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
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
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
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
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
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
Exchequer THe Exchequer is a place which was Ordained onely for the Kings Revenew where two Knights two Clerkes and two learned men in the Law are assigned to heare and determine wrongs one to the King and Crowne in right of his Fees and the Franchises and the Accompt of Bayliffes and Receivers of the Kings Monie and of the Administrators of his Goods by the over-sight of one Chiefe who is the Treasurer so England The two Knights usually called two Barons were for to afferre the Amercements of Earls Barons and of the Tenant of Earldomes and Baronies so that none be amerced but by his Peers To this place there was a Seale assigned with a Keeper of it to make Acquittances upon every payment to those who desired them and to seale Writs and Escheates under green Wax issuing from thence for the Kings Revenue In this place there are also Chamberlaines and many other Officers who belong not very much to the Law CHAP. 1. SECT 15. Of inferiour Courts FRom the first Assemblies came Consistories which we now call Courts and that in divers places and in divers manners whereof the Sheriffes held one Monethly or every five week according to the greatnesse or largenesse of the Shires And these Courts are called County-Courts where the Judgement is by the Suiters if there be no Writ and is by warrant of Jurisdiction ordinary The other inferiour Courts are the Courts of every Lord of the Fee to the likenesse of Hundred Courts and also in Fayres and Markets where right is to be ministred without delay whether the matter concern the Plaintiffe or Defendant according to the first Ordinances in which Court they have counsans of Debts Covenant broken and of Trespasses and of such small things which passe not forty shilling value and also they have Counsans of Trespasses and forfeitures of the Fees betwixt the Lords Plaintiffes and the Tenants Defendants Et è contra There are other inferiour Courts which the Bayliffes hold in every Hundred from three weekes to three weekes by the Suters of the Free-holders of the Hundred All the Tenants within the Fees are bounden to doe their Suit there and that not for the service of their Persons but for setvice of their Fees But Women Infants within the age of 21. yeeres deafe dumb idiots those who are Indicted or Appealed of any mortall Felony before they be acquitted diseased persons and excommunicated persons are exempted from doing Suâ—t and although it be that such Free-holders may doe Suits at inferiour Courts by their Atturnies neverthelesse the Judgement is not to be given or holden for forraign and if any Plea be removed by Writ of Justities Replegiatie wast or of other nature that enable the Jurisdiction from which the Writ is originally sent and returneable CHAP. 1. SECT 16. Of the Sheriffes â—urnes THe Sheriffes by ancient Ordinances hold severall meeting twice in the yeere in every Hundred where all the Free-holders within the Hundred are â—ound to appeare for the service of their Fees that is to say once after Michaelâ—as and another time after Easter and because Sheriffes to doe this make their Turne of Hundreds such appearances are called the Sheriffes Turnes where it belongeth to Sheriffes to enquire of all personall offences and of all their Circumstance done within those Hundreds and of all wrongs done by the King and Queens Officers and of wrongs done to the King and to the common people according to the points aforesaid in the division of offences All Free-holders within the Hundred are not bounden to appeare at these Courts for King Hen. 3. excused some persons said That it was not needfull that Arch-Bishops Bishops Abbots Priors Earls Barons religious Persons nay such people not other who were exempted to doe Suit at inferiour Courts should appeare in proper person if their appearance were not necessary for some other cause then onely to make their appearance And if any one hath divers Tenements in divers Hundreds his presence is not to be excused notwithstanding the Kings grant CHAP. 1. SECT 17. Of viewes of Franck-pledges OF these first Assemblie it was also Ordained That every Hundred doe make a common meeting once in the yeere not onely of the Free-holders but of all Persons within the Hundred Strangers and Denizens of the age of 12. yeeres and upwards except of Arch-Bishops Bishops Abbots Priors teligious Persons and all Clerkes Earls Barons and Knights Feme Coverts Deafe Dumb Sick Idiots infected Persons and those who are not in any Dozien to enquire of the points aforesaid and of the Articles following and not by villanies nor by women but by the afferment of Free-men at the least for a Villaine cannot indict a Free-man nor any other who is not receiveable to doe Suite in inferiour Courts and therefore it was anciently Ordained that none should remaine in the Realme if he were not in some Decenny and pledge of Free-men it belongeth also to Hundredours once a yeare to shew the Franck-pledges and the Pledgers and therefore are the Viewes called the View of Franck-pledges The Articles are these BY the Oathes you have taken you shall declare whether all they who ought doe appeare or not If all the Free-men of the Hundred or of the Fees be present If all the