purchased Lands, because he cannot disinherit his Son and Heir.'^ Yet, if he has not any Heir, male or female, of his own Body, he may, indeed, consult his own inclination in making an absolute gift, either of part or of the whole of his purchased Lands.^ And, if the person to whom the gift be made obtain Seisin of it, during the life of the Donor, it is not in the power of anymore remote* Heir to invalidate such - The Regiam Majestatem lays it down, that a man cannot give any part of liis Inheritance to his illegitimate Son. (L. 2. c. 19.) The Grand Norman Custumary also expressly denies the validity of a gift, sale, delivery, or pledge, by a Father, to his illegitimate Sou of any part of the former's hereditaiy Estate, adding that it might be impeached within a year and a day after the Father's decease. (Le Grand Custum. de Norm. c. 36.) We must recollect that both these celebrated works were posterior to Glanville — the Law, therefore, had, in the point now before us, undergone some alteration in the intervening period. ^ Vide Sullivan's Lectures on the Laws of England, p. 149. ^ It is observed by a justly celebrated writer that, in the old restraints upon alienation, which we find in the Laws of Eng- land and Scotland, no distinction is made, whether the iief was held by a military or socoage tenure ; and that, in the same old Laws, the resti-aint upon alienation is almost absolute, where the Tenant is in by descent, but very loose when he is in by pur- chase ; and the wi-iter in question concludes that, the Interest of the Heir created the difference. (Vide Dalrymple on Feuds p. 80.) The writer just mentioned furnishes an excellent comment upon this part of our Author, (o. 3. ». 1.) * Uteres remotior. Hceres remotior has a peculiar signification in our Author. Except a Son and Daughter, wlio were Hceredes proximi, every Heir was hceres remotior. See cap. 3. of this Book. No Heir, says the Reg. Maj. being of farther degree than Digitized by Microsoft® 118 Gift. Thus may a man give, in his lifetime, the whole of his purchased Land ; but he cannot make any one his Heir to it, neither a College, nor any particular in- dividual, it being an Established Eule of Law,, that God alone, and not Man, can make an Heir.^ If, how- ever, a Man possess both inheritable and purchased Lands, it is then unquestionably true, that he may absolutely give any part or the whole of the latter to such person as he pleases;^ and of his inheritance he may notwithstanding dispose, according to what we have already observed, provided such disposition be a reasonable one. It should be observed, that, if a Man, having Lands in free soccage,^ has many sons, who are all in equal proportions to be admitted to the In- the son or daughter, may impugn that gift any manner of ways. (L. 2. c. 20.) 1 Vide Craig de Jure Feud. p. 349. 334. 368. and also Somner on Gavelkynd. ^ Primo patris feudum primogenitus filius habeat : Emptioiies vera vel deinccps acquisitiones suas det cui magis valit. (LL. Hen. 1. cap. 70.) Socagium. Did potent soecagium a Socco. (Bracton L. 2. o. 35.) Hinc est quod Sokemanni hodie dicuntur esse a succo etlam derivantur. (Fleta L. 1. o. 8.) Socagium idem est quod servitium socce, et soca idem est quod caruca s. a soke oic a plough. (Littleton s Tenures Sect. 119.) This derivation Lord Coke ap- proves of (Co. Litt. 86. a.) See alsoCowell advoc. Mr. Somner, however, disapproves of it, as too confined. He would derive it from the Saxon Soc, wliich signifies liberty or privilege, and agium to denote the agenda or Services (Somn. Gavelk. 133. See also Bl. Com. and Mr. Christian's note 2. 81.) "It seems," says Mr. Hargrave, " that both derivations have their share of " probability, which is as much as can be expected on a subject " so very uncertain." Mr. Somner tells us, that the term socage has first occurred to him in Glanville, but never as yet in any Elder record. (Gavelk. p. 143.) Digitized by Microsoft® 119 heritance, then, it is unquestionably true, that their Pather cannot give a greater part of his inheritable Land or of bis purchased, if he possess no inheritable, to any one of the sons, than the reasonable part which ■would fall to such son of the whole paternal Inherit- ance.^ But the Father can in his lifetime give to either of his Sons such a part only of his inheritable free soccage Land, as such son would be intitled to upon the death of his father by the Rule of succession. Yet, by reason of the liberality which Parents are in the habit of exercising towards their sons, or even towards other persons, questions of Law frequently arise concerning donations of this description. Let us suppose, that a Knight or a free-man, having four, or a greater number of sons, all born in Wedlock of one Mother, should, with the consent of the Heir pre- viously obtained, (in order to prevent disputes) give to one of his sons — let us say, to the second and his Heirs, a certain reasonable part of his Inheritance — Let us suppose, that the son, to whom the Gift has been made, received Seisin, and, during his Life, took the profits and proceeds, and that he died in such Seisin, leaving not only his Father, but all his Brothers yet living. Very obscure, indeed, is the Law, and considerable the debate and contention among the most skilful of 1 The Norman Code lays down the same rule generally, and observes, that after the Father's Death, any such Gift should be brought into the general stock and divided amongst all the Heirs ; in other words, should be put into Hotch-pot. (Le Grand Oust, de Norm. chap. 36.) Digitized by Microsoft® 120 that Profession, when this point occurs or may occur in the King's Court, in order to ascertain, who ought by law to succeed to the Inheritance. The Father contends, that he ought to retain to himself the Seisin of his departed son, and thus desires, that the Land which had emanated from his Bounty should again return to him. Upon this question being agitated in Court, the Eldest son will answer to the Father, in the act of claiming the Land, that the latter ought not to be heard upon the subject, as it is a general principle of the Law of the Realm, that no one can be at once ' Lord and Heir of the same Tenement.^ But, by force of the same principle, the third son attempts to repel the Eldest son, from the inheritance in question. For, since the Eldest son is the Heir to the whole Inheritance, he cannot be at once Lord of it and Heir ; especially, if the father of the Eldest son happen to be dead, such son would be Lord of the whole Inheritance. 1 An able writer accounts for this principle by informing us, that the whole feudal system was built on the distinct rights of superior and vassal, and the blending these two characters, without a necessity arising from the feudal relations themselves, in one person, appeared to be blending of contrary qualities together. (Dalrymple's Essay on feuds, p. 177.) Mr. Reeves observes, " that in the times of Glanville and Braoton the reser- " vation of services might be made either to the Feoffor, or to "the Lord of whom the Feoffor held; they seem more com- " monly to have been made in tlie former manner : thus, every " such new feoffment in fee, made a new tenure, and of course " created a new manor : and so the Law continued till the " statute quia Emptores 18. Ed. 1. required feoffments in fee to " be made, with reservation of the Services to the chief Lord." (1 Hist. Eng. Law. 106.) See also Hale's Hist. Com. Law. 158. Digitized by Microsoft® 121 But, then, by the Law of the. Eealm, the Land cannot remain to him, for the reason we have mentioned. If, therefore, he cannot retain it absolutely, how can he claim it by the rule of succession ? By a parity of reasoning it seems, that the third son shall exclude all the others. A similar doubt arises, when any one has conceded and given a certain portion of his Land to his younger Brother, and his Heirs. Let us suppose, that the latter dies, without leaving any Heir of his own body, and the former seizes into his own hands the Land of his deceased Brother, as being vacant and within his Fee, against whom his own two sons pray an Assise, con- cerning the death of their Uacle. Upon the suit pro- ceeding, the Eldest son may plead against his Father, and the youngest son against his Elder Brother, in the manner before mentioned^ But it is evident, that the Father cannot by any means, consistently with the- Law of the Eealm, retain the Land in question, as he cannot at once be Lord and Heir. Nor, indeed, does the Law admit of Land so given again reverting to th& Donor, when Homage has followed the Gift,i if the person to whom the Gift is made has any Heir, of his own body, or even more remote. Besides, Land which is thus given, like certain other Inheritances, naturally descends to the Heirs by the rule of succession, but 1 Vide Reg. Majest. L. 2. c. 22. " But at this day,'' observes Lord Hale, " the law is altered, and so it has been, for aught I " can find, ever since 13 Ed. 1." (Hale's Hist. Com. Law.. 229.) Digitized by Microsoft® 122 never naturally ascends,^ Thus the Plea, between the Father and the Eldest son, shall cease — but it shall proceed, between the Eldest son and the youngest, in the manner we have already described. But, when this last case has occurred in the King's Court, it has sometimes been ordered by the Court, acting upon equitable principles, that the Land so given should remain to the Eldest son, especially if he has not any other Fee in possession, until the paternal In- heritance fall to him. Because, in the mean time, as he is not the Lord of the paternal Inheritance, the Rule, that no one can at once be Heir and Lord, does not stand in his way. But since by the Bule of succession, he must become Lord of that part of the Inheritance, 1 Descendit itaque Jus quasi ponderosum quid cadens deorsum. (Braoton 62. b. ) "This Rule," observes Sir Wm. Blaokstone " so far as it is affirmative, and relates to lineal descents, is almost *' universally adopted by all nations ; " " but the negraiiue branch, " or total exclusion of Parents and all lineal Ancestors fromsuc- ■" ceeding to the Inheritance of their offspring, is peculiar to " our own Laws, and such as have been derived from the same -" original." (3 Com. 209.) The Reader will recal to mind the material qualification of this Rule, which, though it precludes the Father froni taking as Heir to his Son, by an immediate descent, permits him to take as Heir to his own Brother, who was Heir to the Son, by col- lateral descent. (Hale's Hist. Com. Law. 216. 336. 3 P. Wms. 613. Mr. Christian's note to 2 Bl. Com. 213.) This appears to coincide with the Rule as qualified by Bracton ; for, having laid it down, that an Inheritance never ascends the same way it descends, he px'oceeds, a latere tamen ascendit alicui propter defectum, heredum inferius provenientium. (Bracton 03. b. See also Grand Norm. Custum. c. 35.) A different Rule, from that in the text, is laid down in the Laws of Henry the first. Si quis sine liberis dccesserit, pater aut viater ejus in hereditatem sue- cedant, &a. (LL. Hen. 1. c. 70.) Digitized by Microsoft® 123 it may be asked, whether he is not to be considered as Heir of the part in question, when he is Heir of tlie whole Inheritance ? To this we, answer, that it is as yet uncertain and in contingency, whether the Eldest son will be the Heir or not. If, indeed, his Father should die before him, then it is no longer doubtful, because he is his Heir. Should it so happen, he ceases to be the Owner of the Land he formerly acquired by ■succeeding to his Uncle ; and, then, such Land shall descend to the younger son, as the right Heir. If, however, the Eldest son should die before his Father, it is, then, equally clear, that he will not be the future Heir of his Father ; and, therefore, those two accidents of Law, the Hereditary Right and Dominion ^ never ■concur in his person. It should be remarked, that Bishops and Abbots cannot, without the consent and •confirmation of the King, make an absolute disposition •of any part of their Demesnes, their Baronies being held in Frankalmoigne of the Gift of the King and his Ancestors.^ 1 Dominium. The Civilians, from whom this term seems to Tiave been borrowed, divided dominium into the directum and the utile ; the first being, where a person had the propriety, without the profit, — the latter being, where a person had the 3)roflt, without tlie propriety. (Wood's Inst. Civil Law. L. 2. c. 1.) This division, however, was opposed by Cujacius and some others. (Craig Jus. Feud. L. 1. Dieg. 9.) 2 The Eule laid down in the text received a partial confir- mation from the Stat, of Westm. the 2. c. 41. I say partial, on the authority of Lord Coke, who lays it down, that Bishops are not comprehended in that Act. (2 Inst. 457.) " William the ■" Conqueror thought proper to change the spiritual tenure of " frankalmoigne or free-alms, under which the Bishops held ■" their Lands during the Saxon Government, into the feudal or Digitized by Microsoft® 124 CHAP. II. But Heirs are bound, so far at least as the Donations of their Ancestors are reasonable, to warrant them, and the things comprised in them, to the persons tO' whom they are made, and to their Heirs.^ CHAP. III. Of Heirs, some are nearest,^ others more remote. A Man's nearest Heirs are those of his Body, as a Son, or a Daughter.^ Upon the failure of these, the more- remote Heirs are called, namely, the Grandson, or Grand-Daughter descending in a right line from the Son or Daughter, in irifiniturn. Then the Brother and Sister, and those descending from them in a trans- " Norman Tenure by Barony, wliich subjected their Estates to " all civil cliavges and assessments, from which they were before "exempt." (2 Bl. Com. 156.) 1 " For where dedi." says Lord Coke, " is accompanied with a " perdurable tenure of the feoffor and his Heirs, there dedi im- " porteth a perdurable warranty for the Feoffor and his Heirs to " the feoffee and his Heirs ; and herewith agreeth Glanville : " (referring to the text) (2 Inst. 275. ) ^ Plura, says Fleta, heredeni reddiint hereditati propiiiquio- rem. ; utjwte sexus, linea, hereditas partibilis, pluralitas fcemi- narum^ modus donationis et sanguinis. (L. 6. c. 1. s. 12.) ^ Yet, Bracton reckons a daughter a more remote Heir when a Son was living. (Bracton 64. b.) It is clear, that author uses- the term comparatively, and so the Grand Norm. Cust. uses it, (sparsim.) Digitized by Microsoft® 125 verse line. After these, the Uncle,^ as well on the part of the Father, as of the Mother, and in like manner the Aunt, and their Descendants.^ "When, therefore, a Man possessed of an Inheritance dies, leaving one Son only his Heir, it is unquestionably true, that such son shall succeed entirely to his Father. If, however, he leaves more sons, then, a distinction must be made, whether the deceased was a Knight, or one holding by Military Tenure, or whether he was a Free Sockman.^ Because, if he were a Knight, or holding by Military Tenure, then, according to the Law of the English Kealm, his Eldest son shall succeed to the whole Inheritance, so that none of his Brothers can by right claim any part of it.* But, if the Parent 1 Avunculus. Our Author is guilty of an inaccuracy in using this term, which means, an Uncle on the Mother's side, patruus being the Uncle on the Father's side. 2 V. Somneri Tractat. de Gavelkynd. pag. 42, et Bracton L. 2. c. M.fol. 76. a. Fletam Lib. 5. c. 9. s. 15. ( Al. MS. ) On the Rules of descent as they existed amongst the Jews, the Grecians, the Romans, the Lombardi, the Normans, the ancient British, the Saxons, &e. I refer the Reader to Lord Hale's admirable though unfinisned Tract, the History of the Comm. Law, chapter 11th. On the Rules of descent, as existing in this Country when Bracton wrote, which Lord Hale infox'ms us, stood settled in all points as ' they are at this day, except in some few matters soon after settled, the Reader may turn to the 2nd Book c. 30. 31. of Bracton. 2 The Norman Code divides Inheritances into impartible and partible — the former appearing to answer to our military tenure, the latter to our soccage tenure. (Grand Custum. c. 24.) * "The Normans, introducing their Feuds, settled the whole " Inheritance of them upon the Eldest son, which the ancient " feudal Law did not (as we before have noted) till feuds were " grown perpetual. The reason, as I take it, that begat this al- " teration was, for that while the feud did descend in Gavelkynd Digitized by Microsoft® 126 were a free Sockraan,i then, indeed, the Inheritance shall be equally divided amongst all the sons, however numerous, provided such Soccage Land has been an- ciently divisible,^ reserving, however, to the Eldest son " to the sons and nephews of the feudatory, the services were " suspended, till the Lord had chosen which of the sons he would " have for his Tenant, and then it was uncertain, whether the " party chosen would accept of the feud or not, for sometimes " there might be reasons to refuse it." (Spelm. Reliq. p. 43. See also 3 Litt. Hist. Hen. p. 133. and Robinson on Gavelkynd. 23.) 1 Vide Spelm. Reliq. in libello inscript. Feuds and Tenures hy KnighVs Service c. 37. p. 43. and 44. (Al. MS.) 2 Soccage Lands are asserted to have remained partible long- after the Conquest, and, as we have no account of the precise period wlien the alteration was made in the descent of these Lands from all the Sons equally to the Eldest Son only, it is probable, as Mr. Robinson suggests, that the alteration was not effected at once nor by any written Law, but crept in insensibly and by degrees, in imitation of the Descents of Knight's Service, and from the pride of the Soccage Tenant, emulous that his Eld- est Sou should equal in state and splendor the military Tenant. " But this alteration began to appear more plainly in the time of " Henry the 2nd. for, according to Glanville, who wrote in that " Reign, in order to entitle the Sons to take equally, it was not " only necessary that the Land should be holdenin free soccage, " but further quod antiquitus divisum ''^and, having cited the present and following passages of our author, Mr. Robinson pro- ceeds " So that according to this account, it is difficult to say, " what was then the common Law with, regard to descents of " soccage Lands, or whether every person entitling himself to " them by Inheritance, was not obliged to set out the special " custom of the place. The same author, indeed, in other parts " of his Book, speaks of the partibility of these Lands more gen- " erally, and in such manner as may induce a belief, that it re- " mained the common Law at that time : Plurium item hceredum " conjnnctio mulierum soil, in feodo militari vel mascidorum vel " fceminarum in libera socagio. (L. 13. c. 11.) And, in another " very remarkable passage, wherein he shews, that the Law so " greatly respected this equal division among the Sons, as not to " permit the Father even in his lifetime to prefer a favorite child Digitized by Microsoft® 127 as a mark of respect to his seniority ,i the Capital Mes- suage, upon his making a Compensation to the others equal to the value.'-* If, however, the Estate was not anciently divisible, then, the Eldest son shall, accord- ing to some customs, take the whole Inheritance, " to any of the rest, by advancing him beyond his proportionable " part " — referring to the first chapter of the present Book. (Rob- inson on Gavelkynd 24. 25.) The two latter positions referred to by ilr. Robinson, as laid down by Glanville, may be accounted for by supposing, that our author speaks with reference to Land " antiquitus divisa." " Although," says Lord Hale, commenting upon a passage in our author's text, " Custom directed the De- " scent variously, either to the Eldest or Youngest, or to all the " Sons, yet, it seems, that at this time, Commune Jus, or Com- " mon right spoke for the Eldest Son to be Heir, no custom in- " tervening to the contrary." (Hist. Com. Law 226.) To conclude, the right of primogeniture every day making a greater progress had, as Mr. Robinson observes, in the Reign of King John fairly got tlie upper hand of the partible descent, the presumption then being that even Soccage Lands (unless in Kent) were descendible to the Eldest Son only, unless the contrary were proved. (26.) Upon the doctrine of the text and the subject of this note, see the authors referred to ; also Bracton 76. a. Pleta L. 5. c. 9. s. 15. Mirror c. 1. s. 3. and Co. Litt. 14. a. 1 JEsnecice — Gall, aisne, quasi ains ne. The transition is easy from the person of the Elder to his privilege or the right of Se- niority. (Spelm. Gloss, ad voc.) The term occurs in the Statute of Marlbridge, Fleta, Bracton, Norman Custumary &c. Among the customs of Beauvoisis, we find a Law similar to that in our text. (c. 14.) But r/iattmas observes, that this privilege attached to seniority did not regularly prevail unless Sur les Heritages nobiles (397.) It was clearly not so restrained with us. 2 Primum Patris feodum primogenitus fllius habet. (LL. Hen. 1. c. 70.) From this Lord Hale collects, that though the whole land did not descend to the Eldest Son, yet it began to look that way. (Hist. Com. Law, 224.) Mr. Somner, however, interprets the primum feodum, to be only the Capital Messuage, according to Glanville. in the passage now before us, or what is called in the Grand Noi-man Custum. le chief de Heritage (Anglo-Sax. LL. Ed. Wilkins p. 266.) Digitized by Microsoft® 128 ■whilst, , according to other Customs, the younger son : shall succeed as Ileir.^ In like manner, should any person leave one Daughter only, his Heir, then what we have laid down with respect to a son shall unques- tionably prevail. If, however, he leave more Daugh- ters, then, the Inheritance shall, without distinction, be divided between them, whether their Father was a Knight or a Sockman, reserving to the Eldest Daugh- ter, the Capital Messuage, under the conditions before mentioned. But it should be observed, if either of the Brothers or Sisters, amongst (vhom the Inheritance is divided, should die, Avithout leaving any Heir of his or her Body, then the portion of the person so dying shall be divided amongst the survivors. But the Husband of the Eldest Daughter shall do Homage^ to the Chief Lord for the whole Fee. But the Younger Daughterbs, •or their Husbands, are bound to perform to the Chief Lord the services due for their Land, by the hand of the Eldest Daughter, or her Husband. Yet the Hus- 1 See Lord Hale's Comment on this passage, supra note 2. p. 126. 2 Our author professedly resumes the subject of Homage in the 9th Book. We shall, therefore, in this place merely notice that Craig makes the military feud to consist in three things — Homa- gium, fidelitas, and scutagium. The chief distinctions between the two former as stated by that author, are, 1st, The manner of performing Homage was much more humble and impressive, than that of performing Fealty. 2nd, Homage was due for a military Fee alone ; a Rule that if it ever prevailed was relaxed by the English ]. aw. 3rd, Homage could only be received by the Lord personally, fealty might be received by a Bailiff. 4th, Those who held by Homage were bound to sell or pledge every thing for their Lord ; but the tenant by simple fealty had no such heavy obligation imposed upon him. (Craig. Jus Feud. L. 1. D. 11. 10). Digitized by Microsoft® 129 bands of the Younger Daughters are not bound to per- form any Homage, or even Fealty, to the Husband of the Eldest Daughter, in her lifetime. Nor are their Heirs in the first and second degrees ; but those in the third descent from the Younger Daughters are bound by the Law of the Realm, to do Homage for their Tenement to the Heir of the Eldest Daughter, and to pay a reasonable Eelief.^ In addi- tion it should be known, that Husbands cannot give any part of the Inheritance of their "Wives, without the consent of their Heirs, nor can they remit any part of the right of the Heirs, unless in her lifetime.^ If, how- ever, a Man leaves a son and Heir, and has besides one Daughter or more, the son succeeds entirely to the Inheritance — from whence it follows, that if a Man should have married many Wives,^ and by each of them have had one or more Daughters, and at length an only son by the last of them, the son alone shall •obtain the Inheritance of the Father ; because, it is a general Rule, that a Female can never share an Inher- itance with a Male, unless perhaps a special Exception to this exist in some particular City, grounded upon a 1 Among the customs of Beauvoisis, there is a Law very similar from which Thaumas asserts we borrowed our rule. (c. 47.) The doctrine of the text is confirmed by Henry the Snd's Charter to the Irish, which the Reader will find among Thaumas's notes to the customs of Beauvoisis p. 396. 2 Nor yet remit nor diminish the right of the Heir, but only ■" during their (the wives) lifetime." (Reg. Maj. L. 3. c. 29.) 8 Vide D. Craig. Librum de Successions Anglicd versa p. 375 . Digitized by Microsoft® 147 upon the Lord, as an Escheat. Yet, if such female Heirs are once lawfully married, and afterwards become widows, they shall not again be under the Custody of their Lords ; although the}'' are, for the reason formerly explained, bound to ask his consent to their marriage.^ Xor, in such case, shall they forfeit their Inheritance, if guilty of incontinence.^ But the assertion which is generally made, that in- continence ^ is no forfeiture of the Inheritance, is to be understood of the crime of the Mother ; because, that Son is the lawful Heir, whom marriage proves to be such.* CHAP. XIII. Keithee a Bastard,^ nor any other person not born in lawful wedlock, can be, in the legal sense of the 1 Vide Mag. Car. Cap. 7, and Lord Coke's comment thereon. (3 Inst. 16.) See also Robinson on Gavelk. 160 and Bracton 313. a. 2 Lord Littleton thinks, the reason for exempting Widows from the penalty was, that they, not being under the custody of their Lords, their incontinence was no breach of the Duty and reverence due from a Vassal. (3. Hist. Hen. 3. p. 119.) The Mirror coincides with the text. (c. 1. s. 3.) The custom of Ga- velkynd is less liberal to the frailty of the widow. (Robins, on Gavelkynd(195.) ^ Piitagium ; quasi, says Spelman, puttam agere a Gall, putte, Ital. putta, nieretrix. Petrarch, putta sfacciata. (Spelm. Gloss, ad voc.) " For the Common Law, says the Mirror, only taketh him to be a Son, whom the marriage proveth to be so. (Mirror p. 70. See also Bracton 63. a. b.) ' The Norman Code enumerates four Impediments to Succes- Digitized by Microsoft® 148 term, an Heir.^ But if any one claims an Inheritance in the character of Heir, and the other party object to him, that he cannot be Heir, because he was not born in lawful wedlock, then, indeed, the Plea shall cease in the King's Court, and the Arch-Bishop or Bishop of the place shall be commanded, to inquire concerning such marriage, and to make known his decision, either to the King or his Justices. For this purpose, the following "Writ shall Issue : — CHAP. XIV. " The King to the Arch-Bishop, Health. W. appear- " ing before me in my Court has demanded against H. " his Brother, the fourth part of one Knight's Fee, in " such a Vill, as his right, and in which the said Ji. " has no right, as W. says, because he is a Bastard " born before the Marriage of their Mother. And, " since it does not belong to my Court to inquire con- " cerning Bastardy, I send them unto you command- " ing, that you do in the Court Christian that which " belongs to you. And when the Suit is brought to " its proper end before you, inform me by your Letter sion. — Bastardy, px^ofession of Religion, forfeiture, and incurable Leprosy. (Le Grand Custura. de Norm. 27.) Bastardy seems to have been a legal objection to a witness under the Assises of Jerusalem. (56.) 1 A different Law prevailed amongst the ancient Welcli peo- ple, as Lord Hale deduces, from considering the Stattttiim Wallioe 12. Ed. 1. and, he thinks, that the Ancient British admitted Bastards to inherit. (1. Hist. Com. Law 219.) Digitized by Microsoft® 149 " what has been done before you concerning it. "Wit- " ness, &c." CHAP. XV. Upon this subject it has been made a question whether if any one was begotten or born before his Father married the Mother, such Son is the lawful Pleir, if the Father afterwards married his Mother? Although, indeed, the Canons and the Eoman Laws consider such Son as the lawful Heir,i yet, according to the Law and Custom of this Realm, he shall in no measure be supported as Heir in his claim upon the Inheritance; nor can he demand the Inheritance, by the Law of the Realm.'^ But yet if a question should 1 "In the time of Pope Alexander the 3rd, (A.D. 1160 — Anno " 6. Hen. 2.) this Constitution was made, that children born be- " fore solemnization of Matrimony where Matrimony followed, " should be as legitimate to inherit unto their ancestors, as " those that were born after Matrimony." (2 Inst. 96.) To this Constitution our Author alludes. The doctrine of the Norman Code is in conformity with the Canon of Alexander. (Grand Custum. c. 27.) The modern French Code allows, under certain restrictions, of the subsequent legitimation of children — even of deceased children, who have left issue. (Code Napoleon s. 331. 332.) 2 " This decision of Glanville," observes Lord Littleton, "is " very remarkable : as it shews the entire independence of the " Law of England on the Canon and Civil Laws in his time." (3 Litt. Hist. Hen. 3. p. 125.) When this doctrine was, in a sub- sequent period of our History, attempted to be overturned, it gave rise to the celebrated answer of the Barons recorded in our Statute Book. — Et omnes Comites et Barones und voce responde- runt, quod nolunt leges Anglioe mutare, quce hucusque usitatoe sunt et approbatce. (Stat, of Merton. c. 9. See also 2 Inst. 96. ) The Eule, thus memorably defended, has descended untouched to the present day. Digitized by Microsoft® 150 arise, whether such a Son was begotten or born before marriage, or after, it should, as we have observed, be discussed before the Ecclesiastical Judge; and of his decision he shall inform the King, or his Justices. And thus, according to the Judgment of the Court Christian concerning the marriage,' namely, whether the Demandant was born or begotten before marriage contracted, or after, the King's Court shall supply that which is necessary, in adjudging or refusing the Inheritance respecting which the dispute is ; so that by its decision the Demandant shall either obtain such inheritance, or lose his claim. CHAP. XYl. As a Bastard can have no Heir, unless it be one of his own Body, a question arises respecting a Bastard. If any one has given Land to him, reserving a service or any other thing, and has received his Homage for it, so that the Bastard has died in the Seisin of such Land, without leaving any Heir of his own Bod}^, who is en- titled by law to succeed to him, as his Lord cannot for the reasons before stated?^ But when any one dies 1 " It is answered,"' says the Regiam Majestatem, "that no " Man may succeed to him, but only the King by the reason " aforesaid." (L. 2. c. 53.) But Bracton resolves the question by informing us, that in such a case, the Land would escheat to the Lord ; nor, would the circurastance of Homage having been received, alter the case, quia homagiiim evanescit heredibus dejicientibus ubique ; (Bracton. 20. b.) a doctrine which lias been strangely misinterpreted, and that by a highly respectable writer, who considers the position laid down by Glanville, that Digitized by Microsoft® 151 intestate, all his chattels are understood to belong to his Lord ; and, if he has more Lords than one, each of them shall recover such Chattels, as may be found within his Fee. But all the Effects of a Usurer (whether he make a Will or not) belong to the Iving.