maintaine the suit and so may A. for either of them hath interest in this debt and one of them may aid assist and maintaine the other to recouer his debt against C. in respect of their seuerall interests in the same debt But if in this case A. had promised to B. but part of this debt to haue prosecuted and maintained this suit then it had beene Champertie and vnlawfull maintenance in B. And the same law is 34. H. 6. 30. if one man be bound by Obligation to pay another man xx l. to the vse of a third man the Obligée and hee to whose vse the Obligation was made may both meddle in the suit of this Obligation 27 And so it is in goods for he that hath any propertie title Maintenance in respect of his title to goods or lawfull possession in goods 39. H. 6. 20. may maintaine a suit that is prosecuted against another touching the same goods As B. brought an action of Debt against A. in London and the Sherife returned that A. had nothing c. Wherupon at the plaintifes surmise certain goods of A. were attached in the hands of I. according to the custome of the said Citie and a Scire facias was awarded against the same I. to answer for those goods in which A. did maintaine the same I. in nominating vnto him a learned man in the law to whom by his aduice he went for his counsell and this was awarded maintenance iustifiable for that the propertie of the goods fo attached in the hands of I. were and did continue in the said A. Maintenance in detaing of a writing deliuered in trust So it is if one man doe deliuer a déed or other writing to another to be kept if a straunger will bring an action of Detinue against him to whom the same was deliuered the partie who deliuered that writing may lawfully maintaine him in that suit for the interest hee hath in the same writing And yet the recouerie of that writing would not haue bound him that did deliuer it but hée might haue had his action for the same against him that did recouer it Maintenance in respect of his ioynt interest with others 28 As euerie person may lawfully maintaine any suit that shall be prosecuted which concerneth his priuat and particular land lease rent debt or goods so may he maintaine a suit touching any land or other thing which hée hath ioyntly or in common with others 18. E. 4. 2. As the Parson of a Church brought an action of Trespasse against one of his Parishioners for digging of his ground and spoyling of his grasse Whereunto the defendant pleaded That the place where the Trespasse was supposed to be done is a Churchyard consecrate by the Bishop and that he and all those who are inhabitants in the same Parish haue vsed to haue their Sacraments and buriall for their dead there And that one of the inhabitants of the same Parish dyed and hee with others brought his bodie to the Church and after made a graue for him in the same Churchyard and there buried him which is the same digging whereof the plaintife hath conceiued his action Whereupon they were at issue In this case it was agreed by all the Iustices that euerie inhabitant of the same Parish may lawfully giue euidence and otherwise maintaine this issue though they be not parties thereunto for euerie of them hath the like interest in the Churchyard Maintenance by all the inhabitants of a parish as the partie to that suit And the same reason and law seemeth to be if there be a suit commenced betweene one or more inhabitants of a village Hamlet or Parish and some other person or persons for a common or way or for the digging of a pit of stone marle grauell morter sand c. vsed or claimed to belong or of right to bee due to the inhabitants of the same Village Hamlet or Parish after issue ioyned touching the right or title of the same common way or pit the residue of the inhabitants of the said Village Hamlet or Parish may aide and assist their neighbour or neighbours partie to that issue and it is lawfull maintenance for it tendeth to the benefit or preiudice of all the said inhabitants and is in a sort their owne case Maintenance of a poore man in his suit 29 In a Writ of Maintenance the plaintife supposed that the defendant did maintaine one A. in an action which the plaintife brought against the sayd A. Whereunto the defendant pleaded That the same A. was a poore man 32. H. 6. 35. 21. H. 6. 15. and had nothing to defend himselfe in the suit which the plaintif had commenced against him and that the defendant of his almes gaue him xx s. which is the same maintenance This was allowed a lawfull maintenance and iustifiable for any man to doe for whereas vnlawfull maintenance is in case when a man doth maintaine a suit to haue the whole or parcell of the land 9. H. 6. 64. or thing in question or to haue some other consideration to further or vphold that suit or where a man hauing nothing to do nor colour to meddle yet wil vndertake for euill will to maintaine that cause in question this giuing mony to a poore man to defend his right is not to either of the intents aforesaid but bestowed vpon a charitable disposition to search out truth and further the execution of iustice which appeareth by the stat of 11. H. 7. wherin the king and the whole parliament willing indifferent iustice to be ministred according to the common laws as wel to the poore as to the rich and perceiuing that the poore were not of abilitie to sue according to the law of the realme for the redresse of their iniuries and wrongs ordained that the king himselfe the L. Chancellor and some of each profession towards the law should in a sort aid and assist them the words of which stat be these St. 11. H. 7. 12 viz Euerie poore person which shall haue cause of action against any other shal haue by the discretion of the Chancellor Proces counsellors and Atturneyes assigned to aid the poore writs originall writs of Subpena according to the nature of his cause nothing paying to the K. for the seales of the same nor to any person for the writing of the same writs And the said Chancellor shall assigne such of the clerkes which shal vse the making and writing of the writs to write the same readie to be sealed and also learned Counsell Atturneyes for the same without taking any reward therefore And after the said writs be returned if it bee before the King in his Bench the Iustices there shal assigne to the same poore person counsel learned by their discretions which shall giue their counsell nothing taking for the same And likewise the Iustices shall appoint Atturneyes for the same poore person all other
verdit or misdemeanors shall happen to be made shall haue full power to compell such Iurors and euery of them vpon paine of imprisonment to be bound by Recognisance in a certaine summe of money by their discretion to be limited that the same Iurors and euery of them shall personally appeare at a certaine day by the same Iusticiar Steward or other officer to be limited before the Lord President and other of the Councell aforesaid for the time being then and there to abide and stand to such direction and order as the same councell shall make ordaine and decree of in and vpon the same And the same councell shall thereupon haue authoritie by examination or otherwise to heare and determine all and euery such cause and shall haue like authoritie to commit euery of the same Iurors to prison or other punishment as shal be thought meet by the discretion of the said counsel or otherwise assesse or taxe euery such Iuror to his fine and ransome by the same discretion to be paied and leuied of their lands goods and cattels to the vse of the King Periurie committed by witnesses 20 Hauing written of the restraint and punishment of periurie in Iurors consisting of twelue persons at the least impannelled or sworn to deliuer their verdict according to their euidēce I am now to expresse what punishments the law doth inflictt vpon such which doe come one by one as deponents or witnesses to testifie the truth and to informe the Iudge or the Iurie of the veritie of the matter in issue or question according to their knowledge whereof euery man by himselfe may be called singularis testis though there be more witnesses sworne in that cause And séeing that iustice cannot be executed without the knowledge of the truth of the cause in question that truth is in most cases only to be deliuered by the othes and testimonies of such parties as were witnesses priuie or best acquainted with the matter in variance Therefore first it is to be obserued that the wisdom of the law hath thought it necessarie to prouide that such witnesses may be compelled vnder a great paine to appear in court and testifie their knowledge concerning such matter in question as by the Statute made Anno 5. A witnes vpon proces serued shall appeare El. it was ordained St. 5. El. 9. St. 29. El. 5. That if any person vpon whom any proces out of any of the courts of Record within this Realme or Wales shal be serued to testifie or depose concerning any matter depending in any of the same courts and hauing tendered to him according to his countenance or calling such reasonable sums of money for his costs and charges as hauing regard to the distance of the places is necessarie to be allowed in the behalfe doe not appeare according to the tenor of the said Proces hauing not a lawfull and reasonable let to the contrarie then the partie making default shall forfeit for euery such offence x. l and shall yéeld such further recompence to the partie grieued as by the discretion of the Iudge of the court out of the which the said proces shall be awarded according to the losse and hindrance that the partie which procured the said proces shall sustaine by reason of the non appearance of the said witnesse the said seuerall summes to be recouered by the partie so grieued against the offendor by A.I.B.P. c. in any of the K. courts of Record wherein no W.E. or P. c. 21 There were seuerall statutes made during the raignes of king H. 6. K. H. 7. and K. H. 8. against Periurie and the procurers and committers of periurie and lastly one was ordained Anno 32. H. 8. St. 32. H. 8. 9 against such as should suborne witnesses to the hindrance of Iustice and the procurement of periurie Sithence the making whereof for that the penaltie therein is small towards the offendors in that behalfe the said offence of subornation and sinister procurement of false witnesses did neuerthelesse greatly increase and by reason of the wilfull Periurie committed by the same suborned witnesses diuers persons did sustaine disherison and great impouerishment as well of their lands and tenements as of their goods and cattels The penaltie for procuring of wilfull periury in witnesses for the redresse and more sharpe punishment whereof St. 5. El. 9. 29. El. 5. by a Statute made Anno 5. El. it was enacted That all and euery person and persons which shall vnlawfully and corruptly procure any witnes or witnesses by Letters Rewards Promises or by any other sinister and vnlawfull labour or meanes whatsoeuer to commit any wilfull and corrupt Periurie in any matter or cause whatsoeuer depending in suit and variance by any Writ Action Bill Complaint or Information in any wise concerning any lands tenements or hereditaments or any goods cattels debts or dammages in any of the courts of the Chauncerie Starre chamber White hall or in any other of the Kings Courts of Record or in any Léet view of Franke pledge or Law day Auncient demesne Court Court Hundred Court Baron or in the Court or Courts of the Stannerie in the countie of Deuon and Cornewall Or shall likewise vnlawfully and corruptly procure or suborne any witnesse or witnesses which shall bée sworne to testifie in perpetuam rei memoriam Then euery such offendor or offendors shall for his hers or their said offence béeing thereof lawfully conuicted or attainted forfeit fourtie pounds to the King and the partie grieued hindered or molested by reason of any of the offences aforesaid that will sue for the same by A. B. P. or I. in any of the Kings Courts of Record wherein no W. E. P. or I. shall bée allowed And if it happen any such offendor or offendors béeing so conuicted or attainted as is aforesaid not to haue any goods or cattels Lands or Tenements to the value of fourtie pounds then euery such person or persons so conuicted or attainted of any of the offences aforesaid shall suffer imprisonment one halfe yeare without Baile or Maineprise and stand vpon the Pillorie one whole houre in some Market Towne neere or next adioyning to the place where the offence was committed in open market there And no person béeing so conuicted or attainted shall bée from thenceforth receiued as a witnesse to bée deposed in any court of Record within any of the Kings dominions of England Wales or the Marches of the same vntill the Iudgement giuen against him or them shall bée reuersed by Attaint or otherwise And vpon euery such reuersall the parties grieued shall recouer his or their dammages against all and euery such person and persons as did procure the said iudgement so reuersed to bee first giuen against them or any of them by action to be sued vpon his or their case according to the course of the common Law St. 5. El. 9. 22 If any person or persons either by the subornation
doth acquite himselfe either at the appellants suit or at the Kings suit This suit of the K. is alwaies intended vpon an appeale when the def is arraigned vpon an appeale after that the appellant hath declared in his appeale and is Nonsute for if the def were acquite at the kings suit vpō an indictment of the same Felony yet he shall recouer no dammages And the manner how he shall recouer dammages being acquite at the kings suit doth somewhat vary from recouering of dammages at the parties suit for when it is at the kings suit he shall not recouer his dammages though he be acquite vntill he hath sued a Scire facias against the appellant to bring him into the Court againe being out of the Court before by his Nonsute But if he be acquit at the appellants suit he shall haue his iudgement to recouer dammages without suing of any further Proces And if a woman that is appellant be Nonsute and after doth take a husband Fit Damag 77. the Scire facias shall bée awarded against the wife onely B. What Iustices may inflict the penalty vpon the appellant 8 And though the foresaid statute of West 2. hath prouided St. 13. E. 1. 12 That the Iustices before whom the said appeale shal be heard and determined shall punish the appellant by a yeares imprisonment that punishment cannot be inflicted by the Iust of Nisi prius and yet by the statute of Anno 14. H. 6. St. 14. H. 6. 1 the Iustices of Nisi prius haue power to giue iudgement in Treason and Felony tried before them and that as well where the defendant is acquite as where he is attainted But yet they be not such Iustices as this statute doth meane 2. 3. P. M. Dy. 120. 14. E. 4. 14. 22. E. 4. 18. For that all the plea of Appeale was not heard before them but a parcell viz. the triall onely The dammages for seueral persons assessed seuerally 9 And whereas the said statute of West 2. would haue the Iustices in assessing of dammages for the defendant in an appeale St. 13. E. 1. 1◠to haue respect to his imprisonment arrest slander Therefore in an appeale brought against diuers if they be all acquite the dammages shal be taxed seuerally that is to say 8. H. 5. 6. Fi. Dam̄ 77. euery of the defendants shall haue his dammages taxed by himselfe for it may bée that one hath cause to recouer more then the other as if one were appealed as principall and the other as accessory or that the one were a gentleman or a man of greater estate and the other of a meaner degrée But yet this Recouery of dammages must be intended in one who is by the law enabled to recouer dammages for if an appeale be brought against a woman couert onely Fi. Cor. 276. without her husband as it must be vnles the husband committed felony with his wife the wife shall not recouer dammages though she be acquite And yet if the appeale be brought against the husband and wife together they be both acquite Fitz. Iudg. 108. then the dammages shal be seuerally taxed that is to say the husband shall recouer for his owne imprisonment and the husband and wife shall recouer iointly for the imprisonment of the wife St. 13. E. 1. 12 10 Though the foresaid statute of West 2. doth ordaine Where the appellant shall pay a fine to the king That the appellant shall be grieuously fined to the king yet that is to be intended where the appellant shall yéeld dammages to the defendant 9. H. 5. 1 for if the case be such as that the appellant shall not render dammages to the def then he shall not pay a fine to the K. but shal be amerced only as where an appeale doth abate by misnaming the appellant shal be only amerced And yet if the appellant be Nonsute after declaration 41. Ass p. 8. he shal pay a fine to the king and the Court will award proces against him for the same fine and though the defendant be after acquite at the kings suit by which meanes he shal recouer dammages against the appellant yet the appellant shall not pay a new fine to the king for that he hath paied it before And if the defendant be found guilty when he is tryed at the kings suit the appellant hath no remedy to recouer the fine which he hath paied before for by the common Law the plaintife in an appeale should haue paied a fine for his Nonsute which is the cause that a fine shal be paied by the appellant presently vpon his Nonsute St. 13. E. 1. 12 11 And for that the words of the said statute of West 2. be In what case inquiry shal be of the abettors If the appellants be not able to recompence the dammages inquiry shal be made by whose abetment the appeale was commenced by those words it is to be gathered that if dammages be not to be recouered against the appellant there shall neuer any inquiry be made of the abettors as in the cases aforesaid And where the words of the statute be If the appellant be not able to recompence the dammages it is intended all the dammages for if the appellant be sufficient to render part of the dammages 8. H. 5. 6. 8. Ed. 4. 3. but not the whole inquiry shal be made of the abettors and they shall pay the residue St. 13. E. 1. 12 12 The foresaid statute doth ordaine That inquiry shal be made of the abettors if the appellée do desire it so that the Court of Office ought not to inquire thereof but at the appellees request And if an appeale be brought against two and one of them is acquit by verdict if the Court do inquire of the abettors at the request of the same defendant and the Enquest doth find that there be no abettors and after the other defendant is arraigned and also acquite and if he do request also that inquiry may be made of the abettors the verdict of the former Enquest wherunto he was not priuy neither against which he shall haue any remedy being but an Enquest of Office shall not bind him but according to the words of the said statute inquiry shall be made againe at his request of the abettors for though it be commonly inquired of the abettors by the same Iury which doth trie the def yet their inquiry therein is but an Enquest of office for if they do find abettors the abettors when they doe appeare may trauerse all that the Enquest hath found As if they haue found that the appellant was not sufficient What pleas the abettors may plead or that such a man or such a one were abettors 8. Ed. 4. 3. because they that be supposed abettors may say by protestation not confessing the felonie for their plea that the appellant is sufficient or that they were no abettors for
H. 8. 12. small staffe or sticke for correction and though he do draw blood S. Br. 28. Beating of a man that is franticke 18 If a man be franticke furious or mad 22. Assise p. 56. 22. E. 4. 45. and attempteth being at liberty to burne an house or to doe some other mischiefe or to hurt himselfe or others it is lawfull for his parents kinsmen and other friends to take him put him into an house to bind him and to beat him with rods to doe any other forcible act to reclaime him or to kéep him in a house or place alone where he shal do no hurt And he shall haue not action of trespasse of assault and batterie action of false imprisonment nor other remedie against them for in this case and the others before rehearsed the peace of the realme was not broken but a lawfull punishment was inflicted vpon those who had deserued it to the end they should be reformed and hereafter doe their duties the better Beating of one that will not yéeld to arrest 19 If one man do enter a plaint against another in a court hauing iurisdiction to hold plea of that suit 2. E. 4. 6. 21. H. 7. 39. and the Sergeant of the court doth arrest the defendant and the defendant will draw his sword to defend himselfe and after doth run away with intent to escape from the Sergeant if in this case the Sergeant and he that did enter the plaint do pursue him beate hurt him if he will not be apprehended and yéeld to the arrest they may iustifie the same in an action of Trespas of assault and batterie for they haue not broken the peace nor offended the Law in séeking to iustifie him who doth attempt to flie from the justice and indifferent triall of the law But if the partie had not béen arrested the Sergeant nor any other with him could haue iustified the beating of him 38. H. 6. 25. 20 In an action of Trespas of assault and batterie the defendant pleaded Beating of a seruant departing out of his seruice that the plaintife was his seruant retained departed out of his seruice and that he laid hold vpon him and led him home to his house to doe his seruice But this was adiudged no plea for it is not lawfull for the Master in this case to beate or forciblie to compell his seruant against his will to returne and do his seruice but to require him to do it and if he will not then the Master may haue an action of Couenant against his seruant and recouer so much in dammages as he hath receiued hinderance by the losse of his seruice But by the statute made AnÌ„ 5. Sta. 5. El. 4. Eliz. it is ordeined That if any seruant retained to serue in husbandry shall depart from his master mistresse or dames seruice before the end of his terme vnlesse it be for some reasonable and sufficient cause to be allowed by a Iustice of peace of the Countie or the Maior or other head officer of the Citie borough or towne corporat wherein the said Master mistresse or dame inhabiteth Or if any seruant at the end of his terme depart from his master mistresse or dames seruice without one quarters warning giuen before the end of his terme and before two lawfull witnesses Then vpon complaint made by the said Master c. to two Iustices of peace of the Countie or to the Maior or head officer of the citie borough c. they or any of them shall haue power to heare and examine the matter and finding the said seruant or the partie so refusing faultie in the premisses vpon such proofes and good matter as to their discretions shall be thought sufficient to coâ—mit him toward there to remaine without baile or mainprise vntill he shall be bound to the partie to whom the offence shall be made to continue with him for the wages limitted by this statute and then to be discharged vpon his deliuerie without paying any fée to the Gaoler where he shall be so imprisoned And as the Master cannot by beating nor by force compell his seruant 38. H. 6. 25. 21. Ass p. 85 to serue him against his will No more can a Lord compell his ward A Gardian may not beat his ward by beating or by force to come vnto him or to tarie with him against his will But if he doe depart from him then his Lord is to haue his action against him 22. Ass pla 59. 27. Ass p. 4. Fitz Trespas 238. 21 H. 6. 39. 21 If A. commaund procure or hyre B. to smite Commaundement of batterie or beate C. and he doth assault and beate C. in the presence of A. In this case C. may haue an action of Trespas of assault and batterie against A. and recouer dammages against him or against A. and B. together for here the peace was broken and wrong done to C. by the meanes and perswasion of A. And B. had not striken with his weapon if A. had not first striken with his tongue And the same law is if A. go to fight with C. and desireth B. to go with him and after doth méete with C. and doth assault and beate him In this case C. may haue an action of Trespas against A. and B. together or against B. alone though B. did not assault C. nor giue him any blowe and recouer dammages against him because he came in company with one that intended to breake the peace and to doe an vnlawfull act Hurting at some exercise 22 If two or more doe agrée together to runne at tilt iuste barriers Fitz. barre 244. or to play at backsword bucklers footebal or such like one of them doth beat bruise or wound an other the party grieued shal not haue an action of Trespas of assault batterie against the other for that it was a combate by consent put in practise to try their strength valour or agilitie not to break the peace But if the same day or some other after that the pastime is at an end they departed a sunder one will assault or beate an other in respect of some wrong conceiued to be receiued in the time of the said play then an action of Trespas of assault battery may be pursued by him that is so beaten against the trespassor Whipping of a Vagabond 23 In an action of Trespas of assault battery it is a good plea for the defendant to plead that the plaintif was by the stat made An. 39. St. 39. El. 4. El. intituled an Act for punishment of Rogues Vagabonds sturdy beggers declared to be a Rogue Vagabond or sturdy begger that he was taken begging vagrant misordering himselfe at L. in the County of N. that vpon his apprehension by the appointment of A. B. one of the Iustices of peace of the said County of N. or of the Constable Headborough or
