Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	action_n	case_n	defendant_n	6,227	5	10.2324	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A59386	Rights of the kingdom, or, Customs of our ancestors touching the duty, power, election, or succession of our Kings and Parliaments, our true liberty, due allegiance, three estates, their legislative power, original, judicial, and executive, with the militia freely discussed through the British, Saxon, Norman laws and histories, with an occasional discourse of great changes yet expected in the world.	Sadler, John, 1615-1674.	1682 (1682)	Wing S279; ESTC R11835	136,787	326

in affirmance of the Common Law As appeareth not only by Bracton and Fleta but by Glanvil who did write before the Charter and by all the Saxon Laws which were the samplers to King Henry the first But how tender our Law hath always been in matters that concern Estate or Liberty may well appear by all the Executions grantable for Debt or Dammages The Merchant and the Staple Statutes are and were by Statute not by Common Law They seem as sweeping Rain and Storms that drive away the Body Goods and Lands in Fee at time of Recognition or accrewing since but none in Tail but during life of him that was the Cognisor Nor Copyhold or Goods or Leases for a Term of years but only what was in possession at the Execution done They are fore-known and therefore may be well avoided by all such as do not choose their own destructions And there is a tender care in Law not only of exact and punctual Recognitions and recording of them but in case of forfeit upon a Certiorari sued forth from the Chancery and not before return thereof a Capias shall be granted on the Statute Merchant for the Body only if it be a Laic and if Laic be not found and so returned into the Kings Bench or Common Pleas then on pauze of divers months the exigent may be awarded But in Statute Staple on the first Return of Certiorari may the Execution issue forth returnable into the Petty Bag of all it seems the worst in this But the Merchants Court Aequitatem summam desiderat although a kind of Peepoudres as Bracton and the Notes on Fortescue Upon a Recognizance a Capias doth not go before a Scire Facias be Returned into the Chancery Then a Capias or a Fieri Facias or an Elegit at the choyce of Cognisee as in other Common Judgements And of these the fieri facias is the mildest and the oldest by the Common Law It toucheth Goods and Chattels only such as are the Parties Own not lent by or Leased to another For although the Sheriff find them in the Parties Use and full Possession as he thinks yet may he be a Trespasser in taking such and so may run the hazard of an Action ere he be aware Nor did the old Levari facias seize the Land but Corn or that which grew thereon An Elegit hath its Name from his Election or his Choice that sues it out Who so concludes himself from other Executions This did come by Statute not by Common Law and toucheth Half the Fee and all the Goods but yet with Salvo to Contenement he must not lose his Oxen or his Cattle for his Plough For then he cannot live and keep his Family So Tender is our Law for all Estates and Livelihood Nay this Extent must not be made by Sheriffs who may not divide a right but by a Iury of Inquest And so must be Returned and preserved on Record as the first Capias with all mean Processe must or else it shall be nothing worth as may appear at large in the fourth and fifth parts of the great Reports Hoes and Fulwood with divers other Cases And the second of Westminster that giveth this Elegit doth require both Extent of Lands and prize of Goods to be Reasonable that is by Inquest of Twelve and so returned of Record As is cleared in the Commentator See also Littletons Parceners A Capias ad Satisfaciendum taketh the Body but it is by Statute only for it did not lye by Common Law in Debt or Dammages but only where the Original Action was for Forceable Trespass Vi Armis Which is Now crept into every Trespass But of this Sir William Herberts Case in the third part of Reports It may be forbidden again by Statute as it was first granted and that justly too for ought I know if other course be taken for the payment of Just and Reasonable Debts For the Capias as now managed is a great mischief and divers times to the utter ruine of the Debttors whole Family And yet but very little advantage to the Creditor except the Debtor escape and so the Sheriff come to pay the Debt or except he dye in Prison and the Plaintiff get an Elegit for the Debtors Goods at his death or half his Fee-Simple which he had at the time of Judgement or after it For an Action for Debt or Dammages doth but respect the Person and the Law attendeth not what Lands were enjoyed at the Original or before the Judgment But an Action brought against an Heir may aim at Land and so may charge it although he Aliene while the suit dependeth Neither shall I need to add that all these Executions must be sued out For this is required by Law except in the Kings Case within one year and a day after Judgment Yet they may be continued after and by a scire facias be renewd or repealed till the Judgment have Full Execution But this was also given by Statute and to this may the Debter plead although he cannot plead against an Execution Yet it may be suspended