any falsity to me in deed or in word whereof he is Appealed or Impeached in Judgement if he deny it it is lawfull for me to prove the Action either by Jury or by my Body or by the Body of one Witnesse and if it be of the false Judgement of many then the proofe belongeth only against the pronouncer of the Judgement for the whole Court And so it is in case where you deny your Gift Baylement Pledges Deed Seale or other manner of Contract or the words which you spake or the deed which you did Neverthelesse you are to distinguish of the qualities of the Causes for in Appeales of Felony none can Combate for another as is said but in Veniall Causes although one be killed in the Battaile he committeth no Murder but onely those vanquished or their Clyents for them shall tender to the Combitants vanquishing forty shillings in name of Cowardize besides the Judgement upon the principall And in case where Battaile could not be joyned not there was no Witnesse the people in personall Actions used to helpe themselves by a Miracle of God in this manner If the Defendant were a woman or of such a condition that she could not joyne Battaile and the Plaintiffe had no Witnesse to prove his Action then the Defendant might cleare her credit by the Miracle of God or leave the proofe to the Plaintiffe and in the contrary case the proofe onely belonged to the Plaintiffe At the day of the proofe or of the purgation after the Benediction and the Malediction of the Priest cloathed with the holy Garments of the Masse and after the parties Oathes one used to keepe the party and he was to carry in his hand a peece of burning Iron if he were a Free-man or put his hand or his foote in boyling water if he were not Free or to doe some such thing which were impossible to doe without a Miracle from God and if he was not hurt or blemished the adverse Party remained as attainted but Christianity suffered not that they be by such wicked Arts cleared if one may otherwise avoid it Battaile is not to be joyned betwixt all people for it is not to be joyned but betwixt equalls nor yet betwixt all equalls for not betwixt the Father and the Son nor betwixt Women or Infants or Clerkes or Parents or Assignes Equalls are not a man and a woman nor a Holy man and an Excommunicate Petson nor a Christian and an Infidell nor a whole man and a sicke nor a man of good memory and a Mad-man nor a wire man and a foole not a sound man nor a man mayhemed nor a man and a childe nor a Clerke and a Lay Person nor a man professed in Religion and a Secular man not a true-man and a Felon nor a man within the Kings Alleagiance and out of his Alleagiance nor the Lord and Tenant The smallnesse also of the thing in demand doth hinder the Battaile and many other Causâ—s as it appeareth in the Law of Fees neverthelesse if those who are not receiveable to joyn in Battaise will Combate if the Bartaile be joyned betwixt them it is no wrong to them who desire it And if any one offereth himselfe to Combate with one armed who before was not brought by the Parties and the adverse Party de nand Judgement for the default of his adversary as if he rendereth a Witnesse who offereth himselfe to decide the difference and now he offereth to furnish the Battaile by another who was not seene nor heard in Court and who cannot and ought not to try the Battaile in such case it belongeth to try the Exception as peremptory to the Action if the Parties will not agree unto it Chap. 3. Sect. 24. Iuramentum Duelli AFter the Battaile joyned adjourned and presented the parties duly armed First the defendant is to swear in this manner Heare this you man who â—hold by the hand whom you call N. by name that I did never kill such a one your Father or said any such thing such a day c. So God me helpe and the holy Evangalist Afterwards the plaintise ought to sweare in this manner Hâ—are you this man who I hold by the hand That you who are called by your Right name N. are perjured because that you such a day c. felloniously killed c. Or said such words or did such athing c. Cap. 3. Sect 25. The Ordring of the Combatants AFter their Oathes be taken it behoveth to looke that the parties be Armed according to the ancient usage of what condition soever they be Knighte or others The Auncient usage to bee Armed in all Cases of Combate is this The Bodies are armed without Seme cotu et baliea And the heades and the necks and the hands uncovered the backs thyes Leggs and Feet armed which Iron And each to have a shield of Iron and a staffe â—orned of one Assise The Plaintise commeth into the List from the East and the Defendant from the West on the place they sweare in this manner That they have not about them any Charme not deceit not have cat not drunke any thing whereby the truth might be disturbed lessined and the Law of the Divill enhaunced So God them helpe and the holy Evangelists Then Proela nation is made that none disturbe the Battaile and Oyes is made that there be no noise upon a Corporall punishment And then they meet together and if the defendant defend himselfe till after the Sun setting and demand Judgment of the default of the Plaintife In that case Judgement shall be given for the defendant And if any fraud bee found with one of the parties as to be privily armed or there â—s ound or other thing unallowable and the fraud be adjudged that they be presently severed and Judgment is present ly to be given and the vanquished is to acknowledge his offence in the hearing of the people or speake the horrible word of Cravent in the name of Cowardize or his left Foote to be disarmed and uncovered in signe of the Cowardize and that Iudgment be presently given against the Principall Cap. 3. Sect. 26. AS to personall Trespas in the Case this exception lyeth Sir Hee wrongfully impleadeth me of this Trespas for the same man impleaded such or such before such Iudges in such a place of the same Trespas and made me no partie to the suit and for asmuch as that hee then recovered by Iudgment his full damages against them named in his plaint And this suit is not brought against mee but to recover damages and the Law is That a man shall not recover double damages I demand Judgment of his Action As to the Allienations and Occupations of Franchises Reals Appendants to the Crowne a man shall not vouch therein to warranty not demand the View not prescribe in them for of such dignities none can helpe himselfe by a plea of long prescription but such avowries of long Continuance are accounted rather prescriptions
after default untill due satisfaction was made so as the defaults were more hurtfull to persons in contempt then profitable Some Actions are personalls and not mixt in the introduction as of Neistie of Acccompt of leading away distresses and some actions there are that although they savour of the personalty and realty yet they hold not the rules of those actions As of Recognitions of Assizes in which if the Tenants make defaults for that there is no distresse nor seisure of the Land or other thing in the Kings hands but the Recognitions are to be taken ex officio and the Judgements are to be pronounced according to the Verdict of the Jurours in respect of such defaults CHAP. IIII. SECT 6. Of Personall Action IN personall Actions venialls where the Defendants are not Freeholders the defendants used to be punished after this manner First Processe was to bee awarded to arrest their bodies and those who were not found were put in exigent in what Court so ever the Plea was and were at three Courts solemnly demanded and proclaimed and if they appeared not at the fourth Court then were they banished the Lords jurisdiction or the Bayliffes of the Court for a time or for ever according to the quantity of the Trelpasses CHAP. IIII. SECT 7. Defaults in reall Actions THe defaults in reall Actions are punishable in this manner At the first default the plaintife is there seized to the value of the demand into the hand of the Lord of the Court and the Tenants are sommonable to heare their Iudgments of defaults Or after appearance the seisure is to be adjudged to the Plaintifes to hould in the name of a distresse untill by lawfull judgment hee be ousted thereof And if any one appeare in Court first he is to plenise the thing in demand and presently to answer the default In which case hee may deny the Summons because hee was never Summoned or not reasonably Summoned and thereof he may wage his Lawyer against the Testimoney of the Summoners although they be present and if he wage his Lawyer he is presently to plead to the Action or to the plaintife CHAP. IIII. SECT 8. Of Actions Miâ—t THe defaults of mixt actions are punishable in this manner The defendants are distrainable by all their moveable Goods and Lands saving that they are not put out of that possession from Court to Court till they apeare and Answere and the issues come to the profits of the Lords of the Courts CHAP. IIII. SECT 9. Of Pledge and Mainpernor PLedges and Mainpernors are of one signification notwithstanding that they differ in names But Pledges are these who baile other things then the Body of Men as in Reall Actions and Mixt Mainpernors are in personall Actions only those wâ—â— bayle the Body of a Man safe Pledges are those who are sufficient to answere the demand or the value and are true men and Freeholders to whom the Plaintife is and in whose Court the Plea is brought and if any one bring the Body or his Fees by default he is sufficient punished though hee bee not amerced but then the Offendor is first amerceable when he is brought to judgement and cannot excuse his wrong or save his default And as none who commeth before Summons is amecreable so no Plaintife is amerceable or his pledges de prosequendo for Nonsuit where the Tenant appeareth according to the warrant of the Summons or other wise maketh satisfaction for the same As in Case where the King Commands the Sheriffe that hee command such a one to appeare or to doe and if he do not and the Plaintifes put in sureties to prosecute his suit then that he summon or attach the defendant c. In which case if the Sheriffe had not warned the Tenant to appeare or to do according to the points of the Warrant if he take surety of the Plaintife to prosecute hee doth him wrong But the Plaintifes and their pledges are to bee amerced when the defendants offer themselves in judgment against them and they make defaults by Nonsuit And also those Sheriffs do wrong who forbeare to execute the Kings Commands in as much as the Plaintifes have found sureties to prosecute their Plaints when no mention is made in the Writts to put in sureties CHAP. IIII. SECT 10. Defaults after summons AS there is a default of persons in the like manner there are of things As of services issuing out of Lands where the Lands are in service and wherenot If Rent Suit or other service bee behinde to the Lord of the Fee The Tenant is not distraineable for the same by his moveable goods but it behoveth to sommon the Tenants to save their defaults or to make satisfaction or to answere wherefore those services due out of their possessions are behinde to the Lords and if they appeare not at the Sommon by the a ward of the suitors their Lands are to be seised into the Lords hands til they justify themselves by pledges And if they be againe summoned to heare the Iudgments for their defaults Although they come not at the second Summon they are not to bee amerced in as much as they came they may render the Land or alledge a priviledge or say something why they ought not to obey the Summons And if the Lord have not a proper Court nor suitors or hath not power to do Iustice to his Tenants in manner as aforesaid Then the same may bee done in the County or Hundred or elce in the Kings Courts Or at first by a Writ of Customes and Services and other Remediall Writts And if any one hath not any thing to acquit himself the Lord is not to loose his Right although hee be delayed thereof but the Lord may seize his Land as before is said and the Tenant is to recover his damages where he can and it shall be accounted his follie to enter or remaine in another Fee without the consent of the Lord. And if any one oust him of his Land and of his Tenement enforceth another person to hould of him and maketh himselfe mesne betwixt the Lord and the Tenant in prejudice of the Lord in such a case the law is used to hould the course after said CAP. IIII. SECT 11. Of champion IF any one do or say to his Lord of whom he houldeth any thing which turneth to the hurt of his body or to his dissinherison or to his great dishonour First by the Award of his Court or of some other such a one is sommonable if he be his Tenant and afterwards if he make default he is destrainable by his Land by the Lord till he appeare and if hee appeare and cannot discharge himselfe by his wager of Law by 12. men more or lesse according to the Award of the Court hee is to bee disinherited of the Tenancie which hee houldeth of the Lord in such a manner by the Judgment of the Suitors and so it behoveth that the Tenants leave their Lands and
points aforesaid besides the exceptions which are to the person of the Pleader for no man can be a Pleader who cannot be a Plaintiffe or Actor CHAP. II. SECT 6. Of Attachments PErsonall Actions have their Introductions by Attachments of the body reall by Summons and mixt Actions first by Summons and afterwards by Attachments The Law requireth that offenders in case of death have not such mittigation or favour that they be brought or summoned or distreined to appeare in Judgement by taking of their Cattell if the offenders be knowne and notorious and the Plaintiffe pursue them to soone as he may And if any one fly for such offence then according to the Statute of Winchester he was to be followed with Hue and Cry with Horne and Voyce so that all those of one Towne who can are to follow the Felon to the next Towne and if any such Felon be attaint and convict of the felony let him be killed if he cannot be otherwise apprehended But it is otherwise in felonies not knowne for it is not lawfull to kill the offender without his Answer if he may be taken alive And if any one would complaine to have revenge or to drive the offender to the salvation of his Soule let him goe to the Coroner of the place where the offence was done and set forth his complaint there as he will prove it and the Coroner is to cause the same to be distinctly enrolled and if he cause him to record it as murder being corrupted to destroy his Neighbour by his plaint so that he have Judgement the like is to be done to him if he prove not his plaint At the next Court after the Appeale is enrolled it belongeth to such Plaintiffes to recite their Appeales and to finde Sureties to pursue them or to remaine in Prison till they have found Baile and to the Maine-prisors such Plaints are to be delivered by Coroners body for body that they shall pursue their Appelees and to cause them to appeare in Court to receive Justice when they shall be demanded if they doe not prove their Appeales The Personall offences are these Imprisonment Mayhem Wounding Battery Perjury Usury Rescusses Forestallings Breaking of Parkes Resistance of framing lawfull Judgements Executions of false Judgements and all wrongfull offences Carrying away of Treasure trove of Wrecks Waife Estrayes The Attachments of mortall offenders are by their bodies without Sureties and the Attachments of veniall Personall offenders are also by their bodies but yet they are baileable Reall offences are those upon which are grounded Writs of right of Cosinage of Dower of right of Advowson of Entre of Escheate Writs of Quo jure of Formedon and of all Writs feodalls Mixt offerices are those upon which these Writs are framed viz. of Customes and Services of Villinage of Covenant of Homage of rendring Distresses of Mesne and other Acquittances of Escheates and the like and by reason of the mixture of their Introductions they are called Mixt. CHAP. II. SECT 7. Appeales and to whom Appeale is given THe Action of Appeale is not given to all alike but every one is allowed to have his Action of Trespasse to whom any Trespasse is done except such as cannot have any Action at all Every one may have an appeale of Burning to whom the damage is done and the property of the thing burnt doth belong Parents Kinred and Allies used to be admitted to bring Appeales of Murder but the Appeale of the Wife of the killing of her Husband is to be received before all other and yet not of all his Wives but of her onely who lyeth betwixt his Armes which is as much as to say in whose seisage he was murdered for if he had many Wives and all were alive at the time of his murdet neverthelesse she only is admitted to bring the Appeales of all the rest whom he last tooke to be his Wife although in right she be not his Wife and the reason thereof is because it belongeth not to the Temporall Court to try which was his Wife of right and which in Fact and the Appeales of all other are to be suspended the pendant the same Appeale brought After the Appeale of the Wife is the Appeale of the Sonne lawfully begotten of the murder of his Father to be received before all other it is said lawfully begotten because a Bastard is not to be accounted amongst Sons for the Common Law only taketh him to be a Sonne whom the Marriage proveth to be so After the Appeale of the eldest Son the Appeale of the next of blood is used to be received and so from one degree to another in the right Line of Cosinage and if the blood faile in that Line then they of the Collaterall Line are admitted to bring the Appeale or the Kinted where the blood faileth according to the degrees of Consanguinity and Affinity and especially in the Line of the Fathers side but the Appeales of Murder were restrained by King Henry the 1. to the foure next degrees of blood And if any one within the age of 21. yeares doe bring an Appeale the Defendant is not bound to answer so high an Action untill he hath passed that age and therefore such Appeales are to be suspended till both the Parties be of full age if exception in the case be taken to the Nonage Men and Women Clerkes and Lay-men Infants and others of what condition soever they be may bring Appeales except those who are not suffered to bring any Actions and although it be that many doe bring Appeales yet one neverthelesse is admitted to continue and pendant that all the others are to be suspended And in all Cases the Appeales against the Accessories are to be suspended pendant the Appeale against the Principall be it one or many CHAP. II. SECT 8. Of Processe of Exigent in Appeales AT the first County the Coroner is to doe no more but to enter the Pledges who properly are Main-prisors and to Command that such take the Appeales and seize all their Possessions and their goods into the Kings hands as before is said and if they be taken that they be kept till due deliverance be of them and if they be not to be found and the Plaintiffe come at another County and recite his Appeale or Appeales then are such Appelees demandable only by their names and by such names as they are best knowne by that they appeare to Answer the Kings Peace for if any one be Appealed as Son of the Father and is knowne by another Sir-name the Appeale is insufficient and by consequence abatable at the perill of the Plaintiffe and at the third County they are to be demanded in like manner as before at which County Court if the Appelees appeare not not are taken into Main-prise to appear at the next Court Judgement is to be given against them for their contempt by the Coroners and those who doe appeare before Judgement of the Coroner are presently to be delivered
