in all Actions and some not but in Felonies Every one may Answer without a Tutor who is not forbidden by the Law The Law forbiddeth Married women to Answer without their Husbands but then we are to put a difference in the Cases for if she be within the age of one and twenty yeares she is not admitted to Plead in any Case without her Husband but in Case where her dis-inheriting or that which doth amount to as much doth appeare by the malice or negligence of her Husband if she be of full age then she shall so Anawer alone in cases of death and Felony and so it is of men within the order of Religion and of Villaines and of all those who are in Custody and are not delivered CHAP. III. SECT 2. What Exception is and the order of Exception or Plea APlea or Exception is a thing alleadged for Answer either to delay or barre the Action And there are two manner of Exceptions Dillatories and Peremptories The order to Plead is such that the Peremptory Plea is in the highest degree or the Dillatory may have a recourse to the Peremptory but not è contra And of Dillatories some are principall and some are secondary and from the secondaries there is no recourse to the principalls and according to their degrees are they put in partly to helpe out remembrance And some Exceptions are in Counts in Replications and Re-joynders and so forth untill the truth be cleared in the proceedings of the Pleas whereby one may surely come to give cleare Judgements Voucher to warranty lyeth not in personall Actions although that averrements by Record and Minements and Witneffes availeth CHAP. III. SECT 3. Exceptions Dillatories THere are many Dillatory Exceptions whereof the first is to the Judge and that many waies one unto the power of the Judge and that may be in two kinds by reason of the two kinds of Jurisdictions or because the King or his Iudge Deligate hath no Power or Counsance in the Cause as it is of the person of a Clerke by reason of the Priviledges of the Church or because the ordinary Iudge hath not power or Counsans of a thing done out of his Iurisdiction nor any one within a Franchise of a thing done in guildable nor Kings nor those of one Country or of one Land of things done in another Land or Country CHAP. III. SECT 4 Of Exception of Clergy FOr the Priviledge of Clergy as if a Clerke be ordered in Court before a Lay Iudge to Answer to an Action for a personall Trespasse and especially in a Case criminall and mortall Plead that he is a Clerke the Iudge hath no further Counsans of the Cause for the Church is so enfranchised that no Lay Iudge can have Iurisdiction over a Clerke though the Clerke will acknowledge him for his Iudge and in such a case he is without delay to be delivered to his Ordinary Neverthelesse to give Actions to Plaintiffes against the Accessories in Appeales and Indictments it belongeth to the Iudge Ex officio to enquire by the Oathes of honest men in the presence of the Clerke whether he be guilty or not and if he be 〈◊〉 thereof then he is without delay to be delivered to his Ordinary and the Plaintiffe shall Sue against the Accessories in the Kings Court and in the Spirituall Court against the Clerke and the Clerke after his due Purgation made shall without delay have all his lands and moveables delivered to him CHAP. III. SECT 5. Replication of Bigamy THe Exception of Clergy is sometimes Counterpleadable by a Replication of Bigamy in this manner Sit he ought not to enjoy the benefit of this Priviledge for he hath forfeited the same by the sin of Bigamy as he who hath Married a widow or many wives and note that Matrimony is the lawfull Order of joyning together of a Christian man and woman by their assents and as of the Diety and Humanity of Christ there is made an undissolveable Unity so was Matrimony and according to such Unity was such coupling found to be and therefore none can remaine in that Unity who takes to himselfe a Plurality and of a Plurality ariseth this offence of Bigamy which offence draweth Clerkes nearer the Lay Power And note that Bigamy may be two waies one by a Plurality of 〈◊〉 Vives as he who Marrieth two wives or more the one after the death of the other or out-living the other the other is plurality of Husbands as well as wives as it is of a widow who suffereth her selfe to be Married to another man whether her widowhood came by the death of her Husband or by Divorce and because it belongeth to say in what point a Clerke is Bigamus the Bigamy is triable in the Lay Court if neverthelesse the Jury doubt thereof then the Ordinary is to certifie the same at the Command of the King as in the case of Matrimony when it is denyed On the other side a Clerke is incounterable by other Replications as he is for being a murderer or a notorious lyer or of such a condition as the Church is not to protect him against the Kings Peace CHAP. III. SECT 6. Exception to the Power of the Jadge AGainst the power of the Judge the Defendant may help himself by other Dillatory Pleas in this manner Sir I demand the sight and the hearing of the Commission whereby you claime Juriâ—diction over me and if the Judge doe not deny it or cannot shew it notwithstanding that no Judge Deligate is compelable to shew his power yet may the Party plead thus Sir I appeale from this Commission because it maketh no mention of the Cause for which I was brought to Judgement or not of that point Or because you have no Counsans in such a point or because it is vicious and that may be divers waies as if it be not sealed with the Kings Seale of the Chancery for none is tyed to yeeld obedience according to the Lawes and Customes of the Realme to the Kings Privy Seale or to the Seale of the Exchequer nor unto any other Seale but onely to the Seale which is assigned to be known of the common people and especially in Jurisdictions and Originall Writs if not for the King only Or it may be vicious because the Seale is counterfeited or falsified or because the King is not named in the Writ he not being out of the Kingdome not in Ward or because the Writ containeth Summons in the Action where it is personall or Attachment where the Action is mixt or reall or because the Seale is not fastned to the Parchment but one may remove it and take it from it at his pleasure Or because the Writ was brought too late or too soone Or because it hath rasure or enterlining and diversity of hands and of words or false Latine Or because the Writ is written upon Paper or Parchment which is forbidden Or for default found in the Writ as the omission or transposition of