by a Writ of Errour and Recognizance according to the Statute of Iames and 3 Caroli And without a Writ of Error after judgement if the Defendant have matter to discharge him of the Execution still the Law is open for him And he may relieve himself by a Writ of Audita Querela And in case of Elegit as soon as the Debt is satisfied the Debtor may enter on his Lands again and if he conceive the Creditor satisfied by casual profits he may bring a scire facias upon which the Creditor may clear how much he hath received of the Debtor's Estate Unto this occasional discourse I shall only add that grand maxime of our Law that Executions ought to be more favourable than any other Process of Law whatever Of which the great Judge upon Littletons Releases and the second of Westminster in Edward the First And for Executions for the Kings Debt's restrained by the great Charter I have little to add to the Comment on the eight chapter of that Charter But the twelfth of Articuli super Chartas hath afforded a Writ commanding the Sheriff to accept of Sureties else an Attachment lieth against him or the party may bring an Action against the Shetiff that refuseth Sureties It is a maxime in Law that a mans House is his Castle so that the Sheriff cannot break it open for an Execution But upon a Writ of Seisin or Possession the Sheriff and other Officers upon suspicion of Treason or Felony may break open an House and so also in common Executions where the King is a party But in all such Cases first the Sheriff must request the door to be opened And the First of Westminster doth also require solemn demand of Beasts driven away into a Castle or Fort which is a kind of vetitum nomium which may be regained By Withernam Which Case I cite the rather because of

the Militia For in such a Case the Sheriff or Bayliff shall not only force his Entry by the Posse-Comitatus into such a Castle on the suit of a Subject but it may also come so far that the said Fort or Castle may be beaten down without recovery And although it be said it shall be done by the Kings Command yet it is well known and seen by experience that it is and always was by Order of the Courts of Justice and for this Semain's Case in the fifth part of Reports may be very well added to the Comments on the First of Westminster By which we see how much the very Forts and Castles or Militia must be subject to the Courts of Iustice Not the King only but in and by his Courts especially the Parliament that may Command Controul and Over-rule all other Courts How tender the Law is in Case of Estate Forfeit by Alienation I have touched before much is to be added Nay in the worst and lowest Estates by Tenure of Will of which somewhat also before for a Fine Reasonable c. as by Copy where Alienation and Wast against the Custom with other Cases in the fourth part of Reports may Forfeit to the Lord but he cannot Out his Tenant at pleasure especially him that sweareth Fealty but the said Tenant may sue his Lord or bring his Action of Trespasse For Offices Forfeited by Bargain and Sale or Brocage the Statutes are clear and just To which may be added the Comments of Littletons Estates Conditional as also for Forfeitures of Conditions It is expresly provided by Act of Parliament that no Sheriff or any other Person do take or seize any mans Goods much less may he take his Lands for Treason or Felony until he be duly convicted or Attainted by Trial Confession or Outlawry upon pain to Forfeit double to the party grieved nor is this only in Richard the third but in the first great Charter and before it also as was touched before Among the Saxons none were Outlawed but for Capital crimes we find it often in the Mirror and in such the Out-law might be killed by any that met him as might any man Attainted of Premunire that vast Chaos of confusion till Queen Elizabeths Time I do not find any outlawry below Felony till about the Barons Wars and then it came not below an Action of Forceable Trespass Vi Armis But in the Common Pleas it came to lie upon Account Debt Detinue Covenant and other petty Actions which the Mirrour would pronounce a most great abuse But in Edw the third there was some amends in providing that none should kill an Out-law but a Sheriff only with lawful Authority Yet in inferiour Cases Land Issues might be sequestred in the Kings Hands till Appearance or Reversal Only in Treason and Felony it forfeiteth as much as Attainder by Judgment But it may be Pleades and Reversed divers ways And a Petty Misnomer or a misdate is ground enough to Reverse it by a Writ of Errour And of this the Books are full But Nimin's case is a criticism in Chronology One of the Sheriffs Returns was dated on the 8th of Iuly in the second and third of Phil. and Mary but it was declared there could be no such day but in the 2d and 4th year which was only between the 6th and 25th of Iuly yet this was enough to Reverse an Attainder of Treason by Writ of Errour And in Favour of Life our Law admitteth Pleas to Out-Lawries in Capitals there where in other Cases must be brought a formal Writ of Error I cannot deny but even by the common Law upon Indictment for Treasom or Felony the Goods and Chattels might be Inventored but not seized as Forfeit till Conviction Nor are Lands and Tenements Forfeit till Attainder by Judge And in case