Franck-pledges have their doziens entire and all those who they have in pledge If all those of the Hundred or of the Fees of the age of 12. yeeres and above have sworn fealty to the King and of the receivers of others wittingly Of all Bloud-sheds of Hue and Cry wrongfully leavied or rightfully leavied and not duely pursued and of the names of the Pursuers of all mortall offences and of their kinds and as well of the Principalls as of the Accessories Of all Exiles Out-lawes Warves and banished Persons returned and who have since received them and of those who have been judged to death or abjured the Realm Of Usarers and of all their goods Of Treasure tâ—ove Wrecks Waifes Estreyes and of every purpresture and encreachment upon the King oâ— upon his Dignity Of all wrongs done by the Kings Officers and others to the common people and of all purprestures in common places in the Land or in the Water or elsewhere Of Boundaries remsved to the common Nusance of the people Of every breach of the Assize of Breed Bear Wine Clothes Weights Measwes Beames Bushels Gallons Fills and Yards and of all false Scales and of those who have used them And of those who have bought by one kind of measure and sold by another kind in deceit of Merchants or buyers Of the disturbers of fâ—aming lawfull Judgements and of the framers of wrongfull Judgements and of the Abbettors and consenters thereunto Of every wrongfull detinue of the body of a mar or other distresse Of every false Judgement given by the View in the other Hundred oâ— in the Fee Of every Fore-stallment done in the common High-way Of wrongfull Replovies and wrongfull Recoâ—sses Of every
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
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
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
for a yeare or of sicknesse in the Journey and that holds not but to the example of a common Essoigne in these Essoignes of hinderance are Essoignes De malo veniendi This Essoigne lyeth after every Summons and generall Râ—-summons upon Pleas except to Jurours and those who are summoned for the common-wealth But of Adjournments it is to distinguish for in the Eyre of Justices the Adjournement is for three daies or foure at the most or lesse according as the places are â—eare or containe and to this Essoigne is respited fifteen daies at the least The Essoigne of sicknesse in passage lyeth before the Essoigne De malo lecti and also after the yeare of the languishing and it lyeth before appearance and after appearance except in foure Assizes and where it lyeth in Actions it holdeth in Warranties This common Essoigne is not allowable in the cases aforesaid but once after the Parties have joyned issue not after the Parties have agreed to appeare without Essoigne nor where a Bishop is commanded that he have or cause such a Person to appeare nor there where many claime by one right or are Tenants of the same right nor to a man and his Wife not to all the paeceners but if a man dyeth without Heire after the Writ purchased and brought the Writ is thereby abateable because at the day of the date the Plaintiffe had no Action against the other parceners which are alive as to that of the Party This common Essoigne lyeth as well for Infants where they are impleaded of their Lands as for men of full age And as the same is allowed to the Tenant so is it warranted where no sicknesse is adjudged this Essoigne is allowable from day to day according to the common Adjournments in Writs of right till the sicknesse be Judged if the Tenant rise not before from his sicknesse neverthelesse none can doe it in such a case if not with the Plaintiffes leave or by the command of the King if the Plaintiffe will not give him leave This Essoigne holdeth in the Writ of Droit Potent sent to the Lord of the Mannour and in a Writ of Droit close of Lands holden of the Kings in Capite and in the Writ of Customes and Services after that the deforceor hath pleaded and said that the Batraile or the Grand Assize may be joyned The Essoigne De malo Lecti is in Court for two yeares when the sicknesse turnes to weaknesse this Essoinge lyeth not for the Plaintiffe and after the sicknesse adjudged it is adjournable by a yeare of respite to the Court of London Weakenesse lyeth not in any Writ of right after appearance but where Battaile may be joyned or the Grand Assize This Essoigne De malo Lecti was never allowable to any Atturney nor to any but those who had a Warrant before the common Essoigne cast by the Tenant nor to any after the weakenesse adjudged nor without â—â—sing nor in Justiâ—â—es nor in the Writs De quo jure nor De rationabilibus divisis nor Quo warranto nor Customes and Services before that the Court be certified that Battaile might be joyned or the grand Assize This Essoigne of De malo veniendi is called De malo villa and this lyeth in case where one appeareth the first day in Judgement and is suddenly taken with sicknesse in the Town that he cannot the next day appeare in Court This Essoigne may be cast the second day by one the third day by another and the fourth day by a third in which case the Judge ought to receive the Atturnies of those who are sicke but this Essoigne lyeth not but there where the Essoigne De molo lecti lyeth CHAP. II. SECT 31. Of Atturnies BEfore a Plea put into Court by Essoignes by Attachment or by appearance of the Parties none is to be received by Atturney no more then a Plea is removeable out of Court into a higher Court where the Plaint or the Writ is not brought nor any is to be received by Atturney in a Plea which was nor in a Plea which shall be but onely in a Plea which is Pendant in the County Court or else-where or is brought by the Kings Writ and this Plea be afterwards removed into a higher Court. By this removing the Atturney is not removed for no Atturney is removeable unlesse he whose Atturney is come into the Court in proper person and remove him if not in case where one hath generall Atturnies for generall Atturnies may appoint speciall and remove them nor any can receive Atturnies after the Plea brought but the King or other warranted by a speciall Writ if not in the presence of the parties All may be Atturnies which the Law will permit Women may not be Atturnies nor Infants nor Villaines nor any who are in Custody or any other who is not free of himselfe nor any who is criminous nor any who are not sworne to the King nor any in any personall Action nor in an Accompt nor in Nativo habendo Plaintiffes notwithstanding they have Atturnies in personall Actions are not to appeare not answer in Judgement by no Atturney but he disseiseth his Clyent when he doth it The Contents of the Third Chapter OF Exceptions What is Exception and the division and order of excepting Exceptions Dillatories Of Exception of Clergy Exception of Bigamy Exception of the power of the Judge Exception of time Exception of place Exception to the person of the Plaintiffe Exception of Prison and of Ward Exception of Summons Exception of vicious Counts Exception of Approvers Excedtion to Indictments Pleas to Treason Pleas to Bâ—â—ning Pleas to Murder To Larcine To Burglary Of Rape Of imprisonment Of Mayhem and â—ounding Juramentum Duelli The order of Battaile Exception of Personall Trespasse Of Purprestures Of Treasontrove Of Wrecks Of Vsury Of Driving Of Obligation Of Attaint Of Oathes Homage Fealty annexed to Homage Common Oathes Of finall Accords CHAP. III. CHAP. III. Sect. 1. Of Exceptions IT behoveth the Defendant to Answer the Plaintiffes Declaration and because the people commonly know not all the Exceptions in Pleadings Countors are necessary who know how to advance and defend their Clyents Causes according to the rules of Law and the Costoms of the Realm and the more needfull are they to defend them in Indictments and Appeales of Felony then in personall or veniall Causes and the better to helpe our memory which every day inclineth to forgetsulnesse it is necessary to shew what is an Exception and the division of it and the order of Excepting or Pleading for some account them guilty who Plead not or Plead ill or not sufficiently for example If any one Vouch one to warranty and Judgement passe if he tell not the yeare or before what Judges the Judgement passed it is as if he had said nothing and so of other Cases and although a Plea be requisire neverthelesse every one is not received to plead for some are admitted to Plead without Tutors
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
was in these words I will beare faith to such a King of life and member and Terren honour against all those that from this day forward shall c. So God me helpe and his holy Evangelist CHAP. III. SECT 36. Homage HOmage is done in these words I become your man for such Land so that the whose quantity be shewed and certainty specified whereby the Lord well knoweth both how he may warrant his Tenant and for how much he bindeth his Land to warranti and that the Tenant know for how much he is his Tenant Cap. 3 Sect. 37. Fealty annexed to Homage THe Oath of Fealty annexed to Hem â—iage is in these words I shall beare Fealty to him by name of life and Member c. for so much as I shall be his Tenant against all c. saving the Oath of Fealty which I have made to such a King c And if I sweare Fealty to another then to the King then thus saving the Faith which I â—wore to the King and to my other Lords And if the Homage be done to the King or to another to whom the Tenant hath before sworne Fealty in these Cases Hee needeth not sweare Fealty againe if the Alliance in no case hath bin broken Chap. 3 Sect. 38. common Oathes COmmon Oathes are in these words I will speake truth in what you aske of mee in such a Case So God mee helpe c. The Oathes in Assises are in these words I will speake the truth of the Land of which I have had the view by Authority of this Assise or of the Land of which this Action of Reddisseision is arraigned or of the Pasture or Feeor of the Nusance or of the Walt or of the Ditch or of the Peel or of the Water or of the Church or of the Rent or of the service and nothing shall hinder me that I shall not speak the truth c. Of Life and Member and Terren Hanour he will doe so much that he will never assent that the King or his other Lord have damage of his life or any of his Members nor will assent that his honour shall be overthrowne in power not fame Cap. 3. Sect. 39. Of sinall Accorà s NO Law forbiddeth Pleas nor Accords wherefore it is lawfull for overy one to agree with his adversarie and to relcase and quit claime his Right and his Action Neverthelesse after one bath once affirmed and brought his person all Action whereby scandall ariseth none can agree it without the leave of the Iudge so as he may withdraw it For every Plaintife in Actions of Scandall who attainteth not his Adversarie according to that as hee bath brought his plaint is adjudged scandalous as his adversarie should be if he were attainted Neverthelesse in favour to save a man from death who is not attainted of