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
grace Some became Free by the Pope as it is of those villains who by Bishops are ordained into Orders of Deacon and above but norwithstanding the same a man shall not lose his right thereby who will sue for them On the other part villains become Freemen if their Lords grant or give unto them any free estate of Inheritance to discend to their Heires or if the Lord take their Homage for their land or if the Lord eject them out of their Fees and give them sustinance or if he put them in a common Prison if it be not for crime A woman after she is put in possession by her Lord is never againe to be challenged as a Neife notwithstanding she be sold And if the Lord suffer his Villaine to Answer in Judgement without him in a personall Action or to be a Jurour amongst Free-men as a Free-man knowingly and without the Lords claime the Villaine hath this Plea to the Villinage if he returne not of his owne accord Also a Villaine becomes free through the Lords default in a Writ of Native Habendo as by his Non-suit in the Writ Also by proofe of a free Stocke or to have been borne of free Parents Also by the Lords grant in Court and also by prescription also for default of proofe and also by the Lords negligence as by the remaining of the Villaine within a City or upon the Kings Demesnes for a whole yeare Or if wittingly he suffer his Villaine to be a Suiter in another Court or to be sworne in Assize or elsewhere amongst Free-men if a Villaine depart from his Lord claiming free estate so that he cannot seise him within the Mannour within the yeare or out of his Fee nor after his Writ of Nativo Habend brought it belongeth to the Lord that he bring againe that Action which is ViceCountiel and pleadable in the County by Summons and Distresses of his Lands for the Law requireth that he doe right and use not force The Parties being brought to Judgement in the County Court and the Action being declared in the Defendant by way of exception may plead that he is Franck and because that a free estate is of a higher nature then Villinage therefore because the Sheriffe hath not power to try so high a Plea by the Writ of Nativo Hebendo those Writs and such Pleas are suspendable till the comming of the Justices in Eyre into those parts but if the King Command not to the contrary those Pleas are not adjournable but from one County Court to another Note that all Villaines are not slaves for slaves are said Regardant as before they can purchase nothing but to the Lords use they know not in the Evening what serâ—ice they shall doe in the Morning nor any certainty of their services the Lords may fetter imprison beat or chasâ—â—se those at their pleasure saving to them their â—ives and members these may nor fly or run from their Lords so long as they finde them wherewith to live nor is it law full for others to receive them without their Lords consent those can have no manner of Action against any man without their Lords but in case of Felony and if those slaves hold Lands of their Lords it is intended that they hold them from day to day at their Lords will and not by any certaine services Villaines are Tillers of Lands Note by Villaines in this place is meant Copy-hol-ders dwelling in Upland Villages for of Vill commeth Villaine of Burough Burgesse and of City Citizen and of Villaines mention is made in the Great Charter of Liberties where it is said that a Villaine be not so grievously amerced that his Tillage be not saved to him but the Statute maketh no mention of slaves because they have nothing of their owne to lose And of Villaines are their Tillages called Villinages Copy-hold called Copy holders And note that those who are free and quit of all servitude become servile by Contracts made berwixt the Lords and the Tenants And there are many manners of Contracts of Fees as of Gift of Rent of Exchange and Lease which all may make for a time or for ever and quitment without Obligation and charge of service and with charge And these Contracts as all other are made by Writings Charters and Minuments by solemne Witnesses according to the example of Contracts of Marriages which ought to be a patterne to all other Contracts according to which Example were the first Contracts made by the first Conquerour when the Earles were enfeoffed of the Earldomes Barons of the Baronies Knights of Knights Fees Serjeants of Serjanties Villaines of Villinages Butgesses and Merchants of Boroughs whereof some received their Lands without Obligation or service or in Frankalmoigne some to hold by Homage and by Service for defence of the Realme and some by Villaine Customes as to Plough the Lords Lands to Reape cut and carry his Corne or Hay or such manner of service without giving of any wages whereof many Fines were leavied of such services which make mention of the doing of these base services as well as of other more gentile services and although it be so that the people have no Charters Deeds nor Minuments of their Lands neverthelesse if they were ejected or put out of their Possessions wrongfully by bringing an Assize of Novell Disseisin they might be restored to their estates as before because they could averre that they knew the certainty of their services and workes by the yeare as those whose Ancestours before them were Asteries for a long time in case Disseisors were not their Lords And thereupon Sr. Edward in his time Doom-day Booke Vt credo caused enquity to be made of all such who held did to him such services as ploughing his Lands c. besides their lawfull Customes And afterwards the people lesse fearing to offend then they ought many of these Villaines by wrongfull Distresses were forced to doe their Lord the service of Rechat of blood and many other voluntary Customes to bring them in servitude under their power for which their remedy was a Writ of Ne investoè vexes CHAP. II. SECT 29. Of Summons THis Chapter maketh mention of speciall Summons to make a difference from generall Summons where all Freeholders and others ought to come according to the nature of the Cry whereof and every one may Summon by a Common Cry but of this Summons this Chapter maketh not mention A speciall Summons is a friendly admonition of an amendment of an offence or wrong and because none is tyed to Answer to any Action reall or mixt before a Summons therefore it is to see 1 Who have Authority to Summon 2 Who are Summonable 3 In what place he is Summonable 4 How farre one is Summonable 5 At whose Charges 6 How often 7 Who may be Summonors 8 What is a reasonable Summons 1 All who have Jurisdiction have Authority to Summon 2 All those who are not forbidden by Law are
only Corporall punishment holdeth place which passeth the punishment which should be adjudged to others not the Kings Offices according to the Kings pleasure CHAP. IV. SECT 15. Of the Offices of Justices in Eyre THe Presentments of offences are Ex officio by Coroners by Sheriffes and Bayliffes in Turnes and viewes of Franck-pledge by Enquests and speciall Iustices and by Kings Ex officio or by their Chiefe Iustices or of their Iustices generalls and because that the one have not power to determine the presentments of such offences nor to punish the Trespasses and the other who can will not or doe not that duty which of right they may doe or punish the innocent and spare the guilty It was anciently Ordained that the Kings by themselves or by their Chiefe iustices or by generall Iustices to heare and determine all Pleas should goe Circuit every seven yeares through all Shires to receive the Roles of all Iustices assigned of Coroners of Inquirers of Eschetors of Sheriffes of Hundredours and of Bayliffes and of all Stewards of all their Iudgements Enquests Presentments and all their Offices and to examine those Roles whether any had erred therein either in the Law or to the damage of the King or to the grievance of the people and those things which they found not determined that they should determine them and in the Eyre they should redresse the Officers and punish the negligence of them according to the Rules of Law and that they should enquire of all offences which belonged to the Kings Suit and to his Iurisdiction And note that notwithstanding the King had the Suits of all mortall offences and of wrongs done to the Law and to the right of his Crowne it is not thereby to be understood that he should have the Suit of all offences but if any one be Plaintiffe and doth not proceed in his Suit after the same is affirmed yee are to distinguish if it be of a personall offence 〈◊〉 it susâ—â—eth for the Defendants for the Non-suit of the Plaintiffe doth suppose 〈◊〉 of the damage and if it be of a mortall offence yet the King hath nor the 〈…〉 warrant of Appeale or Indictment wherein it behooveth to the Appealees and Enditees that they make haste to acquit themselves for none is bound to Answer to any manner of Action brought by them because they are barred by an Exception of mortall infamy by being Appealed or Indicted CHAP. IV. SECT 21. Of the Articles in Eyre EVety Shire usedto be warned by forty daies at the least by generall Summons of the Kings comming where after the Effoignes adjourned and the Assize of Victuals set and the Ordinances proclaimed and those of Franchises adjourned and the Jurours called Sworne and Charged with their Articles and the claimers of Franchises and the Rolls of the Justices of Coroners and of all Sheriffes and of all other manner of Pleas and Presentments after the last Eyre taken and received the first thing was to enquire heare and determine the Articles presented and brought in the last Eyre which were not ended and afterwards to determine Writs and Plaints to deliver Visnes to examine the Rolls to redresse the errouts and all other wrongs by right Judgements without respect unto any person All the Judges Ordinaries and Assigned Sheriffes Bayliffes and Stewards of Lords of Mannours and all other who claimed Iurisdiction which any one could attaint of any wrong done against the right rules of Law were condemned for the wrongfull Iudgements with regard to the distinction of the Parties grieved Coroners Eschetors Sheriffes Bayliffes and other Ministers doing wrong to the King or to the people used to be punished according to the example of the other and further according to the Kings pleasure The offenders which were found using false Scales and false Measure and gaining by breaking of any Assize either of Bread Wine Ale Cloth or other Merchandizes used to be set in the Pillory and Women in the Tumbrell and afterward were not suffered to Merchandize at any time not could they depart from the place or Towne to any Liberty because the usage was contrary to Law Cut-purses taken De facto in their notorious sins