grace Some became Free by the Pope as it is of those villains who by Bishops are ordained into Orders of Deacon and above but norwithstanding the same a man shall not lose his right thereby who will sue for them On the other part villains become Freemen if their Lords grant or give unto them any free estate of Inheritance to discend to their Heires or if the Lord take their Homage for their land or if the Lord eject them out of their Fees and give them sustinance or if he put them in a common Prison if it be not for crime A woman after she is put in possession by her Lord is never againe to be challenged as a Neife notwithstanding she be sold And if the Lord suffer his Villaine to Answer in Judgement without him in a personall Action or to be a Jurour amongst Free-men as a Free-man knowingly and without the Lords claime the Villaine hath this Plea to the Villinage if he returne not of his owne accord Also a Villaine becomes free through the Lords default in a Writ of Native Habendo as by his Non-suit in the Writ Also by proofe of a free Stocke or to have been borne of free Parents Also by the Lords grant in Court and also by prescription also for default of proofe and also by the Lords negligence as by the remaining of the Villaine within a City or upon the Kings Demesnes for a whole yeare Or if wittingly he suffer his Villaine to be a Suiter in another Court or to be sworne in Assize or elsewhere amongst Free-men if a Villaine depart from his Lord claiming free estate so that he cannot seise him within the Mannour within the yeare or out of his Fee nor after his Writ of Nativo Habend brought it belongeth to the Lord that he bring againe that Action which is ViceCountiel and pleadable in the County by Summons and Distresses of his Lands for the Law requireth that he doe right and use not force The Parties being brought to Judgement in the County Court and the Action being declared in the Defendant by way of exception may plead that he is Franck and because that a free estate is of a higher nature then Villinage therefore because the Sheriffe hath not power to try so high a Plea by the Writ of Nativo Hebendo those Writs and such Pleas are suspendable till the comming of the Justices in Eyre into those parts but if the King Command not to the contrary those Pleas are not adjournable but from one County Court to another Note that all Villaines are not slaves for slaves are said Regardant as before they can purchase nothing but to the Lords use they know not in the Evening what serâ—ice they shall doe in the Morning nor any certainty of their services the Lords may fetter imprison beat or chasâ—â—se those at their pleasure saving to them their â—ives and members these may nor fly or run from their Lords so long as they finde them wherewith to live nor is it law full for others to receive them without their Lords consent those can have no manner of Action against any man without their Lords but in case of Felony and if those slaves hold Lands of their Lords it is intended that they hold them from day to day at their Lords will and not by any certaine services Villaines are Tillers of Lands Note by Villaines in this place is meant Copy-hol-ders dwelling in Upland Villages for of Vill commeth Villaine of Burough Burgesse and of City Citizen and of Villaines mention is made in the Great Charter of Liberties where it is said that a Villaine be not so grievously amerced that his Tillage be not saved to him but the Statute maketh no mention of slaves because they have nothing of their owne to lose And of Villaines are their Tillages called Villinages Copy-hold called Copy holders And note that those who are free and quit of all servitude become servile by Contracts made berwixt the Lords and the Tenants And there are many manners of Contracts of Fees as of Gift of Rent of Exchange and Lease which all may make for a time or for ever and quitment without Obligation and charge of service and with charge And these Contracts as all other are made by Writings Charters and Minuments by solemne Witnesses according to the example of Contracts of Marriages which ought to be a patterne to all other Contracts according to which Example were the first Contracts made by the first Conquerour when the Earles were enfeoffed of the Earldomes Barons of the Baronies Knights of Knights Fees Serjeants of Serjanties Villaines of Villinages Butgesses and Merchants of Boroughs whereof some received their Lands without Obligation or service or in Frankalmoigne some to hold by Homage and by Service for defence of the Realme and some by Villaine Customes as to Plough the Lords Lands to Reape cut and carry his Corne or Hay or such manner of service without giving of any wages whereof many Fines were leavied of such services which make mention of the doing of these base services as well as of other more gentile services and although it be so that the people have no Charters Deeds nor Minuments of their Lands neverthelesse if they were ejected or put out of their Possessions wrongfully by bringing an Assize of Novell Disseisin they might be restored to their estates as before because they could averre that they knew the certainty of their services and workes by the yeare as those whose Ancestours before them were Asteries for a long time in case Disseisors were not their Lords And thereupon Sr. Edward in his time Doom-day Booke Vt credo caused enquity to be made of all such who held did to him such services as ploughing his Lands c. besides their lawfull Customes And afterwards the people lesse fearing to offend then they ought many of these Villaines by wrongfull Distresses were forced to doe their Lord the service of Rechat of blood and many other voluntary Customes to bring them in servitude under their power for which their remedy was a Writ of Ne investoè vexes CHAP. II. SECT 29. Of Summons THis Chapter maketh mention of speciall Summons to make a difference from generall Summons where all Freeholders and others ought to come according to the nature of the Cry whereof and every one may Summon by a Common Cry but of this Summons this Chapter maketh not mention A speciall Summons is a friendly admonition of an amendment of an offence or wrong and because none is tyed to Answer to any Action reall or mixt before a Summons therefore it is to see 1 Who have Authority to Summon 2 Who are Summonable 3 In what place he is Summonable 4 How farre one is Summonable 5 At whose Charges 6 How often 7 Who may be Summonors 8 What is a reasonable Summons 1 All who have Jurisdiction have Authority to Summon 2 All those who are not forbidden by Law are
by burning of them over the eyes because the lust came in by eyes and the heate of whoredome came from the reynes of the eacher Seaven things doe stay Judgement of Death 1 False Iudgement or foolish Iudgement 2 False Testimony 3 Default of better Answer 4 The hast of the King 5 A woman with Childe The first three Cases have respite by forty daies the fourth by thirty daies the fifth by forty weekes or more if the Childe be not borne 6 Want of discretion as it is of Idiots Mad-men and of Infants 7 In Poverty in which case yee are to distinguish of the poverty of the offender or of the thing for if poore people to avoyd famine take victuals to sustaine their lives or clothes that they dye not of cold so that they perish if they keepe not themselves from death they are not to be adjudged to death if it were not in their power to have bought their victuals or clothes for as much as they are warranted so to doe by the Law of Nature and although the Law hath no respect but to the Soules of offenders neverthelesse King Edward limited the quantity of Robbery and Larcine in this manner that is to say that none should be adjudged to death if the Larcine or the stealing or the Robbery did not exceed twelve pence Sterling and note that King Hen. the 1. by Randulph de Glanvile Ordained That in all mortall Actions that where the Action was encountered with an affirmative exception that the affirmation was first to be received in proofe in favour of life and thance it was that if one man accused another of Felony and he plead that he is not the man the proofe was awarded to the Defendant to convince the other of lying either by his body or otherwise And so it is if the Defendant say that he could not be at the doing of such an Act at the day place or yeare named in the Plaint because he was then in another place where by presumption he could not doe it or that he could not be there present Or if he saith that the thing came to him by good title in favour of life the proofe belongeth to the Defendant peremptotily at his perill to the overthrowing of the Action and the exception but if the Defendant solye deny the Action in such cases the proofe belongeth to the Plaintiffe Of Out lawes returned from exile banished men and those who have forjured the Realme and returned being taken and kept for a justifiable offence the Iudgement is that they be hanged till they be dead CHAP. IV. SECT 17. Of Punishments in divers kindes THe Corporall punishments of Death being past we are to come to Corporall punishments venialls which are by open infamous Penances and first of punishments Tallions or like for like which are in three Cases that is to say in May hem Wounding and Imprisonment in which if the Pleas be brought in by Appeales of Felony for reverge onely then belongeth the Iudgement Tallion or like Iudgement as Mayhem for Mayhem Wound for Wound Imprisonment for Imprisonment And if pardonable in forme of a Trespaffe then these Iudgements hold place that the offender make reasonable satisfaction to the Plaintiffes and afterwards that they be adjudged to doe open Pennance according to the quantity of the offence Open Pennances are these amendments of High-waies Cawsies Bridges setting them up in Pillories or Stocks Imprisonment and abjuration of the Realme Exile Banishment either from off the Land or from the Towne from entring into such a place or from going out of such a place by Ransome of such a penalty by pecuniary punishment or by other Fine and such other kindes of Iudgements penals And if the offender be Infants or otherwise in custody that in such cases the Guardians be adjudged to make satisfaction of the damages and the Guardians to betake themselves to the goods of the Trespassours but the open Pennance is to be suspended so long as they are in Ward so that according to the difference of the offences and the offenders the punishments were in manner as followeth and first of false Iudges who the more greatly offend for as much as they are in a higher degree then other people CHAP. IV. SECT 18. Of false Judges OF false Iudges Affigned King Alfied Ordained such Iudgement that the wrong they doe to God whose Vicegerents they are and to the King who is put in so noble a place as is the Seate of God and hath given them so great Dignity as to represent the Person of God and the Counsance as to Iudge offenders that first they be adjudged to make satisfaction to those they have hurt and that the remainder of the goods should be to the King saving all other rights and all their Possessions with all their purchased Lands should be forfeited in whose hands foever they be come and that they be delivered over to false Lucifer so low that they never returne to them againe and their bodies that they be punished and banished at the Kings pleasure and for a mortall false Iudgement that they be hanged as other murderers And for Mayhem Wounding and Imprisonment that they have like for like and the same Law and in the same condition The Iudgement of false Iudges Ordinaties is not in veniall Iudgements so penall as it is of Iudges Deligates before but they are to make satisfaction to the Parties Plaintiffes and to the King they are punishable by a pecuniary penalty and disabled from all manner of Iurisdiction whatsoever and in Cases mortall and Tallions according as it hath been said before of other Iudges CHAP. IV. SECT 19. Of Perjury PFâ—jury is a great offence of whith yee are to distinguish either of Perjury of false Testimony or of breach of faith or by each of the Oath of fealty of the first Perjury yee are to distinguish either of Perjury mortall or venialâ— if of mortall then the Iudgement was mortall to the example of apparant murderers And note that in all personall Actions there belongeth such an award that due satisfaction be made to the Plaintiffes and that the offenders be punished with corporah paines which paines are to be bought out by ransome of money and if of veniall perjury then that they be banished for a time or for ever and that their Woods Meadowes Houses and Gardens be erradicated according to the example of murderers saving that their Heires doe not remaine dis-inherited Of the other Perjury yee are to distinguish as breach of faith to the King or to another Person and if to the King yee are to distinguish whether as his Tenant or not and if the Oath of Fealty be in respect of Land and the fealty be broken in any of the points then lyeth the Processe and defaults aforesaid and if of an Oath not in respect of Land yee are to distinguish whether of the common Oath of Fealty sworne to the King for the remaining in his Fee then
Kings prejudice take Fines for Wards or Marriages without Writ or deceive any one by colour of their Office or leavy money upon any upon his owne proper Amercement Into Perjury against the King fall Sheriffes who too high charge the People by a surcharge upon the people of Horses or of Doggs and who leavy Fines or Amercements for escapes of Prisoners or for any thing against Law before the escapes be adjudged by the Justices in Evre and who increase or diminish Fines or Amercements beyond the Wills of the Afferrors or Jurours and those Officers who conceal people deliverable to prison and doe not bring them to Judgement Into Perjury fall all those Officers who are reproveable for the sufferance negligence or consent to the alienation of the franchises or of the right of the King wrongfully or to the occupying or withholding of them And all those who elsewhere change old money which is forbidden for new then at the Kings change CHAP. 1. SECT 6. Of Falsifying FAlsifying is done in two manners by falsifying the Kings Seal his Mony His Seal may be falsifyed in many manners It is alwaies falsifyed when a Writ is sealed whereof the ingrossing and the matter or the forme is not justifiable by the King nor by the Law nor by the lawfull Customes of the Realme which is not to be intended of every Writ abatable It is falsifyed if a man scale therewith after that the Chancellour or other Keeper thereof hath lost his Warrant either by death or in any other manner It is falsifyed when a Writ or a Patent passeth against the Kings forbidding It is falsifyed by those who seale by ill Art or by Warrants not justifiable and it is falsifyed by those who seale and have not authority to seale Of falsifying the Money The Money was Ordained round and quarterable and use so to be made that the outward eircle was apparant through the whole otherwise it was not to be received and that the 1. l. was of 12. ounces of sine Silver and it was assented unto that the King should have 6d for the sealing of every Writ and for the coynage of every pound of money 12.d and no more of monies currant in the Realme The money is falsifyed by him who by evill covetousnesse maketh it not justifiable and it is falsifyed by those who make it and have not authority or warrant so to doe It is also falsifyed by those who for evill gaine put more alay in it then of right there ought to be And it is falsifyed by all those who make it without the Kings coynage And it is also falsifyed by all those who by ill Art counterfeit it and by those who clip or wash it for ill gaine CHAP. 1. SECT 7. Of Treason TReason is not done but betwixt Alies who may be by Blood Affinity and Homage Oath and Service By blood as if one of Parentage doe any thing to another of his blood which is the cause of his death or dis-inherison or to losse of homage for the quality of Treason is the taking away of life or member or decrease of earthly Honour ot the increase of villanous shame And in the same manner is this offence betwixt Affâ—â—â— as betwixt Sisters Sonnes in Law and Parents sot as cosinage is a line of divers percenets discending of the same Stock and drawne from carnall Copulation In like manner Affinity is a neernesse of Persons discending from carnall copulation where there is no blood and as this Office is done betwixt Affines and Cousens so it is also betwixt Allies Alliance is sometimes by Service Homage and Oathes Which happeneth sometimes by reason of Fealty issuing from the service of the Fee sometimes issuing from the Oath of Service of the body and as one of the Allies Parents or Affines commit this offence against the other in the same manner may they doe against them By Service as if one who I have rewarded to doe me Fealty and be seized in demeane of a Mannour or other gift or service or Courtesie falsifie my Seale or ravish my Daughter or my Wrie or the Nurse or the Ant of my Heire or doth any thing which is the cause of my death by a Feionious compassing the same or to the great dishonour or damage of my body or of my goods or discovereth my Counsell or my Confession which he is charged to conceale And by reward is meant Fee Possession Robe Church Rent or other gist and meat and drinke curing the service And as such a one may commit Treason against me who taketh from me so much that he is seized in the same manner I may offend against him by such Action or demand he shall have against me as I may have against him CHAP. 1. SECT 8. Of Burners BUrners are those who burne a City Towne House Men Beasts or other Chattels Felloniously in time of peace for hatted or revenge And if any one put a man into the fire whereby he is burnt or blemished by the fire although he be not killed with the fire neverthelesse it is an offence for which he shall dye Under this offence sometimes fall those who threaten burning CHAP. 1. SECT 9. Of Man-slaughter MAn-slaughter is the killing of a man by a man for if it be done by a beast or by mischance it is not Man-slaughter This offence is two waies either by the Tongue or by the Act. By the Tongue three waies by Counsell Commandement or Deniall By Counsell as he who counselleth another to kill and so also is it by Commandment By Deniall as he who denieth sustenance to a man By Act many waies sometimes by Striking by Poisoning by Necessity by Will By striking as it afterward appeareth in the Appeales By poison or venoming as by secret felony and fained friendship giving poison to another to eate or poisoneth or envenomed any thing whereby a man is presently or in time killed Or by Imprisonment as he who keepeth the body of a man in prison by colour of Law till he dyeth By Chance as by casting or drawing of a Vessell or other thing and some one is killed by mischance or by the falling of a Tree and other the like cases But you must distinguish where the killing is justifiable by Law for there it is no offence and when he doth not that which he ought to doe and the party useth all the diligence which he may crying out and defending himselfe for then he doth not greatly offend but he who doth not so doe he offendeth mortally By necessity where in you ought to distinguish whether the necessity be avoidable or not and if it be avoidable it is a mortall offence By Will and that may be either of himselfe or of some other person Of himselfe as in case when people hang themselves or hurt themselves oâ— otherwise kill themselves of their owner felony Of others as by beating famine or other punishment in like cases all are Man-slayers Also this
