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
Ports and such places which have Counsans of Pleas and also in Court Barons in which Courts is Iustice done according to Law c. And although they of the Cinque Ports ought to be empleaded of their Lands within the jurisdiction of the Cinque Ports yet that holdeth onely where the Tenant sheweth the same and taketh advantage thereof if he be impleaded in the Kings Courts of things which are within that jurisdiction but if the Tenant be sued in the Common Pleas for Lands within the Cinque Ports if the demandant doth recover by default or if the Tenant appeare and plead any matter which is found against him so that the demandant hath judgement for to recover the Land that judgement shall bind him for ever c. But the Tenant might have alleadged That the Land was within the Cinque Ports and by such Plea the Kings Courts should be outed of the jurisdiction c. And so it is of Lands within an ancient demeasne if a Writ be brought thereof in the Common Pleas if the Tenant appeareth and pleadeth and doth not take exception to the jurisdiction and the Plea be found against him so that the demandant recovereth the Tenant shall not reverse the judgement by a Writ of Errour because the Tenant might have taken exception to the jurisdiction of the Court and it should have been allowed c. But yet the Lord may reverse that judgement by a Writ of deceit and shall make the Land ancient demeasne as it was before c. And if one hath Counsans of Pleas in a Towne or in a Mannor and a Writ is brought in the Common Pleas of the same Land and the Tenant pleadeth and judgement is given against him the recovery is good for it is within the power of the King and the Writ of the Common Pleas doth take place there and if the Bayliffe or Lord doth not demand Cognusans the judgement is good But in another Action the Bayliffe shall have Cognusans for that the nature of the Lard is not changed and so see that where a man hath counsans of Plea c. it ought to be demanded by the Bayliffe or the Lord and the Tenant shall not demand the same if he be impleaded in the Kings Court but of the ancient demeasne there it behoveth the Tenant to shew the same and plead to the jurisdiction c. if he will have advantage thereof c. And so note that in the Cinque Ports there is such a liberty that the Lands and Tenements are pleadable there before the Barons c. and yet if one be impleaded at the Common Law of Lands within the Cinque Ports the Barons shall not have Counsans of the Plea but the Tenant may plead the same to the jurisdiction in abatement of the Writ c. The Court Baron NOte also that there is another Court which is called Court Baron in which Court the Suitors are the Judges and not the Steward and they hold plea of Contracts within the jurisdiction c. and yet it is said by some That the Defendant shall not shew that the Contract was made out of the jurisdiction and pray that the Plaintiffe be examined as in a Court of Pipowder The Judges of the Court Baron have Authority to hold plea before them of Debt upon Contracts or Detinue but not of detinue of Charters nor Actions of debt upon a judgement in a Court of Record but otherwise I thinke it is of a recovery in the same Court nor shall they hold plea of Maintenance forgery of false Deeds of deceit not of Decies tantum not of pleas of Accompts for they have not authority to assigne Auditors They shall not hold plea of Debt above the summe of forty shillings unlesse it be by prescription and they shall not hold plea of Free-hold by plaint but by a Writ of right they may But if a judgement be given of Free-hold upon a plaint it is said it is good untill it be reversed by a Writ of false judgement tamen quaere c. And note for what Suit a man shall be judged in a Court Baron and it is said That it is where a man is seised of Lands in Fee-simple and which he holdeth by service of Suit at the Lords Mannour that Suit is properly Suit-service and for such Suit he shall be judged in a Court Baron and for no other Suit as it is said c. And quaere also when erronious judgements are given how they shall be reversed viz. when by Writ of false judgement and when by a Writ of Errour And some say That in all Courts where the party might remove the plea by a Recordare upon a judgement given in such Courts a Writ of false judgement lyeth as in ancient Demeasne Court Baron County Court and Hundred but in other Courts which are of Record the plea shall be removed by a Certiorare and upon judgement given in such Courts which are of Record it shall be reversed by a Writ of Errour c. And if a man recovereth in a Court of Record by erronious judgement and Sueth not Execution some say That a Writ of Errour lyeth and the party shall have a Supersedeas if he will prey the same but if a man hath judgement in a Court Baron and taketh not forth Execution no Writ of false judgement lyeth Quaere the reason thereof and what the Law is in that case And note that sometimes the Sheriffe is Judge as in Reddisseisin Wast and Admeasurement and the Processe shall be served by the Baily as is said And note that the Sheriffe is an Officer â—o the Kings Court to execute the Processe thereof yet sometimes the Coroner is the Officer to the Court where defect is found