who are not forbidden by the Law Infected Persons Iâ—iots Infants within age cannot accuse or be Plaintiffes without their Guardians nor Criminall Persons nor an Out-lawed exiled or banished Person nor a woman wayve nor a villaine without his Lord nor a Feme Covert without her Husband nor religious Persons without their Soveraignes nor Persons Excommunicate nor deafe nor dumbe Persons without their Guardians nor the Iudges of the Cases whereof they are Iudges nor any one who is nor of the Kings Allegiance so as he hath been more then forty daies within the Realme except Approvers who are suffered to accuse criminally people of his own condition in favour of the peace How lawfull men ought to complaine They ought in friendly manner to shew their offenders that is to say their Trespassours that they reconcile or amend themselves towards them and if they will not doe so and the Cause be Criminall then yee are to distinguish for if any one seeke revenge then it behoveth him to bring his Action by Appeale of Felony and if he seeketh only repaâ—ation of damages then he behoveth to bring his Action by Writ which is to containe the name of the King and of the Parties and the name of the Judge and of the County and the Plaint in the demand if the damages or the demand exceed forty shillings and if not then a Plaint sufficeth without a Writ And because all Suites of the Plaintiffes could not be determined upon the first preferring of the Suits nor the Suiters or Plaintiffes presently releeved in their Suits Therefore Kings used to goe from County to County every seaven yeeres to enquire of Offences and Trespasses and of wrongs done to themselves and to the Crowne and to the Common people and of all wrongs errours and negligences of their Officers and of all false Judgements of paines pardoned or wrongfully Iudged or outragâ—ously of Out-lawes returned and of their Receivers of the valewes of Counties out of Hundreds Towneâ— Manners and of moveable goods which belong to the King and to the Crowne of the Lands of Idiets of alienators of Fees of offences against the Kings Inhibition of Priviledges and Franchises prejudiciall to the Kings of Bridges and High-waâ—eâ— and of all other needfull Articles and they used to doe right to all Persons by themselves or by their Chiefe Justices and now Kings doe the same by the Iustices Commisfaries in Eyre assigned to hold all Pleas. Infante of such Eyres are Sheriff Turnes needfull and viewes of Franck-pledges and when the people by such Enquests were indicted of any mortall offence the King used to Condemnethem without Answers which usage still remaineth in Almaine but of pitty and mercy and because that man by reason of his frailty cannot keepe himselfe from sinne if he abstaine not from it by the Grace of God it was accorded that no Appelee or Indicter should be condemned without answer And Kings had no Jurisdiction but of mortall offences and of the rights of the Crowne and of their owne rights and of the wrongs of their Ministers and of wrongs done against Common Law and Common Ordinances and the Articles of Eyres CHAP. 2. SECT 4. Of Rewards and Fees KIngs used to give Rewards to the cheife of the Stock and to all those who faithfully served them and from the Rewards of Kings others tooke example to reward their servants and because no Free-man was bouden to serve against his will by reason whereof none were bound to serve the King or any other but by the service of his Fee or by reason of his Residence or dwelling in another Fee some are bound to serve the King for a certainty by the yeare And it is not lawfull for those Officers who take wages certaine of the King to take any wages of the people But the Iudges who serve the King it is lawfull for them to take twelve pence of the Plaintiffe after the hearing of the Cause and no more although there be two Iudges or two Plaintiffes in one Action and the Pleader six pence and a Knight sworne a witnesse foure pence and every Iurour foure pence and the two Sumners foure pence Nevertheresse in the time of King Henry the 1. It was Ordained and assented unto That Iurours sworne upon Enquests of Office as in Assizes Recognisances of Assizes Redissessins â—ertisicates of Assize and Attaints and other the like should not take Fees because they did the same Ex officio and to answer these monies and the damages are the Defendants chargeable if Iudgement be given against them And to those who followed any Suit for the Kings profit and were not any of his Ministers â—ing Henry the â— gave to them the twentieth part of the profit with their reasonable â—oâ—â— In like manner the Iudge was not to heare the Plaintiffes Cause if he put not in security to answer his Adversaries damages if he complaine of him wrongfully CHAP. II. SECT 5. Of Countorr or Plaaders THere are many who know not how to defend their Causes in Iudgement and there are many who doe and therefore Pleaders are necessary so that that which the Plaintiffes or Actors cannot or know not how to do by themselves they may doe by their Serjeants Atturnies or friends Countors are Serjeants skilfull in the Lawes of the Realme who serve the common people to declare and defend Actions in Iudgement for those who have need of them for their fees Every Pleader of others Causes ought to have a regard to foure things 1. That there be a person receiveable in Iudgement that he be no Heretique Excommunicate Person nor Criminall nor a man of Religion nor a woman nor within the Orders of a Subdeacon nor a Benificed Clerke who hath cure of Soules nor under the age of 21. yeares nor Iudge in the same Cause nor attainted of falsity in his place 2 Another thing is That every Countor is chargeable by Oath that he shall doe no wrong not falsity contrary to his knowledge but shall plead for his Cliant the best he can according to his understanding 3 The third thing is that he put no false Dilatories into Court not false Witnesses not move or offer any false corruptions deceits leasings or false lyes not consent to any such but truly maintaine his Clyents cause so that it faile not by any negligence or default in him not by any threatning hurt or villany disturbe the Judge Plaintiffe Serjeant or any other in Court whereby he hinder the right or the hearing of the Cause 4 The fourth thing is as his Sallery concerning which four things are to be regarded 1. The greatnesse of the Cause 2. The paines of the Serjeant 3. His worth as his Learning eloquence and gists 4 The usage of the Court. A Pleader is suspendable when he is attainted to have received sees of two Adversaries in one Cause and if he say oâ— doe any thing in dispite or contempt of the Court and if he fall under any of the