used to be hanged and for the cutting of Purses and stealing of other goods under the value of twelve pence and lesse then sixe pence one of their eares used to be cut off without carrying them to Prison or before any Iudge Assigned and to banish them from the Towne or from the Mannot for the second offence And for their â—arcine under the value of 〈◊〉 pence they used to set them in the pillory for the first offence and to banish them for the second In the Iudgements of Personall Trespasses venialls as to the taxing of the damages put in plaints Martin De Pateshall used this course the Judge used to enquire ex officio of the Iurours by whom any principall Trespasse was adjudged before him the names of all these who were guilty in the first degree and of the Accessories and therein he proceeded to Iudge the damages according to the number of the Endictors so that no Plaintiffe should recover no more entire damages by plurality of Plaints for one sole trespasse against the Trespassours severally CHAP. IV. SECT 22. Of Franchises OF Franchises note that because the King doth not hold his Rights and Dignities of his Crowne but as an Infant nor a grant from him of any franchises is so established that Kings cannot repeale them againe so as he give satisfaction to the value as by warranty and it is lawfull for every one who findeth himselfe grieved to Sue for the King to seize every Franchise forfeited for contumacy as if the Bayliffe of a Franchise doe not execution of the returne of the Sheriffe according to the Command of the King by any abuse as by using his frâ—nchife too largely or not duely by a Writ ensuing it is commanded that the Sheriffe enter into the Franchise and the King doth recover the seisin thereof and so the same becomes guildable which was before a Franchise And all those used to forfeit the Franchise of keeping of a Goale in Fee who by title of Franchise of Infangthiese or of return of Writ hurted not without delay the Persons taken in the places within the Franchise for Felony done in Guildables and send them into the Goale in Guildable so that the King doe not lose the Goods and Chattels of the Felons nor his other rights for the King giveth no Franchise to his owne prejudice nor to the prejudice of others especially of returne of Writs nor to have the custody of a Goale An example may be as betwixt two Neighbours in a Franchise the one cannot keepe a Prison to the prejudice of the King and if he doe he forfeiteth the Franchise And it also appeareth that Iurours came out of Franchises before the King and his Commissioners to Guildable and elsewhere at his command as well upon criminall Actions as upon
one of the houshold sueth another of the houshold and the Plaintiffe be put from his service depending the Suit the other shall shew the same and abate the Writ but quere if it be so if in case the Defendant be removed out of service c. The Coroner of the Marshalsey shall fit with the Coroner of the Country upon the death of a man and if the Plea may be determined before the King remove out of the Virge it shall be otherwise it shall be at the Common Law The Kings Bench. THere is another Court of high Authority called the Kings Bench and the Iudges of that Court have Authority to enquire of heare and determine Pleas and things touching the Crowne as High Treason Murder Man-slaughter Robberies Felonies at the Common Law and by Statute Law Mayhems Trespasses Burglaries and all deceits and falsities whatsoever but they have not authority to hold Plea betwixt Party and Party by originall Writ but in speciall cases They have power to proceed in and determine Indictments and Presentments taken within any County within the Realme where the Kings Writ runneth if it be certified by Certiorare or be delivery under the hands of the Iustices of the Peace or other Iustices before whom the Indictments or Presentments be whether it be of Treason Felony forcible entre Ryot or any other thing against the Peace and they have Authority to reverse Iudgements given in the Common Pleas by a Writ of Errour or before Iustices of Assize and in Liberties and Franchises but not in London for a Writ of Errour of a Iudgement given before the Sheriffes of London shall be reversed before the Major in the Hustings And erronious Iudgements given before the Major in London shall be reversed at St. Martins before speciall Commissioners assigned to that purpose and thereupon a Writ of Errour shall be directed to the Major to have the Record and proceedings thereof and the Record shall be certified by the Recorder c. And it is said that if an erronious Iudgement be given in Ireland it shall be reversed in the Kings Bench by a Writ of Errour for that in Ireland the Lawes of England are used And if an erronious Iudgement be given in the Cinque Ports it shall be reversed in the Kings Bench and the Writ shall be directed to the Warden of the Cinque Ports and he shall returne the Writ and the Record c. The King may have a Formdon in the Kings Bench Debt Detinue and every other Action and a Quere impedit at his pleasure And a common Person may bring an Action of trespasse Quare vi ermis in the Kings Bench and Actions for forging of false Deeds maintenance Conspiracy Actions of deceit upon the case or supposing any falsity and deceit where the King shall have a Fine c. And note that there are some Actions upon the case which