mortall Offences it is suffered that the Adverse parties doe agree After Battaile waged one of the parties neverthelesse remaineth infamous None can accord or agree who is 〈◊〉 of the Age of 21. yeares nor any who is in custody nor any by Attorney In custody are villanies married women men professed in Religion Infants within the age of 14 years heirs Idiots heirs deafe and dumbe heirs deseased and those who are in prison and under Bayle and women who are in the custody of the Lords who have the marriage of them CHAP. IIII. The Contents OF Iudgment Odinance of Iudgment Of Iurisdiction Of Paul s punishable Of Defaults Of Personall Actions Of Defaults in reall Actions Of Actions mixt Of Pledge and Maynpernors Of Defaults after sommons Of Champions Of Paynes Of Imfamies Of Majests Of Burning Of Murdur Of Paines in divers manners Of false Justices Of Perjury Of the Offices of Iuctices in Eyre Of the Articles in Eyre Of Prauchises Of Satisfaction of Debts Cases of Disseisin Of Amercoments Of Amercements taxable Of the Office rf Iustices in Eyre CHAP. IIII SECT 1. Of Iudgment THe flower and necessity of Law doth depend in righteous judgment without which the Law can have no effect nor any due end And therefore it is fitte speake of judgments which are not in all points here according to therigour in the old Testament and the usages used by Moses and the Prophets before the Incarnation of Christ but they are mittigated to the temper of mercy of the truth and of the justice which Christ himselve used upon the earth and commanded to be used in the new Testament and which the Apostles and their successours have used since the Incarnation of Christ and according to the judgements of the ancient usages in Pleas touching the Lawes of this Realine CHAP. IIII. SECT 2. The Ordinance of Judgement IUdgement commeth from jurisdiction which is the greatest dignity which belongeth to the King And there are two kindes of junisdiction Ordinary and Assigned Every one hath ordinary jurisdiction if offence take it not away from him for every one may judge his owne according to the righte rules of Law But this jurisdiction is now restrained by the power of Kings in as much as none hath power to held Plea of Trespasse or of Debt which passeth 40 s. but the King Nor anie hath power of Counsins of Fees without a Writ Neverthelesse it is lawfull for every one to f. oust the mortall offender for committing of their offences by good witnesses by warrant of ordinary jurisdiction whether the offenders bee Clerks or Lay people of age or within age and all others of what condition so ever they be and in those coses are those offences called notorious offences There are two kindes of notorious nototious in fait and notorious in right Notorious in fait is where no contradiction lyeth nor no oathes need to justisie them by reason of the witnesse of the people Notorious of Right is where the offenders are attainted of their offences by themselves or by the oathes of witnesses or otherwise in judgement This jurisdiction assigned iâ— that which the King assignes by his Commissions of his Writs for without a Writ he cannot by Law grant any jurisdiction if not in the presence and with the assent of the parties None can give jurisdiction but the King the reason is because he is not sufficient to beare without helpe the charge which belongeth to him to punish the Trespasses and to assoile the offenders which hee hath to governe And so our Ancestours appointed a Seale and a Chancellour to helpe the same to give Writs remediall to all Plaintiffes without delay That Writs used to be of this Assize They were without raysure without enterlyning without blots without usuall transposition and without every fault in the parchment and letters and written in English with a knowne hand by a Clerke of the Chancery and used to containe the name of the parties and the substance of the Plaintiffe and the name of the Judge and of the King or other Teste of the Writ which sometimes were directed to the Lord of the Fee sometimes
to the Bayliffes sometimes to the Justices in Eyre sometimes to certaine persons named and sometimes to persons not named as to Bayliffes Justices and Sheriffes And every Plaintiffe used to have a Commission to his Judge by the Writ Patent aforesaid And now may Justices Sheriffs and their Clerks forge Writs thorough draw loose amend or empaire them without any prosecuting or punishment because the Writ are made close through abuse of the Law By that Seale only is jurisdiction grantable to all Plaintiffes without difficulty and the Chancellour is chargeable by his oath of allegiance to make such Writs and that hee do not delay or deny justice nor a remediall Writ to any one CHAP. IIII. SECT 4. Jurisdiction is a power to declare the Law THat power God gave to Moses and that power they have now who hold his place upon earth as the Pope and the Emperour and under them the King now hath this power in his Realme The King by reason of his dignity maketh his Justices in divers degrees and appoinâ—eth to them jurisdiction and that in divers manners sometimes certaine especially as in Commissions of lesse Assizes sometimes in certaine generally as it is of Commissions of Justices in Eyre and of the Chiese Justices of Pleas before the king and of Justices of the Bench to whom jurisdiction is given to heare and determine Fines not determined the grand Assizes the transations of Pleas and the rights of the King and of the Queen and of his Fees and the words of the Kings Writs