that they come to the Lords And if any one denieth his service which he ought to do it may be said by the Lords that wrongfully he denieth either part or the whole and that to his wrong and so further count of seisin by his owne hand and that such is his right c. as after shall be said And the Tenant may choose to try his Right by his owne body or by another or joyne issue upon the Grand Assise And pray Conusans whether hee hath the better right to hould such land specified discharged of such service as he houldeth or the said A. to have the same Land indemesure as he claimeth And if the Defendant will try his Right by the body of another Then yee are to distinguish For if the Action be personall the Suit need not be present and if the Action bee Reall and the Tenant hath his Champion present Then may the Plainâ—ife offer his Champion against the Champion of the defendant or he shalloose his Covenant or his Writ And if the Defendant have nochampion then are the parties adjournable if they have joyned Battle that they have their Champions ready at the next Court as appeareth in the case of Saxeling to whom Hustan was bounded in a Bond of 10. li. by a writing Obligatory made at Rome which the said Hunstan denyed That it was not his deed To which Saxeling by way of Replication Answered That hee wrongfully denyed the same and that wrongfully for that he sealed it with his Seale or with the Seale of another which he borrowed of him such a day such a yeare and at such a place and that if he would deny it he was ready to prove it by the body of A. who saw it or by O. and C. who saw the same and if any hurt come to them he was ready to prove the same by another who could prove the same And so it appeareth that it is not needfull to have present Suit in such personall Actions the first day but the Parties may bee adâ—â—urned as it is said And if any one who cannot bee a fit witnesse or who is a Champion bee offered by one of the parties to combate who was not named before to make the Battle and the adverse partie there challenge him and demand Iudgement of the default in such such case the Iudgement is to be given against the profferer And if any ill happen to any of their Champions where by they cannot combate according to their proffer none is resceiveable to try the battle for him but only his eldeft sonne Lawfully begotten as by some is said And if the Tenants champion be vaâ—â—uished The Tenant thereby looseth all Homage and all Alliance and all Oathes of Fealty and all Homage betwixt him and the Lord and the Lord is to enter therein and to hold the same in demesue as if he had recovered by the Grand Assise And if the champion of the Lord be vanquished that them the Iudgement be that the Tenant hold his Land for ever quit of the service in the demand And if the King doth any wrong to any of his free men who hould of him in chiefe the same course is to be holden The Earles of Parliaments and the Commons have Iurisdiction to heare such causes and determine them because the King cannot by himselfe nor by his Iustices determine the Causes nor pronounce their Iudgment where the King is a partie And as the Lords may challenge their Tenants of wrong Or Injuries done to them against the Articles of their Fealtie In the like manner are the Lords challengeable of wrongs and Injuries done by them to their Tenants And if the Lords do not appeare to answer their Tenants Then are the Tenants to be adjudged thatâ—they doe no service for their Lands till the Lords have Answered CHAP. IIII. SECT 12. Of punishments PVnishment is a satisfaction for a Trespasse or an Offence There are two kinds of punishments Voluntarie and Violent Volantatie is that which bindeth the doer of his owne accord as it is in his Compromises to compell the people to keepe their Bargaines But with such punishments the Law medleth not with Of violent punishment wherewith the Law medleth there are two kindes Corporall and Pecaniarie Of Corporall some are Mortall and some Veniall Of Mortall some are by beheading some by drawing some by hanging some by burning alive some by falling from dangerous places and otherwise according to Auncient priviledges and Vsuages The Offences which require punishment of death are the mortall Offences Of Veniall punishments some are by losse of Member As the Fellony of Mayhem in case of wrong Of Member some by the losse of hand as it is of false Notories and of cutters of Purses with the Larcine of lesse then 12. d. and more then 6. d. which King Rich. changed some by cutting out of Tongues as it used to be of false witnesses some by beating some by Imprisonment some by losse of all their moveable goods and not moveable as of false Iudges and it is of userers attainted of usury after their decease but not if they bee attainted thereof in their life for then thy loose but only their moveables because by pennance and Repentance they may amend and have Heires Some by exile and abjuration of their Christianity or of the Realme of the Towne of the Mannor or the Land and their friends as it is of those who are attainted in personall Actions Venialls who are not able to make satisfaction Some by Banishment as it is in contempts in personall Actions Venialls some by other Corporall paines as it appeareth after its place And although one offend indeed or in word in all judgements upon personall Actions 7. things are to bee weighed in the ballance of Conscience that is to say 1. The cause 2. The petson 3. The place 4. The time 5. The Quality 6. The Quantity 7. The end 1. The cause whether it be mortall or veniall 2. The person the plaintiffe and defendant 3. The place whether in Sanctuary or not 4. The time whether in day or in the night 5. The Quality of the Trespaffe 6. The Quantity appeareth in it selfe 7. The end whether the taking were in manner of distresse by a justisiable importment Or in manner of Larine By Allienation unjustifiable CHAP. IIII. SECT 13. Of Insamous Persons ALL those who are rightfull attained of an Offence whereupon corporall punishment followeth are infamous Infamous ar all those who offend mortally or Fellouously all those who are perjured in giving false witnesse All false Iudges All false Vsurours and all those who are attainted of personall trespasses to whom open pennance is joyned by enjudgment of Law Those who Imprison a Free-man against his will or blemith the credit of his Franchise by extortion or by any purchase Those who also bring attaints and cannot prove the perjury whereby honest Iurours are slandered And those who indite or Appeale a man who is innocent of