shall be sued in the Kings Bench and some not as an Action upon the case against one supposing that the Defendant hath sold Land to the Plaintiffe for a certaine summe of Money and that he covenanted to infeoffe him by such a day and not by any Deed c. Or to build a house such a day and did not doe it e. such actions shall be brought in in the same Court but there are other Actions upon the case which shall not be brought in the Kings Bench as if a Horse be stollen out of the common Inne an Action upon the case lyeth against the Hosteler but not in the Kings Bench as it is said And so it is where a man is so bounden to keepe his fire that the same hurt not his Neighbours houses c. And note that the chiefe Iustice of the Kings Bench is made by Writ and not by Patent and it is to this effect Rex dilecto fidel fuo I Fitz-Iames Saltem Quia volumus quodvos sitis capital Iusticiar noster ad placita corem nobis tenenda vobis mandamus qnod officio illi intendatis but he shall be sworne by the Chancell or of England before he take upon him his office The other Iustices of the same Court are made by Patent viz. by these words Constituimus c. unwn justitiorum nostr ad placita corum no bis tenenda habend occupand officium illud quam diu nobis placuerit And if a King maketh a Iudge to hold and enjoy the said Office by himselfe or his sufficient Deputy for life the grant is void as to the Deputy and if the grant be to him and his Assignees he cannot make an Assignee c. The Common Pleas. ANd note there is another Court called the Common Pleas which Court hath jurisdiction to hold Common Pleas as well personall Pleas as reall or any other Precipe quod reddant of Lands or Tenements c of Debt Detinue Accompt and other personall Actions and they have power to hold Plea of any of those Actions which may be brought in the Kings Bench as Actions of Maintenance Conspiracy Forgery of false Deeds and Actions upon the case and trespasse against the Peace of such Actions wherein the King ought to have a Fine and also of Attaints but they have not power to hold Pleas of Appeales of Murder Rape Felony Mayhem nor to enquire of them nor of Riots And it is said That one may Sue the Peace against another before the Iustices of the Common Pleas and if the Party be in the Hall or in the Place or within their View they may send the Warden of the Fleet to bring the party before the Iustices to finde Sureties or else commit him to the Fleet and the reason why they may so doe is that good order and the Peace be kept about the Court but the Iustices have not power to award Processe to the Sheriffe to Arrest the party to appeare in the Court where the Common Plea is but it is otherwise of the Kings Bench as it is said c. And it is said That the Iustices of the Common Pleas have jurisdiction in some things which touch the Crown and to enquire and hold Plea of some felony and also of misprision and of deceit done within the Court and within the Record thereof And if one imbesell a Pannell after the Enquest passed and Iudgement given in the Common Pleas by which the Iudgement is reversable by Errour for want of that Pannell the Iustices of the Common Pleas have power to enquire of the embeselment of the Pannell by 12. of the Officers and Atturnies of the same Court and they shall be sworn before the Iustices to enquire of that default and if they endite the embesselors they shall be Arraigned thereupon and shall be compelled to answer thereunto as other Felons c. and if they be attainted they shall forfeit their goods and chattels tamen quaere c. And if one be condemned in Debt or trespasse in the Common Pleas and he be in the Hall the Iustices
at the prayer of the Plaintiffe may send the Warden of the Fleet to bring him before them to satisfie the party the money or otherwise commit him to the Fleet. And when he appeareth and will deny that he is the same person then Quaere what shall be done if the Justices may commit him to the Fleet or not And some say not for that they know him not as Judges but as other men by information of the parties and the Plaintiffe cannot mainetaine that he is the same person because he commeth not in but by information of the party Plaintiffe not by Processe of Law Quaere what is to be done in that case And see another difference betwixt the Judges of the one Bench and of the other for it is said That if the Judges of the Kings Bench doe award Processe in a Formedon a Writ of right or execution of Land recovered in value the Sheriffe ought to execute the Writs although they have not any jurisdiction therein But if the Judges of the Common Pleas will grant Processe of Treason c. out of their place the Sheriffe ought not to execute the Processe for that authority is onely of Common Pleas c. The chiefe Iustice of the Common Pleas is made by Patent viz. by these words Constitutimus iâ—â—â—mcapital Iusticiar nostrum de Coi Banco c. Habendum illud own feodis vadiis regardiis eidem officio debit conâ—suet And the other Iudges of the same Bench are made by Letters Patents c. The Chancery ANd note that the Court of Chancery is a Court of a high nature out of which Court issue all originall Writs and there a man shall traverse Offices and such things and in that Court women who are widowes to the King shall be sworne that they shall not marry without the Kings Licence before the time that they be endowed and it