commission do only tend to the maintenance of justice the roote foundation and supporter of peace And whereas the King by the words of the said Commission doth appoint the persons therin named his Iustices to preserue his peace The Commission doth chiefely respect the peace and to kéepe and cause to be kept all ordinaunces and Statutes made for the conseruation of the peace and the quiet gouernment of his people These Statuts amongst many others chiefly be intended Sta. 2. E. 3. 6. 18. E. 3. 2. 34. Ed. 3. 1. the Statutes of Anno 2. Ed. 3. 18. Ed. 3. 34. Ed. 3. by which it is ordained that Iustices of peace shall haue power to heare and determine at the Kings suit all manner of felonies Why they be called Iustices of Peace and Trespasses committed against the peace in the same County and to restraine offendors riottors all other barretors and to pursue take and chasten them to imprison and punish them according to their Trespas and offence and to informe them according to the said Iustices discretion And to inquire of all those that haue béen pillers and robbers beyond the Sea and become againe and goe wandring and will not labour as they had wont to doe And to take and arrest all those which they can find by inditement or suspition and to commit them to prison Binding persons suspected to their good behauiour And to take of all those which be not of good fame in the place where they remaine sufficient suertie and maineprise of their good abearing or behauiour towards the King and his people and the other duelie to punish To the intent that the people be not by such Rioters troubled or endammaged nor the peace broken nor any passengers by the way disturbed or put in perill But the fines which Iustices shall assesse vpon any person shall be reasonable hauing regard the quantitie of the Trespas and the cause 70 So that it appeareth both by the words of the said Commission of peace A Iustice taking suertie of the peace and also by the foresaid Statutes That a Iustice of peace by vertue of his office hath authoritie to preuent the breach of the peace both by taking suertie for the kéeping of it and for the good behauiour of the offendors And that he may do either of his owne motion or discretion or els at the request or praier of an other And by his owne discretion he may cause a common Barretor Rioter or one that maketh an affray in his presence or other person to him suspected to be inclyned to the breach of the peace 9. E. 4. 3. or men menacing one to hurt or kill an other or contending in whote words to finde suertie of the peace And he may perswade one man to require the suertie of peace against an other man and he himselfe after may graunt it for it is no more then he might haue done of his owne authoritie which suertie of the peace What the suertie of the peace is is a recognizance taken by the said Iustice of peace of the partie and his suerties to the King for the kéeping of the peace And as a Iustice of peace may take this suertie of peace or suertie of good abearing as a Iudge by vertue of his office So may he doe it as a minister by force of a Supplicauit directed vnto him out of the Chauncerie Taking suerty of the peace by a Supplicauit in which case he is then only to direct his precept to compell the partie vpon the writ to finde suertie of the peace Which Supplicauit out of the Chauncerie is sometime directed to one Iustice of peace alone sometime to moe and sometime to the Shirife and sometime to him with others And then the same Iustice or Iustices of peace or Shirife must make retorne of the said writ of Supplicauit and a Certificat of his doing into the Court from whence the same was awarded And if the said Iustice of peace shall take the said Recognizance for the kéeping of the peace by vertue of his office Sta. 3. H. 7. 1 then by force of the Statute of Anno 3. H. 7. he shall certifie sende Certificat of a Recognizance or bring the same Recognizance at the next Sessions of the peace where he is or hath bin Iustice that the party so bound may be called And if the partie make default the same then there to be recorded And the same Recognizance with the record of that default shall be sent and certified into the Chauncerie the Kings Bench or into the Exchequer Suertie of good abearing And the suertie of good abearing is granted by authority of the foresaid commission of peace by the warrant of the before rehearsed statut of 34. E. 3. aswell as the suerty of peace is it is ordained for the preseruation of the peace it doth differ in nothing frō that of the peace but that there is more difficultie in the performance of it and the party bound may sooner slide into the peril danger of it The suerty of good abearing is most commonly granted in open sessions or by two or thrée Iust of P. Or vpon a Supplicauit great cause shewed proued it is granted in the Chancery or K. Bench. And though one Iustice of peace alone may grant it if he will yet it is sildom done so 9. E. 4. 3. Kel fo 41. vnles it be to preuent some great sodain imminent enormity or danger The suerty of peace is most times taken at the request of one for the preseruation of the peace chiefely against one But the suerty of good abearing is oftentimes graunted at the suit of diuers and those must be men of credit and to prouide for the safetie of many for the effect and purport thereof is that the partie bound shall demeane himselfe well in his port behauiour and company and doe nothing that may be the cause of the breach of the peace or in putting the people in feare or trouble And it is chieflie graunted against common Barretors common rioters common quarrellers common peace breakers and persons greatly defamed for resorting to houses suspected to maintaine incontinencie or adulterie and against those that be generally feared to be robbers or spoilers of the Kings people or which doe endamage disturbe trouble Articles exhibited to haue good abearing granted or put in peril passengers by the way Co. li. 4. 14. And therefore if one doe exhibit Articles to Iustices of peace against a certaine person comprehending diuers great abuses and misdemeanors not onely touching the Petitioner himselfe but many others to the intent that the same person may be bound to his good behauiour in this case the partie so accused shall not for any matter conteined in the said Articles maintaine an action vpon the case for the party or parties who exhibited the said Articles haue pursued an ordinarie course
case of felony Relieuing them which be assembled 35 If any wife or seruant of any of the same persons 1. M. 12. or any other person whatsoeuer shall willingly and without compulsion bring send deliuer or conuey any money harnesse artillerie weapon meat bread drinke or other victuall to any person or persons so beeing assembled as is aforesaid during such time as he or they shall so be assembled or be together as is aforesaid then euery wife seruant or other person so bringing or conueying c. any of the foresaid things to the same persons so beeing assembled together in forcible manner or to any of them and not departing to their houses or dwelling places vpon request or commandement made vnto them as is aforesaid shall bee adiudged a felon shal suffer execution of death as in case of felonie Vnlawful assemblies aboue two and vnder twelue 36 If any persons aboue the number of 2. and vnder the number of 12. 1. M. 12. beeing assembled together shal intend goe about practise or put in vre with force of armes vnlawfully of their owne authoritie to murder kill or slay any of the kings subiects or to ouerthrowe cut breake or cast downe or dig vp the pales hedges ditches wall or other closure of any parkes or parke or other ground inclosed or the bankes of any fish-pond or poole to the intent that the same or any of them from thenceforth should remaine open not inclosed or void or to haue common or way in the same parks or parke or other grounds or ground inclosed or in any of them or to destroy any parkes or parke or fish-pond or poole or any warrens or warren of conies or any doue-houses or to pul or cut down any house barne or mil or to burne any stacke of corne or graine or to alter defaulke or abate the rents or yearely value of any mannors lands or tenements of any of the Kings subiects or the price of any victual corne or graine or any other thing vsuall for the sustenance or apparell of men and being required or commanded by any Iustice of peace or the sherife of the countie or by any mayor bailife or bailifes or other head officer of any citie or towne corporat where such assembly shall be had by Proclamation to be made in the Kings name to retire or returne to their habitations places or houses and they so required by such proclamation shall not so do but after that shall in forcible manner in forme aforesaid attempt to do or put in vre any of the things last aboue mentioned then euery of the same persons beeing aboue the number of two and vnder the number of twelue shall suffer imprisonment of his or their bodies by the space of one whole yeare without baile or mainprise The remedie of the parties grieued And also if any person or persons shall be damnified or hurt by the doing committing or putting in vre of any vnlawfull act or thing aboue mentioned then all and singular persons so damnified and hurt shall recouer and haue dammages with the costs of their suit sustained in that behalfe trebled against the offendors therein 1. M. 12. 37 If any persons aboue the number of two shal vnlawfully of their own authoritie assemble together to the intent with force and armes to do practise Raising of power to suppresse vnlawful assemblies or put in vre any of the things aboue mentioned Then it shall be lawfull to euery Iustice of peace to euery Sherife in any countie beeing within the K. dominions and to euery mayor bailife and other head officer of any citie or towne corporat for the time he shall be in office or any other person or persons hauing the K. commission or Letters from his highnes as wel to raise and assemble the kings louing subiects in maner of warre to be arraied in such great number as he or they then shall thinke meet or able to the intent by violence of strength to suppresse apprehend and take the said persons that shall bee so vnlawfully assembled And if the said persons so vnlawfully assembled after such cammandement or request by proclamation made shal continue together and not endeauour themselues to returne towards their habitations houses or places from whence they came in as short time as they may conueniently Then it shall be lawful to euery I. of peace sherife and also euery mayor bailife and other head officer of any citie or town corporat to euery other person hauing authoritie as is aforesaid after such commandement or request by proclamation made and to such persons as shal be assembled with any Iustice of peace or sherife or with any mayor bailife or other head officer of any citie or town corporat and with euery other person hauing authoritie as is aforesaid to suppresse apprehend take those persons so vnlawfully assembled which after such proclamation made shall continue together and not endeauour thēselues to returne towards their habitations c. And if the said persons so vnlawfully assembled together or any of them shall fortune to be killed slaine maihemed or hurt in or about the suppressing or taking of them then euery such Iustice Sherife Maior c. and euery other person hauing authoritie as is aforesaid and all and singular persons by him or them assembled shal be frée discharged and vnpunishable as well against the king as against all and euery other person and persons of for or concerning the killing maiheming or hurting of any person or persons so vnlawfully assembled that shall be killed slaine maihemed or hurt about or by occasiō of taking or suppressing of thē c. 1. M. 12. 38 All and euery Copieholder and Customary holder being a yeoman artificer husbandman A copieholder being required refuseth to serue or labourer being of the age of xviij yeares or more vnder the age of lx years not sicke impotent lame maihemed neither hauing any other iust or reasonable excuse or cause to the contrary and beeing required by the sherife Iustice or Iustices of peace or other hauing authoritie by this act or by commission or letters c. they declaring their said authoritie or being required by the immediat Lord or Lords of whom such copie or customary holds then shall be holden to serue the King for any the causes aboue rehearsed and refuse so to doe shall only during the life of such person or persons so refusing forfeit to his Lord or Lords of whom such copie or customarie holds then shal be immediatly holden should be holden during the life of such person or persons so refusing in case he had not refused all their copie customarie holds And it shal be lawful to euery such Lord c. his heirs or assignes of whom such copy or customary holds shal be immediatly holden should haue bin holden in case that such persons or persons had not so refused to enter
take into his or their hands or possessions all such copie customarie holds so holden of thē or any of thē immediatly to retain the same during only the life of such offēdor or offendors in such maner as he or they should haue had the rents or seruices of such copy or customary hold in case such person or persons so refusing had not refused A farmer required refuseth to serue 39 All euery farmer being a yeoman husbandman artificer or labourer 1. M. 12. beeing of the age of xviij yeares or more vnder the age of lx years not sick impotent lame maihemed nor hauing any other reasonable excuse or cause to the contrary being required by the sherife Iustice or Iustices of peace or other hauing authoritie by this act or by commissiō or letters c. they declaring their said authoritie or being required by their said Landlord or Landlords for the time being to whom the rents of such farmes shal be then rising growing or comming to serue the king for any the causes aboue rehearsed and refuse so to doe shall during only the life of such farmer or farmers so refusing forfeit and loose to such Landlord and Landlords as should haue had the rents of such farmer during the life liues of such person persons so refusing all their said farmes And it shal be lawfull to euery such Landlord c. their heires and assignes to whom the rents of such farmes should haue bin due during the life of such person or persons so refusing in case he or they had not refused to enter take into his or their hands or possessiō al such farms to retain the same only during the life of euery such offēdor or offendors But after the death expiration or determinatiō of the interest or terme of yeares of euery such copyholder customary holder or farmer as so shal offēd forfeit any of the said copi-holds customary holds or farmes as is aforesaid thē euery such person as should or ought to haue had the copy holds customary holds or farmes after or by the death expiration or determination of the interest or terme of years of such copie-holder customarie holder or farmer in case such copie-holder customarie holder or farmer had not so offended ne forfeited shall and may haue the same copie-hold customarie holds and farmes by entrie action admission or otherwise in like manner forme and condition and by such meanes as they and euery of them should might or ought to haue had if no such forfeiture or offence had bin had done or committed 40 If any person shal be spoken vnto moued 1. M. 12. or stirred to make any cōmotion Disclosing a commotion when one is moued insurrection or vnlawfull assembly for any of the intents aboue mētioned and doe not within 24. houres next after he shal be spoken vnto moued or stirred vnlesse he haue good and reasonable cause of excuse declare the same vnto one Iustice of the peace or Sherife of the said countie or to the Mayor Sherifes Bailifes or other head officers of any citie or town corporat where such commotion c. shall be had he shall suffer imprisonment by the space of thrée moneths without baile or mainprise vnlesse he shall be discharged by 3. Iustices of peace whereof one to bee of the Quorum of the same shire where the offence shall be committed 1. M 12. 41 If any person béeing aboue the age of eightéene yeares An able person required refuseth to serue and vnder the age of thréescore beeing able to serue and not sicke lame or impotent shall be required by any Iustice of peace or any Sherife of any Countie where any such assembly shall be or by any Mayor Bailife or other head Officer of any citie borough or towne corporat or by any other by the commandement of any such Iustice Sherife Maior c. to goe with him or them to suppresse the persons vnlawfully assembled in manner and forme aforesaid then euery person which so béeing able and required doth willingly and obstinately refuse so to doe shall suffer imprisonment for one whole yeare without baile or mainprise 1. M. 12. 42 If the King shall by his Letters patents make any Lieutenant in any Countie or Counties of this Realme Attendance vpon a lieutenant for the suppressing of any commotion rebellion or vnlawfull assemblie then as well all Iustices of peace and the Sherife and Sherifes of the same as all Maiors Baylifes and other head officers and all inhabitants and subiects of any Countie Citie Borough or towne corporat within euery such Countie shall vpon declaration of the said Letters patents and request made bee bound to giue attendance vpon the same Lieutenant to suppresse any commotion rebellion or vnlawfull assemblie vnlesse hee so required haue any reasonable excuse for his not attendance vpon paine of imprisonment for one whole yeare 1. M. 12. 43 The order and forme of the Proclamation that shall be made by the authoritie of this Act shal be as hereafter followeth The forme of the Proclamation or with the like order and words in effect viz. The Iustices or other persons authorized by this Act to make the said Proclamation shall make or cause to be made an Oyes and after that shall openly pronounce or cause to be pronounced these wordes or to the like effect The King our Soueraigne Lord chargeth and commandeth al persons being assembled immediately to disperse themselues and peaceably to depart to their habitations or their lawfull businesse vpon the paine contained in the act lately made against vnlawfull and rebellious assemblies And God saue the King 1. M. 12. 44 If any person or persons doe or shal molest let hinder Hinderance of the Proclamation or hurt any person or persons that shall proclaime or go to proclaime according to the proclamation and order aforesaid whereby such proclamation shal not be made then euery such person so molesting or hurting c. and hauing knowledge of his message shall incurre such daunger and suffer such paines and forfeitures the persons assembled to whom the proclamation should haue beene made should by this Act incurre for not obeying the Proclamation if it had béene made or for doing after the Proclamation of any the things before expressed And also all such persons beeing assembled to the number aforesaid to attempt or doe any the things aforesaid to whom Proclamation should or ought to haue beene made if the same had not beene let shall likewise in case they doe after put in vre and doe any the things aforesaid hauing any wayes knowledge of the let so made or by any meanes procuring the same let incurre like danger and suffer like paines and forfeitures aforesaid in euery their degrees as though the proclamation had beene made any clause article c. in this Act c. notwithstanding Other mens right saued 45 All
thing and things in all points as other Iustices of Assise in their circuits or Iustices of peace in the Counties by vertue of this Act be limited and appointed to do and execute for the punishment and correction of like offendors as beforesaid is limited Sauing to the partie grieued by such deceit such remedie by way of action The remedie of the partie grieued or otherwise of for the same money goods cattels iewels or other things so obtained as he might haue had if this Act had neuer bin made Any thing in this Act c. notwithstanding 26 Forgerie of writings hath béene alwayes so hatefull in this realme that our law-makers haue pursued the practisers therof with sharpe and bitter punishment though in some cases the same was not put in vse to molest or euict any man of his land lease annuitie debt account action suit or other demaund nor to get into his hands any others goods cattels or iewels but only to escape the ordinance and censure of the law As by a statute made anno 5. Eliz. it is established St. 5. El. 7. That no person retained in husbandry or in certain inferior arts or faculties in the said statute mentioned shal depart out of one citie towne or parish into another nor out of the Lathe Rape Wapentake or Hundred nor out of the County or Shire where he last serued to serue in another Citie Towne Forging of a testimoniall c. vnlesse he haue a Testimoniall of the said Citie or town corporat from whence he departed or of the Constable or other officer c. And if any such person shall be taken with any counterfeit or forged testimoniall then he shal be whipped as a vagabond ⧠Periurie Subornation of witnesses Truth tried by the othes of men 1 THe Law of the Realme desirous to trie out truth in all causes called in question before her to the end she might procéed in iudgement and execute iustice accordingly hath in all ages prooued it to bee the best meanes to search out this truth by the othes of honest lawful and indifferent persons intending that the man who doth professe God to bee his Creator Redéemer and Sanctifier and hopeth to be saued by his blood when hee doth come in the presence of that God and his people and doth aduisely sweare that he will declare the trueth according to his knowledge in that matter in question as God shall help him which is to say as he will expect the blessing of God in this life and eternall saluation in the life to come is void of all partialitie and priuat affection in all respects to be credited and will tell the whole truth and nothing but the truth And therefore an othe is aptly termed Sacramentum a holy band or sacred tie or godly vow The credit of an othe some do call it firmamētum veritatis the foundation ground of truth and some other vinculum pacis a meane of the knot or lincke of peace And if it be taken and found by a whole Iurie consisting vpon twelue persons or aboue it is called veredictum viz. a presentment of truth And others doe hold it a ceremonie instituted by God wherein himselfe is a partie and therefore he will see it verified or sharply punished Wée know that the proofe of most of our acts déeds and writings doe depend vpon the othes of others and whatsoeuer men do for their owne particular account most certaine is altogether in most cases vncertaine vnlesse it may be iustified by the othes of others As if one doe commit murder rape burglarie robberie or other offence whatsoeuer and it be denied and cannot be prooued by the othe of some other the offendor shall escape vnpunished for it And likewise if a man do buy land of another if the feoffor doe make him a déed of feoffement thereof do seale and deliuer it and giue him possession and after will denie it vnlesse it can be prooued by the othe of some other the feoffée shall loose his land and money And so it is of leases annuities releases acquitances obligations bargaines contracts couenants promises offences entries disseisins and other matters in fait if they be denied trauersed and called in question the proof and validitie of them doth depend wholly vpon the othes and testimonie of others And there is no case so plaine which commeth in question betweene partie and partie but one of the parties to the sute may pleade such a plea as shall come to be tried by the othes of others 2 Therefore as the Lawe doth reuerently respect the othes of men What sorts of persons are to be deposed taketh her intelligence of matters in fait from them doth cleaue leane vnto them and giueth such credite and approbation vnto them that shée doth found and build her iudgements in most cases of greatest importance vpon them So shée retaineth a vigilant and carefull eye that those othes be taken by men of sinceritie of life and maturitie of iudgement persons not stained with Periurie or other gréeuous or foule offences men indifferently affected and such as will in swearing respect the trueth of their knowledge and not the face of the person for if shée espie any of those defects in him she doth either wholly reiect his othe or else shée giueth little or no credite vnto it and further inflicteth condigne punishment vpon him according to his desert Mag. Char. 9. H. 3. 29. 3 And because the King himselfe at his Coronation is sworne that iustice shall be solde deferred or denied to no man nor that any man shall be condemned but by lawfull triall and euery of his Iudges be sworne that hée shall doe equall Lawe and execution of iustice to all the Kings Subiects Sta. 18. Ed. 3 rich and poore without hauing regard to any person All the parties to the execution of iustice sworne Therefore the law hath deuised that those Iudges before whome any cause is called in question and is brought to an issue shall be informed of the trueth of that issue by the othes and verdict of twelue Iurors who are impannelled returned and sworne to trie that issue to the end the same Iudges may ground their iudgement thereupon and so doe equall iustice to the parties according to their oathes and also that the saide Iurors shall be ascertained of the veritie of the fact by the Othes of witnesses or other euidences that they may giue their verdict thereupon according to their Othes And séeing those Iurors being the greatest number of persons that be vsually sworne for the furtherance and execution of iustice be returned by the Shiriffe of the Countie where the cause dependeth in question his vndershirife or the Bailife of some Libertie or for some default in them by the Coroners Therefore the Lawe hath further ordained that the saide Shiriffe Vndershiriffe or c. shall be indifferent persons of themselues and also deale vprightly