of Appeal which related no time that is only Forfeit which is possessed at the Iudgment But upon Indictment dating the crime the Forfeiture will reach to the crime committed although there be Alienation before Judgement But no Forfeiture before Conviction no seizure before Indictment And the Book of Assizes telleth us the Judges took away a Commission from one that under the great Seal had power to arrest and seize on Goods before Indictment And how tender our Law was in this for Estate it may be seen at large in Bracton and Fleta with the old Writ not only in them but in the Register also relating to the great Charter forbidding all Disseisin till Conviction Yet it requireth the Sheriff per visum suum legalium hominem to Apprise and Inventory all the Offenders Chattels but with a double Salvo both for safe keeping them and for this Security was to be given by the Bailiffs or the Township and for maintaining the person in Prison with all his necessary Family Salvo tamen eidem Capto familiae suae necessariae quamdiu fuerit in prisona Rationabili Esto verio suo Which was not only Meat but Cloathing c. as hath often been adjudged in Edward the third Henry the fourth and other Times See the third part of Institutes cap. 103. It will not be long I hope before God stirreth up our Governours to Reform the crying sins of this Kingdom and not only Gaolers in our oppressing grinding Prisons But the Heathen Moralist hath also told us that Divine wheels are also grinding and will grind to powder though they be slow in motion as unwilling to revenge It is true that Prisons should be by Law both safe and strait Custodies nor should they admit such wandring abroad as some mens Mony doth procure But although Recoveries on Record much lesse Discents do not bind men in Prison or conclude them for want of claim yet upon motion Prisoners may and ought to be brought to the Court in Suits or Actions against them in case of Judgement or where ever else they ought to be in person present And for this I may only referre to the Commentator on the continual claim and the Cases by him cited How unwilling our Law was to empair our Liberty was touched before in the Capias on Debt And although some latter Statutes do out-go our Common Law for Imprisonments yet it is still received for a general maxim in Law that Prisons should be Custodiae not Poenae And where ever any man is unjustly in Prison the Law affordeth him more ways of getting out than his Enemies had to get him in He may have an Habeas Corpus and he may have a Writ de Homine Replegiando He may have an Action of False Imprisonment And may found an Action on the Great Charter Or on it may cause his unjust friend to be Endicted And the Writ de Odio Atia was again revived though by Statute once it was forbidden And for these with Bayl by Judges or Justices Replevins by Sheriffs c. We have the Judgement of all the Judges on Articuli Cleri and the Comments on the great

appear on Record the Party must produce the Iudge's Seal which may be required by Writ and cannot be denied no not in such Exceptions as the present Court do over-rule And for Enrolling Records the same Statute provideth That the King should not Erect Offices or Elect Officers for Enrollment Fot that by the Common Law this did belong to the Courts themselves and Judges therein As to the Sheriff also to Elect the County Clerk for Enrollments so that the King himself could not Elect him as we find in Mitton's Case So punctual is our Law in all concerning Rolls Enrollments and Records Which is also the Law of Nature and for many Reasons As for that of Appeal to which all Courts on Earth must willingly submit Nay Heaven it self admits Appeal from its justice to its mercy so it would to Justice also by some Writ of Error if it could commit an error But however that its Judgments may be cleared to be just it also proceedeth by Record For God hearkeneth as the Prophet saith when ought is good when they meet and speak well together a Record is made and bound up as a Jewel and when evil also some are Watchers to Record it For the Books shall be opened and we shall all be judged by the Record of Heaven and our own Consciences which are now foul Draughts but shall then be as fair and clear as those of Heaven it self But in Courts on Earth if there be no Records there is scarce devisable a legal Traverse or Tryal whether all be right or appeal if any thing be wrong For what Appeal can any man make from that which doth not appear but it is only a Transient Air or Breath which may as soon be denied as it was spoken How can Errors not appearing be corrected or amended by the Parliament it self or any other Court but onely that keepeth Records of all our thoughts as much as of our words or actions I may be tedious in shewing how our Law hath ever allowed Appeals in Ecclesiasticals They were agreed in the Assizes of Clarendon in opposition to Appeals Foreign which were first attempted by Anselm as some affirm but the Date is later And the Lord Dier of Appeals is now printed in the 4th part of Institutes The Judgment of Delegates on such Appeals is called definitive And yet not so but that it may be all redressed by a Court below the Parliament for which we have the Commission of Review granted upon the Delegates nay and upon High Commission