the goods be held sufficient by a reasonable Extent untill the debt and damages be leavied Those who are Appealed and Endicted of Felony and are not to be found it behooveth that they be proclaimed and especially before the Kings and his Iustices Errants and if they be found guilty then they are to be commanded to put them in exigent so that the first county after the Eyre be the first day and so they be demandable at three Counly Courts untill they be Out-lawed if they â—ender not themselves to the Peace CHAP. IV. SECT 27. Of the Office of Justices in Eyre TO the Office of Iustices in Eyre it belongeth especially to enquire by Iurours and by examination of the Roles of the Coroners of all that were Out-lawed after the last Eyre and after Certificate of their names they are to enquire of the names of their Pledges that is to say whether they were in Dozien or in Franck-pledge and if their Pledges be in the same County then are the Pledges punishable by a pecuniary paine because they brought not those they tooke in Maine-prise to appeare and if they were elsewhere in Dezien then they are to enquire in whose Main-prise they were and they are punishable according to the example of the Pledges for the same cause To help the memories of the people are Escripts Charters and Minements very necessary to prove the conditions and the points of Contracts Gifts Sales Feoffments and other things By the Statute of Leuchfred it was Enacted that one might deny nude â—ontracts made by words and it was Ordained that Plaintiffes should prove their Writings which were denyed and not proveable by Neighbours in England and for forraigne Contracts by Battaile or by the setting to of other Seale or by Iurours at the election of the Plaintiffes If Iurours have obscurely or doubtfully or not sufficiently given their Verdict in any Action or Exception or any of the parties be grieved thereby there is remedy by a Commission of Câ—â—tisicate to make the Iurour come againe and the Parties who are the Plaintiff ought to have under the Kings Seale and of the Iudge and of the Parties the proceedings of the Plea before and shew the defect and the offence of the Iurours in which case if the Iudge by examination finde it doubtfull the â—aid doubt is to be reduced to certainty and the obscurity to cleernesse and the errour into truth and so the first Iudgement is to be redressed The Contents of the Fifth Chapter A Busions of the Common Law The defects of the great Charter The reprehensions of the Statute of Merton and Marle-bridge The reprehensions of the Statutes of Westmister 1. The reprehension of the Statute of Wesim 2. and of Gloucester The reprehensions of Circumspecte agatis The reprehensions of the new Statute of Merchants CHAP. V. CHAP. V. Sect. 1. Abusions of the Common Law THere are many who say That although other Realmes use a written Law yet onely England useth her Customes and her Usages for Law not written but betwixt rightfull and tortious usages there is a difference for tortious usages not warranted by Law nor suffered by Holy Scripture are not at all to be used as for example those of Theeves whose usages are to rob and steale And to shew some abuses holden for usages which are frauds to the Law and repugâ—ants to right and which are not found justifiable by Holy Scripture is this Chapter made of a Collection of part of the abusions of the Law and of persons erring from the knowledge of the right of Law and from lawfull usages Abusion is a disuse or a misuse of right usages turned to abuses sometimes by contrariety and repugnancy to Law sometimes by too large a usage thereof 1 The first and chiefe abusion is That the King is above the Law whereas he ought to be subject to it as it is contained in his Oath 2 It is an abuse that whereas Parliaments ought to be for the salvation of the Soules of Trespassors twice in the yeare at London that they are there but very seldome and at the pleasure of the King for Subsidies and Collections of Treasuree and where the Ordinances ought to bâ— made by the assent of the King and of hi Earles they are now made by the Kin and his Clerkes and by Aliens and others who dare not contradict the King but de fire to please him and to Counsell him for his profit though the Counsell be not Covenable for the common people without calling the Counties thereunto and without following the rules of Law whereby it followeth that many Ordinances are grounded more upon pleasure then upon Law 3 It is an abuse that the Lawes and the Customes of the Realme with their occasions are not put into writing whereby they may be knowne so as they might be knowne by all men 4 It is an abuse that force holds in Disseisins after the third day of peaceable seisin for as much as he is not worthy to be aided by the Law who flyeth from Iudgement and useth force 5 It is an abuse that Justice is delayed in the Kings Court more then oâ—se where 6 It is an abuse to suffer any to be in the Realme above forty daies who is of the age of fourteene yeares English or Alien if he be not sworne to the King by an Oath of Fealty and in some Pledge and Dozien 7 It is an abuse that Clerkes and Women are exempted to make the said Oath to the King seeing the King taketh their Homage and Fealty for Lands 8 It is an abuse to hold an escape out of Prison or the breach of the Goale to be a mortall offence for that usage is not warranted by any Law nor is it used in any place but within this Realme and in France for as much as one is warranted to doe it by the Law of Nature 9 It is an abuse to suffer so many formes of Writs to be pleadable and therein especially that the Writs are Close and not Patents as the Writs of Right and in that they are made with interlinings and rasure and otherwise vicious 10 It is an abuse that the money is not quarterable that it is not Silver that it is held payable if the forrein circle be not whole to allay the Money per 18. d. and make paying of Lead to every c. 11 It is an abuse that the King takes more then twelve pence for the exchange of twenty shillings in the pound 12 It is an abuse that no pound is suffesed to weigh twenty five shillings or more then twelve ounces 13 It is an abuse that Treason is not adjudged more by Appeales then it is 14 It is an abuse that a man who hath done Man-slaughter of necessity or with the Peace or not feloniously is detained and kept in Prison untill he hath purchased the Kings Charter of pardon of death as it is for mischance 15 It is an abuse to hold the moveable goods of
