who are not forbidden by the Law Infected Persons Iâ—iots Infants within age cannot accuse or be Plaintiffes without their Guardians nor Criminall Persons nor an Out-lawed exiled or banished Person nor a woman wayve nor a villaine without his Lord nor a Feme Covert without her Husband nor religious Persons without their Soveraignes nor Persons Excommunicate nor deafe nor dumbe Persons without their Guardians nor the Iudges of the Cases whereof they are Iudges nor any one who is nor of the Kings Allegiance so as he hath been more then forty daies within the Realme except Approvers who are suffered to accuse criminally people of his own condition in favour of the peace How lawfull men ought to complaine They ought in friendly manner to shew their offenders that is to say their Trespassours that they reconcile or amend themselves towards them and if they will not doe so and the Cause be Criminall then yee are to distinguish for if any one seeke revenge then it behoveth him to bring his Action by Appeale of Felony and if he seeketh only repaâ—ation of damages then he behoveth to bring his Action by Writ which is to containe the name of the King and of the Parties and the name of the Judge and of the County and the Plaint in the demand if the damages or the demand exceed forty shillings and if not then a Plaint sufficeth without a Writ And because all Suites of the Plaintiffes could not be determined upon the first preferring of the Suits nor the Suiters or Plaintiffes presently releeved in their Suits Therefore Kings used to goe from County to County every seaven yeeres to enquire of Offences and Trespasses and of wrongs done to themselves and to the Crowne and to the Common people and of all wrongs errours and negligences of their Officers and of all false Judgements of paines pardoned or wrongfully Iudged or outragâ—ously of Out-lawes returned and of their Receivers of the valewes of Counties out of Hundreds Towneâ— Manners and of moveable goods which belong to the King and to the Crowne of the Lands of Idiets of alienators of Fees of offences against the Kings Inhibition of Priviledges and Franchises prejudiciall to the Kings of Bridges and High-waâ—eâ— and of all other needfull Articles and they used to doe right to all Persons by themselves or by their Chiefe Justices and now Kings doe the same by the Iustices Commisfaries in Eyre assigned to hold all Pleas. Infante of such Eyres are Sheriff Turnes needfull and viewes of Franck-pledges and when the people by such Enquests were indicted of any mortall offence the King used to Condemnethem without Answers which usage still remaineth in Almaine but of pitty and mercy and because that man by reason of his frailty cannot keepe himselfe from sinne if he abstaine not from it by the Grace of God it was accorded that no Appelee or Indicter should be condemned without answer And Kings had no Jurisdiction but of mortall offences and of the rights of the Crowne and of their owne rights and of the wrongs of their Ministers and of wrongs done against Common Law and Common Ordinances and the Articles of Eyres CHAP. 2. SECT 4. Of Rewards and Fees KIngs used to give Rewards to the cheife of the Stock and to all those who faithfully served them and from the Rewards of Kings others tooke example to reward their servants and because no Free-man was bouden to serve against his will by reason whereof none were bound to serve the King or any other but by the service of his Fee or by reason of his Residence or dwelling in another Fee some are bound to serve the King for a certainty by the yeare And it is not lawfull for those Officers who take wages certaine of the King to take any wages of the people But the Iudges who serve the King it is lawfull for them to take twelve pence of the Plaintiffe after the hearing of the Cause and no more although there be two Iudges or two Plaintiffes in one Action and the Pleader six pence and a Knight sworne a witnesse foure pence and every Iurour foure pence and the two Sumners foure pence Nevertheresse in the time of King Henry the 1. It was Ordained and assented unto That Iurours sworne upon Enquests of Office as in Assizes Recognisances of Assizes Redissessins â—ertisicates of Assize and Attaints and other the like should not take Fees because they did the same Ex officio and to answer these monies and the damages are the Defendants chargeable if Iudgement be given against them And to those who followed any Suit for the Kings profit and were not any of his Ministers â—ing Henry the â— gave to them the twentieth part of the profit with their reasonable â—oâ—â— In like manner the Iudge was not to heare the Plaintiffes Cause if he put not in security to answer his Adversaries damages if he complaine of him wrongfully CHAP. II. SECT 5. Of Countorr or Plaaders THere are many who know not how to defend their Causes in Iudgement and there are many who doe and therefore Pleaders are necessary so that that which the Plaintiffes or Actors cannot or know not how to do by themselves they may doe by their Serjeants Atturnies or friends Countors are Serjeants skilfull in the Lawes of the Realme who serve the common people to declare and defend Actions in Iudgement for those who have need of them for their fees Every Pleader of others Causes ought to have a regard to foure things 1. That there be a person receiveable in Iudgement that he be no Heretique Excommunicate Person nor Criminall nor a man of Religion nor a woman nor within the Orders of a Subdeacon nor a Benificed Clerke who hath cure of Soules nor under the age of 21. yeares nor Iudge in the same Cause nor attainted of falsity in his place 2 Another thing is That every Countor is chargeable by Oath that he shall doe no wrong not falsity contrary to his knowledge but shall plead for his Cliant the best he can according to his understanding 3 The third thing is that he put no false Dilatories into Court not false Witnesses not move or offer any false corruptions deceits leasings or false lyes not consent to any such but truly maintaine his Clyents cause so that it faile not by any negligence or default in him not by any threatning hurt or villany disturbe the Judge Plaintiffe Serjeant or any other in Court whereby he hinder the right or the hearing of the Cause 4 The fourth thing is as his Sallery concerning which four things are to be regarded 1. The greatnesse of the Cause 2. The paines of the Serjeant 3. His worth as his Learning eloquence and gists 4 The usage of the Court. A Pleader is suspendable when he is attainted to have received sees of two Adversaries in one Cause and if he say oâ— doe any thing in dispite or contempt of the Court and if he fall under any of the
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
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