outragious Distresse in another Fee or in the Market for a forraign contract Of all Bridges broken and Causies wayes common Bridges and who ought for to repaire hem Of the makers of Cloathes dwelling out of great Towns in places forbidden Of Tanners and Curriers of Leather Of Butchers and who sell unwholsome flesh for that which is sound and of all those who sell corrupt Wine for sound Wine or Beare Ale raw and not well brewed for that which is good and wholsome Of small La eines Of cutters of Purses And of those who suffer people to use any Mysterie for reward or Fee Of Receivers of Thies-boot Of makers and baunters of false Dice Of outragious Tole-takers and of all other deceivers Of all manner of Conspiraters And of all other Articles availeable for the destruction of offenders And the Presentments are to be sealed with the Seales of the Jurours so that none by fraud doe increase or diminish them and that which cannot be redressed there by these Presentments is presentable at the Sheriffes first Turne and those things which the Sheriffes cannot redresse are to be presented by the Sheriffes into the Exchequer All those who are Presented for any offence which is mortall and banished Persons who are returned and their receivers and those who are not in allegiance under the King are to be seised upon and their goods to be seised into the Kings hands And although it be so that the Bailiffe can not heare and determine any Action at the Leete neverthelesse if any one present be grieved by any wrongfull Presentment and complain thereof or if the Bayliffe or Steward have a suspition that the Jurours be in some case perjured by concealing of any offence which is Presentable or of any offender It is lawfull for the Bayliffes or Stewards by twelve more disereet men to enquire of the truth thereof without delay and although that the last Jurours joy that the first are perjured neverthelesse because that no Decenery or Jurour is not attestable with lesse then two Juryes and because the latter Jurie is not taken but ex officio of the Bayliffe and not in the nature of an Attaint the first Jurours are not to be taken Attainted but are onely to be amerced And if any one profer himselfe to sweare fealty to the Kings he is first to be pledged in some Franck-pledgs and put in the Decenety and afierwards sworne to the King and then he is forbidden to offend and common with offenders and he is to be enjoyned to be obedient to his chiefe pledge And to take this Oath in those Views is none exempted who is past the age of 21. yeeres man or woman Clerke nor Lay-man except Alliens Strangers Mossengers or Merchants and those who are in custody At these Viewes of Turnes and viewes of Franck-pledges Essoignes hold where the absence of those who cannot be there is excusable and such Essoignes are adjournable to the next Courts following that the Essoigners have their Warrants The Contents of the Second Chapter OF Actions Of Judges Of Plaintiffes Of Rewards or Fees Of Pleaders or Countees Of Attachments Appeales and to whom Appeale is given Of Goales and Goaters Of Bayles in Appeales Of the Appeale of Majesty Appeale of falsifying Of Appeales of Tredson Of Appeales of burning Of the Appeales of murder Of the Appeales of Robbery and Larcine Of the Appeale of Burglary Of the Appeale of Imprisonment Of the Appeale of Mayhorn Of the Appeale of wounding Of the Appeale of Rape Of reall offences at the Kings Suit Of offences personall at the Kings Suit Of veniall offences and personall Suits Of the Assize of Novel dissesin Of Distresses Of Contracts Of villinage and Neifitie Of Summons Of Essoignes Of Atturnies CHAP. II. CHAP. II. SECT 1. Of Actions WHen it is said that Kings and Princes have the Government and Correction of Offenders with aide of the Prelates and to that intent they are Gods Vicegerant on Earth and to doe the same they have Jurisdiction over the offenders by paines and cheifly those offenders which are under their Jurisdiction neverthelesse Kings cannot not ought not to take notice of the offences of others without Actions of Accusers which well appeareth by the example which God shewed when he was in his Consistory and demanded who was the Accuser of the woman-sinner and because none presented himselfe an Accuser against her to give us a perpetuall example that right Judgement cannot be given without there be three persons at the least viz. a Judge a Plaintiffe and a Defendant God said to the woman-sinner That she should goe in peace or quiet since it belongeth not to a Judge to be both Judge and Plaintiffe and therefore it behooveth to speake of Actions and who are and may be Judges and who Plaintiffes and who Defendants An Action is nothing else but a lawfull demand of right and there are three manner of Actions which have their Introductions by Writs and by Plaints in manner as followeth viz. Personall Reall and Mixt. CHAP. II. SECT 2. Of Judges ALthose who are not forbidden by Law may be Judges To women it is forbidden by Law that they be Judges and thence it is that seme Coverts are exempted to doe Suit in inferiour Courts On the other part a villaine cannot be a Judge by reason of the two estates which are repugnants Persons attainted of false Judgement cannot be Judges nor Infants nor any under the age of 21. yeares nor infected persons nor Ideots nor mad-men nor deafe nor dumbe nor parties in the Pleas nor men excommunicated by the Bishop nor criminall persons for God when he was upon Earth entred into the Consistory where a sinner was to be judgeed to death when God wrote upon the ground and said to the Suiters who came to Judge her Who of you is without sinne and there gave a Judgement as an example to Judges who take upon them every day to Judge the people whereby he taught them That none should take upon themselves so high and noble a â—alling as to sit in the Seate of God to Iudge offenders when they themselves are guilty and Condemnable And those who are not of the Christian Faith cannot be Iudges not those who are out of the King Allegiance next those who have no Commission from the King cannot be Iudges not none whose Authority is repealed not any one after Iudgement is given in the Cause an example thereof appeateth in the Writ of Right Etâ—nist ficeris viceconnes faciat not none after death or the Returne none whose warrant is vicious not any one if his superiout will not have him A Iudge Commissary hath not power to Iudge but according to the points and within the words of his Commission and the originall Writ no more then the Arbitrary Iudge hath power to goe beyond the points of his submission CHAP. 2. SECT 3. PLaintiffes are those who pursue their right against others by plaint All may be Accusers or Plaintiffes
over to the Goale where they are to be received without difficulty of Fine or request CHAP. II. SECT 9. Of Goales and Goalers A Goale is nothing else but a common Prison and as a Leper or a man who hath a diseased body is not to be suffered to dwell or remaine amongst men who are sound so mortall siune is a kind of Leprosie which maketh the Soule abhominable unto God and therefore such mortall sinners or offenders ought to be separated from the society of the people And to the end that Innocents be not infected with their offences Goales were Ordained in every County to keepe such mortall offenders in there to remaine till Iudgement were given against them in case the offences were notorious There are 2 kinds of Prisons Common and Privite Every common Prison is a Goale and none hath a Goale but the King only A private Prison is another Prison from whence every one may escape who can so as he doe no other Trespasse in the escape None are imprisoned in a common Prison but for a mortall offence and therefore it was forbidden by King Henry the 3. That none should leavy money for any escape in the Land if the escape were not adjudged before the Iustices in Eyre whether for the same a Corporall or a pecuniary Punishment were awardable or not and because it is forbidden that none be pained before Iudgement the Law requireth That none be put amongst vermine or in any horrible not dangerou place not into any other paine but it is lawfull for Goalers to fetter those they doubt so as the Fetters weigh no more then 12. ounces and to enable the keeping of those in the Goale who are violent outragious or doe other Trespasse there CHAP. II. SECT 10. Of People Bayleable in Appeales SOme Appeales of mortall offences although they are not bayleable by Law neverthelesse they are suffered to be bayled when they are brought into the Goale as namely the Appeales of Murder Robbery Burglary Larcine or out of Prison where it is found that they are wrongfully Appealed and for such case was the Writ De odio accia invented Those who are condemned to have Corporall punishment are not to be Bayled but it is otherwise of those who are imprisoned for a Fine or any other pecuniary penalty or punishment CHAP. II. SECT 11. Of the Appeale of Maiesty OF the Crimes of Majesty not of falfifying not of any thing which concerneth the Kings right there lyeth no Appeale but Actions or Indictments For slanders of Sodomy our ancient Fathers would never agree thus for the scandalls of so doing that any one should bring Actions by way of Accusation not Indictments not would ever assent that they should be heard of in regard of the abominablenesse of the sinne but they Ordained that such notorious sinners should be forthwith Iudged and Iudgements framed against them Of the imagining of the Kings death and of other kind of offences of Majesty against an earthly King there were Accusations but for Indictments for every true Subject was with all expedition to shew the same to the King so that he be not taken or seised upon by his long stay or by great delay in what cases the Accusations are to be received and in full Parliament let the Accuser by himselfe or by a Serjeant doe it according as it was done in this case in the time of King Edmond in these words Rocelyn here saith against Walligrot That at such a day in such a yeare of the Raigne of such a King into such a place came the said Walligrot to this Rocelyn and found him to be in Counsell and in assistance with Atheling Turkille Ballard and others to Arrest or to make Prisoner or to kill our Lord King Edmond and to doe the same they were sworne to keepe Counsell and to commit this Felony according to their power CHAP. II. SECT 12. Appeale of Falsifying THis offence is not openly done it is seene by a false Writ or false money found in ones possession and although that three Persons are necessary in Iudgement in this case neverthelesse it is Ordained That the possessour of ill things be by the Iudge Ex officio driven to answer to the Title of their Possession thereof which is not so in all Cases And if there be any one who will not plead to Jugdement then he is to be returned to the Goale and all his goods are to be seised into the Kings hands and to be seised upon as in all Criminall Actions brought by Appeales or Indictments also in veniall Actions such contumacies used to be condemned for not pleading as by their pleading and lawfull Attainder And if any one saith that he came to the money lawfully and doth not know by whom not none oâ—fer themselves against him to prove the affirmative of the Action then it belongeth to the possessour of the money to prove the affirmative of his Answer And if any one saith that it came to him from a man certaine let it be as after herein is said CHAP. II. SECT 13. Of Appeales of Treason TReason is set forth in Appeales in this manner according as it is found in the Rolls in the time of King Alfred Bardulf here doth appeale Dirling there for that that in as much as this same Dirling was the Allie of the same Bardulf the said Dirling came such a day of the yeare c. and during the Alliance ravished the Wife of the same Bardulf or counterfeited his Seale or did him some other mischiefe Or thus Hakenson Father or other Parent or Lord or Allie this Dirling killed or thus remained in Aide and in Counsell with Daffray the adversary of the this Bardulf in speech which touched the losse of his life or members or of his earthly Honour or thus discovered his Counsell or his Confession or thus whereas he ought to have a lawfull enrolement according to Law of such a Plea the same Dirling falsly enrolled the same to his dis-inherison or otherwise to his damage or thus whereas he was his Atturney in such a Plea before such Judges to gaine or lose and should have done him right he lost by his default or by his folly negligence or collusion or restored the thing in demand or did him such hurt Or thus whereas he should have excused him or essoigned him such a day c he suffered him to lose the Possession or such other thing through his default or thus whereas he ought to have truly spoken for him in such a Case the said Dirling did ill advise him or speake against him in such a Ioâ—nt and afterwards thus this Treason did the said Dirling feloniously as a Felon and traiterously as a Traitor and if he will deny it Bardulf is ready to prove it upon him by his body or as a mayhened man or a woman or a Clerk ought to prove And although that advice be given to some that it belongeth not to the Plaintiffe to
Ex officio to compell them to salvation the King used every seaven yeares to goe through all Shires in his Realme to make enquiry according as before is said further in aide of such Eyres were Coroners Sheriffes Turnes Viewes of Franck-pledges and other Enquests to enquire of those offenders as is said But because some are wrongfully slandered King Henry the 1. Ordained that none should be arrested nor imprisoned for slander of mortall offence before he were thereof endicted by the Oathes of honest men before those who had Authority to take such Indictments and then they were first to be seised upon by their bodies and goods as in Appeales and to be kept in prison till they cleared them of the infamy before the King or his Justices Of the Crime of Majesty in no kind was any Indictment but of Heresie or Romery whereof if any were indicted and brought to Judgement let there be an indictment for the King by some of his people in this manner according to that which is found in the Roles of ancient Kings I say Sebourge there is defamed by good people of the sinne of Heresie because that he of evill Art and beliefe forbidden and by Charmes and Enchantments he tooke from Brighten by name c. the flower of his Alc whereby he lost the sale thereof so that Judgement be not given of lesse then three persons or thus Molling who is there defamed by good people that such a day he denied his Baptisme and caused himselfe to be circumcised and became a Iew or a Saracen or offered or sacrificed to Mahomet in contempt of God to the Damnation of his Soule and this offence he did feloniously c. and so in every like Case for the King and if he will deny it I am ready to prove it upon him for the King as to the King it belongeth to doe that is to say according as an Infant within age Of falsifying thus I say for the King that Mimunde there is defamed c. for that he such a day c. falsifyed the Kings Seale or his Money in such a kind or such c. Of Trespasses Indictments now cease of Burnings thus I say c. that Seabright there is defamed c. for that at such a day c. he set a fire such a house or goods c. Of Murder thus I say c. that such a one with such a weapon struck Agole in such a part of his body by which stroke he is killed c. The degrees of Accessories are to be shewed after the Principalls according to their right Of Larcine in this manner I say that Cutbert there c. robbed such a man knowne or unknowne of his Horse or of other kind of goods c. or feloniously stole or was consenting to the offence of such Theeves knowne or of unknowne Theeves by taking of Theef-hoot which is a recept of Larcine which he wittingly took to suffer such a one to passe or to stop Suit or wrongfully to procure his pardon CHAP. II. Sect. 23. Of Offences personall at the Kings Suit A Personall offence is divived into two branches whereof the one extendeth to Persons and the other to Goods The Veniall offence which extends to Persons is divideable into great offences and small offences and although the King have Counsans of all offences yet he reserveth only the ordering of all grosse offences to himself and the Counsance of the lesser he leaves to all those men who have Courts within their Demesnes and upon this division of offences hath the King established the Peace so as such Lords Bayliffs have the ordering of the Peace for smal offences The Veniall offences Personall are these Perjury when one telleth a lye against the King and Perjury of his Officers The mortall offences not declared feloniously as Imprisonment Mayheim Wounding Battery are to be shewed without Appeales Allienation of old treasure sound Diffesin Reddisseisin and many others the declarations of Personall offences venialls infamatories are to be declared at the Kings Suit in this manner I say for our Lord the King that Y there is Perjured and lyed against the King that whereas the said I was the Kings Chancellour and was sworne that he should not sell not deny right not remediall Writ to any Plaintiffe the said Y such a day c. and sold to such a one a Writ of Attaint or other remediall Writ and would not grant it him for lesse then halfe a marke c. Or thus whereas he was one of his Iudges assigned and was sworne to doe Iustice c. he in this manner in such a Court gave Iudgement or awarded against such a Party or released such a Party or usurped such Iurisdiction upon the King or made himselfe Iudge Coroner or Sheriffe Bayliffe or other Minister of the Kings without Warrant or thus whereas he was Channcellor of the Exchequer c. he forbad to give an Acquittance of so much as such a one had paid of the Kings debt under the Exchequer Seale or delayed to give an Acquittance from such a day till such a day and would not give an Acquittance unlesse he bought it for so much or thus for that he holdeth Plea against the Kings forbiding or in prejudice of the King and his Crowne and the rather seeing it belongeth not to any Ecclesiasticall Judge to hold secular Pleas but only of Testamentary and of Matrimony or thus he disturbed the giving of Judgement or surceased so to do justice by negligence or by his consent In this manner are the Presentments to be made at the Kings Suit of Personall wrongs of all his Ministers great and small and also against all others not his Ministers of all wrongs done to the King by those who have sworne fealty to him CHAP. II. SECT 24. Of Veniall Trespasses and Personall Suits TO those who have cause of Action and will not pursue revenge according to their rights by Actions of Trespasse to recover damages for the Trespasses neverthelesse ye are to distinguish where the Trespasse is done to the person of a man and where to his goods And if to a mans person every one may have an Action to whom the Trespasse is done except those who can maintaine no Action without their Guardians And if to the goods then ye are to distinguish whether to his proper goods or to the goods which he hath with others in common And if to the proper goods then to distinguish if proper to a man or belonging to another thing as to the Crowne or to any Church If to a man then to distinguish if to a man free of himselfe or to a man who is in ward And if to a man free of himselfe he hath severall Actions and if proper to any other in ward the Action belongeth to the Guardian If to a man in ward the Action belongeth to the Guardian or to the next of Kin Parent Affine or Alley of his name to the use of