Action personall from a longer time then the last Eyre 123 It is abuse of the Writ of Accompt for which every one may imprison another wrongfully 124 It is abuse that one is bound to render an accompt of issues of Land whereof he is Guardian by title of Law 125 It is abuse that the Writ of Ne cui juste vexces is so out of use 126 It is abuse that Battailes be not in personall Actions as well as in Felonies 127 It is abuse that proofes and purgations be not by the Miracle of God where other proofe faileth 128 It is abuse to joyne Battaile betwixt persons who are not admitted to wage battailé 129 It is abuse that a Knight is otherwise armed then another man in a Combate 130 It is abuse that Judges have Cognizance by originall Writ or warrant by Vouchers or in others to which his jurisdiction extendeth not 131 It is abuse to suffer a Voucher to warranty in the Kings Writ of Quo warranto 132 It is abuse that those who are sound Usurers by indictments after their deaths are suffered to be buried in Sanctuaries and that the Lands doe not escheat to the Lords of the Fees 133 It is abuse that vicious Obligations drive the Authors to personall Damages in as much as they are voidables 134 It is abuse to compell Iuronts Witnesses to say that which they know not by distresse of Fine and imprisonment after their Verdict when they could not say any thing 135 It is abuse to use the words to their knowledge in their Oath to make the Iurours speake upon thoughts since the chiefe words of their Oathes be that they speake the truth 136 It is abuse that one examine not the Jurours though they finde at least two to agree 137 It is abuse to put more words in the doing of Homage but thus I become your man for the Land which I claime to hold of you 138 It is abuse to Answer or appeare by Atturney 139 It is abuse to make Justices such parties without the Writ in the Kings presence if not with the assent of the parties 140 It is abuse that the Writs of Audita quareta and Conspiracy and others containe not the substance of the plaints 141 It is abuse that the Justices of the Bench meddle with more Pleas then of wrong done against Fines Grand Assizes translation of pleas out of lower Courts and of Darrein presentment and of the rights of the King Queene and their Allies 142 It is abuse to use a Pone when their Causes are discussed if the parties challenge the same for a lying purchasor ought not to have benefit of his leasings 143 It is abuse to sue forth Grand Distresses in Pleas of Attachments whereof the defaults are to the profit of the King and not of the Plaintiffes 144 It is abuse that Trespassours who have nothing are not banished from Townes Counties Manours and Hundreds as they used to be 145 It is abuse to hold that a Petit Cape maketh other title but to save every right in reall Action not in others 146 It is abuse that the issues of Grand Distresses in mixt Actions come not to the profit of the Lords of the Fees and others who have Courts as they doe to the King of Pleas moved in his Court upon the same Actions 147 It is abuse to thinke the same punishment is to be to Maine-prisots as to Principals who make default whereas they are amerceable onely in Courts 148 It is abuse to amerce a man in plesive of Fee or of service going out of the Land by default in a personall Action or reall for Outlawty or losse of Land is sufficient punishment 149 It is abuse that Sheriffes doe not execution of Writs Vice Conntiels in as much as the Plaintiffes have found Pledges De proseqnend where there is no mention to take Sureties 150 It is abuse to distreine for Arâ—erages of services issuing out of Lands moveable goods whereas no distresse ought to be but in the Land onely 151 It is abuse that the Tenant may without punishment enfeoffe a third person of the Land of his Lord in prejudice of him or doe other thing or say any thing against the points of his Oath of fealty 152 It is abuse to suffer a man who is a Champion to be a witnesse 153 It is abuse that none have recovery of wrong done by the King or the Queen but at the Kings pleasure 154 It is abuse to judge a man to divers punishments for one Trespasse as to a corporall punishment and to a ransome since ransome is but a Redemption from corporall punishment by payment of a fine of money 155 It is abuse that people defamed of offence are not barred from making oathes and of their dignities and of their other Honors And divers other abuses appeare by those who well understand the Writ before written CHAP. V. SECT 2. The defects of the great Charter SEeing how the Law of this Realm sounded upon forty points of the Great Charter of Liberties is damnably dis-used by the Governours of the Law and by Statutes afterwards made contrary to some of the points to shew the defects or defaults of the points aforesaid and the errours of some Statutes I have put in memory this Chapter of the defect and reprehensions of Statutes and first of the defects of the points of the Great Charter To the point That the Church of England shall have all her Rights and Liberties inviolable for first it were necessary to ordaine a Corporall punishment and namely to the Lay Judges the Kings Ministers and others who Judge Clerkes for mortall Crimes to Corporall punishments infamatories doe detain their goods after their purgation and to those Secular Judges who take upon them Cognizance in causes of Matrimony and Testaments or other speciall things The other point is That every Free-man of the Realme inherite the Liberties of the Charter and whereof every one is disseised as of his Free-hold which is not adjudged according to the points following there lyeth no recovery of damages by the Assize of Novel Disseisin A third point seemeth to be defective for as the releife of an Earldome entire was to decrease in him who held lesse so it seemeth that that certainety was to encrease as much if an Earle held more so as he who held two Earldoms and who held an Earldome and a Barony shall pay as an Eardome and as a Barony and so of other Fees if they be not expressed in the Charter that the Fyne of one hundred pound be not an Eirldome for no point oncreased and so of other certainties The fourth point is defective for although it be that such a point be grounded upon Law to binde the Lord of Fees to warranties by taking of such Homages whether they tooke them of the right Heires or not because it is not expressed whoshould be Guardian of the Fees in time of vacancy and have the issues in the mean