the which the Witch caused Samuel to rise who warned Saul of his death Another kind is Piromancy which is done by fire Another is Areomancy which used to be done by signes in the Ayre Another is Hydromancy which is done by signes in the water Another is Geomancy which is done by signes in the land Another is Negromancy which is done by death by making the dead to speake Another is South-saying which was done by signes in the entrailes and bowels of Birds On the other part some Diviners used to put trust in Lots some in Songs some in Verses of Psalmes some in carrying Gospel and Charmes about their necks some in Enchantments and Spels some in signes in the entrailes of beasts and in the palmes of the hands Some were called Mathematitions and Magij and Divined by the Startes Others were called Arioles who tooke their answers from the Divell by evill men Others South-sayers who numbred nights and daies and houres whereby they ordered their businesse There were many other kinds all which manner of Divinersate to be by the Word of God himself and authority of the Church to be excommunicated and sobidden as much as Mahometry and things against the true Faith And this S. Augustine proves by many Reasons hence it is that they who travell to Witches or Diviners to know things to give that to the creatures which belongeth to God alone Wherefore these wicked doers are to be removed from the society of Gods holy people so that no good Christian be taken with their Art nor partner in their sins CHAP. 1. SECT 5. THe Crime of Majesty or offence against the King is neighbour to many other offences For all those who commit Perjury whereby every one lyeth against the King falleth into this offence As the Kings Ministers who are sworn to doe Justice and forswear themselves in any thing so those who disseise the King of any of his Franchises or of any manner of Right which belongeth to the Crowne by Occupations or Purpestures or in any other manner although it be no mortall offence Into Perjury fall all those Subjects of the King who appropriate to themselves Jurisdictions over the King and of themselves make Judges Sheriffes Coronours and other Officers to have Counsance of Law Into Perjury against the King fall all the Kings Subjects who appropriate to themselves Jurisdictions of Counties Honours Socknes Retorna brevium or any thing which may fall to his Inheritance as Wards Escheates Reliefs Suits Services or Marriages Faires Markers Enfang thef Out Fangthef Waife Estray Treasure found in the ground Warren in their owne lands or in the lands of others Tole Pavage Pontage Chinueage Murage Carriage or other the like Customes Into Perjury against the King fall those the Kings Subjects who take Abjurations of Felons and Fugitives and are no Coroner nor warranted by the King so to doe and those who put out any Indicted or Appealed of any Crime out of the Roll of the Coronour and those Coronours who oftner then once receive Appeale of Aprovers or procure that a man who is innocent be appealed by an Approver And those who have detained Appeales of Approvers of forraign Acts or whereby any forraigner is Appealed And those Coronours who wittingly suffer the goods and chattels of Fugitives to be lesse valued then they ought to be of right Or conceale them in part or in all or detaine them to their owne uses to the damage of the King or deliver them elsewhere then to the Townes or for lucre have taken more then they should in damage of the Townes Or suffered their Servants to have the garments or other things which are to be seized for the Kings use or the garments of the dead or delay to doe their office through covetousnesse Into Perjury against the King fall those Officers who pardon Fines and Amercements which belong to the King or any manner of penalty either corporall or pecuniary without speciall warrant And those Officers who by Summons and Ad. journments make the people to travaile in vaine as to Goale deliveries Assizes Enquests or otherwise and all those Subjects who beare Armes against the King or run away from his lawfull Army or Battaile And those Ministers who unlawfully stop or counsell the people that they goe not into War with the King or that they are not bound to goe where they have reasonable summons and that the people be not made Knights but according to the Statutes of the Realme Into Perjury against the King fall all those the Kings Subjects who hold Plea of Withernam and have not returne of Writs or hold Pleas of Distresses or of any other thing which belongeth to the Kings Jurisdiction only without the Kings speciall Commission or hold Plea in case of life of imprisonment of blood-shed of false Judgements or of any thing disavowable of right without the Kings Writ or Commission And all those the Kings Ministers who maintaine false Actions false Appeales or false defences Into Perjury against the King fall those Ministers who deny to Plaintiffes originall Writs possessory Attaints or of Formedon or otherwise doe delay their Rights and those who wrongfully doe delay or disturbe right Judgements and those who wrongfully favour wrongfull Judgements and all those who use their Priviledges or Liberties wrongfully or too largely contrary to their knowledge Into Perjury against the King fall those Ministers who receive Fines to other uses then to the Kings use for Treasure trove for Wrerk Waife Estray Alliens for blood-shed or impriâ—onment Withernam Reddissesin or Dissesin or forsweare themselves to resist that a lawfull Judgement have not execution for Usury perpresture upon the King or for any other thing whereof the Counsance doth belong to the King And those Receivers who pay not the Kings debts as they ought to doe and are enjoyned or render to him part for satisfaction of the whole and doe not pay the King the rest Into Perjury against the King fall those who Charge the King wrongfully And those who spend the Kings Quarries Timber or other things otherwise then in the Kings Service without sufficient warrant Into Perjury against the King fall Escheators who make wast of the Kings Wards or in his Fees or unlawfully take Venison Fish or other goods and by their authority seise the goods of the dead and for gaine release them or endow Widowes to the Kings losse or make hurtfull extents for the King acompting for lesse then the very value to the King Ot willingly suffer possessions to remaine in Mortmaine which ought to be seized into the Kings hands and whereof the King ought to have the profit or which receive more of their Bailiwickes then they answer to the King ot who wittingly suffer Feoffements of Lands or of Advowsons of Churches prejudiciall to the King or who suffer them to alien Wards or Marriages to the Kings prejudice or suffer the ages of infants to be proved in damage or to the
your Possessions which are not of my Fee in whose hands soever they come to a distresse When and what things a man may distreyne A man may distreyne Cattell or other things so soone as he findes them damage feasant and not the day after and after the time of paiment and not before and not every day And in the night a man may not distreyne but only in the day time but for damage feasant for before Sun rising or after Sun set no man may distreyne but for damage feasant where a man may distreyn in places or Lands within the Fee lyable to distresse and not elsewhere Of what goods a Distresse may be Of all goods which the Law forbideth not the Law forbids that a man shall not distreyne within the view where he may have a sufficient distresse in an open Covenable place A Covenable dead distresse is not by Armour or Vessels by Robes or Jewels by Writings if there be found another distresse sufficient in it selfe A Covenable live distresse is not to be of Sheepe which are guelt Muttons of Doggs Birds Fishes or by Savage Beasts when there is a sufficient distresse found of other Cattell A distresse is to be carried lead or driven away at the will of the distreyner and in case any distreyner finde not any distresse but within some inclosure in such case he can doe nothing but to shut up the goods inclosed and so sequester them without doing any other violence and if a man breake up such Pound or the locks of it or part of it he