^ But it is not the Custom for any one, whilst living, to be appealed or convicted of the crime of Usury — but, among other Regal Inquisitions, it is usually inquired^ the Lord was precluded by receiving Homage of his claim to the Escheat, as not to be relied upon ; because, in the very next Reign, the Lord was ultimus heres to a Bastard. In support of this conjecture, the Author in question appeals to Bracton. (Ubi supra.) See Dalrymple on Feuds p. 64. Bracton wrote the Law of the times as it stood when he composed his treatise, which was not t?i the very next Reign, but towards the latter end of the Eeign of Henry the third, the better part of a century later than when Glanville wrote. Had the fact, however, been as assumed, the conclusion drawn from it would by no means be warranted : since, to argue from what is Law at one period in order to refute what was so at another anterior period is the purest sophistry. ^ The Ancient Romans punished Usury with more severity, than they did Theft. (Cato de re EusticS, Proem.) The Norman code imposes a forfeiture of all the offender's property, provided he had been guilty of Usury, within a year and a day before his death. (Grand Custum. de Norm. c. 20.) By a Law of Edward the Confessor, Usurers were banished the iingdom, and a person convicted of the crime forfeited all his substance, and was to be treated as an outlaw. If tlie Reader feel any desire to penetrate into the motives that dictated this Law, these are the concluding words of it. Hoc autem asserebat ■ipse Rex se audiisse in Curia Regis Francorum, dum ibidem moraretur, quod XJsura radix omnium vitiorum esset. (LL. Ed. Conf. c. 37.) The doctrine, as laid down by the Mirror, is, that the goods and Chattels of Usurers should remain, as Escheats to the Lords of the Fee. (Mirror c. 1. s. 3.) The Reader will find some curious disquisitions on the subject of Usury in the Ancient Dialog, de Scaocario. (L. 3. s. 10.) 2 Our Author alludes to the Inquisitions made under the Justices Itinerant, an institution generally ascribed to Henry the Digitized by Microsoft® 152 and proved, who have died in this Offence/ and that by the oaths of twelve lawful Men of the Vicinage. Which being proved in Court, all the Moveables and Chattels which belonged to the deceased Usurer shall be seised to the King's use, without any regard to the person in whose hands they may be found. His Heir is for the same reason deprived of the Inheritance according to the Law of the Eealm, the Inheritance itself reverting to the Lord. It should, however, be observed, that if any one has, during a certain period of his life, been guilty of this Crime, and be publicly accused ^ of it in the Community where he lived, if he desisted from his error before his death, and was penitent, neither he, nor his property, shall after his death be liable to the penalties of Usury. It ought, therefore, to be evident, Slid, and, as generally, imagined to have been first ordained in the Great Council at Northampton in the 22nd year of the Reign of that IMonarch. Lord Coke, however, ascribes to them a much earlier origin ; and from the Records in the Exchequer, it should seem, that there had been Justices Itinerant to hear and deter- mine Civil and Criminal causes, so early as the 18th of Henry the first. Lord Littleton thinks, the first appointment of Justices Itinerant vi^as made by Henry the first, in imitation of a similar Institution in France established by Louis le Gros. Justices Itinerant ad communia placita were continued until the 10th of Edw. the 3rd, when they seem to have given way to Justices of Assise, Nisi prius, Oyer and terminer, and Gaol delivery. (Vide Madox's Excheq. 96. Litt. Hist. Hen. 2. Vol. 4. 271. Hale's Hist. Com. Law 140. 168—2 Inst. 497.) ' The Mirror confines the punishment to those attainted of Usury after their decease, " but not, if they be attainted thereof " in their life-time, for then they lose but only their moveables ; " because, by penance and repentance, they may amend and " have Heirs." (Mirror c. 4. s. 12. See also Fleta L. 1. c. 20. S. 28. and Dial, de Scacc. L. 2. s. 10.) . 2 Vide Book 14. Note 2. Digitized by Microsoft® 153 that a Man has died a Usurer, in order that he may be- so adjudged after his death, and his Effects disposed of as those of a Usurer. CHAP. XYII. The Ultimate Heir of any person is his Lot-d.^ When, therefore, a Man dies without leaving any cer- tain Heir, such, for example, as a Son, or Daughter, or without any such Heir of whom there can exist no doubt,^ but that he is the nearer and right Heir, the Lords of the Fee may, and indeed, usually do, take the Yacant Inheritances into their hands, and retain them as Escheats,^ whoever such Lord may be, whether the- King, or any other person. But, if any one appear and assert himself to be the right Heir, if by the indulgence of his Lord, or by the King's precept, he can effect it, he shall prosecute his claim ; and thus he may establish his right, if he has any such ; but, in the mean time, the Land in question shall remain in the hands of the Lord of the Fee ; because, whenever a Lord entertains a doubt concerning the Heir of his Tenant, whether he be the right Heir or not, he may retain the Land until 1 Sir Wm. Blackstone, when speakiug of the Law of Escheat, informs us, that it is adopted in almost every country, to prevent the robust title of occupancy from again taking place. (2 Bl. Comm. 10.) See Fleta L. 6. c. 1. s. 11. " By common custoin and " use only," says Skene, commenting on the Regiam Majestatern, "the King is the last Heir." (L. 2. c. 55.) 2 The Translator follows the Reading sanctioned by all tW MSS. 'See Co. Litt. 13. a. b. Digitized by Microsoft® 154 the fact be lawfully' proved to him.^ The same rule is Jaid down, in a former part of this Treatise, where a doubt arises with respect to the full age or Minority of the Heir. There is, however, this difference, that in the one case, the Inheritance itself is in the mean time to be considered as the Lord's Escheat : but in the other case, it is not considered to be the Lord's — nothing, in- deed, but the Custody. But if no one should appear to claim the Inheritance in question as Heir, then it shall absolutely revert to the Lord as an Escheat; so that he may dispose of it at his pleasure as his own property. Besides, if a Female Heir, in the Custody of her Lord, be guilty of Incontinence, her Inheritance shall escheat to her Lord, on account of her crime. And if any person be convicted of Felony, or confess Lis Guilt in Court, deprived by the Law of the Bealm of his Inheritance, his Land shall remain to the Lord, ns an Escheat.^ It is to be observed, that if any one hold of the King in Cajnte, then, as well his Land, as all his Moveables and Chattels, in whose-ever possession they may be found, shall be seised to the King's use, and the Ileir shall be for ever debarred from recover- ing them. But if an outlaw,^ or one convicted of Fel- ony, hold of any other person than the King, then also all his Moveables shall belong to the King; his 1 See Bracton 71. b. "^ How similar the Norman Code was in this respect, the Reader ■will perceive, on turning to Le Grand Cust. de Norm. c. 24. ' Utlagatus, the outlaw, or, in the expressive term of a far dis- tant day, the frendlesman, or, as we should now write it, the friendless man. (Bracton 138. b. See Dial, de scacc. L. 2. s. 10.) Digitized by Microsoft® 155 Lands also shall remain in the King's hands during ■one year, which period being expired, such Land shall revert to the right Lord, in other words, to him to whose Fee it belongs, the Houses, however, being thrown down, and the Trees extirpated.^ And, gene- rally speaking, whenever a person has done or said any thing in Court for which he has been, by a Judgment of the Court, disinherited, his Inheritance is accustomed 1 "The reason of this,'" says Lord Littleton, " was a supposi- " tion, that the Lord, of whom the felon held, was in some degree "culpable, for want of a proper care in the choice of his Tenant.'' (3 Hist. Hen. 2. p. 118.) It is difficult to feel the force of this reasoning, from the moment fiefs ceased to be given for the life of the feudatory — for what choice, it may be asked, was left to the Lord, when fiefs were hereditary, as they clearly appear to have been when Glanville wrote, and for some time previously. Lord Coke ascribes the rule to another source, laying it down, "that originally the King was to have no benefit from the attain- der, but was to commit destruction to the property of the offend- er in detestation of the crime, vt poena ad paucos, metus ad orrmes perveniat. (3 Inst. 36.) But this is as far from being sat- isfactory, as the reason given by Lord Littleton. Because, as the property had ceased to belong to the offender, any waste com- Jtnitted on it redounded in the first place to the injury of the Lord, and through him to the public, who were both, laying all techni- cal fictions aside, innocent. The punishment to the Tenant was •the forfeiture, and not the waste subsequently committed. This cruel policy, or rather impolicy, was abrogated by the 23nd Cliap- ter of Magna Carta. The Reader will consult Lord Coke's com- ment on that Chapter, and then judge for himself, whether the year and a day came in lieu of the waste. That they were co- existent seem.s strongly corroborated by the Custumal of Kent — " The King shall have the year and the waste." (Robinson on <]ravelk. 284. See also Ibid c. 4.) The Mirror is here, as in many other instances, at variance with itself. But Britton ap- pears to consider them as co-existent, (c. 18. s. 6.) and so does the Eegiam Majestatem. (L. 2. o. 55.) Lord Coke has with his usual industry, collected the authori- ties in favor of his position. Dr. Sullivan may be added to them. {Lectures p. 348.) Digitized by Microsoft® 156 to return as an Escheat to the Lord of the Fee of whom it is held. But a forfeiture, committed by the Son and Heir of any one, shall not disinherit the Father, nor the Brother, nor, indeed, any other person but himself. It should also be added, that when a Man has been condemned of Theft, all his Moveables, and Chattels generally devolve on the Sheriff of the County ; but his Land, if he has any, shall immediately revert to the Lord of the Fee, without awaiting the year.^ When any one has been outlawed b\' the Law of the Land, and has afterwards, by the indulgence of the Prince, been restored to the Peace, he cannot on that account recover his Inheritance, supposing that he- or his Pleirs possess such, as against his Lord (unless- by the mercy and indulgence of the Lord himself.) The King, indeed, is accustomed to remit the pains of Forfeiture and Outlawry, j^et cannot he, under colour of this prerogative, infringe upon the rights of others^ CHAP. XYIII. Of Marriage-hood — the one kind is free, the other,, liable to the performance of services.* Marriage-hood is called free, when any free-man gives a certain part of his Land with a Woman in Marriage to another, so that such Land be exempt from every kind of service, ^ The Eeader will recollect, that when GlanvlUe wrote, Theft was not an offence against the King's crown. Chap. 3. L. 1. 2 Vide Note 1. c, 1. of this Book.— Bracton 21. a. b. and Fleta. L. 3. c. 11. Digitized by Microsoft® 157 and acquitted on the part of him and his Heirs, as against the Chief Lord. The Land in question shall enjoy this immunity, even to the third Heir ; ^ nor, dur- ing the interval, are the Heirs bound to do any Hom- age for it ; but, after the third Heir,^ the Land again becomes subject to its original services, and Homage shall be received for it, and, if it be part of a Military Fee, the Tenant shall perform the service of the Fee, with reference to the quantity of the Land. But some- times Land is given in Marriage-hood, saving and reserv- ing the services due to the Chiefs Lord ; and then in- deed, the Husband of the "Woman and his Heirs must perform the services, with the Exception of Homage, even to the third Heir.* But the third Heir shall do Homage for the first time, and all his Heirs afterwards. But another Fealty,^ with the interposition of a solemn promise or oath, shall, in the intervening period, be performed by the Women and their Heirs, almost in the same form 1 In enumerating these degrees, say Bracton and Fleta, Dona- tarius primum faeiat graduin, heres ejus secundum gradum &c. (Bracton fo. 23. b. Fleta L. 3. c. 11. s. 1.) 2 Nor, during the interval, are the Heirs hound to do any Hom- ngeforit, hut, after the third Heir, — omitted by the Harl. and Bodl. MSS. 8 All the MSS. concur in omitting the word chief. * "And the third Heir shall make Homage, therefore, Ward " and Relief, and all his Heirs after him." (Regiam Majest. L. 3.C. 57.) ^ " And another fealty, by making of an oath and faith, shall " be given and made by the Woman and her Heirs, in the same " form and words as Homage should be made." (Reg. Maj. L. 3. c. 57.) Digitized by Microsoft® 158 and in the same words in which Homage is commonljr performed. When, therefore, any one has received Lands with his Wife in Marriage-hood, and has by her an Heir,, Male or Female, heard to cry within the four Walls, then, if the man survive his wife, whether the Heir live or not, the Marriage-hood shall notwithstanding re- main to the Husband, during his life ; but, after his death, it shall revert to the original Donor, or his Heirs.i But if he never had an Heir from his Wife, then, immediately after her death, the Marriage-hood shall revert to the Donor or his Heirs.^ 1 What our Author treats of, as a consequence of a Man's re- ceiving lands in marriage-hood, has received considerable ex- tension in succeeding times, and has become known by the Title of the Curtesy of England. But, as Lord Coke observes, it was known to the Scotch and Irish, and, he might have added, to the Normans. Craig cites a passage to shew that it was not un- known to the Roman Code, and Sir Wm. Blackstone quotes an authority to prove that it was in use amongst the ancient Almains or Germans. Like Dower, It is not a provision arising from the compact of the parties, but emanating from the liberal- ity of the Law. As to the evidence of the existence of the off- spring, the Regiam Majestatem expressly coincides with our Author, (L. 2. c. 58.) and in this, is followed by Bracton, Fleta, and Britton. Lord Coke, however, asserts, that if born alive, it is sufficient, though not heard to cry, which, indeed, is consist- ent with reason — for the ci-ying of the child is merely evidence of life — which raay as well be furnished by a thousand other cir- cumstances. It is not improbable, that as an adherence to the strict Letter of the ancient Law, as laid down by GlanvlUe, had been found extremely inconvenient, it had, therefore, been silently abrogated, previous to the time of Lord Coke. (See Craig, L. 2. D. 22. s. 40. Le Grand Custum. de Norm. c. 120. 2 Bl. Comm. 125. and Co. Lltt. 29. b.) 2 He forfeited It under the Norman Code by a subsequent- marriage, with another woman. (Le Grand Custum. de Norm., C-. 131.) Digitized by Microsoft® 159 And this is some reason why Homage is not usuallj received for Lands in Marriage-hood. For if Land were so given in Marriage-hood, or in any other way, that Homage was received for it, then, it would never afterwards revert to the Donor, or his Heirs, as we have exphiined. If, however, such Woman take a second Husband, the same Eule prevails, as to the second, as we have stated concerning the first, whether the first should have left an Heir or not. But when any one sues for Land as the Marriage-hood of his "Wife, or when the "Woman or her Heir does so,^ then, a distinction must be made,. whether the Land is demanded as against the Donor, or his Heir, or against a stranger. If the Suit be against the Donor, or his Heir, then, it is at the Election of the Demandant, whether he would proceed in the Court Christian, or in the Secular Court. For if the Demandant chuses to resort to such Tribunal, it belongs to the Ecclesiastical Judge to hold pleas of Marriage-hood ; a Jurisdiction he acquires from the mutual Troth usually plighted, when any one promises to marry a "Woman, and she in her turn prom- ises marriage to him. Nor, indeed, is the Ecclesias- tical Judge prohibited by the King's Court from hold- ing such plea, although it concern a Lay-fee, if it be clear that the demand relate to Marriage. But if the Suit be brought against a Stranger, then, indeed, it shall be determined in the Lay Court, and that, in the same manner and order in which Pleas concerning other Lay Fees are generally conducted. Digitized by Microsoft® 160 Yet, should it be observed, that the Suit ought not to be proceeded in, without the Warrantor, as we formerly mentioned when treating of Dower. The Suit, indeed, must be proceeded in, as far as respects the Warrantor, in the same manner as a Plea in Dower. What we, therefore, said on the former occasion with respect to this point, is applicable to the present. It remains to add, that the third Heir, after he has once done Homage, can ^ proceed in the suit without the a,uthority of the Warrantor. ^ All the MSS. concur in introducing not into the text. Digitized by Microsoft® inolt ^JJ|. OF A CONCORD MADE IN COURT ; AND OF THE CHIRO- GRAPHS CONTAINING THE CONCORD; AND OF THE RECORDS OF THE COURT OR COURTS, IF EITHER OF THE PARTIES SHOULD BREAK THE CONCORD, AND PINE, MADE IN COURT. CHAP. I. But it often happens, that Pleas moved in the King's Court are determined by an amicable composition and iinal Concord, but with the consent and License of the King or his Justices, whatever the Plea may concern, whether Land, or any other thing. Such a Concord Is, with the general consent of the persons interested, usually reduced into a writing, common to all the par- ties,^ which is recited before the King's Justices of the ■Common Pleas,^ in whose presence each person's part of the writing, agreeing in all things with the other's, is •delivered to the part3^ The Concord is in the follow- ing form 1 In communem seripturam, a chirograph. (Madox's Exch. c. 19.) 2 Justiciis domini regis in Banco residentibus — Vide ante page 41. Note 2. II . 161 Digitized by Microsoft® 162 CHAP. 11. " This is the final Concord, made in the Court of " our Lord the King, at "Westminster, on the Yigil of " the blessed Peter, the Apostle, in the Thirty-third^ " Year of the Reign of King Henry the Second ; before " Ranulph de Glanville, Justiciary of our Lord the " King, and before R. R. W. and T. and other faithful " subjects of our Lord the King, then there present, " between the Prior and Brethren of the Hospital of " Jerusalem, and W. T., the Son of Norman, and Alan " his Son, whom he appointed Attorney in the Court " of our Lord the King to gain or lose, concerning all " such Land and its Appurtenances (except one Oxland " and three Tofts ^) which the said W. held : concern- 1 This and a similar passage, in the following chapter, afford strong data, from wlience to ascertain the year, when the present work was written. Admitted as it is, on all hands, that it was composed in the Reign of Henry the Second, and it being a strong presumption from the passages in question, that it could not have been written antecedent to the 33d year of such Reign, it merely remains for us to chuse between the 33d, 34th, and 35th years ; for on the latter year the Reign terminated. If we follow Sir Henry Spelman's plan, and divide the intermediate period, we should infer that the present work was written in the 34tk year of Henry the Second, in other words, in 1187. Dr. Robert- son, though without alleging any reason, says, it was composed about the year 1181. (Hist. Charles. V. vol. 1. p. 296.) Blair's, chronology uses precisely the same assertion. 2 It seems by no means to be agreed of what quantity an Oxland consisted. (Co. Litt. 69. a. and Mr. Hargrave's note.) 3 Toftis. A Toft is said to be the scite where a House formerly stood ; and is a word much used in Fines. (Vide Spelm. Gloss, and Oowell's Interp. ad voc.) Digitized by Microsoft® 163 " iiig all which Land (except the aforesaid Oxland and " three Tofts) there was a Plea between them in the " Court of our Lord the King ; to wit, that the afore- " said W. and Alan concede and attest the Gift which " Norman the Father of the said W. made to them ; " and they quit-claim all that Land from them and " their Heirs to the Hospital and the aforesaid Prior " and Brethren for ever : except the one Oxland afore- " said, and the three Tofts, which remain to the said " W. and Alan and their Heirs, to be held of the Hos- " pital and the aforesaid Prior and Brethren for ever, " b}'^ the free service of four pence a year, for all serv- " ice. And for this concession, and attestation, and " quit-claim, the aforesaid Prior and Brethren of the " Hospital have given to the said W. and Alan one " hundred Shillings sterling." Or in these Terms CHAP. III. " This is the final Concord, made in the Court of " Galfred, the Son of Peter, and afterwards recorded " and inrolled ^ in the Court of our Lord the King, " at Westminster, in the Thirty-third Year of the " Keign of King Henry the Second, on Tuesday after " the feast of the Apostles Simon and Jude, before ^ " K Bishop of Ely, and i. Bishop of Norwich, and 1 And inrolled omitted by the Bodln. and Dr. Milles's MSS. 2 O. Bishop of Ely, I. Bishop of Norwich, and Ranulph de Olan- ville, &c. Justices in Eyre, in the year 1179, 25 Hen. 3. &c. accord- ing to Bodl. MS. Digitized by Microsoft® 164 " i?. de Glanville, Justice of our Lord the King, and " other faithful and trusty servants of our Lord the " King, then there present, between the aforesaid G. " the Son of Peter and R. the son of Reginald, of the " Advowson of the Church of All Saints of Shuld- " ham, and common of pasture of Heddon, con- " cerning which there was a dispute between them ; " to wit, that the aforesaid R. has acknowledged "to the aforesaid O., as his Right, the Advowson of " the aforesaid Church, and has quitted-claim to the " aforesaid 6r. and his Heirs, from him and his Heirs " for ever, if he had any right in the Advowson " of the aforesaid Church : also the aforesaid R. " quit-claims to the aforesaid G. the Common of " Pasture of Heddon — And all the purprestures ^ " which G. has made in Shuldham, in the Wood- " land 2 and Mills and Crofts^ and Turbaries* of " Shuldham, of which the said R. reserves nothing, " unless that which is necessary to burn in his House for " him and his Heirs, without making any sale ; and 1 Vide Infra, L. 9. c. 11. where our author explains tlie import of the Term. 2 Frusseto, or, as Lord Coke writes it, frasseto, signifies a wood or ground that is woody. (Co. Litt. 4. b.) ' Croftis. A croft is said to be synonymous with what farmers call a close. The term is used by Ingulphus, and derived from the Saxon croft or cruft. * Turbariis. This word is of Saxon origin, and seems to have been used in two senses ; first, for the right of taking turf ; sec- ondly, for the ground from which the turf itself was taken or dug. (Spelm. Gloss.) The reader will no doubt admire ecclesi- astical ingenuity, when he understands, that turbary was com- prised under the term lignum, and Tithe consequently claimed in respect of it. (Lyndw. Provinc. p. 100. Annot. ad turvarum.) Digitized by Microsoft® 165 "ain external folds,^ (except his own) and the bidden " days 3 of external ploughs, and the Customs* of Hens ' Forinsem — So termed, Bracton tells us, quia fit et capitur forts, sive extra servitium quod fit domino capitali. (Bracton, fo. 36. a.) This part of the text is rather obscure ; and, though I have taken some pains to get at the sense of all the terms Glan- ville makes use of in this Concord, I cannot flatter myself I have perfectly succeeded. 2 Faldas. Falda is frequently used, as Spelman informs us, pro lihertatefaldagii—faldagium heing a privilege, which Lords anciently, not unfrequently, reserved to themselves, of setting up folds for sheep in any fields within their manors, the better to feed their flocks, and this, not merely with their own but their Tenants' sheep, although, in the latter case, the privilege was more usually called sectd faldce. It sliould raiher seem, that the Tenants sometimes enjoyed such a privilege as against their Lords. Falda i.e. homines villoB debent ponere oves suas in faldam, Domini, are the words of an ancient MS. relating to the Monastery of St. Edmund. When the term forinseeas is attached to faldas, a difficulty occurs, which perhaps may be got over by recurring to the doctrine of subinfeudation, so common when Glanville wrote. The privilege in question might have been within the boundaries of the ancient or original manor, whilst it might have been external or without the circuit of a less manor, forming merely a part of the original manor and created in a course of posterior subinfeudation. — This is submitted merely as a conjecture. 3 Precarias. " Vide Somn. Tract, de Gavelkynd in voc. Be- nerth, p. 18." (Al. MS.) " Benerth, says Lord Coke, signifieth the " service of the plough and cart.'' Co. Litt. 86. a. Precariae are said to be day-works, which the Tenants of some manors are bound, by reason of their tenures, to do for their Lords in Har- vest-time ; and they are in some placet nailed bind-days for bid- den-days, since, as it has been remarked, bidden est preedri. Tliis custom is said to be plainly set forth in the Great Book of the Customs of the Monastery of Battel tit. Appelderham fo. 60. an extract from which the reader will find in Spelm. Gloss, ad voc. precarice. Somner, indeed, considers it a species of Tillage service, performed precario. (Ubi Supra. ) ■* Consuetudines, meaning, perhaps, customary renders, or pay- ments, as Rents. It is well known, that a period of our History Digitized by Microsoft® 166 " and Eggs. And for this Concord and quit-claim, the "aforesaid G. has given to the said R. twenty marks " of silver." And observe, that such a Concord is termed final, because it puts an end to the matter,^ so that neither of the litigating parties can ever after recede from it. For if either of them fail to adhere to it, or to perform his part of it, and the other part}'' complain, the Sheriff shall be directed to put him by safe pledges, that he appear before the King's Justices to answer, wherefore be has not kept such fine. I mean, if the party complaining, has previously given the Sheriff security, to prosecute his claim. For this purpose, the following vs^rit shall issue CHAP. ly. " The King to the Sheriff, Health. Command N., " that justly and without delay, he hold the Fine made " in my Court, between him and R. of one Hyde of " Land, in that Vill, concerning which a Suit was be- " tween them in my Court; and, unless lie do so, and has existed, when most of the Rents of the kingdom were paid in this mannei'. 1 A similar description occurs in the Reg. Maj. (L. 1. c. 27.) and in Bracton. (L. 2. tr. 5. c. 28.) Lord Coke quotes the latter, as well as the passage iii the text, as correct. "This," observes Mr. Hargrave, " though a just description of fines, according to " their original and still apparent import, yet gives a veryinade- " quate idea of them in their modern application. In Glanville's " time, they were really p.micable compositions of actual Suits. " But for several centuries past^wes have been only so in name." (Co. Litt. 121. a. and note 1.) " For the antiquity of Fines," says Lord Coke, " it is certain, they were frequent before the Con- " quest." (2 Inst. 511.) Digitized by Microsoft® 167 " the aforesaid A. make you secure of prosecuting his " claim, then, put him by Gage and safe Pledges that " he be before me or my Justices on such a day, to " shew why he has not done it. And have there this "Writ. Witness, &c." CHAP. Y. Should the party, thus summoned, neither appear, Bor essoin himself, on the day appointed, or if, after having cast three Essoins, he neither appear, nor send an Attorney, the course in such case to be pursued has been alreadj'- pointed out, in that part of this Treatise ■which applies to Pleas, where the Pledges are to be attached, and in the first Book. Both parties being present in Court, if each of them should acknowledge the writing (containing the Concord made between them) or if the Concord is stated to be such by the King's Justices before whom it was made, and this be properly testified by their Pecord, then the Party who has broken the Concord shall be amerced to the King, and shall be safely attached, until he find good se- curity that he will from thenceforth keep the Concord, by adhering to its terms, if possible, or will otherwise make his Adversary a reasonable recompense. For, it is a consequence which naturally results from acknowl- edging a fact in the King's Court in the presence of the King or his Justices, or undertaking to do any particular Act, that the Party should be compelled to abide by or perform it. If, however, such a Concord Digitized by Microsoft® 168 \ be made in a suit concerning Land, then, the party convicted in Court, or confessing that he had not prop- erly observed the Fine, if a Tenant, shall thereby lose his Land, but, if a Demandant, his Suit. But if the^ parties, either the one or the other of them, deny the Common Chirograph, then, the same Justices shall be summoned to appear on a day appointed to them in Court, and there record, ho^v the suit came to an end ■which was before them in the King's Court, between such and such parties, of so much Land, in that Vill, which the one claimed against the other ; and, if the parties, by the license of the Justices and in their pres- ence, came to an agreement, under what form the Concord was made. But here a distinction must be taken, whether such Concord was made in the King's chief Court, or before the Justices Itinerant. In the latter case, such Justices must be summoned to appear in Court, with certain discreet Knights, of the County where the Concord in question was made, who were present when it was entered into, and know the truth of the fact ; in order that such Justices may make a Eecord of the Suit, with the assistance of the Knights, who are to be called to Court for that pur- pose, from the whole body of the County, by the fol- lowing Writ CHAP. YI. "The King to the Sheriff, Health. Summon, by " good Summoners, JV. and li. that they appear before Digitized by Microsoft® 169 " me, or my Justices, such a day, to record, with dis- " creet Knights of that County, how the Plea of one " Hyde of Land, which JV. claimed against B., in that " Yill, and of which there was a Suit before them, on " their Eyre, ceased in my Court." The Sheriff of the County, in which the Suit was decided before the Justices, shall also be commanded to transmit at the same time a Record of the Suit in question to the King, or his Justices, by the hands of discreet Knights of his County. This' shall be done by the following Writ^ for presenting such Eecord in Court — CHAP. YH. " The King to. the Sheriff, Health. I command you, " that you cause to be recorded in your County Court, " the plea which is between such and such person, con- " cerning so much Land, in that Vill," &c. as in the following Chapter but two. CHAP. VIIL The Justices being present in Court, and perfectly concurring as to the Eecord, it necessarily follows, that their Record must be abided by, neither party being allowed to deny it, as we have already observed. But if the Justices entertain any doubt upon the subject, and it cannot be ascertained, then, the Plea must be again commenced and proceeded on in Court, Digitized by Microsoft® 170 CHAP. IX. It should be understood, that no Court, generally speaking, has a Record, except the King's Court.^ For in other Courts, if a Man should say a thing, -which he would afterwards retract, he may deny ^ it against the whole Court, by the oath of three witnesses, affirming that he had not said the thing imputed to him, or, in- deed, by a greater or less number of witnesses, accord- ing to the custom of diiferent Courts. Yet, in some cases, the County and other inferior Courts are by a particular Law of the Kealm allowed to have Records ; thus, if the Duel has been Avaged in any inferior Court, and the Suit should be afterwards transferred into the King's Court ; then, as to the claim of the Demandant, the defence of the Tenant, and the words in which such Duel was adjudged and waged, the former Court shall have its Record even in the King's Court ; but, in other respects, such inferior Court has no Record, unless concerning the change of a Champion. For if, after the suit has been transferred into the King's ^ V. LL. Gul. 1. Norman, cap. 28. ( Al. MS.) The Law alluded to is in these words. Qui placitat in Curia cujuscunque Curia sit, excepto ubi persona Regis est et quis eum sistat super eo quod dixerit. rem. quam nolit conflteri, si non potest disrationari per intelligentes homines qui interfuerunt placito et videntes quod non dixerit, recuperit juxta verbum suum. (LL. Anglo-Sax. Ed. Wilkins, p. 234.) 