a personall Trespasse and requireth a personall punishment and not a simple Amercement CHAP. V. SECT 4. Articles upon the Statute of Westminster the first MAny Chapters are reproveable of the Statute of Westminster For the points touching religious Persons are matter to gaine monies and a purchase upon a foundation of covetousnesse more then for their advantage The Chapter of Clerkes found guilty of felony is reproveable for for want of addition of punishment these Clerkes are not to be delivered to Ordinaries but at the pleasure of the King and of his Justices The Chapter of Wreck is reproveable in as much as the finder is forjudged by the Statute to have part thereof whereas he ought to have part of the profit and so it is reproveable as to the awarding of the punishment Of the points of Amercements is before spoken in the Great Charter The point of takings of distresse is much reproveable Cap. 9. as before is said The Chapter concerning pursuing of Felons to maintaine the Peace is reproveable in the punishment for he is consenting to a Felon who doth not apprehend him when he may In the same manner is it of the Chapter of Coroners contained in the Articles following The point of Election of Coroners was not needfull to have been ordained Cap. â— for it behoveth more the Electors to have wise and loyall Coroners then to the King and it had better have been enacted that the Coroners doe present the points of their Office under the Seales of the Jurours then Sheriffes should make counter parts of the Rolls The point of Enquest of Odio aria is reproveable Cap. 12. for London and other places in Liberties where there are no Knights The point of putting people found guilty of felony who will not put themselves upon the Country to pennance it is out of use that one kill them without having regard to the conditions of the Persons and therein it is reproveable since one may perhaps helpe and acquit himselfe otherwaies then by his Country and in as much as none is to be put to Pennance before he be attainted of the offence for which he ought to be pained The Ordinances of punishments of long imprisonment are to be reprehended as before is said The point of the order of Outlawry of the principalls before the Accessories is no Statute but a revocation of errour The point of Replevisalls is reproveable according as it is said of Actions the punishment of long imprisonment containe Errour as is said before The punishment of Heites males Married as against the King without the consent of their Lords betwixt 14. yeares and 21. yeares is reproveable for then the King should have amends for that for which he hath not any personall Suit for the amends The point of Heires females containeth Errour as appeareth in the reprehension of the point of Marriages in the Great Charter The point of tortious Distresses ought to contain the punishment for the robbery The punishment of Ministers Disseisors by colour of their Office is reproveable for the smalnesse of it as appeareth amongst the Judgements The point which forbiddeth Sheriffes that they take no rewards is reproveable in as much as the King taketh of them and they take nothing of the King The point of Fines of Clerkes and the officers of Justices in Eyre is reproveable for the common grievance of the people without taking of profit The points of imprisonment are reproveable for the reasons aforesaid and the point of Tolls for the punishment of imprisonment and because Tolls are not established certaine The point which willeth that those who dis-use Marriages should lose them was not needfull to have been made for the Law is that he shall lose his Franchise who useth it not The point of the Receivers of the Kings monies and not rendring the same is reproveable for the smallnesse of the punishment according to that which appeareth before The Errours of taking of Carriages and other goods appeareth sufficiently by the reasons before The point which forbiddeth Judgement to be given by Strangers in Counties is reproveable for no Iudgement given by another then an ordinary Judge assigned is to hold The point which maketh mention of Robbery or Disseisins is reproveable for all those are to be seised upon who the Jurours indict of Robbery according to the example of Theeves and other Felons The point of Attaint is reproveable for it should not extend to one case but it ought to comprchend all Oathes taken by twelve men if one of the Parties complaine thereof The point of limitations of Actions is reproveable for the reasons in the Chapter given upon the same matter The point which forbiddeth falsities and abuses used in Courts before this time to false Judges who used not the Law by sufferance of falsities The point of Champions is reproveable for no Champion is to be receiveable as a witnesse The point of not allowing Essoignes in Assizes after appearance is reproveable by the Assize of Novel disseisin where no Essoigne is allowable for the Tenants no more before appearance then after not in no other personall Action The other points of Essoignes are reproveable for no false cause of Essoigne ought to advantage any man The point of delaies in Pleas of Attachment is reproveable in many points accordingas appearethin the chapter of defaults The point to plead upon the surcharge falleth in prejudice of Sheriffes and of Lords of Fees and of Liberties and although the two points of Disseisins that is to say that every one may avoid the damages in the point of personall trespasse done to his Ancesters in as much as his Action lyeth of what age soever the Parties be yet is the first reproveable for as much as the Plaintiffes have no recovery for the damages done to their Ancestors not any Action but to have restitution of the possession The other point is reproveable for the smallnesse of the punishment but according to common right this punishment should have time that he should never doe Homage betwixt them for the Lords forfeiture when he beginneth to dis-inherite his Tenant contrary to the right of Homage The Prayer of the King is reproveable because he ought to aske nothing contrary to Law but it is the prayer of the Justices who desire alwaies to have much to doe The point that if he who is vouched to warranty ought not to warrant although he be bounden by the deed of his Ancestor whose Heire he is in case he alledge that nothing descended to him from that Ancestor by whose deed he is â—ouched is reproveable for according to the old Law Lands remained liable to the Debt of those who acknowledged it to whose hands soever the Lands afterwards came In the same manner it used to be in all other Contracts where the Contracts were adjudged or granted and although nothing descended to the Heire for that he lost not the Tenements for want of Acquittance and if