greatly offendeth against the Peace and doth Trespasse to the King and to the Lord of the Fee and to the Sheriffes and Hundredours in breach of the Peace and to the Party and to the delaying of Justice and therefore Hue and Cry is to be levied against them as against those who breake the Peace A dead distresse found in a Covenable place nor a live distresse is not to be led or driven out of the Mannour or out of the Hundred or out of the County not to be put in any pound or elsewhere wherehe to whom the goods are belonging cannot have sight of them but is to be put into such a place where the distresse and he who is the owner may be least endamaged There are two kinds of leading of distresses 1 One when a man leades away a live distresse against sufficient Gages Pledges 2 Another when one will not suffer himselfe to be distreyned lawfully and the one and the other are Personall Trespasses against the Peace And then if any be wrongfully distreyned ye are to distinguish whether it be by those who have power to distreyne or by others And if by others then lyeth an Appeale of Robbery whereof Haâ—lif gave a notable Judgement and if by those who may distreyue then they ought to deliver the distresse by Gages and Pledges And if the distreyner and the Plaintiffe of the distresse lead it away then the Counsans thereof doth belong to the Kings Court and so there is remedy by a Writ of Replegiary Neverthelesse for the releasing of such distresses and for the hastening of the right Randalf de Glanvile ordained That Sheriffes and Hundredours should take Sureties to pursue the Plaints and should deliver the distresses and should heare and determine the Plaints of tortious distresses saving to the King the Suit as to the leading c. Two thing fall in these Plaints Plaints of taking and of detaining whereof there are fouredegrees 1 Where the taking is justifiable for lawfull and the detaining also as for a debt due or debt recovered 2 Where both are wrongfull as such as are disavowable both in the taking and detaining 3 Where the taking is lawfull as in damage feasant and the detaining tortious as against sufficient Gages and Pledges tendered 4 Where the taking is tortious as in a pound and the detaining lawfull as for a Debt confessed and of no more have the ordinary Judges Counsans but in case where the Plea begins by Writ Counsans ought to be made of the taking of the dedaining lyeth remedy by an Assize of Novel Disseisin The taking and the detaining are sometimes by Parties knowne and sometimes by Parties unknowne but although the Persons are knowne neverthelesse the names of the detainors ought to be known and according to that the Avowant or the Plaintiffe or of his Bayliffe if he be not present ought to frame his Declaration and the Plaint joyntly against the Persons and against the detainers or severally against one of them and if against them both then thus A wrongfully tooke and caused to be taken by such a one knowne or unknowne c and drove and carried away c. and wrongfully doth detaine from him c. against Gages and Pledges and is yet seised thereof or thus wrongfully detained from such a day till such a day that he delivered the same to the Kings Bayliffe to his damage c. for these words and yet is thereof seised leaves it to them that they cannot have sight of the distresse and to those who detaine the distresse by Avowrie of property CHAP. II. SECT 27. Of Contracts AContract is a speech betwixt Parties that a thing which is not done be done of which there are many kinds whereof some are perpetuall as those of Matrimony others are temporary as of Baylements and Leases and one kind is mixt as of Exchanges which sometimes are for a time and sometimes for ever and one speciall kinde is an Obligation And because the Law doth not entermedle with every Contract we are to see who may Contract and of what things Contracts may be every one may make Contracts with all persons who is not forbidden by Law The Law forbideth that none Contract with the enemies of the King of Heaven nor with the enemies of their earthly King not with any mortall offenders not with those who are not of the Christian Faith not with Out-lawes nor Waives nor with those who are knowne Felons not Excommunicated nor with any who are in Ward if not to the profit of those who are in Ward nor with Deafe nor Idiors nor Mad-men nor Appealees nor Persons endicted of Crime Of what thing a Contract may be made Of all things not forbidden by Law The Law forbiddeth that a man doe not make a Contract of the right of another although he offend not the Law forbids Contracts of Usury Disseisin hurting of the body dis-h heriting and of other offences or vices Contracts are forbidden which are to the damage of the Party gayning by vice by forbidding mixture of offence Contracts are vicious 1 Sometimes by intermixture of offence 2 Sometimes by intermixture of ill beleese 3 Sometimes when they are made against that which is absolutely forbidden 4 And sometimes by false supposition In the first Case as if I Contract with you that if I doe not such a thing or such a thing that it shall be lawfull for you or
Fame against others And that which is said of making of Title to the possession of things in Case where a false Writ or false Mony or Larcine or thing lost or Estrey or other hurt is found at the Kings Suit although that the last professor acquit himselfe of the selony if the Plainliffe neverthelesse prove the thing to be his as of his possession or stoll en from another or otherwise lost the Law is that he recover the thing without any payment for it Or he may have Exception Dillatory to a vicious Deed for varience betwixt the words of the Writ and the nature of the Action and the Count as if he have omitted to Charge me or if he Charge that in the Count which was not to be in that Action as felony in a veniall Action And as the Defendant hath a Dillatory Exception to abate a vicious Count in like manner hath the Plaintiffe a Replication against the Defendant upon a faulty Answer but because none is to be Iudged for not Answering in Appeales of Felony it is sufficient for every one to deny the fellony generally though he Answer not particularly to every word mentioned in the Appeale And in Cases venialls where the Defendants say nothing in excuse of that which is offered against them in Judgement they are to be adjudged and Condemned as not Answering at all in the same manner is it where one Answereth not duly or insufficiently CHAP. III. SECT 14. Exception to Approvers TO an Approver one may thus Answer Sir I am a true man sworne to the King and within a Franck-pledge and this Approver is a Felon attainted by his owne confession and our of the Kings protection by consequence out of the Kings Peace whereby he hath lost his free voice and lost every right and every Action so as he is not to be admitted in any Action no more then a man who is Out-lawed by Judgement Or he may plead that he ought not â—o Answer him because he did not Appeale him in his first Appeale or not before the Coroners and if the Approver cannot helpe himselfe by this Replication as â—o say that he is not any way out of the Kings protection the Defendant is bound to Answer him but he is not to be delivered to the Fee-pledges where he is in the Decenry or to other Main-prisors untill he be appealed or indicted CHAP. III. SECT 15. Exceptions of Indictments THese Exceptions hold to Indictments Sir I demand sight of the Indictments whereby I may take exceptions againâ—â— the persons of