him who is in ward Of goods which are in common no severall Action lyeth and therefore of goods which belongs to men of Religion the Action belongeth to the Soveraigne of the house in his name for him and his Covent or in his owne name and the name of him who is in his custody if the Action be an Action personall veniall And there is a difference betwixt Actions which are to cause death and pardonable Actions for as much as to mortall Actions the Suit is to be brought first against the Principalls and afterwards against the Accessories and in Veniall Actions of personall Trespasses all ought to be comprehended in the Plaint in common the Principalls the Commanders the Conspirators and the Accessories for as much as a man shall not recover severall damages by severall plaints thereof neverthelesse none of the Accessories is to plead to the Action before the Principall hath pleaded or be condemned for his Contempt Personall Trespasses used to be heard and determined in inferiour Courts of Lords of Fees and then the offenders were Attachable by their bodies and they used to keepe them and bring them to Judgement if they were not bayled without offending the Law The remediall Writ of Trespasse requireth bayâ—e to them which whosoever could not finde was to remaine in Custody without his Keeper because they were bound to acquit their Pledgers And if any neverthelesse become Pledges of their owne will in such cases they are to be taken but if they are thereby endamaged by Non-suit of the party they had no recovery against the principall Surety a pursuing may be in divers manners sometimes by Pledges as it is of those who can finde them sometimes by trusting them as it is in case of Forraigners and poore who have not ability to finde Pledges and sometimes by the bodies of the Plaintiffes as it is of Appealees who have no other Suâ—eâ—ies but the foure walls of the Prison And for the durenesse which is used to be done to the bodies of offenders in personall offences or veniall King Henry the 1. Ordained That they should arrest them first by their bodies untill they justifie themselves by Bayle and if they be not found and if they doe not discharge their Bayle they are then to be distreyned by their Land to the value of the demand and if they then make default their Lands are to be delivered over to the Plaintiffes untill they have made satisfaction by a reasonable Extent if before they have not acquitted themselves by Law Of Pledges note that those are Pledges for pursuing who the Plaints affirme and those are Pledges who reprieve any other thing besides the body of a man for they are not properly Pledges but Maine-prisors because they suppose that those plevifables are delivered to them by Bayle for the body The ordinary Declaration of Veniall Plaints begins in this forme I shew unto you who am here that E. who is there wrongfully delayed his Action by a false essoigne which he cast such a day in such a place c. to the great damage of the Plaintiffe And of Trespasses done against the Kings Peace it is easie to shew and of Trespasses done against Lords or Bayliffes and in hatted of false Plaints King Henry the Ordained that audience were forbidden to Plaintiffes in veniall Actions and that none was bounden to answer such Actions if they had not present proofe of a lawfull Suit And there is such a difference between a Criminall Action in pleading and a Veniall that if a Serjeant put these words scil feloniously as a Felon c. in Declaration of Veniall Actions the Declaration are vicious and abateable because that no Judge hath power by a Veniall Plaint to determine felony and in the same manner is the Count vicious and abateable where the Count is upon the right of property and upon the plea of Possession Et è contra and there are some Actions wherein no Declaration or Count as in Disseisin Redisseisin Certifications of Assize false Judgements and Attaints CHAP. II. SECT 25. Of Assize of Novell Disseisin and Reddisseisin AMongst other personall Trespasses it is not to be forgotten to make mention of Dissesin of which it is needfull first to see to the Title why it is called Assize of Novell Dissesin An Assize in one Case is nothing else but a Cession of the Justice in another case it is an Ordinance of Certainty where nothing could be more or lesse then right for the great evills which is used to be procured in witnessing and the great delaies which were in the Examinations Exceptions and Attestations Randolphus De Glanvile Ordained this certaine Assize that Recognitions should be sworne by 12. Jurours of the next Neighbours and so this establishment was called Assize In the third case Assize is taken properly for an Action in foure manner of Pleas Possessories Scil. Novel Dissesins Moâ—ldamcester Darreis Presentment Juris utrum But such Assize are called Petit Assizes to make a difference from Grand Assizes for the Law concerning Fees is grounded upon two right of Possession and property And as the Grand Assize serveth to the right of property so the Petit Assize serveth to the right of Possession and because such Petzi Assizes are to be taken of the Counties where the Fees are by the Statute of King Edward called such Actions Assizes either for the generall Cession of the Justices and of others or from the propernames of such Actions It is called Novell to put a difference from those which are ancient for anciently Kings used to goe over the Shires to enquire heare and determine offences and to redresse the wrongs there and that which was not brought in such Eyres of personall Trespasses before remained to the Judgement of God alone and afterwards by reason of the multitude of offences and that Kings could not doe all by themselves therefore they sent their Commissaries who now are called Justices in Eyre who have not power to decree and determine a personall offence but for a thing brought and not determined in the last Eyre Then for as much as the Disseisin or the personall Action was brought before the Eyre the Action or Disseisin was ancient but if the Disseisin be done since the last Eyre then it is a Novell Disseisin Disseisin is a personall Trespasse of a wrongfull putting one out of possession it is said wrongfull to put a difference from rightfull which is no offence as if I take from my Wife or my Villain or from another who is my Ward that which is my owne or if you take from me that which is mine I take it from you againe I doe not offend for I am warranted so to doe by the Law of Nature seeing this usage is common to Men Beasts Fishes Fowles and other earthly Creature but I cannot doe so afterward for if I take from you forcibly any thing whereof you have had the peaceable possession I doe disseise you and I doe
Summonable none is to be summoned for a personall offence not any one who is not a Free-holder 3 A man is not summonable in all places for no man is summonable nor bounden to receive Summons out of the Fee of the Party who causeth the Summons nor elsewhere but in the Mannour appendant to such a Court where he ought to Answer nor in all places of the Mannour but only at the Tenement in demand 4 How farre one is summonable not out of the Fee of the Court where one is to answer 5 At whose charges at the charges of those who are the first causers of the Summons except in Juries and Enquests taken ex officio for no Free-man is compelable to travell and appeare in Judgements at his owne charges notwithstanding that the Law requireth that every Tenant obey the Summons of his Lord. 6 How often one is summonable but once in one cause neverthelesse re-summoned holdeth place in some case 7 Who may and ought to be Summonors no man is compellable to be a Summonor if he will not agree to it neverthelesse all those may be Summonors who will that are not forbidden by the Law Women not Villaines nor infants nor any infamous Person not any one who is not a Free holder cannot be a Summoner 8 It is a reasonable Summons when it is testified by two loyall free Witnesses Neighbours to the Person or to the House or Tenement contained in the Writ with warning given of the day place party Judge of the Cause and a reasonable respite at least of fifteen daies to provide his Answer and to appeare in Judgement In Juries neverthelesse nor Enquests there need not be so full time or respite given CHAP. II. SECT 30. Of Essoignes ESsoigne is an excuse of a default by any hinderance in comming to the Court and lyeth as well for the Plaintiffe as for the Defendant The Law of every Essoigne is That the cause of the hinderance be enrolled with the name of the Essoigner so that if the diverse Party or his Atturney or Essoignor will traverse the Cause he is to be received so to doe that if he be found false then that the Essoigne be turned to a default All those may be Essoigned who are not forbidden by Law uo Defendant in personall Actions not any after default can be Essoigned not any present in Court nor doth Essoigne lye in a Scire facias nor in a Venire facias nor in a Recordari facias toquelam nor in Admeasurement of Pasture nor after the Parties have joyned issue in Judgement though the Jury appeare not nor in case where the Plaintiffe hath not found Surety to pursue his Action nor where one hath Atturney in Court if both be not Essoigned nor where the Summons is not testified nor after an Essoigne not warranted nor to him who was not named in the Writ or in the Plaint except in Warranties nor any one who is re-summoned in Mort-dauncester and Darrein presentment nor when the day is not come nor where the Essoigner commeth too late nor any one whose adversary is dead or any of his Parceners nor he who is adjourned from day to day nor the Kings Officer as Officer nor he to whom it is commanded that he appeare if he please No Essoigne is justifiable if it be not orderly cast nor is it allowed to Infants within age nor to any who is in custody nor to many having one right if the Cause be not divers All may be Essoigners who the Law forbiddeth not it is forbidden to Women to Infants to Villaires and to all who are in Custody to Mad-men to Idiots to Excommunicated Persons to the Judges and uo the Parties in the Cause Essoigners at other times not warranted 〈◊〉 â—â—ainted of false delayes to criminall Persons and to those who are not of the Christian Faith or in the Kings Alleagiance it is forbidden that they be Essoigners There are chiefly two kinds of Essoignes the one of the Kings service the other of hinderance The first is dividable either into the service of the King of Heaven or of the King on Earth of the King of Heaven in three manners 1 Either for the generall passage of all to the Land of c. and this Essoigne is not otherwise adjournable but that the Parties goe without day and are to appeare againe by Re-summons of the Plaintiffes at the returne of the Defendant This Essoigne is not allowable to Plaintiffes nor to the Defendant reasonably Summoned before his going from his house in a personall action nor in other but in a Plea which toucheth Inheritance nor but in a Writ of Right Patent but not of Dower nor of Burgage The other Essoigne of the service of the King of Heaven is of a common Pilgrimage beyond Sea towards the Holy Land and this lasts for a yeare this holds not buâ— according as the other The third of a Pilgrimage beyond Sea as to Rome or to Saint James De compostella and takes place for halfe a yeare and these Essoignees are to appeare the next Courts following the Termes adjourned After Re-summons holdeth place the common Essoigne De mal venier and also after the terme of Adjournment but this common Essoigne never holds place before the Essoignes before said The Essoigne of the King on Earths service is in two manners 1 The one is of those who serve as Souldiers as Messengers or as Ministers and this Essoigne is not respited but from Court to Court or the common day to the example of a common Essoigne if it be not warranted at the next Court by the Kings Writ it is to be turned to a default 2 The other is of those who serve the King by Tenure of their Land for the defence of the Realme and he hath no day But the Plaintiffe is with out day and the Plea is to be re-continued in the same Estate when his Adversary shall be returned These latter Essoignes are allowable in Pleas summonable to Plaintiffes and Defendants except in Dower Vnde nihil habet Quare impedat Darrein presentment nor to Women nor to Infants nor to Idiots nor to Deaf nor to Dumbe nor Mad-men nor to any in custody nor to any who is not free of himself nor to any Atturney as Atturney nor where the Essoigner acknowledgeth the Cause in Judgement to be false nor after any Cape nor after distresse in the Land After the Essoignes of the Kings service lyeth an Essoigne of Malo veniendi but not è conâ—â—a The Essoigne of disturbance or hinderance is dividable either of sicknesse or of some other hinderance as of those who comming towards the Court are taken by the Kings enemies and so hindered or by Waters Bridges or enemies discovered or by Tempests or other reasonable disturbance so that they have not power to appeare at the day The Essoigne of hinderance and sicknesse is divideable either of languishing which is called De malo lecti and that holdeth place
in all Actions and some not but in Felonies Every one may Answer without a Tutor who is not forbidden by the Law The Law forbiddeth Married women to Answer without their Husbands but then we are to put a difference in the Cases for if she be within the age of one and twenty yeares she is not admitted to Plead in any Case without her Husband but in Case where her dis-inheriting or that which doth amount to as much doth appeare by the malice or negligence of her Husband if she be of full age then she shall so Anawer alone in cases of death and Felony and so it is of men within the order of Religion and of Villaines and of all those who are in Custody and are not delivered CHAP. III. SECT 2. What Exception is and the order of Exception or Plea APlea or Exception is a thing alleadged for Answer either to delay or barre the Action And there are two manner of Exceptions Dillatories and Peremptories The order to Plead is such that the Peremptory Plea is in the highest degree or the Dillatory may have a recourse to the Peremptory but not è contra And of Dillatories some are principall and some are secondary and from the secondaries there is no recourse to the principalls and according to their degrees are they put in partly to helpe out remembrance And some Exceptions are in Counts in Replications and Re-joynders and so forth untill the truth be cleared in the proceedings of the Pleas whereby one may surely come to give cleare Judgements Voucher to warranty lyeth not in personall Actions although that averrements by Record and Minements and Witneffes availeth CHAP. III. SECT 3. Exceptions Dillatories THere are many Dillatory Exceptions whereof the first is to the Judge and that many waies one unto the power of the Judge and that may be in two kinds by reason of the two kinds of Jurisdictions or because the King or his Iudge Deligate hath no Power or Counsance in the Cause as it is of the person of a Clerke by reason of the Priviledges of the Church or because the ordinary Iudge hath not power or Counsans of a thing done out of his Iurisdiction nor any one within a Franchise of a thing done in guildable nor Kings nor those of one Country or of one Land of things done in another Land or Country CHAP. III. SECT 4 Of Exception of Clergy FOr the Priviledge of Clergy as if a Clerke be ordered in Court before a Lay Iudge to Answer to an Action for a personall Trespasse and especially in a Case criminall and mortall Plead that he is a Clerke the Iudge hath no further Counsans of the Cause for the Church is so enfranchised that no Lay Iudge can have Iurisdiction over a Clerke though the Clerke will acknowledge him for his Iudge and in such a case he is without delay to be delivered to his Ordinary Neverthelesse to give Actions to Plaintiffes against the Accessories in Appeales and Indictments it belongeth to the Iudge Ex officio to enquire by the Oathes of honest men in the presence of the Clerke whether he be guilty or not and if he be 〈◊〉 thereof then he is without delay to be delivered to his Ordinary and the Plaintiffe shall Sue against the Accessories in the Kings Court and in the Spirituall Court against