is said That of errour there upon a Patent or a Traverse the same cannot be reversed else where but in Parliament Quaere c. And in that Court a man shall have remedy for that which he hath no remedy at the Common Law and it is called by the common people The Court of Conscience And therefore see of matters in Conscience how the party shall have remedy If a man hath Feoffes to his use and maketh his Will and thereby willeth that his Feoffes should make an estate to I. for terme of his life the remainder to C. in Fee if the said I. will not take the estate what remedy is for him in the remainder in conscience and how he shall helpe himselfe in Chancery c. A man shall have remedy in Chancery for Covenants made without writings if the party have sufficient Witnesses to prove the Covenants and yet he is without remedy at the Common Law c. And for Evidences when a man knowes not the certainty of them nor in what they are contained it is usually to be releeved in Chancery for he is without remedy by the Common Law c. If a man infeoffeth another of certaine Lands to his use and the Feoffee selleth the Land to another if he giveth notice to the Vendee at the time of the sale of the intent of the first Feoffment he is bounden to performe the will of the first Feoffer as it seemeth in the Chancery A man was bounden unto another by Obligation in a certaine summe of money and the Oblgee brought an Action upon the same Deed in another County then where the Obligation was made and had Iudgement to recover and the Obligor in Chancery sued to be releeved and it was surmised that by that forraigne Suit he was outed of diverse Pleas which he might have had if the Action had been brought in the County where the Obligation was made and it was conceived a good matter to releeve him in equity In the Court of Chancery a man shall not be prejudiced by mispleading or for want of forme but according to the truth of the Cause judgement ought to be given according to equity and not Ex rigore juris And note that there are two jurisdictions Ordinary and Absolute Ordinary is as positive Law and Absolute is Omnibus modis quibus veritas sciri poterit If a man be bounden by Obligation unto two men unto the use of one of them and one of them viz. is he to whose use it is not releaseth to the Obligor all Actions so as the Obligation is discharged he to whose use the Obligation was made hath good remedy in Chancery by Subpoena against his companion who released him but against the Obligor it seemeth he hath no remedy for every man is bounden to helpe himselfe and it is lawfull for a man to get a discharge of that which he is charged withall and in danger to others And if a man hath recovered against another debt or damages and he hath paid the same without any Acquittance or without having a release and notwithstanding the party taketh execution against him upon the same Iudgement he shall have no remedy by the Common Law and it was then said by the Chancellor that he shall not have any remedy in equity in this case and if the same should be remedied in equity then every Record should be examined before him and thereby the Common Law overthrowne And if I doe infeoffee one upon trust and the Feoffee doth infeoffee another of the same Land upon trust Quaere if I shall have a Subpoena against the second feoffee but where he is infeoffed bona fide there the first Feoffer is without remedy against the second Feoffee as it seemeth It is said That the Chancellor of England wheresoever he shall be in England hath power to command a man to prison and he shall not be bayled Quaere whether the Iustices of the one Bench or of the other out of their Courts have the same authority or nor The Exchequer THe Court which is commonly called the Exchequer is properly for Accomptants Sheriffes Escheators and the like and there they are compellable to make their Accompts according to the usages and customes of the same Court c. and it seemeth to be a Court which is much for the Kings profit for there all remedies are provided how the debts and duties to the King shall be levyed And in that Court the Barons are Iudges betwixt the King and his Subjects and they are sworne thereunto and Fines Issues and Amercements which are assessed in other of the Kings Courts the estreates shall be made thereof to the Court of Exchequer and there they shall write forth Processe against the parties to answer thereunto and to satisfie the King what is due to him and of divers other matters they have power and authority by reason of their Office c. The Cinque Ports THere are also divers other Courts and inferiour places where Iustice is ministred and in those places they have Iudges as in the Cinque
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