the Endictors or to the sorme of the Indictment for no Villaine can indite any man Or if the Indictment be not made by 〈◊〉 whole dozien of Free-men or by 〈◊〉 who cannot indict any man Or if the Indictment be not sealed with the Seale of the twelve Jurouts or 〈◊〉 it is not the record of Iudges 〈◊〉 thereunto Or if the Indictment hath not been within the yeare or by people of credit and of good fame no man is bound to answer to such an indictment Nor if the Indictment hath not been made within the Neighbour-hood of the same County also if the Indictment be generall for a generall slander defameth no man nor is he compelled to answer thereunto as if the Indictment be such a one is a Murderer or a Thiefe or wicked without alleadging any particular offence therein for to the common fame of the people an Indictment ought to give no credit or beleefe Or he may say that the Iustices went the Eyre after the felony done where nothing was moved of this felony CHAP. III. SECT 16. An Answer to Treason DArling here denies all Treasons and Felonies and whatsoever is against the Kings Peace And as to the consideration he may say thus Sir notwithstanding the joynt Alliance betwixt us by Homage sometimes before this time neverthelesse when he counted that I should commit this Treason I had yeelded up to him all the Lands which I held of him or I lost them by Judgement or by Disseisin which the Plaintiffe did to me or he appointed them to come to others in which case the felony is barred and the Plaintiffe is condemnable And as to the consideration of present Fealty he may say that this Alliance the Plaintiffe forfeited against him in such a point or such a point such Fealty issued out of such Lands whereof the Defendant was not then Tenant neither in demeane nor in service And to the Alliance of Courtesie he may say that such benefit was not to continue but untill a time past before the time named in the Appeale for afterwards he paid him nothing of such Pension or other Courtesie but by Iudgement had against him and in despite of him Oâ— thus before the time named in the Appeale he yeelded up to him his deed of the Pension or released the same unto him or quit-claimed the same whereby the Alliance was destroyed CHAP. III. SECT 17. TO Burning he may say that the mischiefe came by mischance and not of a premeditated felon CHAP. III. SECT 18. Murder TO an Appeale of Murder he may plead that the Action belongeth not to such women as the wife of the Plaintiffe because he was not killed in her armes or in her seisin Or thus Sir the Plaintiffe is to have no Action for as much as there is one nearer of blood who hath brought his Appeale and is a person of ability so to doe Or he may say that he is not bounden to Answer in England unto an Act done out of the Realme if the thing concerne not the Kings right as his Person or his Inheritance nor in a Priviledged place where the Kings Writ runneth not of an Act done in a forraigne place nor è contra in a Franchise of an Act done in Guildable Or he may say that he did it not feloniously but by mischance or by a lawfull Judgement or thus not against the Peace as a Fugitive or as a known Felon or as one who was not within Allegiance to the King at the time of the killing CHAP. III. SECT 19. TO an Appeale of Robbery or of Larcine he may plead that he wrongfully bringeth this Appeale for as much as the Plaintiffe brought an Action of Trespasse against the same Persons of the same before such Iudges and if any one would cover his Larcine by colour of Avowry for an estray or a Waife in such case it behooveth thathe shew forth a Title allowable for such a franchise but this exception is counterpleadable by this peremptory replication Sir such Avowry ought not to be of any force because he presently carried away the Estray or Waife so found or changed it or sold it or killed it or put it out of the View or from the knowledge of the neighbour-hood whereas he ought to have publikely cried it in three Markets and Monasterles next adjoyning and keepe it in a common place for a whole yeare To the exception of Distresse
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
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
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
Summonable none is to be summoned for a personall offence not any one who is not a Free-holder 3 A man is not summonable in all places for no man is summonable nor bounden to receive Summons out of the Fee of the Party who causeth the Summons nor elsewhere but in the Mannour appendant to such a Court where he ought to Answer nor in all places of the Mannour but only at the Tenement in demand 4 How farre one is summonable not out of the Fee of the Court where one is to answer 5 At whose charges at the charges of those who are the first causers of the Summons except in Juries and Enquests taken ex officio for no Free-man is compelable to travell and appeare in Judgements at his owne charges notwithstanding that the Law requireth that every Tenant obey the Summons of his Lord. 6 How often one is summonable but once in one cause neverthelesse re-summoned holdeth place in some case 7 Who may and ought to be Summonors no man is compellable to be a Summonor if he will not agree to it neverthelesse all those may be Summonors who will that are not forbidden by the Law Women not Villaines nor infants nor any infamous Person not any one who is not a Free holder cannot be a Summoner 8 It is a reasonable Summons when it is testified by two loyall free Witnesses Neighbours to the Person or to the House or Tenement contained in the Writ with warning given of the day place party Judge of the Cause and a reasonable respite at least of fifteen daies to provide his Answer and to appeare in Judgement In Juries neverthelesse nor Enquests there need not be so full time or respite given CHAP. II. SECT 30. Of Essoignes ESsoigne is an excuse of a default by any hinderance in comming to the Court and lyeth as well for the Plaintiffe as for the Defendant The Law of every Essoigne is That the cause of the hinderance be enrolled with the name of the Essoigner so that if the diverse Party or his Atturney or Essoignor will traverse the Cause he is to be received so to doe that if he be found false then that the Essoigne be turned to a default All those may be Essoigned who are not forbidden by Law uo Defendant in personall Actions not any after default can be Essoigned not any present in Court nor doth Essoigne lye in a Scire facias nor in a Venire facias nor in a Recordari facias toquelam nor in Admeasurement of Pasture nor after the Parties have joyned issue in Judgement though the Jury appeare not nor in case where the Plaintiffe hath not found Surety to pursue his Action nor where one hath Atturney in Court if both be not Essoigned nor where the Summons is not testified nor after an Essoigne not warranted nor to him who was not named in the Writ or in the Plaint except in Warranties nor any one who is re-summoned in Mort-dauncester and Darrein presentment nor when the day is not come nor where the Essoigner commeth too late nor any one whose adversary is dead or any of his Parceners nor he who is adjourned from day to day nor the Kings Officer as Officer nor he to whom it is commanded that he appeare if he please No Essoigne is justifiable if it be not orderly cast nor is it allowed to Infants within age nor to any who is in custody nor to many having one right if the Cause be not divers All may be Essoigners who the Law forbiddeth not it is