at the prayer of the Plaintiffe may send the Warden of the Fleet to bring him before them to satisfie the party the money or otherwise commit him to the Fleet. And when he appeareth and will deny that he is the same person then Quaere what shall be done if the Justices may commit him to the Fleet or not And some say not for that they know him not as Judges but as other men by information of the parties and the Plaintiffe cannot mainetaine that he is the same person because he commeth not in but by information of the party Plaintiffe not by Processe of Law Quaere what is to be done in that case And see another difference betwixt the Judges of the one Bench and of the other for it is said That if the Judges of the Kings Bench doe award Processe in a Formedon a Writ of right or execution of Land recovered in value the Sheriffe ought to execute the Writs although they have not any jurisdiction therein But if the Judges of the Common Pleas will grant Processe of Treason c. out of their place the Sheriffe ought not to execute the Processe for that authority is onely of Common Pleas c. The chiefe Iustice of the Common Pleas is made by Patent viz. by these words Constitutimus iâ—â—â—mcapital Iusticiar nostrum de Coi Banco c. Habendum illud own feodis vadiis regardiis eidem officio debit conâ—suet And the other Iudges of the same Bench are made by Letters Patents c. The Chancery ANd note that the Court of Chancery is a Court of a high nature out of which Court issue all originall Writs and there a man shall traverse Offices and such things and in that Court women who are widowes to the King shall be sworne that they shall not marry without the Kings Licence before the time that they be endowed and it is said That of errour there upon a Patent or a Traverse the same cannot be reversed else where but in Parliament Quaere c. And in that Court a man shall have remedy for that which he hath no remedy at the Common Law and it is called by the common people The Court of Conscience And therefore see of matters in Conscience how the party shall have remedy If a man hath Feoffes to his use and maketh his Will and thereby willeth that his Feoffes should make an estate to I. for terme of his life the remainder to C. in Fee if the said I. will not take the estate what remedy is for him in the remainder in conscience and how he shall helpe himselfe in Chancery c. A man shall have remedy in Chancery for Covenants made without writings if the party have sufficient Witnesses to prove the Covenants and yet he is without remedy at the Common Law c. And for Evidences when a man knowes not the certainty of them nor in what they are contained it is usually to be releeved in Chancery for he is without remedy by the Common Law c. If a man infeoffeth another of certaine Lands to his use and the Feoffee selleth the Land to another if he giveth notice to the Vendee at the time of the sale of the intent of the first Feoffment he is bounden to performe the will of the first Feoffer as it seemeth in the Chancery A man was bounden unto another by Obligation in a certaine summe of money and the Oblgee brought an Action upon the same Deed in another County then where the Obligation was made and had Iudgement to recover and the Obligor in Chancery sued to be releeved and it was surmised that by that forraigne Suit he was outed of diverse Pleas which he might have had if the Action had been brought in the County where the Obligation was made and it was conceived a good matter to releeve him in equity In the Court of Chancery a man shall not be prejudiced by mispleading or for want of forme but according to the truth of the Cause judgement ought to be given according to equity and not Ex rigore juris And note that there are two jurisdictions Ordinary and Absolute Ordinary is as positive Law and Absolute is Omnibus modis quibus veritas sciri poterit If a man be bounden by Obligation unto two men unto the use of one of them and one of them viz. is he to whose use it is not releaseth to the Obligor all Actions so as the Obligation is discharged he to whose use the Obligation was made hath good remedy in Chancery by Subpoena against his companion who released him but against the Obligor it seemeth he hath no remedy for every man is bounden to helpe himselfe and it is lawfull for a man to get a discharge of that which he is charged withall and in danger to others And if a man hath recovered against another debt or damages and he hath paid the same without any Acquittance or without having a release and notwithstanding the party taketh execution against him upon the same Iudgement he shall have no remedy by the Common Law and it was then said by the Chancellor that he shall not have any remedy in equity in this case and if the same should be remedied in equity then every Record should be examined before him and thereby the Common Law overthrowne And if I doe infeoffee one upon trust and the Feoffee doth infeoffee another of the same Land upon trust Quaere if I shall have a Subpoena against the second feoffee but where he is infeoffed bona fide there the first Feoffer is without remedy against the second Feoffee as it seemeth It is said That the Chancellor of England wheresoever he shall be in England hath power to command a man to prison and he shall not be bayled Quaere whether the Iustices of the one Bench or of the other out of their Courts have the same authority or nor The Exchequer THe Court which is commonly called the Exchequer is properly for Accomptants Sheriffes Escheators and the like and there they are compellable to make their Accompts according to the usages and customes of the same Court c. and it seemeth to be a Court which is much for the Kings profit for there all remedies are provided how the debts and duties to the King shall be levyed And in that Court the Barons are Iudges betwixt the King and his Subjects and they are sworne thereunto and Fines Issues and Amercements which are assessed in other of the Kings Courts the estreates shall be made thereof to the Court of Exchequer and there they shall write forth Processe against the parties to answer thereunto and to satisfie the King what is due to him and of divers other matters they have power and authority by reason of their Office c. The Cinque Ports THere are also divers other Courts and inferiour places where Iustice is ministred and in those places they have Iudges as in the Cinque