was in these words I will beare faith to such a King of life and member and Terren honour against all those that from this day forward shall c. So God me helpe and his holy Evangelist CHAP. III. SECT 36. Homage HOmage is done in these words I become your man for such Land so that the whose quantity be shewed and certainty specified whereby the Lord well knoweth both how he may warrant his Tenant and for how much he bindeth his Land to warranti and that the Tenant know for how much he is his Tenant Cap. 3 Sect. 37. Fealty annexed to Homage THe Oath of Fealty annexed to Hem â—iage is in these words I shall beare Fealty to him by name of life and Member c. for so much as I shall be his Tenant against all c. saving the Oath of Fealty which I have made to such a King c And if I sweare Fealty to another then to the King then thus saving the Faith which I â—wore to the King and to my other Lords And if the Homage be done to the King or to another to whom the Tenant hath before sworne Fealty in these Cases Hee needeth not sweare Fealty againe if the Alliance in no case hath bin broken Chap. 3 Sect. 38. common Oathes COmmon Oathes are in these words I will speake truth in what you aske of mee in such a Case So God mee helpe c. The Oathes in Assises are in these words I will speake the truth of the Land of which I have had the view by Authority of this Assise or of the Land of which this Action of Reddisseision is arraigned or of the Pasture or Feeor of the Nusance or of the Walt or of the Ditch or of the Peel or of the Water or of the Church or of the Rent or of the service and nothing shall hinder me that I shall not speak the truth c. Of Life and Member and Terren Hanour he will doe so much that he will never assent that the King or his other Lord have damage of his life or any of his Members nor will assent that his honour shall be overthrowne in power not fame Cap. 3. Sect. 39. Of sinall Accorà s NO Law forbiddeth Pleas nor Accords wherefore it is lawfull for overy one to agree with his adversarie and to relcase and quit claime his Right and his Action Neverthelesse after one bath once affirmed and brought his person all Action whereby scandall ariseth none can agree it without the leave of the Iudge so as he may withdraw it For every Plaintife in Actions of Scandall who attainteth not his Adversarie according to that as hee bath brought his plaint is adjudged scandalous as his adversarie should be if he were attainted Neverthelesse in favour to save a man from death who is not attainted of mortall Offences it is suffered that the Adverse parties doe agree After Battaile waged one of the parties neverthelesse remaineth infamous None can accord or agree who is 〈◊〉 of the Age of 21. yeares nor any who is in custody nor any by Attorney In custody are villanies married women men professed in Religion Infants within the age of 14 years heirs Idiots heirs deafe and dumbe heirs deseased and those who are in prison and under Bayle and women who are in the custody of the Lords who have the marriage of them CHAP. IIII. The Contents OF Iudgment Odinance of Iudgment Of Iurisdiction Of Paul s punishable Of Defaults Of Personall Actions Of Defaults in reall Actions Of Actions mixt Of Pledge and Maynpernors Of Defaults after sommons Of Champions Of Paynes Of Imfamies Of Majests Of Burning Of Murdur Of Paines in divers manners Of false Justices Of Perjury Of the Offices of Iuctices in Eyre Of the Articles in Eyre Of Prauchises Of Satisfaction of Debts Cases of Disseisin Of Amercoments Of Amercements taxable Of the Office rf Iustices in Eyre CHAP. IIII SECT 1. Of Iudgment THe flower and necessity of Law doth depend in righteous judgment without which the Law can have no effect nor any due end And therefore it is fitte speake of judgments which are not in all points here according to therigour in the old Testament and the usages used by Moses and the Prophets before the Incarnation of Christ but they are mittigated to the temper of mercy of the truth and of the justice which Christ himselve used upon the earth and commanded to be used in the new Testament and which the Apostles and their successours have used since the Incarnation of Christ and according to the judgements of the ancient usages in Pleas touching the Lawes of this Realine CHAP. IIII. SECT 2. The Ordinance of Judgement IUdgement commeth from jurisdiction which is the greatest dignity which belongeth to the King And there are two kindes of junisdiction Ordinary and Assigned Every one hath ordinary jurisdiction if offence take it not away from him for every one may judge his owne according to the righte rules of Law But this jurisdiction is now restrained by the power of Kings in as much as none hath power to held Plea of Trespasse or of Debt which passeth 40 s. but the King Nor anie hath power of Counsins of Fees without a Writ Neverthelesse it is lawfull for every one to f. oust the mortall offender for committing of their offences by good witnesses by warrant of ordinary jurisdiction whether the offenders bee Clerks or Lay people of age or within age and all others of what condition so ever they be and in those coses are those offences called notorious offences There are two kindes of notorious nototious in fait and notorious in right Notorious in fait is where no contradiction lyeth nor no oathes need to justisie them by reason of the witnesse of the people Notorious of Right is where the offenders are attainted of their offences by themselves or by the oathes of witnesses or otherwise in judgement This jurisdiction assigned iâ— that which the King assignes by his Commissions of his Writs for without a Writ he cannot by Law grant any jurisdiction if not in the presence and with the assent of the parties None can give jurisdiction but the King the reason is because he is not sufficient to beare without helpe the charge which belongeth to him to punish the Trespasses and to assoile the offenders which hee hath to governe And so our Ancestours appointed a Seale and a Chancellour to helpe the same to give Writs remediall to all Plaintiffes without delay That Writs used to be of this Assize They were without raysure without enterlyning without blots without usuall transposition and without every fault in the parchment and letters and written in English with a knowne hand by a Clerke of the Chancery and used to containe the name of the parties and the substance of the Plaintiffe and the name of the Judge and of the King or other Teste of the Writ which sometimes were directed to the Lord of the Fee sometimes