in returning of those Iurors lest by their partialitie Truth may be concealed Periurie committed and so iustice subuerted Fitz. Challenge 113. 7. Ed. 4. 56. 33. Ass p. 12 12. Ass pl. 1. 26. Ass p. 56 12. Ass p. 36. 44. Ass p. 18 Plo. Com. fol. 425. 29. Ass p. 2. 28. Ass p. 22 7. H. 4. 10. Fitz. Challeng 94. 99. 8. H. 5. 5. 20. H. 6. 39. 11. H. 4. 26. 38. H. 6. 6. 24. Edw. 37. And for that cause the prouidence of the Lawe doth not allow that Shiriffe Vndershiriffe Bailiffe of Franchise Coroner Causes of suspition in Shiriffes in impannelling of Iuries or other person as indifferent or méete to impannell a Iurie who is a partie to the sute or matter in question or who doth maintaine either of the parties plaintife or defendant in the same sute or is of councell with either of them in that sute then in issue Nor who is within the distresse receiueth the yéerely fée or weareth the liuerie or robe of any of the parties to that sute Nor who is of kinred by nature or of affinitie by marriage to any of the parties to that sute Nor who doth returne that Enquest or any of the Iurors therein at the denomination or by the procurement of any of the parties to the same sute or of any other person whatsoeuer Nor who doth impannell that Enquest or any of the Iurors therein for the fauour which he doth beare more to the one partie than to the other Nor who was an Arbitrator in that cause in question and to be in triall and did treate and conferre of the same Nor who is then in sute of lawe with either of the parties to this question or triall for any matter of trespasse malice or euill will Nor who did baptize the childe of any of the parties to this sute and triall 4. Ed. 4. 11. or any of the parties to the same sute did baptize his childe All which the Lawe doth suspect as causes of fauor and affection in the Shiriffe his Vndershiriffe c. and to be moouers fauourers or consentors to Periurie and therefore vpon challenge of the Array so being impannelled and the same prooued the whole Array shal be quashed 4 As the Lawe hath great care that Shiriffes Vndershiriffes Bayliffes of Liberties Coroners and all others hauing authoritie to returne enquests should therein be voide of all partialitie or presumption or cause thereof to the intent that a gappe should not be left open by their meanes to those that be willing to enter into corruption of conscience and so to commit Periurie In like sort hath shée vigilantly foreséene that those Iurors which be returned by the said Shirifes c. may be so sifted tried and examined that they may be found in all respects Probi legales homines Euery Iuror must be an honest and lawfull man viz. honest vpright 33. H. 6. 55. 26. Ass p. 28 14 H. 4. 19. 9. Ed. 4. 16. 11. H. 4. 4. and lawfull men in the eie and iudgement of the Lawe and that none of them be an Alien a villaine or outlawe an excommunicate person and thereby not legalis homo nor conuicted in a Writ of Conspiracie or an Attaint and by that meanes not probus homo and so to be challenged in euery cause and by euery person and further that they may be prooued to bee men of indifferencie and voide of all partialitie and such as will wholy respect the trueth of the cause in question and in their verdict nothing regarde any that is partie thereunto And therefore if there be any lawfull cause to feare particular fauour and affection in any of the Iurors and that hée will rather incline to Periurie than giue eare to the trueth of the cause the Lawe doth allow to the partie grieued Challenges of Iurors suspected or suspecting the same seuerall Challenges to the same Iuror and thereby to haue him drawne and remooued out of that Enquest A witnesse 5 As if a man be a witnes in a cause in question he can not be a Iuror in the same cause for the witnes doth testifie vpon his certaine knowledge 23. Ass p. 11 12. Ass p. 12 11. Ass p. 19 and the Iurors of an Enquest must giue their verdict according to their euidence And besides he that produceth a witnesse expecteth at his hand a fauourable deliuery of his euidence or otherwise he would not produce him which fauor euery Iuror must be wholy voide of if he will auoide Periurie Periurie suspected by deliuering his verdict before hand 6 If a Iuror after he is returned and before he is sworne 20. H. 6. 39. 8. Ed. 3. 69. will say that he will passe for the plaintife or defendant and doth speake it for the fauour which he beareth to the one partie or the hatred which he hath to the other and not in respect of his owne knowledge of the trueth of the cause the Law doth feare periurie in him and therefore shée will remooue him out of that enquest if he be challenged therefore Periury suspected by lying at the charge of one of the parties 7 If one that is impannelled of a Iurie doth goe to the Assises with one of the parties to the issue and doth eate and drinke with him at his charges 8. Ed. 3. 69 13. H. 4. 13. Fitz. Challenge 177. the Law doth suspect the same Iuror of partialitie and so of inclination to Periurie in recompence of that kindnes receiued and therefore she will remooue him out of that Enquest if he be challenged therefore 20. H. 6. 39. 9. Ed. 4. 46. 7. H. 7. 18. 8 If two men be in question for any cause Periurie suspectcted by an Arbitrator in the cause in question and then do refer the matter in debate to be heard ended by two Arbitrators whereof the one doth make choice of one Arbitrator and the other of an other which Arbitrators doe méete together and confer of the cause but do not agrée whereupon the party grieued doth prosecute the said suit to an issue and one of the same Arbitrators is returned of that Enquest the law doth suspect the same Iuror of partialitie and so of inclination to Periurie and therfore she will remoue him out of that Enquest if he be challenged therefore for when he was chosen by one of the parties alone this election maketh him in a sort of councel with him that did choose him and so fauorable vnto him but if he had bin chosen by the consent of both the parties together 3 H. 6. 25. the law would haue made other construction of him and adiudged him indifferent 34. Ass p. 6. 9 If two men do combine themselues by Oath bond couenant or faithfull aduised promise that one of them will take an others part be his friend and assist him in all causes whatsoeuer And after there is a sute commenced betwéene one
Iurors to enquire of riots rout or vnlawfull assembly shall be committed which shall be returned by the Sherife to enquire thereof shall haue lands and tenements within the same shire to the yearely value of xx s. of Charter land or freehold or twentie sixe shillings eight pence of copiehold or of both aboue all charges But in that case by the Statute of Anno 2. H 5. St. 2. H. 5. 8. if they be returned by the Coroners then euery of them shall haue lands and tenements or rents to the yearely value of tenne pounds at the least By the Statute of Anno 1. St. 1. R. 3. 4. R. 3. it was enacted That no officer shall returne in any panell to be taken or put in Iurors in the sherifs Turne or vpon any inquisition or inquirie before the Sherife in his Turne other than such which bee of good name and fame and which haue lands or tenements of freehold within the same countie to the yearly value of xx s̄ at the least or else copyhold lands to the yearely value of xxvj s̄ viij d. at the least aboue all charges By the Statute of An̄ 8. H. 6. Sta. 8. H. 6. 9 it was prouided That euery person which shall be returned to inquire of any forcible entrie into lands Iurors to inquire of forcible entrie or detayning of lands by force shall be a sufficient indifferent person and shall haue lands and tenements to the cléere yearely value of xl s̄ By the Statute of An̄ 1. H. 8. it was established Sta. 1. H. 8. 8. That euery Iuror which is returned before any escheator Iurors returned before Escheators or commissioner to inquire of lands or tenements or some other to his vse shall haue lands or tenements of the yearely value of xl s. aboue all charges in the same shire where the inquirie shall be made St. 11. H. 7. 21. 23. H. 8. 3. 37. H. 8. 5. And by the stat made An̄ 11. H. 7. An̄ 23. H. 8. An̄ 37. H. 8. The Iurors returned vpon an attaint in London or els where shal be of more or greater ability in lands tenements goods or cattels then is before specified 16 The law hauing first vsed al good deuises to cause shirifes vndershirifes Bailifes of liberties coroners al others authorized to return impannel Iuries to be indifferent to returne the said Iuries Iurors without al partiality that they shal be no furtherers maintainors nor assistors to periury subornation or embracery also hauing prouided that all those Iurors which be so returned vpon Enquests to try issues betwéen party party may again one by one be sifted tried examined whether they standing vnsworne be indifferent or not She doth then expect to receiue from those Iurors Veredictū a true tale that is to say a true verdit or presentment of such things as be giuen them in charge according to their euidence But if the same Iurors will decline from truth and make a false presentment contrarie to their euidence then is it not to be termed Veredictum but Periurium and it will be returned to them as Maledictum for by the common Law they being attainted by the verdict of xxiiij other Iurors shall receiue a cursed and villanous iudgement therefore viz. the said Iurors shall loose the fréedom of the Law their wiues children shall be thrust out of their houses Fit Ass 396. 46. Ed. 3. 23. 42. Ed. 3. 26 6. Assi◠p. 7. 30. Ass p. 24 40. Ass p. 20. 41. Ass p. 18. Li. Int. fo 92 The iudgement in an at the common law of a Iury proued periured their houses shall be pulled downe to the ground their orchards gardens shall be supplanted their trées shall be digged vp by the roots their meadowes shall be eyred vp All the goods cattels which they had at the time of the Attaint brought or at any time after shal be forfeited to the King The King shall haue all the profits of their lands during their liues And they shall be committed to perpetuall prison Which iudgement was deuised many yeres put in execution to the intent it might be knowen how much the common Law did detest and punish wilfull Periurie and falshood in those who shée trusted in place of justice and from whom shée accompted to receiue truth 17 But sithence by the Statute of An̄ 11. H. 7. and An̄ 23. H. 8. the said iudgement against a petit Iurie attainted is in some cases altered and qualified Sta. 11. H. 7. 21. for by the Statute of 11. H. 7. it is ordained That the party grieued by any false verdict giuen in any of the Courts of the Citie of London shall and may sue Attaint by Bill in the Hustings of London The iudgement in Attaint in London holden for common Pleas before the Maior Aldermen of the same Citie And if the graund Iurie sworne in the same Attaint find that the petit Iurie haue giuen an vntrue verdict then the iudgement shal be against the defendant as is vsed in attaint sued by writ at the common Law And the iudgement shall be against the petit Iurie that euery of them shall loose xx li. or more by the discretion of the Maior and Aldermen of the said Citie kéeping the Hustings to such vses as other issues and penalties béen forfeited in any action or plaint commenced before the Mayor and Aldermen of the said citie and his bodie to bee imprisoned there to remaine without baile or mainprise vj. moneths or lesse by the discretion of the Mayor and Aldermen and to be disabled for euer to be sworn in any Iurie before any temporall Iudge But the iudgement in such Attaint shall not extend to any lands or tenements St. 23. H. 8. 3 An. 13. El. 25. ne to other punishment of the petit Iurie And by the before mentioned Statute of Anno 23. H. 8. it was enacted That vpon euery vntrue verdit giuen betwéene partie and partie in any suit plaint or demaund before any Iustices or Iudges of Record where the thing in demaund and verdict thereupon giuen extendeth to the value of fourtie pounds An attaint where the thing eetendeth to xl l. and concerneth not the ieopardie of mans life the partie grieued by the same verdict shall haue a writ of Attaint against euery person so giuing an vntrue verdict and euery of them and against the partie which shall haue iudgement vpon the same verdict And euery one that shall passe in the same Attaint shall haue lands and tenements to the value of twentie markes by yeare of fréehold out of auncient demesne And if the graund Iurie find that the petit Iurie gaue an vntrue verdict then euery of the said petit Iurie shall forfeit twentie pounds whereof one halfe shall be to the King and the other halfe to him that sueth to be leuied by Capias ad satisfaciendum fieri facias
of their office or occupation Nor to any Liueries or Badges giuen in the defence of the King and his Realme Nor to the Constable or Marshal for giuing any Badge Liuerie or token for any feats of armes to bee done within this Realme Nor of any Wardens of the Marches toward Scotland for any Badge Liuerie or token by thē giuen frō Trent Northward at such time onely as shall be necessarie to leuie people for the defence of the Marches St. 7. H. 4. 14 And by the stat of anno 7. H. 4. it was ordained That no congregation or companie shall make any Liuerie of cloth or of hats at their owne costs vpon paine that euerie of the same congregation or companie shall forfeit fortie shillings except Guilds and Fraternities and also people of Artes and Sciences within Cities and Boroughes which be ordained to a good intent 13 As the wisedome of the Realme hath established from one age to another the foresaid lawes and statutes Publishing inquiring of and punishing of maintenāce for the repressing or snibbing of Champertie Embracerie buying of titles and all other sorts of Maintenance so hath she prouided trumpets to sound out and publish those laws into the ears and sinke them into the hearts of all people and secondly shee hath assigned watchmen and sentinels to sée who infringed those lawes and lastly she hath ordained Censors and Iudges to punish the offendors therein as it appeareth by the before specified statute of anno 32. St. 32 H. 8. 9 H. 8. wherby it is enacted That the Iustices of Assise shall in euerie Countie within their circuits two times in the yeare viz. in the time of their sittings for taking of Assises or deliuerie of the Gaoles cause open proclamation to be made as well of the said statute and euerie thing therin contained as also of all other statutes heretofore made against vnlawfull maintenance champertie embracerie or vnlawfull retayners to the intent that no person hearing the same should be ignorant or misconisant of the dammages and penalties therein contained And by the former rehearsed statute of anno 8. St. 8. Ed. 4. 2 E. 4. it is ordained That euerie person which will sue against any other for any offence committed contrarie to that statute or any other of the premisses viz. any other ordinance or statute before that time made against any persons for giuing or receiuing of Liueries or Badges before the Kings Iustices in his Bench before the Iustices of the Common Pleas Iustices of peace in their Sessions Iustices of Oier and Terminer and Gaole deliuerie Iustices of the countie Palantine of Lancaster and Chester and in the Court of Hexamshire and in the Court of the Bishop of Durham in the Countie Palatine of Durham shall be admitted thereunto by the discretion of the said Iudges to giue information for the king of any of the premisses committed within the iurisdiction of the same Courts And euerie Informer shall be admitted to sue for the King and himselfe action or actions vpon the same by information in any of the said Courts against as many such offendors in one Bill of Information as liketh him which Information shall be in stead of a Bill or originall writ wherein such Proces shall bee awarded as in an originall writ of Trespasse but that in the Counties Palantine of Lancaster and Chester nor in Duresme no Exigent shall be awarded vpon any information suit or proces to be made by force of this ordinance And if any be or any Outlawrie thereupon pronounced the same shal be void without any writ of Error And if any of the offendors be present in any of the said courts any of the Iustices may cōmaund him to be brought to answer to such bill vpon such information by an othe first to be taken vpon a booke by such informer before some one of the Iudges that his complaint is true without any other or further proces therein And euerie of the same Iudges within his iurisdiction may by his discretion examine euerie of the defendants vpon such information and iudge him conuict as well by examination as by triall and the King shal haue the one halfe of the forfeiture if it be not in a citie or towne corporat that hath the same by the grant of the king or c. and the informer the other halfe which also shall recouer his costs by the Iudges discretion and execution thereof as in recoueries vpon debt or trespas wherin no Essoine or Protection shall lye And the Maior Sherife Bailife or other chiefe officer of euerie citie borough towne or port within this realm hauing power to heare and determine personall pleas in the court holden before them or any of them within any such towne haue authoritie to receiue information of any person which offends in the premisses and to heare determine as wel by examination as by triall all things done concerning the same by or to the inhabitants within the iurisdictiō of the same court to put this stat for those offences prouided in execution And the King shal haue the one moitie of all penalties forfeited by the said stat and the Informer chiefe officers of such citie borough c. shall haue the other moitie equally to be diuided betwixt them And the said chiefe officers part shal be imployed to the vse the said citie borough towne or port c. And sithence the foresaid lawes statutes by one other stat ordayned an 33. Iust of peace may inquire of and punish maintenance H. 8. and confirmed an 37. H. 8. it was enacted St. 33. H. 8. 10. 37. H. 8. 7. That Iust of peace at their Quarter Sessions shal haue authoritie to inquire as wel by the othes of xij men as by information giuen to them by any person or persons of defaults contempts offences cōmitted against the lawes statutes made and prouided concerning or in any wise touching retainers giuing of liueries signs tokens or badges maintenance embracerie c. and euery of them to heare determine the said defaults offences c. And vpon any information touching the penalties or any of them to make proces by Venire fac ' one Capias an Exigēt vnder their seals against euery such person persons against whom such information or presentment shal be had for their apparance before them in their Sessions to answer to such information or presentment as shall be there made And if the person or persons so accused by information or presentment shal be conuicted vpon such information or c. by confession or verdit of xx men then the said Iust haue power to giue iudgemēt against euery such offendor so conuicted of imprisonment forfeiture of money or both of them as are limited by the said seuerall statutes for such offences whereof they are conuict and to cause execution therof to be made accordingly Why the pursuing of maintenance is left out
of the stat of 18. El. 14 Maintenance Champertie buying of titles Embracery haue bin accounted so offensiue professed enemies to the iustice peace of the realm that though by the stat of an 18. El. it is ordained Stat. 18. El. 5 That euery informer vpon any other penall stat shal exhibit his suit in proper person pursue the same onely by himselfe or by his Atturney in court and that none shal be admitted to pursue against any person vpon any penall stat but by way of information or originall writ and not otherwise nor shall haue any deputy at all And that vpon euerie such information which shal be exhibited a speciall note shall be made of the very day moneth yere of the exhibiting therof into any office or to any officer which lawfully may receiue the same without any maner of antedate to be made thereof And that vpon euery such proces shal be indorced aswel the parties name that pursueth the same proces as also the stat vpon which the information in that behalfe made is grounded and that no Informer or plaintife shall compound or agrée with any person that shall offend or shal be surmised to offend against any penal statute for such offence but after answer made in court vnto the information or suit in that behalfe exhibited or prosecuted nor after answer but by the order or consent of the court in which the same information or suit shal be depending Yet in the said stat of 18. El. there is a prouiso That it shal be lawfull for any person or persons grieued by means of any maintenāce chāpertie buying of titles or other embracery to pursue vpō any stat prouided against maintenance champerty buying of titles or embracery as he or they might haue done before the making of the said act Which prouiso was made to the end that all persons grieued by reasons of any maintenance champertie buying of titles or embracery should be left at libertie to pursue chasten the offendors therin by all such means as former laws haue authorised thē not be restrained by any of the ordinances or articles before rehearsed for that the said offēces were by the makers of the said stat adiudged to be greater impedimēts obstacles to the execution of iustice than other penal stat were 15 As the policie of the realme hath deuised the foresaid popular actions and suits to enable euery person that will Assurances to haue mainte void in diuers cases to pursue prosecute maintainors champertors buyers of pretenced rights c. to the intent the sooner to root out extirpat those offendors who indeuor to wrest the execution of lawes out of their due course to subuert iustice thereby to hinder the peace of the realme so hath it in some cases gone further ordained that some assurances made for maintenance shal be presently void as it appeareth by the stat of an 8. St. 8. H. 6. 9 H. 6. wherby it was enacted Lands gotten by force assured to haue maintenance That if any person after his entry into lands or tenements holden with force do make a feoffement or other discontinuance to any Lord or other person to haue maintenance or to toll defraud the possessor of his recouerie in any wise If alter in an Assise or other action thereof to be takē or pursued before the Iust of Assise or other the kings Iustices whatsoeuer they be by due inquiry therof to be taken the same feoffements and discontinuances may be duly proued to be made for maintenance as is aforesaid that then such feoffements or other discontinuances so as before made shall be void St. 4. H. 4. 8. holdē for none And by the stat made an 4. H. 4. it was established That if any man great or small of what estate or condition they be Lands forcibly gotten by maintenance make any forcible entry in his own right or to his own vse or in anothers right to his vse by the way of maintenāce therof is attained at the suit of the party grieued he shal be one yere imprisoned pay to the partie grieued his double dammages And also he shall answer to the partie grieued damages for his goods cattels if vpon the said forcible disseisin he tooke away any 16 As by the before mentioned stat maintenance champerty What maintenance is punishable and what iustifiable embracerie buying of titles be in generall termes deciphered together with their seuerall penalties so haue the learned Iudges Sages of the law expounded the particular branches of euery of those stat as they grew in question were prosecuted in suit before them also resolued what maintenance is punishable and what iustifiable who may pursue an action writ bill or information c. of maintenance champerty c. against whom the same is to be brought for what offēce or cause the same is maintenable what pleas are to be pleaded to the writ or in bar of the said actions writs informations c. what iudgemēt shall ensue thereupon As euerie champertie is an vnlawful maintenāce prohibited by the foresaid stat of West 1. West 2. 9. H. 6. 64. St. 28. E. 1. 11. and punishable according to the before rehearsed stat of An. 28. E. 1. and euerie chāpertie is a maintenance the partie grieued may haue aswel a writ of Maintenance as of Champertie for by that meanes the champertor hauing bargained to haue part of the land or thing in question doth ofttimes moue further the suit suborneth witnesses corrupteth the Iurie and so subuerteth iustice but there must be a suit depending before it can be adiudged maintenance in any sort for if one man wil giue money to another to beginne and prosecute a suit against a third person 3. H. 6. 55. 8. H. 5. 8. 10. Ed. 4. 19. 30. Ed. 3. 3. this is no maintenance for that this mony was giuen when there was no suit depending and if there be a writ brought and neuer returned it is no maintenance No maintenance in a Iuror for giuing his verdict 17 If there be a suit depending betwéene two and they do ioyne an issue 18. E. 4. 2. 28. H. 6. 6. which is tried by xij men found for the plaintife in this case the defendant cannot haue an action of maintenance against the said Iurors or any of them for this verdit giuē for that they gaue their verdit according to their euidence and their knowledge of the truth of the matter and besides they did not thrust thēselues into that cause but were compelled to appeare by an ordinarie course of law being impanelled returned by the Sherife or some other lawfull officer Maintenance by a Iuror suing for iudgement but if after the verdit giuen any of the Iurie wil solicit or labor to the Iudge or Iudges of the court where the said suit
officers requisit to be had for the spéed of the said suits which shall do their dueties without any rewards for their counsels helpe and businesse in the same And the same law and order shal be obserued in all such suits to be made before the K. Iustices of his Common pleas Barons of his Exchequer and all other Iust in Courts of Record where any such suits shal be 30 As Maintenance in the cases aforesaid is lawfull and iustifiable Maintenance in respect of kindred or alliance in respect of the parties priuat profit or interest in the thing in question or when it is done without malice or hope of profit vpon a charitable disposition so is it in diuers cases allowable in regard of the linke or bond of nature whereby one person is by loue or dutie tied to another 34. H. 6. 26. 6. Ed. 3. 33. as the father may maintaine his son and heire and giue money of his owne in defence of him or his title or suit for he is bound to find him but so he may not doe for another kinsman And the sonne may maintaine the father and mother and one brother another and one néere kinsman another 21. H. 6. 16. 14. H. 7. 2. 20. H. 6. 1. 19. Ed. 4. 3. 21. H. 6. 16. and one ally another in some cases and in some sort as if a man be impleaded another that is his brother or kinsmā or of his alliance may go to the bar with him stand by him comfort him or he may ride to his counsell with him or he may request a man that is learned in the law to bée of counsell with him in that cause 9. Ed. 4. 32. but he must not retaine that learned man nor giue him any mony of his own to be of counsel neither must he giue or promise money to the Iurors or any of them to giue their verdict for him for then it is vnlawfull maintenance in him so it is in a stranger who hath nothing to do in that cause if he doe goe to the barre with him that is impleaded or do stand by him of purpose for to countenance the cause in question or doe request a learned man in the law to bée of counsell with him or doe giue money to any of the Iurors for their verdict this is vnlawfull Maintenance in him And in the cases aforesayd and all other cases of Maintenance Vnlawfull maintenance is continuall this vnlawfull Maintenance is a continuall Maintenance during that suit vnlesse the partie grieued doe in the meane time release the same But if the same Maintenance bee in respect of alliance and that hee who is supposed to bee the maintainor hath maried the daughter sister néece or other kinswoman of one of the parties to the first suit wherein the maintenance was supposed be he must pleade 6. Ed. 4. that his wife was liuing at the time of the maintenance supposed to be for if she were then dead the alliance betwéene them is dissolued and then he had no cause to maintaine that suit but shal be punished as a stranger And yet in that case 14. H. 7. 2. if the same woman hath any issue of her bodie begotten who may inherit the land of him whose suit that husband of the deceased woman and the father of that issue did maintaine then is the maintenance lawfull in any action brought against the same partie in respect of the kindred and also of the benefit that may come to his owne issue And in a writ of maintenance it is a good plea for the defendant to plead Maintenance in respect of gossiprie that hee was gossip to him whose cause he was supposed to maintaine 6. Ed. 4. 5. for that gossiprie is in law adiudged a kind of affinitie Maintenance in respect the partie could not speake English 31 A. brought a writ of Maintenance against B. and supposed 34. H. 6. 26. 15. H. 7. 2. that the same B. did maintaine L. in an action which he brought against the said L. on the part of the said L. Whereunto the sayd B. pleaded that the same L. was a Dutchman borne out of the Kings obedience and could not speake the English or Latine tongue and therefore being acquainted with B. the defendant who could speake the Dutch tongue he desired him to bring him to some man learned in the law to be of his counsell in that suit and to informe that learned man of the truth of his cause in question whereupon hee brought him to one M. a man learned in the law and opened the truth of his case vnto the said M. as he receiued it from the said L. in Dutch which is the same maintenance And this was adiudged a good plea in barre and a lawfull maintenance for it is a déed of charitie to aid and helpe him who could not helpe himselfe And the Dutchman had no meanes to helpe himselfe being a straunger borne and not vnderstanding the English nor Latine tongue but by the assistance and information of some English man Maintenance in a professor of the Law 32 If a Serieant at law an Apprentice or other Councellor 6. Ed. 4. 5. being retained for his fee doe giue vnto his Client the best counsell that he can for the recouerie or defence of the suit which he vndertaketh according to the ordinarie course of the law or doth enforce the euidence at the barre so much as he can at the tryall of his clients cause this is lawfull maintenance and iustifiable But if he doe pay or promise money to any of the Iurie to giue his verdict for his client or do threaten any of them to be killed beaten 22. H. 6. 6. or otherwise euill intreated if they do giue their verdit against his client or if he do spēd 11. H. 6. 13. or do offer to spend his own mony in defence of his clients cause this is vnlawful mainnance and punishable according to the before rehearsed stat of ann 1. R. 2. for those things he doth not as a lawyer or according to the course of the law nor by the warrant of law but by iniustice and vpon his owne corruption and wrong But in the first specified case if a man that is not learned in the law 22. H. 6. 5 hauing himselfe no interest in the cause in question will declare to the Iurie or to the partie or to his counsell the cause in question and the circumstances thereof as a man learned in the law this is vnlawfull Maintenance in him though hee doe it as well as a man learned in the law for hee doeth it vpon Maintenance where the learned man doeth it for his fee. And so it is if a man that hath land in suit or question will bring and shew his euidences and writings to a Nobleman Fitz. Maint 21. Gentleman or other man of countenance that is not learned in the law and