forbidden to Women to Infants to Villaires and to all who are in Custody to Mad-men to Idiots to Excommunicated Persons to the Judges and uo the Parties in the Cause Essoigners at other times not warranted 〈◊〉 â—â—ainted of false delayes to criminall Persons and to those who are not of the Christian Faith or in the Kings Alleagiance it is forbidden that they be Essoigners There are chiefly two kinds of Essoignes the one of the Kings service the other of hinderance The first is dividable either into the service of the King of Heaven or of the King on Earth of the King of Heaven in three manners 1 Either for the generall passage of all to the Land of c. and this Essoigne is not otherwise adjournable but that the Parties goe without day and are to appeare againe by Re-summons of the Plaintiffes at the returne of the Defendant This Essoigne is not allowable to Plaintiffes nor to the Defendant reasonably Summoned before his going from his house in a personall action nor in other but in a Plea which toucheth Inheritance nor but in a Writ of Right Patent but not of Dower nor of Burgage The other Essoigne of the service of the King of Heaven is of a common Pilgrimage beyond Sea towards the Holy Land and this lasts for a yeare this holds not buâ— according as the other The third of a Pilgrimage beyond Sea as to Rome or to Saint James De compostella and takes place for halfe a yeare and these Essoignees are to appeare the next Courts following the Termes adjourned After Re-summons holdeth place the common Essoigne De mal venier and also after the terme of Adjournment but this common Essoigne never holds place before the Essoignes before said The Essoigne of the King on Earths service is in two manners 1 The one is of those who serve as Souldiers as Messengers or as Ministers and this Essoigne is not respited but from Court to Court or the common day to the example of a common Essoigne if it be not warranted at the next Court by the Kings Writ it is to be turned to a default 2 The other is of those who serve the King by Tenure of their Land for the defence of the Realme and he hath no day But the Plaintiffe is with out day and the Plea is to be re-continued in the same Estate when his Adversary shall be returned These latter Essoignes are allowable in Pleas summonable to Plaintiffes and Defendants except in Dower Vnde nihil habet Quare impedat Darrein presentment nor to Women nor to Infants nor to Idiots nor to Deaf nor to Dumbe nor Mad-men nor to any in custody nor to any who is not free of himself nor to any Atturney as Atturney nor where the Essoigner acknowledgeth the Cause in Judgement to be false nor after any Cape nor after distresse in the Land After the Essoignes of the Kings service lyeth an Essoigne of Malo veniendi but not è conâ—â—a The Essoigne of disturbance or hinderance is dividable either of sicknesse or of some other hinderance as of those who comming towards the Court are taken by the Kings enemies and so hindered or by Waters Bridges or enemies discovered or by Tempests or other reasonable disturbance so that they have not power to appeare at the day The Essoigne of hinderance and sicknesse is divideable either of languishing which is called De malo lecti and that holdeth place
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
realls And if any one receive a Felon wittingly into his Franchise the same is now challengable CHAP. IV. SECT 17. Of satisfaction of Debt IF a Plaintiffe recover against many by Iudgement he shall have but once damages as in this case If many Persons owe one Debt and every one be bound in the whole if one of them make agrement for the same although he doe not make a speciall agreement for all the Debtors all of them neverthelesse are discharged because satisfaction hath respect to the Debt and not to the persons CHAP. IV. SECT 18. Cases of Disseisin IF the Iurours in Petit Assizes are agreed that one shall give their common Verdict for all and if they say that they know nothing nor that the Plaintiffe shall receive nothing because he proved not his Action and if they be of divers opinions they are not therefore to be threatned nor imprisoned but they are to be severed and diligently examined And if two Iurours be found to agree amongst all the rest it sufficeth for him for whom they speake and they are not to be examined upon the title of the possession but it is sufficient for the Iudge to know if the Plaintiffe were disseised of his Land whether it were rightfull or wrongfull according to the Plaint for though it were right neverthelesse it was tortious because the Tenant used force where he should have used Iudgement and for that he made himselfe a Iudge therein Iudgement is to be given for the Plaintiffe so as he shall recover seisin such as it is saving every right by another Writ for an Affize lyeth not upon Assize of the same Tenement betwixt the same parties not an Attaint upon an Attaint and if the Iurours for him whether they were sworn upon the Action or upon the Exceptions Iudgement goes for him and they behoove to enquire of the others named in the Writ and if the Disseisors came in with force and Armes although they hurt no persons body all of them neverthelesse are to be adjudged to Corporall punishment according to the quantity of the offence and if they cast him our of his dwelling house or out of his Demesne the felony of this Burglary is punishable at the Kings Suit or at the Suit of the Party for none is to be cast out of his house where he dwelleth and which he hath used as his owne for a yeare without Iudgement although he hath no title thereunto but by Disseisin or intrusion and it sufficeth for fotce and Armes onely the shewing of Armes for to hurt the Adversaries and under the name of Armes are contained Bâ—wes Artowes Sawes Launces Speeres Staves Swords and Targets of Iron The Iury ought to enquire of the damages that is to say of the profits of the Tenements done since the Disseisin and to whose hands such profits after came and of the Charges Costs and reasonable expences which the Plaintiffe hath sustayned in his whole recovery and in all things and how much he is endamaged in distresse of his goods and in his honour and the damages being assessed it is to be awarded that the Plaintiffs recover his seisin such as it is according to the view of the Recognitors and the damages and the Disseisors are punishable according to the points of the offences For the goods found in the Tenements whereof none can know the value as Charter Writings Royall Treasure and such things locked up the Plaintiffe hath an Action by Appeale of Robbery or by a Writ of Trespasse In Iudgement of â—atcine veniable satisfaction is to be made to the 〈◊〉 inâ—ffes to the double of the value of 〈…〉 which are stolen and in case of 〈…〉 the value 4 double or foure 〈…〉 CHAP. IV. SECT 25. Of Amercements A Pecuniary paine we call an Amercement which follow reall offenders and mâ—â—t and sometimes are certaine and sometimes uncertaine An Amercement is certaine sometimes according to the dignity of the Persons as it is of Earles and Barons for he who holdeth an entire Earldoine is to be amerced one hundred pound when he is least amerced And a Baron for a Barony entire one hundred Markes and he who holdeth lesse lesse and more more according to the quantity of the Tenure And sometime by a certaine Assize in another case as it is of Escapes of people imprisoned in which case yee are to distinguish of the place as where one escapeth out of the Kings Prison or out of the Prison