points aforesaid besides the exceptions which are to the person of the Pleader for no man can be a Pleader who cannot be a Plaintiffe or Actor CHAP. II. SECT 6. Of Attachments PErsonall Actions have their Introductions by Attachments of the body reall by Summons and mixt Actions first by Summons and afterwards by Attachments The Law requireth that offenders in case of death have not such mittigation or favour that they be brought or summoned or distreined to appeare in Judgement by taking of their Cattell if the offenders be knowne and notorious and the Plaintiffe pursue them to soone as he may And if any one fly for such offence then according to the Statute of Winchester he was to be followed with Hue and Cry with Horne and Voyce so that all those of one Towne who can are to follow the Felon to the next Towne and if any such Felon be attaint and convict of the felony let him be killed if he cannot be otherwise apprehended But it is otherwise in felonies not knowne for it is not lawfull to kill the offender without his Answer if he may be taken alive And if any one would complaine to have revenge or to drive the offender to the salvation of his Soule let him goe to the Coroner of the place where the offence was done and set forth his complaint there as he will prove it and the Coroner is to cause the same to be distinctly enrolled and if he cause him to record it as murder being corrupted to destroy his Neighbour by his plaint so that he have Judgement the like is to be done to him if he prove not his plaint At the next Court after the Appeale is enrolled it belongeth to such Plaintiffes to recite their Appeales and to finde Sureties to pursue them or to remaine in Prison till they have found Baile and to the Maine-prisors such Plaints are to be delivered by Coroners body for body that they shall pursue their Appelees and to cause them to appeare in Court to receive Justice when they shall be demanded if they doe not prove their Appeales The Personall offences are these Imprisonment Mayhem Wounding Battery Perjury Usury Rescusses Forestallings Breaking of Parkes Resistance of framing lawfull Judgements Executions of false Judgements and all wrongfull offences Carrying away of Treasure trove of Wrecks Waife Estrayes The Attachments of mortall offenders are by their bodies without Sureties and the Attachments of veniall Personall offenders are also by their bodies but yet they are baileable Reall offences are those upon which are grounded Writs of right of Cosinage of Dower of right of Advowson of Entre of Escheate Writs of Quo jure of Formedon and of all Writs feodalls Mixt offerices are those upon which these Writs are framed viz. of Customes and Services of Villinage of Covenant of Homage of rendring Distresses of Mesne and other Acquittances of Escheates and the like and by reason of the mixture of their Introductions they are called Mixt. CHAP. II. SECT 7. Appeales and to whom Appeale is given THe Action of Appeale is not given to all alike but every one is allowed to have his Action of Trespasse to whom any Trespasse is done except such as cannot have any Action at all Every one may have an appeale of Burning to whom the damage is done and the property of the thing burnt doth belong Parents Kinred and Allies used to be admitted to bring Appeales of Murder but the Appeale of the Wife of the killing of her Husband is to be received before all other and yet not of all his Wives but of her onely who lyeth betwixt his Armes which is as much as to say in whose seisage he was murdered for if he had many Wives and all were alive at the time of his murdet neverthelesse she only is admitted to bring the Appeales of all the rest whom he last tooke to be his Wife although in right she be not his Wife and the reason thereof is because it belongeth not to the Temporall Court to try which was his Wife of right and which in Fact and the Appeales of all other are to be suspended the pendant the same Appeale brought After the Appeale of the Wife is the Appeale of the Sonne lawfully begotten of the murder of his Father to be received before all other it is said lawfully begotten because a Bastard is not to be accounted amongst Sons for the Common Law only taketh him to be a Sonne whom the Marriage proveth to be so After the Appeale of the eldest Son the Appeale of the next of blood is used to be received and so from one degree to another in the right Line of Cosinage and if the blood faile in that Line then they of the Collaterall Line are admitted to bring the Appeale or the Kinted where the blood faileth according to the degrees of Consanguinity and Affinity and especially in the Line of the Fathers side but the Appeales of Murder were restrained by King Henry the 1. to the foure next degrees of blood And if any one within the age of 21. yeares doe bring an Appeale the Defendant is not bound to answer so high an Action untill he hath passed that age and therefore such Appeales are to be suspended till both the Parties be of full age if exception in the case be taken to the Nonage Men and Women Clerkes and Lay-men Infants and others of what condition soever they be may bring Appeales except those who are not suffered to bring any Actions and although it be that many doe bring Appeales yet one neverthelesse is admitted to continue and pendant that all the others are to be suspended And in all Cases the Appeales against the Accessories are to be suspended pendant the Appeale against the Principall be it one or many CHAP. II. SECT 8. Of Processe of Exigent in Appeales AT the first County the Coroner is to doe no more but to enter the Pledges who properly are Main-prisors and to Command that such take the Appeales and seize all their Possessions and their goods into the Kings hands as before is said and if they be taken that they be kept till due deliverance be of them and if they be not to be found and the Plaintiffe come at another County and recite his Appeale or Appeales then are such Appelees demandable only by their names and by such names as they are best knowne by that they appeare to Answer the Kings Peace for if any one be Appealed as Son of the Father and is knowne by another Sir-name the Appeale is insufficient and by consequence abatable at the perill of the Plaintiffe and at the third County they are to be demanded in like manner as before at which County Court if the Appelees appeare not not are taken into Main-prise to appear at the next Court Judgement is to be given against them for their contempt by the Coroners and those who doe appeare before Judgement of the Coroner are presently to be delivered