request his opinion of them whether they will serue to defend his title in the cause in suit and the partie doth affirme them to be good and sufficient in law to iustifie and maintaine his cause this is vnlawfull maintenance in that person who giueth this counsell for by this meanes the partie may be encouraged to prosecute or defend a suit which the law will not warrant him to effect Co. li. 1. 177 And if L. being a man that is not learned in the law will publish that B. hath good right and title to the Mannor of D. wheras in truth B. hath no good right title thereunto but C. hath the onely right title to the same in this case because L. hath taken vpon him the knowledge of the law and intermedled in a matter wherin he hath nothing to do C. may haue an action vpon the case against the said L. for slandering of his title and shall recouer his damages against him and his ignorance of the law will not excuse him 33 In an Action of Maintenance the plaintife declared Maintenance by an Atturney That the defendant maintained one B. in the court of L. in an action of Couenant 36. H. 6. 37. which the plaintife brought against the said B. in the same court Whereunto the defendant pleaded That he was retained to be the Atturney of the same B. in the said suit which the plaintife did prosecute against him by force wherof he came to a man learned in the law by the commandement of the said B. his client and desired him to be of counsel with the said B. and gaue him his fée of the money of the said B. the which is the same maintenance And this was adiudged maintenance iustifiable for when an expert and learned man is Atturney for another he is to do all lawfull things which he can touching that suit for the benefit of his client with the priuitie or direction of his client as in retaining of learned counsell suing forth of originall or iudiciall proces procuring a Iurie to be impanelled Kel fol. 50 13. H. 4. 19. and returned by the Sherife by obtaining a Supersedeas for his client when cause doth require it and he may giue euidence to the Iury vpon the tryall of his clients cause and also he may request any of the Iurors impanelled for the triall of the said cause to appeare for the spéedy end of the said suit 34. H. 6. 26. But neither the same Attourney who is retained for that only cause nor a generall Attourney that is constituted by any person in al his causes according to the stat of West 2. St. 13. E. 1. 10. may do any vnlawfull thing in his clients behalfe as to giue or promise money or other reward of his owne or his clients to a Iuror 11. H. 6. 10. to giue his verdict for his client or to threaten him if hée doe otherwise or to defend or offer to defend his clients cause at his owne charges or to procure the Sherife to returne a Iurie at his denomination for the tryal of his clients cause for in all these cases last specified the maintenance is vnlawfull and punishable for he cannot do them as an Attourney but as a straunger a maintainor and of his owne wrong And if a man do maintaine a suit by an Atturney 22. H. 6. 24. an action of Maintenance doth lye against the Master Maintenance in a Sherife or his bailifes And if the Sherife of any Countie his Vndersherife or any Bailife do any of the things aforesaid 13. H. 4. 19. in any suit prosecuted betwéene partie and partie other than impanell a Iury and summon them to appeare at a day time prefixed by the kings writ it is vnlawfull maintenance in him 22. H. 6. 35. 34 In an action of Maintenance the defendant pleaded Maintenance in respect of neighborhood That he whō it is supposed that he maintained is his neighbour and that hee came vnto him and told him that the plaintife had procured a Capias to arrest him therefore praied the defendant to giue him counsell what he were best to doe and hée this defendant aduised his said neighbour to goe to London and to yéeld his bodie to the Iustices and to procure a Supersedeas which is the same maintenance whereupon the action is brought And this was adiudged no vnlawfull maintenance but a neighbourly and friendly counsell which euerie person may giue to another For if a husbandman or any other doe come to his neighbour and tell him that a stranger doth owe him money or doth detaine his goods from him and request his counsell that neighbour may aduise him to bring an action of Debt or Detinue against the same straunger 12. Ed. 4. 14. 19. Ed. 4. 3. Or if one neighbour shall tell another that hée hath a cause to put in suit and desire that hee will instruct him what learned man in the law he doth know to whom he may repaire for counsell his neighbour may informe him of such one as hee taketh to bee learned and also may goe with him to that learned man and bee present when he doth retaine him of his counsell and open his case vnto him and also hee being a meane man and of small countenance or authoritie in the countrey may goe to the barre and stand by him at the tryall of his cause in question but if that neighbour shall giue any money to the counsellor to be retained with his neighbour or shall giue any money or other reward to the Sherife or Vndersherife or to any Bailife to arrest the other partie in his neighbours behalfe or to answer his suit then is it vnlawfull maintenance in him and hee is by action of Maintenance to bee punished therefore Where the master may maintaine his seruant 35 In an action of Maintenance brought by A. against B. the plaintife declared 31. H. 6. 8. that where he brought another action before against C. the said defendant did maintaine the same C. in the same first action whereunto B. the defendant pleaded That the same C. is his seruant retained in his seruice for one whole yeare and therefore he retained one M. an Apprentice of the law to be of counsell with the said C. his seruant and paid the said M. his fee with part of the wages due to the said C. which was the same maintenance and this was adiudged a good plea in barre and lawfull maintenance 22. H. 6. 35. 9. H. 6. 64. 28. H. 6. 12. 19. Ed. 4. 3. 19. H. 6. 30. for it is lawfull for the Master to request a man that is learned in the law to be of counsel with his seruant in his suit and to pay the same counsellor his fée with part of the wages of his said seruant and to goe with his seruant to the barre at the tryall of his cause in question which the
That all recoueries to be had or prosecuted by agreement of the parties Recoueries against particular tenants by Couin to defraud him in the reuertion or by Couin against any tenants by the Curtesie of England Tenants in taile after possibilitie of issue extinct or otherwise onely for the terme of life or liues or of estates determinable vpon life or liues of any lands Tenements or hereditaments whereof the same particular Tenant is or shal be seised of any such particular estate as is aforesaid or against any other with Voucher ouer of any such particular Tenant or of any hauing or that had right or title to any such particular estate or tenancie as is aforesaid shal as against such person or persons to whom any reuersion or remainder thereof by force of any Conueyance or deuise before that time had or made shall ought or lawfully may appertaine and against their heyres and successors be vtterly voide Prouided alwaies that this Act shall not extend to any person or persons that shall by good title recouer any lands tenemēts or hereditaments without fraud or Couin by reason of any former right or title But al euery such recouerie and recoueries vpon former rights and titles shall stand and be in like force as they were before the making of this Acte And in all and euerie recouerie and recoueries to be had or prosecuted of any lands tenements or hereditaments by the assent and agreement of any person or persons to whom any reuersion or remainder thereof then shall or ought to appertaine so that the same assent and agréement doe appeare of record in any of the Kings Courts shall stand in like strength and of like effect against such person and persons that shal so assent and agree their heyres successors as they were before the making of this act 27 And for that Couin and fraud should be restrained and punished when it shall be put in practise or intended by those in reuersion to defeate their Lessees of their termes for yeares as it was by the aforesaid Statutes when it was executed by particular Tenants to the preiudice or disheritance of them in the Reuersion Couin by him in the reuersion to defeate his Lessee for yeeres Therefore by a Statute made Anno 21. H. 8. Stat. 21. H. 8. 15 Stat. 6. E. 1. 11. it was enacted That if any persons doe make leases of their lands tenements or other hereditaments by Indentures or without writing to other persons for terme of yeares if after the same Lessors their heires or assignes do cause or suffer recoueries to be had against them in the Kings or any other Lordes Court vpon fained and vntrue title by craft and Couin to put the said Termors from their Termes all such Termor shall and may falsifie for his terme only such recouerie in such wise and forme as a tenant of fréehold shall may doe by the course of the cōmon law where such tenant was neither priuie nor party to such recouerie And the same Termors their Executors assignees notwithstanding such recouerie so had shall enioy retaine and hold their said termes according to their said leases against all such recouerors their heyres and assignees And the said recouerers their heyres and assignees after such recouerie so had shal haue like remedy against the said termors their Executors and assignees by auowrie or action of debt for the rents and seruices reserued vpon the same leases being due after the same recoueries also like actions against them for waste done after the same recoueries so had in like manner and forme as the said Lessors should or might haue had if the same recoueries had neuer beene had No manner of Statute of the Staple Couin to auoide a Statute or recognisance statute marchant nor execution by Elegit shal be auoided by meanes of any such feyned recouerie but all persons hauing any lands tenements or other hereditaments in execution or being intituled to haue execution of any lands or tenements by any such meanes shal haue like remedie to auoide and falsifie the same recouerie as before is prouided for the lessee for terme of yeares 28 There haue beene many lawes and Statutes deuised from age to age to restraine and punish seueral sorts of deceits Couins collusions and frauds but most to encounter and checke fraudulent deeds cōtriued of malice or guile to defeate Stat. 50 Ed. 3. 6. 1. R. 2. 9. 2. R. 2. 3. 3. H. 7. 4. 13. El. 5. 27. El. 4. delay or hinder others of their lands leases goods cattels debts c. as it appeareth by the statute made A. 50. Ed. 3. 1. R. 2. 2. R. 2. 3. H. 7. 13. El. 27. El. But as deceit and fraud increased in this realme so new penalties and greater punishments were inuented from time to time to inflict vpon the transgressors therin And because fained couenous and fraudulent Feoffmēts gifts graunts alienations conueyances bonds sutes iudgements executions of lands and tenements goods and cattels being deuised of Couin guile to defraud creditors and others of their iust and lawful actions dets c. be not only to the let of the due course and execution of law iustice but also to the ouerthrow of all true and plaine dealing bargaining and cheuisance betweene man and man without the which no common weale or ciuill societie can bee maintained or continued Therefore by a Statute made A. 13. El. it was enacted Stat. 13. El. 5 Stat 29. El. 5. That all and euery Feoffment gift graunt bargaine alienation Fraudulent deeds to auoide other mens debts and duties and conueyaunce of lands tenements hereditaments goods cattels or of any of them or of any lease rent common or other profite or charge out of the same lands hereditaments goods c. or any of them by writing or otherwise And all and euery bond sute iudgement and execution at any time had or made sithence the beginning of Queen Elizabeths raigne or at any time hereafter to be had or made which haue beene and are deuised contriued of malice fraud couin collusion or guile to the intent c. to delay hinder or defraud creditors others of their iust lawfull actions sutes debts accompts damages penalties forfeitures hariots mortuaries or reliefes shal be taken deemed onely as against that person his heires executors successors or assignes whose actions sutes debts accoūts c. by such guileful couenous or fraudulēt deeds deuises practises as is aforesaid are shall or mought be in any wise disturbed hindered delaied or defrauded to be cléerly void of none effect any colour fayned cōsideration expressing of vse or any other matter to the cōtrary notwtstanding And al euery the parties to such fained or fraudulēt feoffment gift graunt alienation bargaine conueyance bond sute iudgement execution Parties to fraudulent deedes c. or being priuie and knowing of the same or any of them which
4. 23. by a Statute made Anno 2. H. 4. it was declared That the said Marshall may take the fees héereafter following viz. of euery person which commeth by Capias to the said Court iiij d and if he be let to mainprise vntill his day ij d more And of euery person being defendant which is impleaded of Trespas and findeth two Mampernors to keepe his day vntill the end of the plea ij d. And of euery person committed to prison by iudgement of the steward in whatsoeuer maner the same be iiij d and of euery ptrson deliuered of felony iiij d and of euery felon let to mainprise by the Court iiij d. But if the Marshall or any of his officers vnder him doe take any other fées than are before declared the said Marshall and euery of his officers shall lose their offices A Seruitor of bills in the Marshals Court. and also pay to the partie gréeued treble dammages for the which the said party shall haue his sute before the Steward of the said Court for the time being A seruitor of bills which beareth a staffe of the Court shall take for euery mile from the said Court vntil the same place where he shall do his seruice j. d and for xij miles xij d to serue a Venire facias or a Distringas out of the same court the double And if any Seruitor of Bills do the contrary he shall be imprisoned and make fine to the K. after the discretion of the Steward of the same court and also be foreiudged and banished the same court All which articles the steward at his comming into the country hath authoritie to proclaime and put in execution 21 And for that the kings of this realme haue from time to time bestowed vpon such as they assigned to be muster masters or captains in times of wars liberall and bountifull stipends and allowances the rather to the intent they should not exact or make a pray of such as should be or then were souldiers Therfore to preuent such like exaction by a statute made An̄ 4. 5. St. 4. 5. P. M. 3. P. M. it was ordained Muster masters exacting mony to spare souldiers That if any person which shall be commanded by the Q. her heirs or successors by commission leters or otherwise authorized to leuy muster or to make men to serue in her warres or otherwise for the defence of this Realme do by any meane exact leuie receiue or take or cause to be taken any mony or other reward or thing whatsoeuer of any persō for seruice in wars or that shal be appointed named or mustred to serue in any such seruice or for the sparing or discharging of such person from the said seruice then he shall forfeit ten times so much as he shall receiue exact or take to the Q. I. to be recouered by A.I. c. wherein no W.E.P. If any captaine petit captaine or other hauing charge of men shall for any aduantage or gaine by him to be receiued discharge or licence any of the men or souldiers appointed to serue in the warres vnder his rule or order to depart from the said seruice or shal not pay vnto his souldiers Exacting by captaines of their souldiers to euery of thē their full whole wages conduct and coat mony within x. daies next after he shal haue receiued the same then the party offending in giuing such licence or discharge shall forfeit for euery such offence x. times the value of the thing so receiued to the Q. I. to be recouered by A. I. wherin no W.E.P. c. And also he shal pay vnto euery such souldier from whom he shall with-hold any such wages conduct or coat money treble the summe so with-holden Extortion by taking of scauage of merchants 22 Because Scauage otherwise called Shewage was many times wrōgfully and extortiously taken by Magistrates of cities and corporat townes of merchants that transported or brought their marchandizes thither therefore by a statute made Anno 19. H. 7. it was prouided That if any maior shirife St. 19. H. 7. 8 bailife or other officer in any city borough or towne within this realme doe distraine take or leuie any custome called Scauage or Shewage of any merchant denizen or of any other the K. subiects denizens for any merchandize to the K. before truly customed that is brought by land or water to be vttered in any citie borough or towne in this land or if any maior shirife bailife or other officer in any city borough or towne for non paiment of the said scauage let or disturbe any merchants or any other persons denizens to sel and vtter their merchandize by them brought into any city borough or towne then he which offendeth shal forfet for euery offence xx l. to the K. the party grieued or any other that wil first sue by A. of debt in any shire wherein no W.E.P. shal be allowed But the maior shirifes cōmunalty of London and euery of them shall haue such summes of mony for scauage of euery person denizen as of right they ought to haue 23 Euery of the chiefe Iustices of the Kings Bench and Common Pleas and the maior of the Staple at Westminster and the Recorder of the Citie of London before whom any obligation being of the nature and force of a statute Staple shall be recognized St. 23. H. 8. 6 according to the statute of An̄ 23. H. 8. The Iustices Clarks fee vpon euery Recognisance shal take for euery such Recognisance iij. s̄ iiij d the clarke that shall write make and inroll the same iij. s̄ iiij d and for the certificat of euery one such obligation xx d. And if any of the said Iustices Maior Recorder or Clarke take of any of the K. subiects aboue the summe or summes to them limited by this statute then the same offendor shal forfeit for euery time so offending xl l. to the K. and I. to be recouered by A. I. wherein no W.E.P. c. And by the Stat. of An̄ 27. St. 27. Eli. 4. Eli. it was further ordained That no Clarke of the same Recognisances shall or may take for or in respect of any search to be made for or concerning any statute Merchant or of the Staple The Clarkes fée for search brought vnto him to be entred aboue ij d for one yéers search so after the rate of ij d for euery yéere not aboue vpon paine to forfeit lose to the partie or parties grieued twentie times as much as he shal take contrary to the true meaning of this Act to be recouered in any of the K. courts of Record by action of debt B. P. I. wherein no W.E.P. 24 Because it is well perceiued that learned and expert Atturnies be necessarie members in our State and great meanes to further iustice and to bring sutes to their expected ends and that they must therefore
disburse money for learned councell for processe for pleading for copies and many other things and after receiue the same againe with their owne fées and salarie for their paines of their Clients Therefore the Law as a prouident mistris taking care that Atturnies and Sollicitors shal not in any secret maner commit extortion by charging their Clients with excessiue fées vnnecessary demaunds St. 3. Iac. 7. by a statute made An̄ 3. Iac. procured it to be established Meanes for Atturnies to auoide the suspition of extortion That no Atturney Sollicitor or seruant to any shal be allowed from his Client or master of or for any fée giuen to any Serieant or Councellor at law or of or for any sum or sums of mony giuen for copies to any clarke or clarkes or officers in any court of Record at Westm vnles he haue a ticket subscribed with the hand name of the same Serieant or Councellor clarke clarks or officers aforesaid testifying how much he hath receiued for his fée or giuen or paid for copies at what time how often And all Atturnies and Sollicitors shall giue a true Bill vnto their masters or clients or their assignées of all other charges concerning the suits which they haue for them subscribed with his owne hand name before such time as they or any of them shall charge their clients with any the same fées or charges An Atturney delaying of a suite or demāding more thā is due And if the atturney or sollicitor doe or shall willingly delay his clients suits to worke his owne gaine or demand by his bil any other sums of mony or allowance vpon his accompt of any mony which he hath not laid out or disbursed then in euery such case the partie grieued shall haue his action against such atturney or sollicitor and recouer therein costs and treble dammages And the said atturney sollicitor shall be discharged from thenceforth from being an atturney or sollicitor any more 25 For that the Stewards of Léets and court Barons did of late yeares get into their owne hands and in their owne names or into the hands of some of their friends to their vse the profits and perquisites of the said Léets and court Barons whereby many sutors to the same Courts were iniustly vexed and by grieuous fines and amerciaments vnduely punished and much extortion was done vnto the Tenants and Inhabitants where such stewards were to make and obtaine an vndue extraordinary gaine to themselues for the restraining whereof A preuention of extortion in Stewards of Courts by a statute made Anno 1. St. 1. Iac. 5. Iac. it was established That no Steward deputie Steward or vnder Steward of any court Léete or court Baron shall directly or indirectly in his owne name or in the name of any other take receiue or make benefite to his owne vse in money goods or any other thing to the valew of twelue pence or more by vertue or colour of any demise or graunt héereafter to be made of any of the profites or perquisites or amerciaments of any such Courts whereof they are Steward which rightfully shall belong to the Lords of the same vpon paine that euery Steward offending contrary to the Tenour of this Act shall for euery such offence forfeit tenne pounds and to be disabled euer after to be Steward of such Court or of any other The one moitie of which forfeiture shall be to the K. c. and the other to any party that will sue to be recouered in any of the Kings Courts of Record by A. B. P. I. c. wherein no E. P. or other dilatorie plea shall be allowed 26 To the intent that Gaugeors and Searchers of barrells of fish should know what was due vnto them for their paines and take no more nor commit extortion Extortion in Gaugeors Searchers and Packers of fish by a statute made Anno 11. H. 7. it was enacted St. 11. H. 7. 23. That euery Gaugeor Packer and Searcher shall take no more for gauging of a barrell of salmon herring fish éeles halfe barrell and firkin than for euery péece a farthing and for his labour for searching and packing if néede be of a barrell of salmon from head to head a peny and for boning naping and packing of a barrel of fish if néed be a peny and for searching and for packing of a barrell of herring if néed be two pence and for searching and packing of euerie barrell of éeles ij d and so in halfe barrels and firkins of herrings and éeles they shal take according to the former rate And if any Gaugeor Searcher or Packer do the contrary he shall loose his office and also be imprisoned forty dayes But the said Searcher or Packer shall receiue nothing of the said fées by colour of their office but onely for such Buts Barrels halfe Barrels and Firkins as by them shall be sufficiently searched and packed and were not sufficiently packed before 27 In the raignes of K. Edward the third and K. Henry the fift the Commons seuerall times complained in parliament of diuers extortions committed by Ordinaries and their officers in probat of Testaments making of Inuentories and giuing of Acquitances as it doth appeare by the statute of Anno 31. Ed. 3. and Anno 3. H. 5. St. 31. Ed. 3. 4. St. 3. H. 5. 8. But because the former of those statutes inflicted no condigne punishment vpon the offendors therein and the later is expired A preuention of extortion in Ordinaries and their officers and also for that the same extortions enormity did encrease Therfore for the redresse of the same by a Statute made Anno 21. H. 8. St. 21. H. 8. 5 it was established That nothing shall be demaunded receiued or taken by any Bishop Ordinarie Archdeacon Chancellor Commissarie Officiall nor any other person or persons whatsoeuer hauing authoritie to take or receiue probation insinuation or approbation of Testament or Testaments by him or themselues nor by his or their Registers Scribes Praisors Summoners Apparitors or by any other of their Ministers for the probation of any Testament The Ordinaries duty for probat of Testaments The goods not amounting to C. s̄ or for writing sealing praising registring fines making of inuentories giuing of Acquitances of for any cause concerning the same where the goods of the Testator of the said Testament or person so dying doe not amount cléerly ouer aboue the value of C. s̄ sterling except only to the scribe to haue for the writing of the probat of the Testament of him deceased vj. d. And for the commission of administration of the goods of any man deceasing intestate not being aboue the like valew of C. s̄ cleere vj. d. And when the goods of the Testator do amount ouer and aboue the cléere valew of C. s̄ The goods not amounting to xl l. and do not excéed the summe of forty pounds sterling Then no Bishop
