place about the 8 of King Charles 1. but it was taken up and so ended This Trial was both in civil and criminal Pleas. In civil Pleas it was only in a Writt of right by Champions in criminal Pleas it was in an appeal of Death by the parties Battaile is also termed a Trial in A Trial termed Battail but by Writ a Writ of right of Advouson and Rationabilibus divisis and other Writs which concern the Right only as Fitz-herbert witnesseth and also in civil Causes the Defendant might sometimes wage Battle himself as Glanvil saith lib. 2. Cap 3. Trial by Oath is as heretofore Trials by Oath used by wager of Law upon Contracts without specialtie in an Action of Debt This trial about Edw. 3. and Edw. 2. time was used in Actions which began ex maleficio as in contracts ex stipulatione for in Trespasses it hath been used as divers authorities are in the Year-books But yet of late by reason mens Consciences were found to be large and foul whereby the Oath of a perjured person for his owne profit might much prejudice an honest Man the Trial by Oath is Trial by Oath is much prevented much prevented by turning the formerly used Action of Debt into an Action upon the Case wherein no Wager of Law lyeth The most common and proper Trial by Jury most frequent and in force Tryal of Suits in this Kingdom heretofore and now in force is by Jury that is by Oath and Verdict of twelve Freeholders both in Actions reals for Lands and Actions personals for Contracts and Trespasses In this Trial the Jury is not tied only to the Evidence of two men or of more Witnesses but may find Veritatem facti upon Circumstances or by Witnesses or sometimes especially for want of manifest or probable Evidence upon their own Knowledges And in Cases doubtfull concerning points of Law the Judges are to deliver Veritatem Juris If the Jury erre in their Verdict Attaint of a Jury erring an Attaint lyeth against them wherein the matter must be tried by 24 sufficient and substantial Jurors and that to be final If it be found by them that the former Jury hath given a false Verdict and were forsworn the party wronged is to be restored to his Right and the first Jury grievously punished by the Common-law which punishment is mitigated by the Statute of 23 H. 8. If upon any Action or Suite commenced Error of Judgement how reformed the Judges do erre in Judgement in any Court of Record or that the same be supposed A Writt of Error lyeth before other Judges superiors If in the Exchequer it lyeth in the Exchequer Chamber by the Statute of 31 E. 3 Cap. 12. If in the Common-pleas or Chancery in Latine proceedings it lyeth in the Kings-bench If in the Kings-bench heretofore it lay only in Parliament but now by the Statute of 27 Eliz. in the Exchequer-chamber before the Justices of the Common-pleas and Barons of the Exchequer CHAP. X. Of some things in the Ministers and Proceedings of our Laws conceived worthy to be reformed BEcause there are divers who do complain much against our Laws whereof I may be bold to say that many if not the most part do not rightly distinguish betwixt the Use and the Abuse of our Laws The Use and Abuse of our Laws not well distinguished by some or betwixt the Laws themselves and the ill Practice and Proceedings of some corrupt persons in the handling and trial of them and for that I have formerly made some Apologie for our Laws in answer of these accusations I hold it as fit in plain and sincere dealing to deliver what defects or other indirect proceedings I do conceive there are practised in the Trials of Suits tending to the delay overburdening and deluding of the Subjects in their Suits or to the defrauding of the Law it self The Authors intention in the withdrawing or declining of it from its natural pure and upright Course which I shall set down by way of supposition only as farr as I can conceive rather than of any peremptory position And in the same sence have I spoken all the rest allwayes submitting the same unto deeper Judgement of them that are learned in our Laws The Defects whereof I spake before Defects of 2 sorts that is in Trials Proceedings of the Law are of two sorts Defects in Trials and Defects in the Proceedings of our Law The first whereof as I conceive proceedeth specially from two causes want of understanding or indifferency in Jurors who trie want of Integritie in Judges who direct Jurors much in matter of Fact and have the whole power in deciding points of Law Touching the former whereby in Want of understanding in Jurors course the Verdict of Juries the Rights Inheritances whole Estates of most of the Subjects within the Kingdome are either tryed or subject to be tryed and yet in many places the Jurors for the most part are found to be simple of mean capacitie and of as small substance in Estate for either no better are impannelled or if better be they of best Abilitie and Judgement do absent themselves presuming that either by some excuse made for them or