2 Recordaiionem Curiae Regis nulli negare licet alias licebit per intelligibiles homines Placiti. (LL. Hen. 1. c. 31. See also LL. Hen. 1. c. 49 and Co. Litt. 117. b.) Digitized by Microsoft® 171 €ourt, a different Champion should be produced, than the one who has waged the Duel in the inferior Court, and a dispute arise upon this point, the Eecord of the inferior Court shall by a Law of the Eealm he con- clusive upon the subject. It should also be understood, with rfespect to the Eecord of an inferior Court, that any one may add, that he had said more than is con- tained in such Eecord — and that he did in Court say it, he may prove against the whole Court, by the oaths of two or more lawful Men, according as the custom of ■different Courts vary; because no Court is bound, •either to prove or defend its Eecord by the Duel. But it is not allowed to any one to take exceptions against ■one part, and admit the other ; and this rule is grounded -on a Law of the Eealm : since he may from the first ■deny the whole Eecord, an oath being taken in the manner before mentioned. But, although a Court is not obliged to defend its Eecord by the Duel, yet is it bound to defend its Judgment by the Duel.^ If, there- fore, any one should declare against the Court for passing a false Judgment, and, therefore false, because Tvhen one party had said thus, and the other answered thus, the Court in question had judged falsely of their allegations by deciding in such words ; and that the Court had given such false Judgment by the mouth •of N. ; and, if he were disposed to deny the present charge, the other was prepared to prove it against him, chiefly by such proper witness, who vp-as ready to enter upon the proof. Thus may the matter, and 1 " By the Duel," omitted by Harl. Bodl. and Dr. Milles's MSS. although from the context, it must be understood. Digitized by Microsoft® 172 that very properly, be decided by the Duel.^ But^ whether such Court is obliged to defend itself by one of its own members, or may have recourse to a stranger, may be questioned ? It ought, indeed, to defend itself chiefly by the per- son who has passed the Judgment • ^ and, if the Court should be convicted of the charge, the Lord of the Court shall be amerced to the King, and shall for ever be deprived of his Court. Besides which, the whole Court shall be amerced to the King. But, if the person bringing the charge forward should fail in his proof, he shall thereby lose his principal suit. A Court may also have a liecord, by the indulgence of the Prince. Thus, if the King, influenced by some reasonable motive, should cause any Court to be sum- moned to make a Record in his Court; so that the King chuses, that such Eecord shall not be contra- dicted. Courts are frequently summoned to have a Record of some particular suit before the King, or his 1 The liberty of falsifying a Judgment was allowed by the Assises of Jerusalem. But the person, availing himself of this dangerous privilege, seems to have beeo obliged to fight all the persons composing the Court, not merely the Judges, but the Sailors, one after the other. Under these circumstances, the jirivilege would, probably, not often be claimed. (Assis. de Jerusalem, c. 111.) 2 See Mirror, c. 3. s. 23. A Judge, who had given a false Judgment, is heavily fined to the King by the Laws of Edgar, unless lie dared confirm upon his oath, that he knew not how to pass a better sentence. (LL. Edg. o. 3.) By the Laws of the Conqueror, such Judge lost his ivere, unless he could excuse him- self by the same means. (LL. Gul. Conq.c. 15.) By the Laws of Alfred, he was, after having made satisfaction to those he had injured, to forfeit the remainder of his goods to the King, &c. &c. (Mirror, c. 4. s. 18.) Digitized by Microsoft® 173 Justiees, although they have not from this circumstance any Eecord but what may be contradicted ; because, by the consent of the parties, the suit may be pro- ceeded in upon that Eecord. If they agree as to the Eecord, the Summons may be made, by a writ of the following description CHAP. X. " The King to the Sheriff, Health. I command you, ^' that you cause to be recorded in your County Court, " the suit which is between such and such persons, of " so much Land, in such a Yill ; and have the Eecord of " that suit before me, or my Justices, at such a day,^ by " four Lawful Knights, who were present at the mak- " ing of such Eecord — And Summon, by good Sum- "moners, the party claiming the Land, that he be then " there with his Plea ; and the party who holds " the Land, that he be then there to hear it.'' And " have, &c." CHAP. XI. Inteeioe Courts have also Eecords concerning things transacted in them, which are received as such in the King's Court. This happens when a Lord ^ has a Plea in his Court, concerning which a reasonable difficulty 1 Terminum — Vide ante, p. 22. not. 2. 2 The Record— Bo&\. and Dr. Milles's MSS. 2 Baro — hoc est rdbur beli, says Bracton. The term was for- Digitized by Microsoft® 174 arises, and the Court is incompetent to determine it. On such an occasion, the Lord himself may adjourn his Court ^ into the King's Court, in order to have the advice and assent of the latter, in determining what is proper to be done. The King, indeed, owes this assist- ance to his Barons, who may on such an occasion, as a matter of right, adjourn their Courts into the King's Court, in order to obtain from the skilful men who preside there, that advice they stand in need of. But, when they have been certified in the King's Court, concerning the doubtful point, they may return Avith the Suit, resume the consideration of it, and finally determine it in their own Court.^ The County Court has a Record, as to the giving and receiving pledges there, and of similar matters. meily used in a variety of senses. — I shall mention some of them — a Man, a hired Soldier, an Officer, a Tenant, a lesser Tenant in. chief, a greater Tenant in chief, a Noble, an Ecclesiastical Digni- tary, a greater Vassal of an Earl or Prelate, a Knight, a Hus- band , an Eldest Son, a Burgess, a Citizen, a Robber, &c. (Vida Spelm. Gloss, ad voc. Cowell's Interp. Craig. Jus. feud. L. 1. Dieg. 13. s. 15. 16. 2 Inst. 5.— Madox's Excheq. c. 5. s. 1. Index to Anglo-Sax. LL. Ed. Wilkins, voc. Bare — and authorities re- ferred to bj' such authors.) 1 Suit, instead of Court, according to Harl. and Bodl. MSS. 2 Lords, at first, had but a domestic Jurisdiction, in order to compel their Tenants' Services, and to maintain peace and order amongst them. Afterwards, in imitation of the Sovereign's Court, Lords caused Records to be made before their own officers of the transactions which had taken place in their Courts. But, as these Records derived their chief or rather only strength, from the parties voluntarily submitting to them, the authority of the Lords was gradually weakened ; and, as murmurs began to increase against the decisions of their Courts; a reference to the King's Court became the only resort of the Lords. (Traites sur les Coutumes Anglo-Normandes par M. Houard, p. 507. Tom. 1.) Digitized by Microsoft® ifloR OF HOMAGES, AND RELIEFS, AND SERVICES, AND AIDS, AND OF PURPRESTURES, AND BOUNDARIES DISTURBED. CHAP. I. It remains to resume the subject of performing- ■ Homages,^ and receiving Reliefs.* Upon the death of 1 Homage, tlie result of the Feudal System, was unknown to the Romans ; and Spelman thinks, it was unknown to the Anglo Saxons. (Reliq. p. 34.) However that may be, William the Con- queror is stated to have received it from the Nobles, immediately after the Battle of Hastings. (M. Paris. ) It is generally derived from the word homo, which, as well as our synonymous term man, Spelman asserts, to have been used for many ages by the German and "Western Nations, for a servant or vassal. (Spelm. ubi supra — sed vide Co. Litt. 64. b.) Homage is divided into liege and feudal : the former was due to the King, the latter to the Lord, of whom the Tenant held his Fee. " The reason of Hom- " age, says Spelman, was to preserve the memory of the tenure, " and of the duty of the Tenant, by making every new Tenant at " his entry to recognise the Interest of his Lord, lest that the " feud, being now hereditary, and new Heirs continually suc- " ceeding to it, they might by little and little forget their duty " and subtracting their services deny at last the tenure itself." (Spelm. Reliq. 34.) On Homage in general see Bracton 78. b. et seq. Fleta 1. 3. c. 16. Littleton's Tenures and Lord Coke's Com- ment. Craig, Spelman, Sullivan, Assises de Jerusalem c. 205. &c. &c. &c. ^ Relief— quia hereditas, quae jacens fuit per antecessoris de-- cessum, relevatur in manus heredum et propter factam relevatio- 175 Digitized by Microsoft® 176 the Father, or any other Ancestor, the Lord of the Fee is bound, from the first, to receive the Homage of the Eight Heir, whether the Heir has attained his full age, or not, if he be a Male. For, Females cannot by Law perform any Homage,^ although, generally speak- ing, they are to do Fealty to their Lords. nem facienda erit ab herede quoedam prcestatio, quce dicitur rele- vium. (Vide Bracton 84. et Fleta 1. 3. c. 17. h. 1.) Among the Laws of Edward the Confessor, there is a singular one, respect- ing the Relief of a Tenant who fell in battle. (LL. Edw. Conf. c. 35.) It must, however, be observed tliat Spelman questions that Law, and strongly contends, that Reliefs were not in use among the Saxons. (Reliq. p. 31.) The Reader will find that point controverted in the preface to Wilkins's Anglo Sax. LL. p. '9. The Reader, if desirous of extending his enquiries on Reliefs in general, may consult Bracton 84. et seq. Fleta L. 3. c. 17. Co. Litt. 76. a. 83. a. Black. Com. Sullivan, Craig, Spelman &c. &c. &o. 1 " Glanville,'' observes Lord Coke, " saith, that Women " shall not do Homage : but Littleton saith, that a Woman " shall do Homage, but she shall not say, Jeo devigne voire feme, " but Jeo face a vous homage ; and so is Glanville to be under- " stood, that she shall not do complete Homage." (Co. Litt. 65. b.) Having cited this passage, a noble Historian observes " But " I should rather think, that in Glanville's time single women " did none, and that the alteration in the form, which is men- " tioned by Littleton, was an expedient found afterwards to ob- ■" viate the objection of an indecency in their Homage : as it " was also in the case of Ecclesiastics." (3 Litt. Hist. Hen. 2. p. 339. ) Skene gives a reason for the rule as laid down by Glan- ville : because Homage especially concerns service in war, (de verb. sign, ad voo. homagium.) He also remarks, that conse- crated Bishops did no homage. The reason, says Cowell, may be all one. (Interpreter) But Craig. (Jus. Feud. 1. 11. 10.) and the Regiam Majestatem (L. 2. c. 60.) expressly coincide with our Author. Indeed, if any doubt could possibly exist, concerning the unconditional meaning of the passage in the text, it would be silenced by the latter part of the present chapter. Having made use of the expression liber homo, our author pointedly adds, masculus, as if solicitous to prevent any possible misconception, €specially that very misconception Lord Coke seems to have Digitized by Microsoft® 177 But, if they are married, their Husbands ought to do Homage to their Lords for their Fees ; I mean, if Homage be due in respect of such Fees. If, however, the Heir be a Male and a Minor, the Lord of the Fee is not entitled by Law to the Custody, either of the Heir, or his Inheritance, until he has received the Homage of the Heir ; because, it is a general principle, that no one can exact from an Heir, whether he is of age, or not, any service, consisting in a Kelief or other- wise, until he has received the Homage of the Heir, in respect of that Tenement, for which the service is claimed. But a person may perform Homage to sev- eral Lords on account of different Fees ; but, of these Homages, one should be the chief, and accompanied with allegiance,^ and this must be made to the Lord, from whom the person performing Homage, holds his Chief Estate. Homage ought to be done in this form, namely, the party performing it shall so become the fallen into, which is likewise refuted by a custom mentioned by Lord Littleton. " From the obligation laid on the Husband to " do Homage for the wife, it naturally followed, that the Barony " of a wife, as well as every other Fief requiring Homage, was " in effect made over to the Husband ; and, therefore, in those " days many Barons came to Parliament in right of their wives, " and by virtue of their marriage, were accounted Peers of the "Realm. It has been observed, in this History, that the same " notion extended to Dukedoms and Principalities in many parts " of the Continent." (Litt. Hen. 3. p. 339.) 1 We have observed, that homage was divided into, liege and feudal : it was also divided into, liege and not liege, which di- vision corresponds with the other. Liege is borrowed from the French, as Thaumas informs us. (Cout. de Beauvoisis p. 255.) and seems to have meant a service that was personal and inevi- table. (Traites Sur Les Cout. Anglo-Norm, par Houard. p. 511. Tom. 1.) 12 Digitized by Microsoft® 178 Man of his Lord, that he shall bear faith to him for the Tenement in respect of which he does Homage/ and shall preserve the Lord's terrene Honor in all things, saving the faith due to the King,^ and his Heirs. From this it is evident, that a Vassal cannot injure his Lord, consistently with the Faith implied in Hom- age ; unless, possibly, in his own defence, or unless, in compliance with the King's precept, he join his Army when it proceeds against his Lord ; and, generally speak- ing, no one can by Law, consistently with the Faith im- plied in Homage, do any thing which tends to deprive his Lord of his Inheritance, or to aifix a personal stain upon him.2 If, then, a Tenant has in respect of several Fees done Homage to different Lords, who af- terwards make war on each other ; and the Chief Lord should command the Tenant to accompany him in person against another of his Lords, he ought to yield ^ In performing Homage, the Tenant was to name and specify the particular Tenement, on account of which he did Homage, in order that the Lord might not be imposed upon. (Britton 174. Mirror c. 3. s. 36.) 2 " Intlie year 1152, the Emperor Frederic Barbarossa made a " Statute, that in every oath of fealty taken to any of his sub- " jects, there should be a reserve of the faith due to him and his " successors ; which immediately was adopted by several other " nations, where the feudal Law was in use, with regard to their " sovereigns, and, the omission of that reserve was punished " in England by a jvidicial determination under Edward the " first." (3 Litt. Hen. 3. p. 111.) This reserve was also re- quired by the Book of Feuds L. 3. t. 55. Eegiam Maj. L. 3. and Grand Cust. Norm. 5 Vide Min'or c. 4. s. 10. and 11, and Le Grand Cust. de Norm, c. 14. Digitized by Microsoft® 179 obedience to this Mandate, saving however the service due to the other Lord for the Fee held of him. From -what has gone before it is evident, that if a Tenant should do anj^ thing to the disinherison of his Lord, and should be convicted of it, he and his Heirs shall according to the Law for ever lose the Fee held of such Lord.i The same consequence will follow, if the Tenant lay violent hands on his Lord to hurt him, or to commit any atrocious injury upon hira, and this be lawfully proved in Court against the Tenant. But, it may be asked, whether any one can be compelled in the Lord's Court, to defend himself against the Lord from such charges ; and whether his Lord can, by the Judgment of his own Court, distrain the Tenant so to do, without the Precept of the King, or his Justices, or Avithout the King's Writ, or that of his Chief Justice ? The Law, indeed, permits a Lord by the Judgment of his Court to call upon and distrain his Homager to appear in Court, and, unless he can purge himself against the charge of his Lord by three persons, or as many as the Court should award, he shall be amerced to the Lord, to the extent of the whole Fee that he holds of him. It may also be enquired, whether a Lord can distrain his Homager to appear in Court, and answer for a serv- 1 As the Tenant could not injure his Lord, neither could the Lord injure his Tenant. If the violation of this obligation was punished on the Tenant's part, by the loss of his Tenement, the Lord, when the Aggressor, lost his Dominion. (Fleta L. 3. c. 16.) Digitized by Microsoft® 180 ice, of which the former complains the Tenant has deforced him, or of which some part is unpaid ? The Lord, indeed, by Law may well do so, even without the precept of the King, or his Justices. And thus the Lord and his Homager may proceed to the Duel, or the Grand Assise, by means of one of the Peers,! who chuses to make himself a "Witness ^ of the fact, as having seen the Tenant himself, or his Ances- tors, perform such service for the Fee in dispute to the Lord or his Ancestors, and is prepared to prove the fact. But, if the Tenant be convicted of this charge, he shall by Law be disinherited of the whole Fee. which he holds of his Lord. If, however, any one is unable to constrain his Tenants, it then becomes neces- sary to have recourse to the Court.* Every free Male person may perform Homage, whether of full age, or otherwise, whether a Clergyman or Layman. But con- secrated Bishops are not in the habit of doing Homage to the King, even for their Baronies ; but merely Fealty, accompanied with an oath. But Bishops elect 1 Parium. Vide 2 Inst. 42. Spelm Gloss, ad voc. —Pares enim sunt cum unus aliis non subditur Hommagio, Dominatione, vel Antenatione. Hommagio ut Homo subditur Domino suo cui fecit HomTnagium, Dominatione, ut Homo subditur uxoris domino et ejus primogenito filio : et omnes postnati ratione antenationis. (Grand Custum. de Norm. c. 126.) 2 This differed from the Norman code, which, in a tone of haughty despotism, released the Lord from the necessity of ad- ducing any testimony. Vox enim sola Domini Curiae in iis quce adipsum,pertinentsufficit adaccusationem subditorum. ^Grand Oust. c. 136.) Perhaps a worse principle never disgraced an Eastern code. » That is, the King's Court. Digitized by Microsoft® 181 are accustomed to do Homage, previous to their Con- secration.i CHAP. II. But Homage is due only for Lands, free Tenements, Services, Rents in certain, whether in Money, or in other things. But, in respect of Dominion ^ alone. Hom- age ought not to be rendered to any one, except to the King. Yet Homage is not always performed for everv species of Land. Thus, it is not due for Land in Dower, nor for free Marriage-hood, nor from the Fee of Younger Sisters holding of the Eldest, Avithin the third descent on both sides ^ ; nor is it due from a 1 " Pope Paschal the 2nd," observes Lord Littleton, " allowed " the Bishops elect to do Homage, and take the oath of Fealty, " before they were consecrated. This was confirmed by the Con- " stitutions of Clarendon, of which a particular account will be " given hereafter ; and, from the words of Glanville, it appears, " that about the end of Henry the 2nd's reign Homage was ac- " cordingly done by Bishops elect, but he tells us, that after they " ivere consecrated they took the oath of fealty. This was a " material difference from what had been settled by the consti- "tutions of Clarendon: and it is surprising, that we have no " account of it in the History of the Times." (Litt. Hen. 3. Vol. 3. 113.) 2 Pro Domino is the expression of the text, which I have dis- regarded — but have preferred, what, I submit, must be the true reading, pro Dominio, for so Bracton has it in a passage corrobo- rative of the doctrine of the text. (79. b. ) And with this concurs the Eegiam Majestatem : " Homage is not made to any man for " his hand of maintenance, but only to the King." (L. 2. c. 65.) ^ See Co. Litt. 67. a. The tenure oi parage among the Normans, which seems to have possessed some features in common with that alluded to in the text, required fealty to be done by the Younger to the Elder branch at the sixth, and Homage at the seventh, descent. (Grand Custum. de Norm. c. 30.) Digitized by Microsoft® 182 Fee given in Free-Alms, nor for any Tenement given in any way in Marriagehood, as far as concerns the person of the Husband of the Woman to whom the property belongs as her Marriagehood. CHAP. III. But Homage may be done to any free person, whether Male or Female, whether of full age or other- wise, whether Clergy or Lay. Yet should it be under- stood, that if a person has done Homage for a Tene- ment to a "Woman who afterwards marries any man, he shall be compelled to repeat it to her Husband for the same Tenement. But, if any one has by Concord made in Court recovered a Tenement against another who had previously paid a Relief for it to the Chief Lord, it may be questioned, whether the person so re- covering the Tenement ought to pay any Belief for it.^ CHAP. IV. Becipeocal, indeed, ought to be the Belation of Fidelity between Dominion and Homage.^ Nor does 1 He shall not pay any other Relief, says the Regiam Majesta- tem. (Vide L. 3. c. 67.) 2 The mutuality of obligation created by Homage is incul- cated, not merely by our own, but other writers. (Vide Assises de Jerusalem c. 99. Coutumes de Beauvoisis c. 58. Mirror c. 4. s. 11. BraetonlS. Fleta L. S. c. U. BHtton fo. IIO. a.) This has induced Lord Littleton (3 Hist. Hen. 2. 121.) and Mr. Wat- kins (Copyholds Vol. 1. p. 2.) to conclude, that the Feudal Sys- tem was abhorrent from Tyranny, originated in freedom, and ceased to be free only when it was corrupted. Digitized by Microsoft® 183 the Tenant owe more to his Lord, in respect of Hom- age, than the Lord owes to the Tenant on account of Dominion, Keverence alone excepted. Hence, if one person give to another any Land in return for Service and Homage, which is afterwards recovered against the Tenant hy a third person, the Lord shall be bound to warrant such Land to him, or to return him an adequate equivalent. It is different, however, with respect to him who holds a Fee of another, as his In- heritance, and, in this character, has done Homage ; because although he lose the Land, the Lord shall not be bound to give him an equivalent.^ In the case we have formerly mentioned, of the death of the Father or Ancestor, leaving an Heir, a Minor, the Lord of the Fee has no right to the Custody of the Heir, or his Inheritance, unless he has first received the Homage of the Heir. But the Homage having been received, the Heir, with his Inheritance, shall continue in the manner before mentioned, in the Custody of his Lord, until he has attained his full age. Having at last arrived at such age, and received restitution of his Inheritance, he shall, by reason of his having been in Custody, be exempt from the payment of any Relief.^ But a 1 The Text seems to allude to Homage auncestrel, and point- edly to inculcate an opposite doctrine. Yet, Lord Coke refers to this identical chapter of Glanville, in support of the doctrine of Homage Auncestrel ! ! (Co. Litt. 101. a.) The Reg. Maj. is rather more consistent with itself, but assists us not materially. " But it is otherwise to be understood of him who has Lands as " free Heritage, for the which he is not obliged to make Hora- "age: for, although he lose that Land, the over-Lord giver " thereof is not obliged to warrant the same.'' (L. 3. c. 67.) 2 Similar is the doctrine of the Grand Norman Custumary c. 33. Digitized by Microsoft® 184 Female Heir, whether she has attained her full age, or not, shall remain in the Custody of her Lord, until, with his advice, she is married.^ If, however, she was within age, when the Lord received her into Custody, then, upon her marriage, the Inheritance shall be dis- charged from the Eelief, so far as respects herself and her Husband.^ But, if she was of full age at that time, although she continue some time in her Lord's Custody before she is married, her Husband shall pay a Relief. When, however, the Relief has been once paid by the Husband of a Woman, it shall exempt both the Hus- band and the Wife during their several lives from paj''- ment of another Relief, on account of such Inheritance ; because, neither the Woman herself, nor her second Husband, if she should espouse a second upon the death of the former, nor her first Husband, should he survive her, shall again pay a Relief for the same Land. But when a Male Heir is left of full age, and known to be the Heir, he shall hold himself in his Inheritance, as 1 Si autem fcemince in Oustodia fuerint, cum ad annos nubiles pervenerint, per consilium et licentiam domini suiet consilium et conse.nsum ainicorum suoruni et consanguineorum propinquorum prout generis nobilitas et feudorum valor reqiiisierint debent maritari, et in contractu matrimonii debet iis feodum custodiali- berari. (Grand Norm. Cust. c. 33.) 2 Fleta enumerates the instances in which Reliefs were not to be paid. 1. None was payable for a Fief, acquired by any species of purchase. 2. Nor on a change of the Lord. 3. Nor was a Tenant for life only, to pay a Relief. 4. Nor any man who ]narried a woman who had been in custody — but this differs from the Text. 5. Nor any one from whom his Lord had re- ceived a remuneration, on account of custody. 6. Nor any one who had once paid a relief for his Estate. (Fleta L. 3. c. 17. s. 5. et seq. ) Digitized by Microsoft® 185 we have formerly observed, even though his Lord be unwilling, provided he make a Tender to his Lord, as he ought to do, of his Homage, and reasonable Relief,' in the presence of creditable persons. A person's Relief is said to be reasonable, with reference to the Custom of the Realm, according to which the Relief of a Knight's Fee is one hundred Shillings,^ whilst that of Land in Socage is one Year's Yalue.^ But as to Bar- onies* nothing certain is enacted,^ because Barons holding of the King mj. CapiU are accustomed to pay their Reliefs to the King, according to his pleasure, and indulgence.^ The same Rule prevails as to Ser- 1 Beliefs were in many parts of Normandy certain and fixed : tlius a Knight's fee, or, as it is tliere termed, /eifdw?)!. loricoe was five pounds, a barony one hundred pounds, land twelve pence an acre, and woody ground 6d. (Grand Oust. c. 34.) 2 Now, as a Knight's fee was valued at £30, the sum mentioned in the text was & fourth of it. 3 It appears to have been thus settled by a Law of the Con- queror. (LL. Gul. Conq. c. 40. Ed. Wilkins.) This, as Mr. Wat- kins observes, seems to have been no more than accounting to the Lord for the profits of that year, for which lie might under certain circumstances, have retained the Lands. (Treat, on Copyh. 1. 231.) * Dr. Sullivan accounts for the advantage which the Knights had obtained, when compared to the great Barons, in having their Reliefs reduced to a certainty, from the number of the Knights who made the strength of the Kingdom and were not to be disobliged ; and also from the precarious situation many of the great Lords were in, who had been attached to the cause of Stephen. (Lectures p. 109.) * Statutum. "From the word stafuf urn," says Dr. Sullivan, commenting upon the Text, " I take it for granted, this change " of Reliefs into money was by Act of Parliament." (Lectures p. 290.) * This was remedied by Magna Carta cap. 2. The Reader may consult Lord Coke's comment on the words antiquum relevium, Digitized by Microsoft® 186 jeanties.i If, however, the Lord will neither receive the Homage nor reasonable Relief of the Heir, then, the latter should safely keep the Eelief, and frequently- tender it to his Lord, by the hands of respectable persons. If the Lord will by no means receive it, then, the Heir should make complaint of him to the King, or his Justices ; and shall have the following Writ. CHAP. V. " The King to the Sheriff, Health.2 Command N. " that, justly and without delay, he receive the Hom- " age, and reasonable Relief of R. concerning the free " Tenement which he holds, in such a Vill, and that he " claims to hold of him ; and, unless he does so, sum- " mon him by good Summoners, that he be before me " or ^a^^ Justices on such a day, to shew why he has " not done it. And have there the Summoners, and " this "Writ. Witness &c." CHAP. VI. As to the proceedings which are to be resorted to, in case the Lord should not obey this Summons, and the ■where he endeavours to prove, the ancient Relief was certain. (2 Inst. 7. and 8.) Lord Coke, in support of his position, cites a MS. in tlie Library of Archbishop Parker, which seems almost word for word to coincide with the Laws of the Conqueror. (LL. Gul. Conq. c. 23. 23. 24.) This is the more remarkable, as his Lordship cites from a MS. merely, without describing the nature of it. i Vide Co. Litt. 105. b. and Bracton 84. a. 2 Vide Co. Litt. 101. a. Digitized by Microsoft® 187 means by which he shall be distrained to appear in Court, they may be collected from the former part of this Treatise. When, at last, he appears in Court, he will either acknowledge that the Tenant is tlie right Heir, or deny that he is the Heir, or he will doubt, whether he is the right Heir or not. If he should acknowledge him to be the Heir, he will, then, either deny that the Tenant has tendered him the Homage and reasonable Belief, or he will admit it. If he con- fess both the one and the other, he shall either imme- diately receive the Tenant's Homage and reasonable Eelief in Court, or he shall appoint him a fit day for doing it. The same observation may be made, although he deny that the Tenant has proffered to him his Hom- age or Eelief, provided he admit the Tenant to be the Heir. But if in decided terms he denies the Tenant to be the Heir, then, indeed, may the latter, if out of possession, require against his Lord an Assise de morte Antecessoris sui. Should the Tenant, however, happen to be in possession, he may hold himself in it, and pa- tiently await, until it pleases his Lord to accept his Homage ; because, no one is previously bound to answer his Lord as to the Eelief, until the latter has received his Homage for the Fee, on account of which Homage is due to him. But if the Lord doubts, whether the person tendering the Homage be the right Heir or not,^ being for example unknown to the Lord himself, 1 Fleta tells us, that an examination ought to precede the Homage, in order to ascertain, whether the person offering him- self, was the natural Son of the man to whom he made himself Heir, both with respect to the right of possession, and of pro- Digitized by Microsoft® 188 or even to the Vicinage in the character of Pleir, then the Lord of the Fee may take the Land into his own hands, and retain it, until the point be fully cleared up, a course of proceeding, which the King generally adopts with respect to all his Barons holding of him in Cajpite. For, upon the death of a Baron holding of him in chief, the King immediately retains^ the Barony in his own hands, until the Heir has given security for the Eelief, although the Heir should be of full age. But Lords, for a reasonable cause, may sometimes post- pone receiving Homage and Belief for their Fees. Suppose, for Example, another person, than the one who asserts himself to be the Heir, should claim a right in the Inheritance. During the pendency of this Suit, Ploraage ought not to be received, nor a Belief given. Or, if the Lord think that he himself has a right to hold the Inheritance in his own Demesne. priety &c. &c. that the Lord might not inadvertently be deceived. (L. 3. c. 16. s. 23. 24.) 