whether they be named generally or specially Besides the Barons of the Exchequer have Jurisdiction over receivers and the Kings Bayliffes and of Alienations of Lands and rights belonging to the King and to the right of his Crowne Sometimes jurisdiction is given to Sheriffes for the defaults of others as appeareth in the Writ of Right where it is sayd That if he do not right that the Sheriffe of the County shall do it Sometimes to those who have the Returne of Writs Returnables Sometimes jurisdiction is given to the Justices of the Beach by removing of the Pleas out of the Counties before the sayd Justices and sometimes to Record the Pleas holden in meane Courts without Writs before the same Justices of the Bench But as those Records ought not to availe the Plaintiffes if not after judgement given that the Pleers be Returnable untill after their judgements And as the Pleas moved upon the Writs are to be remanded into the Lords Courts where the Lords have not failed to do right In like manner are the Pleas removed by Pone returnable in the Counties in case where the parties never appeared in Court for to Plead To the office of chiefe Justices it belongeth to redresle and punish the tortious judgements and the wrongs and the errours of other Justices and by Writ to cause to come before the King the proceedings and the Records with the originall Writs and before such Justices are all Letters Pleadable returnable and to be ended wherein mention is made before the King himselfe and the Writs not Pleadable nor Returnable before the King are returnable into the Chancery And also it belongeth to their office to heare and determine all plaints made of personall wrongs within twelve myles of the Kings house and to deliver Goals and the prisoners from thence who are to be delivered and to determine whatsoever is determinable by Justices in Eyre more oâ— lesse according to the nature of their commission On the other side there is a kinde of jurisdiction which is called Arbitrary which is not ordinary nor assigned as is such which is by the assent of the parties Of Jurisdiction commeth Judgement which hath many significations In the one judgement is as much to say as absolutions from offence In another sence as sentence which sometimes soundeth well as of discharge or acquittance from punishment and sometimes ill as Excomengment and in another sence as the end of the Plea and the end of jurisdiction Jurisdiction assigned may be for a time or for ever For a time as in some exception dilatory where the Action reviveth for ever as by a definitive sentence upon the Action Judgements vary according to the difference of offences In like offences neverthelesse there are the like Judgements For the mortall offences according to the warrant of the old Testament were assoiled by death For in the old Testament it is found That God commanded Moses that he should not suffer Felons to live But before more is to be spoken of punishments it is to see by what introduction offenders and contumacious persons are compellable to appeare in Court and by what judgments CHAP. IIII. SECT 4. Defaults punishable DEfaults are punishable many wayes In appeals of Felony they are punishable by Outlawry which judgement is such that after that any one hath been solemnly called and demanded to appeare to the Kings peace at three severall Counties for felony and he commeth not that from thence forward hee is holden for a Woolfe and is called Wolfshead because the Woolfe is a beast hated of all people and from thence forward it is lawfull for any one to kill him as it is a Woolfe whereof the custome was to bring the heads to the chiefe place of the County or of the Franchise and according to Law for every head of an Outlaw to have halfe a marke and such Fugitives Outlawes forfeited for their contempts the Realm Countrey friends and whatsoever belonged to the peace and all manner of rights which they ever had or could have by any Title not only as to themselves but to their heires for ever Also all confederations of Homages of alliance of affinity of service of oathes and all maner of obligations betwixt the Outlawes and others were broken severed and defeated by such judgement And all manner of Grants Rents and Contracts and all manner of Actions which they had against any manner of persons were void not only from the time of judgement but from the time of the Felony for which such judgement was given and such persons could never againe resort to answer the Felony if the Processe of Outlawry were not faulty if not by the great mercy and favour of the King Weomen were not plevisibles and put in dozens as men but were waves CHAP. IIII. SECT 5. Defaults IN personall Actions venialls defaules used to be punished after this manner The Defendants were distrained to the value of the demand afterwards they were to heare their judgements for their defaults and for default after default judgement was given for the Plaintiffe This usage was changed in the time of King Hen. the first That no Freeman was not to be destrained by his body for an action personall veniall so long as he had Lands In which case the judgement by default was of force till the time of King Hen. the third That the Plaintiffe should recover his seifure of the Land to hold the fame in demeasure
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
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
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
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