Ordinarie nor other person or persons whatsoeuer hauing authoritie to take probation of any Testament by himselfe or any of his ministers for the probation insinuation and approbation of any testament or testaments or for the registring sealing writing praising making of Inuentories giuing of acquitances fines or any other things concerning the same shall take or cause to be taken of any person or persons onely thrée shillings six pence and not aboue whereof to the Ordinarie for him and his ministers two shillings six pence and to the scribe the xij d residue for registring of the same The goods exceeding xl l. And where the goods of the Testator doe amount aboue the cléere valew of fortie pounds sterling then the Ordinarie by himselfe nor any of his Ministers for the probation of any testament or for the registring sealing c. or for any thing concerning the same probat shall take of any person but onely fiue shillings and not aboue whereof to be to the saide Ordinarie for him and his ministers two shillings six pence and not aboue and two shillings six pence residue to be to the scribe for the registring of the same Or else the scribe to be at his libertie to refuse the two shillings six pence and to haue for the writing of euery tenne lines of the said testament a penny whereof euery line to containe in length tenne inches And euery such Bishop Ordinarie or other person hauing authority to take the probation of any testament their Registers Scribes and Ministers shall approoue insinuate seale and register the said Testaments and deliuer the same sealed with the seale of their office to the executor or executors named in such testaments for the summes abouesaid and in manner and forme aboue rehearsed with conuenient speede without any frustratorie delay If any person die intestate An administration granted or the executors named in any such testament refuse to prooue the said testament Then the Ordinarie or other person or persons hauing authoritie to take probat of testaments shall graunt the administration of the goods of the testator or person deceased to the widdow of the same person or to the next of his kinne or both as by the discretion of the same Ordinarie shall be thought good taking surety for the true administration of the same goods taking nothing for the said administration granted vnles the goods of the person so deceased amount aboue the value or summe of C. sÌ„ And in case the goods of the person so deceased amount aboue the value of C. sÌ„ and not aboue xl l. then hée his officers shall take only ij sÌ„ vj. d not aboue And in case any person or persons at any time require a copie or copies of a testament prooued or inuentorie made The fées for copies then the said ordinarie c. or his ministers shal from time to time with conuenient spéed without frustratory delay deliuer or cause to be deliuered a true copie or copies of the same vnto the said person or persons demanding the same taking for the search for the making of the copie of either of the said testameÌ„t or inuentorie but only such fée as is before rehearsed for the registring of the said testament or else the scribe or register to be at his libertie to demand haue take for euery x. lines thereof being of the proportion before rehersed j. d. But where any persons hauing authority to take probat of testameÌ„ts haue vsed to take lesse sums of mony than abouesaid for the probat of testameÌ„ts or coÌ„missioÌ„ of administâ—atioÌ„s or other cause concerning the same they shal take such sums for the same as they before the making of this act vsed to take not aboue Euery Bish ordinary archdeacoÌ„ chaÌ„celor coÌ„missary official other persoÌ„ persons hauing authoritie to take probat of Testaments their Registers Scribes Praisors Summoners Apparitors and all other their Ministers whatsoeuer they be The forfeture of the offendor that shall doe or attempt or cause to be done or attempted against this Act in any thing shall forfeit for euery time so offending to the partie grieued in that behalfe so much money as he shall take contrary to this Act and ouer that shall forfeit to the King and the party grieued ten pounds to be recouered by A. I. B. c. wherein no W.E.P. And euery of the same Bishops and other persons which shall incurre the danger of such penalty shall be charged onely for himselfe and none of them shal be chargeable to the penalty for others offences Extortion is an Ordinary for the Seale of a Citation 28 Shortly after the making of the foresaide Statute of Anno 21. H. 8. the graund Councell of the Realme being as carefull that Ordinaries or their Officers should no more commit extortion in sealing of Citations than they might in proouing of Willes granting of Administrations or such like did therefore by a statute made Anno 23. H. 8. ordaine St. 23. H. 8. 9 That if any Archbishop Bishop Ordinarie Officiall Commissarie or other person hauing spirituall iurisdiction or any substitute or minister of his doe aske demand take or receiue more than three pence for the seale of a Citation hée shall pay to the partie of whom he doth demand take or receiue the same double dammages and costs and shal forfeit for euery offence tenne pounds to the king and I. to be recouered by A.I. wherein no W.E.P. c. Mortuaries 29 Because in former times it was vncertaine and by this meanes oft times great question did grow what and how much Parsons Vicars or other spirituall men or their farmors ought to take for Mortuaries or Corse Presents after the death of their Parishioners Therefore to the intent that the same should be limited in certaintie and not be excessiue nor any Extortion Exaction or other wrong committed in the taking St. 21. H. 8. 6 or receiuing of them by a Statute made Anno 21. H. 8. it was established That no Parson Vicar Curate or parish Priest nor any other spirituall person nor their farmers Baylifes or Lessées shall haue take receiue or demaund of any person or persons within this Realme for any person or persons dying within the same any maner of Mortuarie or Corse present nor any money or other thing for the same more than is héereafter expressed Nor shall conuent or call any person before any Iudge spirituall for the recouerie of any such Mortuaries The penaltie for extorting for a Mortuarie or any other thing for the same more than is héereafter expressed vpon paine to forfeit for euerie time so demaunding receiuing taking conuenting or calling any such person or persons before any spirituall Iudge so much in valew as they shall take aboue the summe limited by this Act and ouer that fortie shillings to the partie grieued contrary to this Act for the which the partie grieued shal haue an action of
wrong to the disheritance of another or to the preiudice of his Fréehold without any warrant of law 18. Ed. 3. 22. 21. Ed. 3. 2 Co. li. 5. 101. Li. Int. 406. or colour of iustice As if one person doe build or leuie a house a wall a shead a leantor a chimney a gutter or other structarie in his owne ground to the offence of anothers fréehold or to the drowning or rotting of his house or to the stopping of his light or way thereunto this is an oppression 46. Ed. 3. 23. 7. Ed. 3. 56. And if one person doe leuie rayse abate or pull downe a Damme Poole Pond or Ditch to the hurt of anothers Fréehold that is an oppression 27. Ed. 3. 88. 12. H. 4. 3. 8. Ed. 4. 5. 48. Ed. 3. 27 8. Eliz. Dyer 2 50. 14. Eliz. Dyer 319. And if one person doe stoppe straiten or turne an auncient water-course to the hurt of anothers Freehold or in such sort as it doth drowne the ground or soyle of another that is an oppression And if one person do stoppe streiten or greatly impaire anothers highway which hée hath belonging to his Fréehold that is an oppression If one person doe conuey water to his house or ground by a pipe of lead timber or vault of stone and another person will make another pype out of that pype to take away part of the same water that is an oppression of him that made the first pype And if one doe erect a lime-kill néere vnto anothers dwelling house 4. Ed. 3. 36 5. Ed. 3. 43. 4. Ass p. 3. the smoake and heat whereof when it is set on fire doth annoy the inhabitant of the said house and his familie or doth scorch or dry vp the fruit trées in his orchard that is an oppression And if one person hath the fréehold of a seueral fishing in a riuer pond poole moat mill damme or other water Lib. in t 406. and another person wil build a dye-house adioyning or neere vnto it and then will powre out or cause to run from thence corrupt ashes dung slime filth or other annoyances into the said seuerall fishing place to the distruction of the fish there whereby the owner doth loose the benefit of his seuerall fishing that is an oppression of him And if one person will erect or settle vp a Faire or Market Fit Nat. Br. 184. Register 197. 199. Li. Int. 407. to the preiudice or hinderance of anothers Faire or Market that is an oppression of him who had the first Faire or Market And if one person do lay timber faggots stones lime sand grauell dung or any other thing vpon or against the house of another which do rot putrifie corrupt or impaire the walls timber or other part of the same house or any corrupt noisome or stinking thing the sauor or smell whereof is offensiue to the inhabitant of the same house and his familie that is an oppression of the same inhabitant The remedies for oppression by Nusances In which foresaid cases the parties grieued by the said Nusances and oppressions may in some cases haue their remedies by Assise of Nusance brought in the Common Pleas in some other cases by writs of Nusance called Vicountiels tryed in the Countie before the Sherife in some other cases by the writ of Quod permittat in some other cases by action vpon the case and in most of the sayd cases the sayd parties grieued by the sayd Nusances may take away pull downe Co. li. 5. 101. and remooue the same Nusances as their seuerall estates will enable them or their seuerall cases doe require Oppression by Rescous 6 Euerie Rescous that is vnlawfully made of cattel or other goods distrained is an oppression for the offendor doth a wrong of his owne authoritie to the preiudice of another in contempt of the iustice of the Realme without any warrant or colour of law Séeing when the partie grieued by himselfe 44. Ed. 3. 20 40. Ed. 3. 32. 17. Ed. 3. 43. 18. Ed. 3. 30 2. H. 4. 15. or some other doth distraine within his fée for his rent or seruices behind for dammages which hée hath sustained for amerciaments a rent charge or for some other cause which hée taketh to bée lawfull the cattell or other goods of him who he doth conceiue detaineth his due rent or seruice from him or whose cattell haue eaten or spoyled his corne or grasse or otherwise haue trespassed in his ground and doth in quiet and peaceable manner driue them towards the pownd there to remaine as a pledge sub custodia legis vntill the law hath decided whether there was iust cause of distresse or not the owner of the same cattell or some other in his behalfe will by force and strong hand make Rescous of this cattell and take them from him who distrayned them and so will not submit himselfe to the censure of the law nor tarrie vntill it be discussed by the ordinarie course of iustice whether the party that distrained had lawfull cause so to doe or not but will be his owne iudge and take the authoritie of reuenge to himselfe which is an oppression of him whose rent or seruices were due and vnpayd or whose corne or grasse was eaten c. and who was also forcibly depriued of the ordinarie remedie which the law did assigne him for the recouerie of his owne duetie And moreouer it is a contempt of the law which the same offendor doth refuse to be iudged by 7. H. 6. 1. 22. H. 6. 54. Fitz. Na. Br. 101. and therefore in this case the partie grieued may pursue against the offendor a writ of Rescous for this Rescous made and oppression done vnto him and thereby recouer his dammages and also the King shall haue a fine of him for this contempt of his law and his peace broken Li. Int. 527. and the offendor shall be imprisoned vntill hée hath paid the same 7 Euery Encrochment which one person doth make vpon anothers land Oppression by incrochments ground couered with water rent or seruice is also an Oppression for they be done and put in practise by the offendors own open plaine manifest wrong without any warrant or colour of the law As it is an oppression for one person by ploughing earing ditching hedging remoouing of Méerestones or land markes 22. Ass p. 93 to get away the ground or soyle of another and so it is for one person to draw away or alter an auncient Riuer Brooke or Streame of another persons out of the old and wonted course and so it is if there be lord and tenant and the tenant doth hold his land of his lord by fealty fiue shillings of yearely rent and of late yeares the lord hath had seisin of more rent of the tenant by the tenants owne payment without cohertion of Distresse if in this case the lord will distraine his tenants Cattell for that surplusage of rent that
is an oppression and for the redresse thereof the same tenant may pursue against his lord a Writ of Ne iniuste vexes grounded vpon a braunch of the statute of Magna Charta St. 9. H. 3. 10 thereby commaunding the Lord that he shall not oppresse nor vniustly vexe his tenant for more rent or seruices then hée ought to pay or doe 12. E. 4. 7. 28. Ass p. 33 5. Ed. 4. 82. Or otherwise the tenant may auoid this surplusage of rent in an Assise Writ of Rescous or Cessauit brought against him by his lord but in a Repleuin he cannot auoid his lord of this rent newly incroched séeing the same lord hath had seisin thereof and so it is if the lord of a Manor 40. Ed. 3. 44. 49. Ed. 3. 22. 39. E. 3. 6. which is auncient demesne will encroch vpon his tenants and distraine them or any of them that hold their lands by Charter fréely to doe other seruices or customes to the same lord then they ought to doe or that their auncestors were accustomed to do this is an oppression of the same tenants and for the redresse thereof all the tenants of the said auncient demesne Manor may haue against their said lord the kings writ of Monstrauerunt directed to the said lord commaunding him thereby that hée shall not require nor cause to bée required of his said tenants more seruices or customes then they ought to doe Fitz. Na. Br. 14. or had wont to doe And if after the said writ directed he will distraine the goods of them or any of them againe to doe more seruices then they ought to doe Then the same tenants or such or so many of them as bee so distrained may procure an attachment against their said lord Fitz. Na. Br. 15. returnable in the K. Bench or common place for this oppression and contempt wherin euery of the same tenants shall recouer his dammages seuerally according to his losse 8 Euery excessiue amerciament which one person doth take of another Oppression by excessiue amerciament is also to be accounted an oppression of the party so amerced for by the Statutes of Magna Charta West 1. St. 9. H. 3. 14 3. Ed. 1 6. it is ordained That no Citie Borough Towne or man shall be amerced but for a reasonable cause and according to the quantitie of his offence and euery fréeman shall bée amerced sauing his fréehold a marchant sauing his marchandize and euery other mans villaine besides the kings sauing his villaine tenure and the same amerciaments shall bee assessed by the oath of honest and lawfull men of the same vicenage So that if one person doe take a much greater amerciament of another then the quantitie of his offence doth require in a Court Baron or other Court which is not of record or doe take that amerciament of his owne authoritie without being before assessed by others vpon their oathes and so maketh himselfe iudge in his owne cause this is an oppression of the party amerced for the redresse whereof the party grieued may procure to be directed to the lord of the said Manor or to his Baylife a Writ of Moderata misericordia which was founded vpon the said stat of Magna Charta commaunding them thereby Fitz. Na. Br. 75. that they shall take a moderat and indifferent amerciament of the same person according to the quantity of his offence And if the lord or his baylife will not then cease to distraine for the said excessiue amerciament the partie so oppressed may haue against the offendor an attachment directed to the Shirife of that Countie where the same Distresse is taken to attach him to appeare in the kings Court and to answere his said offence Oppression by committing of wast 9 The Wast and Estrepement which one person hauing a particular estate in another persons land doth make or commit to the disheritance of him in the reuersion or remainder of the same land without his consent may also be accounted an oppression of him in whom the said inheritance is for when one person doth lease or otherwise conuey his land to another for the terme of life liues or yeares he doth in effect but lend the same land to the sayd particular tenant for the terme betwéene them agréed vpon expecting to haue the same againe at the end of the terme in as good plight and in such sort as it was when he first did deliuer and lend it And therefore if the particular tenant during the continuance of his estate doe commit any wast in the same land he cannot deliuer it againe at the end of his terme in such plight and sort as at the first he did receiue and borrow it but by the wast the perpetuall profit of the land is impaired and therefore of so much in value hée in the reuersion or remainder is disherited And for the preuention thereof by the statute of Marlebridge it was ordained St. 52. H. 3. 24. That Farmors during their termes shall not make wast sale or exile of houses woods or men nor of any thing belonging to the Tenements which they haue in farme without they haue speciall graunt in writing making mention of a couenant that they may doe it And to the intent that condigne punishment might bée prouided and inflicted vpon such as should be transgressors and oppressors in these cases of Wast by the statute of Gloucester it was enacted St. 6. Ed. 1. 5 That a man shall haue an action of Wast in the Chauncerie against him which is tenant by the courtesie of England The tenants forf which cōmitteth wast or otherwise tenant for terme of life or for terme of yeares or against a woman which holdeth in Dower and he which shall bée attainted of Wast shall forfeit the thing wasted and besides shall pay treble so much as the Wast shall be taxed and after by the statute of Westminster the second the same was in a sort confirmed St. 13. E. 1. 14 and the said action of Wast was againe giuen against the foresaid tenants by the courtesie in dower for terme of life or yeares and also ordained to extend against Gardens And by the same statute the proces to be vsed in the said action of Wast was assigned to be Summons Attachment and Distresse and if the party defendant doe not appeare at the distresse then a writ shall be awarded to the Shirife to inquire of the wast by the oathes of twelue men And because diuers persons did let their lands to others sometime for terme of life or anothers life and sometime for terme of yeares and after the said tenants did graunt their estates which they had in the same Lands and Tenements to others to the intent that they in the reuersion viz. their lessors their heires or assignées should not take knowledge of their names and yet the first lessees did continually occupie the said Lands and tooke the profites to
then doe sue execution of the said Statute against the same Conusor 47. E. 3. 3. 45. E. 3. 17. 3. H. 4. 12. 31. E. 3. or any feoffée of any part of his land this is a great iniurie and oppression and therefore in this case the said Conusor or his feoffée is to bée relieued by an Audita querela If a statute be made acknowledged by one person to another and then committed in ouell maine to a straunger to bée deliuered to the Conusée vpon certaine conditions performed 12. H. 4. 13. 43. E. 3. 17. and after the same stranger doe deliuer the said Statute to the Conusée before the conditions performed whereupon he doth sue execution thereof against the Conusor this is a great wrong and oppression of the Conusor and therefore hée may haue an Audita querela vpon this matter in fact stay the the exeeution and thereby redresse this iniury If one person be bound to another by Statute or Recognisance for the paiment of a summe of money 45. E. 3. 17. 47. E. 3. 3. 9. H. 4. 5. 13. H. 7. 22. 16. El. Dyer 332. and after the Conusor doth make seuerall feoffements of seuerall parcels of his land to diuers persons and then the Statute or Recognisance is forfeited and the Conusée doth sue execution thereof against one of those feoffees onely this is a wrong and oppression of him for that al the land of the conusor which he had at the time of the said stat or recognisance acknowledged or at any time after ought to be charged and extended for the paiment of this debt to the intent the money might be the sooner paid and the execution more spéedily discharged And therefore the same feoffée whose land is so extended may haue an Audita querela or a Scire facias as the case requireth to defeat the execution against him Co. li. 3. 14. 23. Ed. 3. Execution 127. and thereby hee shal be restored to all the meane profits and to compell the conusée to sue execution of all the land which was the conusors at the time of the said Statute or Recognisance acknowledged or at any time after and so the land of euery terre-tenant shall bee equally charged and each person contributorie to the same extent in respect of his land If the conusor after a Statute or Recognisance acknowledged doe make many feoffements of seuerall parcels of his land to diuers persons and then all or any of those feoffées lands bee extended by force of the same Statute c. the partie or parties grieued by the same extent 9. H. 4. 5. may procure an Audita querela to cause the lands of the conusor to bée likewise extended for hée or they be wronged and oppressed by the said conusors former Act and meanes But on the other side if the land remaining in the hands of the conusor bée extended by the conusée by force of the said Statute or Recognisance the conusor cannot maintaine an Audita querela against his seoffées or any of them 23. Ed. 3. Fitz. Execution 127. 45. Ed. 3. 22. to cause their lands to be extended for hée is not vexed or oppressed by the same extent by any of their meanes nor for any of their debts but for his owne debt though in the case before rehearsed they bee troubled and oppressed for his debt for when any person doth become bound by Statute or Recognisance to another and after alieneth his land or any part thereof to a stranger the body of the conusor remaineth debtor to the conusee in respect of his acknowledgement and confession of the same made of record before a competent Iudge or officer thereunto lawfully assigned and the debt is his and the burden thereof is his and the land is onely chargeable in respect that it was in his hands at the time of the Statute or Recognisance acknowledged or after and so the conusors person and the land in his hands is onely chargeable in that case As in like case if a man doe become bound by Statute or Recognisance to another and after the conusée doth purchase parcell of the land of the conusor 11. H. 7. 4. 13. H. 7. 22 45. Ed. 3. 22 2. El. Dyer 193. Plo. Com. 72. and then the Statute is forfeited the conusée may extend the Statute take and imprison the bodie of the conusor and haue the residue of his land deliuered to him in execution and the conusor shall haue no remedie by Audita querela against the conusée for that the conusor is not wronged or oppressed by this extent seeing hée himselfe is the onely debtor of the conusée and his body lands and goods are liable to the payment of this debt and not the lands in the hands of the conusee And so it is if a man bée bound by Statute or Recognisance to another and after the conusée doe purchasse parcell of the land of the conusor and a stranger purchaseth another parcell of land of him and then the Statute is forfeited and the conusée doth sue execution of the land of that stranger the other purchaser that is a wrong and oppression and therefore the said straunger may sue an Audita querela against the said conusée 11. H. 7. 4. 13. H. 7. 22. Fitz. N.B. 105. and thereby discharge his land of execution for that the said conusée hath discharged this land by his own Act viz. by purchasing of parcell of the land charged for by the Statute or Recognisance acknowledged the whole land was charged and by purchasing of parcell by the conusée hée hath discharged the whole sauing that which remaineth in the hands of the Conusor If an Infant within the age of one and twentie yeares be bound by Statute or Recognisance and the Conusor will extend the same the Infant may pursue an Audita querela to auoid the same either during his minoritie if by inspection the Court shall adiudge him within age 6. Ed. 3. 39. 23. Ed. 3. Au. qu. 26. Fi. N.B. 104 or after he shall accomplish his full age for it was a wrong and oppression practised by the Conusée to abuse the tender age of the Infant and to vrge a Statute of him before the Law did enable him to acknowledge it And the like Law is if one person will acknowledge to another a Statute by Dures of imprisonment and then the Conusée doe sue execution of the same the Conusor may prosecute an Audita querela and auoyd the Statute for in this case the Conusée hath done to the Conusor a double wrong and oppression viz. first to imprison him and thereby to exact act a Statute of him and then contrarie to the warrant of Law to extend the same against him And as in the cases aforesaid so likewise in all other cases where any person hath iust and lawfull cause to seeke and haue reliefe by an Audita querela Fi. N.B. 104 20. Ed. 3. Au. qu. 27.