the Clerke and the Clerke after his due Purgation made shall without delay have all his lands and moveables delivered to him CHAP. III. SECT 5. Replication of Bigamy THe Exception of Clergy is sometimes Counterpleadable by a Replication of Bigamy in this manner Sit he ought not to enjoy the benefit of this Priviledge for he hath forfeited the same by the sin of Bigamy as he who hath Married a widow or many wives and note that Matrimony is the lawfull Order of joyning together of a Christian man and woman by their assents and as of the Diety and Humanity of Christ there is made an undissolveable Unity so was Matrimony and according to such Unity was such coupling found to be and therefore none can remaine in that Unity who takes to himselfe a Plurality and of a Plurality ariseth this offence of Bigamy which offence draweth Clerkes nearer the Lay Power And note that Bigamy may be two waies one by a Plurality of 〈◊〉 Vives as he who Marrieth two wives or more the one after the death of the other or out-living the other the other is plurality of Husbands as well as wives as it is of a widow who suffereth her selfe to be Married to another man whether her widowhood came by the death of her Husband or by Divorce and because it belongeth to say in what point a Clerke is Bigamus the Bigamy is triable in the Lay Court if neverthelesse the Jury doubt thereof then the Ordinary is to certifie the same at the Command of the King as in the case of Matrimony when it is denyed On the other side a Clerke is incounterable by other Replications as he is for being a murderer or a notorious lyer or of such a condition as the Church is not to protect him against the Kings Peace CHAP. III. SECT 6. Exception to the Power of the Jadge AGainst the power of the Judge the Defendant may help himself by other Dillatory Pleas in this manner Sir I demand the sight and the hearing of the Commission whereby you claime Juriâ—diction over me and if the Judge doe not deny it or cannot shew it notwithstanding that no Judge Deligate is compelable to shew his power yet may the Party plead thus Sir I appeale from this Commission because it maketh no mention of the Cause for which I was brought to Judgement or not of that point Or because you have no Counsans in such a point or because it is vicious and that may be divers waies as if it be not sealed with the Kings Seale of the Chancery for none is tyed to yeeld obedience according to the Lawes and Customes of the Realme to the Kings Privy Seale or to the Seale of the Exchequer nor unto any other Seale but onely to the Seale which is assigned to be known of the common people and especially in Jurisdictions and Originall Writs if not for the King only Or it may be vicious because the Seale is counterfeited or falsified or because the King is not named in the Writ he not being out of the Kingdome not in Ward or because the Writ containeth Summons in the Action where it is personall or Attachment where the Action is mixt or reall or because the Seale is not fastned to the Parchment but one may remove it and take it from it at his pleasure Or because the Writ was brought too late or too soone Or because it hath rasure or enterlining and diversity of hands and of words or false Latine Or because the Writ is written upon Paper or Parchment which is forbidden Or for default found in the Writ as the omission or transposition of
a word fillable or clause as it is of abatable Writs Or because the King dyed before the Writ was brought or because the Writ is false in in the day of the date or because the Commission requireth the association of one who is not present Or because the Writ was never sealed or because the fact was not done within his Jurisdiction or in a place not there determinable or because the Iudge hath not power or Counsance either of the quality or the quantity of the thing CHAP. III. SECT 7. Exception to the Person of the Judge ALthough the Writ be good and the Power be sufficient yet there holds Dillatory Exceptions to the Person of the Iudge as it is said of such Persons who cannot be Iudges CHAP. III. SECT 8. Exception to the time OTher Dillotories there are of time of place of houres of manners c. And note there are three manner of times exempted from Pleas in which no Patries fit in Courts and give Iudgements whereof two are by Law and the other at the Will of the King One time containeth two Moneths viz. August and September which are assigned to gather 〈◊〉 the fruits of Corne c. The other times containeth the Feasts and the Sundaies which are appointed Feastivalls for the honouring of God and the Saints which Feasts are these 1 The day of the birth of Christ of St. Stephen of St. Silvester and the Epiphany and the Purification of our Lady Easter weeke of the Rogations which containe three daies of the Assention of Pentecost of the Nativity of St. John the Baptist of the twelve Apostles of St Lawrence and of the Assumption of the Mother of God and her Nativity of St. Michael and of all Saints and of St. Martin with all such Feasts which all Bishops hold Feastivalls in their Bishopricks for that they are Canonized besides these the dales of Reliques of the Anunciation of the Mother of God and of her Conception and of the invention of the Crosse And note that whereas God Commanded to keepe holy the Sabbath day it was Ordained after the Resurrection that we keepe holy the Sabbath Daies The third time is forbidden by the Kings Proclamation of Houres may arise Dillatories for after the houre of Noone or in the Night no Plea is to be holden CHAP. III. SECT 9. Exception of the place OF the manner arise Dillatorie for in Riding nor in Walking nor in Tavernes nor else where but in knowne places for a Consistory can any Court be holden CHAP. III. SECT 10. Exception to the Person of the Plaintiffe OTher Exceptions Dillatories arise from the Persons of some Plaintiffes as it is of those Persons who are rebukeable of accusations Other Exceptions Dillatories rise from the Persons of the Pleaders or of the Atturnies or of the Essoigners for none can doe that by his Atturney which himselfe cannor doe nor can any be an Essoigner Atturney or Pleader who may not be a Plaintiffe CHAP. III. SECT 11. Exception of Person and of his Custody OR he may take Exception against his owne Person and say that he is not within the Kings Power or if he be imprisoned for a greater offence or Appealed or Indicted of Crime or of a higher Crime Or he may say that he is not bound to Answer thereunto for as much as he is not brought to Judgement by a right course which willeth that no man may be attached by his body when he is distreyneable by his Lands or other goods if not for a personall offence Or he may say that he is not tyed to Answer to any Action which toucheth losse of life or member or right of property untill he be of the full age of one and twenty yeares or more and there are other Dillatories of the Persons of the Answerers which â—ppearebefore CHAP. III. SECT 12. Exception of Summons IN Pleas of Summons he may say he ought not to Answer because the Plaintiffe holdeth no Suit of Distresse nor hath any other manner of proofe present Or because the Plaintiffe hath not found Sureties to pursue his Plaint or because he was not summoned or not reasonably summoned or that he received the Summons by no Free-man or but by one Freeman Or because he was summoned too late or because he was never summoned what thing to answer to or because he was not summnoned against the Plaintiffe CHAP. III. SECT 13. Exceptions of vicious Couâ—â—â— AS Writs which are vicious are abaâ—â—able so also are vicious Appeales as if the Appeales be not brought within the yeare after the Felony done or not before the Coroner or not in the County where the offence was done or not in a right place or for variance or for Omission or Interuption or because the Plaintiffe is batred against others in the same Appeale Sometimes it happeneth that the thing which is robbed or stolne is found in the possession of a true man against whom the Owner of the property or of the possession frameth his Appeale as he who is a Robber of another in which case there is a difference for if it be found that such a thing was given sold or delivered to him without Coliusion in such case the possessor is acquitted or at least Bayleable untill the next comming of the Iustices and when the Iustices come the first possessor thereof is to be Arraigned and he may shew how it came to him neverthelesse if he would vouch one to warrant it he cannot nor deny the Title of his possession but in the name of Voucher he may say that it came to him by lawfull Title as that he bought it in such a Market or in such a place without mentioning of whom and the Sheriffe is thereupon to cause a Jury to be impannelled and if the Answer be found true then he is acquitted and if not then to be condemned as before as if the Plaintiffe had proved the felony And if any one appeare and justifie the thing to be his he is not to be received as a Party but the Cause is first to be tryed betwixt the two first afterwards he may make the estranger a Party if he will and if the case be that the buying was within a place within a Franchise and the Sheriffe returne that he cannot execute the Writ by reason of the Franchise of such a man or of such a place in such case the Sheriffe is to be Commanded that he forbeare not by reason of the Franchise but that he enter and execute the Writ And if the Possessor saith That he came to the thing from a man certaine and he be present and will maintaine the same without Collusion he is to be admitted thereunto and the other is to be discharged and if he deny the Contract this affirmative and this negative are tryable by Battaile or Jury neverthelesse at the Kings Suit the possessor ought make title to the Possession or cleare himselfe thereof for two things are necessary Conscience for us and
Fame against others And that which is said of making of Title to the possession of things in Case where a false Writ or false Mony or Larcine or thing lost or Estrey or other hurt is found at the Kings Suit although that the last professor acquit himselfe of the selony if the Plainliffe neverthelesse prove the thing to be his as of his possession or stoll en from another or otherwise lost the Law is that he recover the thing without any payment for it Or he may have Exception Dillatory to a vicious Deed for varience betwixt the words of the Writ and the nature of the Action and the Count as if he have omitted to Charge me or if he Charge that in the Count which was not to be in that Action as felony in a veniall Action And as the Defendant hath a Dillatory Exception to abate a vicious Count in like manner hath the Plaintiffe a Replication against the Defendant upon a faulty Answer but because none is to be Iudged for not Answering in Appeales of Felony it is sufficient for every one to deny the fellony generally though he Answer not particularly to every word mentioned in the Appeale And in Cases venialls where the Defendants say nothing in excuse of that which is offered against them in Judgement they are to be adjudged and Condemned as not Answering at all in the same manner is it where one Answereth not duly or insufficiently CHAP. III. SECT 14. Exception to Approvers TO an Approver one may thus Answer Sir I am a true man sworne to the King and within a Franck-pledge and this Approver is a Felon attainted by his owne confession and our of the Kings protection by consequence out of the Kings Peace whereby he hath lost his free voice and lost every right and every Action so as he is not to be admitted in any Action no more then a man who is Out-lawed by Judgement Or he may plead that he ought not â—o Answer him because he did not Appeale him in his first Appeale or not before the Coroners and if the Approver cannot helpe himselfe by this Replication as â—o say that he is not any way out of the Kings protection the Defendant is bound to Answer him but he is not to be delivered to the Fee-pledges where he is in the Decenry or to other Main-prisors untill he be appealed or indicted CHAP. III. SECT 15. Exceptions of Indictments THese Exceptions hold to Indictments Sir I demand sight of the Indictments whereby I may take exceptions againâ—â— the persons of the Endictors or to the sorme of the Indictment for no Villaine can indite any man Or if the Indictment be not made by 〈◊〉 whole dozien of Free-men or by 〈◊〉 who cannot indict any man Or if the Indictment be not sealed with the Seale of the twelve Jurouts or 〈◊〉 it is not the record of Iudges 〈◊〉 thereunto Or if the Indictment hath not been within the yeare or by people of credit and of good fame no man is bound to answer to such an indictment Nor if the Indictment hath not been made within the Neighbour-hood of the same County also if the Indictment be generall for a generall slander defameth no man nor is he compelled to answer thereunto as if the Indictment be such a one is a Murderer or a Thiefe or wicked without alleadging any particular offence therein for to the common fame of the people an Indictment ought to give no credit or beleefe Or he may say that the Iustices went the Eyre after the felony done where nothing was moved of this felony CHAP. III. SECT 16. An Answer to Treason DArling here denies all Treasons and Felonies and whatsoever is against the Kings Peace And as to the consideration he may say thus Sir notwithstanding the joynt Alliance betwixt us by Homage sometimes before this time neverthelesse when he counted that I should commit this Treason I had yeelded up to him all the Lands which I held of him or I lost them by Judgement or by Disseisin which the Plaintiffe did to me or he appointed them to come to others in which case the felony is barred and the Plaintiffe is condemnable And as to the consideration of present Fealty he may say that this Alliance the Plaintiffe forfeited against him in such a point or such a point such Fealty issued out of such Lands whereof the Defendant was not then Tenant neither in demeane nor in service And to the Alliance of Courtesie he may say that such benefit was not to continue but untill a time past before the time named in the Appeale for afterwards he paid him nothing of such Pension or other Courtesie but by Iudgement had against him and in despite of him Oâ— thus before the time named in the Appeale he yeelded up to him his deed of the Pension or released the same unto him or quit-claimed the same whereby the Alliance was destroyed CHAP. III. SECT 17. TO Burning he may say that the mischiefe came by mischance and not of a premeditated felon CHAP. III. SECT 18. Murder TO an Appeale of Murder he may plead that the Action belongeth not to such women as the wife of the Plaintiffe because he was not killed in her armes or in her seisin Or thus Sir the Plaintiffe is to have no Action for as much as there is one nearer of blood who hath brought his Appeale and is a person of ability so to doe Or he may say that he is not bounden to Answer in England unto an Act done out of the Realme if the thing concerne not the Kings right as his Person or his Inheritance nor in a Priviledged place where the Kings Writ runneth not of an Act done in a forraigne place nor è contra in a Franchise of an Act done in Guildable Or he may say that he did it not feloniously but by mischance or by a lawfull Judgement or thus not against the Peace as a Fugitive or as a known Felon or as one who was not within Allegiance to the King at the time of the killing CHAP. III. SECT 19. TO an Appeale of Robbery or of Larcine he may plead that he wrongfully bringeth this Appeale for as much as the Plaintiffe brought an Action of Trespasse against the same Persons of the same before such Iudges and if any one would cover his Larcine by colour of Avowry for an estray or a Waife in such case it behooveth thathe shew forth a Title allowable for such a franchise but this exception is counterpleadable by this peremptory replication Sir such Avowry ought not to be of any force because he presently carried away the Estray or Waife so found or changed it or sold it or killed it or put it out of the View or from the knowledge of the neighbour-hood whereas he ought to have publikely cried it in three Markets and Monasterles next adjoyning and keepe it in a common place for a whole yeare To the exception of Distresse