in the Sheriffe c. so that he cannot by Law indifferently execute the Processe as for divers apparent causes yet if the Sheriffe dyeth the Processe shall not goe to the Coroner but shall stay till another Sheriffe is chosen c. And because the Sheriffe is an Officer appointed by the Law to attend the Kings Courts a man shall not take an Averment against the returne of the Sheriffe directly and the reasâ—n is because where Justice ought to be ministred and executed those who have the Government of the Law ought to repose trust and confidence in some person and if every one might averre against that which the Sheriffe doth then Justice should not be executed but should for ever be delayed c. The meanes and the remedy how a man may come to his due and to that which is wrongfully kept from him and that is by plea and this word is generall and hath divers effects implyed therein and may be divided into divers branches viz. Into pleas of the Crowne as appeales of Death Robbery Rape Felony and divers other things c. and into Actions reall whereby Lands Tenements Rents and other hereditaments are demanded as Writs of right Formed on c. Or Actions
fundamentall Lawes so much of late called upon are to be found though I doe not warrant all in this Booke to be Law at this day many of the Lawes being absolete and altered by Acts of Parliaments and common usages It hath been some difficulty for me to finish it And although that the Manuscript Copy be in the Originall very imperfect the French impression by mil joyning of words in many places without sence and false Printed the Termes of Law therein for the most part obsolete and worne out yet have I endeavoured as all Translators of Bookes especially of Bookes of the Law ought to keep my selfe close to the words and meaning of the Authour and of the Law then in use and practise well knowing that Lawes many times have their interpretation according to the strict Letter and not according to such flourishes of Rhetorique and Oratory as may be put upon them I entreat thee Courteous Reader to accept of it as it is if thou finde any Errours in the Translation as I suppose thou maist doe many to passe them over or amend them If thou finde any thing in the Worke it it selfe which may advance the Common Lawes or the Liberties of the Subject or set forth the true Prerogative of Kings to weigh them in the Balance of Justice If thou finde any thing therein not fit to be published in these daies of distraction betwixt the King and prople Consider that this Worke was written in in the time of King Edward the first Consider againe it is not mine but the Authors who for his Antiquity and Learning in the Lawes of the Realme then in use hath found the favour and honour to be cited by many of the grave Sages of our Publique Laws so I commend it to thy favourable acceptance and bid thee farewell Thy friend who in his desires strives that the Common Laws of the Land may now and for ever flourish W. H. The PREAMBLE VVHen I perceived divers of those who should Governe the Law by Rules of Justice to have a respect to their owne earthly profit and chiefly to please Lords and their friends and to have a respect thereunto and not to give their consents that the right Usages should be ever put in writing whereby power might be taken from them to pervert Judgement and others to banish or dis-inherite without punishment for the same covering their offences by the exceptions of Errour and Ignorance never or little regarding the Soules of Offenders condemned by their Judgments as their duties and places required having used to Judge the people according to their own heads by Abusions and by the Examples of others erring in the Law rather then by the Rules of the Holy Scripture greatly to have erred from the true understanding thereof building without any Foundation and to Judge and have Cognizance and Jurisdiction in that which they little understood both in the Law of the Land and of the Law of the Persons as it is of those who take upon them Art to pronounce false Judgements and by their Executions falsly to pervert the Priviledges of the KING and the ancient Roles of his Treasure Taking the same into my serious consideration and the Foundation and Originall of the Usages of England given by the Law together with the Rewards of good Judges and the punishments of others I thought it needfull wherein my Companions gave me their assistance to study the Old and New Testament and therein we found That the Law is nothing else but Rules delivered by our holy Predecessors in the Holy Scriptures for the saving of Soules from perpetuall Damnation notwithstanding that the same were disused by false Judges And we found that the Holy Scripture remained in the Old and New Testament The Old Testament contained 3. orders The Law The Prophets The Hagiographies In the Law there are five Volumnes Genesis Exodus Leviticus Numbers Deuteronomy In the order of the Prophets are eight Volumnes Josua Judges Samuel with the 1. and 2. of Kings The 1. and 2. of Kings Esay Jeramy Ezekiel The Bookes of the 12. small Prophets In the order of Hagiographie are Job The Psalmes Proverbs of Solomon Ecclesiastes The Song of Solomon Daniel Paralipomenon Esdras Hester And besides these there are Bookes in the old