1 The Reader ■will observe the expression, the King retains, whilst an inferior Lord seises or takes, the fee into his liands. In nianum regis delapsa est is the expression of Dial, de Scacc. speaking of a fee held in chief, upon the death of its owner. (L. 2. c. 10.) But a passage in Mr. Madox's Hist, of the Excheq. serves to throw still more light on the text. " Every Honor " originally passed from the King, and, upon every change, by " death, or otherwise, returned to the King again, and remained " in his hand, until he commanded seisin of it to be delivered to " his Homager, according to the custom of noble fiefs." As the Law. by the magic of a fiction, cast the Inheritance on the King the moment his Tenant in Capite died, it was merely necessary for him to retain it — whilst the Law, not interfering on behalf of an inferior Lord, obliged him to seise the Land. Digitized by Microsoft® 189 And if in such case he should, by force of the Kind's Writ or that of his Justices, implead the person in possession, the Tenant may put himself upon the King's Grand Assise, the form of which proceeding is explained in the second Book, unless in some re- spects there should be a variation, an Example of -whicn we have in the following "Writ for such purpose — CHAP. YII. " The King to the Sheriff, Health. Summon, by "good Summoners, four lawful Knights, from the " Neighbourhood of such a Yill, that they be before " me, or my Justices, on a certain day there to elect, " upon their oaths, twelve &c. who better know the " truth of the thing, and will say, for the purpose of "making a Eecognition, whether JV. has greater right " of holding one Hyde of Land in that Vill of I. or " whether Ji. of holding it in his Demesne, which the "said Ji. claims by my "Writ against the aforesaid JV. " and of which iV. who holds the Land, hath put him- " self upon my Assise, and prays a Recognition to be " made, whether he has greater right of holding that " Land in his Demesne or the aforesaid JV. of holding " it of him : And summon, by good Summoners, the " aforesaid ]V. who holds the Land, that he be then "there to hear that Election. And have there., &c. " Witness, &c." Digitized by Microsoft® 190 CHAP. VIII. But after it has been settled between tbe Lord and the Heir of the Tenant concerning the giving and re- ceiving of the reasonable Relief, the latter may exact reasonable Aids from his Homagers.^ This, however, must be done^ with moderation, keeping in view the extent of their Fees, and the circumstances of the Ten- ants, least they should be too much oppressed, or lose their Contenement.^ Eut nothing certain is fixed, con- cerning the giving or exacting Aids of this descrip- tion, unless that the form we have mentioned should 1 " Aids were, at first, benevolenoies of the Vassals, and were " given during the great festivity, or the great necessity of the " Lord upon three occasions — to wit — wlieu his Son was kniglited, "when liis Daugliter was to be married, and when liis person " was to be ransomed : but what originally flowed from regard, " Superiors soon changed into a matter of duty, and on a gratui- " ty erected a right.'' (Dalrymp. on feuds, p. 52.) — Speaking of aids, Mr. Madox informs us, that King William the First took 6s. of each Hyde through England — King Henry the Fii-st took 3s. for esLchliyde, AS aid pur fille marier. But he adds, that, for want of requisite notices, he could not speak distinctly of them. (Hist. Exch. c. 15. s. 1.) The Reader may also be referred to Traites sur les Coutumes Anglo-Norm, par M. Houard. 1. 265. 518. 2 By the Norman Code it was fixed at half the Relief paid by the mesne to the Chief Lord. (Grand Cust. c. 35.) ^ Contenementum, a word of frequent recurrence in the old Books and Statutes. " Mr. Selden in his table talk says, that the " word confe)ieTOe)i/i;?)i. signifies the same with countenance, as " used by the country people, when intending to receive a person " with hospitality, they say — I icill seeyou u-ith the best conntc- " nance. So that the meaning of Magna Carta (where this word "occurs) is, a man shall not be so fined, but that he may be able "to give liis neighbour good entertainment.'' (Barr. Ano. Stat. p. 13. See also 4 Bl. Comm, 378.) Digitized by Microsoft® 191 be inviolably observed. There are also other cases, in which a Lord can exact from his Homagers similar Aids, observing, however, the principle we have laid down : as if his Son and Heir should be made a Knight, or if he should marry off his Eldest Daughter.^ But, ■whether Lords can exact these Aids to maintain their own "Wars, is doubtful. The opinion that prevails is, that they cannot by right distrain their Tenants for such purpose, unless so far as the Tenants may feel dis- posed. But, "with respect to the rendering of reason- able Aids, Lords may of right, without the King's pre- cept, or that of his Justices, but by the Judgment of their own Court, distrain their Tenants by such of their chattels as may be found within their Fees, or by their Fees, if necessary ; provided the Tenants are dealt with according to the Judgment of the Court, and con- sistently with the reasonable Custom of it. If, there- fore, a Lord may thus distrain his Tenants ^ to render 1 Aid and relief do not always appear to be used by the old Books, in different senses. Speaking of the aids, mentioned in the present passage of the text, the Norman Code says, Hujus- modirelevia in quibusdam feodis dimidio relevio equalia : et in quibusdam feodis decern solidos. Hence, the ancient custom was to be followed. (Le Grand Oust, de Norm. c. 35. ) When Bracton wrote, these aids were considered as matter of grace, rather than of right, being, as he terms them, customs, not services, and personal to the Tenant, not praedial. (36. b.) Judge Black- stone notices the great resemblance, which, in the particular of aids, the Lord and Vassal of the Feudal Law bore to the patron and client of the Roman Law : the patron being entitled totliree aids from liis client, viz. to marry his Daughter, to pay his Debts, and to redeem his person from captivity. (2 Com. 63.) Gene- rally, see Co. Litt. 70. a. and Mr. Hargrave's note 1. 3 Inst. 231. 232, and Mirror, c. 1. s. 3. 2 Homagers. Bodln. MS. Digitized by Microsoft® 192 such reasonable Aids, much stronger is the argument in favor of its being lawful for him to distrain in the same manner for a Eelief, as also for any other service necessarily due to him, in respect of the Fee. But if a Lord is unable to compel ^ his Tenant to render his services or Customs, then recourse must be had to the Assistance of the King, or his Chief Justice, and he shall obtain the folio winff Writ — CHAP. IX. " The King to the Sheriff, Health.^ I command "you that you adjudge N. that, justly and without " delay, he render to R. the Customs and right Serv- "ices which he ought to render him, for the Tenement " that he holds of him, in such a Yill, as can be reason- " ably shewn to be due to him, least he again complains "for want of right. "Witness, &c." CEAP. X. "When the Plea proceeds by virtue of this "Writ, the complainant shall, in the County Court, and before the Sheriff, recover his services, whether they consist in 1 Justiciare. Justiciatio, says the Norman Code, est coarctatio super aliquem facta, utjuripareat. Having given this defini- tion, it goes OTi to observe, that it ought not to precede, but fol- low the offence — that there were three things that authorised it — transgressio termini prefixi — eontemptus justidoe, and irro- gatio Injurice. We learn fi'om the same source, that this Justi- ciatio was by distraining the goods, or the Fee, or by taking the body. (Le Grand Custum. de Norm. c. 6.) 2 F. N. B. 337. Digitized by Microsoft® 193 Beliefs or other things, according to the Custom of the County Court. And, if he should prove his right, the Adverse party shall render the reasonable Eelief to his Lord, and shall, in addition, be amerced to the Sheriff ; it being a general principle, that the Amerce- ment which results from every suit, which has been carried on and determined in the County Court, be- longs to the Sheriff. The amount of it, indeed, has been ascertained by no general Assise,' but is regulated by the Customs of different Counties ; in one County more, in another less. CHAP. XI. It follows that Ave speak concerning Purprestures. A Purpresture, or more properly speaking, a Porpres- ture,2 is when any thing is unjustly encroached upon ; ^ against the King ; as in the Eoyal Demesnes, or in ob- structing public ways, or in turning public waters from 1 " By the general Assise or Assembly," meaning the Parlia- ment, according to Judge Blackstone. 1. 148. 2 Purprestura vel Porprestura — " And because, it is properly, " when there is a House builded or an Enclosure made of any " part of the King's Demesnes, or of an Highway, or of a com- " mon street, or public water, or such like public thing, it is de- " rived of the French pourpris, which signifleth an enclosure." (Co. Litt. 277. b.) The term purpresture seems to have been un- derstood by our old Lawyers in three senses. 1st. as committed against the King, by a subject. 2d. as committed by a Tenant, against the Lord of whom he held his fee. 3d. as committed by one neighbour, against another. (Vide Craig. Jus. feud. L. 1. D. 16. c. 10. and L. 3. D. 5. s. 6. 7. Spelm. Gloss, ad voc. Cowell's Interp. Manwood's Forest Laws. p. 169. 176. Grand Norm. Cust. c. 10, &c. &c. and Traites sur les Coutumes Anglo-Norm, par Houard. 1. 387.) ^ Occupatur. " Occupationes," says Lord Coke, "are taken 13 Digitized by Microsoft® 194 their right course ; or when any one has built an Edifice in a City upon the King's Street. And, generally speak- ing, whenever a ISTuisance is committed affecting the King's Lands, or the King's High "Way, or a City, the suit concerning it belongs to the King's Crown. But Purprestures of this description are enquired after, either in the King's Chief Court, or before his Justices sent into the different parts of the Kingdom^ for the purpose of making such Inquisitions, by a Jury of the Place,^ or Vicinage. And if, by such Jury, a man be convicted of having made any Purpresture of this kind, he shall be amerced to the King to the extent of the whole Fee that he holds of him, and shall restore that which he has encroached upon ; and, if convicted of having encroached by building in a City upon the King's Street, the Edifices shall belong to the King; those, at least, which are found to be constructed within the Eoyal District ; and, notwithstanding, he shall be amerced to the King. " for usurpations upon the king, and, it is properly, when one "usurpeth upon the king, by using of liberties and franchises •' which he ought not to have ; and, as an unjust Entry upon the " king into Lands or Tenements, is called an intrusion, so an un- " lawful using of franchises or liberties is said an Usurpation ; " but ocoupationes in a large sense are taken for purprestures, " intrusions, and usurpations." (2 Inst. 272.) The Reader may also consult Dialog, de Soaoc. L. 2. s. 10. 1 Braoton tells us, that it was, in his time, an Article of the Eyre to inquire, de purpresturis factis super dominuvi Regem, sive inferra, sive in mari, sive in aqua dulci, sive infra liberta- tem, sive extra. (116.) See also 2 Inst. 272. 4 Chap. Stat, de Big- amis. Co. Litt. 293. b. 394. a. 2 Patrice. Vide Spelm. Gloss, ad voc. also 3 Bl. Com. 349. and 375. and Mr. Christian's Note. Digitized by Microsoft® 195 An Amercement ^ to the King is, when any one has been so far amerced, by the oaths of lawful Men of the Yicinage, as not to lose any part of his Honorable Contenement.2 When a person has made a purpres- ture against any other than the King, he will either have made it against his own Lord, or against another. In the former Case, if the offence come not within the Assise,^ then, the offender shall be distrained to appear in the Lord's Court, to answer concerning it — I mean, if he holds any other Tenement of the Lord. For this purpose the following "Writ shall issue CHAP. XII. " The King to the Sheriff, Health. I command you, " that you compel I^., that without delay, he appear 1 Having already spoken of Amercements, we shall here merely remark that in the reigns of William the Conqueror and his Son Eufus, they were no less immoderate, than oppressive. Henry the First was compelled, by the peculiar diflBoulties of his situa- tion, to make many concessions. — One of which was, that amercements should no longer be assessed, as they had been in his Father's and Brother's reigns, to the extent of the whole property of the offender, but should be proportionate to the crime — sicut retro a tempore patris mei et fratris mei in tempore aliorum antecessorum meorum. (LL. Hen. 1. c. 1.) If these words mean any thing, they imply, that Henry merely re- stored the Common Law, which his Father and Brother had vio- lated. How ill this concession was observed, we may conjec- ture, from its having been felt necessary to make it part of the great charter. (See 2 Inst. 27.) 2 V. Gul. Somn. Notas ad LL. 1. Cap. 1. p. 176. {Al. MS.) 8 Infra Assisam — That is, says Skene, within the time within which his Action should be pursued, or else to be holden as prescribed. (Reg. Maj. L. 2. c. 74.) Digitized by Microsoft® 196 " in the Court of /. his Lord, and there abide by the " right concerning his free Tenement, that he hath " encroached against him, as he says, least, &c. Wit- " ness, &c." CHAP. XIII. If the party be convicted of this offence in the Lord's Court, he shall irrecoverably lose the Tenement he holds of such Lord. But, if he hold no other Tenement of the same Lord, then, the latter shall implead him in the Court of the Chief Lord by a Writ of Right. In like manner, if any one commit an encroachment in this way upon a person, not being his Lord, and the case fall not within the Assise,^ the matter shall be decided by Writ of Eight. But, if the fact happen within the Assise, then, recourse must be had to a Eecognition of Novel Disseisin to recover possession, of which proceeding we shall presently speak. In Purprestures of this description, the Boundaries of Land are sometimes de- stroyed and encroached upon. In such case, upon a complaint being made in Court by any of the ISTeigh- bours, let the Sheriff be commanded, that a View of the Boundaries in question be taken in his presence by Lawful Men of the Yicinage, and, upon their oaths, that he cause the boundaries to be as they ought to be, 1 Infra Assisam — lawful time, says Skene, so that the Action of Novel Disseisin is not prescribed. (Reg. Maj. L. 2. c. 74.) Digitized by Microsoft® 197 and were accustomed to be in the time of King Henry the First : for this purpose, the following Writ shall issue CHAP. XI Y. " The King to the Sheriff, Health.^ I command " you, that justly and without delay, you make reason- " able divisions ^ between the Land of R. in such a " Yill, and the Land of Adam of Byre, as they ought " to be, and were accustomed to be, and as they were " in the time of King Henry, m^' Grandfather, of " which R. complains that Adam, unjustly and with- " out judgment, has encroached more than belongs to " his free Tenement of Byre, least I again hear com- " plaint for want of Justice. Witness, &c." 1 Vide F. N. B. 385. 2 Vide Ante p. 133. Note 1. Digitized by Microsoft® iooR |. OF THE DEBTS OF THE LAITY ARISING FROM DIFFER- ENT KINDS OF CONTRACTS, VIZ. FROM SALE, PUR- CHASE, GIFT, LOAN, BORROWING, LETTING OUT, AND HIRING ; AND OF PLEDGES AND GAGES, WHETHER MOVEABLE OR IMMOVEABLE; AND OF CHARTERS CONTAINING DEBTS. CHAP. I. Pleas concerning the Debts of the Laity also be- long to the King's Crown and Dignity. "When, there- fore, any one complains to the Court, concerning a Debt that is due to him, and be desirous of drawing the suit to the King's Court, he shall have the follow- ing Writ, for making the first Summons CHAP. II. " The King to the SherifiF, Health. Command W., •' that justly and without delay, he render to H., one " hundred Marks which he owes him, as he says, and " of which he complains that he has unjustly deforced " him. And, unless he does so, summon him, by good " Summoners, that he be before me or my Justices at 198 Digitized by Microsoft® 199 " "Westminster in fifteen days from the Pentecost, to " shew wherefore he has not done it. And have there "the Summoners and this "Writ. Witness, &c." CHAP. III. "We have suificiently explained the course of pro- ceeding to be adopted, in case of the absence of either of the parties, or of default, before the suit is entered upon. We should, however, remark that, it is not usual for the King's Court to compel any one by dis- training his Chattels to appear in Court, on account of any suit. In such a Suit, therefore, any one may by the Judgment of the Court be distrained by his Pee, or by attaching his Pledges, as is usually done in other suits. Both parties being present in Court, the Plaintiff may found his demand on a variety of causes. His Debt may arise either upon a Lending,^ or a Sale, or a Borrowing, or a Letting out, or a Deposit, or from some other just cause inducing a Debt. A Debt of the first description arises, when one per- son entrusts another with any such thing as consists in Number, or "Weight, or Measure.*^ "When one per- son so entrusts another, if he should receive back more 1 The Terms mutui, venditionis, commodato, locato, deposito, are evidently borrowed from the Civil Law. But vpe are not from hence to conclude, as Bishop Nicholson hastily did, that Glanville apes, as he expresses it, the Roman Code. (Scotch Historical Library, 255.) This, of all faults, is the least imput- able to the venex'able Glanville. — On the term mutuum see Note 1. p. 304. Infra. 2 vide Justin. Instit. L. 3. tit. 15. Digitized by Microsoft® 200 than he lent, he commits Usury ; and, if he die in such Crime, he shall, by the Law of the Land, be punished as a Usurer, of which, indeed, we have spoken more fully in the preceding pages.^ But when any thing is entrusted to another, it is, generally, confided upon the giving of Pledges : ^ sometimes, indeed, upon the putting things in Pledge : sometimes, under a solemn promise ; sometimes upon the Exposition of a Charter : and at other times upon the conjoined strength of many of these Securities. "When, therefore, any Debt is secured upon the giving of Pledges alone, if the principal Debtor should be so much reduced as to be incapable of discharging it, then, recourse must be had to the Pledges ; and they shall be summoned by the following "Writ CHAP. lY. " The King to the Sheriff, Health. Command iT., " that justly and without delay, he acquit B. of the 1 L. 7. c. 16. '^ The Norman Code divides Pledges into, simpUees, and debiti retinentes. An example of the former kind is the following^ Ego plegio A. quod reddat B. decern solidos. The effect of such a pledge was, that it ceased with the life of the person entering into it, and descended not upon his Heirs. Neither was there any difference, in this respect, if the pledge was given for the appearance of another in any suit. With respect to the latter kind of pledge, the Term was employed, when the person enter- ing into it made himself answerable for the Debt, and thus stood in the twofold capacity of Debtor and pledge. The effect of this seems to have been, to release the original Debtor, and to render the Representatives of the person entering into it liable to an- swer it. (Le Grand Custum. de Norm. c. 60. 89. 90.) Digitized by Microsoft® 201 " Hundred Marks against iV^., for which he became his " surety, as he saj^s, and of which he complains he has " not acquitted "him. And, unless he does so, summon " him, by good Summoners, &c." CHAP. Y. "When the Pledges appear in Court, they will either confess their Suretyship, or they will deny it. Should they adopt the former course, they are then bound ^ to satisfy the Creditor, at a conyenient time appointed in Court for such purpose ; or they are bound in a legal manner to prove, that they are discharged from such suretyship by payment, or by some other lawful means. But, if there are many Pledges, each of them is answerable for the whole Debt, unless it was other- wise stipulated when they became Sureties ; and they are all to be distrained to satisfy the Debt. Hence, if there were many Sureties, and one or more of them prove incapable of answering the engage- ment, the burthen of the Debt shall fall upon the others, either entirely, or to the extent of the Deficien- cy. But if, in becoming sureties for a person indebted, the Pledges assumed the responsibility of certain parts 1 The same Ruie is laid down in the Norman Code : but the subject is there treated far more diffusely. It seems, by that Code, to have been an obligation imposed upon the Homager, by his tenure, to become pledge for his Lord's Debts to the ex- tent of a year's Rent— to become pledge for his person, if in prison— for his prosecuting a suit, or appearing to it, &c. &c. (Grand Gustum. c, 60.) Digitized by Microsoft® 202 only, whatever may happen as to some of the Pledges, the others shall not be compelled to answer, except for their own proportion. From this it is evident that a dispute may sometimes arise between the Creditor and the Pledges — sometimes between the Pledges them- selves, if any one of them should allege that he had become the surety of the principal Debtor for a less sum, whilst, on the other hand, it is asserted that he became so for a greater. For when the Pledges are individuall3'- bound for certain parts, it follows of ne- cessity, that the Creditor himself must sue the one, who confesses to owe less upon his undertaking than he ought. But, should some of them become Pledges for the whole, some for certain parts, then, indeed, it will be requisite, that those who have become sureties for the whole should sue those who will only confess them- selves indebted in a less sum than they really owe. How these different points are to be proved, will be seen in the sequel. The Sureties, having discharged the Debt, may have recourse to the principal Debtor, should he afterwards acquire sufficient to repay them ; and this by an original Action of Debt, of which we shall presently speak. It should, however, be observed, that if a Man has become a Pledge for another's ap- pearance, and he should, in consequence of the default of his Principal, happen to be amerced, and in respect of it pay any sum, he cannot afterwards on this account recover any thing against him for whom he became Surety.^ Whoever, indeed, has become a Pledge for iThe Regiam Majestatem, on the contrary, lays it down, that Digitized by Microsoft® 203 another's appearance in any suit that belongs to the King's Crown, as, concerning the breaking of the King's peace, or otherwise, if he do not produce his Principal, he shall, as a consequence of his suretyship, be anierced to the King, of the nature of which we spoke on a former occasion. But the effect of this will be to liberate him from his suretj'^ship. Should, however, the Pledges deny in Court their Suretyship, then, if there were manj'' Pledges, either all of them will deny such suretyship, or some will admit, and some deny it. But, if some admit, and some deny it, then, there may be a Suit, as well be- tween the Creditor himself and the Pledges, as between those Pledges who confess, and those who deny their engagement, according to what we have previously ob- served. But, what shall be the proof required of those, be- tween whom the suit is to be conducted, is a question ? "Whether, for example, it should be made by the Duel, or by any other mode ; or whether the Pledges can, by the oaths of such a number of men as the Court may require, deny their undertaking? With respect to this point, some persons assert, that the Creditor himself, by his own oath and that of lawful "Witnesses, can by Law prove it against the Pledges, unless the Pledges will prevent him from the oath ; and this may now be done when the Demandant appears prepared he can recover, (L. 3. c. 1.) — a rule that is certainly more con- sistent with Justice. On the other hand, the Mirror coincides with the text. (c. 3. s. 24.) Digitized by Microsoft® 204 to take the oath, though formerly it ought to have been done before the Law was waged. Thus in such case the Duel may be resorted to. CHAP. YI. A Loan ^ is sometimes made, upon the Credit of a putting in Pledge. When a Loan of this description takes place, sometimes moveables, as Chattels, are put in pledge: sometimes immoveables, as Lauds and Tenements, and Rents, whether consisting in Money, or in other things. When a Compact is made between a Creditor and Debtor, concerning the putting any thing in pledge, then, whatever be tne mode of pledging, the Debtor upon his receiving the thing lent to him, either immediately delivers possession of the Pledge to the Creditor, or not. Sometimes also a thing is pledged for a certain period, sometimes indefinitely. Again, sometimes, a thing is pledged as a Mortgage, sometimes not. A pledge is designated by the Term Mortgage,^ when the fruits and Eents, which are 1 Mutuum — quia, ita a me tibi datur, ut ex meo tuum fiat. (Jus- tin. Instit. L. 3. t. 15.) Vinnius terras this bellaallusio, non vera voeis originatio. Dr. Wood observes, as to the Term itself, it hath no one particular name in the English language. 2 With this explanation the Regiam Majestatem (L. 3. o. 2.) and the Orand Norman Custumary (c. 113.) literally coincide — though it differs from that given by Littleton, and followed by Coke, Craig, and Blackstone. (Co. Litt. 205. a. 2 Comm. Bl. 157. Craig. Jus Feud. L. 2. D. 6. s. 27.) What is the more remarkable, Lord Coke expressly contrasts the mortuum vadium, to the vivum Digitized by Microsoft® 205 received in the interval, in no measure tend to reduce the demand for which the pledge has been given. When, therefore, moveables are put in pledge, so that possession be delivered to the Creditor for a cer- tain period, he is bound to keep the pledge safely, and neither to use it, nor in any other manner employ it, so as to render it of less Value. But should it, whilst in Custody and within the Term, suffer deterioration, by the fault of the creditor, a Computation shall be made to the extent of the detriment, and deducted from the Debt. But, if the thing be of such a descrip- tion that it necessarily requires some expence and cost, for Example, that it might be fed or repaired, then the stipulation of the parties on that subject shall be abided by. In addition — ^Yhen a thing is pledged for a definite period, it is either agreed between the Cred- itor and Debtor, that if, at the time appointed, the Debtor should not redeem his pledge, it should then belong to the Creditor so that he might dispose of it as his own ; or no such agreement is entered into be- tween them. In the former case, the Agreement must be adhered to ; in the latter, the Term being unex- pired 1 without the Debtor's discharging the Debt, the vadium. Vivum autem dicitur vadium quia nonquam moritur ex aliqud parte quod ex suis proventibus acquiratur. But assuredly, if the term mortgage is to be collected from its forcible contrast to these words, Glanville's explanation is infinitely preferable to that given by Lord Coke. 1 Existente termino. This is a palpably false reading— it should be, elapso termino, the term being expired, an expression familiar to Glanville. This suggestion is sanctioned by the Reg. Maj. ' the day being bygone.' (L. 3. c. 3.) — by the expression of the text Digitized by Microsoft® 206 Creditor may complain of him, and the Debtor shall be compelled to appear iii Court, and answer by the following Writ. CHAP. YII. " The King to the Sheriff, Health. Command N, " that justly and without delay, he redeem such a thing " which he has pledged to R, for a hundred Marks, for " a Term which is past, as he says, and of which he " complains that he has not redeemed it ; and, unless " he does so, &c." CHAP. vni.i In what manner the Debtor shall be distrained to appear in Court, whether by the Pledge itself, or by another mode, is doubtful. But that may be left to the discretion of the Court, as the matter can be suffi- ciently expedited which-ever mode is resorted to. It is, however, sometimes requisite that he should be ad terminum in the sentence immediately preceding — by the words of the Writ in the next chapter, ' a term which is past' — and, lastly, by a passage in the Eighth Chapter of this Book, where our Author expressly lays it down, tliat, before the time fixed for payment, the Creditor cannot claim the Debt. Yet is the reading existente termino preserved in Mr. Houard's Edition of Glanville, an Edition frequently, but not always, more correct than any of those printed in this Country. 1 Sir Edward Coke, having been led by his subject to treat of conditions, refers to the present Chapter of our Author. From suol? plain and simple materials did tlie complicated doctrine of .conditions draw its primary principles t ! (Co. Litt. 201. b.) Digitized by Microsoft® 207 present in Court, before the thing in question be ad- judged absolutely to the Creditor; since, were he present, he might alledge some reason, why the thing should not irrevocably belong to the Creditor. But when the Debtor appear in Court, he will either con fess, that he pledged the thing in question for tlie Debt, or he will deny it. If he confess it, as he basin so doing confessed the Debt, he shall be commanded at a reasonable period to redeem his pledge ; and, un- less he should comply, liberty shall be given to the Creditor, from that time, to treat the pledge as his own property, and do whatever he chuses with it. Should the Debtor, however, deny it, he will then either acknowledge that the thing is his property, but that for some cause it happened to be out of his pos- session, and to have got into the hands of the other, as a Loan, or as being intrusted to him for Custody or from some other cause of this nature ; or he will con- fess in Court, that the thing is not his property, which if he should do, liberty shall immediately be conceded to the Creditor, to dispose of the thing in question, as his own. But, if he alledge that the thing is his prop- erty, but denies as well the pledge as the Debt ; then, the Creditor shall be obliged to prove against him, that he intrusted the other to the extent of the present de- mand, and that the Debtor in return pledged to him the specific object in dispute. The nature of this proof may be collected from what we formerh'^ laid down, in treating of Pledges who deny their suretyship. But, previous to the period fixed for the payment, the Digitized by Microsoft® 208 Debt cannot be demanded ; although, if a thing be pledged indefinitely, and without any period being fixed, the Creditor may, at any time he chuses, demand the Debt. The Debt being discharged by the person owing it, the Creditor is bound to restore to him the thing pledged, without its having suffered any deterio- ration ; nor, if the thing should by any accident be lost or injured whilst in his Custody, is the Creditor from that circumstance liberated from the Debtor's claim; because he is decidedly bound, either to restore the thing pledged or to make satisfaction for it, or to lose his Debt. When a Compact is entered into between a Debtor and Creditor, concerning the pledging of a particular thing, if the Debtor, after having received the Loan, should not deliver the pledge,^ it may be asked, what step should the Creditor have recourse to in such a case, especially as the same thing may be pledged to many other Creditors, both previously and subsequently? Upon this subject, it should be re- marked, that the King's Court is not in the habit of giving protection to or warranting private Agreements of this description, concerning the giving or accepting things in pledge, or others of this kind, made out of 1 " In Glanville's time," says Sir Wm. Blackstone, " when the "universal method of conveyance was by livery of seisin, or " corporeal tradition of the Lands, no gage or pledge of Lands " was good, unless possession was also delivered to the Creditor " —and, having referred to this part of our Author, he observes, " And the frauds which have arisen, since the exchange of these " public and notorious conveyances for more private and secret " bargains, have well evinced the wisdom of our ancient Law." (3 Bl. Com. 159.) Digitized by Microsoft® 209 Court, or even in any other Court than that of the King. If, therefore, sucli Compacts are not observed, the King's Court does not interfere : and hence it is not bound to answer concerning the right of differ- ent Creditors, as prior or subsequent, or respect- ing their privileges. But, when an immoveable thing is put into pledge, and Seisin of it has been delivered to the Creditor for a definite term, it has either been agreed between the Creditor and Debtor, that the pro- ceeds and rents shall in the mean time reduce the Debt, or that they shall in no measure be so applied. The former Agreement is just and binding : the other, un- just and dishonest, and is that called a Mortgage, but this is not prohibited by the King's Court, although it considers such a pledge as a species of Usury .