holds this Replication Sir such Avowry ought not availe him because he was not a knowne Bayliff in such a Hundred or because he did not any thing in the manner of a distresse as not in a due time nor had any warrant but tooke it in the night time or in such other manner feloniously robbed him and stole c. and in the like manner may a Replication hold against a robbery made by colour of disseisin CHAP. III. SECT 20. Of Burglary TO Burglary he may say That he entred into the Tenements without doing any Felony and not against the Peace as in to his owne demeane and free-hold CHAP. III. SECT 21. Of Rape IN Appeale of Rape he may deny the Felony and say that he ravished not her against her wil but that she assented and that appeareth because she conceived by him at the same time and there is no presumption that she was ravished against her will by fouling of her Garments nor shedding of blood nor Hue and Cry made or other manner of violence offered CHAP. III. SECT 22. Of Imprisonment TO the Appeale of Imprisonment he may say that he did it by force of a rightfull Judgement of such a Iudge but to that Plea is this Replication good that after there came a Warrant to him to deliver him he kept him in prison for the time named in the Appeale CHAP. III. SECT 23. Of Mayhem and Wounding IN Mayhem he may demand the View thereof for he cannot lawfully complaine when there is no Mayhem to be Iudged of and of Appeale of Wounding in the same manner By the death of the King all Pleas are suspended all Goales opened no Iudge Bayliffe or other Officer ought to entermeddle therewith for want or warrant and all Out-lawes and all Waives and those who have forjured the Realme and all banished Persons used then to returne except those who were exiled and banished for ever and if any recovered before for that he could not have Dett if he were not justâ—fied to the Peace and if he be brought to Iudgement and if he be accused of Outlawry he may say that he is discharged of the Outlawry by the Kings grant Or he may say that the Outlawry ought not to prejudice him because he was under the age of 2. yeares at the time of the Outlawry and therefore that he was not Outlawed for the felony Or because the felony was not done in such a County or because he was not Out-lawed in England or not within the Kings Dominion where the Writ runneth for an Outlawry prouounced against a man in the Bishoprick of Durham or elsewhere in the Land where the Kings Writ doth not run shall prejudice as one in the Land where the Kings Writ runneth Nec è contra Or because the felony was not done in the time of this King or not since the last Eyre in that County Or because the Processe of the Outlawry was false by a false Warrant or without any Warrant or because he lay sicke and was Essoigned De malo lectâ— or because he is alive for whose death he was Out-lawed or because he was Imprisoned the day of the Outlawry or because he was in the Kings service in the Holy Land or within the Realm for the profit of the Common-wealth Or because he had the Kings Protection or because he was a Mad-man or an Idiot or Deafe or Dumbe or professed in Reliligion in which cases if he pray to be received to Answer he is to be received And the Plaintiffe was to be demanded and it was to be proclaimed that if any one could shew why he should not be enlarged that he appeared at a certaine day All Parties in Iudgement are necessary to be present and they are to have Oyer of the Writs of the Originall the Plaintiffes Commission the quantity or the quality of his plaint And the Disseisor or their Bayliffes every one of them for himselfe may say in this manner he may Answer and say for himselfe that he hath not done any wrong or disseisin nor hath any thing in the Tenements put in the Plaint and he may so Answer and so of others till it come to the Tenant in whose name the disseisin was and he may Answer and say that he is not in by disseisin but is in by D. who infeoffed him who is not named in the Writ and it may be that D. entred by E. and so there may be many according to divers Feoffments betwixt the first Disseisor and the Tenant in which cases no Voucher to warranty holdeth place for a Personall Trespasse and therefore every one is well to looke not to make a Contract of a vicious thing and that he take Caution and such Surety in the Contract that he may have a recourse to recover if he lose the thing and therefore the Lords used so keepe their Mannours that none could enter by Intrusion Disseisin or by other vicious bargaines not otherwise unlesse the bargaines were entred in their full Courts whereby the Lords could not have received their enemies into their Mannours nor have taken their Homage against their wills nor any used to enter before they had found Sureties to restore to the Purchasor or his Heires the value of the thing if by rightfull Iudgement it belonged to him after his thing lost for the offence of Allienation or for his power of this warranty To the principall Disseisor it belongeth to have a regard if the Plaintiffe put more into his Plaint that he Answer not but to that which he may avowe he may say that there is varience betwixt the Originall and the Commission or that the Writ is vicious as it is in misprision of names or fit-names Of names as Renand for Harrand Margery for Margaret and such like or he may say the Writ is faulty for want of Sirnames or if the names of Dignity be omitted as if a Bishop Abbot Prior or other be disseised of any thing in the right of his Dignity and he makes his plaint simply of a Trespasse done onely to his Person and not to his Church or Dignity in this manner A. complaines to you wherea he ought thus to make his Plaint A Bishop of London and so it is of Disseisors Or he may say that the Writ is vicious because the Plaintiffe who is solely in the Plaint hath no cause of Action but with another who is not named in the Writ Or it may be faulty if it be not contained in the Writ Dissersivie eum where it ought to be Dissersivie eam or eos where it should be ewn or eam etè contra It is contained in the Writ wrongfully and without Judgement c. and to that one may plead not wrongfully but rightfully denying any other force And note that one may be disseised wrongfully and without Judgement and wrongfully and by Judgement as it is of those who are disseised of their Free-holds by the Judges who have no Iurisdiction and neverthelesse
Crime blemishing his credit or wrongfull slandering him of any personall wrong For those 3. Pleas are held odious the one because the Holy Scripture forbiddeth vengance to men but the punishment of Offendors belongeth to God and God commandeth to shew mercy and that is against the Appeale of Felony The other of attainder of perjury is odious â—or the Corporall punishment which followth thereupon The 3. because it is against the Law of Nature which will not that any man should be in slavery to another Creature Againe those who combate deadly for reward who are vanquished in the Combate by Judgement berwixâ— two men those who with-draw themselves from Bartailes when they have undertaken the Combate if therein they make default those who keepe Brothell-houses of loose women those who take againe their Wives after their finne of Adultery is knowne to them or keepe those suspected of that sinner those who are Adulterours those who Marry other Wives leaving the first those who are Elâ—opours or Ravishers those who take rewards to suffer those who cast out their Children to death those who ravish their Cousens or Affines those who Marry a Wife within the yeare after the death of their former Wives those who suffer themselves to be Married within the yeare after the deaths of their first Husbands those and they who Contract Martâ—ages elsewhere leaving their Wives or Husbands and those who too soone purifie themselves and many other infamous Persons are to be punished by Corporall punishments in divers manners CHAP. IV. SECT 14. Of Majesty THe punishment of the mortall Sin of Majesty against the King of Heaven Sodomy is by burying the offenders alive deepe in the earth so that the remembrance of them be forgotten for the great abomination of the fact it being such a sin which calleth for vengeance from God and which is more horrible then the ravishing of the mother but this offence is not to be brought before any Judge by way of Accusation but the very hearing of it is forbidden The Judgement of Romery is by fire either to be burnt or hanged The Judgement of Heresie is foure fold one is Excommunication another Degradation the third Dis-inheriting the fourth is Burning to Cinders The Judgement of Majesty against the Earthly King is by punishment according to the Ordinance and pleasure of the King The Judgement of falsifying and of Treason is by drawing of the Parties and hanging them till they be dead CHAP. IV. SECT 15. Of Burning THe Judgement of Burning is to hang untill the Parties be dead which used to be by burning and in case where the damageous burning is by encrease of any combustable matter it was used to cast them into the fire when they found them fresh in the doing of it CHAP. IV. SECT 16. Of Murder THe Judgement of Murder is commonly by hanging untill the Parties be dead in Felonies not notorious and in notorious it is by beheading the Murderours neverthelesse we are to distinguish for some kill men and offend not nor deserve any punishment some are Man-slayers in signification and not by name and some are slayers of themselves The first are Lawfull Judges who by a right Judgement and good Conscience kill men and the Ministers or Officers who doe Executions of such lawfull Judgement and also as it is of those who kill without Judgement and without offence as it is of those who are without discretion and kill men as Mad-men Idiots Infants within the age of seven yeares and those who kill men in keeping of the Kings Peace and of those who kill by Law as of those Men-slayers who kill men in their mortall offences notorious in Fact and as in is of those who kill men in their owne defence who otherwise cannot save their owne lives The other sort is of those who have a desire to kill and cannot as it is of those who cast Infants sicke people old people in such places where they intend they shall dye for want of helpe and as it is of those who so paine innocent men that to avoid the same they confesse themselves to have mortally offended those who Condemne men by corrupt Judgement although that they doe not directly kill them and as willfull Men-slayers who Appeale or Indite innocent Persons of mortall offence and prove not their Appeales or their Indictments and although these used to be Judged to death neverthelesse Ring Hen. the 1. Ordained this mitdgation that they be not Judged to dye but that they have Corporall punishment and of those who wrongfully Appeale yee are to distinguish for if any one hath appealed another so falsly that there was no colour of Appeale by Judgement or other reasonable proofe in such case he was to be adjudged to make satisfaction to the Party and afterwards to suffer Corporall punishment King Kannte used to Judge the Maine-prisors according as the Principalls when their Principalls appeared not in Judgement but King Hen. the 1. made this difference That the Ordinance of Kanute should hold against Maine-prisors who were consenting to the Fact and the other should be adjudged against the Plaintiffes according to the example of the Principalls if they were present and against the King they were punished with a pecuniary penalty The third Case is of those who burne hang hurt or otherwise kill themselves Againe yee aâ—e to distinguish of other Men-slayers as of Phifitians Jurours Justices Witnesses of Idiots Mad-men and Fugitives for Phisitians and Chirurgions are skilfull in their Facâ—â—ties and probably doe lawfull Cures having good Consciences so as nothing faileth to the Patient which to their Art belongeth if their Patients dye they are not thereby Men-slayers or Mayhemors but if they take upon them a Cure and have no knowledge or skill therein Or if they have knowledge if neverthelesse they neglect the Cure or minister that which is cold for hot or hot for cold or take little care thereof or neglect due diligence therein and especially in Burning and cutting off of members which they are forbidden to doe but at the perill of their Patient if their Patients dye or lose their members in such cases they are Men-slayers or Mayhemders Judges Iudge men sometimes falsly to death wittingly and sometimes out of ignorance in the first case they are Murderers and are to be hanged by Iudgement and not onely those who gave the Iudgement but the Accessories Abbettors and those who hindred not such Iudgement when they might have done it Andin the second place yee are to distinguish for one mannet of ignorance is as of a thing known had nor been known and this kinde of ignorance doth excuse the other is of a thing not knowne which ought to have been knowne although he was not bound to know it and this excuseth also the third kinde is which commeth of not knowing that which a man is bound to know and this excuseth not And note that ignorance in its selfe is no offence but this neglect of
knowing is an offence The Iudge doth not offend so much that he doth not make the Law but he offendeth in foolish undertaking upon him to Iudge foolishly or falsly The fourth kinde of ignorance is that a man Iudgeth of a thing otherwise then rightfull and if such ignorance come of the fact it excuseth and of the Law then it excuseth nor Or thus there is one manner of ignorance which one may overcome and such excuseth not and there is another kinde of ignorance which one cannot vanquish and such excuseth whether it come by nature or by too much passion or sicknesse as of rage And that which is said of Iudges is to be intended also of Iurours and of Witnesses in cases notorious where many entermedle feloniously and any one be killed and there be no cause to kill him in case also where a childe is killed by too much beating and in case where many have wounded one man who dyeth of one sole stroke all of them generally are adjudged Men-slayers for the apparant evidence of the fact for none but God can Iudge the intentions of those that gave the stroke that it was to kill nor who intermedled therein to hinder that any hust were done with a good intent some who command what may be for hurt or may be for good some which held the Parties and others who stroke Againe yee are to distinguish of other Men-slayers as some kill those who enter to doe a mischiefe if such cases be not notorious their acquittance or Condemnaon is in the discretion of the Sutors also in case when people kill a man in defence of themselves and their possessions as it falleth in diffeisins Againe if a man draw another to fence with him or to shoote with him and he giveth him such a wound as if he meant willingly to murder him the same is not to be Iudged for murder seeing men cannot Iudge but according to Facts and not according to the intents or thoughts of the parties hearts Of Fooles also yee are to distinguish for all fooles are accountable Menslayers as to have Iudgement but only Idiots and Infants within age for a crime cannot be done nor an offence but through a corrupted will and a corrupt will cannot be but where there is discretion and innocency of Conscience doth save fooles outragious and therefore Robert Volround ordained That Idiots being Heires should be in the custody of the King for their Marriages and for their Inheritances of what Mannours or Lords soever they held their Lands Likewise yee are to distinguish of Mad-men for Frantickes and Lunatickes may offend mortally and so they are to be accounted and Iudged for Man-slayers but not those who are Mad continually Of Infants also yee are to distinguish of Infants Murderors and of Infants killed the Murderors within the age of one and twenty yeares are not presently to be Iudged to death in a fact not notorious before they be of full age Of Infants killed yee are to distinguish whether they be killed in their Mothers wombes or after their births in the first case is is not adjudged Murder for that none can judge whether it be a Childe before it be seene and knowne whether it be a monster or not and to Infants killed in the first yeare of their age the Counsance belongeth to the Church Of Fugitives and of those Defendants is the distinction which followeth he who killeth a Fugitive after that he submiteth himselfe to the Kings Peace in a fact not notorious he is to be adjudged to death as a Man-slayer otherwise not and he who killeth a man defending himselfe who might flye and avoid the killing is also to be adjudged to death as a Man-slayer otherwise not Of the offences of Robbery Larcine Burglary where the damage exceedeth 12. pence where the offenders are taken in their offences the offenders are to be killed by losing of their heads if the people be present after the fact and testifie the felony and in cases not notorious the Iudgement is to be hanged till they be dead And if the Defendant be a Woman yee are to distinguish whether she hath a Husband or nor who is yâ—t living and also of the Action whether it be mortall or not for if the be and was sole without a Husband which she hath married at the doore of the Monastery and the Action be mortall she shall answer as a man doth and if she be a Feme-Covert yee are to distinguish for if she be accused of a mortall Crime as principall she shall answer and if as an Accessory then yee are to diflinguish for if she be accused of consenting to the felony of her Husband or to any other her Husband not knowing it yet yee are to distinguish of the Crime os the offences of Larcine of Burglary and of other sinall offences she may answer That she was under the command of her husband and that she could not contract him that answer is peremptory in Latcine and if without the knowledge of her Husband she shall answer And if a Woman without her Husband be accused to have been in the company of a Theefe for a minute or a very small time she may say that she was not in his company but as his Concubine Of mortall Judgements of Outlawry of Abjuration of the Realme of vanquished in Battailes for mortall felony and otherwise attainted of a notorious mortall offence or not notorious the offence is such that the blood is corrupted and of the offenders the blood is extinct in every discent in right of blood so that nothing can descend from them to any of their Heires either next or remote by discent but all shall remaine to the Lords of the Fee from the time they committed the offences whoever were Tenants thereof in the meane time by what Contracts soever and all Fealties Contracts and Obligations are blotted out thereby And of Fugitives it is according as it is with Out-lawes and their goods which remaine besides what belong to others remaine forfeited to the King And the like in remembrance of their selonies in hatred of the felons it is lawfull to destroy all their mansion houses to erradicate their Gardens to cut downe and wast their Woods to plow up their Meadowes or otherwise over turne them which King Hen. the 1. did moderate at the request of the Commons in this manner for the saving of the Lands of mortall felons in their hands of what Mannor soever they were holden that he should hold the same and should take the profits thereof for one yeare and should doe wast if there were not other agreement made with him For the offence of Rape the Iudgement was to be hanged till he dyed without having regard whether the Woman ravished were a maiden or not or without distinguishing of what condition she was and whether at the Suit of the person or at the Kings Suit which offence before the time of King Edw. the second was