made of tinne or pewter within any part of this Realme vpon paine of forfeiture of tenne pounds to the vse of the K. and I. to be recouered by A.I. wherein no W.E.P. and also vpon paine of forfeiture of the same pewter or tinne so wrought in whose handes soeuer it be found or taken A pewterer shall not goe to dwell in an other realme and no persons borne within this Realme occupying the said craft of Pewterers shall resort into any strange countries there to teach or exercise the said craft of pewterers vpon paine to loose the priuiledge and benefit of an English man 17 Because complaint was made in Parliament that Linnen Drapers Woollen Drapers Haberdashers Grocers and Mercers dwelling in the Country out of cities boroughs towne corporat and market townes did not only occupie the art and mysterie of the said Sciences in the places where they dwelt but also came vnto the said cities boroughes townes corporat and market townes and there sold their wares and tooke away the reliefe of the inhabitants of the said cities market townes c. to the great decay oppression and vtter vndoing of the inhabitants of the same For the reformation whereof Oppression of inhabitants of market townes by a Statute made Anno 1. 2. P. M. it was enacted St. 1. 2. P. M. 7. That no person dwelling in the Countrie any where within England out of any cities boroughs townes corporat or market townes shall sell or cause to be sold by retaile any woollen cloth linnen cloth Haberdash wares Grocerie wares or Mercerie wares at or within any of the said cities boroughs townes corporat or market townes or within the suburbs or liberties thereof except it be in open faires vpon paine of forfeiture for euery time so offending the summe of vj. s̄ viij d and the whole wares so sold profered and offered to be sold contrarie to the intent of this Act whereof one moitie shall be to the King and the other moitie to him or them that will seise or sue for the same in any of the Kings Courts of Record by A.B. P.I. or otherwise wherein no W.E.P. c. But this shall not be hurtfull to any persons that bring any of the said wares to any of the said cities market townes c. to be sold by whole sale in grosse and not by retaile but euery of them may lawfully sell the same by whole sale in grosse and not by retaile as they might haue done before Neither shall this Act extend to any persons that dwell in the Country out of any of the said cities boroughs c. but euery of them at any time when he shal be frée of any of the guildes or liberties of any of the said cities market townes c. and dwell within any of them shall or may sell or cause to be solde any of the wares aforesaid by retaile Neither shall this Act be preiudiciall to the priuiledges of the vniuersities of Oxford Cambridge or either of them And it shall be lawfull to all persons to sell or cause to be sold by retaile or otherwise all linnen or woollen cloth of their owne making Cloth of their own making in euery Citie Borough Towne corporat and Market Towne as fréely as they might haue done before St. 25. H. 8. 13 18 It appeareth by the words of the stat of An. 25. H. 8. That for one man to get and take into his hands diuers farmes which were ordained prouided habitations and liuings for diuers men Or for one man to get into his possession many pastures or walkes for shéepe by the occupying wherof seueral persons before had liued was accounted a most grieuous heinous oppression to tend to the high displeasure of almighty God to the decay of hospitalitie to the diminishing of the kings people to the let of cloth making whereby many poore people did liue and to turne incline to the vtter desolation destruction of this realme for the redresse whereof by the same statute it was ordained That no person or persons shal receiue or take in farme for terme of yeres life or at will by indenture copy of Court Roll or otherwise any more houses or tenements of husbandry wherunto any lands are belonging in town village hamlet or tything within this realme aboue the number of two such holds or tenements and no manner of person shall haue or occupie any such holds so newly taken to the number of two as is before expressed Oppression by taking of seuerall farmes except he or they be dwelling within the same parishes where such holds be vpon paine of forf for euery wéeke that he or they shall haue occupy or take any profits of such holds 3. s̄ 4. d. whereof the one moity shal be to the king the other to the party that wil sue for the same in any of the K. Courts by A.B.P.I. or otherwise within one yéere next after such offence cōmitted St. 4. H. 7. 16 And by the stat of An. 4. H. 7. it was established That if any person doe take any seuerall farmes more then one of any manors lands tenemēts parsonages or tythes within the isle of Wight Taking of farmes in the isle of Wight whereof the farme of them altogether shal excéed the summe of x. markes the lessée shall forf to the king for euery such taking xl l. St. 25. H. 8. 13 19 And for the reasons last specified the said stat of an 25. H. 8. did also ordaine That no person shall kéepe occupy Oppression by kéeping of many shéepe or haue in his possession in his owne proper lands nor in the grounds of any other which he shall haue or occupy in farme nor otherwise haue of his owne proper cattell in vse possession or property by any manner of meanes or couin aboue the number of two thousand shéepe at one time within any parts of this realme of all sorts kinds alwais accounting 6. score to the hundred and 10. such hundreds to the thousand vpon paine to forf for euery shéepe that any person shall haue or keepe aboue the number limitted by this act 3. s̄ 4. d. to the king and such as will sue for the same by A.B.P.I. in any court of Record wherein no W.E.P. c. So that the suit be commenced for the king within thrée yéeres for a subiect within one yéere next after the offence committed But lambes Lambes vnder the age of one whole yéere and as much as shal be from the time of the falling of them vnto the feast of the Natiuity of S. Iohn Baptist shal not be taken for shéepe prohibited by this statute St. 25. H. 8. 13 If any person hauing shéepe of his owne happen to be made executor or administrator to any person which had shéep at his death Shéepe comming by executorship or mariage or happen to be maried to
their churches houses c. for pasturing of cattell or increase of corne for the only expences of their households or for their cariages and iourneyes may take in farme other lands and buy and sell corne and cattell for the only manurance tillage and pasturage of such farmes so that the increase thereof be alwaies imployed to the onely expences in their housholds and not to buy and sell againe for any other commoditie but onely the ouerplus of such corne and cattell aboue the expences of their housholds if any such shall happen to be bred and increased therof without fraud or couin St. 21. H. 8. 13 And for the causes aforesaid by the said statute of An. 21. H. 8. it was moreouer ordained That no spirituall person beneficed with cure Oppression by them in farming of parsonages c. shall haue or occupy by himself or any other to his vse any Parsonage or Vicarage in farme of the lease or graunt of any other person or take any rent or profit out of any such farme vpon pain to forf xl s̄ euery wéeke that he or any to his vse shall occupy any such farme also shall forf ten times the value of such profite or rent which he shall take out of any such farme to the K. I. to be recouered by A.I. P. c. wherein no W.E.P. c. Oppression by kéeping a Tanne-house or Brewhouse And moreouer no spirituall person shall haue vse or kéepe by himselfe or any other to his vse or cōmodity any Tan-house to be occupied to his vse or cōmodity or any Brewhouse to any other intent then only to be spent and occupied in his own house vpon paine to forfeit for euery month so vsing or occupying any of the said misteries x. l. to the K. and I. to be recouered by A.P.I. wherein no W.E.P. c. Oppression by taking of excessiue toll 21 Because complaint was made in parliament that some did oppresse the people by taking excessiue outragious toll in market townes therfore by the stat of West 1. it was enacted St. 3. E. 1. 30. That if any do take outragious toll contrary to the custome of the realme in a market towne which is the K. towne and let to fée farme the K. shal seise the franchise of the market into his owne hands if it be anothers towne that be done by the lord of the towne the K. shal do in like sort and if it be done by a bailife or other mean officer without the cōmandemēt of his lord he shal restore to the plaintife for his outragious taking so much as he hath receiued of him if he hath caried away the toll shal be imprisoned xl daies No oppression shal be done to strangers 22 The gouernors of this realme hauing from time to time a special regard that reciprocall courtesie fauor might be performed to all strangers aliens that did come into this realme to marchandize or to any other good intent and that Ius gentium might be yéelded vnto them haue made many good laws and statutes to protect defend them from oppressions wrongs As K. Henry the third ordained by the stat of Magna Charta St. 9. H. 3. 30 That all marchants if they were not lawfully prohibited before shall haue their safe sure cōduct to depart forth of the realme to come into England to tarry go through England aswel by land as by water to buy or sell without any manner of euill tols according to the ancient lawful custemes sauing in time of warre And if they be of a country in warre with vs they shal be attached without hurt of their bodies or goods vntill it be knowne to vs or our chiefe iustice how the marchants of our land be vsed in that country wherwith we haue war and if our marchāts be wel vsed there theirs shal be so likewise with vs. And by the stat of an 9. E. 3. St. 9. E. 3. 1. St. 25. E. 3 2 it was enacted That all marchant strangers denizens all other the will buy and sel corne wines auer de pois flesh fish all other liuings victual wools clothes all other things vendible frō whence soeuer they come at what place soeuer it be city borough towne port of the sea fayre market or elsewhere within the realme within franchise or without may fréely sel them to what person it shal please thē aswel forreins as denizens in grosse at retaile or by parcels at their wils to all people the will buy the same except to the enemies of the K. and his realme notwithstanding any charter vsage or custome And if any disturbance be done to any marchant stranger or denizen or to any other for the sale of such things in any city borough towne port of the sea or other place which hath franchise the maiors bailifes or other which haue the rule of such franchise being required by such marchants or other thereof to prouide remedy do not thereof be attainted the franchise shal be seised into the K. hands and neuertheles they which haue done such disturbance shal restore to the said marchant his double damages which he hath therby sustained And if such disturbance or interruption be done in such places or townes where no franchise is and the lord if he be present or his baylife constable or other ruler of the said townes and places in the absence of the lord being therein required to doe right and do not thereof be attainted they shal yéeld to the plaintife dammages as aforesaid the disturbers in the one case in the other as well within the Franchises as without if they be attainted shall haue one yéers imprisonment and be ransomed at the kings pleasure No alien or denizen vpon the foresaid paine shal be troubled but he may fréely buy such things aforesaid in the said places carry them where it pleaseth him to his owne vse or to the profit of the king or the realme sauing that such Marchants aliens shall carry no wine out of the same realme St. 6. R. 2. 10 And by the stat of Ann. 6. R. 2. it was established That all aliens being in friendship with the king and the realme comming into any cities or townes within the realme with fish or other victuals and there tarrying returning againe to their owne countries shall be vnder the kings protection and it shall be lawfull to euery of them to cut their fish victuals in pieces by retaile or in grosse to sell the same And by the stat of an̄ 14. St. 14. H. 6. 6 H. 6. it was prouided That if any man disturbe any alien to sell his fish in forme aforesaid he shall forf x. l. to the K. him that will sue And besides the stat of an 31. E. 3. 10. an 7. R. 2. 11. an 11. R. 2. 7.
that he did cause some lawfull punishment to be inflicted vpon certaine of them for their crimes notwithstanding all these or such like misdemeanors be neither Treason nor Felony by the Law but a Riot and yet in respect of the basenesse of the parties which committed this wrong of the cause for the which they put it in practise of the worthinesse of the person and of his place vpon whom it was executed of the barbarous course taken in the performance therof of the perillous exāple giuen to other malefactors these riotors deserue to bée censured with a much sharper punishment then the former For as there be no bounds obserued by leud and wicked persons of their outrages so be there no certaine means or limits assigned of their punishments but the said most honourable Court of estate may draw forth his Maiesties sword of iustice and first punish the said offences according to the particuler lawes and statutes prouided therfore and then euery person transgressing by himselfe according to the circumstance of his demerits as partly may appeare by the statute of anno 3. H. 7. St. 3. H. 7. 1. which expresseth some parts of the authority giuen to the Lords of the said Court and more by a branch of the statute of Magna Charta whereby it is enacted St. 9. H. 3. 14 That euery fréeman shall be amerced viz. punished for reasonable cause according to the quantity of his offence And further by the statute of Anno 33. H. 8. St. 33. H. 8. 1 which giueth the lords of the said Court of Starre-chamber authority to punish those who by counterfeit letters or tokens shall get other mens goods into their hands by imprisonment setting vpon the pillory or other corporall paine whatsoeuer except death ⧠Treasons 1 CRimen lesae Maiestatis What is Treason in our English tongue called Treason is a great offence done to the Maiesty of gouernement and the peace of the land which the wisdome of this Realme hath from age to age so much hated and abhorred that they haue persecuted those that were guiltie therin with most violent and vntimely death and with extreame and seuere tortures they haue ordained that an offendor therein shall be hanged and cut downe aliue that his bowels shall bée cut off and burned in his sight that his head shall bée seuered from his bodie that his quarters shall bée diuided asunder and disposed at the Kings pleasure and made food for the birds of the aire or the beasts of the field and that his wife and children shall be thrust out of his house and liuings that his séed and blood shall be corrupted that his lands and goods shall be confiscated and as by the statute of 29. H. 6. 1. it is ordained of the Traitor Iohn Cade he shall be called a false Traytor for euer And as our respectiue and considerat forefathers haue deuised to yéeld vnto those grieuous offendors Legem talionis and to teare their bodies lands and goods who doe practise to rent and pull asunder this Maiestie of gouernement by destroying the head or such as are like to be the principall succéeding members thereof or by diuiding the bodie into parts or by weakning the force and strength thereof or by subuerting the chiefe Magistrats of iustice or by counterfeiting staining or blemishing of the peculiar and royall Ensignes Cognisances and Sinewes thereof so haue they béene carefull and prouident that there should be no greater number of those dreadfull sharpe and bitter lawes than vrgent necessitie for the preseruation of that Maiestie of gouernment required And because it was in former times greatly doubted and ofttimes called in question amongst the Sages of the Realme and learned in the lawes which offences were by the common law high Treason and which not and which were petit Treason and which not and seuerall men were of seuerall opinions therein and to the intent that al future ages might know and be more vigilant to eschew the penalties thereof King Edward the third at his Parliament begun at Westminster the thirtéenth day of Ianuarie St. 25. E. 3. 2 in the 25. yere of his raign at the request of his Lords and petition of his Commons made a declaration thereof in manner as hereafter followeth viz. It is high Treason where a man doth compasse High treason or imagin the death of our Soueraigne Lord the King or of our Ladie the Quéene his wife or of their eldest sonne and heire or if a man doth deflower the Kings wife or the Kings eldest daughter being vnmaried or the kings eldest sonne and heires wife or if a man doe leuie warre against our Lord the king in his Realme or be adherent to the kings enemies in his Realme giuing to them aid and comfort in his Realme or else where and thereof be probably attainted of open deed by people of their owne condition And if a man do counterfeit the Kings great Seale or his priuie Seale or his money which offences Bracton doth terme Crimen falsi And if a man bring false money into this Realme counterfeit to the money of England knowing the money to be false Bracton de Corona cap. 3. to marchandise or make paiment in deceit of our Lord the King and his people And if a man kill the Chauncellor Treasurer or the Kings Iustice of the one Bench or the other Iustices of Eire and of Assises and all other Iustices assigned to heare and determine beeing in their places doing their Offices And it is to bée vnderstood that in the cases aforesaid it ought to bee adiudged Treason which extendeth to our Lord the King and his royall Maiestie And of such Treason the forfeiture of the escheat doth appertaine to our Lord the King as well of the lands and tenements holden of others as of himselfe And moreouer there is another manner of Treason Petit treason that is to say When a seruant killeth his Master or a wife her husband or when a secular or religious man killeth his Prelat to whom he oweth faith and obedience And such manner of Treason giueth the escheats to euery Lord of his owne fée And because many other cases of like Treason may happen in time to come which a man cannot thinke of nor declare at this present It is accorded that if any other case supposed to be treason that is not before specified doth happen of new before Iustices the Iustices shall stay without proceeding to iudgement of Treason vntill the case be declared and shewed before the King and his Parliament whether it ought to be adiudged Treason or other Felonie And in case any man of this Realme doe ride armed openly or secretly with people armed against another for to kill or rob him or to take and detaine him vntill he hath made fine and ransome to be deliuered it is not the King or his Counsels wil that in such case it shall be adiudged Treason but it shall be
to the next Sessions for the Peace and Gaole deliuerie next ensuing after the sayd yeare And if any such person retained depart within the yeare Departing without licēce without the licence of him that so retained him then to be indicted tried and iudged as a felon and not to haue the benefit of his Clergie 33 By a Statute made Anno 31. Elizab. St. 31. El. 4. it was established Imbeciling the K. Armor c. That if any person or persons hauing at any time hereafter the charge or custodie of any Armour Ordnance Munition Shot Powder or Habiliments of Warre of the Quéenes her heires or successors or of a Victuals prouided for the victualing of any Souldiers Gunners Mariners or Pioners shall for any lucre or gaine or wittingly aduisedly and of purpose to hinder or impeach her Maiesties seruice imbecile purloyne or conuey away any the same Armour Ordnance Munition Shot or Powder Habiliments of Warre or Victuals to the value of twentie shillings at one or seuerall times then euerie such offence shall bée adiudged Felonie and the offendor and offendors therein to be tried procéeded on and suffer as in case of Felonie The suit within a yere after the offence But none shall bée impeached for any offence against this Statute vnlesse the same impeachment bée prosecuted or begun within a yeare next after the offence done And this Act nor any attainder or attainders of any person or persons for any offence made felonie by this Act shall in any wise extend or bée interpreted to make the offendor or offendors to forfeit any lands tenements or hereditaments any longer than during his or their life or liues or to make any corruption of blood to any the heire or heires of any such offendor or offendors No corruptiō of blood or forf of dower or to make the wife of any such offendor to loose or forfeit her dower or title of dower of or in any lands tenements or hereditaments or her action or interest to the same Proofe in discharge of the offendor any thing in this Act c. notwithstanding And such person or persons as shall be impeached for any offence made felonie by this Statute shall by vertue of this Act bee receiued and admitted to make any lawfull proofe that hée can by lawfull witnesse or otherwise for his discharge and defence in that behalfe any law c. notwithstanding Cutting downe of Powdike 34 By a Statute made Anno 22. H. 8. and reuiued Anno 2. 3. St. 22. H. 8. Ph. Mar. it was ordained That euerie peruerse and malitious cutting downe and breaking vp of any part or parts of the dike called new Powdike in Marshland in the Countie of Norffolke and the broken dike otherwise called Oldfield dike by Marshland in the isle of Ely in the Countie of Cambridge or of any other banke béeing parcell of the Rinde and vttermost part of the causey of Marshland aforesaid made for the defence and saluation of the sayd countrey of Marshland at euerie time and times from henceforth committed and done otherwise than in working of the sayd bankes or dykes for the fortifying repayring and amending of the same shall bee taken reputed and adiudged Felonie And the offendors and doers of the same and euerie of them shall bée adiudged and reputed felons And the Iustices of Peace of the sayd Counties of Norffolke and Cambridge within the sayd isle at euerie of their Sessions within the same isle and Counties to be kept shall haue power to cause inquirie to bée made of euerie such offence so at any time in forme aforesayd hereafter to bée done and committed and to award like Proces against euerie of the sayd offendors with like iudgement and execution of the same if they or any of them bée found guiltie by verdict or otherwise as the sayd Iustices haue vsed to do vpon other felonies being felonie by the common law Taking the othe for the Kings title 35 By a Statute made Anno 3. Iac. 4. it was enacted St. 3. Iac. 4. That euerie subiect of this Realme that after the tenth day of Iune next comming shall goe or passe out of this Realme to serue any forreine Prince State or Potentate or shall after the sayd tenth day of Iune passe ouer the Seas and there shall voluntarily serue any such forreine Prince State or Potentate not hauing before his or their going or passing taken the othe viz. That our Soueraigne Lord King Iames is lawfull and rightfull King of this Realme c. before the officer thereunto appointed shall be a felon And if any Gentleman or person of high degrée or any person or persons which hath borne or shall beare any office or place of Captaine Lieutenant or any other place charge or office in Campe Armie or Companie of Souldiers or Conductor of Souldiers shall after go or passe voluntarily out of this Realme to serue any such forrein Prince State or Potentat before that he and they shal become bound with two such suerties as shall be allowed of by the officers by this Act limited to take the said bond vnto the K. his heires or successors in the summe of xx.l. of currant English money at the least bound not to be reconciled nor to make conspiracie with condition to the effect following he shall be a felon viz. That if the within bounden c. shal not at any time thē after be recōciled to the pope or sea of Rome nor shal enter into or consent vnto any practise plot or conspiracie whatsoeuer against the Kings Maiestie his heires and successors or any of his or their estate and estates realms and dominions but shall within cōuenient time after knowledge therof had reueale disclose to the K. Maiestie his heires and successors or some of the Lords of his or their priuie Counsell all such practises plots and conspiracies then the said Obligation to be void St. 43. El. 13 36 By the stat made Anno 43. El. it was ordained Forcible carrying any person out of Cumberland c. That whosoeuer shall at any time hereafter without lawfull authoritie take away any of the K. subiects against his or their will or wils and carrie them out of the counties of Cumberland Northumberland Westmerland and the Bishopricke of Durham or to any other place within any of the said Counties or detaine force or imprison him or them as prisoners or against his or their wills to ransome them or to make a prey or spoyle of his or their person or goods vpon deadly fewd or otherwise Or whosoeuer shal be priuie consenting aiding or assisting to any such taking detaining or carrying away of any such person or persons as aforesaid Or whosoeuer shall take receiue or carrie to the vse of himselfe or wittingly to the vse of any other any money corne cattell or other consideration commonly called Blacke mayle for the protecting or defending of him or
them or his or their lands tenements goods or chattels from such thefts spoyles and robberies as is aforesaid Or whosoeuer shall giue any such money corne cattel or other consideration called Blacke mayle for such protection as is aforesaid Or shall wilfully and of malice burne or cause to be burned or aid procure or consent to the burning of any barne or stacke of corne or grain within any of the said Counties or places aforesaid shal be of the said seueral offences or any of them indicted lawfully conuicted or shall stand mute or shall challenge peremptorily aboue the number of xx before the Iust of Assises I. of Gaole deliuerie I. of Dier and Terminer or I. of peace within any of the said counties at some of their generall Sessions within some of the said counties to be holden shal be adiudged reputed and taken to be as felons and shall suffer death without any benefit of Clergie Sanctuarie or Abiuration and shall forfeit as in case of felonie St. 1. Ed. 2. 37 By the stat of An. 1. E. 2. it was ordained in this maner viz. Touching prisoners breaking of prison Breaking of prison the K. doth will and command that none which from henceforth doth breake prison shall haue iudgement of life and member for the breaking of prison onely except the cause for which hee was taken and imprisoned do require such iudgement if he should haue been conuicted thereof according to the law and custom of the Realm though in times past it hath beene otherwise vsed ⧠Principall and Accessorie 1 HAuing treated sufficiently of Treasons Homicides and other Felonies and shewed how many of euerie of them there be I am now to write of those that be culpable therein and to declare which be the chiefe and most grieuous offendors in those crimes whoÌ„ the law doth terme adiudge Principals and which be but Abettors Procurers and Receiuers whom the law doth brand mark with the name of Accessories and which of those be Accessories before the offence committed and which after in what cases one of them shal be arrested imprisoned appealed indicted arraigned or attainted before the other and in what not when the acquital of the one shall discharge the other and when not and where the punishment of the one shal be greater than of the other and where not And in this title to begin with the greatest highest offence The law doth hold it a rule infallible 3. H. 7. 10. that in High Treason there is no Accessorie No accessorie in high treasoÌ„ for all the aduisers counsellors persuaders and assistants therein be Principals as much as if they were actors or doers so that whatsoeuer offence doth make a man Accessorie in Felonie the like maketh him Principall in High Treason But in Petit Treason there is oftentimes a Principall and an Accessorie as there is in Homicide Robberie and other Felonies Accessorie before the offence committed 2 There be two sorts of Accessories in Felonie whereof the one is Accessorie before the felonie committed and the other is Accessorie after the offence done As if one hire procure or commaund another to commit a Felonie 10. Ed. 4. 14. but is not present when the other doth it this procurer or commaunder is Accessorie before the offence committed But otherwiâ—e it is if hee bee present at the time of the felonie committed for in that case he is Principal 4. H. 7. 18. 7. H. 4. 27. And in some case one may be appealed as Principall and Accessorie in one Appeale Procurement of felonie 3 If one bée present at the death of a man 4. H. 7. 18. 13. H 7. 10. Plo. Com. 100. and moueth another to strike and kill him by this meanes hée is principall though hée did strike no stroke as well as hée that killed him For the blowes of hâ—m that did strike him bée in construction of law the blowes of him which commaunded him when hée was present for if the commaunder had sayd nothing the man slaine had not béene killed 21. Ed. 4 71. 4 If one be present at the killing of a man CoÌ„ming purposely to a manslaughter and commeth thither for that cause although he at that time doth not moue another to strike or kill him neither doth any thing yet hée shall bee adiudged principall For when diueâ—s doe come to doe an euill act Bro. Cor. 171. Kel fol. 161 Pl. Com. 98 and one alone doth it and the others bée present abetting him or readie to aid him in the fact they bée principals to all intents as fully as hée who did the act for the presence of the other is a terrour to him that was assaulted and the occasion that hée durst not defend himselfe for when one doth see his enemie and diuers of his companions comming to assault him 13. H. 7. 10. and they all doe draw their swords and doe enuiron him and one onely doth strike him so that hée dyeth thereof the others shall be adiudged as great offendors as hee who did strike him for if the others had not béene present peraduenture hée would haue desended himselfe and haue escaped for the number of the others that were present and also readie to strike him was a great feare vnto him and an abatement of his courage and a cause to make him dispaire of his defence and so the occasion of his death And though but one man gaue the blow which was the cause of his death yet the law will adiudge it the stroke of them all giuen by the hands of that one man and to bée in each degrée as penall to thâ—m all as if they all had holden their hands at one time vpon that sword or staffe and giuen him his deadly wound Fitz. Cor. 309. 5 If one béeing present at the killing of a man doth nothing A will to assist a felon but would haue aided his companion if the partie that was slaine had made any resistance Fitz. Cor. 314. 350. 433. 11. H. 4. 13. hée shall thereby bee adiudged principall For all those which come in companie in any place where any assembly is gathered that an euill fact is committed bée it Homicide Robbeâ—â—e or other Trespasse euery of them shall bée adiudged a principall actor though they stand by and doe not hurt As if one come with others to doe a dissâ—â—â—â—â— and a man is killed by another and hee therein did nothing Fitz. Cor. 314. 350. notwithstanding hee shall bee adiudged principall though hée came not to any such purpose because hée came to doe an vnlawfull act 6 If one chaunce to bée present when another is slayne In company but not consenting to a felony or when any other felonie is committed and doth not come in companie with the felons neither is of their confederacie although hée doth not make any resistance or disturbe the felon or leuie Huy and Crye yet he is