^ Hence, if any one die having such pledge, and this be proved after his death, his property shall be disposed of no otherwise than as the Effects of a Usurer. 1 This may be accounted for by recollecting that Usury itself, though viewed in a criminal light, was not expressly prohibited. {Ante L. 7. c. 16.) Nor was it punished, if the party amended : but, if he died in the crime, the act had then reached the point «f criminality — the offence was complete, and the punishment followed. But, until that moment arrived, Usury, in strictness, was an act rather approaching to a crime, than actually amount- ing to it. The reasoning was founded upon principles no less artificial than false — the death of the party being purely acciden- tal, and the crime itself being complete, without any reference to such accident, the very instant the party received the usuri- ous remuneration. The doctrine of the Kegiam Majestatem, in unison with this reasoning, and contrary to the textof Glanville, expressly forbids a Mortgage, because it was a species of Usury. (c. 5. L. 3.) The Reader will meet with some curious disquisitions in the Dial, de Scacc. (L. 3. s. 10.) where he will find the doctrine of the text illustrated in the true spirit of the times. 14 Digitized by Microsoft® 210 I In other respects, the same Eules should be observed, as in pledges of moveables, concerning which we have already spoken. But, it must be remarked, that if, after any one has paid his Debt, or has in a proper manner tendered it, the Creditor should maliciously detain the pledge, the Debtor upon complaining to the Court shall have the following Writ CHAP. IX. " The King to the Sherifif, Health. Command IT. " that justly and without delay, he render to R. the " whole Lands, or such Lands, in such a Vill, which " he has pledged to him for a Hundred Marks for a " term which is past, as he says, and has received his " Money, or which he has redeemed, as he says ; and, " unless he does so Summon him by good &c." CHAP. X. Upon the Creditor's appearing in Court, being sum- moned for this purpose, he will either acknowledge the Land in question, as his pledge, or he will say, he hol(is such Land, as his Fee. In the former case, he ought either to return the pledge, or shew to the Court some reasonable cause, why he should not be compelled to do so. In the latter case, it shall, upon the prayer either of the Creditor or Debtor, be put upon a Eecognition of the County, whether the Cred- Digitized by Microsoft® 211 itor holds the Land ia question, as his Fee, or his Pledge ; or whether his Father, or any other of his Ancestors, was seised of it, as in Fee or in Pledge, on the day of his death ; and, so it may be objected to him who seeks the Land upon the seisin of his Father. Thus the Recognition upon this subject may be in- finitely varied, to correspond with the Claim and the Defence. But, if the Kecognition be not prayed by either party, the Plea may proceed in Court upon the Eight. CHAP. XL If the Creditor lose his Seisin, either by means of the Debtor, or any other person, he cannot recover it through the assistance of the Court; not even by a Recognition of Novel Disseisin. For if he was unjustly and without a judgment dis- seised of his pledge, by any other person than the Debtor himself, the Debtor may have an Assise of Novel Disseisin. If, however, the Creditor was dis- seised by the Debtor himself, the Court will not assist him against the Debtor, in recovering his pledge, or in giving him a He-entry, unless through the Debtor himself ; for the Creditor should resort to an original Plea of Debt, in order that the Debtor may be com- pelled to render him satisfaction for his Debt. In such case, the Debtor shall be summoned by the fore- going Writ of first summons. Digitized by Microsoft® 212 CHAP. XII. ^ Upon the Debtor's appearing on the day appointed in Court, if the Creditor has neither Pledge, nor Sure- ties, nor any other proof, unless the mere faith of the other, this will not be received as any proof in the King's Court. Yet, he may proceed for the breach or violation of faith in the Court Christian. But, though the Ecclesiastical Judge can hold cognizance of such crime, and either impose penance on the convicted party, or enjoin him to make satisfaction, yet, with respect to Pleas concerning the Debts of the Laity, or affecting Tenements, the Court Christian cannot by a Law of the Eealm hold or decide them, under the pre- tence of the party having pledged his promise.^ The Creditor ought, therefore, to adduce other proof, if the Debtor deny the Debt in question. For if he admit it, then, he is bound to discharge it, in manner similar to that we have already explained, in speaking of Pledges, confessing their suretyship.^ Should he, however, deny it, the Creditor may prove iVide LL. Gul. Norman, c. 38. (Al. MS.) The Law here alluded to, the Reader has already been put in possession of. See p. 170. note 1. " Vide Constitutions of Clarendon. (Anglo-Sax. LL. Ed. Wilkina. 334.) ^ The Text is not free from difBculty which evidently arises from an omission. I have ventured to introduce the words, " should he, however, deny it, the Creditor." The Context coun- tenances this conjecture. Digitized by Microsoft® 213 his demand, either by a proper Witness, or by the Duel, or by a Charter. "When, therefore, any one offer in Court, as proof of the Debt, the Charter of his Adversary, or his Ancestor, the Defendant Avill either admit such Charter, or deny it. In the latter case, he may deny or controvert it in two ways : thus, he may acknowledge in Court the seal to be his own, but deny that the Charter was made either hy him, or with his consent, or that of his Ancestor ; or he may absolutely deny, both the Seal and the Charter. In the first case, when he has publicly in court acknowl- edged the Seal to be his own, he is bound to warrant the terms of the Charter, and, in all respects, to ob- serve the compact expressed in the Charter as con- tained in it, without question, and to impute it to his own indiscretion, if he incur any loss by negligently preserving his own Seal. But in the latter case, the Charter may be proved in Court by the Duel by any proper Witness, especially if his name be inserted in the Charter itself. There is another mode by which the Credit of a Charter is accustomed to be established in Court, namely, by some certain and unquestionable signs. As, for Example, by other Charters, impressed with the same Seal, and concerning which it is clear, that they are the Charters of the party, who denies the present Charter, because he has openly warranted them in Court. If in such case the impressions coin- cide in every respect "with one another, so that there is no suspicion of any difference between the Seals, it is usual to consider the fact as proved ; and, whether Digitized by Microsoft® 214 by this, or bj' any other legal mode, the party should be overcome, he shall lose his suit on the occasion, whether it be a Plea of Debt, or concerning Land, or any other thing whatever ; and he shall, in addition, be amerced to the King. For, it is a general Eule, that whenever a person has said any thing in Court or in a Plea which he afterwards denies, or of which he has neither suit, nor Warrantor, nor sufficient proof,^ or has been distrained to assert the contrary, or to deny it by sufficient proof, he shall be amerced to the King. But, if the person, against whom the Charter is pro- duced to prove a certain Debt, acknowledge it from the first, then he shall be compelled to satisfy the Creditor, according to the tenor of the Charter. "When any thing is lent on the joint strength of many of the proceeding securities, then, from the moment the Debtor makes default, he is liable to be distrained by all the securities being put in force against him at the same time. It is on this account, therefore, that many securities are taken, that in case of the inability of the Debtor, the Creditor may more readily be satisfied, than if there exist but one security only. CHAP. XIII. A Debt sometimes arises when a thing is borrowed ; ^ as if I lend a thing to you gratuitously, to be made 1 A similar Law is to be found amongst those ascribed to the Conqueror. (LL. Gul. Conq. c. 28.) 2 Commodatum. (Justin. Inst". S. 15. 2.) A Commodatum dif- fered from a mutuum, because the same person continued to be Digitized by Microsoft® 215 use of in your service. The service being finished, you are bound to restore my property to me, without dete- rioration,^ if it be in existence. But, if the thing itself be destroyed, or has by any means been lost, whilst in your Custody, you are abso- lutely bound to return me a reasonable price. But by ■what, or whose proof, ^ it is to be shewn — or if anyone has lent his propertj'^ to be used in a certain place, or for a certain Term, and he who thus received it has used it, either in another place, or at another time, the extent to which he ought to make a recompense, or upon Avhat proof, or whose property it is to be ad- judged, are points that may be questioned. The party, indeed, shall be absolutely excused from the imputa- tion of Theft, by reason that his possession of the thing detained originated through the owner of the property. It may also be doubted, whether the Owner can re- call his property so lent to another, within the time or place allotted, especially if he himself should have occasion to use it in the interval.^ the owner, and because the same thing was to be returned, and not another of the same quantity or quality, as in a mutuum. (Dig. 13. 6. 8. and 9.) " They have different names in Latin, though " not in English," says Dr. Wood. (Civil Law. Inst.) To avoid the inconvenience and confusion of employing the same term for each, the Translator has called the one a loan, the other a bor- rowing. The distinction between a gratuitous loan for use, and a simple loan, occurs in the Code Napoleon, which is drawn, as, indeed, may be observed of no small portion of that work, from the Civil Law. i Skene refers to Exodus c. 23. v. 14. 15. 2 " By him who gave the Loan, and by his Witness," says the Eegiam Majestatem. (L. 3. c. 9.) 8 "It is answered, he naay not repeat it or seek it again, be- Digitized by Microsoft® 216 CHAP, xiy.i A Debt also arises by reason of a Purchase and Sale. When any person sells a thing to another, the price is due to the Vendor, and the thing contracted for to the Purchaser.^ But a purchase and sale are effectually perfected from the moment the price is settled between the con- tracting parties ; provided possession of the thing pur- chased and sold be delivered,^ or that the price, either wholly, or in part, be paid, or, at least, that Earnest* be given and received.^ " cause any loan may not be repeated or called back again, until "the use be perfected and fulfilled to the which it was lent." (Reg. Maj. L. 3. c. 9.) But the modern French Code permits it to be recalled. (S. 1889.) 1 Vide Bracton fo. 61. b. and Fleta L. 2. c. 58. 2 Vide Justin. Inst. 3. 24. §. Custum. de Norm. c. 23. and Brac- ton 61. b. The two chief obligations of the Vendor, as laid down in the present and following chapters, are comprised in a section of the modern French Code — that of delivering, aijd that of warranting the thing which he sells. (Code Napoleon 1603.) * Quia sine traditione non transferuntur rerum dominia, (Bracton 61. b.) * Arrhse. In the Civil Law the Arrha or Earnest was given, either simply as a symbol, or mark of the Contract, or, it was given, as Vinnius informs us, as a part of the price. In the former case the purchaser was not permitted to avoid the con- tract with the loss of his Earnest — in the latter, he was allowed to do so. The Vendor might recede with the loss of twice the value of it. (Dig. 18. 1. 35.— 19. 1. 11. 6. Inst. 3. 34. pr.) With respect to the effect of Earnest, as our Law now stands, vide 2. Bl. Comm. 447. 6 When there is neither writing. Earnest, nor delivery, the parties, says Bracton, may retract. (61. b.) Digitized by Microsoft® 217 But, in the two former cases, neither of the Con- tracting parties caii by any means at his own option recede from the Agreement, unless for some just and reasonable cause ; as, if thetermsof the contract were, that either of the parties may Avith impunity retract within a certain period ; then, indeed, either party may within the period prescribed avail himself of the terms of the Contract and recede, without being liable to any penalty : since it is, generally speaking, unquestionable that, Conventio legem vinoit} Besides, if the Vendor sold the thing to the Purchaser as being sound and without fault,^ and the Purchaser can afterwards satis- factorily shew, that the thing at the time of the con- tract was not sound, but faulty, then, indeed, the Ven- dor shall be compelled to take back his propert}^. But it is sufficient, if the thing was in a proper state, at the time of the Contract, whatever may afterwards happen to it. But I doubt, as to the period within which this should be proved, or complaint made concerning it, especially where there is no special Agreement. "Where, however, Earnest only has been given, if the Purchaser would recede from the Contract, he may do so, with the loss of the Earnest. But if, in such case, the Vendor Avould retract, it is a question whether he ^ Pactum enim legem vincit. (LL. Hen. 1. o. 49.) "Contracts " legally made have the force of Law between those who have " made them." (Code Napoleon s. 1134.) ^ If, says a Law of Ina, a person has purchased any thing, and, within thirty days, discover it to be defective, he may restore the thing to the hands of the Vendor, unless the latter will swear, that he knew of no defect in it at the time he sold it. (LL. Inse. c. 56.) Digitized by Microsoft® 218 can do so without incurring a penalty.^ It does not seem that he can ; because he would then be in a bet- ter situation than the Purchaser. But, if it cannot be done with impunity, what punishment shall such con- duct incur ? ^ The risk of the thing sold and purchased generally belongs to the person who has possession of it,^ unless it has been differently arranged. CHAP. XY. The Yendor and his Heirs are bound to warrant the thing sold to the purchaser and his Heirs, if the thing be an immoveable ; and hence, the Purchaser* and his Heirs may be sued in the manner we have formerly explained, in treating of Warranties. If any person sue the Purchaser with respect to a moveable, on the ground that the thing in question was first sold or given to him, or from any other just cause was acquired, unconnected with the imputation of Felony, the same rule may be laid down as that we have mentioned concerning immoveables. But if, under 1 In Bracton's time the Vendor forfeited double the Earnest — a rule according with that of the Roman code. (Bracton 63. a.) 2 " Double the Earnest " was to be forfeited by him according to the Reg. Maj. fL. 3. c. 10.) 3 Quia re vera qui rem emptori nondum tradidit adhuc ipse do- mimis erit. Hence — Si post emptionem ante traditionem, fundo vendito aliquid per alluvionem vel alio modo acarevit quod commo- dum ad venditor em pertinebit. (Bracton 63. a.) * Emptor, a palpably false reading, as the context proves : it should be venditor, the vendor. See Bracton 63. a. Digitized by Microsoft® 219 an imputation of Theft,i the Purchaser is sued for the thing, he is bound in the clearest manner to re- move from himself every such an imputation, or to call a Warrantor.^ If, therefore, he adopt the latter course, he will name either a certain Warrantor, or an uncer- tain one. If he call a certain Warrantor to Court, alleging that he desires to have him to Warrant at a reasonable period, then a day is to be given him in Court for that purpose. And, if the person called to Warrant appear on that ■day, and warrant in Court, both the sale and the thing sold to the Purchaser, then, the latter shall be entirely ■discharged, and that so effectually, that he shall not afterwards sustain any loss. But, if he should fail in entering into the Warranty, then, the Plea shall pro- ceed between the Purchaser and his Warrantor ; and thus may it come to the Duel. But, it may be asked, can the Warrantor call another Warrantor into Court? If that be permitted, at what Warrantor must it stop ? * It should be added, that when any one has so named 1 Vide Braoton 150. b. et seq. 2 Vide Mirror c. 3. s. 13. Braoton 151. b. Fleta 55. s. 8. We £nd that Warrantors were sometimes collusively vouclied. Thus, Cliampions of acknowledged prowess were named, who, being hired for the purpose, readily entered into the Warranty. When such an instance of collusion took place, the Champion •was, according to Braoton and Fleta, to lose a foot and a hand — but, in Britton's time, the Champion and the person citing him were both liable to death. s The Bodleian and Harleian MSS. say the fourth, omitting the mark of interrogation at the end, and leaving the sentence an absolute assertion ; which most probably is the true reading, as it corresponds with the Regiam Majestatem. (L. 3. c. 13.) Digitized by Microsoft® 220 a Warrantor of a thing which is sued for as stolen, the Warrantor is usually attached by virtue of the follow- ing Writ, directed to the Sheriff : — CHAP. XVI. " The King to the Sheriff, Health. I command " you, that justly and without delay, you cause N. to " be attached, by safe and secure Pledges, that he be " before me, or my Justices, on a certain day, to war- " rant M. such a thing which H. claims against M. as- " stolen, and of which the afor6said M. has drawn him "to warrant in my Court; or to shew wherefore, he " ought not to warrant to him. And have there the " Summoners and this Writ, &c." CHAP. XVII. But, if the Purchaser should call an uncertain War- rantor, in such case, if he have sufficient proof of its being a lawful purchase, that shall discharge him from the Felony.^ Yet it shall not protect him from th& 1 No Man, says a Law of the Confessor, shall purchase any- thing without the City gate, but sliall have the testimony of the Prefect of the City, or of some other respectable person, who can be confided in. (LL. Ed. Conf. 1.) A Law of his predecessor jS5thelstan is nearly in the same words, except that it tacitly permits purchases without the City Gate, if they did not exceed twenty denarios. (LL. .atheist. 12.) Some of the Laws of Digitized by Microsoft® 221 loss, I mean, of the thing in question. But, if upon this point he has not a suflBcient suit, he is in danger. Debts arising either from a purchase or a borrowing are usually substantiated by the general mode of proof in Court ; in other words, either by a Writing, or by Duel. CHAP. XVIII. A Debt sometimes arises from a Letting out and a Hiring : ^ as when any one lets out a thing to another for a certain period, in consideration of receiving a cer- tain reward. In such case, the former is bound to concede the use of the thing, and the latter to pay the price. But, it should be observed, upon the expiration of the term stipulated, the former may lawfully and of his own authority resume possession of his property.^ But, if the person engaging to hire the thing should not pay the price at the appointed time, it may be asked, whether the other party can in such case forc- ibly resume possession by his own authority ? But we briefly pass over the foregoing Contracts, arising as they do from the consent of private individ- Edgar are admirably adapted to effect the same object, (LL. Sup. Eadg.) which appears to be constantly kept in view by the dif- ferent Legislators, who preceded Henry the Second. ^ Ex locate and ex conducto. " Locatio conductio," says Dr. "Wood, " is one word." Locator is he that lets out to hire, con- ductor he that hires. (Justin. Inst. 3. 25. pr.) ^ Si etiam vacuam invenerit et nnn obligatam. (Bracton 62. b.) Digitized by Microsoft® 222 uals ; because, as it has already been observed, the King's Court does not usually take cognizance of them; nor, indeed, with such Contracts, as may be considered in the light of private Agreements, does the King's Court intermeddle. Digitized by Microsoft® 3ool II. OF ATTORNIES, WHO ARE PUT IN THE PLACE OF THEIR PRINCIPALS IN COURT, TO GAIN OR LOSE FOR THEM. CHAP. I. The Suits discussed in the former part of this Treat- ise concern the Eight and Propriety of the thing, which a person may prosecute, as indeed, some other Civil Pleas, as well by himself, as by an Attorney ^ put in his place to gain or lose. But the person, who thus puts another in his place, ought to be present * in Court. It is usually done in the presence of the King's Jus- 1 Responsalis. From some expressions made use of by Bracton and Fleta, it has been conjectured, that an Attorney, an Es- soiner, and a Responsalis, differed in some respects. (Bracton 212. b. and Fleta, L. 6. c. 11. s. 6. 7.) Of this opinion Lord Coke seems to be. (Co. Litt. 128. a.) Yet, we must be cautious, in applying these distinctions to Glanville ; for they may, after all, be the result of a much more recent period. Nor is the reading of Bracton, in the passage alluded to, perfectly free from sus- picion. 2 Sir Edward Coke ascribes this rule to "the policy of the " Common Law, that suits might not increase and multiply." (3 Inst. 249.) Whilst the Mirror lays it down generally, that it is an abuse to answer or appear by Attorney. (Mirror, c. 5. s. 1.) 223 Digitized by Microsoft® 224 tices of the Commoii Pleas. But on no account, other- wise than as having been appointed by his Principal, when present in Court, ought any one to be received as an Attorney.^ It is not requisite, that the adverse party should on that account be present in Court ;^ nor, indeed, the person who is so put in the place of the other, if he be known to the Court. One person alone may be put in the place of another ; or two or more, either collectively or separately ; so that, if one of them is unable to attend, the other or others may follow up the Plea. Through the medium of such an Attorney, a Plea may be commenced in Court, and determined, whether by Judgment, or final Concord ; and that, as fully and eilectually, as by the Principal himself. But, it should be understood that, it will not suffice 1 Mr. Madox, in treating of the Exchequer, informs lis, that " in general, accomptants were obliged to come in person to " render their accounts. If they made an Attorney to account *' for them, it was usual to have the King's leave for it. Some- " times, the accomptant nominated his Attorney before the "King: and thereupon the King by his Writ commanded the " Treasurer and Barons to admit such person, as Attorney, ac- " oordingly. But sometimes, especially towards the latter part " of the second period, the Aocomptant's Attorney was admitted " by warrant or leave of the Treasurer, Chancellor of the Ex- " chequer, or Barons, or one of them." (Madox's Excheq. c. 23. s. 5.) Supposing there was a certain uniformity of proceeding observed in the superior Courts, this extract may furnish us with an idea of the gradual deviations from the strict rule of our text. 2 The Norman Code lays down a contrary doctrine, asserting that it was not lawful to constitute any Attorney in the absence of the party, unless in the presence of the Prince, whose testi- mony alone sufficed to make a Record. (Grand. Oust. c. 63.) Digitized by Microsoft® 225 for any one to constitute another his Bailiff ^ or Stew- ard ^ for the managing his Lands and affairs, even if it be made to appear to the Court, in order that he should be received in Court in any Suit in the place of his Principal.3 But, it is necessary that, a special iiuthority should be delegated for this purpose ; and that the Attorney should, in the manner before de- scribed, be put in his place, expressly in that particular Action, to lose or gain for him. It should also be observed, that any one may in the Eing's Court put another in his place, to gain or lose ^ Ballivum. It is the opinion of Sir Henry Spelman, that we Teceived the term from the Normans. There is, indeed, frequent mention of such an oflScer in the Grand Custumary. (c. 4. &c. ) But Lord Colie thinks, we received it from the Saxons. It oc- curs in a law of Edward tlie Confessor, if it be not an interpola- tion of a later age. (Ed. Conf. LL. c. 35.) It has been received in a variety of significations — As meaning a Judge, an Officer of the Crown, a Bailiff of a hundred, of a Liberty, and of a Bor- ough, of a Manor and of an Estate. (Spelm. Gloss, ad voc.) Cowell, who deduces the word from the French, thinks our Sheriffs were formerly called Bailiffs, as their Counties are termed Bailiwicks. (Cowell ad voc.) See Fleta L. 3. ^ Senesehallum — "Is, says Cowell. a French word, but bor- ^' rowed from Germany, being, as Tilius saith, compounded of " Schal, i. e. servus aut officialis, and gesnid, i. e. familia. We " english it Steward." (Cowell's Interp. ad voc. Seneshall. See also Madox's Excheq. c. 8. s. 6. " It is derived," says Lord Coke, " of Sein a house or place and schalc an officer or governor, &c." (Vide Co. Litt. 61. a. for other derivations.) See Fleta L. 2. " Yet, from the form of the writ which our Author gives us, L. 13. c. 13. it seems perfectly clear, that a Bailiff was allowed to hear a Recognition for his principal. The reason of the dis- tinction, perhaps, might be found in the different nature of the functions — to perform the duty of an Attorney being an active, that of merely hearing a Becognitiori, of a passive nature— the one, requiring skill — the other, not. IS Digitized by Microsoft® 226 for him, even in a suit that he has in another Court ; and it shall be commanded, that the Attorney shall be received in such Court in the place of his Principal, by the following Writ CHAP. II. " The King to the Sheriff, or to any other presiding "in his Court, Health. Know that H. hath before " me, or my Justices, put M. in his place to gain or " lose for him, in- the Plea which is between him and ^^ R} concerning one plough-Land or concerning any " other thing, (naming it) and, therefore, I command " you, that you receive the aforesaid li. in the place of " the said N., in such Plea, to gain or lose. Witness, " &c." CPIAP. III. When any one, therefore, according to the form, before mentioned, is put in the place of another in any suit, it may be asked, whether Essoins shall hold with, reference to the person of the Attorney only, or the person of his Principal only, or with regard to both of them ? And, indeed, the Essoins of the Attorney him- self only shall in such case be allowed, until his ap- pointment is revoked.2 "W'hen any one, so put in the 1 Here is another instance of confusion, arising from the inac- curate manner in which these letters are inserted 1 * "The Essoin of the Procurator only shall have place, until Digitized by Microsoft® 227 place of another in Court, answer to the suit, and does that which appertains to hira, it may be asked, wheth- er his Principal can at his pleasure remove him, and substitute another Attorney, especially if any great degree of Enmity should subsequently arise between them? That the Principal himself, indeed, may follow up the Suit, the Attorney being removed, is unquestion- able ; because every Man is understood to put another in his place, under the tacit condition, that he himself cannot be present. The prevailing practice permits a Principal to remove such Attorney, in any part of the Suit, and also to replace him by substituting another in Court, in the manner before mentioned. A Father may thus substitute his Son, and vice versa : one stran- ger may also substitute another ; and a Wife her hus- band. When a Husband, put in the place of his "Wife in a suit concerning her marriage-hood or Dower, should lose any part of the property of his Wife, or should, by a Judgment or a Concord, remit any right of the Wife, whether, it may be asked, can the Wife herself again agitate the question, or whether is she absolutely bound, after the death of her Husband, to abide by his Act ? It does not seem that the woman in such a case ought, by the Act of her Husband, to lose any part of her right ; because, whilst in the power of her Husband, she can in no measure oppose or con- " the procuratory be revoked." (Reg. Maj. L. 3. c. 16.) Mr. Reeves appears to have viewed the passage of the Text in a dif- ferent light. (Vide Hist. Eng. Law. 1. 170.) Digitized by Microsoft® 228 trovert his "Will, and, therefore, she could not, contrary to his pleasure, look into her rights.^ But, on the other hand, it may be contended, that those Acts which are transacted in the King's Court, ought to be held settled and unalterable. CHAP. IV. The Principal is to be distrained to abide by what has been done by his Attorney, whether it be so done by Judgment or by Concord. But what must be done, if the Principal is incompetent to pay, and has nothing whereby he can be distrained, although the Attorney has ? The Attorney, indeed, must not be distrained. CHAP. V. The principle that we have just laid down, that no one, unless present in Court, can effectually put another in his place, seems contrary to what is contained in the first Book, upon the doctrine of Essoins.^ For, it is there stated, that if any one should, after his third Essoin, send an Attorney, whoever he happen to be, with Letters, he should be received in Court. But this happens by force of the Judgment. A different Hule 1 Vide Mirror, c. 5. s. 5.— Ante 97. Not. 3. and M. Houard's Traites sur les Coutumes Anglo-Norm. Tom. 1. 451. wliere he adopts the same reading, as I contend for. and observes that un- der the ancient Norman Custumary the wife could not reclaim her Dower. 2 l_ 1. g. i3_ Digitized by Microsoft® 229 prevails where, urged by an order of the Court, or by a Distress, a person prays to put another in his place in a Suit, to gain or lose for him. It should also be observed, that Abbots and Priors of Canons Regular are received in Court, upon their own authority, with- out even the Letters of their Convents. Other Priors, whether of Canons or Monks, if Cel- larii ^ even though Aliens, are by no means to be ad- mitted in Court, without the Letters of their Abbot or Grand Prior.^ The Master of the Knight-Templars and the Chief Prior of the Hospital of Jerusalem ^ are also received upon their own authority ; but none of their Orders of a Rank inferior to them are in the habit of being received. When one or more have been substituted in Court to conduct a Suit for another, in the manner before mentioned, whether the one can 1 1 have retained the original word, not merely because I know of no word answering to the complex idea of Skene, but that it is very questionable, whether Skene be correct. He thus interprets the word—" If they dwell in cells, separate from " abbies or monasteries." (Reg. Maj. L. 3. c. 18.) From other authorities, I should rather have inferred, that the cellarii were a species of monks, invested with the power of providing for their Brethren, and regulating the internal part of their monas- teries. But this again is with diflBculty to be reconciled to the terms, in which one of them is spoken of — secundus pater in monasterio, unless we concur with Spelman, who says, when speaking of the word, crevisse videtur in amplitudinem. (Vide Spelman. Gloss, ad voo.) 2 The Regiam Majestatem,on the contrary, asserts, that they shall be received, without the Letter of their Abbot or Grand Prior. (L. 3. c. 18.) 