Testament although they are Not authorized Canonicall Tobie Judeth Maccabees Ecclesiasticus The New Testament contain 3 Books The Evangelists The Apostles The holy Fathers The Evangilists contain 4 Volumnes The Epistles of St. Paul The Epistles of the Canon The Revelation The Acts of the Apostles The writings of the Apostles containe foure Volumnes Of the writings of the Fathers there is no certain matter agreed upon And we finde that our Lawes were agreeing to Scriptures and that they were in a Language best known both for the help of us and the common people And for the condemning of false Judges I compiled this little Book of the Law of Persons into 5. Chapters that is to say 1 Of offences against the peace 2 Of Actions 3 Of Exceptions 4 Of Judgements 5 Of Abusions Which Booke I have called The Mirrour of Iustices according as I have found their vertues and the most excellent substance after the time of King Arthur used by holy usages according to the Rules aforesaid and I desire you that you would amend the defects therereof according to such lawfull and true warrants as you prove both to learne the truth and confound the daily abuses of the Law ERRATA FOl 4. l. 18. for Iarrickshire r. Everwickshire f. 5. l. 12. r. after f. 7. l. 5. r. estray f. 10. l. 1â— r thence f 10. l. 20. r. exigent f. 11. l. 22 r. right heirs f. 12. l. 8. r. that married before f. 13. l. 5. ad they ib. l. 6. r. Escuage f. 14. l. 20. r. good f. 14. l. 35. r. disseisins f. 16. l. 27 r. Heresie fi 19. l. 5. r. chinniage f. 25. l. 5. r. offence f. 28. l. 18. r. not f. 30. l. 11. r. duresse f. 34. l. 19. put out to f. 35. l. 6. after appoineed ad time f. 30. l. 1. r. trove f. 47. l. 10. r. unknown f. 49. l. 3. r. done f 63 l. 10. r. endictee f. 65. l. 3. r. Countors f. 66. l. 12. put our as f. 69. l. 24 r. seisin f. 70. l. 5. put out the f. 76. l 9. r. contumacers f. 77. l. 8. put out the f. 93. l. 34. r. disscisin l. 16. r. Darcein presentment l. 15. r. Mortdamicester f. 99. l. r. promy t. An. f. 102. l. 17. r. l. eplegiary facias f. 103. l 18. put out of f 1105. after 100. f. r. five pounds f. 116 l 30. r resummons f. 123. l. 29. ad in f. 126. l. 3 r. felony f. 150. l. 6. ad not f. 152. l. 28 29. r. diffesivit f. 154. l. 8. r. waging f. 155. l 14 ad not f. 156. 33. r. Record f. 163. l. 29. r. enjoyed f. 167. l. 14. r. plaintiffs f. 267. l.
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
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
the goods be held sufficient by a reasonable Extent untill the debt and damages be leavied Those who are Appealed and Endicted of Felony and are not to be found it behooveth that they be proclaimed and especially before the Kings and his Iustices Errants and if they be found guilty then they are to be commanded to put them in exigent so that the first county after the Eyre be the first day and so they be demandable at three Counly Courts untill they be Out-lawed if they â—ender not themselves to the Peace CHAP. IV. SECT 27. Of the Office of Justices in Eyre TO the Office of Iustices in Eyre it belongeth especially to enquire by Iurours and by examination of the Roles of the Coroners of all that were Out-lawed after the last Eyre and after Certificate of their names they are to enquire of the names of their Pledges that is to say whether they were in Dozien or in Franck-pledge and if their Pledges be in the same County then are the Pledges punishable by a pecuniary paine because they brought not those they tooke in Maine-prise to appeare and if they were elsewhere in Dezien then they are to enquire in whose Main-prise they were and they are punishable according to the example of the Pledges for the same cause To help the memories of the people are Escripts Charters and Minements very necessary to prove the conditions and the points of Contracts Gifts Sales Feoffments and other things By the Statute of Leuchfred it was Enacted that one might deny nude â—ontracts made by words and it was Ordained that Plaintiffes should prove their Writings which were denyed and not proveable by Neighbours in England and for forraigne Contracts by Battaile or by the setting to of other Seale or by Iurours at the election of the Plaintiffes If Iurours have obscurely or doubtfully or not sufficiently given their Verdict in any Action or Exception or any of the parties be grieved thereby there is remedy by a Commission of Câ—â—tisicate to make the Iurour come againe and the Parties who are the Plaintiff ought to have under the Kings Seale and of the Iudge and of the Parties the proceedings of the Plea before and shew the defect and the offence of the Iurours in which case if the Iudge by examination finde it doubtfull the â—aid doubt is to be reduced to certainty and the obscurity to cleernesse and the errour into truth and so the first Iudgement is to be redressed The Contents of the Fifth Chapter A Busions of the Common Law The defects of the great Charter The reprehensions of the Statute of Merton and Marle-bridge The reprehensions of the Statutes of Westmister 1. The reprehension of the Statute of Wesim 2. and of Gloucester The reprehensions of Circumspecte agatis The reprehensions of the new Statute of Merchants CHAP. V. CHAP. V. Sect. 1. Abusions of the Common Law THere are many who say