only Corporall punishment holdeth place which passeth the punishment which should be adjudged to others not the Kings Offices according to the Kings pleasure CHAP. IV. SECT 15. Of the Offices of Justices in Eyre THe Presentments of offences are Ex officio by Coroners by Sheriffes and Bayliffes in Turnes and viewes of Franck-pledge by Enquests and speciall Iustices and by Kings Ex officio or by their Chiefe Iustices or of their Iustices generalls and because that the one have not power to determine the presentments of such offences nor to punish the Trespasses and the other who can will not or doe not that duty which of right they may doe or punish the innocent and spare the guilty It was anciently Ordained that the Kings by themselves or by their Chiefe iustices or by generall Iustices to heare and determine all Pleas should goe Circuit every seven yeares through all Shires to receive the Roles of all Iustices assigned of Coroners of Inquirers of Eschetors of Sheriffes of Hundredours and of Bayliffes and of all Stewards of all their Iudgements Enquests Presentments and all their Offices and to examine those Roles whether any had erred therein either in the Law or to the damage of the King or to the grievance of the people and those things which they found not determined that they should determine them and in the Eyre they should redresse the Officers and punish the negligence of them according to the Rules of Law and that they should enquire of all offences which belonged to the Kings Suit and to his Iurisdiction And note that notwithstanding the King had the Suits of all mortall offences and of wrongs done to the Law and to the right of his Crowne it is not thereby to be understood that he should have the Suit of all offences but if any one be Plaintiffe and doth not proceed in his Suit after the same is affirmed yee are to distinguish if it be of a personall offence 〈◊〉 it susâ—â—eth for the Defendants for the Non-suit of the Plaintiffe doth suppose 〈◊〉 of the damage and if it be of a mortall offence yet the King hath nor the 〈…〉 warrant of Appeale or Indictment wherein it behooveth to the Appealees and Enditees that they make haste to acquit themselves for none is bound to Answer to any manner of Action brought by them because they are barred by an Exception of mortall infamy by being Appealed or Indicted CHAP. IV. SECT 21. Of the Articles in Eyre EVety Shire usedto be warned by forty daies at the least by generall Summons of the Kings comming where after the Effoignes adjourned and the Assize of Victuals set and the Ordinances proclaimed and those of Franchises adjourned and the Jurours called Sworne and Charged with their Articles and the claimers of Franchises and the Rolls of the Justices of Coroners and of all Sheriffes and of all other manner of Pleas and Presentments after the last Eyre taken and received the first thing was to enquire heare and determine the Articles presented and brought in the last Eyre which were not ended and afterwards to determine Writs and Plaints to deliver Visnes to examine the Rolls to redresse the errouts and all other wrongs by right Judgements without respect unto any person All the Judges Ordinaries and Assigned Sheriffes Bayliffes and Stewards of Lords of Mannours and all other who claimed Iurisdiction which any one could attaint of any wrong done against the right rules of Law were condemned for the wrongfull Iudgements with regard to the distinction of the Parties grieved Coroners Eschetors Sheriffes Bayliffes and other Ministers doing wrong to the King or to the people used to be punished according to the example of the other and further according to the Kings pleasure The offenders which were found using false Scales and false Measure and gaining by breaking of any Assize either of Bread Wine Ale Cloth or other Merchandizes used to be set in the Pillory and Women in the Tumbrell and afterward were not suffered to Merchandize at any time not could they depart from the place or Towne to any Liberty because the usage was contrary to Law Cut-purses taken De facto in their notorious sins used to be hanged and for the cutting of Purses and stealing of other goods under the value of twelve pence and lesse then sixe pence one of their eares used to be cut off without carrying them to Prison or before any Iudge Assigned and to banish them from the Towne or from the Mannot for the second offence And for their â—arcine under the value of 〈◊〉 pence they used to set them in the pillory for the first offence and to banish them for the second In the Iudgements of Personall Trespasses venialls as to the taxing of the damages put in plaints Martin De Pateshall used this course the Judge used to enquire ex officio of the Iurours by whom any principall Trespasse was adjudged before him the names of all these who were guilty in the first degree and of the Accessories and therein he proceeded to Iudge the damages according to the number of the Endictors so that no Plaintiffe should recover no more entire damages by plurality of Plaints for one sole trespasse against the Trespassours severally CHAP. IV. SECT 22. Of Franchises OF Franchises note that because the King doth not hold his Rights and Dignities of his Crowne but as an Infant nor a grant from him of any franchises is so established that Kings cannot repeale them againe so as he give satisfaction to the value as by warranty and it is lawfull for every one who findeth himselfe grieved to Sue for the King to seize every Franchise forfeited for contumacy as if the Bayliffe of a Franchise doe not execution of the returne of the Sheriffe according to the Command of the King by any abuse as by using his frâ—nchife too largely or not duely by a Writ ensuing it is commanded that the Sheriffe enter into the Franchise and the King doth recover the seisin thereof and so the same becomes guildable which was before a Franchise And all those used to forfeit the Franchise of keeping of a Goale in Fee who by title of Franchise of Infangthiese or of return of Writ hurted not without delay the Persons taken in the places within the Franchise for Felony done in Guildables and send them into the Goale in Guildable so that the King doe not lose the Goods and Chattels of the Felons nor his other rights for the King giveth no Franchise to his owne prejudice nor to the prejudice of others especially of returne of Writs nor to have the custody of a Goale An example may be as betwixt two Neighbours in a Franchise the one cannot keepe a Prison to the prejudice of the King and if he doe he forfeiteth the Franchise And it also appeareth that Iurours came out of Franchises before the King and his Commissioners to Guildable and elsewhere at his command as well upon criminall Actions as upon
time in case where the right Heires fly from their Lords or cannot or will not doe their homage In the points of Wards it is defective for as much as no difference is expressed between the heires Males and the heires Females for a woman hath her age when she is fully of fourteen yeares and the seaven yeares besides were not ordained first but for the Males who before the age of one and twenty yeares were not sufficient to beare Armes for the defence of the Realme And note that every Guardian is chargeable to three things 1 That he mainetaine the infant sufficiently 2 That he maintaine his rights and inheritance without waste 3. That he answer and give satisfaction of the Trespasses done by the infants The defect of the point of Disparagements appeareth amorgst the Statutes of Merton And the default of Franckbenches and Widowes in the same manner in which point it is sufficiently expressed that no woman is dowable if she have not been sollemnly espoused at the doore of the Monastery and there endowed In the point which requireth that the City of London have its ancient Liberties and her free Customes it is to be interpreted in this manner That the Citizens have their Liberties whereof they are inherited by lawfull Title of the gifts and confirmations of Kings which they have not forfeised by any abuse and that they may have their Liberties and Customes which are sufferable by Law and not repugnant to the Law And where it is said of London that the interpretation be as well of the Cinque Ports and of other places The point which forbiddeth tortious Distresses for Fees is Covenable in it selfe but the same shal not grieve any man of the Realme who hath Tenements that it is no Trespasse in him or by his Ministers as appeareth in the Chapter of Nativo habendo The point which forbiddeth that Common Pleas follow not our Court is to be interpreted in this manner That the people shall not travail to Sue in the Kings Household in the Country as they used to doe But this point willeth that the Plaintiffes have Commissions to Sheriffes to Lords of Mannours and to Justices assigned so that right be done to the parties in certaine places where the Parties and Jurours may be the lesse travailed Although it be that the Chapter command that Petit Assizes be taken in their Counties being made for the ease of Jurors yet it is disused in as much as the Justices make the Jurours to come from the furthest marches of the Counties whereas it were better that the Justices Rod from Hundred to Hundred then so to travaile the people The point of Amercements is misused by Iustices Sheriffes Bayliffes Stewards Cap. 14. and others who amerce the people in certaine in this manner putting such a one to so much for a Contempt or other Trespasse withont a personall Trespasse and without the afferment of the people sworn to it and without specifying the manner and the quality of the Contempt Againe where the Afferrours ought to be chosen with the assent of those who are amerced and in a common place the Lords make the Afferrours to come to their houses to asser the Amercements according to their pleasures The point which forbiddeth that Rivers be defended is dis-used Cap. 16. for many Rivers are now appropriate and gotten and so put in defence which used to be common to Fish in in the time of King Hen. 1. Cap. 17. The Chapter which forbiddeth that Sheriffes Constables Coroners nor Bayliffes shall hold Pleas of the Crowne seemeth not needfull for appeales of felony are not here to be brought before Coroners and the exigents and Iudgements pronounced and therefore this point had need to have had more words to have expressed the meaning of it For the end of the Chapter of the moveable good of the dead it appeareth that the Action accrueth to the Widowes and to the Children to demand their reasonable parts of the goods of their Father taken away That which is forbidden to Constables to take is forbidden to all men Cap. 19 20. in as much as there is no difference betwixt taking from another against his will and liberty whether it be Horses Victuals Merchandizes Carriages or other manner of goods The Chapter for holding the Lands of Felons for a yeare and a day is out of nse for whereas the King ought not to have the wast by Law or but the yeare in the â—â—ame of Fine for safeguard of the land from spoile the Kings Oâ—â—cers take both The defence of the Precipe is not holden in that they doe it without Writs of possession of Farmes every day that the Lords lose the Cognizance of their Fees and the advantages of their Courts The point which commands that one Measure be throughout the whole Realm and one Weight is dis-used by Merchants and Burgesses using for the pound the old Weight of twenty shillings of right Assize and also of Ells and other measures The defence which is made of the Writ De odio atia that the King be not Chancellor nor take any thing for granted the VVrit ought to extend to all remedial VVrits and the same VVrit ought not extend onely to the felonies of Murder but it ought to extend to all felonies and not onely in Appeales but in Endictments The point which forbiddeth that no Bayliffe put a Free-man to his Oath without Suit is to be understood in this manner That no Justice no Minister of the King nor other Steward nor Bayliffe have power to make a Free-man make Oath without the Kings Command nor receive any plaint without Witnesses present who testifie the plaint to be true The point where the King granteth that he will not disseise nor imprison nor destroy but by lawfull Iudgement which overthrows the Statute of Merchants and other Statutes is to be interpreted thus that none be arrested if not by warrant grounded upon a personal Action for if the Action be veniall no Imprisonment is justifiable if not for default of Maine-pernors And so it appeareth that none is imprisonable for Debt And if any Statute be made repugnant to this point either for the Kings Debt or for the Debt of any other it is not to be kept That none be Outlawed is to be meant if not for mortall felony from which one is saved by the Oath of Neighbours ex officio as it is the use in Eyres and therefore that destroyeth the Statute of Outlawry of a man for arrerages of Accompt and all other the like Statutes and that which is said that none be exiled nor destroyed is to be interpreted in this manner that every one have an Action to appeale all Persons all Suitors all Assessors who destroy men against the right course and against the rules of Law On the other part where the King forbideth that none be disseised of his Freehold of his Liberties or of his free Customes is thus to be
one of the houshold sueth another of the houshold and the Plaintiffe be put from his service depending the Suit the other shall shew the same and abate the Writ but quere if it be so if in case the Defendant be removed out of service c. The Coroner of the Marshalsey shall fit with the Coroner of the Country upon the death of a man and if the Plea may be determined before the King remove out of the Virge it shall be otherwise it shall be at the Common Law The Kings Bench. THere is another Court of high Authority called the Kings Bench and the Iudges of that Court have Authority to enquire of heare and determine Pleas and things touching the Crowne as High Treason Murder Man-slaughter Robberies Felonies at the Common Law and by Statute Law Mayhems Trespasses Burglaries and all deceits and falsities whatsoever but they have not authority to hold Plea betwixt Party and Party by originall Writ but in speciall cases They have power to proceed in and determine Indictments and Presentments taken within any County within the Realme where the Kings Writ runneth if it be certified by Certiorare or be delivery under the hands of the Iustices of the Peace or other Iustices before whom the Indictments or Presentments be whether it be of Treason Felony forcible entre Ryot or any other thing against the Peace and they have Authority to reverse Iudgements given in the Common Pleas by a Writ of Errour or before Iustices of Assize and in Liberties and Franchises but not in London for a Writ of Errour of a Iudgement given before the Sheriffes of London shall be reversed before the Major in the Hustings And erronious Iudgements given before the Major in London shall be reversed at St. Martins before speciall Commissioners assigned to that purpose and thereupon a Writ of Errour shall be directed to the Major to have the Record and proceedings thereof and the Record shall be certified by the Recorder c. And it is said that if an erronious Iudgement be given in Ireland it shall be reversed in the Kings Bench by a Writ of Errour for that in Ireland the Lawes of England are used And if an erronious Iudgement be given in the Cinque Ports it shall be reversed in the Kings Bench and the Writ shall be directed to the Warden of the Cinque Ports and he shall returne the Writ and the Record c. The King may have a Formdon in the Kings Bench Debt Detinue and every other Action and a Quere impedit at his pleasure And a common Person may bring an Action of trespasse Quare vi ermis in the Kings Bench and Actions for forging of false Deeds maintenance Conspiracy Actions of deceit upon the case or supposing any falsity and deceit where the King shall have a Fine c. And note that there are some Actions upon the case which shall be sued in the Kings Bench and some not as an Action upon the case against one supposing that the Defendant hath sold Land to the Plaintiffe for a certaine summe of Money and that he covenanted to infeoffe him by such a day and not by any Deed c. Or to build a house such a day and did not doe it e. such actions shall be brought in in the same Court but there are other Actions upon the case which shall not be brought in the Kings Bench as if a Horse be stollen out of the common Inne an Action upon the case lyeth against the Hosteler but not in the Kings Bench as it is said And so it is where a man is so bounden to keepe his fire that the same hurt not his Neighbours houses c. And note that the chiefe Iustice of the Kings Bench is made by Writ and not by Patent and it is to this effect Rex dilecto fidel fuo I Fitz-Iames Saltem Quia volumus quodvos sitis capital Iusticiar noster ad placita corem nobis tenenda vobis mandamus qnod officio illi intendatis but he shall be sworne by the Chancell or of England before he take upon him his office The other Iustices of the same Court are made by Patent viz. by these words Constituimus c. unwn justitiorum nostr ad placita corum no bis tenenda habend occupand officium illud quam diu nobis placuerit And if a King maketh a Iudge to hold and enjoy the said Office by himselfe or his sufficient Deputy for life the grant is void as to the Deputy and if the grant be to him and his Assignees he cannot make an Assignee c. The Common Pleas. ANd note there is another Court called the Common Pleas which Court hath jurisdiction to hold Common Pleas as well personall Pleas as reall or any other Precipe quod reddant of Lands or Tenements c of Debt Detinue Accompt and other personall Actions and they have power to hold Plea of any of those Actions which may be brought in the Kings Bench as Actions of Maintenance Conspiracy Forgery of false Deeds and Actions upon the case and trespasse against the Peace of such Actions wherein the King ought to have a Fine and also of Attaints but they have not power to hold Pleas of Appeales of Murder Rape Felony Mayhem nor to enquire of them nor of Riots And it is said That one may Sue the Peace against another before the Iustices of the Common Pleas and if the Party be in the Hall or in the Place or within their View they may send the Warden of the Fleet to bring the party before the Iustices to finde Sureties or else commit him to the Fleet and the reason why they may so doe is that good order and the Peace be kept about the Court but the Iustices have not power to award Processe to the Sheriffe to Arrest the party to appeare in the Court where the Common Plea is but it is otherwise of the Kings Bench as it is said c. And it is said That the Iustices of the Common Pleas have jurisdiction in some things which touch the Crown and to enquire and hold Plea of some felony and also of misprision and of deceit done within the Court and within the Record thereof And if one imbesell a Pannell after the Enquest passed and Iudgement given in the Common Pleas by which the Iudgement is reversable by Errour for want of that Pannell the Iustices of the Common Pleas have power to enquire of the embeselment of the Pannell by 12. of the Officers and Atturnies of the same Court and they shall be sworn before the Iustices to enquire of that default and if they endite the embesselors they shall be Arraigned thereupon and shall be compelled to answer thereunto as other Felons c. and if they be attainted they shall forfeit their goods and chattels tamen quaere c. And if one be condemned in Debt or trespasse in the Common Pleas and he be in the Hall the Iustices