it Self as by a Clause in that Commission appeareth To which may be added Killingworth's Case and divers others Of the Court Admiral much I might add from the Laws of Olerom in Richard the 1st and the Rolls of Henry the 3d. and Edward the 1st of which also the Commentator on Littleton's continual Claim and the 22 Chapter of the last part of Institutes How it lieth open to the common Law and to daily Prohibitions may be fully seen in its Complaints to King Iames which were as fully answered by all the Judges It is no Court of Record and so did all the Judges declare in 8 Iacobi yet it must keep Records enough to ground an Appeal which lieth from thence as from Courts Ecclesiastical to Iudges delegate of which the 8th of Elizabeth and other Statutes County Hundred Baron Courts and those of Antient Demesne with all Close Writs are not of Record The Sutors are the Iudges as was said before in Cases not their own And some have thought they did proceed much by fancie without legal Proof and Witnesses till the great Charter commanding all Bayliffs to put no man upon Oath without faithful Witnesses But we have found the Charter long before King Henry the 3d. And in that Phrase of Bayliffs which in France are Governours and Magistrates as in eldest Towns or Cities with us some great Lawyers include all Iudges as Fleta with the Mirror which also calleth Coroners the Peoples Bayliffs and the Sheriffs Returns are de Baliva These inferiour Courts being not of Record held petty Pleas of Debt or Damages under 40 s Antient Demesn had other prviledges but not of forceable Trespass Vi Armis finable to the Crown Yet these also must keep Copies or some such Records as may suffice for Appeals For they may be questioned and their Proceedings being denied shall be Tryed by Iury and upon their judgments lyeth a Writ of false judgment not a Writ of Error But in the Case of Redisseison the Sheriff is Iudg by the Statute of Merton and a Writ of Error lieth on his judgment But in Case of Debt Detinue Trespass or other action above 40 s. where in the County the Sheriff holdeth Plea by force of a Writ or Commission of Iustices the Sutors are still the Iudges and no Writ of Error but false judgment lieth on them Nor doth the Coroner's judgment of Out-Lawry in the County Court forfeit Goods till it be returned and appear on Record Nay the Coroners Certificate on a Certiorari did not disable the Out-Law although the King might seize his Goods till the Return of the Exigent Quinquies Exact But a Writ of Error is proper to Record and from Record and a Plea of Nul tiel Record is not tryable by Witness or Iury but onely by it self in a Court Record Such are the Sheriffs Turns and from them as from Counties Hundreds came the Court Leets which may be held by prescription against the Great Charter In which Leets the Steward is Iudg as in the Turns the Sheriff and Bishop was till the first Norman who by Parliament exempted the Clergy as was touched before But the Laws of Henry I. bring them again into the Seculars So also the 10th of Marlbridg and before it the Laws of Clarenden for all Barons or Tenant in Capite to attend the Great Court till Sentence of Life or Member which continued long in the Parliament also The Turn enquireth of Common Nusance and of Felonies de Furtis medletis whence our Chance or Chaud Medly hot Debate or sudden Fray see the Notes on Hengham but not of Murder or Death of Man which alone of all Felony belongeth to the Coroner He was a very antient Officer and ought to be made a Knight for which the Register and Rolls of Edward the 3d. where a Merchant chosen Coroner was removed quia communis Mercator He must have a good Estate and might receive nothing of Subjects fot doing his Office But by late Statute he hath a Mark on Indictment of Murder yet upon Death by misadventure he must take nothing See the Comments on the 1st of Westminster The Coroner's Court is of Record and he may take Appeals as well as Indictments upon view of the Body and must enter them but cannot proceed but deliver them up to the Iustices which is as antient as the Great Charter for the next Gaol-delivery or the King's Bench sometimes also he is locum

see and proceed in a judicial way Nor would he condemn or execute before he had not onely cleared his justice in himself or to his Angels but also to Abraham Lot and other Lookers on that he still might be justified both when he judgeth and is judged For he still did and will put his Actions on Man's Judgment This Process also towards Sodom is by many of our old Lawyers brought for the Pattern of our Laws in that especially that none may be condemned without a Legal Hearing And in this and divers other things do Bracton and Fleta borrow much from the Laws of Henry the First And be the Matter of Fact never so notorious yet may there be some Plea that no man can foresee or ought to forejudge before he heareth for all men may plead necessity or force upon themselves as well as Right and Law for any thing they do amiss And for this and other Reasons the Law doth suppose all men to be just or excusable till they be Legally heard and adjudged This Difference there is between the Judges and the Law-makers For these they say do suppose all men to be evil but the Judges should suppose all men to be good till they be proved