That although other Realmes use a written Law yet onely England useth her Customes and her Usages for Law not written but betwixt rightfull and tortious usages there is a difference for tortious usages not warranted by Law nor suffered by Holy Scripture are not at all to be used as for example those of Theeves whose usages are to rob and steale And to shew some abuses holden for usages which are frauds to the Law and repugâ—ants to right and which are not found justifiable by Holy Scripture is this Chapter made of a Collection of part of the abusions of the Law and of persons erring from the knowledge of the right of Law and from lawfull usages Abusion is a disuse or a misuse of right usages turned to abuses sometimes by contrariety and repugnancy to Law sometimes by too large a usage thereof 1 The first and chiefe abusion is That the King is above the Law whereas he ought to be subject to it as it is contained in his Oath 2 It is an abuse that whereas Parliaments ought to be for the salvation of the Soules of Trespassors twice in the yeare at London that they are there but very seldome and at the pleasure of the King for Subsidies and Collections of Treasuree and where the Ordinances ought to bâ— made by the assent of the King and of hi Earles they are now made by the Kin and his Clerkes and by Aliens and others who dare not contradict the King but de fire to please him and to Counsell him for his profit though the Counsell be not Covenable for the common people without calling the Counties thereunto and without following the rules of Law whereby it followeth that many Ordinances are grounded more upon pleasure then upon Law 3 It is an abuse that the Lawes and the Customes of the Realme with their occasions are not put into writing whereby they may be knowne so as they might be knowne by all men 4 It is an abuse that force holds in Disseisins after the third day of peaceable seisin for as much as he is not worthy to be aided by the Law who flyeth from Iudgement and useth force 5 It is an abuse that Justice is delayed in the Kings Court more then oâ—se where 6 It is an abuse to suffer any to be in the Realme above forty daies who is of the age of fourteene yeares English or Alien if he be not sworne to the King by an Oath of Fealty and in some Pledge and Dozien 7 It is an abuse that Clerkes and Women are exempted to make the said Oath to the King seeing the King taketh their Homage and Fealty for Lands 8 It is an abuse to hold an escape out of Prison or the breach of the Goale to be a mortall offence for that usage is not warranted by any Law nor is it used in any place but within this Realme and in France for as much as one is warranted to doe it by the Law of Nature 9 It is an abuse to suffer so many formes of Writs to be pleadable and therein especially that the Writs are Close and not Patents as the Writs of Right and in that they are made with interlinings and rasure and otherwise vicious 10 It is an abuse that the money is not quarterable that it is not Silver that it is held payable if the forrein circle be not whole to allay the Money per 18. d. and make paying of Lead to every c. 11 It is an abuse that the King takes more then twelve pence for the exchange of twenty shillings in the pound 12 It is an abuse that no pound is suffesed to weigh twenty five shillings or more then twelve ounces 13 It is an abuse that Treason is not adjudged more by Appeales then it is 14 It is an abuse that a man who hath done Man-slaughter of necessity or with the Peace or not feloniously is detained and kept in Prison untill he hath purchased the Kings Charter of pardon of death as it is for mischance 15 It is an abuse to hold the moveable goods of
a personall Trespasse and requireth a personall punishment and not a simple Amercement CHAP. V. SECT 4. Articles upon the Statute of Westminster the first MAny Chapters are reproveable of the Statute of Westminster For the points touching religious Persons are matter to gaine monies and a purchase upon a foundation of covetousnesse more then for their advantage The Chapter of Clerkes found guilty of felony is reproveable for for want of addition of punishment these Clerkes are not to be delivered to Ordinaries but at the pleasure of the King and of his Justices The Chapter of Wreck is reproveable in as much as the finder is forjudged by the Statute to have part thereof whereas he ought to have part of the profit and so it is reproveable as to the awarding of the punishment Of the points of Amercements is before spoken in the Great Charter The point of takings of distresse is much reproveable Cap. 9. as before is said The Chapter concerning pursuing of Felons to maintaine the Peace is reproveable in the punishment for he is consenting to a Felon who doth not apprehend him when he may In the same manner is it of the Chapter of Coroners contained in the Articles following The point of Election of Coroners was not needfull to have been ordained Cap. â— for it behoveth more the Electors to have wise and loyall Coroners then to the King and it had better have been enacted that the Coroners doe present the points of their Office under the Seales of the Jurours then Sheriffes should make counter parts of the Rolls The point of Enquest of Odio aria is reproveable