at the prayer of the Plaintiffe may send the Warden of the Fleet to bring him before them to satisfie the party the money or otherwise commit him to the Fleet. And when he appeareth and will deny that he is the same person then Quaere what shall be done if the Justices may commit him to the Fleet or not And some say not for that they know him not as Judges but as other men by information of the parties and the Plaintiffe cannot mainetaine that he is the same person because he commeth not in but by information of the party Plaintiffe not by Processe of Law Quaere what is to be done in that case And see another difference betwixt the Judges of the one Bench and of the other for it is said That if the Judges of the Kings Bench doe award Processe in a Formedon a Writ of right or execution of Land recovered in value the Sheriffe ought to execute the Writs although they have not any jurisdiction therein But if the Judges of the Common Pleas will grant Processe of Treason c. out of their place the Sheriffe ought not to execute the Processe for that authority is onely of Common Pleas c. The chiefe Iustice of the Common Pleas is made by Patent viz. by these words Constitutimus iâ—â—â—mcapital Iusticiar nostrum de Coi Banco c. Habendum illud own feodis vadiis regardiis eidem officio debit conâ—suet And the other Iudges of the same Bench are made by Letters Patents c. The Chancery ANd note that the Court of Chancery is a Court of a high nature out of which Court issue all originall Writs and there a man shall traverse Offices and such things and in that Court women who are widowes to the King shall be sworne that they shall not marry without the Kings Licence before the time that they be endowed and it is said That of errour there upon a Patent or a Traverse the same cannot be reversed else where but in Parliament Quaere c. And in that Court a man shall have remedy for that which he hath no remedy at the Common Law and it is called by the common people The Court of Conscience And therefore see of matters in Conscience how the party shall have remedy If a man hath Feoffes to his use and maketh his Will and thereby willeth that his Feoffes should make an estate to I. for terme of his life the remainder to C. in Fee if the said I. will not take the estate what remedy is for him in the remainder in conscience and how he shall helpe himselfe in Chancery c. A man shall have remedy in Chancery for Covenants made without writings if the party have sufficient Witnesses to prove the Covenants and yet he is without remedy at the Common Law c. And for Evidences when a man knowes not the certainty of them nor in what they are contained it is usually to be releeved in Chancery for he is without remedy by the Common Law c. If a man infeoffeth another of certaine Lands to his use and the Feoffee selleth the Land to another if he giveth notice to the Vendee at the time of the sale of the intent of the first Feoffment he is bounden to performe the will of the first Feoffer as it seemeth in the Chancery A man was bounden unto another by Obligation in a certaine summe of money and the Oblgee brought an Action upon the same Deed in another County then where the Obligation was made and had Iudgement to recover and the Obligor in Chancery sued to be releeved and it was surmised that by that forraigne Suit he was outed of diverse Pleas which he might have had if the Action had been brought in the County where the Obligation was made and it was conceived a good matter to releeve him in equity In the Court of Chancery a man shall not be prejudiced by mispleading or for want of forme but according to the truth of the Cause judgement ought to be given according to equity and not Ex rigore juris And note that there are two jurisdictions Ordinary and Absolute Ordinary is as positive Law and Absolute is Omnibus modis quibus veritas sciri poterit If a man be bounden by Obligation unto two men unto the use of one of them and one of them viz. is he to whose use it is not releaseth to the Obligor all Actions so as the Obligation is discharged he to whose use the Obligation was made hath good remedy in Chancery by Subpoena against his companion who released him but against the Obligor it seemeth he hath no remedy for every man is bounden to helpe himselfe and it is lawfull for a man to get a discharge of that which he is charged withall and in danger to others And if a man hath recovered against another debt or damages and he hath paid the same without any Acquittance or without having a release and notwithstanding the party taketh execution against him upon the same Iudgement he shall have no remedy by the Common Law and it was then said by the Chancellor that he shall not have any remedy in equity in this case and if the same should be remedied in equity then every Record should be examined before him and thereby the Common Law overthrowne And if I doe infeoffee one upon trust and the Feoffee doth infeoffee another of the same Land upon trust Quaere if I shall have a Subpoena against the second feoffee but where he is infeoffed bona fide there the first Feoffer is without remedy against the second Feoffee as it seemeth It is said That the Chancellor of England wheresoever he shall be in England hath power to command a man to prison and he shall not be bayled Quaere whether the Iustices of the one Bench or of the other out of their Courts have the same authority or nor The Exchequer THe Court which is commonly called the Exchequer is properly for Accomptants Sheriffes Escheators and the like and there they are compellable to make their Accompts according to the usages and customes of the same Court c. and it seemeth to be a Court which is much for the Kings profit for there all remedies are provided how the debts and duties to the King shall be levyed And in that Court the Barons are Iudges betwixt the King and his Subjects and they are sworne thereunto and Fines Issues and Amercements which are assessed in other of the Kings Courts the estreates shall be made thereof to the Court of Exchequer and there they shall write forth Processe against the parties to answer thereunto and to satisfie the King what is due to him and of divers other matters they have power and authority by reason of their Office c. The Cinque Ports THere are also divers other Courts and inferiour places where Iustice is ministred and in those places they have Iudges as in the Cinque
Ports and such places which have Counsans of Pleas and also in Court Barons in which Courts is Iustice done according to Law c. And although they of the Cinque Ports ought to be empleaded of their Lands within the jurisdiction of the Cinque Ports yet that holdeth onely where the Tenant sheweth the same and taketh advantage thereof if he be impleaded in the Kings Courts of things which are within that jurisdiction but if the Tenant be sued in the Common Pleas for Lands within the Cinque Ports if the demandant doth recover by default or if the Tenant appeare and plead any matter which is found against him so that the demandant hath judgement for to recover the Land that judgement shall bind him for ever c. But the Tenant might have alleadged That the Land was within the Cinque Ports and by such Plea the Kings Courts should be outed of the jurisdiction c. And so it is of Lands within an ancient demeasne if a Writ be brought thereof in the Common Pleas if the Tenant appeareth and pleadeth and doth not take exception to the jurisdiction and the Plea be found against him so that the demandant recovereth the Tenant shall not reverse the judgement by a Writ of Errour because the Tenant might have taken exception to the jurisdiction of the Court and it should have been allowed c. But yet the Lord may reverse that judgement by a Writ of deceit and shall make the Land ancient demeasne as it was before c. And if one hath Counsans of Pleas in a Towne or in a Mannor and a Writ is brought in the Common Pleas of the same Land and the Tenant pleadeth and judgement is given against him the recovery is good for it is within the power of the King and the Writ of the Common Pleas doth take place there and if the Bayliffe or Lord doth not demand Cognusans the judgement is good But in another Action the Bayliffe shall have Cognusans for that the nature of the Lard is not changed and so see that where a man hath counsans of Plea c. it ought to be demanded by the Bayliffe or the Lord and the Tenant shall not demand the same if he be impleaded in the Kings Court but of the ancient demeasne there it behoveth the Tenant to shew the same and plead to the jurisdiction c. if he will have advantage thereof c. And so note that in the Cinque Ports there is such a liberty that the Lands and Tenements are pleadable there before the Barons c. and yet if one be impleaded at the Common Law of Lands within the Cinque Ports the Barons shall not have Counsans of the Plea but the Tenant may plead the same to the jurisdiction in abatement of the Writ c. The Court Baron NOte also that there is another Court which is called Court Baron in which Court the Suitors are the Judges and not the Steward and they hold plea of Contracts within the jurisdiction c. and yet it is said by some That the Defendant shall not shew that the Contract was made out of the jurisdiction and pray that the Plaintiffe be examined as in a Court of Pipowder The Judges of the Court Baron have Authority to hold plea before them of Debt upon Contracts or Detinue but not of detinue of Charters nor Actions of debt upon a judgement in a Court of Record but otherwise I thinke it is of a recovery in the same Court nor shall they hold plea of Maintenance forgery of false Deeds of deceit not of Decies tantum not of pleas of Accompts for they have not authority to assigne Auditors They shall not hold plea of Debt above the summe of forty shillings unlesse it be by prescription and they shall not hold plea of Free-hold by plaint but by a Writ of right they may But if a judgement be given of Free-hold upon a plaint it is said it is good untill it be reversed by a Writ of false judgement tamen quaere c. And note for what Suit a man shall be judged in a Court Baron and it is said That it is where a man is seised of Lands in Fee-simple and which he holdeth by service of Suit at the Lords Mannour that Suit is properly Suit-service and for such Suit he shall be judged in a Court Baron and for no other Suit as it is said c. And quaere also when erronious judgements are given how they shall be reversed viz. when by Writ of false judgement and when by a Writ of Errour And some say That in all Courts where the party might remove the plea by a Recordare upon a judgement given in such Courts a Writ of false judgement lyeth as in ancient Demeasne Court Baron County Court and Hundred but in other Courts which are of Record the plea shall be removed by a Certiorare and upon judgement given in such Courts which are of Record it shall be reversed by a Writ of Errour c. And if a man recovereth in a Court of Record by erronious judgement and Sueth not Execution some say That a Writ of Errour lyeth and the party shall have a Supersedeas if he will prey the same but if a man hath judgement in a Court Baron and taketh not forth Execution no Writ of false judgement lyeth Quaere the reason thereof and what the Law is in that case And note that sometimes the Sheriffe is Judge as in Reddisseisin Wast and Admeasurement and the Processe shall be served by the Baily as is said And note that the Sheriffe is an Officer â—o the Kings Court to execute the Processe thereof yet sometimes the Coroner is the Officer to the Court where defect is found in the Sheriffe c. so that he cannot by Law indifferently execute the Processe as for divers apparent causes yet if the Sheriffe dyeth the Processe shall not goe to the Coroner but shall stay till another Sheriffe is chosen c. And because the Sheriffe is an Officer appointed by the Law to attend the Kings Courts a man shall not take an Averment against the returne of the Sheriffe directly and the reasâ—n is because where Justice ought to be ministred and executed those who have the Government of the Law ought to repose trust and confidence in some person and if every one might averre against that which the Sheriffe doth then Justice should not be executed but should for ever be delayed c. The meanes and the remedy how a man may come to his due and to that which is wrongfully kept from him and that is by plea and this word is generall and hath divers effects implyed therein and may be divided into divers branches viz. Into pleas of the Crowne as appeales of Death Robbery Rape Felony and divers other things c. and into Actions reall whereby Lands Tenements Rents and other hereditaments are demanded as Writs of right Formed on c. Or Actions
is reproveable and distinguishable according as hath been said before The Statute to have view of Lands is but a wrongfull delay of the right of the Plaintiffes for the View appeareth sufficient by the Certificate of the Summons upon what Tenements the Tenants are summoned The Statute which forbiddeth that no Officer of the Court take any presentment of any Church not other thing which is depending in Plea or in debate is not kept Reprehensions upon the Statute of Gloucesier 16. E. 1. THe Statutes to recover Damages in Pleas of possession enacted at Gloucester or else where and of the horrible damages in waste are reproveable for that the Law giveth one no more then is his demand and therefore it behooveth that the damages be mentioned in the Writs if damages shall be awarded for a Judge cannot exceed the points of his Commission and so it would be needfull to use it according to the first Ordinance of Writs And the Statute of Tenements alliened of Lands in prejudice of others is reproveable for the remedy ought to be such as of Guardians allienors to the dis-inherison of the right Heires The Statute of Trespasse pleaded in Counties is reproveable for want of distinction for small Trespasses Debts Covenants broken and such other kinds not exceeding forty shillings Suitors have power to heare and determine without Writs by warrant of jurisdiction Ordinary and by Writs granted afterwards for Sheriffes have more jurisdiction in their Writs vicontiell then Justices of the Bench by the Pone And as to the recovery of twenty shillings or more in right of Essoigne of the Kings service not warranted the Statute is reproveable for that Essoigne might be cast where the Defendant would make default by the adverse Party and so he should have advantage of his malice The Statute which forbiddeth the abatement of Appeales is not observed The Statute which awardeth an innocent man to remaine in Prison or to have no manner of punishment for necessary Man-slaughter or by mischance where no offence is found is but an abusion The Statutes making mention of London ought to extend commonly throughout the whole Realme CHAP. V. SECT 6. The reprehensions of Circumspectè agates An. 13. E. 1. THe first point which saith That the Kings prohibition holds not in correction of mortall offences where a pecuniary paine is enjoyneable by Ordinaries is founded upon open errour and usage to enjoyne a pecuniary paine for a mortall offence notwithstanding to destroy the King jurisdiction The other points to compell the Parishioners by corrections to enclose Church-yards to offer to give Mortuaries Monies for Consessions Chalices Lights Holy Vestments and other adornement of Churche are more grounded upon interest then amendment of soules and note that after that they are offered to God that they are so spirituall that they are to be expended but in Almes and spiritually for they are never to be converted to Lay uses And then if any Parishioner for the hurt of the Parson of the Church keopeth back his Tithes or stealeth them away or doth not pay them duly or fully the same is not punishable by a pecuniary paine but by a corporall punishment For the Excommunicate no pecuniall paine was to be for restitution or satisfaction no more then of a Pagan or a Jew and if they doe demand a pecuniary paine there the Kings Prohibition lyeth and much more in the demand of Pensions or of damages of Trespasse or of defamation but of Pleas of correction where one Pleades onely Pro salute anima the Kings prohibition lyeth not CHAP. V. SECT 7. THe new Statute of Debts is contrary to Law as it appeareth in the Chapter of Contracts for every imprisonment of the body of a man is an offence if not for tortious Judgement and the Law will not suffer any Obligation or vicious Contract by intermixture of offence and therefore it was to be avoided as grounded upon an offence for no honest man ought to agree to such a Contract which causeth him to offend or to be punished Againe it is contrary to the Great Charter which enacteth that no man be taken nor imprisored if not by the lawfull judgement of his Peeres or by the Law of the Land Here endeth the Mirrour of Justices of the right Lawes of Persons according to the ancient usages of England The end of the fifth Chapter and of the whole Booke FINIS THE BOOKE Called The Diversity of Courts And Their Jurisdictions Written by an unknown Author in the time of King Henry the Eighth in the French Tongue Wherein many necessary and profitable things ate contained Translated out of the French Tongue into English for the use of many By W. H. of Grays Inne Esquire Imprinted at London for Matthew Walbancke and are to be sold at his Shop at Graies Inne gate 1646. The Booke called The diversity of Courts and their Jurisdictions IT is to be understood that the King is the fountaine of Justice and to that purpose ordayneth Judges that Justice be administred to all his Subjects The King himselfe for the excellency of his Person may fit and give Judgement in all Causes personall or reall betwixt Party and Party but he cannot fit in Person in Judgement in any Cause where he himselfe is Party or where the things of his Crowne or Dignity are concerned as upon an Indictment of Treason or upon as appeale of Murder or Felony or upon an Action brought by himselfe as Formdon of Land of which the right is descended to him from a colaterall Ancester or in an Action of Debt by reason of the affection moving him to be favourable to himselfe and therefore he maketh his Iudges to sit and heare such matters in difference and to doe justice to the parties And the place where the Judges sit to minister Justice are called Courts which are of divers kinds and the Judges thereof have severall Authority Of the Court of Marshalsey ANd first the Court of Marshalsey is an ancient Court and made for the well government and ordering of the Kings house for the preservation of the King and his Servants and this Court hath its bounds within which it hath jurisdiction and not without The Iudges of this Court are the Steward and Marshall of the Kings house for in them under the King is the ordering of the houshold c. The title of the Court is Placita Corone aula Hospitii Domini Regis leat coram seneschalle mareschallo hospâ—â—â—i Domini Regis c. And this Court hath power to enquire of Treason Murder and Felony and to take Appeales of them and of Mayhem if they be done within the Virge betwixt persons who are of the Kings house And if one of the houshold Sueth another who is not of the houshold he may plead to the jurisdiction of the Court and if they will not allow of the Plea he shall have a Writ of Errour and the Iudgement shall be reversed in the Kings Bench. And if