of another out of the Kings Prison yee are to distinguish of the cause whether it be mortall or veniall and if mortall then distinguish if the cause were adjudged or not and if adjudged by norory of fact or of right then the Corporall punishment is uncertaine for if the Keeper or more be assenting to the escape punishment of death followeth thereupon and if the cause was not adjudged and the Keeper was not the Kings Officer nor assented to the escape then the Assize of punishment is so many Shillings sterling or more according to the usage of the Country or of the place or of the person And if the Cause he veniall then the escape is not punishable And if the escape be from the prison of others then yee are to distinguâ—sh of the cause and of the caption whether the cause be mortall or veniall and if mortall then the pecuniary paine aforesaid holdeth place and if the cause be veniall there is no punishment for the escape CHAP. IV. SECT 26. Of Amercements taxable COmmon Amercements are Taxable by the Oathes and Aâ—â—erments of the Peeres of those who sal in misere cordia according to the constitution of the Charter of Franchises which willeth that a Free-man be assessed when he falleth into an Amercement according to the quantity of his offence a Merchant saving to hâ—â— his Merchandize and a Viâ—â—aine saving his Wainage and these Affâ—rrors are to be chosen by the assent of the Parties if they will but the Kings Officers are the more grievonsly to be Amerced for the breach of their faith c. Many cases there are where Corporall punishments are brought in by Fines of money and such are called Ransomes which is as much as to say Redemption from Corporall paines whereof some Fines are common as for Murders other for personall Trespasses of Townes and Commonalties which Fines King Edward Ordained that they should be assessed in the presence of the Justices so as the names of them be put into the Roles of the Iustices so that the Estreates may come to the Sheriffe to leavie the same by parcells and not by totall Summons And in case where one recovereth Debt or Damages King Edward enacted that it should be in the election of them to doe execution by leavying such Debt and damages of the moveable goods of the Debtors at the very value to the value of the thing in demand except the Oxen and Beasts of the Plow together with the moyety of Lands and Tenements of the Debtors if
to averre by Oath and because he would not averre it by Record Therberne would not allow of the Acquittall which he tendred him He hanged Wolstor because he adjudged Haubert to death at the Suit of the King 31 Wolstor for a fact which Haâ—bert conâ—est and of which the King gave him his pardon but he had no Charter thereof neverthelesse he vouched the King to warrant it and further tendred to averre it by enrolement of the Chancery He hanged Oskitell because he judged Catling to death 32 Oskitell by the Record of the Coroner whereby Replication allowable the plea did not hold And the case was such Catling was taken and punished so much as he conâ—est he had mortally offended and that to be quitted of the paine and Oskitell adjudged him to death upon his Confession which he had made to the Coroner without triall of the truth of the paine or the fact And further he caused the Coroners and Officers accessories to be apprehended who hanged the people and all those who might have hindred the false Judgement and did not hinder the same in all cases For he hanged all the Judges who had falsly saved a man guilty of death or hath falsly hanged any man against Law or any reasonable Exception He hanged the Suitors of Calevot 33 Suitors of Calevoâ— because they had adjudged a man to death in a case not notorious although he were guilty thereof for no man can Iudge within the Realme but the King or his Commissaries except those Lords in whose Lordships the Kings Writ doth not run He hanged the Suitors of Dorcester 34 Suitors of Dorcester because they Iudged a man to death by Iutours in their Liberty for a felony which he did out of the liberty and whereof they had not the Counsance by reason of forrainty He hanged the Suitors of Cirencester 35 Saitors of Cirencester because they kept a man so long in Prison that he dyed in Prison who would have acquitted himselfe by Forraigners that he offended not feloniously In his time the Suitors of Doncaster lost their Iurisdiction 36 Suâ—ors of Doncaster besides other punishments because they held Pleas forbidden by the Customes of the Realme to Iudges Ordinaries and Suitors to hold In his time Colgrin lost his franchise of Enfangtheise 37 Colgrin because he would not send a Theife to the common Goale of the County who was taken within his Liberty for a felony done out of the Liberty in Guildable In his time Buttolphe lost his view of Franck-pledges 38 Buttolphe because he charged the Iurours with other Articles then those which belonged to the View and Amerced people in Personall Actions where one was not to be amerced by a pecuniary punishment And accordingly he caused mortall rewards to Criminall Iudges for wrongfull mortall Iudgements and so he did for wrongfull Iudgements venialls Imprisonment for wrongfull Imprisonments and like for like with the other punishments for he delivered Thelweld to Prison because he judged men to Prison for an offence not mortall He judged Lithing to Prison 39 Lithing because he imprisoned Herbote for the offence of his wife He judged Rutwood to Prison because he imprisoned Olde for the Kings Debt On the other side he cut off the hand of Hanlf because he saved Armocks hand who was attainted before him that he had feloniously wounded Richbold He judged Edulfe to be wounded because he judged not Arnold to be wounded who feloniously had wounded Aldens In lesser Offences he did not meddle with the Judgements but dis-inherited the Justices and removed them according to the points of those Statutes in all points where he could understand that they had passed their Jurisdiction or the bound of their Delegacy or of their Commission or had concealed Fines or Amercements or other thing which belonged to the King or had released or encreased any punishment contrary to Law or procured the exercising or pleading without Warrant either in the property by warrant of Writ or of a plaint of the Possession or è contra Or in the veniall Actions by words of felony or è contrai or had sent to no Party a transcript of his Plea at the Joâ—ney or any of the Parties wrongfull grieved or done any other wrong in dis-allowance of a reasonable Exception of the Parties or to the Judgement In his time every Plaintiffe might have a Commission and a Writ to his Sheriffe to the Lord of the Fee or to certaine Justices assigned upon every wrongwhichwas done In his time Law was hastened from day to day so that above fifteen daies there was no default nor Essoigne adjournable In his time the parties might carry away the parts of their Pleas under the Seale of the Judges or the adverse parties In his time there was no stay of Writs all remediall Writs were grantable as of Debt by vertue of an Oath In his time the Iudges used to take twelve pence of every Plaintiffe at the journey In his time Plaintiffes recovered not onely damages of the issues of the Possessions and of the Fees but recovered Costs as to the hurts and as much as one might lawfully Taxe by the occasion of such a fact 109 It is abuse that such a multitude of Clerks are suffered to be made whereby the Kings jurisdiction is overthrowne 110 It is