that they come to the Lords And if any one denieth his service which he ought to do it may be said by the Lords that wrongfully he denieth either part or the whole and that to his wrong and so further count of seisin by his owne hand and that such is his right c. as after shall be said And the Tenant may choose to try his Right by his owne body or by another or joyne issue upon the Grand Assise And pray Conusans whether hee hath the better right to hould such land specified discharged of such service as he houldeth or the said A. to have the same Land indemesure as he claimeth And if the Defendant will try his Right by the body of another Then yee are to distinguish For if the Action be personall the Suit need not be present and if the Action bee Reall and the Tenant hath his Champion present Then may the Plainâ—ife offer his Champion against the Champion of the defendant or he shalloose his Covenant or his Writ And if the Defendant have nochampion then are the parties adjournable if they have joyned Battle that they have their Champions ready at the next Court as appeareth in the case of Saxeling to whom Hustan was bounded in a Bond of 10. li. by a writing Obligatory made at Rome which the said Hunstan denyed That it was not his deed To which Saxeling by way of Replication Answered That hee wrongfully denyed the same and that wrongfully for that he sealed it with his Seale or with the Seale of another which he borrowed of him such a day such a yeare and at such a place and that if he would deny it he was ready to prove it by the body of A. who saw it or by O. and C. who saw the same and if any hurt come to them he was ready to prove the same by another who could prove the same And so it appeareth that it is not needfull to have present Suit in such personall Actions the first day but the Parties may bee adâ—â—urned as it is said And if any one who cannot bee a fit witnesse or who is a Champion bee offered by one of the parties to combate who was not named before to make the Battle and the adverse partie there challenge him and demand Iudgement of the default in such such case the Iudgement is to be given against the profferer And if any ill happen to any of their Champions where by they cannot combate according to their proffer none is resceiveable to try the battle for him but only his eldeft sonne Lawfully begotten as by some is said And if the Tenants champion be vaâ—â—uished The Tenant thereby looseth all Homage and all Alliance and all Oathes of Fealty and all Homage betwixt him and the Lord and the Lord is to enter therein and to hold the same in demesue as if he had recovered by the Grand Assise And if the champion of the Lord be vanquished that them the Iudgement be that the Tenant hold his Land for ever quit of the service in the demand And if the King doth any wrong to any of his free men who hould of him in chiefe the same course is to be holden The Earles of Parliaments and the Commons have Iurisdiction to heare such causes and determine them because the King cannot by himselfe nor by his Iustices determine the Causes nor pronounce their Iudgment where the King is a partie And as the Lords may challenge their Tenants of wrong Or Injuries done to them against the Articles of their Fealtie In the like manner are the Lords challengeable of wrongs and Injuries done by them to their Tenants And if the Lords do not appeare to answer their Tenants Then are the Tenants to be adjudged thatâ—they doe no service for their Lands till the Lords have Answered CHAP. IIII. SECT 12. Of punishments PVnishment is a satisfaction for a Trespasse or an Offence There are two kinds of punishments Voluntarie and Violent Volantatie is that which bindeth the doer of his owne accord as it is in his Compromises to compell the people to keepe their Bargaines But with such punishments the Law medleth not with Of violent punishment wherewith the Law medleth there are two kindes Corporall and Pecaniarie Of Corporall some are Mortall and some Veniall Of Mortall some are by beheading some by drawing some by hanging some by burning alive some by falling from dangerous places and otherwise according to Auncient priviledges and Vsuages The Offences which require punishment of death are the mortall Offences Of Veniall punishments some are by losse of Member As the Fellony of Mayhem in case of wrong Of Member some by the losse of hand as it is of false Notories and of cutters of Purses with the Larcine of lesse then 12. d. and more then 6. d. which King Rich. changed some by cutting out of Tongues as it used to be of false witnesses some by beating some by Imprisonment some by losse of all their moveable goods and not moveable as of false Iudges and it is of userers attainted of usury after their decease but not if they bee attainted thereof in their life for then thy loose but