8 Of these Orders the Reader will find some mention in 3 Inst. 431. Digitized by Microsoft® 230 delegate his authority to another, or whether one of the two can nominate the other, or a third, in his place, or in that of his Principal, to gain or lose for him in that Suit, are points at least ques- tionable^ 1 " It is answered," says the Reg. Maj. " he may not do so, be- " cause all things are forbidden to a procurator, which are not " expressly granted and committed to him.'' (L. 3. c. 19.) Digitized by Microsoft® iooft III. OF THE PLEA OP RIGHT ; AND OF DIFFERENT WRITS OF RIGHT, DIRECTED TO THE SHERIFFS OR LORDS OP THE FEE, UPON VARIOUS OCCASIONS. CHAP. I. The preceding Pleas of Eight are, directly and in the first instance, commenced in the King's Court, ■where, as we have observed, they are discussed and terminated. But some Pleas of Right, although not in the first place commenced in the King's Court, are sometimes removed there, when the Courts of different Lords are proved to have failed in doing Justice ; for then such Pleas may, through the medium of the County Court, be transferred from thence to the Chief Court of the King, for the various causes shewn in a former part of this Treatise.^ CHAP. II. When, therefore, a person claims any Freehold Ten- ement, or a Service, as held of another by free service, he cannot draw the person holding it into a Suit, with- out the King's Writ, or that of his Justices. He shall, 1 Vide L. 6. c. 8. 231 Digitized by Microsoft® 232 therefore, have a "Writ of Eight, directed to the Lord of whom he claims to hold. If the Plea concern Land, such Writ will be as f jUows CHAP. III. " The King to the Earl of W., Health.^ I command " you, that without delay, you hold full Kight to iV^. of " ten ploughlands in Middleton, which he claims to " hold of you by the free service of one Knight's fee " for every service ; or by the free service of one Hun- " dred Shillings by the Tear for every service ; or by " the free service of which twelve ploughlands make a " Knight's Fee for every service ; or which he claims " to belong to his free Tenement that he holds of you " in the same Vill, or in Mortune by the free service, " &c. or by the service, &c. ; or which he claims to " hold of you as the free Marriage-hood of M. his " Mother ; or in free Burgage ; or in free Alms ; or by "the free service of going with you in the King's " Army with two horses at his own cost for every " service ; or by the free service of finding you one " Cross-Bowman 2 in the King's Army for forty days " for every service ; of which H., the Son of TT^., had " deforced him ; and, unless you do so, the Sheriff of 1 Vide F. N. B. 2. 2 Arbelastarium from the French arbalestier. In the distribu- tion of Estates by William the Couqueror, the Arbelastarii were reckoned among those noble and military chiefs, the Peers of the Realm. This appears from some passages in Domesday. (Spelman Gloss, ad voo.) Digitized by Microsoft® 233 "Northampton shall, least I should hear any more " complaint for want of Justice. "Witness, &c." But Writs of Eight of this kind are usua% infinitely di- versified for different causes, as, indeed, will appear from the various forms we shall presently give. But, if the Plea concern a service, the "Writ will be as follows CHAP. lY. " The King to iV". Health. I command you, that " without delay, you hold full Eight to N. of a hundred " shillings of Eent in such a Yill, which he claims to " hold of you by free service, &c. or the service, &c. ; " and, unless you do so, the Sheriff of Oxford shall do " it, least I should any more hear a complaint for want " of Justice. "Witness, &c." CHAP. Y. " The King to R., Health. I command you, that " justly and without delay, you cause N. and A. his " Wife to have their reasonable part which belongs to "them of one Messuage, in such a Yill, which they " claim to belong to their free Tenement, that they hold " of our Lord the King, in such a Yill, by the free serv- " ice of two shillings by the year ; or of one Mark " Eent, in such a Yill, which they claim of the free " Marriage-hood of the said A., of which they complain " that B., the sister of A., has deforced theni, or that Digitized by Microsoft® 234 " Q. has deforced them. And, unless you do so, the " Sheriff shall do it, least any further complaint should " be made for want of Justice. Witness, &c." CHAP. YI. These Suits are in the habit of being conducted in the Courts of Lords, or of those who fill their places, according to the reasonable Customs prevailing in their Courts ; which are so numerous and various, that it is scarcely possible to reduce them into writing.^ CHAP. YII. These Courts are proved to have failed in doing Justice in this manner. Upon the Demandant's com- plaining to the Sheriff in the County Courts, and pro- ducing the King's "Writ, the Sheriff shall send one of his Officers to the Lord's Court on the day appointed the parties by the Lord of such Court, in order that the Officer, in the presence of four or a greater number of the lawful Knights of the County, who by the Sheriff's command shall attend there, might hear and see the proof of the Demandant, namely, that such Court had failed to do him Justice in his Suit. That the fact is 1 The Eegiam Majestatem and Braoton avail themselves of the same excuse, for declining to enlarge on the subject, though the latter observes, that in demanding a view — in vouching to war- ranty — in proposing exceptions and in waging the Duel, &c. such Courts followed the King's Court — (329. b.) Digitized by Microsoft® 235 so, the Demandant shall prove, by his o»irn oath and that of two others, who have heard and known the fact, and shall swear with him. Under such solemnity, then, Pleas are generally re- moved from these Courts into the County Court, and are there again discussed and finally terminated, with- out any contradiction -or recovery on the part of such Courts, or the Lords of them, or their Heirs, so far as concerns the Plea in question. But if, previously to such Court being proved in the manner we have stated to have failed in doing right, any Plea should be drawn from it to the superior Court, the Lord of the inferior •Court may take advantage of such circumstance and ■on the day appointed for the Trial of the cause reclaim his Jurisdiction ; because his Court has not been proved to have failed in doing Justice ; and thus he shall be adjudged to recover it, unless it be there proved, that Jiis Court failed in doing Justice, as before remarked. It should, however, be observed, that if a Plea has been so drawn to the King's Chief Court, it will be in Tain for the Lord to reclaim it on the day of trial, un- less, on the third day preceding, he had claimed it, in the presence of lawful Men. But if no day be given to the Demandant on which to make his Complaint, and he has experienced a de- lay, it will suffice for him to falsify the Court, under the form before mentioned, in whatever part of the Tee he may chuse, if the Lord has no residence ^ within 1 Reseantisam. Vide ante p. 10. Note 1. Digitized by Microsoft® 236 the Fee, it being lawful for him, as Lord, to hold his Court there, and put a day to the Demandant, in what- ever part of his Fee he chuses. But he cannot legally do so out of his Fee.^ CHAP. VIII. But the "Writ to be obtained ought to be directed ta him only, of whom the Demandant claims to hold, and not to another, nor even to the Chief Lord. But, it may here be asked, what will be the consequence, if the Demandant claim to hold of one Lord, and the Tenant of another ? In such a case, since the Lord to whom the "Writ is directed cannot take cognizance of the suit, and unjustly and without a Judgment disseise another Lord of the right of holding a Court, of which he is understood to be seised, recourse must necessarily be had to the County Court, where the Suit shall pro- ceed ; or, in the Chief Court, so that both the Lords ought to be present there by Summons, in order that the thing should be discussed before them, in the man- ner we formerly mentioned when treating of "Warran- ties. CHAP. IX. To the Sheriffs, indeed, not only belong the fore- going Pleas of Eight, when the Courts of the Lords are proved to have failed in doing Justice, but some 1 With this concur the Mirror, (c. 3. s. 28.) (Bracton, 330. a.) and the Grand Custumary of Normandy, (c. 6. and 61.) Digitized by Microsoft® 237 other Pleas. "When, for Example, any one complains to the Court, that his Lord exacts Customs and Serv- ices that are not due, or greater services, in respect to the free-hold the Tenant holds of him, than he ought : 1 when the Plea concern a Villein-born, as be- fore observed : or when, generally speaking, any other matter occur of which the Sheriff has the King's Writ, or that of his Chief Justice, for the purpose of holding Jurisdiction over any one, or that he himself should do right, unless another does so, as before mentioned ; whenever any such Pleas occur, it belongs to the Sheriff to hear and decide upon them. Some of which appear from the following Writs. CHAP. X. " The King to N. Health.^ I prohibit you, least you ■" unjustly disturb II. or permit him to be disturbed, " concerning his Free Tenement, that he holds of you *' in such a Vill. JSTor exact from him, nor suffer to be " exacted. Customs or Services which he ought not to ■" render you, or which his Ancestors did not, nor ought ^' to have done, in the time of King Henry my Grand- " father ; and, unless you do so, the Sheriff shall, least ^'he should any more complain. Witness &c." CHAP. XI. "The King to the Sheriff, Health. I command •' you, that justly and without delay, you cause M. to 1 Vide 2 Inst. 31. = Vide F. N. B. 31. Digitized by Microsoft® 238 " have R. his Villein-born and fugitive, with all his " Chattels, and with his whole issue,i wheresoever h& " is found in your Bailiwick, unless the fugitive be in " my Demesne, after my first Coronation. And I pro- " hibit, least any one unjustly detain him under for- " feiture, &c. "Witness &c." CHAP. XII. " The King to the Sheriif, Health.^ I command " you, that justly and without delay, you cause G. to- " have his Beasts by Gage and pledges, of which he " complains that JR. has taken them, and unjustly de- " tains them, for the Customs which he exacts from "him, and which he does not acknowledge to owe " him ; and, in the mean time, cause him justly &c. « least &c." CHAP. XIII. " The King to the Sheriff, Health. I command you^ " that justly and without delay, you cause to be ad- " measured the pasture in such a Vill, which 1. who- i Cum totd sequeld sud. Mr. Barrington having observed, that if Villeins were born within a certain District, they and their issue were the Bondmen of the Lord, proceeds thus, — " This ex- " plains what frequently occurs in ancient grants of Villeins, " cum totd sequeld sud, which, according to Sir James Ware, in. " his account of the Betaghii, (who were the Irish Villeins,) in- " eluded not only Children but Nephews, p. 149. See also Mar " dox's Form. Angl. p. 416." (Barr. Obs. on Anc. Stat. p. 306.) '■^ Vide F. N. B. 152. Digitized by Microsoft® 239 " was the wife of P. and R. her sister, complain that R. " had unjustly surcharged ; nor permit that the afore- "said H. should have in that Pasture more beasts " than he ought to have, and than belongs to him to " have, according to the extent of the Fee which he " has in that Yill, least &c. "Witness &c." CHAP. XIV. " The King to the SherijBf, Health. I command you, " that without delay, you command R. that, justly " and without delay, he permit II. to have his Ease- " ments ^ in the "Wood ^ and in the Pasture of such a " Vill, which he ought to have, as he says ; as he " ought to have them, and usually has had them ; and " that you permit not the aforesaid R. or any other to " molest or injure him, least &c. "Witness &c." CHAP. XV. " The King to the Sheriff, Health. I prohibit you, " least you permit, that R. unjustly exact from S. for " the free Tenement which he holds of N. of the Fee " of the said R. in such a Vill, more service than be- 1 AiBiaynenia — from the French aise, voluptas. (Spelm. Gloss, ad voc. ) * Boseo. This word sometimes means the wood merely — some-- times it includes the land on which the wood grows. (Co. Litt. 4. b.) Digitized by Microsoft® 240 ■"longs to that free Tenement that he holds ; and that " you cause to be replevied to him his Beasts, which " were taken for that demand, which he does not ac- " knowledge, as belonging to the Free Tenement he " holds ; until the Plea be heard before us, and it be *' known, whether such service is due or not. Wit- ■" ness &c." CHAP. XVI. " The King to the Sheriff, Health.^ I command '" you, that justly and without delay, you make reason- " able divisions between the Land of S. in such a "Vill and its appurtenances, and the Land of D. in " such Yill, as they ought to be, and are accustomed " to be, and as they were in the time of King Henry " my Grandfather, of which B. complains, that A. " has, unjustly and without Judgment, encroached " more than belongs to his free Tenement in that Yill, ■" least &c. "Witness &c." CHAP. XVII. " The King to the Sheriff, Health. I command you ■" that justly and without delay, you cause to abide, "the reasonable Division which B. niade to the " Brethren of the Hospital of Jerusalem of his Chattels, " as it can be reasonably shewn that he made it, and " that it ought to be abided by. Witness &c." 1 Vide L. 9. c. 14. where a similar writ occurs. Digitized by Microsoft® 241 CHAP. XVIII. " The King to the Sheriff, Health. I command you, " that you compel R. that justly and without delay, " he returns to N. his Chattels, which he claims that " he took, unjustly and Avithout a judgment, in his " Freehold, in such a Yill, since the Disseisin which he " did him, since my Assise, of which he recovered his " Seisin before my Justices by a Eecognition of Novel " Disseisin, as it can be reasonably shewn that he ought " to have thena, least &c." ^ CHAP. XIX. " The King to the Sheriff, Health. I command you, " that you cause a delay until a certain fit time, when " you can be present, of the Eecognition which is sum- " moned between R. and M. concerning the divisions ^ " of such Tills, which by my Justices of those parts is " injoined to you and H. to take before you ; for the " taking of which, as it is said, you have deputed others " in your place, because it is not the Custom that when " any matter appertaining to my Judges * is injoined 1 Vide 2 Inst. 311. 2 Vide ante p. 133. Note 1. — As to the latter part of the present Writ, our author surpasses even himself in quaintness of ex- pression. ' Ad Justicias. Justieia, a Justice, or Judge, or, as it has in subsequent times been written, Justiciarius. (Vide Selden op. i6 Digitized by Microsoft® 242 " to others to be executed, that they should transfer " over to others again any thing which appertains to " my Judge. Witness &c." CHAP. XX. " The King to the Sheriff, Health. I command you, " that justly and without delay, you cause A. who was " the Wife of J2. to have her reasonable Dower of the " whole Fee that was the said Ji''s, exactly and in every " thing, save to his Heir the capital Messuage, and that " you cause the said Wife to have another messuage, " unless any Land in which there is no Messuage may " have been named to her in Dower ; and it shall not " cease, because the Fee of the aforesaid i?. is held of "my Barony, because, I will not, nor does the Law re- " quire, that the Wives of Knights should on account " of this lose their Dower. Bat, of the Chattels that " were of the aforesaid H. I command you, that you " cause them all to be in peace, so that no part be re- " moved, neither to make division, nor for any other " purpose, until his debts are entirely discharged ; and of " the residue there shall be afterwards a reasonable divi- "sion made, according to the Custom of my Land. " And, if any part of the Chattels of the aforesaid H. " shall have been removed since his death, it shall be Omn. 1669. Madox's Exch. 24. &c.) Mr. Selden considers the use of this term by Glanville as a proof, that the work itself is of the age of Henry the 2nd, as we have already observed, in our introductory address to the Reader. Digitized by Microsoft® 243 " returned to his other Chattels to pay his Debts. " AYitness &c." CHAP. XXI. "The King to the Ecclesiastical Judges, Health.^ " I prohibit you, least you hold the Plea in Court Chris- " tian, which is between iT. and R. of the lay Fee of " the aforesaid R. of which he complains that iV^. draws " him into Plea in Court Christian, before you, because " such Plea belongs to my Crown and Dignity. Wit- "ness &c." CHAP. XXII. " The King to the Sheriff, Health. Prohibit E. least "he should follow the Plea in the Court Christian " which is between N. and him of the lay Fee of the " aforesaid R. in such a Vill, of which he complains " that the aforesaid iV^. draws him into Plea in Court " Christian before those Judges. And, if the afore- " said R. shall make you secure of prosecuting his " claim, then, put by Gage and safe Pledges, the afore- " said N. that he be before me, or my Justices, such a " day, to shew wherefore, he has drawn him into Plea " in Court Christian, concerning his lay Fee, in such a " YiU, as such Plea belongs to my Crown and Dignity. " Witness &c." 2 1 Vide F. N. B. 90. 2 This Writ stands also in need of a Transposition of the Capi- tals to render it intelligible. Digitized by Microsoft® 244 CHAP. XXIII. With respect to the manner or the right of com- mencing or terminating these Pleas, or others in different County Courts, I forbear to speak, as well on account of the different Customs Tvhich prevail in different Counties, each observing its own peculiar Customs, as of the brevity of my proposed object, no Pleas coming within the scope of it, but those which are usually dis- cussed in the King's Chief Court. CHAP. XXIV. It should also be observed, that in a "Writ of Right sometimes less is comprised than is inserted in the Count in Court, as well respecting the Appurtenances as other things ; but sometimes more is included. Sometimes there is an Error in the "Writ, as to the name inserted in it, sometimes concerning the quantity of Services. When, indeed, less is contained in the Writ than in the Count, the party cannot demand more by force of the Writ, than is comprised in it. But when more is contained in the Writ, than in the Count, the Excess which is comprised in it may be re- mitted, and the residue may be claimed by virtue of the Writ. But, if there be an Error in the name, then, by strictness of Law, another Writ must be sued out. But when the Error concern the quantity of service, the Writ, in strictness of Law, is also lost. Digitized by Microsoft® 245 Yet, as it sometimes happens, that a Tenement is de- manded by less service than is due in respect of it, or than has been accustomed to be rendered to the Lord, it may be asked, whether the Lord is bound by the "Writ to do right to the detriment of his own service ? He is, indeed, bound ; but should the Demandant hap- pen to prevail, the Lord after Eviction may recover against the party evicting him.^ CHAP. XXV. It should also be added, that, according to the Cus- toms of the Realm, no one is bound to answer in his Lord's Court, concerning his Freehold Tenement, with- out the King's precept, or that of his Chief Justice ; I mean, if the Fee in question be a lay one. But, if the Plea should be between two Clerks, con- cerning a Tenement held in Frankalmoigne of an Ecclesiastical Fee, or if the Tenant, a Clerk, hold an Ecclesiastical Fee in Frankalmoigne, whoever may happen to be the Demandant, the Plea concerning the Eiirht ouffht to be in the Ecclesiastical Court, unless a Eecognition should be demanded, whether the Fee in question be Ecclesiastical or lay, of which we shall presently speak. For then such Eecognition, as, in- deed, certain others, must be held in the King's Court. 1 Namely, the services really due in respect of the Tenement. Digitized by Microsoft® \QOk |, CONCERNING PLEAS BY ASSISES AND RECOGNITIONS. AND OF DIFFERENT KINDS OF DISSEISINS. CHAP. I. The general course of Proceedings, as they more usually occur in Court upon the foregoing Writs of Eight, having been so far treated of, it now remains to speak concerning the steps commonly resorted to, where Seisin alone is in question. As these questions are, under the beneficial provisions of a Law of the Realm, which is termed an Assise, usually and for the most part decided by a Eecognition, our subject leads us to treat of the different kinds of Recognitions. CHAP. II. Theee is one species of Eecognition which is called mort D^ Auncestor'^ — another de ultimis presentationi- bus of Parsons to their churches — another, whether a Tenement be an Ecclesiastical Fee or Lay Fee — another, whether any one was seised of a Freehold on the day of his death, as of fee or as of pledge — another, ^ Vide Bracton 252. a. et. seq. 246 Digitized by Microsoft® 247 whether any one be under age or of full age — another whether anjj^ one died seised of a certain Freehold as of fee, or as of ward — another, whether any one pre- sented the last Parson to a Church, by virtue of the Fee that he held in his Demesne, or by virtue of a "Wardship. — And others of a similar description, which, as they frequently arise in Court when the parties are present, are, with their consent and the advice of the Court, directed, in order to determine the point in con- troversy. But there is another Eecognition which is called Novel Disseisin. When, therefore, any one dies seised of a Freehold in his Demesne as of Fee, the Heir may justly claim the seisin of his Ancestor ; and, if he be of full age, he shall have the following Writ— CHAP. III. « The King to the Sheriff, Health.^ If G., the son " of T. shall make you secure of prosecuting his claim, " then, summon by good Summoners, twelve free and " lawful Men of the Neighbourhood of such a Vill, " that they be before me, or my Justices, on such a " day, prepared on their oath to return, if T. the father " of the aforesaid O. was seised in his Demesne as of " Fee, of one Tardland, in that Vill, on the day of his " death — if he died after my first Coronation,^ and if 1 Vide F. N. B. 433. 2 This, Lord Coke informs us, was the 30th of October 1154. (3 Inst. 94.) A limitation of between 30 and 40 years. Digitized by Microsoft® 248 " the said G. be his nearer Heir. And, in the mean " time, let them view the Land and cause their names " to be imbreviated ; and summon, by good Summoners, " R. who holds that Land, that he be then there to " hear such Kecognition ; and have there the Sum- "moners &c. Witness &c." But, if the Ancestor was seised in the manner before mentioned, and had begun a Voyage, then, the Writ will be as follows — CHAP. IV. " The King to the Sheriff, Health.^ If O. the Son " of T. shall make you secure of prosecuting his claim, " then summon by good Summoners, twelve free and " lawful Men of the Neighbourhood of such a Vill, " that they be before me, or my Justices,^ such a day, " prepared upon their oaths to return, if T. the father " of the aforesaid G. was seised in his Demesne as of " Fee of one Yardland, in such a Vill, the day on which " he began his Journey to Jerusalem, or to St. Jago, " in which Journey he died. And, if he began his 1 Vide F. N. B. 434. In this Writ, says Fltzherbert, it sufflceth, if he were seised the day he went out of the Land and took the Sea, although it was not the day of his death. (Ubi supra.) "^ " Before this Statute," says Lord Coke, commenting on Mag. Carta, "the Writs of Assise, of Novel Disseisin and Mortdano' " were returnable either coram rege, or into the Court of Com- " mon Pleas : and this appeareth by Glanville — coram me vet " coram Justiciariis meis. But, since this Statute, these Writs " are returnable, coram Justiciariis nostris ad Assisas cum in "partes illasvenerint." (3 Inst. 24.) Digitized by Microsoft® 249 " Journey since my first Coronation, and if the afore- " said 0. be his nearer Heir. And, in the mean time " &c." as before. But, if the Heir be within age, then, the Writ will be as follows — CHAP. Y. " The King to the Sheriff, Health. Summon by " good Summoners, &c." in all respects as in the fore- going, except that in the present Writ this clause in the beginning shall be omitted, " if G. the Son of T. " shall make you secure of prosecuting his claim." ^ Also this clause in the body of the Writ is omitted,. " if T. the Father of the aforesaid Q. died after my "first Coronation." But, if he assumed the habit of Eeligion, then the Writ, in conformity to this circum- stance, will be varied in the following manner — CHAP. YI. " The King to the Sheriff, Health. If O. the Son " of T. make you secure &o." in all respects as before, excepting that in the present Writ there must be in- serted in the Body of it, " prepared upon their oath " to return if T. the father of the aforesaid G. was " seised in his Demesne as of Fee, of so much Land in. 1 Vide Fitz. N. B. 434. Digitized by Microsoft® 250 •" such a Till, the day on which he assumed the habit " of Eeligion ; and, if he assumed such habit after my " first Coronation ; and, if the aforesaid G. be his " nearer Heir ; and, in the mean time, that they view ■" the Land «fec." as before. CHAP. VII. The Writ of Mort B^auncestor'^ having been re- ceived by the Sheriff, and security given by the De- mandant in the County Court to prosecute his claim, the Proceeding in this manner comes to an Assise. In the first place, twelve free and lawful Men of the Neighbourhood are to be elected, according to the form expressed in the Writ, both parties being pres- ent, as well the Demandant, as the Tenant, or the latter being absent, provided he has been summoned once, at least, to be present at the Election. He is, indeed, to be once summoned in order that he may be present, and hear who are elected to make such Rec- ognition. Some of them he may for a reasonable cause object to, if he is so inclined, and they shall be 1 Though the Writs inserted in the three foregoing Chapters appear to be framed ■with a view to the death of the Demand- ant's Father, yet we are not from thence to infer, that the remedy, now under consideration, was confined in its applica- tion to the death of a Parent only, since the Ancestor in a Writ of inori d'auncestor was intended of the Father, Mother, Brother, Sister, Uncle, Aunt, Nephew, or Niece of the Demandant. But -here it ended. (See Bracton, 354. 361. and 3 Inst. 399.) Digitized by Microsoft® 251 excluded from the Kecognition. If he should not ap- pear at the first Summons, regularly proved in Court, he shall not be awaited any longer ; but, though he be absent, the twelve Jurors shall be elected, and then sent by the Sheriff to take a Yiew of the Land or other Tenement in question. Tet the Tenant shall have one Summons on this account. The Sheriff shall cause the names of the twelve persons elected to be imbreviated. Having done this, the Sheriff shall cause the Tenant to be summoned to appear on the day appointed by the King's Writ, or that of his Justices, before the Xing, or his Justices, to hear the Recognition. But, if the Demandant be of full age, the Tenant may essoin himself on the first and second day,^ but on the third day he cannot do so, since the Kecognition shall be then taken, whether the Tenant appear or not ; because in no Recognition, where Seisin alone be in question, are more than two Essoins allowed. But, in a Recognition of Novel Disseisin, no Essoin is permitted. On the third day, therefore, whether the Tenant appear or not, the Assise must be taken, as we have observed ; and, if the Jurors should decide for the Demandant, Seisin shall be adjudged him, and the Sheriff shall be directed to put him into Seisin, by the following "Writ 1 " The reason why Assises were more expeditious than other " remedies, arose from no Essoin being allowed in them"— says Mr. Harrington, (Observations on Ancient Statutes, p. 105.) which, from the text of Glanville, appears evidently to be an inaccuracy, as a general position. Digitized by Microsoft® 252 CHAP. VIII. " The King to the Sheriff, Health. Know, that If. " has, in my Court, recovered Seisin of so much Land, " in such a Vill, by a Recognition of Mort D^auncestor " against R. and, therefore, I command you, that you " cause him to have the Seisin without delay — Wit- " ness &c." CHAP. IX. ■ But, together with the Seisin, the successful party shall recover the possession of all the chattels and other things found in the Fee, at the time of delivering Sei- sin. But, after the Seisin has been fully recovered, the party who has lost it may sue concerning the Eight, by means of a "Writ of Right. Yet it may be ques- tioned, to what time this is to be restricted, after res- titution has been fully made. CHxiP. X. But, if the decision be in favor of the absent Tenant, the Seisin shall then remain to him, without his Ad- versary being able to recover it. But such Seisin shall be no bar to a Suit concerning the Right. Nor shall a Plea of Right concern-ing any Tenement, prevent a Recognition for recovering the Seisin of a person's An- Digitized by Microsoft® 253 cestor in the same Tenement, previously to the waging of the Duel. But, how then shall his contempt of Court be punished ? CHAP. XI. Both Parties being present in Court, it is usual to inquire of the Tenant whether he can shew any reason, why the Assise should not proceed ? And, here it should be observed, that a person of full age sometimes demands a Eecognition of this kind ^ against a Minor — sometimes a Minor demands it against one of full age — sometimes a Minor against a Minor — sometimes one of full age against another of that description.^ Generally speaking, the Assise shall not proceed, if the Tenant admits in Court, that the Ancestor, on the strength of whose Seisin the Demandant founds his claim, was seised on the day of his death in his Demesne as of Fee, with the other circumstances expressed in the Writ. But, if the Seisin only be conceded, the other cir- cumstances not being admitted, then, the Assise shall proceed upon the circumstance or circumstances not conceded. An Assise of this kind is accustomed to cease for many causes — if, for example, it should be 1 No one of full age was allowed by the Norman Code to prose- cute a Mort D'au7icestor, unless he had purchased his writ within a year and a day after his Ancestor's death had been publicly proclaimed. (Grand Oust. c. 99.) 2 See Bracton 274. a. et seq. Digitized by Microsoft® 254 alleged by the Tenant, that the Demandant was seised after the death of his Father, or any one of his Ances- tors, whether the Ancestor was seised or not, on the day of his death ; and, whilst the Demandant was in such Seisin, that he had done, with respect to himself, some such act as debarred him of subsequently resort- ing to the Assise — as if he had sold, given, or quitted claim, or, by any other lawful means, had disposed of the Land in question to the Tenant.^ Should such a defence be set up, recourse may be had to the Duel, or to any other usual mode of proof,, consistent with the practice of the Court, where the Right to any property is in question. The same ob- servation applies, should it be alleged by his Adversary,, that the Demandant had, on a former occasion, im- pleaded him, when a Fine was made between them in the King's Court ; or that the Land belonged to the- Tenant by the decision of the Duel, in whatever Court it may have been waged ; or by a Judgment, or by quit-claim .2 Yillenage, also, if it be in Court objected and proved against the Demandant, takes away the- Assise.^ An exception of Bastardy has the same effect.^ The King's Charter, also, in which the Land,, the Seisin of which is demanded by the Assise, is. specifically named or confirmed to the Tenant, as, indeed, the conjunction of more Heirs than one, of 1 Braoton, 370. b. 2 Bracton, 271. b. ' Bracton, 271. b. and Ante L. 5. c. 5. * Bracton, 280. a. and Ante L. 7. c. 13. Digitized by Microsoft® 255 Females, for example, in a Military Fee, or of Males or Females in free soccage Tenure.