by some other means they may be dispenced withall or if this serve not the worst is but to pay some small Fine So usually the Service is imposed on them that are least able to discharge it Sometimes to the no small prejudice of mens Rights wherein it were to be wished that either by some farther Laws or at the least by better Execution of the former Laws Sheriffs Sheriffs to be compelled to impannell able men in Juries were compelled to impannell in Juries none but men able for Judgement and Substance And that such being impannell'd a more strict No dispensation with Jury men to be permitted Course were taken by the Justices for their better appearance and attendance without any kind of dispensation or connivence Care hath been taken to remedie this by the Statute made 16 and 17 Car. 2. 3. Also another abuse there is concerning the impannelling of Jurors worthy of reformation which is That the Jurors of the principal pannel seldome appearing full it is found an usual practice for the Plaintiff to request Free-holders his friends to Free-holders desired to stand in view that they may be retorned of the Jury stand ready within view of the Court to be put into the Tales therefore to avoid this mischief it were necessary to have a special Oath always administred unto the Jurors thus added That they are not requested by either partie or laboured by any for them It should seem that the like Oath were needfull to be given unto the Sheriff or some severe penaltie appointed against the impannelling of Jurors at the nomination of the parties or their freinds whereby many men have received great hurt and prejudice Also it The Sheriff and the Jury to have
Declaration in our Laws as the form is now used but contains both Causes in it besides there are other differences betwixt the forms used in the pleadings and declarations of both the Laws which would be too long and tedious to recite The next difference is in the Process 3. The third difference in the awarding of Process awarded in both the Laws Concerning the awarding of Process we find that with us in personal actions I mean in many of them joyning Statute Law and Common Law together In Actions personal more Process and delay permitted by our Law than by the Civil Law there are commonly awarded if the Suite be commenced in the Common Pleas summons attachment distress three capias with an exigent at the last whereby the King hath Title for the parties contumacy to his Goods and Chattels So that the plaintiffe hath now remedy by accident only and if the defendant appear and reverse the Outlary or get pardon and so answer c. which is a long time before this can be brought to pass and by this means this Suite may depend long yet the defendant never convented but at two or three years end the plaintiffe may be driven to declare anew as if he had but then begun his Suite But by the Civil Law as the Pandects shew us and Wesenbech affirmeth the Term to be now in the Empire post absentiam adversarii petat quis edictum primum mox alterum per intervallum non minus decem dierum tertium quibus propositis tunc peremptoriè impetret quod inde hoc nomen sumpsit quod perimeret disceptationem hoc est ultra non pateretur adversarium tergiversari Then if the defendant appear at the day given him by the Peremptory edict No judgment given in the absence of the plaintiffe at the Civil Law or if he do not the matter shall be discussed and judgment given for him whose part shall be found best But if the plaintiffe appear not then nothing shall be done but circumducendum erit edictum perpetuum And the peremptory edict may at the pleasure of the Judge be granted at the first by the same authority So that The interest of the plaintiffe lesse subject to prejudice in Actions personals by the Civil Law than by our Law hereby the Interest of the party who hath right is less subject to prejudice by that Law than by ours And this course of the Civil Law doth not admit so much delay as doth our Common Law For by our Law in such Cases where no Outlawry lieth in personal Actions there the Process of distress goeth out infinitely and then is there no end of the Suite as in per quae servicia quae juris clamat and such like wherein it is true that our Law severely punisheth the party which so much sheweth contumacy to the Law yet doth it no good or very little to the plaintiffe for his satisfaction But there is another difference that in Actions altogether real as Entry Escheate Right Dower and such like the remedy allowed by the Laws of England is far better for in them if at the day appointed upon the first summons the party make default and the quarto diepost be past then is there a graund cape to take his land into the hands of the King and the plaintiffe shall have it from the King by judgment if the defendant do not come to replevy it by oath that he was not summoned according to the Law or such like always remembred that Essoynes upon just