abuse that Clerkes have Leases of that which belongs to the Temporalty and hold Lay Fees 111 It is abuse that Pleas hold upon Sundaies or other daies forbidden or before Sun rising or in the night time in dishonest places 112 It is abuse that none answer to a Felony or other personall Action of trespasse or scandall before his age of one and twenty yeares 113 It is abuse that when the Action is affirmative to take the proofe against the Answer or Plea affirmative 114 It is abuse that a man be accused of life and member ex officio without 〈◊〉 or without indictments 115 It is abuse that the Iustices shew not the Endictments to those who are endicted if they require the same 116 It is abuse that no man in England doth answer for a thing done out of the Realme Et è contra or in a priviledged place where the Kings Writ runneth not for a thing done to a Forraigner et è contra or within a place within a Franchize for a thing done in Guildable 117 It is abuse that Rape is a mortall offence 118 It is abuse that Rape extends to others then Virgins 119 It is abuse to Out-law a man if not for felony 120 It is abuse that one take in England any one Out lawed in Ireland or elsewhere out of the Realme or that one is put out of his Fee by judgement of Law of Judges Ordinaries Suiters 121 It is abuse to count of so iong time whereof none can restifie the hearing or seeing which is not to endure generally above forty yeares 122 It is abuse that a man have an
two points one in the specialty of the Corporall punishment and of the Plurality punishments since the redemption by a pecuniary paine is but the buying out of the Corporall punishment The other to have jurisdiction against the Abettors without originall Writ The Statutes of Waste are founded upon Errour since waste is a personall Trespasse and requireth other manner of Processes as appeareth in the Chapter of defaults and to defend a personall Trespasse by Writ is but a vaine labour The Statute of not allowing a false cause in the Essoigne De malo lecti is defective for in no Essoigne for no Party is any false cause or any falsity to be permitted not ought to be profitable to any The Statute of Debt and Damages recovered is defective for not onely should such remedy be in the Kings Courts but it ought to comprehend in all other Lay Courts The Statute of those who are dead without Wills is defective for it ought to comprehend Felons and Fugitives as well as true men and the King and all others into whose hands their goods come as well as Ordinaties for none can forfeit the right of another The Statute for allowing one manner of Exception in the like Actions was not needfull to have been made if not for the negligence of Justices for every affirmative is encounterable with his negative at the perill of the party The Statute of detinue of service is a novelty daugerous to Lords of Fees as appeareth in the Chapter of defaults The Chapter of making new Writs had not need to have been made if the first Ordinances of Writs were observed The Statute to have remedy by Assize of Novel disseism is reproveable for as much as it comprehendeth not Lands charged with Villain Customes not Lands holden for terme of yeares The point needed not have forbidden false Exceptions if the Pleaders held themselves to the points given in charge And as to the point of Imprisonment the Statute is reproveable for the reasons aforesaid and also as to the paine of double damages for the Law giveth a man no more then is his demand And that which appeareth in the Statute of false Appeales is more errour then right in the enacting the award of amends to Defendants whereas it is not to the Plaintiffes And as to the Writ to the use of Sheriffes in Disseisin it is no Statute but it is a thing at pleasure and a wrong And that which is used to grant Damages in part or in all to Justices or to Clerkes or to Ministers or others should be forbidden as a usage very full of damage to the people And as punishments are reproveable in Novel Disseisins so are they in the Statutes of Disseisins Corporall punishments neverthelesse hold in such personall Trespasses but in Reddisseisins more then in Disseisins The Statute which forbiddeth that Writs of Oyer and Terminer be not Ligirment granted is not founded upon any Law Easily as being repugnant to the words of the Great Charter We will not sell or delay Justice to any man but commeth rather from the remporall Iudges who cause the same for their advantages as desiring to embrace all Pleas. The Statute of Caption of Assizes thrice in the yeare is reproveable as to the adjournment of the Parties out of the Counties before the Iustices of the Bench who have no jurisdiction over those Pleas since the Commissions are given to Iustices assigned And as to take Iuries and Enquests in their Counties so the Statute is not to destroy the Authours and indamage the people The Statute which forbiddeth Iustices that they cause not Iurours say but their advice is defective as appeareth in the Chapter of Iurours The Statute of Exceptions allowables rebutted by Iustices is not founded upon Law as appeareth in the Iudgement of false Iustices but is when it is in no part fixt The Statute of Rape is reproveable for none can ordaine by Statute that a veniall punishment be turned into a mortall without the consent of the Pope or the Emperour The Statute that the King hath the Suit in Rape or in Ellopment of women Married is reproveable for none is bounden to Answer to the Kings Suit if not by Appeale or by Indictment And that which is contained in it That Women should lose their Dower for the sinne of Adultery ought also to comprehend all Adulterours who claime to hold the inheritances of their Wives by the courtesie of England so that there be no exception of persons The imprisonment of the Alloppors of Nunnes and their ransome is no Law but is an errour in a double manner as before is said in many places The imprisonment for two yeares or more ordained for a Corporall punishment to Ravishers of Marriages is but errour for no Corporall punishment ought to be ordained but for common profit as before appeareth of open Penances And that which is ordained of Proclamations in personall Actions is but abuse of Law as it is said in the Statute of Moignes The Statute which awardeth Ransome is reproveable for Ransome is nothing else then the redemption of Corporall punishment The Statute of Distresses made by Baylisses unknowne is distinguishable for in torrious Distresses without warrant the Iudgement of Robbery holdeth and by warrant is every one receiveable whether knowne or unknowne The Statute of Iurours is reproveable for the Law wills that the Plaintiffes have the aide of the Courts to cause the Witnesses to appeare whereby they may the more lawfully helpe themselves without distinction of persons And that that jurisdiction is granted to Justices assigned to Oyer and Terminer Plaints without a speciall Commission is but abuse The Statute which awardeth that Writ of Judgement be made without warrant of originall Writ is nothing else then a Licence to falsifie the Kings Seale The punishment of Sheriffes ill answering is reproveable as to the punishment for dis-inheritors of the King offend of the crime of Majesly and are by consequence punishable by death which ought not to be in such cases And as to issues the Statute is reproveable for no issues are awardable but after defaults in Actions mixt and not to the Kings use but for the profits of the Plaintiffes The defaults made of the Statutes of Clerkes Cryers and other Officers of the Court are but idle because they aâ—e not kept at all The Statute that Cognizances and Enrolements which are made in the Chancery the Exchequer and before Iustices be established is an Authority of great ill for by false enrolements might every one in Authority destroy those he pleased which should be a great inconveniency Againe by this Statute Authority should accrue to Authority to the Chancellor and others to falsifie the Kings Seale by Writs to give judgement without originall Writs And therefore note that none but the King can receive Arturnies in the Kings Court nor recognitions bitwixt Parties without warrants of originall Writs The Statute of improvements of wasts and commons of Pasture