^ Again — if it be conceded, that the Ancestor upon, whose Seisin the Demandant founds his claim, had a certain degree of Seisin, namely — one derived through the Tenant himself or his Ancestor, as from a Pledge, a Loan or any other cause of this nature, the Assise- shall not go forward, but recourse must be had to an- other mode of proceeding. Consanguinity, also, takes away the Assise ; namely,, if the Demandant and Tenant should have sprung from the same stock from which the Inheritance, the Seisin of which is in question, has descended, and such fact has been objected and proved in Court.^ Another cause has been mentioned in treating of Marriage-hood,, when the Eldest Son has given a certain part of his- Lands to his Tounger Brother, who dies without leav- ing any Heir of his Body.^ In this case, as in others of a similar description, the Assise we are now treating- of shall cease, since the same person cannot be both Heir and Lord of an Estate* If, also, the Demandant be convicted, or, indeed, confess, that he was formerly in Arms against the King, the Assise which he so de- mands in Court shall from such circumstance cease.^' By reason, also, of Burgage Tenure, the Assise does not usually proceed. This is in compliance with a par- 1 Braoton, 372. b.— See ante p. 136. Note 3. 2 Vide ante L. 3. c. 6. ^ vide ante L. 7. c. 1. « Vide ante L. 7. o. 1. ^ Bracton, 273. b. Digitized by Microsoft® 256 ticular Law of the Eealm,^ having for its object great- er utility. But, if no exception be taken in Court, on account of which the Assise ought to cease, the Recog- nition shall proceed; and, in the presence of both parties, the Seisin shall, on the oaths of the twelve Jurors, and according to their verdict, be adjudged to the one or the other, in the manner described in a former part of this Book. CHAP. XII. But, when a Minor prays an Assise of the kind we are treating of against one of full age, then, indeed, the latter shall not be allowed any Essoin against the for- mer, because, on the first day, the Kecognition shall proceed, whether the Tenant appear, or absent him- rself. And this upon a general principle. For, whenever it happens, that the Tenant, if present in Court, cannot allege any cause why such Assise ■ ought not to proceed, the Eecognition ought by right 1 We may conjecture, that this Law was corroborative of the particular Customs of certain Cities and Boroughs, under which the Citizens and Burgesses could make a Will of Lands. Where such Customs prevailed, it was an idle thing to inquire whether the Ancestor died seised. It seems, London and Oxford enjoyed these Customs. (Bracton fo. 372.) Mr. Somner con- ceives, that the utility aimed at by the Law in question and the foundation of it was, the good of the Commonwealth, by the maintenance of traffic, which was much encouraged by the liberty of a free devise, though this is somewhat darkly pointed at, as he says, by Glanville in the present passage. (Somner on Gavel- kind, p. 97.) Digitized by Microsoft® 257 to proceed, without awaiting the appearance of the ad- verse party. But, if the Tenant were present, he could not, as we observed, allege that the Minor had done any thing on account of which the Assise should cease ; and, therefore, the Recognition shall unquestionably proceed, whether the Tenant, being of full age, appear or not, according to the form before mentioned ; and thus, restitution having been made to the Minor through the Recognition, the full age of the Minor shall be awaited, if it be intended to sue him concerning the Right. But when one Minor sues another, the Recog- nition shall proceed in the same manner, and without any variation, as it usually does between a Minor and one of f uU age. CHAP. XIII. But, when a person of full age proceeds against a Minor, the latter, indeed, may avail himself of an Es- soin against his Adversary, in the usual manner. "When he appears, he may pray a delay. On account of his Age, and that the Recognition may not be taken, until he is of full age ; and, thus, on account of Age, the Recognition of mort d'auncestor usually stands over. But here we should observe, upon the necessity which exists, in order that such Assise should stand over on account of his age, that the Minor should allege him- self to be in Seisin of the Tenement in question, and, therefore, that the Recognition ought not to proceed, before he has attained his full age: nor should he 17 Digitized by Microsoft® 258 omit, that his Father or some other Ancestor was seised on the day of his death ; since, neither a Recognition against a Minor, nor even a suit concerning the pro- priety, shall cease, by reason of the Seisin of a Tene- ment which any Minor has himself acquired and retains only by his own right. But, if it be replied to a Minor, that his Ancestor died seised of the Tenement, the Seisin of which is sought by the Recognition, not as of Fee, but as of Ward, then, indeed, although the principal Recognition ought to cease, on account of the Minor's age, yet another Recognition shall proceed upon the point, whether the Minor's Ancestor was seised as of Fee or of "Ward, on the day of his death ; and the Assise shall be summoned, by the following Writ. CHAP. XIY. "The King to the Sheriff, Health. Summon by " good Summoners, twelve free and lawful Men of the " Neighbourhood of such a Vill, that they be before " me, or my Justices, at such a day, prepared upon " their oaths, to return, if H. the Father of N. who is; " within age, was seised in his Demesne of one plough- " land in that Vill, of which M. the Son and Heir of " /. prays a Recognition of the death of the said I. " his Father, against the said N. as of his Fee on the " day he died, or as of Ward. And, in the mean time, " let them view that Land ; and cause their names to " be imbreviated. And summon, by good Summon- Digitized by Microsoft® 259 " ers, the aforesaid iT. who holds such Land, that he " be then there to hear the Recognition. And have " &c." CHAP. XY. But, it should be observed, that if a day has been given for this purpose to both parties, when present in Court, then, the Tenant ought not to be summoned. But thereupon, a Kecognition shall proceed to be taken on the oaths of twelve Jurors, and, accordins: to their Verdict, shall it be declared, what Seisin the Minor's Ancestor had, on the day of his death, in the Tenement in question ; and, if it should be proved, that the Ancestor of the Minor had no Seisin on the day of his death, unless as of Ward, then, the Demandant shall recover Seisin against the Minor. But, it may be questioned, whether this alone be sufficient to enable him to recover Seisin. It does not appear to be so; because this by no means proves, that the Demandant's Ancestor was seised in his Demesne as of Fee, on the day of his death; nor even that the Demandant be his nearer Heir. But, on the contrary, it may be said, that this being proved, the Minor has consequently no right afterwards to retain the Seisin. But if this assertion be correct, to whom is the possession to be restored ? whether, in such a case, must recourse be had to the principal Eecognition ? If, however, it be proved by Digitized by Microsoft® 260 the oaths of the twelve Jurors, that the Minor's An- cestor was seised on the day of his death, as of Fee, then, the Seisin shall continue to the Minor without disturbance, until he arrives at his full age. But, in such a case, can his Adversary or his Heirs on any future occasion be again heard ? He may at least with respect to the Propriety of that Tenement, as against the Minor, when he has attained his full age, or against his Heirs. In addition, the Assise should proceed against a Minor in that one case only, which we observed, in treating concerning Heirs within age.i Upon the Assise proceeding against a Minor, if the Seisin should be awarded to continue with him, he shall not answer concerning the Eight, until he has attained his full age. For, it is a general prin- ciple, that a Minor is not obliged to answer to any suit by which he may possibly be deprived of his Inherit- ance, or by which he can lose life or member, until he attain his full age. Yet, in certain other cases, he is bound, as, for example, respecting his paternal Debts, or his own, and in case of a ISTovel Disseisin. Should, however, the Seisin be adjudged against the Minor, in favor of the Demandant, restitution shall be made to him in the form before mentioned, nor shall he answer to the Minor upon the question of Right, until such Minor has attained his full age, as the latter would not be bound to answer the Demandant. The reason is of general force : because, such transactions, as take place 1 Vide L. 7. c. 9. &o. Digitized by Microsoft® 261 with Minors, in Pleas of this description, ought not to be held firm and unalterable. But if, on a Minor alleging himself intitled to the privilege of his age, it should in Court be objected, that he is of full age, this is usually ascertained by a Kecognition of eight free and lawful Men, who are to be summoned for such purpose, by the following Writ— CHAP. XVI. " The King to the Sheriff, Health. Summon, by " good Summoners, eight ^ free and lawful Men of the " jSTeighbourhood of such a Yill, where the Tenement in " question is, that they be before me or my Justices, " on such a day, prepared on their oaths to return, " whether iV., who claims one Hyde of Land in that " Yill by my Writ against R., be of such age, that he " can and ought to sue ; and, in the mean time, let them " view that Land, and cause their Names to be imbre- " viated ; and Summon, by good Summoners, him who " holds the Land, that he be then there to hear that " Eecognition. And have, &c." CHAP. XYII. If, therefore, the full age of the person whose age is in dispute shall be proved by such Eecognition, from 1 Vide F. N. B. 569. where twelve Jurors ai-e mentioned. Digitized by Microsoft® 262 thenceforward he must be treated as one of full age, so far as respects the principal Eecognition. But, it may be doubted, whether, generally speaking, and with reference to the suits ^ of others, he should, by force of the present Eecognition, be considered as of full age, in such manner as not to be able to protect himself under the privilege of age. But, if such Rec- ognition should find him a Minor, he shall avail him- self of the privilege of infancy, so far as respects the principal Eecognition ; but, it may be questioned, how- far he can avail himself of it on other occasions and in other suits. CHAP. XYIII. It follows, that we speak of the Eecognition de uL timd presentatione? If, upon the vacancy of a Church, there be a controversy concerning the Presentation, it 1 Impetitionem pro impetitiones. The term appears to be gen- erally employed to designate a criminal proceeding ; and, if we meet with it connected with the term waste — sine impetitione vasti, we must recollect, that waste under the feudal law was considered as a criminal offence. A much greater latitude was afterwards allowed in the application of the term. (Vide Spelm. Gloss, ad voc. impetitus and impetitio and Cowell ad voc. impeachment, &e.) 2 Vide Bracton 237. b. et seq. It is not, perhaps, irrelative to observe, that Lord Coke refers to this and the two following chapters among other authorities to prove, that, at Common Law, if a stranger had presented his clerk and he had b^en ad- mitted and instituted to a church, whereof anysubjer^t had been lawful Patron, the Patron had no other remedy to recover his advowson, but a writ of right of advo^v^n, wherein the Incum- bent was not to be removed. (Co. Litt. 344. a.) Digitized by Microsoft® 263 may be decided by a Recognition de ultima presenta- Hone, upon either of the litigating parties requiring it in Court. On such an occasion, he shall obtain the following "Writ — CHAP. XIX. " The King to the Sheriff, Health.^ Summon, by *' good Summoners, twelve free and lawful Men of the "Neighbourhood of such a Vill, that they be before *'me, or my Justices, such a day, prepared on their " oaths to return, what Patron presented the last Par- " son who died, to the Church of such a Yill, which is, " as it is said, vacant, and of which N. claims the Ad- " vowson ; and cause their names to be imbreviated ; "and summon, by good Summoners, i?., who deforced " that Presentation, that he be then there to hear the " Recognition — and have there, &c." CHAP. XX. As to the Essoins allowed in this species of Recog- nition, they may be collected from what has gone be- fore. Upon the Recognition proceeding, whether both of the parties be present, or one of them be absent, the person, to whom, on his own, or his Ancestor's Seisin, the last Presentation shall be adjudged, is understood 1 F, N. B. 68. Digitized by Microsoft® 264 thereby to have recovered Seisin of the Advowson itself ; so that, upon his Presentation, the Bishop of the place shall institute the first Parson, if a proper person,^ into the vacant Church, which he shall retain during his whole life upon his Patron's Presentation, whatever may afterwards happen, with respect to the Eight of Advowson. For the person, against whom the last Presentation has been awarded by the Kecog- nition, may proceed against the other, or his Heirs, upon the Eight of Advowson, the nature of which has been explained, in a former part of this Treatise. It may be asked, whether, from the first, any thing can be alleged to prevent the Assise from going forward. In order to effect such object, the Tenant may admit, that the Ancestor of the Demandant made the last Presentation, as the real Lord and the Eldest Heir, but that he afterwards transferred the Fee, to which the Advowson is appendant, to the Tenant or his An- cestors, by a good Title ; and thus upon this allegation the Assise shall cease, and a Plea may then be had re- course to between the litigating parties, upon this ex- ception. Upon this exception, either of the parties may desire a Eecognition, and is intitled to have it. But either of the litigating parties may admit, that the other, or one of his Ancestors, made the last Presenta- tion, but not as of Fee, but of Ward, and may demand, and shall obtain, a Eecognition upon this point. Such Eecognition shall be summoned by the following "Writ — 1 " A worthy man, qualified in literature, life, and manners " — ■ are the words of the Eeg. Maj. L. 1. c. 3. Vide 1 Bl. Comm. 389, Digitized by Microsoft® 265 CHAP. XXI. " The King to the Sheriff, Health. Summon, by " good Summoners, twelve free and lawful Men of " the Neighbourhood of such a Yill, that they be be- " fore me, or my Justices, at such a day, prepared on " their oaths to return, if R,, who presented the last " Parson, who is dead, to such a Church, by reason of " the Tenement that he held in such a Vill, made " such Presentation, as of Fee, or as of Ward,^ and " cause their names to be imbreviated ; and summon, by " good Summoners, him who has deforced the Presen- " tation, that he be then there, &c." CHAP. XXII. The fact being ascertained by the Kecognition, if the last Presentation was made as of "Ward, the Ad- vowson of the Presentation is at an end, and the Pres- entation itself shall belong to the other party. But if, as of Fee, the Presentation shall continue to him. CHAP. XXIII. It follows to ti'eat of the Recognition to ascertain, whether a Tenement be a Lay, or an Ecclesiastical Fee. Upon either of the parties desiring to have such 1 " And, in the mean time. let them view the Tenement" — added in Cotton, and Bodln. MSS. Digitized by Microsoft® 266 JRecognitiou, it shall be summoned by the following Writ— CHAP. XXIV. " The King to the Sheriff, Health. Summon, by " good Summoners, twelve free and lawful Men of " the Neighbourhood of such a Vill, that they be be- " fore me, or my Justices, such a day, prepared upon " their oaths to return, whether one Hyde of Land, " which N., the Parson of the Church of that Yill, " claims, as held in Frankalmoigne by his Church, " against B. in that Yill, be the Lay Fee ^ of the '^aid " i?., or an Ecclesiastical Fee ; and, in the mean time, " let them view the Land, and cause their names to be " irabreviated. And summon, by good Summoners, " the aforesaid B., who holds that Land, that he be " then there to hear the Recognition, and have there, « &c. Witness, &c." CHAP. XXV. Neitheb in this Recognition, nor in any other, -ex- cept the Recognition of the Grand Assise, are more than two Essoins permitted. Because a third Essoin 1 Sit laioum feodum. " A Juris Utruni did lie at the Common " Law for a Parson against a Layman, and for a Layman against " a Parson : but no Juris Utrum did lie for one Parson against " another, before this Act, (Westmr. 2d.) because it was the " Eight of the Church and no Lay Fee. And the words of tlie ■" writ at the Common Law were, an sit laicum feodum, &c." (Vide 3 Inst. 407. and the authorities cited by Lord Coke.) Digitized by Microsoft® 267 is never allowed, unless ■where it can be judicially ascertained, whether an illness amount to a languor or not. As this is not usually done in Eecognitions, they necessarily preclude a party from casting a third Essoin. The Eecognition we are now treating of proceeds in the manner we have described, when discussing other Eecognitions. Tet, should it be observed, that if, by the Eecognition, a Tenement be proved to be an Ec- clesiastical Fee, it cannot afterwards be treated as a Lay Fee, although it may be claimed by the Adverse :party to be held of the Church, by a stipulated service. CHAP. XXYI. Our subject leads us, in the next place, to consider "that species of Eecognition which is usually resorted "to, in order to ascertain, whether a person died seised •of a certain Freehold, as of Fee or as of Pledge. When any one claims a certain Tenement to be restored to him, as pledged, either by himself, or one of his An- cestors, if the Tenant does not acknowledge the Tene- ment in question to be a pledge, but asserts in Court that he is seised of it as of Fee, recourse is usually had to a Eecognition, which shall be summoned by the fol- lowing "Writ CHAP. XXVII. "The King to the Sheriff, Health. Summon, by ■"good Summoners, twelve free and lawful Men of Digitized by Microsoft® 268 " such a Yill, that they be before me, or my JusticeSy " such a day, prepared upon their oaths to return^ " whether N. holds one plough-land in such a Yill, " which R. claims against him by my Writ, in Fee or " in Pledge, as pledged to him by the said E. or by " H., his Ancestor." Or thus — " whether that plough- '' land, which li. claims against N., in such a Yill, by " my "Writ, be the Fee or Inheritance of the said iV^.,, " or Pledged to him by the said H., or by the said i7.,. " his Ancestor ; and, in the mean time, let them view "that Land ; and cause their names to be imbreviated ;. " and summon, by good Summoners, the aforesaid N., " who holds that Land, that he be then there to hear " the Kecognition — And have there, &c." CHAP. XXYin. But, it sometimes happens, that a person holds a Tenement as a pledge, and so dies seised of it. His Heir, also, by reason of such a Seisin, prays a "Writ of Mort D'aunoestor against the true Heir, who has ob- tained the Seisin of the Tenement in question. If, in- deed, it should then be acknowledged by the Tenant, that the Ancestor of the Demandant had died seised, but as of Pledge, and not as of Fee, the consequence is, that recourse must be had to the before mentioned Recognition, which shall be summoned by the follow- ing "Writ Digitized by Microsoft® 269 CHAP. XXIX. " The King to the Sheriff, Health. Summon, by " good Summoners, twelve, &c., that they be, &c. " prepared upon their oaths to return, whether N., ^' the father of li., was seised in his Demesne, as of ^' Fee, or as of Pledge, of one plough-land, in such a " Vill, the day on which he died. And, in the mean *' time, &c." CHAP. XXX. It being proved by the Kecognition, that the Tene- ment in question is a pledge, then, the Tenant who has asserted it to be his Fee shall lose the Tenement in question, so that he shall not, by reason of its having been a pledge, recur to it for the recovery of his Debt.^ But, if it be decided to be the Fee of the Tenant, then, the Demandant shall from henceforth be barred from any recovery unless by a "Writ of Eight. It may' be asked, whether in this Recognition, or in any other, a person's "Warrantor should be awaited, whatever de- scription of "Warrantor, or for whatever cause he may be such, especially if the "Warrantor should be called into Court upon this subject after two Essoins ? 1 The text is obscure, and contradictory : most probably, falsely transmitted to us. This is answered in the affirmative by the Eegiam Majestatem. L. .3. c. 35. * Digitized by Microsoft® 270 CHAP. XXXI. The Recognitions which remain may be partly col- lected from the preceding Recognitions — and partly from the Judgment of the Court, founded on the alle- gations of both parties. With respect, for example, to the Recognition to ascertain, whether a person be within age or not — some mention and notice are taken of it in the fifteenth, sixteenth, and seventeenth Chap- ters of the present Book. In like manner, concerning the Recognition, whether a person was, on the day of his death, seised of a cer- tain Freehold, as of Fee or of A¥ard, in the thirteenth, fourteenth, and fifteenth Chapters of this Book. In the same manner, concerning the Recognition, whether a person presented the last Parson, in right of his Fee, or his Wardship, in the twentieth, twenty-first, and twenty-second Chapters of the present Book. These Recognitions follow those we have previously treated of with respect to Essoins, and proceed or cease for the same reasons. CHAP. XXXII. In the last place, it remains for us to speak, concern- ing that species of Recognition, which is called Novel Disseisin} When any one, therefore, unjustly and 1 As to the term novel, when the Action was brought before the Eyre, or Circuit, the Action or Disseisin was ancient, whilst. Digitized by Microsoft® 271 without a Judgment, has disseised another of his Free- hold ; and the case fall within the King's Assise, or in other words, within the time for such purpose ap- pointed by the King with the advice of his ^ Nobles (which is sometimes a greater,'' sometimes, a less period) this Law comes to the aid of the person disseised, who shall have the following Writ CHAP. XXXIII. " The King to the Sheriff, Health.^ iT. complains " to me, that R. has, unjustly and without a Judgment, if the Disseisin were done since the last Eyre, then it was a ncyvel Disseisin. Bracton treats largely upon the subject of novel Disseisin 160, et seq. See also 3 Inst. 24. The remedy of novel Disseisin is also treated of in the Assises of Jerusalem, with some peculiar provisions adapted to the singular circumstance* in which the Holy Land was situated, (c. 63. et seq.) The re- spectable Translator of the Code Napoleon observes, that he has^ not met with the terra novel disseisin before Magna Carta. — Amidst the attention of preparing his work for the press, he 'must have forgotten not only Glanville, but the Mirror. — Wha;l- ■ ever doubt maybe entertained respecting the authority of the Mirror, yet Glanville indubitably proves, that the term was well known to our lawyers antecedent to the Great Charter. (See Mirror, c. 3. s. 25.) 1 Meaning the Parliament, according to Judge Blackstone. (1. 147. 148.) ^ The words inserted in this parenthesis have been thought to- be an interpolation of a later date. (1. Beeves' Hist. Eng. Law. 189.) Yet this suggestion may very reasonably be questioned — as the passage seems merely assertive of what must necessarily- be the fact. It was a consequence of fixing the time of limita- tion to the coronation of the king, his Journey into Normandy,. or any other event, that the time itself must be altering daily.. (Vide 3 Inst. 94.) 8 Vide F. N. B. 394. Digitized by Microsoft® 272 ■" disseised him of his free Tenement, in such a Yill, " since my last Voyage into ISTormandy ; ^ and, there- " fore, I command you, that if the aforesaid N. should " make you secure of prosecuting his claim, then, you " cause the Tenement to be reseised, with the Chattels -" taken on it, and that you cause him with his Chattels " to be in peace,^ until the Pentecost ; and, in the mean " time, you cause twelve free and lawful Men of the " Neighbourhood to view the Land, and their names to " be imbreviated ; and summon them, by good Sum- " moners, that they be then before me, or my Justices, " prepared to make the Kecognition ; and put, by gage " and safe pledges, the aforesaid R.^ or his Bailiff,^ if " he be not to be found, that he be then there to hear " such Recognition, and have there, &c. "Witness, &c." CHAP. XXXIV. But "Writs of ISTovel Disseisin are varied in different Tnodes, according to the diversity of the Tenements in which Disseisins are committed. But if any Dyke* 1 So. 1184. If the present Treatise was wi-itten in 1187, the remedy of novel disseisin stood limited to three years, ■which, of course, was every day lengthening until a new ^ra was fixed. 2 Affirmed by Statute of Merton, c. 37. (3 Inst. 235.) 3 Vide Note 3. p. 235. * Fossatum. This word occurs in Pliny. It seems to have been chiefly used by the old Lawyers in two senses — 1. as denot- ing a camp, or intrenchment — 3. as meaning a ditch, dyke, or moat. But it was not always confined to these significations — as the reader will perceive on turning to the Ancient Glossaries, particularly to that very valuable one given to the world by Spelman. Digitized by Microsoft® 273 should be raised or thrown down, or the Pond ^ of any Mill be destroyed, to the injury of any person's Free- hold, and such offence has been committed, within the time limited by the King's Assise, then, according to the subject matter, the Writs are varied in the follow- CHAP. XXXY. " The King to the SheriflF, Health.* N. complains *' to me, that B., unjustly, and without a Judgment, " has raised a certain Dyke in such a Yill, or thrown *' it down, to the nuisance of his Freehold, in the same " Yill, since my last Yoyage into Normandy — And, " therefore, I command you, if the aforesaid N. should " make you secure of prosecuting his claim, then, that " you cause twelve free, &c. to view such Dyke and ^' Tenement, and cause their names to be imbreviated. *' And summon, by good Summoners, &c." as before. CHAP. XXXYI. " The King to the Sheriff, Health.^ N. has com- *' plained to me that R., unjustly and without a Judg- ■" ment, has raised the Pond of his Mill, in such a Yill, *'to the nuisance* of his Freehold, in such Yill, or 1 Stagnum, Sir Edward Coke informs us, " doth consist of •• Water and Land, and, therefore, by the name of Stagnum, or a " pool, the water and land shall pass also." (Co. Litt. 5. a.) « Vide F. N. B. 408. 409. « Vide F. N. B. 407. * See Bl. Com. 3. 220. i8 Digitized by Microsoft® 274 " in another Yill, since my last Voyage into Nor- " mandy. And, therefore, I command you, that if the " aforesaid N. should make you secure of prosecuting- " his claim, then, you cause twelve free, &c. to view " that Pond and Tenement, &c." as before.. If, however, the Disseisin concern Common of Pas- ture, then, the Writ shall be as follows — CHAP. XXXYII. " The King to the Sheriff, Health.^ N. complains " to me, that B., unjustly and without a Judgment, " has disseised him of his Common of Pasture, in such " a Vill, which belongs to his Freehold, in such ViU,. " or in that other Yill, since my last Yoyage inta " Normandy. And, therefore, I command you, that " if the aforesaid N., has made you secure of prose- " cuting his claim, then, you cause twelve free, &c. to- " view that Pasture and Tenement, and their names,, " &c." CHAP. XXXYIIL In this species of Eecognition no Essoin is per- mitted.^ For, on the first day, and that whether the party 1 Vide F. N. B. 399. * But one Essoin, and le default allowed by the Normaa Code ! (Grand Custuni. c. 94.) Digitized by Microsoft® 275 committing the Disseisin should appear or not, the Rec- ognition shall proceed,^ because it spares no person, neither one of full age, nor a Minor, nor will await even a Warrantor. But, if a party should acknowledge such Disseisin in Court, naming, at the same time, a "Warrantor, the Eecognition shall thereby cease, and the person who has so acknowledged shall be amerced to the King. The Warrantor shall be afterwards summoned,'^ and the Plea proceed between him and the person who has, on this occasion, nominated him as Warrantor. Yet, should it be observed, that the unsuccessful party, whether the Appellor or the appealed,^ shall in 1 The Norman Code describes the whole proceeding at length. The names of the Jurors having been called over in open Court, the Parties are at liberty to take any Legal Exceptions to them. The Jurors are then individually sworn to speak the truth. After this, no person shall be allowed to hold any private communica- tion with them, unless it be the Judge. The Judge shall in the next place solemnly charge them to return a true verdict, briefly stating to them the object for their consideration. Tlie Jurors shall then consult upon their verdict, and, in the Tnean time, shall be strictly guarded, least they be corrupted. Having con- sidered of their verdict, if they all agree, one of them shall de- liver it into the Judge in open Court. (Le Grand Custum. de Norm. c. 96.) 2 The Norman Code, acting, in this instance, upon a more pure and refined principle of legislation, allowed no Warrantor to be vouched to justify a novel Disseisin — Violentum enim est et nulla modo sustinendum, &c. (Grand Cust. de Norm. c. 94.) 3 Appellans sive appellatus. These terms are generally used in a criminal sense. Their application in the present instance may be accounted for by reflecting, that a Disseisin, being in the eye of the law accompanied by force and a violation and disturbance of the peace, was to a certain degree a criminal offence. — See Mirror, c. 3. s. 23. Digitized by Microsoft® 276 every instance be amerced to the King, on account of the violent Disseisin. In addition, if the Appellor should not keep his day, then, also, his Pledges are to be amerced to the King. The same Eule prevails, with respect to the person of the other party, should he absent himself at the appointed day. The Penalty inflicted by this Constitution is merely an Amercement to the King. But, in this Recognition, the party who has proved the Novel Disseisin, may obtain, that the Sheriff should be directed to deliver him the Chattels and the Fruits, which have, by the authority of the King's "Writ, or that of his Justices, been in the mean time seised.^ In no other Recognition does the Judgment of the Court usually make any mention concerning the Chattels or Fruits ; and, unless the Sheriff has taken steps to satisfy, him out of the Chattels or Fruits, then, the party who complains of it, shall obtain the follow- ing Writ — CHAP. XXXIX. " The King to the Sheriff, Health.