occasion may herein breed much delay And herein is there much difference betwixt the Civil Law and our Law for in the Civil Law upon their peremptory edict notwithstanding the defendant A main difference betwixt the proceeding of our Law and the Civil Law in Actions real doth not appear the right shall be examined and thereupon judgment given but with us upon the default at the graund cape the plaintiffe shall have the land by judgment although the right be not examined As also upon the appearance if by oath he cannot save the first default likewise if he once appear and afterwards make default before judgment given there must be a petit cape awarded at which Writs return if he do not save the first default there shall be judgment given against him That all this was antient Law may be seen in Bractons Treatise de defaltis So that in personal actions the Civil In personal actions the Civil Law is more severe but in real more remiss than our Law of England Law hath a more severe and speedy course for recovery than the Common Law of England but in real actions it is somewhat more remiss or at the least ours is more severe For the last difference spoken of betwixt 4. The last difference is in the giving and Execution of judgment these Laws which is for the giving of judgment and Execution upon the same in real actions being in rem although the form and circumstance thereof may be divers yet in these real actions quoad substantiam effectum the difference is not very great for both Laws must make Execution of the same thing though perchance not in the same manner But for personal actions it is manifest by the course of antient and present times that for Debt ever since King Edward the third his time and damages and accompt ever since Henry the third his time in actions upon the Case ever since King Henry the 7th his time and in all actions Execution against the person after judgment by our Law in actions personal where Capias lieth in the Process before judgment there Capias ad satisfaciendum lieth after judgment to put the party in prison for Execution than the which although a more rigorous Law were by the 12 Tables whereby Corpus inter creditores secari licebat whereof Rivallius saith an example is not read in any History or other Book yet afterwards by their Lex Petilia it was decreed as Livy reporteth that no man should be for Debt nervo aut compedibus vinctus which notwithstanding was used sometimes by the violence of Vsurers and therefore sometimes renewed by the Laws Portia Sempronia Popilia and other whereby terga civium were made tanquam sacrosancta Also by the Lex Julia if the Debtor would leave his goods his Body was free as appears by the same reported in the Code But this Law Hottoman thinketh not to extend unto Banquerupts or such as are non solvendo by their own default But by the Anthentiques and Latine Law if The Civil Law more mild of latter time than ours for Execution against ones person in debt c. a man were poor by some external misfortune and not by his own means if he would ejurare copiam bonam he need not leave his goods for his Creditors nor subject himself to Prison which is so mild a Law towards Debtors that it hath no proportion
called by that name imitated the ancient Druides of this Land but yet gone farther than they who following the Pythagoreans did not commit their Learning to Writing or rather the Lacedemonians who by the institution of Licurgus held all Law not written who as Plutarch reporteth exiguos illos pecuniarios contractus quique propter usum vitae subinde immutantur praestare censebat scriptis legibus non comprehendi neque immobilibus consuetudinibus illigari sed permittendum ut pro ratione temporis augerentur diminuerentúrve secundum probe institutorum hominum arbitrium yet our Law doth not give so much libertie to the Judges But yet not onely Politicians and Moralists but also the Civil lawyers do permit that in a Common-wealth the constitutions of Princes are to be interpreted according to the Judgment of Magistrates and Judges sometimes mitigated and according to incident diversities interpreted which cannot be alwaies committed to writing for it cannot be alwaies the same and this were rather to be wished than to be hoped for in our Laws and I would that he which finds this fault could finde a remedie and prescribe the reformation Controversies and ambiguities are so frequent not onely in this but in all sciences arts and professions that every day new particulars New particulars breed new questions are subjects of new questions especially in the Laws which spring out of the intricate forms of new Conveyances and such like invention of men And so long as man seeth but in aenigmate and per speculum as the Divines say of the Knowledg How uncertain man's knowledg is in Divine things and in other sciences of God and so long as by the rules of the perspectives that which is seen by reflection or refraction is