action sute bill plaint or information sued commenced or preferred shall by such displacing or death be abated discontinued or ended But it shall and may be lawfull to and for the Clerke for the Peace next succéeding in the saide Countie to prosecute pursue and follow all and euery such action bill plaint sute and information for the causes aforesaid so hanging and depending in such maner and forme to all intents and purposes as that Clerke of the Peace might haue done which first commenced or preferred the said sute bill plaint or information 8 Although the whole Hundred where such robberies and felonies are committed with the liberties within the precincts thereof are by the said two former statutes charged with the answering to the partie robbed his dammages yet neuerthelesse the recouerie and execution by and for the partie or parties robbed is had against one or a very few persons of the saide inhabitants and he and they so charged haue not héeretofore by Lawe had any meane or way to haue any contribution of or from the residue of the saide Hundred where the said robbery is committed to the great impouerishment of them against whom such recouerie or execution is had for the remedy whereof by the saide statute of An̄ 27. Eliz. St. 27. El. 13 it was enacted That after execution of dammages by the partie or parties so robbed had it shall and may be lawfull vpon complaint made by the partie or parties so charged to and for two Iustices of the Peace whereof one to be of the Quorum of the same Countie inhabiting within the saide Hundred or neare vnto the same where anie such execution shall be had to assesse and taxe ratably and proportionably according to their discretions all and euerie the Townes A remedy for an equall contribution Parishes Villages and Hamlets as well of the saide Hundred where any such robberies shall be committed as of the Liberties within the saide Hundred to and towards an equall contribution to be had and made for the reliefe of the saide inhabitant or inhabitants against whom the partie or parties robbed before that time had his or their execution And that after such taxation made the Constables Constable Headboroughs or Headborough of euerie such Towne Parish Village and Hamlet shall by vertue of this Act haue full power and authoritie within their seuerall limites ratably and proportionably to taxe and assesse according to their abilities euerie inhabitant and dweller in euerie such Towne Parish Village and Hamlet for and towardes the paiment of such taxation and assessement as shall be so made vpon euery such Towne Parish Village and Hamlet as aforesaide by the saide Iustices And if any Inhabitant of any such Towne Parish Village or Hamlet shall obstinately refuse and denie to pay the saide Taxation and assessement so by the said Constables Constable Headboroughs or Headborough taxed assessed then it shall and may be lawfull to and for the said constables headboroughs euery of thē within their seuerall limits iurisdictions to distraine all and euery person and persons so refusing and denying by his their goods and chattels the same distresse to sell and the mony therof comming to retaine to the vse aforesaid And if the goods or chattells so distrained and solde shall be of more value than the said Taxation shall come vnto then the residue of the said money ouer and aboue the saide Taxation shall be deliuered vnto the said person or persons so distrained Deliuering the contribute money 9 All and euery the saide Constables and Headboroughs St. 27. El. 13 after that they haue within their seuerall limites and iurisdictions leuied and collected their said rates and summes of mony so taxed shall within ten daies after such collection pay and deliuer the same ouer vnto the said Iustices of Peace or one of them to the vse and behoofe of the saide Inhabitant or Inhabitants for whom such rate taxation or assessement shall be had or made as aforesaide Which money so paied shal by the Iustices or Iustice so receiuing the same be deliuered ouer vpon request made vnto the saide Inhabitant or Inhabitants to whose vse the same shall be collected Leuying of cantribution 10 And the like taxation assessement leuying by distresse and payment St. 27. El. 13 as aforesaide shall be had and done within euerie Hundred where default or negligence of pursute and fresh sute shall be for and to the benefite of all and euery Inhabitant or Inhabitants of the same Hundred where such default shall be that shall at any time héereafter by vertue of this Act haue any dammages or money leuied of them for or to the paiment of the one moitie or halfe of the mony recouered against the said Hundred where any robberie shall be hereafter committed No penaltie where any of the offenders be apprehended 11 Prouided that where any robberie is St. 27. El. 13 or shal be hereafter committed by two or a greater number of malefactors and that it happen any one of the said offenders to be apprehended by pursute to be made according to the saide former mentioned Lawes and Statutes according to this present Act that then and in such case no hundred or franchise shall in any wise incurre or fall into the penaltie losse or forfeiture mentioned either in this present Act or in any the saide former statutes although the residue of the saide malefactors shall happen to escape and not to be apprehended Any thing in this statute or in the said former statutes to the contrary notwithstanding Which saide Braunch doth in some sort qualifie part of the foresaid statute of Winchester for by the saide statute Col. 7. fol. 7 the Country must agrée for the saide robberie within halfe a yéere or else they shall be answerable for the bodies of the saide offendors which is of all the offendors But by this statute it is sufficient if they take any of the offendors although not all St. 27. Eli. 13 12 Prouided also Within what time the sute shal be commenced That no person or persons héereafter robbed shall take any benefite by vertue of any the saide former Statutes to charge any Hundred where any such robberie shall be committed except hée or they so robbed shal commence his or their sute or action within one yeere next after such robberie so to be committed St. 27. Eli. 13 13 No huy and crie In what maner huy and crie shal be made or pursute héereafter to be done or made by the Country or inhabitants of any Hundred shall be allowed and taken to be a lawful huy and crie or pursute vpon or after any of the saide felons or offendors except the same huy and crie and pursute be done and made by horsemen and footmen Any vsage or custome to the contrary notwithstanding St. 27. El. 13 14 No person or persons that shal hereafter happen to be robbed
Notice must be giuen of the robberie shal haue or maintaine any action or take any benefite by vertue of the saide two mentioned Statutes or either of them except the saide person or persons so robbed shall with as much conuenient spéede as may be giue notice and intelligence of the same felonie or robberie so committed vnto some of the inhabitants of some Towne Village or Hamlet neare vnto the place where any such robberie shall be committed Nor shall bring or haue any action vpon or by vertue of any the statutes aforesaide except hée or they shall first within twentie dayes next before such action to be brought be examined vpon his or their corporall Othe to be taken before some one Iustice of the Peace of the Countie where the robberie was committed inhabiting within the said Hundred where the robberie was committed The party robbed examined â— bound to prosecute the offenders or neare vnto the same whether hée or they doe knowe the parties that committed the said robberie or any of them And if vpon such examination it be confessed that he or they doe know the parties that committed the saide robberie or anie of them then he or they so confessing shall before the saide action be commenced or brought enter into sufficient bond by Recognisance before the saide Iustice before whome the saide examination is had effectually to prosecute the same person and persons so knowen to haue committed the saide robbery by indictment or otherwise according to the due course of the Lawes of this Realme 15 Because the inhabitants of the Hundred of Benherst in the countie of Berke consisting onely vpon fiue small villages and three hamlets and hauing in it two great road waies of three miles in length at the least through the Thicket haue béene ouercharged by seuerall Braunches of the said Statute of Anno 27. Eli. 13. In reformation thereof by a Statute made anÌ„ 39. Elizab. St. 39. E. 2â— it was enacted That the inhabitants of the Hundred of Benherst alias Beinersh within the Countie of Berke shall and may to their owne proper vse A remedy for the inhabitaÌ„ts of Benherst in Barkshire in the name of the Clerke of the Peace of the said Countie of Berke recouer haue and leuie all such summes of money costs and dammages as hereafter shall be recouered or leuied of or against them by the foresaide Statutes or any of them against the inhabitants and resiants of euery or any such Hundred with the franchises within the precincts thereof wherein negligence fault or defect of such pursute and fresh sute as by the said Statute of 27. Elizab. is appointed to be made shall happen to be after notice giuen or huy and crie brought to the saide inhabitants or resiants or any of them of or vpon any robberies which shall be at any time héereafter done within the saide Hundred of Beinersh And this present Act shal giue as full power and authoritie in all respects to the inhabitants of the saide Hundred of Benherst in the name of the Clerke of the Peace of the saide Countie for recouerie hauing and leuying of all the saide money costs and dammages as aforesaide as the aforesaide Statute of 27. Elizab. gaue or intended to giue for the recouerie of a moitie or one halfe thereof Prouided alwaies that no such remedie or recouerie shall be had In what cases onely the recouerie shall be had by this Statute for all or the whole summe or summes of money and dammages aforesaide but onely in these two Cases viz. The one where no such notice or intelligence as by the said Statute of 27. Elizab. was appointed to be giuen of euery or any Robberie shall be giuen to the inhabitants of the saide hundred of Benherst alias Beinersh The other where the inhabitants of the same Hundred after such notice of any Robberie to them or some of them giuen or after huy and crie for the same to them brought shall make or cause to be made fresh sute and pursute after the offenders with horsemen and footmen according to the saide Statute of 27. Elizab. and where neuerthelesse the offenders or any or one of them shall not be apprehended within fortie daies after the Robberie committed 16 Two ioynt owners of a sumine of mony P. 24. El. Di. 370. which were robbed by felons vnknowen at A. in the Hundred of B. in the countie of C. brought their action against the inhabitants of the said Hundred of B. and declared that wheras huy and crie was leuied by them and notice there giuen and the felons were not appreheÌ„ded nor descried nor amends made within the six months according to the statute of Winchester whereunto the defendants viz. the inhabitants of the saide Hundred of B. pleaded in barre of the action that immediately vpon the huy and crie leuied they made fresh sute from the said Towne of A. where the robbery was committed thorow their other townes vnto the towne of D. which is next adioyning to the said Hundred and there huy and crie was giuen to the inhabitants of the saide Hundred â—â—rsute wil not serue â—â—thout apprehensioâ— of thâ—â—â—lonâ— or descrying theÌ„ But this maner of pursute was adiudged no excuse according to the meaning of the said statute of Winchester without apprehending or answering of the robbeâ—s or descrying of their names that they might be indicted and outlawed And in this case the plaintifes may ioyne in action because they were ioynt owners of the money But if the summes of money had béene seuerall and they had seuerall properties in them they would not haue ioyned in Action Arresting of him â—hat is pu sued by huy and crie 17 If a man be driuing of cattell and be pursued by huy and crie 29. Ed. 3. 39. the Shirifes Bailiffe or any other may arrest him and the cattell supposed to be stolen and commit them to the Towne where they be apprehended to answer to the King according to the Lawe though the man arrested be not of euill name suspicious nor a stranger in those partes nor indited For the Lawe doth giue that credite to huy and crie that euerie man is a sufficient Bailiffe and officer to apprehend him that is pursued by huy and crie and taken with the thing supposed to be stollen And therefore if one man doe leuie huy and crie vpon an other without cause both the one partie and the other shall be attached to answer it as disturbers of the Peace Appeales WHen a murder manslaughter rape burglarie robberie or other felonie is committed and that the offendor be he principall or accessorie is apprehended by huy and crie or by any other meanes and so by imprisonment or mainprise brought to his answer Or otherwise if he flée and escape when he is so discouered and knowen that Processe may be awarded against him by name to take him and bring him into the Kings court of his answer Then either the
shal take an oath which is his abiuration The oath of abiuration in this manner viz. Heare you this Master Coroner Bracton Britton That I A.B. am a théefe of two beasts or a killer of a man and a felon of the kings of England and because I haue committed many offences and thefts in this Realme I doe abiure the Kingdome of our Soueraigne Lord King Iames And I must make haste towards the port of S. which thou hast giuen mee And I must not goe out of the high waie and if I doe then I yéeld to bee taken as a théefe and felon of our Soueraigne Lord the Kings at the port I will diligently séeke passage and will not tarrie there but one flowing and ebbing if I may haue passage And if I cannot haue passage in this time I will go euery day vp to the knées into the sea assaying to passe ouer And if I cannot do it within fourtie daies together I will returne to the Church as a thiefe and felon of our soueraigne Lord the King So helpe me God c. And notwithstaÌ„ding the words of the said oath the offendor not the Coroner ought to make the election of the port whither he will goe where he will make his passage and he must make his abiuration at the dore of the Church-yard Fi. Cor. 407 Britton 11 He that doth abiure the Realme must haue vpon him but his coate The attire of an abiured person his shirt and his bréeches and his head shal be vncouered he must carrie a crosse in his hand which as Polidore saith is a token that his life is saued by religion and whatsoeuer he hath beside is forfeited to the King and neither the Coroner nor any of his seruants shall take any thing of the offendors for their fée St. 9. E. 2. 10 12 By the Statute of Lincolne made anÌ„ 9. E. 2. The vsing of persons abiured They they that abiure the Realme so long as they be in the high way shal be in the Kings peace and bée troubled of no man And whilest they be in the Church their kéepers shall not tarie in the Church-yard except necessitie or perill of escape doe require it and so long as they be in the Church they shall not be compelled to depart but may haue those things which be necessarie for their liuelihood and may go forth to discharge nature 7. H. 7. 7. Fi. Cor. 14 But if an abiured person be molested in the high way and drawne out of the way and imprisoned yet that will not excuse him when he is againe at libertie if he doe not within conuenient time after his libertie returne to the way leading him to the port or place whereunto vpon his abiuraration he made choice to goe But if he doe goe out of the high way vpon ignorance or to ease nature that shall not hurt him so that he doe returne to the high way in conuenient time or doe his good will to returne 13 After abiuration if the offendor doe any thing contrarie to his oath After abiuration broken death viz. contrary to his abiuration he shal be put to execution vnlesse he be a Clerke and in that case shal be saued from death by his Clergie because the Prelates and Clergie did complaine in Parliament that though a Clerke ought not to be iudged by a temporall Iudge nor any thing may be done against him that concerneth life or member neuerthelesse temporall Iudges caused Clerks flying vnto the Church and confessing their offences to abiure the Realme and for that cause admitted their abiurations although hereupon they cannot bée their Iudges and that so power was wrongfully giuen to Laie persons in the punishment of such Clerks And if such should chance after to returne into the Realme the said Prelates and Clergie desired such remedie to bee prouided therein that the immunitie or priuiledge of the Church may be preserued vnbroken St. 9. E. 2. 15 Vpon which request by a Stat. made anÌ„ 9. E. 2. intituled Articuli cleri it was enacted That a Clerke flying to the Church for felonie to obtaine the priuiledge of the Church shall not be compelled to abiure the realme but yéelding himselfe to the law of the realme shall enioy the priuiledge of the Church according to the laudible custome of the Realme heretofore vsed Which said Statute being but a rehersall restoring and confirmation of the common law is thought not to be repealed by the words of the foresaid stat of 1. Iac. â—â— 1. Iac. 25. And so it appeareth by this stat that if he which doth flie to a Church will say that hée is a Clerke A Clerke need not abiure he shall not be compelled to abiure and if he doe abiure of his own good will and thereby doth lose his lands yet to saue him from execution hee shall haue his Clergie S. St. 28. H. 8. 1. Clergie 5. Where no felonie no abiuration for felonie 14 A maried wife béeing desirous to bee deliuered from her husband Fi. Cor. 425 did flie to a Church and acknowledged a felonie where she neuer had committed any felonie and desired to abiure and her husband vnderstanding of it came to her and then shée fled out of the Church and escaped and towne or person were amerced for this escape for there could no felon escape where no felonie was committed Neither can there be any abiuration where no felonie is committed And therefore an offendor cannot abiure for petit larcenie Br. Cor. 182 The abiured pleadeth that he is not the same person 15 He that doth abiure and is taken againe and arraigned Fi. Cor. 124 may plead that he is not the same person which did abiure and then that shal be tried by the Coroner who tooke his abiuration Or hee may plead the Kings pardon The Kings pardon granted to him of the felonie and abiuration 9. E. 4. 28. for if the pardon make no mention of the abiuration it is not good S. Pardon 7. A Recusant vsing conuenticles shall abiure the realm 16 By the statute of anÌ„ 35. El. it was ordained St. 35. El. 1 that if any person or persons aboue the age of sixtéene yeares which shall offend against the said Acte in persuading others to impugne the Quéenes Ecclesiasticall lawes shall not within thrée moneths after they shall be conuicted for their said offence conforme themselues to the obedience of the Lawes and Statutes of this Realme in comming to Church to heare diuine Seruice and in making such publike confession and submission as in the said Act is expressed béeing thereunto required by the Bishop of the Dioces or any Iustice of the Peace in the same countie where the said person shall happen to be or by the minister or Curat of the Parish In euery such case euery such offendor béeing thereunto warned or required by any such Iustice of
Peace of the same Countie where such offendors shall happen to be shall vpon his or their corporall Oath before the Iustices of the Peace in the open Quarter Sessions of the same Countie where such offendors shall then bée or at the Assises and Gaole Deliuerie of the same Countie before the Iustices of the same Assises and Gaole Deliuerie abiure the Realme of England and all other the Quéenes Dominions for euer vnlesse her Maiestie shall licence the parties to returne and thereupon shall depart out of the Realme at such Hauen or Port and within such time as shall in that behalfe be assigned and appointed by the said Iustices before whom such abiuration shal be made vnlesse the same offendor bée letted or staied by such lawfull and reasonable meanes or causes as by the common lawes of this Realme are permitted and allowed in cases of abiuration for felonie And in such cases of let or stay then within such reasonable and conuenient time after as the common law requireh in case of abiuration for felony as is aforesaid And the Iustices of peace before whom any such abiuration shall happen to be made as is aforesaid shall cause the same presently to be entered of Record before them and shall certifie the same to the Iustices of Assises and Gaole deliuerie of the said Countie at the next Assises or Gaole deliuerie to be holden in the same countie And if any such offendor which by the tenour and intent of this act is to be abiured as is aforesaid shall refuse to make such abiuration as is aforesaid or after such abiuration made shal not go to such hauen and within such time as is before appointed from thence depart out of this Realme according to this present act or after such his departure shall returne or come againe into any the Qu. Realmes or Dominions without her speciall licence in that behalfe first had and obtained Then in euery such case the person so offending shal be abiudged a felon and suffer as in case of felonie without benefit of Clergie If any person or persons that shal at any time offend against this act shall before he or they be so warned or required to make abiuration according to the tenour of this act repaire to some parish Church on some sonday or other festiuall day and then and there heare diuine seruice and at Seruice time before the Sermon or reading of the gospel make publike and open submission and declaration of his and their conformity to her Maiesties lawes and statutes as in this act is hereafter declared appointed That then the same offendor shall thereupon be cléerely discharged of and from all the penalties and punishments inflicted or imposed by this act for any of the offences aforesaid Prouided that no Popish Recusant or seme couert shal be compelled to abiure by vertue of this act Prouided also that euery person that shall abiure by force of this act or refuse to abiure being thereunto required as is aforesaid shal forfeit and loose to her Maiestie all his goods and cattels and all his lands tenements and hereditaments during his life only and no longer But his wife shal not loose her dower neither shall his blood bée corrupt S. Felonie by stat 9. 17 By a statute made an̄ 35. El. 2. St 35. El. 2. intituled an act for the restraining of Popish Recusants to some certaine place of abode it is ordained Popish Recusants shall abiure the Realme That Recusants not conforming themselues to the obedience of the lawes of this realme in comming to the Church to heare diuine seruice which shall not vpon the request of two Iustices of peace or Coroner of the same countie abiure the realm and depart for the same and not returne without the Queenes licence shal be adiudged felons and suffer and loose as in case of felonie without benefit of Clergie S. Fel. by St. 10. St. 3. E. 1. 10 18 By the stat of West 1. made an̄ 3. E. 1. it is enacted Abiuration of a Trespasser That he which committeth trespasse in parkes or ponds shall abiure if hee cannot find suretie no more to doe the like offence But that abiuration is not for felonie neither shal he forfeit his lands or goods Pleading not guiltie HAuing made mention of one of the pleas which a prisoner brought to the barre to be arraigned of Treason or Felonie doth plead viz. of the Confession of the offence and shewed how many sorts of Confessions of felonie the law doth take notice of by what meanes she doth procéed against the parties confessing I am now to treat of a second or one other plea that the prisoner vpon his arraignment doth plead in his own defence which is the plea of Not guiltie For when a prisoner by an appeale or an Inditement is charged with treason or felonie he may estrange himselfe from the offence if he will and ioyne the same issue which the defendant oft times doth in an action of trespasse some other personall actions viz. he may plead and take for his issue Not guiltie This plea of not guiltie is the most common and vsual plea Pleading not guilty the most common plea. that he which is arraigned of treason or felonie hath to plead vpon an inditement or an appeale and it is the plea whereunto euery person that is arraigned shall be enforced vnlesse it be in speciall cases viz. where he hath matter of Iustification or matter in Law to plead And this plea of Not guiltie doth tend to the fact that is to the felony and therefore it receiueth great fauour in Law 7. Ed. 4. 15. 4. H. 6. 15 4. H. 7. 5. 10. H. 4. 4. 9. H. 4. 2. for the Law doth allow this plea to him who is arraigned after he hath pleaded in abatement or barre of the appeale or inditement so that his barre doe not comprehend such matter as doth confesse the felonie as a Release of the appellant or the Kings pardō And that plea he shall haue also though one of his pleas were matter in law for though those pleas doe require diuers trials 29. Ed. 3. 91. 22. E. 4. 39. 27. As p. 3 14. Ed. 4. 7 yet in fauour of life hee shall haue both those pleas as well as he shall haue when he doth plead matter triable by the Bishop or by Record viz. and moreouer not guiltie Which pleas he shall haue notwithstanding he doe not conclude moreouer not guiltie that is to say Pleading not guilty after other pleas he shall come time enough to plead not guiltie after the matter triable by the Bishop or by Record is found against him And the manner of pleading in all those cases is to plead his plea and to pray allowance thereof and ouer to the felonie not guiltie Vpon the plea of not guilty no coūcel allowed 2 Vpon this plea of onely not guiltie the partie indited shall not haue coūcell