to be evil The Charge and Accusation by the Law of Nature ought to be clear distinct and particular with time and place or other Circumstances else the Party accused cannot discharge himself Universalia non premunt omnino vel opprimunt Generals do not press at all or else they are apt to oppress The Witness and the Evidence must also be so clear that these must condemn rather than the Judge who sitteth as Counsel for the Party accused that so he be not oppressed by or against Law And besides the Judges in most Cases and in those also of Life in Scotland there is Counsel allowed by Law which may and ought to be heard in Particulars of Law or whatever may be justly disputable as Treason is by Statute So that of all Crimes by express Acts of Parliament it ought to have no Tryal but clear and plain according to the course and custom of the Common Law In such Cases therefore should the Iudges both in Law and Conscience sit and be instead of Counsel to the Party This they owe to every Subject though they had a special Obligation to the King Who to his own Rights and therefore to his Wrongs was an Infant in Law and so expresly declared in the Old Mirror besides other Books His Politick Capacity never but his Person ever in Nonage or supposed so in Law for it may be a Child or a Woman not able to know the Laws and therefore always had by Law a Legal Mouth assigned in Counsel of Law And so might any man else of old it seems for matter of Demurrers before Judgment or for framing of Legal Appeal by Writ of Error or some other way from any Judgment whatsoever It is also the Law of this Kingdom and of Nature that though there be no Councel assigned yet may any in a good manner move the Court to keep the Party from Injustice or the Court from Error as Stanford and the 3d. part of Institutes Cap. 2.63 and 101. And in such Cases it may be excused and not censured for rash zeal if some do or shall appear where or when it may be thought they be not called Neither can the whole Parliament of England I suppose make any Court to condemn without lawful Accusers or lawful Witnesses which by express Acts of Parliament is most especially provided in Case of Treason in King Edward the Sixth and Queen Maries Reign and Tryal of Treason was most expresly tyed to the course and custom of the Common Law Nay in full Parliament of Hen. the VIII it was declared that Attaint of Treason in or by Parliament was of no more force or strength than it was or ought to be by the Common Law or this as good and strong as that by Parliament Nor can the whole Parliament I think by the Law of Nature and right Reason make any Children Ideots or all others whatsoever to be so much as Accusers or Witnesses that I say not Indictors Tryers or Judges By express Acts of Parliament in Philip and Mary Edw. VI. Hen. VIII Hen. IV. Hen. I. for to him doth the Mirror and his Laws lead us as to a clear Crystal Fountain of our Law Process none should suffer for Treason or other Crime but by lawful Accusers lawful Witnesses before those that by Law might receive Indictments which with all Enquest are to be made by honest lawful able men Neighbours to the Fact And the Law of Nature with the Law of the Kingdom giveth any man leave to except against some for Accusers others for Witnesses and many for Tryers It being the known Law of the Land that one may challenge the Array either the principal Pannel or the Tales as well as the Polls and that the lowest Subject must be admitted if he require it to a perremtory challenge of divers it is now in most Capitals limited to 20. but in Treason it is as at Common Law it was to 3 Juries or 35 which may be challenged without any particular reason And the Law of Nature also seemeth to hear all Reasons and just exceptions against any whatsoever Nor shall I need to shew how sutable our Law is to the Law of Nature in providing that no Infant Ideot Alien Abjured Perjured or Attaint Outlaw'd or in Premunire be of any Enquest or Iury especially in Case of Life and Death And for Tryers besides all other exceptions This was thought enough that any of them had been Indictors which maketh Fortescu so much to Glory in our Law that putteth no man to Death but by the Oath of four and twenty men I should mispend my time to shew it to be the great Law of the Kingdom as well as of Nature that none may be Iudg and Parties in their own Cause which may ere-long be found perhaps to be the reason of the Three Estates and very much of our Common Law which is punctual in nothing more than in providing for a clear distinction of Accusers Witnesses Endictors Tryers and Iudges especially in Cases of Treason which upon divers motions of the Commons in Parliament have been so often Enacted and declared to be onely Tryable by the course and custom of the Common Law and no otherwise Nay in Parliament it self and Parliament Men there was and for ought I find always the like course observed For in Case of a Peer the Custom of the Kingdom is to proceed by a special Commission to one as Lord Steward and 12 others at least for a Iury of Tryors besides Accusers and Witnesses and a formal Indictment And all from Record to Record or all this is Illegal if it be onely by the House of Peers If Charge come from the House of Commons they are as Indictors being more than twelve sworn