never seen in or according to his true place so long and in such sort we must look for controversies and ambiguities in all professions which are indeed not so much or so sensibly felt in any art as in the Law because none other goeth so near mens Nothing goeth so near to mens thoughts as their loss of estate inward thoughts and conceipts as such doe whereon their estates and possessions are adventured therefore losers may have leave to speak but not untruth CHAP. V. Of the Books written of the Laws of England whereby the Knowledge thereof is chiefly obtained THE chief Knowledg by study Three sorts of writers of our Law of our Law doth consist in the Works of them which have written of the Law and they are of 3 sorts 1. The first whereof setteth down the Art and Rules of the same in a certain method such as is Glanvill Bracton and Britton who are ancient Authors wrote in Latine and did indeavour to reduce those Rules according to the titles of the Civil-lawes but most especially Bracton though these are ancient Authors yet they are now cited rather for ornament than for authoritie 2. Others have written of the Writers of the Nature and Precedents of Writs Precedents Rules and Natures of Writs which do lay the ground of every Action to procure judgment and execution thereon as the books of Entries with the Register and the two books grounded thereupon In this Fitz-herbert hath deserved specially well 3. A third sort of Writers of our Reporters of former Judged Cases Law there are which be those who write the particular and summary Cases that have received Determination and Sentence in the King 's jucicial Courts shewing how the Rules of Law were applied to those Cases or rather how these Cases were reduced to the Rules of Law both by the Counsellors that argued the same on both sides with probable Reasons confirming their opinions with authorities of former Judgments and also the Judges concluding their Sentences upon the same by the common square of Reason and Rules they have learned of the foregoing learned Judges Of this It is not known who compiled the first Annales and ancient Year-books latter sort of Writers called Reporters who they were that compiled the first and most antient Books of Reports is not certain for we have not their Names but since the time of King Edward the third there are some Works and Reports written of every King's Raign for before his time we have not any Volume at large now left and if any such were they are consumed through the injury Divers antient Year-books wanting of times or neglect or malice of such in whose custody they remained yet it should seem that in the raign of King Henry the 8. there were some more ancient Books or Reports of the Law Cases extant reported in the times of King Henry the 3. and Edward the first and Edw. the second for that Fitz-herbert Some Cases abridged of the Books now not extant who did reduce all the Cases of the Reports that were extant in his time under certain general Heads and Brook likewise who a little after him did set forth another Abridgement of the Law and Cases extant in his time adding more general Heads than Fitz-herbert had done yet both of them under divers of their titles abridge the pith of sundry Cases argued and most of them adjudged in those Kings raigns Howbeit the Volumes at large are not †We have now E. 2. and R. 2. What Year-books are yet extant now extant But of the Cases which were adjudged in the time of King Edw. the third there are four Volumes now extant Of King Richard the second his time there are not any Volumes but many Cases abridged as aforesaid Of the times of King Henry Long quinto the fourth and King Henry the fifth there is no Volume Of King Henry the sixt there are two great Volumes Of King Edw. the fourth one Volume One Volume of King Henry the seventh in the later end of whose raign the Reports do discontinue until the twelfth year of King Henry the eight And then they were recontinued untill the nineteenth of Henry the eight from thence again discontinued till the twenty sixt of Henry the eight at which time they were held on for two years that is twenty sixt and twenty seventh of Henry the eight which are the last Reports which we have save such as since have been revived by three or four worthy men whose private and voluntary diligence have for the publick good continued sundry Reports such as Mr. Kellaway who reported privately certain Cases in King Henry the seventh his time This Book and labour is now come to light by Mr. Justice Crooke his Care and Charge Also Mr. Brooke who did report diverse memorable Cases which happened when he was making of his Abridgment in the time of King Henry the eighth King Edward the sixth and Queene Mary reported them under apt titles in his Abridgement Then my Lord Dyer who when Of the late Reports of judged Cases he was a Student a Practicioner and a Judge observed many famous Cases which were published