Cap. 12. for London and other places in Liberties where there are no Knights The point of putting people found guilty of felony who will not put themselves upon the Country to pennance it is out of use that one kill them without having regard to the conditions of the Persons and therein it is reproveable since one may perhaps helpe and acquit himselfe otherwaies then by his Country and in as much as none is to be put to Pennance before he be attainted of the offence for which he ought to be pained The Ordinances of punishments of long imprisonment are to be reprehended as before is said The point of the order of Outlawry of the principalls before the Accessories is no Statute but a revocation of errour The point of Replevisalls is reproveable according as it is said of Actions the punishment of long imprisonment containe Errour as is said before The punishment of Heites males Married as against the King without the consent of their Lords betwixt 14. yeares and 21. yeares is reproveable for then the King should have amends for that for which he hath not any personall Suit for the amends The point of Heires females containeth Errour as appeareth in the reprehension of the point of Marriages in the Great Charter The point of tortious Distresses ought to contain the punishment for the robbery The punishment of Ministers Disseisors by colour of their Office is reproveable for the smalnesse of it as appeareth amongst the Judgements The point which forbiddeth Sheriffes that they take no rewards is reproveable in as much as the King taketh of them and they take nothing of the King The point of Fines of Clerkes and the officers of Justices in Eyre is reproveable for the common grievance of the people without taking of profit The points of imprisonment are reproveable for the reasons aforesaid and the point of Tolls for the punishment of imprisonment and because Tolls are not established certaine The point which willeth that those who dis-use Marriages should lose them was not needfull to have been made for the Law is that he shall lose his Franchise who useth it not The point of the Receivers of the Kings monies and not rendring the same is reproveable for the smallnesse of the punishment according to that which appeareth before The Errours of taking of Carriages and other goods appeareth sufficiently by the reasons before The point which forbiddeth Judgement to be given by Strangers in Counties is reproveable for no Iudgement given by another then an ordinary Judge assigned is to hold The point which maketh mention of Robbery or Disseisins is reproveable for all those are to be seised upon who the Jurours indict of Robbery according to the example of Theeves and other Felons The point of Attaint is reproveable for it should not extend to one case but it ought to comprchend all Oathes taken by twelve men if one of the Parties complaine thereof The point of limitations of Actions is reproveable for the reasons in the Chapter given upon the same matter The point which forbiddeth falsities and abuses used in Courts before this time to false Judges who used not the Law by sufferance of falsities The point of Champions is reproveable for no Champion is to be receiveable as a witnesse The point of not allowing Essoignes in Assizes after appearance is reproveable by the Assize of Novel disseisin where no Essoigne is allowable for the Tenants no more before appearance then after not in no other personall Action The other points of Essoignes are reproveable for no false cause of Essoigne ought to advantage any man The point of delaies in Pleas of Attachment is reproveable in many points accordingas appearethin the chapter of defaults The point to plead upon the surcharge falleth in prejudice of Sheriffes and of Lords of Fees and of Liberties and although the two points of Disseisins that is to say that every one may avoid the damages in the point of personall trespasse done to his Ancesters in as much as his Action lyeth of what age soever the Parties be yet is the first reproveable for as much as the Plaintiffes have no recovery for the damages done to their Ancestors not any Action but to have restitution of the possession The other point is reproveable for the smallnesse of the punishment but according to common right this punishment should have time that he should never doe Homage betwixt them for the Lords forfeiture when he beginneth to dis-inherite his Tenant contrary to the right of Homage The Prayer of the King is reproveable because he ought to aske nothing contrary to Law but it is the prayer of the Justices who desire alwaies to have much to doe The point that if he who is vouched to warranty ought not to warrant although he be bounden by the deed of his Ancestor whose Heire he is in case he alledge that nothing descended to him from that Ancestor by whose deed he is â—ouched is reproveable for according to the old Law Lands remained liable to the Debt of those who acknowledged it to whose hands soever the Lands afterwards came In the same manner it used to be in all other Contracts where the Contracts were adjudged or granted and although nothing descended to the Heire for that he lost not the Tenements for want of Acquittance and if
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