of the same shall for any the offences aforesaid committed within the realme of Scotland or for being accessory to the same forfeit any lands tenements or hereditaments either frée copie or customary hold neither shall the blood of such offendor be corrupted nor the wife lose her dower yet neuerthelesse the said offendors shall forf to his Ma. his heires and successors their goods chattels and credits whatsoeuer A like Act made in Scotland 11 And forasmuch as it is intended St. 4. Iac. 1. that an Act like vnto this shal be ordained in the realme of Scotland for the tryall and punishment of offendors being his Ma. natural born subiects of the same realm which shal commit any of the offences aforesaid within the realme of England or the dominions therof and shall after escape or returne backe into Scotland therefore be it enacted that vpon complaint made by any of his Ma. subiects of the realm of England to any of the Iust of Assise Commissioners of Oyer and Terminer or gaole deliuerie or Iust of the peace within the precincts of their seueral commissions respectiuely being naturall borne subiects within the realme of England concerning any such offences committed by any his subiects of the realme of Scotland within the realme of England in case where the offendor is returned into the realm of Scotland as aforesaid the said Iust or commissioner shal haue full power and authoritie Binding the complainant or witnesses to giue euidence in Scotland to bind ouer as well the said party complaining or prosecuting as any witnesses that he shall desire to produce so as their reasonable charges be first tendred vnto them by recognisance in a conuenient sum to his Maiesties vse to prosecute and giue in euidence within the realme of Scotland wherein if default shal be made and the same proued by certificat or otherwise before the Lord Treasorer Chauncellor and Barons of the Exchequer or any of them in the Exchequer chamber and a decrée there made that the same recognisance shall stand forfeited then the court of Exchequer shall thereupon procéed for the leuying of the debt of the said recognisance as if it were adiudged forfeited by the course of the common law St. 4. Iac. 1. 12 On the other part Scottish men repairing into England to giue euidence shal be frée frō arresting euery of his Maiesties subiects of the realme of Scotland either party grieued or witnesse which shall prosecute in any the cases aforesaid within the realme of England and therby shall haue occasion to make his repaire hither either voluntarie or by the like bond as is before expressed on the part of the realme of England shall haue and enioy priuiledge and immunitie from all maner of arrests concerning all offences or other causes as well capitall as others committed done or occasioned before he shall come into England as aforesaid except treason or wilfull murder so long as he or they shal be necessarily going comming or abiding within the said realme of England for the prosecution of the sayd offendors St. 4. Iac. 1. 13 Prouided neuerthelesse The offence shal be laid where it is done that euery such offence so committed as aforesaid shal be laid and alledged in the indictment or other declaration to be done and committed in the realm of Scotland according to the truth of the fact and not in the counties where the trial is limited to be had and made as aforesaid any thing in this Act formerly contained to the contrarie notwithstanding St. 4. Iac. 1. 14 Prouided He that is once tried shall not be eftsoones called into question that if any of his Maiesties subiects of the realme of Scotland shall bee proceeded with and tryed in the Realme of Scotland vpon the prosecution of any party grieued and vpon euidence in open court for any offence done or committed within the Realme of England that no such person shal be eftsoons called into questiō or procéeded with for the same fact within the realme of England but that it shal be lawfull for euery such persons to plead and alledge for himselfe vpon his arraignment that he was formerly lawfully acquited conuicted or attainted of the same offence within the realme of Scotland and that thereupon all further procéeding shal stay vntill the Court haue sufficiently informed themselues by certificat from the realme of Scotland or by any other good wayes and meanes of the truth of the said allegations which if they shall find true the said person shal be forthwith discharged of all further impeachment or procéeding St. 4. Iac. 1. 15 No naturall borne subiect of the Realme of England None shal be sent out of England to receiue his triall or the Dominions of the same shall for any High Treason Misprision or concealement of High treason Petit treason or any other whatsoeuer offence or cause committed within Scotland be sent out of England where he is apprehended to receiue his triall vntill such time as both Realmes shall be made one in lawes and gouernment St. 4. Iac. 1. 16 At all such tryals the Iurors then and there sworne The Iurors shall allow of or reiect the witnesses or the greater part of them who in respect of the great trust and charge which must now be layd vpon them are by vertue of this Act as before appeareth to be persons of better conditions and qualitie than the law required heretofore for Iurors in tryal of like offences shall haue in their power and election according to their consciences and discretion vpon their othes to receiue and admit onely such sufficient good and lawfull witnesses vpon their othes either for or against the partie arraigned as shall not appeare to them or the greater part of them to be vnfit and vnworthy to bée witnesses in that case either in regard of their hatred and malice or their fauour and affection either to the party prosecuting or to the partie arraigned or of their former euill life and conuersation Triall by Péeres 17 Prouided that if the offendor in any the cases aforesaid St. 4. Iac. 1. shall be a Péere of the Realme then his tryall therein shal be by his Péeres as is vsed in case of Felony or Treason and not otherwise 1 Triall of him which woundeth a man in one county whereof he dyeth in another S. Principall c. 16. 2 Triall of a felonie committed in one countie and accessorie thereunto in another S. Principall c. 17. 18. 3 Triall of Treason Misprision of Treason and Murders where the King will S. Indictments 10. 4 Indictments and trials of Treasons committed out of the Realme S. Indictments 11. ⧠Challenge 1 WHen the prisoner standing at the barre hath pleaded not guiltie and that the same issue is to bée tryed betwéene the King and him or the appellant and him the law doth allow him to challenge viz. calumniari to take exception vnto or to
conuicted or Clerke attainted and the day and place of his outlawrie conuiction and attainder and the day and place where and when the said felony or other offence whereupon the said person or persons shal be so indicted outlawed or Clerke attainted shall be made and done before the K. in his bench at West in the county of Midd. there to remaine of record for euer among other the K. records there within xl daies next after any such attainder conuiction or outlawrie shall be had made or procured if the terme be thē if not within xx dayes next after the beginning of the terme next following the said xl daies but also shall deliuer a transcript of euerie such indictment whereupon the said person persons shal fortune hereafter so to be conuicted or Clerkes attainted to the Ordinary to whom the body of the said person or persons shall be committed at the time that the sayd person or persons shall bee committed the sayd Ordinarie paying to euerie such Clerke as shall write the sayd Transcript for euerie copie of such indictment twelue pence for his paines vpon paine that euery Clerke of the Crowne Clerke of the peace and Clerke of Assise for the time being before whom such Indictment Attainder Outlary or Conuiction shal be so had made pronounced or remaine for the non-certifying of euery such record and deliuering of the copy of such Indictment to the said Ordinaries according to this statute to loose and forfeit forty shillings the one moity thereof to be to the king and the other moity to him that will sue for the same by action of Debt Bill Information or otherwise in any of the kings Courts of Record wherein no Wager of Law Essoine or Protection shal be allowed and the clerke of the Crowne in the kings Bench shall receiue the said certificats and transcripts at such time as they shall be tendered and profered vnto them by the said clerkes of the Crowne clerkes of the peace and clerkes of assise or by their deputy or deputies without taking any thing for the same vpon paine of forfeiture of forty shillings for euery such certificat by him refused Prouided alwaies that if there be any more persons contained and named in any such Indictment other then such person so attainted conuicted or outlawed that then such clerke of the crowne clerke of assise or clerke of peace with whom the record of such attainder outlary or conuiction shall remaine shall within the time before in this act limitted certifie the transcript of such indictment outlarie or conuiction onely concerning such person or persons so indicted and attainted outlawed or conuicted into the kings Bench at Westminster as is aforesaid which transcript so certified shall be had and taken as good effectuall and auaileable in the Law to all intents and purposes against such person and persons against whom it shall be so obiected alledged or pleaded as if the very record thereof whereupon he or they were so indicted were there present And be it enacted c. That the said clerke of the crowne in the kings Bench for the time being shall at all such times as the Iustices of Gaole Deliuerie or Iustices of Peace in euery County within this Realme of England doe write vnto him for the names of such persons which be so attainted by Outlarie or clerkes attainted or conuicted and certified into the said Bench shall incontinently without delay certifie the said names and surnames of the said persons with the causes why and wherefore they were conuict or attainted vnto the Iustices of Gaole deliuery or Iustices of Peace vpon paine and penalty to forfeit for euery name of such persons which shall be so written for and not certified by the said Clerk of the Crowne in the Kings Bench to the said Iustices fortie shillings Prouided that this Act nor any thing therein contained shall not extend to the Clerkes of the Crowne Clerkes of the Peace Clerkes of Gaole deliuerie neither to any of the Prenotaries within the Counties of Wales and Chester or within the Counties Palantine of Lancaster and Duresme or any of them to make any transcript of any such attainder conuiction or outlawrie of any person or persons conuicted attainted or outlawed before the Kings Iustices of his Counties of Wales nor Chester or Countie of Lancaster Duresme or any of them but that the same Records shall and may remaine and be in the custodie and kéeping of the sayd Clerkes and Prenotaries in such maner and wise as they are at this day this Act or any thing therein contained to the contrarie notwithstanding 43 Though the deliuering of him to the Ordinarie who hath the benefit of his Clergie and making of purgation bée taken away the Statute of 18. Eliz. 6. yet because both deliuering to the Ordinarie and making of purgation were vsed by the space of many generations in this realme and seuerall lawes statutes and some prouinciall councells were made and ordained touching the ordering direction and gouernance of those which as Clerks conuict or attaint were committed to the Ordinary and were to make purgation or not I will therefore briefly set downe the effect of some of those laws as antiquitie did retaine them He which had the priuiledge of his Clergie and was deliuered to the Ordinarie that did demaund him was not set at libertie to goe wandring vp and downe the Countrie but was safely and straitly kept in the Bishoppes prison In what sort a clerke deliuered to the Ordinarie was vsed hauing for foode vppon the Sonday bread ale and pease and vpon all the other daies courser bread and small drinke once in the day onely or in the Kings prison if the Bishop would haue it so vntill hée had purged himselfe of the crime wherewith hée was charged or otherwise had failed of his purgation and could not make it And if the Bishop would not admitte him to make his purgation then the King would direct his Writte to the Bishoppe commaunding him to suffer the same prisoner to make his purgation 15. H. 7. 19. or the King at his pleasure might pardon the prisoner or cause him to be set at libertie without making any purgation And when a Clerke was to make his purgation the King was to be made priuie thereunto who did direct his Writ to the Shirife of the countie where the offendor was prisoner commaunding him to make proclamation through his Countie that if any man could shew cause why such an offendor viz. A. B. prisoner in the Kings or Bishoppes prison should not make his purgation that then he should appeare such a day and in such a place and shew the same cause And in London the Preacher at Paules Crosse did likewise notifie that A. B. The manner of making purgation prisoner in such a prison was to make his purgation in such a Diocesse at such a place vpon such a day at which day assigned whether any crime or not to giue
and then be cut downe aliue and his intrals and priuie members be cut from his bodie and be burned in his sight and his head to be cut off and his body to bée diuided into foure parts 6. El. Dyer 230. and then to be disposed at the Kings pleasure Sauing that the iudgement of a man which is attainted for clipping the Kings money contrarie to the Statute of an̄ 25. Ed. 3. 2. shal be onely that he shalbée drawne and hanged though it was high treason by the common law so is expounded confirmed by that Statute But if any man shal be attainted of treson for cōmitting any of the offences made high treason by either of the Stat. of an̄ 1. M. 6. 1. 2. P. M. 11. 5. El. 11. 18. El. 1. 5. El. 1. 13. El. 2. 23 El. 1. 27. El. 2. 3. Iac. 4. he shal be adiudged a traitour S. Treasons and shall haue iudgement and suffer as in cases of high treason viz. he shal be drawne hanged and quartered as is before mentioned And though there be no mention made thereof in the iudgement yet he that is attainted of treason or felonie by verdict confession outlawrie or abiuration shall also forfeit his lands and goods his wife shall loose her dower and his blood shal be corrupted sauing in certaine cases 3 The iudgement of a woman which shal be attainred of high Treason or petite treason The iudgement of a woman traitour is 1. R. 3. 4 That she shall be ledde backe againe to the place from whence shée came and from thence be drawne vpon a hurdle to the place of execution and there be burned to death 8. El. Dy. 254. But if one man doe murder an other and the wife of him that was murdered be accessorie to her husbandes death the murderer and the wife both shall be hanged and she shall not be burned because she was but accessory 4 The iudgement of a man attainted of petit treason Iudgement of a man in petit treason is That hée shall be ledde backe againe to the place from whence hee came and from thence drawne vpon an hurdle to the place of execution and there to be hanged by the necke vntill he be dead Iudgement in felonie 5 The iudgement of a man attainted of murder burglarie robberie or other felonie is That he shall be ledde backe againe to the place from whence he came and from thence carried to the place of execution and there be hanged by the necke vntill he be dead And the like iudgement is giuen against a woman being attainted of anie of the same offences 6 The iudgement in misprision Misprision of treason is That the offendor shall forfeit to the King his goodes and his lands during his life and shall be perpetually imprisoned during his life Attainder of treason by the common lawe 7 In the foresaide iudgement giuen in high treason by the order of the common Lawe there can be no errour assigned St. 33. H. 8. 20. but it is as strong as if it had béene doone by Act of Parliament For the Statute made Anno 33. H. 8. hath ordained That if any person or persons shall be attainted of high treason by the course of the common Lawes or Statutes of this Realme that in euery such case such attainder by the common Lawe shall be of as good strength value force and effect as if it had beene done by authoritie of Parliament Iudgement of pennance 8 The iudgement of him who being indited of felonie will stand mute of malice or not answer directly or will refuse lawfull triall P. 4. E. 4. 11. being called Pennaunce or paine for t dure is That the prisoner shall be sent to the place from whence he came c. S. Standing mute c. 9. Iudgements in felony by Iustices of Nisi prius 9 As touching those who shall giue iudgement against the offendors aforesaide it is ordained by the Statute of Anno 14. H. 6. St. 14. H. 6. 1 That the Iustices before whome Inquisitions Enquests and Iuries shall be taken by the Kings Writte called Nisi prius according to the forme of the Statute thereof made haue power of all the cases of felonie and of treason to giue their iudgements as well where a man is acquitte of felonie or of treason as where he is thereof attainted at the day and place where the saide Inquisitions Enquests and Iuries shall be taken and then from thenceforth to awarde Execution to be made by force of the saide Iudgements 10 Because it oft times falleth out that an offendor is found guiltie of treason or felonie before some Iustices of Gaole Deliuerie for the which Iudgement of death should or might ensue and yet that person is reposed to prison without iudgement at that time giuen against him and then before the next Gaole deliuerie the same Iustices of Gaole deliuerie doe die or be remooued and others be assigned Iustices of Gaole deliuerie in their places by the Kings Commission which as many did conceiue it could not giue iudgement of that prisoner so repried by the former Iustices by warrant of the foresaide Statute of 14. H. 6. 1. or for some other cause For the remedy whereof by a Statute made Anno 1. Edw. 6. St. 1. E. 6. 7. it is enacted Iudgement by new Iustices That in all Cases where any person shall be found guiltie of any Treason Murder Manslaughter Rape or other felonie whatsoeuer for the which iudgement of death should or may ensue and shall be repried to prison without iudgement at that time giuen against him Those persons that at any time shall by the Kings Letters patents be assigned Iustices to deliuer the Gaole where anie such person found guiltie shall remaine shall haue full power to giue Iudgement of death against such person so found guiltie and repried as the same Iustices before whome such person was found guiltie might haue done if their Commission of Gaole Deliuerie had remained in full force 11 The Iudgement in petit Larceny Iudgement in petit larcenie is that the offendor shall be ledde backe againe to the Gaole Stockes or place from whence hee came and there to remaine a wéeke a moneth or c. and then in such a Citie Borough Market towne Village where the fact was done or other place assigned by the Iustices to be tied to a carte stripped from the girdle vpward and whipped vntill his bodie doe bléede once twice or thrice c. according to the Iustices discretion 12 If a woman be indicted and arraigned of felonie Stay of a womans execution being with childe it is no plea for her to say that shée is with childe but she must pleade to the felonie Not guiltie and if she be found guiltie then shee may alleadge that shée is with childe and then the Marshall or Sherife shall be commanded to returne an
be supported and maintained with land to vphold the countenāce charge of the owner thereof And therfore this Earldome being by the K. giuen to the Earle the heires males of his body begotten is an inheritance which may discend from one heire male to an other and then by the speciall words of the before rehearsed Statute of 26. H. 8. and 5. Ed. 6. it shall be forfeited to the King by the said heires attainder of high treason for it was in the same heire an hereditament and whereof he had an estate of inheritance And moreouer when the King at the first did giue to this Earle and the heires males of his body begotten the foresaide great title of honour though there was no condition expressed in the same grant yet there was a secret condition implied therein viz. that the said grauntée and the heires males of his body should be assistant and seruiceable to the King his heires and successors by his Councell in the time of peace and by his force and prowesse in the time of warre Therefore when the heire male of this Earle the first grauntée did take Councell to breake the peace of the King and leuied warres and imployed his force and power against him he first brake the same secret condition which was annexed to his ancestors graunt of the Earledome And so there is reason and cause whie his said title of honour depending vpon the same condition should therewith cease and determine and that the same should returne againe to the Crowne from whence it was deriued The forfeture of lands in fée simple 27 Besides the forfeitures aforesaide 30. H. 6. 5. euery person that is attainted of high treason petit treason or felonie shall also forfeit his lands in fée simple which he hath in his owne right in vse or possession sauing that the attainder of treason by force of the Statute of Anno 5. El. 1. St. 5. El. 1. ordained against the maintaining of the authoritie of the Bishops and Sea of Rome shall not extend to make any corruption of bloud the disheritance of any heire forfeiture of any dower nor to preiudice the right or title of any person other than the offendor or offendors during his or their naturall liues onely And sauing that the attainder of treason by force of the Statute of Anno 5. Eliz. 11. St. 5. El. 11 prouided against the clipping washing filing or rounding of money maketh no corruption of bloud in the heire or forfeiture of dower in the wife And sauing that the attainder of treason by force of the Statute established Anno 18. El. 1. against impairing diminishing falsifying skaling St. 18. El. 1 or lightning of money maketh no corruption of bloud nor the wife to loose her dower for he that is attainted of that treason shall suffer death and forfeit all his goods and chattels to the King and all his lands during his life onely And likewise sauing that the attainder of felonie by force of the Statute made Anno 1. Iac. 12. against coniuration witchcraft enchantment St. 1. Iac. 12 charme and sorcerie maketh no corruption of bloud nor the forfeiture of the heires or successors inheritance of any land nor of the wiues title of dower And further sauing that the attainder of felonie by force of the Statute prouided Anno 1. M. 12. against vnlawfull assemblies St. 1. M. 12 maketh no corruption of bloud And moreouer sauing that the attainder of felonie by force of the Statute ordained Anno 5. El. 14. against the forging of Euidences St. 5. El. 14. and writings maketh no corruption of bloud nor forfeiture of land or dower And furthermore sauing that the attainder of felonie by force of the Statute of Anno 31. Eliz. 4. St. 31. El. 4 prouided against the imbeseling of the Quéenes ordnance armour or artillery maketh the offendor to forfeit no lands tenements or hereditaments any longer than during his life St. 4. Iac. 1. S. Triall by the country 10. Co. li. 7. 34 S. Br. 56. no corruption of bloud nor the wife to forfeit her dower And the same lawe is if an Englishman doe commit any felonie in Scotland And if a man haue an annuitie to him and his heires The forfeture of an annuity and he doe commit high treason and is attainted thereof he shall forfeit to the King the same annuitie by force of the before recited Statute of Anno 26. H. 8. 13. for that the same annuitie is an inheritance 28 He that is attainted of high treason petit treason or felonie Forfeiting of a title to land shall also forfeit such lands whereof he hath neither possession reuersion or remainder but onely a title or right or cause of action As if a man be disseised of lands and then the disseisée committeth high treason Co. l. 3. 10 after an office found thereof the king may seise those lands as forfeited and escheated vnto him in respect of the same persons attainder of treason And if the disseisée be attainted of petit treason or felonie the Lord of the Fée of whom the same lands be holden may enter into the same lands as escheated vnto him in respect o◠the attainder of his lawfull tenant But the Lord cannot haue a writ or escheat or other action to recouer the same land because his tenant died not or was not seized thereof but his onely remedie is to enter 6. H. 7. 9 And if a man make a lease for the terme of life of his land and after committeth felony and then the tenant for the terme of life dieth the Lord may enter but cannot haue a writ of escheat 29 As he that is attainted of treason or felony shal forfeit his lands Forfeiting of euidence so shal the Lord to whom those lands be forfeited 49. H. 6. 14 haue the euidēce of the same lands as escheated or forfeited vnto him to maintaine his title in the same lands escheated and to prooue how his late tenant came by and held the same lands St. 9. H. 3. 29 30 Though it is ordained by the statute of Magna Charta That iustice shall not be sold deferred or denied to no man neither shall any man be condemned but by lawfull triall and that it be further established by the statute of Anno 5. Edw. 3. St. 5. E. 3. 9 That no man shal be attached nor foreiudged of life lands or goods against the forme of the great Charter and the Law of the Realme So that the Law of the Realme doth allow to euery man that is an offendor his answere and lawfull triall be his crime supposed to be neuer so great and the proofe thereof neuer so manifest But if a man that is arrested of Treason or Felony or being vehemently suspected to haue committed Treason or Felony is attempted to be arrested be so wilfull stubborne or rebellious Forfeiture without at-attainder that he will
things done in the Countie which belongeth to the Office of the Coroner And also an Appeale shal be entred of Robberie or Larcenie in the presence of the Coroner in the Court of any frée man which hath a franchise of Infang théefe Election of the Coroner Which Coroner shall be chosen into the same Office vpon the death or other auoidance of another by force of the Kings writ directed to the Sherife of that Countie where that Office is void by death or otherwise And the same election shall be in the full County Court by warrant of the Kings writ The tenor of which writ is as followeth 2 Iames by the grace of God c. The writ de Coronator◠eligendo To the Sherife of the Countie of Buckingham Salutation c. Because L. one of our Coroners of the Countie is deceased as we are informed we do commaund thée if it bee so that thou doest cause another Coroner to be chosen in thy full Countie by the assent of the same Countie in the place of the same L. according to the forme of the statute therefore made and prouided Who taking his othe according to the custom shall from thenceforth do and performe all things which doe appertaine to the Office of a Coroner in the Countie aforesayd And cause such a one to bee chosen which best can and will attend that Office How long a Coroner shal continue in his Office When a Coroner is chosen he shall continue in his Office vntill the King hath otherwise determined his pleasure 4. E. 4. 44 or that the King doth dye or that there be another King for he is not changeable euerie yeare as the Sherife and Escheator is And then the Sherife shall giue him an othe That he shall lawfully and without demaunding of any reward make his enquests and inrolments and do all things which do belong to the office of the Coroner 3 And because many meane men and of small discretion were diuers times chosen into the sayd Office of Coroners and for that it is expedient that discréet lawfull and sage men should meddle in the same Office therefore by the Statute o◠Westminst prim̄ made Anno 3. Edw. primi St. 3. E. 1. 10 it was ordained Who shal be Coroners by whom they shal be chosen That all Coroners of Shires shall bée chosen in the full Counties by the Commons of the same Counties of the most méet and worthie people which may bée found in the same Counties to execute the sayd Offices and of the most sage and wise Knights which doe best know can and will attend vnto the same Office and which will lawfully attache and present the Pleas of the Crowne And the same Statute was after rehearsed and confirmed by the Statute of Anno 28. Edw. 3. by which it was ordained St. 28. E. 3. 6 That Coroners of Counties shall bée chosen in the full Counties by the Commons of the same Counties of the most fit and lawfull persons of the same Counties Alwayes sauing to the King and other Lords which ought to make such Coroners their Franchises St. 14. E. 3. 8 But by the Statute of Anno 14. Edw. 3. no Coroner shall bée chosen A Coroner must haue sufficient land if hée haue not sufficient land in fee in the same Countie whereof hée may answer all manner of people And because this Statute is in the negatiue therefore the not satisfying of it is a sufficient cause to remooue a Coroner from his Office And hée is sayd to haue sufficient land if hée hath land in the Countie whereupon hée may liue according to his degrée to execute that Office And whereas the foresayd Statute of 28. Edw. 3. hath ordayned Fi. N. B. 164. That a Coroner shall bée chosen by the Commons of the sayd Counties that is intended by the fréeholders of the same Counties and by none other Whether Coroners ought to be knights 4 The foresayd Statute of Westminst prim̄ St. 3. E. 1. 10 committeth the Office of Coroners to Knights and none others and therefore in former ages it was a cause amongst others to discharge a Coroner of his Office that hée was no Knight But because those words were put into the Statute onely to the intent that the Coroner should haue sufficient within the same Countie for which cause if that be performed the intent of the Statute is obserued Causes to remoue a Coroner 5 And also the same statute doth ordaine That such shall bee chosen Coroners which do know can and will attend vnto the said Office And therefore if any be chosen which do not know cannot or will not attend vnto the same office they shal be remoued and discharged of that office by the K. writ Co. l. 5. 57. wherein the cause of his discharge shall be rehearsed either because he is imployed in other affaires of the K. or that he is sicke of some grieuous and long infirmitie or that he is lame or that he is not méet for that office viz. by force of some clause contained in the said statute of West 1. or that hee hath not sufficient lands within the same Countie or that he hath the palsey Fitz. N.B. 165. N. or that hee is dwelling in the vttermost part of the Shire or that he is chosen Sherife or verderer of a forrest But if any of those causes surmised be false whereby the Coroner is discharged of his Office by false suggestion then he may sue for a commission to be awarded out of the Chauncerie to enquire of the same suggestion And if it be found false and returned so into the Chauncerie then there shall be a Supersedeas awarded out of the Chauncerie to the Sherife that hee shall not remoue the sayd Coroner And if he be remoued that hée shall suffer him to enioy the sayd Office as he did before But it is sometimes vsed and most commendable for him that is chosen Coroner if he perceiue in himselfe any of the foresayd impediments Register fo 177. to purchase a writ out of the Chancerie to discharge him of the said Office 6 And because the sayd Coroner should doe iustice and right to all persons Where a Coroner may take a fee and where not without extortion or exaction St. 3. E. 1. 10 the foresayd statute of West 1. doth further ordaine That Sherifes shall haue counter-rolls with the Coroners as well of Appeales as of Enquests of Attachments and other things which do belong to his Office And no Coroner shall demaund or take any thing for the execution of his Office vpon paine of a grieuous forfeiture to the King Which said Statute was also confirmed by a statute made at Excester St. 14. E. 1. anno 14. Edw. 1. And by the statute made Anno 1. H. 8. it was enacted St. 1. H. 8. 7. That vpon request made to a Coroner to come and