^ I command "you, that you compel N., justly and without delay, ^ " And, moreover, the Pursuer, who has proved the Ejectment " may eflfectually desire.that command shall be given to the Sher- " iff to deliver to him so much of the moveable Goods pertaining "to the Defender, or of the fruits of the Land which was arrest- "ed by the King's precept, as extends to the sum of ten Marks." (Eegiam Majestatem, L. 3. c. 36.) The Reader must not start at the modern term Ejectment. It is only the language of Skene, the Translator. ^ The same writ is to be found, L. 13. c. 18. Digitized by Microsoft® 277 " to render to E. his Chattels, since he complains that "he took them, unjustly and without a Judgment, from " his Free Tenement, in such a Yill, since the Disseisin " he did to him, since my Assise, of which he will re- " cover the Seisin before my Justices, by a Recognition " of Novel Disseisin, as he can reasonably shew that he " ought to have them, least more, &c. Witness, &c." ^ 1 In quitting this Book, which treats so largely of Assises, I shall make no apology to the Reader for extracting the following observations from Mr. Reeves's highly valuable work. " It must " be observed of these Assises (for so they are sometimes called " by Grlanville, but more commonly Recognitions) that they are "not all of the same kind ; that de morte antecessoris being evi- " dently an original proceeding, independent of any other ; the " rest (not excepting that de ultima presentatione, and that " utmm laicum feodum vel ecclesiasticum) being merely for the " decision of facts which arose in some original action or proceed- " ing. Thus the writs for summoning Recognitions of the latter " kind were simple writs of Summons: they mentioned that a " Plea was depending in Court by the king's writ ; and they " were granted at the prayer of either party : so that they "seemed to be resorted to, by the assent of parties for settling an "incidental questior, on which they put the dispute between "them. On the other hand, the writde morte antecessoris has " all the appearance of an original commencement of a suit. It " issued only upon condition the Demandant gave security to " prosecute it, Si Q. fllius T. fecerit te securum de clamore sua "prosequendo, tunc summone, and made no mention of a plea " depending. Of the same kind was the writ de novd desseisind." (Reeves's Hist. Eng. Law, 188.) Digitized by Microsoft® 278 iMft IJf . CONCERNING CRIMINAL PLEAS WHICH BELONG TO THE CROWN. CHAP. I. Having thus far treated of those Civil Pleas which are discussed in Court, it remains for us to speak con- cerning Criminal Pleas. When, therefore, any one is charged with the King's death, or with having pro- moted a sedition in the Eealra or Army,i either a cer- tain Accuser appears, or not. If no certain Accuser should appear, but the public voice alone accuses him,^ 1 When any one, says Bracton, speaking of the crime of Isese majesty, knows another to be guilty, he is instantly to apprise the king, or one of his ministers. He should not abide in one place for two nights nor two days ; but disregarding every other affair, however urgent, he should hasten to the king, scarcely daring to wait to look behind him. (Bracton 118. b. See also Fleta L. 1. c. 31. 23. and Mirror c. 8. s. 1.) In the latter Autlior, we find the following despotically comprehensive definition. — " Treason is every mischief which a man knowingly does or pro- " cures to be done to one he is in duty bound to be a friend to." 2 This is a most singular part of the Code of the age when Glanville lived. The obligation upon a man to defend himself, when another starts forward to accuse him, seems the necessary result of men living together in a state of society, and, as coeval with society itself, is strongly enforced by the municipal Laws of every Nation. Tliis seems to have been the object of the punishment peine forte et dure. That singular institution shewed Digitized by Microsoft® 279 then, from the first, the accused shall be safely at- tached, either by proper Pledges, or imprisonment.^ The truth of the fact shall, then, be inquired into, by means of many and various inquisitions and interroga- tions, made in the presence of the Justices, and that, by taking into consideration the probable circumstances •of the facts, and weighing each conjecture that tends dn favor of the accused, or makes against him ; because he must purge himself by the Ordeal,^ or entirely ab- a strong, but rough, hand in the Legislature, more capable of directing its laws to a good and wise end, than nice or happy in selecting the means. The proceeding was naturally abolished as the Law became more refined — more humanized. As to the passage of our Author's text now before us, it receives some light from Bracton — a suggestion, for which I am indebted to Mr. Reeves's valuable work. Bracton speaks of an Indictment perfamampatrioe, which, in all probability, was the same pro- ceeding our Author alludes to. The foundation of that proceed- ing was a presumption entertained by good and grave men who deserved credit, and not the flying report of common conversa- tion. (143. a.) But the subject receives additional elucidation from the Norman Code. In criminalibus tamen manifestis seu motoriis maliciis quos famd publicd seu fide dignorum tesiimo- nium nunciant eulpabiles, non expectato Juris ordine debent ar- restari et carceribus mancipari. (Grand Oust. c. 4. and 68.) In Mr. Kelham's translation of Britton's Pleas of the Crown, (page 18. Note 15.) the Reader will find the valuable record of an In- dictment on suspicion. The Reader may also be referred to Bracton 143.— LL. Hen. 1. c. 45.— Mirror c. 3. s. 23. and Fleta L. 1. c. 31. 1 " At the Common Law a man accused or indicted of High •" Treason, or of any felony whatsoever, was bailable, upon good " security : for at the Common Law the Gaol was his pledge or " security that could find none." (2 Inst. 189.) This serves to elucidate the text, which is obscure from its brevity. A similar explanation is given in the progress of the present chapter, but is qualified, with the exception of the plea of Homicide. 2 Per legem apparentem. Alluding to the passage now before us. Sir Henry Spelman observes, " I do not think it should be un- Digitized by Microsoft® 280 solve himself from the Crime imputed to him. But if on the trial by the Ordeal, a person is convicted of a Capital Crime, then the Judgment is of life and mem- bers which are at the King's mercy, ^ as in other Pleas concerning Felony. Should, however, a certain accuser appear in the first instance, he shall be attached by Pledges, if he can produce any such, to prosecute his Suit. But, if he is unable to adduce any Pledges, it is usual to trust to his solemn promise,^ as in all Pleas concerning Felony. Yet is it customary in these cases to confide in a promise, least by exacting too hard a securitj'^, others might be deterred from making a similar accu- sation.^ Security having been taken from the Accuser to prosecute his Plea, then, the party accused, is, as we have observed, usually attached by safe and secure Pledges ; Or, if he cannot produce any pledges, he shall "derstood of the Duel, but the Ordeal." This conjecture is countenanced by the 87th Chapter of the Grand Norman Custu- mary, however true it may be, that the lex apparens was, in the general sense of the expression, applied to the Duel. (Spelm. Gloss, ad voo. lex and his Eeliq. p. 80.) 1 Ex regice dispensationisbeneficio, tamvitce, quam membrorurn suorum ejus pendet judicium is the original passage. I have availed myself of the Translation of the Regiam Majestatem. "And, if any man is condemned of that crime, his judgment " and punishment of his life and limbs depend only upon the " king's benefit and good will, as in all other pleas of felony and "sedition against the realm." (L. 4. c. 1.) 2 Fidei suae religionis — " his faithful promise is sufficient," says the Regiam Majestatem. (L. 4. c. 1.) In the opinion of the canonists the _^dei ijiferposiiio was equally binding with an oath. (Lyndwood's Provinc. 271.) " Bracton gives the same reason. (118. b.) Digitized by Microsoft® 281 be cast into Prison. But, in all Pleas of Felony, the- Accused is generally dismissed on pledges,^ except in a Plea of Homicide, where, for the salce of striking terror, it is otherwise enacted. The next step usually resorted to, is to appoint a day to the parties, pending which, the usual Essoins are allowed to be cast. At length, the Accuser should propose his charge : that he had seen, or by some other proof in Court^ that he perfectly well knew, that the Accused had conspired or done something against the King's life ; or to move a sedition in the Kealm or Army ; or to have consented, or given Counsel, or delegated an authority, towards effecting such object ; and the Ac- cuser should allege, that he was prepared to prove his charge, according to the direction of the Court.^ Should the accused, on the other hand, deny, in due manner^ in Court, every thing the other had asserted, it is usual to decide the Plea by the Duel. And here it should be observed, that from the moment the Duel is waged, in Pleas of the kind we are now treating of, neither of the parties can add nor diminish any thing- from the words employed in waging the Duel, or, in any other measure decline or recede from his under- taking, without being held as conquered, and liable to the penal consequences. 1 But this the Mirror terms an abuse, (c. 5.) 2 See Bracton 119. a. Fleta L. 1. c. 21. s. 2. ' Seriatim, de verba ad verbum. (Fleta L. 1. o. 21. s. 2.) Sufficit si communiter xe defenderit dumtOTnen de causa: (Ibid.) a greater strictness in pleading being required on the part of the- accuser than the accused. Digitized by Microsoft® 282 Nor can the parties be afterwards reconciled to each ■other, by any other mode, than the King's License, or that of his Justices. E^-t if the Appellor be conquered, he shall be amerced to the King, the nature of which has been suiEciently explained in a former part of this Tvork. What penalties also and infamy he shall incur, if conquered, have been sufficiently detailed. If the Ac- •cused be conquered, the Judgment that awaits him has been mentioned just before, to which may be added, the confiscation of all his Chattels, and the perpetual Dis- inherison of his Heirs.^ Every free Man of full age is admissible as an Ac- cuser, in a prosecution of this kind. Should, however, a Minor bring an Appeal, he shall be attached, in the manner we have before stated. A Rustic^ is also ad- missible ; but a "Woman shall not be received to make an accusation in any plea of Felony, unless in some particular instances, concerning which we shall pres- ently speak. But the Accuser may, in Pleas of the kind we are discussing, decline the Duel, either on account of his age, or by reason of his being adjudged to have received a Mayhem.^ 1 So great, indeed, is the crime, says Bracton, that scarcely is it permitted to the Heirs tliat they sliould live. (118.) In speak- ing of Treason, Bracton warms with his subject ; and the grave Lawyer starts into the animated Orator. '^ A Husbandman, says Skene. (Reg. Maj.) I translate the word literally, and refer the Beader to the last passage of the present chapter. Vide Mirror c. 2. s. 38. s Mahemium is said to be derived from the old French word, ■mehaigne. (Co. Litt. 126. a. 288. a. Cowell and Spelm. Gloss.) Digitized by Microsoft® 283 But the age of the party, in such a case, ought to be ■sixty years or upwards. Mayhem signifies the brealc- ing of any bone, or injuring the head, either by wounding or abrasion. In such case, the Accused is obliged to purge himself by the Ordeal, that is, by the hot Iron, if he be a free Man — by water, if he be a Eustic.^ 1 The trial by Ordeal, the favorite offspring of Superstition, has been by Fleury, Le Brun, and others, supposed to be derived from the Ancients, because Pliny (L. 8. c. 2.) mentions a family in Tuscany, upon whom the sacred fire, made in honor of Apollo, had no effect. But M. Houard, with much more appearance of Teason, imagines, that it originated from the Miracles attributed by the Christians to their Saints. (Traites sur les coutumes Anglo-Normand. Tom. 1. p, 577.) However that may be, this mode of Trial existed here so early as the Reign of Ina ; and William the first found it in use in this country, when he mounted i;he throne. His Normans, attached by early habit to the Trial by Duel, rejected a mode of decision, wliich appeared to them as a superstitious formality, though it was still suffered to be resorted to by old and maimed men, and by women. According to the Laws of Ina, the accused had the choice of the Trial by fire, or that by water. If he preferred the former, an Iron was prepared that weighed three pounds at the most. No person, •except the Priest, whose duty it was to preside on the occasion, entered the Temple, after the fire destined to heat the Iron was kindled. The Iron being placed upon the flre, two men posted themselves on each side of the Iron, to determine upon the de- gree of heat it ought to possess. As soon as they were agreed upon this point, the same number of men were introduced ab utroque latere, and they also placed themselves at the two ex- tremities of the Iron. All these witnesses passed the nigJit fasting, &c. . At day-break, the Priest, after sprinkling them with the holy- water, and making them drink, presented them with the Book of -the Evangelists to kiss, and then crossed them. The Mass then began. From that moment, the fire was no more increased : ■fout the Iron was left on the embers, until the last Collect. That finished, the Iron was raised, and the most profound silence was observed, in praying the Deity to manifest the truth. At tins Digitized by Microsoft® 284 CHAP. 11. A Plea, concerning the fraudulent concealment of Treasure Trove, is usually managed, in the manner and order above stated, where a certain Accuser appears.^ But, if a Man is accused of this crime by the public voice only, it is not usual, according to the Law of the Land, for him to purge himself by the Ordeal,^ although by the Assise a different course may be re- sorted to, unless he has been first convicted, or has confessed in Court, that ho has found and taken some instant, the accused took the Iron into his hand, and carried it to the distance of nine feet, juxta mensuram pedum ejus. TJie Trial being ended, the hand of the accused was bound up, and the bandage sealed ; and, three days after, the hand was ex- amined, to ascertain whether it was or not impure, which M. Houard, thus explains : ce qui doit, je crois, faire entendre que Von n'etoit pas coupahle, quand la main conservoit des marques de brulure mais seulement lorsque la br'-dlure tomboit en siipura- tion. (uhi supra.) But, if the accused elected the Trial by- Water, then, the Water was placed in a Vessel, and heated to- the highest degree. For inferior Crimes, the accused plunged his arm up to the wrist : for crimes of deeper dye, he plunged it up to tlie Elbow. In every other part of the ceremony, the two- species of Trial by water and fire agreed. (LL. Inse c. 77.) The Mirror coincides with the text of Glanville, (c. 3. s. 23.) and Lord Hale informs us, " that in all the time of King John the " purgation jpe?' ignrm et aquam, or the Trial by Ordeal, contin- " ued, as appears by frequent Entries upon the Rolls ; but, it " seems to have ended with this king, for I do not find it in use " in any time after." (Hist. Com. Law. 152.) 1 Vide Bracton 119. b. Britton c. 17. s. 1. Dial, de Scacc. L. 2. s. 10. The modern French Code gives the treasure to the person who finds it, if the owner of the Estate : if not, half to him, and. the other half to the owner of the Estate. (Code Naisoleon.) 2 Yet see LL. Hen. 1. c. 63. Ed. Wilkins. Digitized by Microsoft® 285 kind of Metal in the place in question.^ But, if upon this fact the party be convicted, the presumption be- ing against him, he shall be obliged to purge himself hy the Ordeal, that he had not found or taken any more from the place in question. In other respects, the proceedings are as before stated. CHAP. III. "Whek any one is accused of Ilomicide,^ the Judg- ment is regulated by, and proceeds on, the distinction before laid down. It should, however, be observed, that it is not usual to dismiss upon pledges a person accused of this Crime, unless in compliance with the King's pleasure. But there are two species of Homi- cide. The first is called Murder which is secretly per- petrated — no one seeing — no one knowing of it,^ save 1 At the time of Bracton, a probable presumption of a man's having possessed himself of treasure-trove, arising from his sud- den dressing or living in a Iiigher style than he had been accus- tomed to, was held a sufficient ground to commit the party to Gaol. (120. a.) 2 Vide Fleta L. 1. c. 33. Bracton. 120. b. 134. a. ^ " The name of murder (as a crime) vi^as anciently applied to " the secret killing of another which the word moerda signifies " in the Teutonic Language." (4 Bl. Comm. 194.) In support of this position, the learned Judge cites the present passage of our author's text. Other authorities may be added. Murtre, est quant home est tue de nuit ou de repos dehors ou dedans vill. (Assises de Jerusalem, c. 85.) Porro murdrum proprie dicatur, mors alicujus occulta cujus interfector ignoratur. (Dialog, de Scacc. L. 1. s. 10. See also Bracton 121. Fleta 34. s. 6. Britton c. 6. s. 1. and c. 23. — Regiam Majestatem L. 4. c. 5.) Digitized by Microsoft® 286 the person committing it, and his Accomplices, so that Hue and Cry ^ cannot be presently made after the Offenders, as ordained by the Statute ^ upon this subject. To prosecute an accusation of this kind no one is admissible, unless he be of the blood of the deceased,, and under such restrictions is this rule adhered to, that the nearer Heir shall exclude the more remote from the Appeal.^ There is also another species of Homicide, as ap- pears from the general Term, which is called simple Homicide. In this suit also no one is admissible to prove the Accusation, unless he be allied in blood to the de- ceased,* or be connected with him by the tie of Hom- age, or Dominion, so that he can speak of the death, upon the testimony of his own sight. It should alsa be added, that a "Woman ^ is heard in this suit, accus- 1 Clamor popularis is the expression, which, on the authority of Lord Coke, I have rendered Hue and Cry. Lord Coke informs- us, it was known before the conquest. (3 Inst. 171. 172. ) It doea not appear to have been peculiar to this country, as a similar institution seems anciently to have existed in some parts of France. (Beaumanoir c. 67.) 2 " This Statute is not now extant," says Lord Coke. (2 Inst' 171.) 5 De multro (murder) vel Homicidio propinquior in genere sequelam faciendi retinet potestatem : Si autem propinquior in non (Etate fuerit vel cetatem transegerit, alius proptnquior inte- resse poterit in sequela, vel alius de genere in quern consenserit omnis parentela. (Le Grand Custum. de Norm. c. 69. See alsa Britton c. 1. s. 11.) * Vide Co. Litt. 25. a. ' " And yet not of all the wives, but of her only who lieth be- " tween his arms, which is as much as to say, in whose seisin Digitized by Microsoft® 287 ing any one of her Husband's death,* if she speak as being an Eye-witness ^ to the fact, because Husband and Wife are one flesh. And a Woman is generally admitted to be heard, accusing any one of having committed an injury upon her person, as will be pres- ently shewn. It is at the election of the accused either to abide by the Woman's proof, or to purge himself by the Ordeal, from the crime imputed to him. A person accused of Homicide is sometimes compelled to undergo the legal Purgation, if he w^as taken in " he was murdered ; for if he had many wives, and all were ■ " alive at the time of his murder, nevertheless she only is ad- " mitted to bring the'appeal of all the rest, whom he last took " to wife ; and the reason thereof is, because it belongeth not to '• the Temporal Court to try who was his wife of right, and " which, in fact, and the appeals of all others are to be sus- " pended, pendant the same appeal brought " (Mirror c. 2. s. 7. See also Bracton 135. a. Fleta L. 1. c. 35. and 2 Inst. 316.) 1 Lord Coke, in two instances, cites the present chapter of Glanville as one of the authorities on which he founds his asser- tion, that previously to the Great Charter a woman, as well as a man, might have had an appeal of the death of any of her An- cestors. (Co. Litt. 25. b. and 2 Inst. 68.) It is impossible to conceive how Glanville corroborates this bold position. He is a very strong authority for the contrary doctrine, and excludes expressly in this chapter and by relation in the first chapter of the present Book, a woman's right of appeal in every instance, except that of the death of her Husband, and that of a personal injury. Bracton also In the most decided language confines a. woman's right of appeal to these two instances, (fo. 125, and 148.) Great as Lord Coke is, his deductions and citations from the more ancient writers are not by any means implicitly to be relied upon. His name has thrown a lustre over many an error. Nothing would be more easy than to adduce innumerable in- stances in support of the truth of this assertion. * For it was a good ground of defence, that the Plaintiff waa not present at the time when the mortal blow was given. fVide 2 Inst. 316.) Digitized by Microsoft® 288 rflight by a Crowd pursuing him, and this be regularly proved in Court by a Jury of the County. CHAP. lY. The Crime of Burning^ is proceeded upon, discussed and terminated, under the form and order we have described. CHAP. Y. The Crime of Eobbery ^ may also be passed over, as the suit has nothing to distinguish it from the others. CHAP. YI.8 The Crime of Eape ^ is that with which a "Woman charges a Man when she alleges, that he committed a 1 " Burners are those," says the Mirror, " who burn a City, -" Town, House, Men, Beasts, or other Chattels, feloniously in " time of peace for hatred or revenge." (Mirror c. 1. s. 8. See also Britton chap. 19.) * Rdberia, so called, says Lord Coke, because the' goods_ are taken as it were de la robe, from the Robe, that is from the per- son. (Co. Litt. 288. a. and 3. Inst. 67. ) Cowell deduces the term from the French robbe, vestis, and Spelman from ravbas, meaning the same thing. The Saxons used their term reaferar in a similar sense, reaf signifying, vestis. For Travellers had in former times rarel}' any thing but their dress of which they could be robbed. (See Cowell and Spelm. Gloss.) Under the Laws of Ina the punishment of Robbery was to restore the thing purloined, and to pay a fine of 60 shillings. (LL. Inse. c. 10.) * For obvious reasons I have translated the present Chapter in -a general manner. * Vide Mirror c. 1. s. 13. and Bracton 147. a. Digitized by Microsoft® 289 violence on her person, whilst in the King's peace.^ A Woman, having suffered any such violence, is bound immediately, whilst the crime is recent, to go to the nearest village, and there state the injury to respect- able Men, and shew the external marks of violence.^ She should, in the next place, do the same thing to the Chief Officer of the Hundred ; and, lastly, she should publicly complain of her injury in the next County Court. An accusation of this kind being made, the Judgment is as before laid down. A "Woman, ac- cusing any one of such a Crime, is heard in the same manner, as is usual concerning any other personal in- jury which has been offered her. But it should be understood, tha it is at the Election of the Accused in such a Case, either to submit to the burthen of making Purgation, or to sustain the woman's proof against him. It should likewise be remarked, that if any one be convicted in a suit of this kind, the Judg- ment will be similar to that in the foregoing suits. ISTor will it suffice, after Judgment, if the Malefactor wish to take the Woman he has injured to Wife. For thus it would frequently happen, that Men of servile condition would, by reason of one pollution, bring perpetual disgrace upon Women of noble birth, or that Men of high rank would be disgraced by inferior Women, and thus dishonor their fair lineage. But, 1 Vide LL. Gul. Conq. c. 19. and 2. Inst. 180. 181. 2 Visio autem virginis defloratcB per septem muUeres viduas vel maritatas fide dignas debet fieri, per quas, si necesse fuerit, de defloratione Veritas recordetur. (Grand Custum. de Norm. c. €7. See also Britton c. 1. s. 30. &c.) 19 Digitized by Microsoft® 290 previously to Judgment, it is customary for the Woman and the accused to be reconciled, by means of a mar- riage between them ; but this step is authorised by the License of the Prince, or that of his Justices, and the consent of the Parents. CHAP. YII. The crime of Falsifying,^ in a general sense, com- prises under it many particular species. As, for ex- ample, false Charters — false Measures — false Money — - and others of a similar description, which contain such a falsifying, on which a person ought to be accused and, if convicted, condemned. The manner and order of prosecuting these different species of the crime may be sufficientlj'' collected, from what has gone before. One thing, however, should be observed, that if a per- son be convicted of falsifying a charter, it becomes necessary to distinguish, whether it be a royal^ or a private charter ; because in the former case, the party^ when convicted of this offence, shall be condemned, as- in the crime of lasse majesty. But, if the charter be a private one, then, the person convicted is to be dealt with in a milder manner, as in other inferior crimes of 1 See Britton c. 4. Braoton 119. b. and Fleta L. 1. c. 32. 2 Of the king's Charters, says Bracton, neither the Justices nor private Individuals can dispute, nor interpret them, if a doubt arise ; but recourse must be had to the king himself ; and if the Charters be defective, through rasure, or from a false seal being- attached to them, it is better and safer to decide the matter in. the king's presence. (Bracton fo. 34. a.) Digitized by Microsoft® 291 Falsifying, which are punished by the loss of members only, according to the will and beneficence of the princely disposition, as we formerly observed. CHAP. yiii. As to Thefts and other Pleas which fall within the Jurisdiction of the Sheriff, ^ as they are conducted and decided according to the various customs of different Counties, they fall not within the scope of my present plan, which is solely confined to the subject of the Chief Court. The Book of the Laws of England is finished. 1 Having already observed, that this part of the Sheriff's Juris- diction was taken away by Magna Cai'ta, I shall conclude these Notes with extracting a passage from the Norman Code, from which we may collect most of the various branches of the Sher- iff's Jurisdiction and his duty, in the opinion of the Lawyers of Normandy. Offlcium autem Vinecomitis est placita tenere : vias antiquas et semitas et limites aperire : aquas vero transmotas ad cursum debitum reducers, et de malefactoribus et seditiosis mulie- ribus et arsionibus et deflorationibus virginum violentis et ceteris actibus criminosis diligenter et secrete inquirere. (Le Grand Custum. de Norm. c. 4.) Digitized by Microsoft® Digitized by Microsoft® INDEX. PAGE Abbots cannot without King's consent alien 123 of Canons Eegular may appear for their Order 229 Absence of Lords 65 of Parties 30 . of Summoners 38 • of Tenant 27 . of Demandant 28 Accusations 278 Accuser, certain or uncertain 278, 279 Admeasurement of Dower — Writ of 112 Administration, who entitled to 137 Advocatio (Note 1.) 69 Advowsons — general doctrine of, begins at 69 j^snecia (Note 1.) 127 Afforciament (Note 1.) 53 Age, Writ to ascertain 261 Aids (Note 1.) 190 Aisiamenta (Note 1.) 239 Allegiance 177, 178 Amercements 202 in County Courts belong to Sheriff 193 Appeal of Felony 141 Appellans (Note 3.) 275 Appeals, who may prosecute 282 Arbelastarius (Note 1.) 232 Arrha (Note 4.) 216 Assisa (Note 1.) 36 293 Digitized by Microsoft® 294 INDEX. PAGE Assise Grand (see Grand Assise) 44 Assises, general doctrine of, begins at 246 Assise of darrein presentment 263 mort d'auncestor 246 novel disseisin 270 when it lies not for burgage tenure 255 Attachment (Note 1.) 66 Attomato faciendo — "Writ de 326 Attornies — general doctrine concerning, begins at 223 Attorney may cast Essoins for himself 326 may be removed 228 Avunculus (Note 1.) 125 B. Bailiff cannot, as such, appear as Attorney 225 Ballivus (Note 1.) 225 Banco, Justicii in (Note 3.) 41 Baro (Note 3.) 173 Bastards cannot inherit 147 formerly inherited in Wales (Note 1.) 148 who succeed to 150 Bastardy, when bar to an Assise 254 Writ to inquire concerning 148 Bishops cannot without King's consent alien 133 do not when consecrated perform Homage 180 do when consecrated perform Fealty 180 Bladum (Note 3.) 33 Boscus (Note 3.) 339 Breve (Note 4.) 4 Burgage Tenure — not entitles King to Custody 142 when it bars an Assise 255 C. Ca?)ipio (Note 2. ) 36 Capital Messuage not allotted in Dower 108 Digitized by Microsoft® INDEX. 295 PAGE Cellarii (Note 1.) 229 Cliampion, when hired, inadmissible 38 if formerly a Villein, objectionable 89 when conquered how punished 39 coUusively vouched (Note 2.) 219 Charters, proof of 214 falsifying 290 Chattels when forfeited 152, 156 of Intestate 151 of Usurer 151 not distrained for non-appearance 199 Chief Manor not allotted in Dower 109 Chirograph 168 Clamat (Note 1.) 5 Clamor popularis 286 Coin false 290 Commodatum (Note 2.) 214 Concord, why called Final 166 breach of, how punished 167 Concords, general doctrine of, — begins at 161 Conditions 206 Conductum (Note 1.) 221 Confiscation 282 Consanguinity in questions of freedom 85 in questions of Intestacy 137 bar to Assise of Mort d'auneestor 255 Constitution (Note 1.) 49 Consuetudines (Note 4.) 165 Consuetudinibus et servitiis—'Wiit de 192 Contempt of Court 30, 66, &c. Contemptus Brevium (Note 4.) 4 Contenement (Note 3.) 190 Contracts private 221 Counts, when they vary from Writ, effect of 2M Courts inferior — when allowed Records 170, 173 Digitized by Microsoft® 296 INDEX. PAGE Courts, County — differ in their Customs ^^A of Lords — differ in their Customs 334 Crimen falsi (Note 2.) 2, 390 Croftum (Note 3.) 164 Curtesy of England (Note 1.) 158 Custody of Heirs 139 discharges Relief — when 184 Customs 128, 133 Custum (Note 1.) 39 D. Darrien presentment — Writ of 263 Debt— Writ of 198 Debts — Pleas concerning 198 how proved 213 Default, how punished 1& Deposit 199 Descents, general Canons of 124 amongst Grecians, Normans, Lombardi, &c. (Note 3.) 125 Desponsatio (Note 1.) 94 Disseisins 270 Distresses 103, 179, 191, 199, 238, &c. Divisa (Note 1. ) 133 Divorce for Incontinence bars Dower 110 for Relationship bars Dower 110 Dominium (Note 1.) , 123 Dower, general doctrine of, begins at 93 in what senses used 93 ad Ostium Ecclesioe 94 Ex assensu Patris Ill admeasurement of 95 how demanded 101 not of land already in Dower 109 its assignment not postponed for Heir's Infancy 10ft Digitized by Microsoft® INDEX. 297 PAGE. Dower, barred by Divorce for Incontinence or Relationship. 110 Writ of Right of 99 Duel, Trial by 33 its rise and decline (Note 1.) 34 reason of (Note 1.) 35 not allowed in questions of Villenage 88 not waged by Villein-born though Knighted 8& Courts not bound to defend their Records by 171 Courts bound to defend their Judgments by 171 in Criminal "matters 283 when only compromised by License 282 Duodeeima Manu (Note 2.) 8 E. Earnest 216 Ecclesiastical Court — holds not plea of Debt — when 212 when it has Jurisdiction generally. . . 245 Election of Knights on Grand Afsise 48 Enfranchisement — modes of effecting 88 under Saxons (Note 1. ) 88 Escambium (Note 1. ) 61 wlien Bractoii wrote (Note 1.) 61 Escheat for want of Heir 154 for incontinence of female Heir 1.'34 for felony 154 for conviction of Theft 156 for Outlawry 155 Essoins, principal kinds of (Note 1.) .^ 6 general doctrine of — begins at 6 not allowed by one of full age against Minor 256 nor in Novel Disseisins 251 . may be cast by Attorney for himself 226 Essoiners may appoint Essoiners 18 "Writ to take as Defaulters 13- Digitized by Microsoft® 298 INDEX. PAGE Essonium (Note 1.) 6 Exceptions to Jurors 50 Exchequer 143 Executors — who 136 Failure of Justice in Lord's Court 284 J'aZdce (Note 2.) 165 FaZdce secto (Note 2.) .. 165 Falsifying Judgments 173 False-claim, punishable 30 Fama pvblica (Note 2. ) 378 Fealty 139, 157 Fee, how lost 179 Felony — appeal of 141 forfeits Land 154 Females, Custody of 143 Feme sole may make a Testament 134 covert cannot without Husband's consent 184 Feodum (Note 3.) 103 Fidei interpositio (Note 2.) 280 Final Concord— forms of 163, 163 Fine — bar to Assise of Mort d'auncestor 254 Fines — general doctrine of — begins at 161 Forfeitures 154, 155, 156, 179, 283, &c., &o. Forgeries 390 Forinseca (Note 1.) 165 Forisfacio (Note 3.) 146 Forisfamiliatus (Note 1.) 131 Fossatum (Note 4.) 273 Francalmoigne 114 Freedom, how proved 85 not to be purchased with Villein's own money. . . 89 means of acquiring , 88 Frussetum (Note 2.) 164 Digitized by Microsoft® INDEX. 299 G. PAGB