is reproveable and distinguishable according as hath been said before The Statute to have view of Lands is but a wrongfull delay of the right of the Plaintiffes for the View appeareth sufficient by the Certificate of the Summons upon what Tenements the Tenants are summoned The Statute which forbiddeth that no Officer of the Court take any presentment of any Church not other thing which is depending in Plea or in debate is not kept Reprehensions upon the Statute of Gloucesier 16. E. 1. THe Statutes to recover Damages in Pleas of possession enacted at Gloucester or else where and of the horrible damages in waste are reproveable for that the Law giveth one no more then is his demand and therefore it behooveth that the damages be mentioned in the Writs if damages shall be awarded for a Judge cannot exceed the points of his Commission and so it would be needfull to use it according to the first Ordinance of Writs And the Statute of Tenements alliened of Lands in prejudice of others is reproveable for the remedy ought to be such as of Guardians allienors to the dis-inherison of the right Heires The Statute of Trespasse pleaded in Counties is reproveable for want of distinction for small Trespasses Debts Covenants broken and such other kinds not exceeding forty shillings Suitors have power to heare and determine without Writs by warrant of jurisdiction Ordinary and by Writs granted afterwards for Sheriffes have more jurisdiction in their Writs vicontiell then Justices of the Bench by the Pone And as to the recovery of twenty shillings or more in right of Essoigne of the Kings service not warranted the Statute is reproveable for that Essoigne might be cast where the Defendant would make default by the adverse Party and so he should have advantage of his malice The Statute which forbiddeth the abatement of Appeales is not observed The Statute which awardeth an innocent man to remaine in Prison or to have no manner of punishment for necessary Man-slaughter or by mischance where no offence is found is but an abusion The Statutes making mention of London ought to extend commonly throughout the whole Realme CHAP. V. SECT 6. The reprehensions of Circumspectè agates An. 13. E. 1. THe first point which saith That the Kings prohibition holds not in correction of mortall offences where a pecuniary paine is enjoyneable by Ordinaries is founded upon open errour and usage to enjoyne a pecuniary paine for a mortall offence notwithstanding to destroy the King jurisdiction The other points to compell the Parishioners by corrections to enclose Church-yards to offer to give Mortuaries Monies for Consessions Chalices Lights Holy Vestments and other adornement of Churche are more grounded upon interest then amendment of soules and note that after that they are offered to God that they are so spirituall that they are to be expended but in Almes and spiritually for they are never to be converted to Lay uses And then if any Parishioner for the hurt of the Parson of the Church keopeth back his Tithes or stealeth them away or doth not pay them duly or fully the same is not punishable by a pecuniary paine but by a corporall punishment For the Excommunicate no pecuniall paine was to be for restitution or satisfaction no more then of a Pagan or a Jew and if they doe demand a pecuniary paine there the Kings Prohibition lyeth and much more in the demand of Pensions or of damages of Trespasse or of defamation but of Pleas of correction where one Pleades onely Pro salute anima the Kings prohibition lyeth not CHAP. V. SECT 7. THe new Statute of Debts is contrary to Law as it appeareth in the Chapter of Contracts for every imprisonment of the body of a man is an offence if not for tortious Judgement and the Law will not suffer any Obligation or vicious Contract by intermixture of offence and therefore it was to be avoided as grounded upon an offence for no honest man ought to agree to such a Contract which causeth him to offend or to be punished Againe it is contrary to the Great Charter which enacteth that no man be taken nor imprisored if not by the lawfull judgement of his Peeres or by the Law of the Land Here endeth the Mirrour of Justices of the right Lawes of Persons according to the ancient usages of England The end of the fifth Chapter and of the whole Booke FINIS THE BOOKE Called The Diversity of Courts And Their Jurisdictions Written by an unknown Author in the time of King Henry the Eighth in the French Tongue Wherein many necessary and profitable things ate contained Translated out of the French Tongue into English for the use of many By W. H. of Grays Inne Esquire Imprinted at London for Matthew Walbancke and are to be sold at his Shop at Graies Inne gate 1646. The Booke called The diversity of Courts and their Jurisdictions IT is to be understood that the King is the fountaine of Justice and to that purpose ordayneth Judges that Justice be administred to all his Subjects The King himselfe for the excellency of his Person may fit and give Judgement in all Causes personall or reall betwixt Party and Party but he cannot fit in Person in Judgement in any Cause where he himselfe is Party or where the things of his Crowne or Dignity are concerned as upon an Indictment of Treason or upon as appeale of Murder or Felony or upon an Action brought by himselfe as Formdon of Land of which the right is descended to him from a colaterall Ancester or in an Action of Debt by reason of the affection moving him to be favourable to himselfe and therefore he maketh his Iudges to sit and heare such matters in difference and to doe justice to the parties And the place where the Judges sit to minister Justice are called Courts which are of divers kinds and the Judges thereof have severall Authority Of the Court of Marshalsey ANd first the Court of Marshalsey is an ancient Court and made for the well government and ordering of the Kings house for the preservation of the King and his Servants and this Court hath its bounds within which it hath jurisdiction and not without The Iudges of this Court are the Steward and Marshall of the Kings house for in them under the King is the ordering of the houshold c. The title of the Court is Placita Corone aula Hospitii Domini Regis leat coram seneschalle mareschallo hospâ—â—â—i Domini Regis c. And this Court hath power to enquire of Treason Murder and Felony and to take Appeales of them and of Mayhem if they be done within the Virge betwixt persons who are of the Kings house And if one of the houshold Sueth another who is not of the houshold he may plead to the jurisdiction of the Court and if they will not allow of the Plea he shall have a Writ of Errour and the Iudgement shall be reversed in the Kings Bench. And if
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