only their moveables because by pennance and Repentance they may amend and have Heires Some by exile and abjuration of their Christianity or of the Realme of the Towne of the Mannor or the Land and their friends as it is of those who are attainted in personall Actions Venialls who are not able to make satisfaction Some by Banishment as it is in contempts in personall Actions Venialls some by other Corporall paines as it appeareth after its place And although one offend indeed or in word in all judgements upon personall Actions 7. things are to bee weighed in the ballance of Conscience that is to say 1. The cause 2. The petson 3. The place 4. The time 5. The Quality 6. The Quantity 7. The end 1. The cause whether it be mortall or veniall 2. The person the plaintiffe and defendant 3. The place whether in Sanctuary or not 4. The time whether in day or in the night 5. The Quality of the Trespaffe 6. The Quantity appeareth in it selfe 7. The end whether the taking were in manner of distresse by a justisiable importment Or in manner of Larine By Allienation unjustifiable CHAP. IIII. SECT 13. Of Insamous Persons ALL those who are rightfull attained of an Offence whereupon corporall punishment followeth are infamous Infamous ar all those who offend mortally or Fellouously all those who are perjured in giving false witnesse All false Iudges All false Vsurours and all those who are attainted of personall trespasses to whom open pennance is joyned by enjudgment of Law Those who Imprison a Free-man against his will or blemith the credit of his Franchise by extortion or by any purchase Those who also bring attaints and cannot prove the perjury whereby honest Iurours are slandered And those who indite or Appeale a man who is innocent of
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
Action personall from a longer time then the last Eyre 123 It is abuse of the Writ of Accompt for which every one may imprison another wrongfully 124 It is abuse that one is bound to render an accompt of issues of Land whereof he is Guardian by title of Law 125 It is abuse that the Writ of Ne cui juste vexces is so out of use 126 It is abuse that Battailes be not in personall Actions as well as in Felonies 127 It is abuse that proofes and purgations be not by the Miracle of God where other proofe faileth 128 It is abuse to joyne Battaile betwixt persons who are not admitted to wage battailé 129 It is abuse that a Knight is otherwise armed then another man in a Combate 130 It is abuse that Judges have Cognizance by originall Writ or warrant by Vouchers or in others to which his jurisdiction extendeth not 131 It is abuse to suffer a Voucher to warranty in the Kings Writ of Quo warranto 132 It is abuse that those who are sound Usurers by indictments after their deaths are suffered to be buried in Sanctuaries and that the Lands doe not escheat to the Lords of the Fees 133 It is abuse that vicious Obligations drive the Authors to personall Damages in as much as they are voidables 134 It is abuse to compell Iuronts Witnesses to say that which they know not by distresse of Fine and imprisonment after their Verdict when they could not say any thing 135 It is abuse to use the words to their knowledge in their Oath to make the Iurours speake upon thoughts since the chiefe words of their Oathes be that they speake the truth 136 It is abuse that one examine not the Jurours though they finde at least two to agree 137 It is abuse to put more words in the doing of Homage but thus I become your man for the Land which I claime to hold of you 138 It is abuse to Answer or appeare by Atturney 139 It is abuse to make Justices such parties without the Writ in the Kings presence if not with the assent of the parties 140 It is abuse that the Writs of Audita quareta and Conspiracy and others containe not the substance of the plaints 141 It is abuse that the Justices of the Bench meddle with more Pleas then of wrong done against Fines Grand Assizes translation of pleas out of lower Courts and of Darrein presentment and of the rights of the King Queene and their Allies 142 It is abuse to use a Pone when their Causes are discussed if the parties challenge the same for a lying purchasor ought not to have benefit of his leasings 143 It is abuse to sue forth Grand Distresses in Pleas of Attachments whereof the defaults are to the profit of the King and not of the Plaintiffes 144 It is abuse that Trespassours who have nothing are not banished from Townes Counties Manours and Hundreds as they used to be 145 It is abuse to hold that a Petit Cape maketh other title but to save every right in reall Action not in others 146 It is abuse that the issues of Grand Distresses in mixt Actions come not to the profit of the Lords of the Fees and others who have Courts as they doe to the King of Pleas moved in his Court upon the same Actions 147 It is abuse to thinke the same punishment is to be to Maine-prisots as to Principals who make default whereas they are amerceable onely in Courts 148 It is abuse to amerce a man in plesive of Fee or of service going out of the Land by default in a personall Action or reall for Outlawty or losse of Land is sufficient punishment 149 It is abuse that Sheriffes doe not execution of Writs Vice Conntiels in as much as the Plaintiffes have found Pledges De proseqnend where there is no mention to take Sureties 150 It is abuse to distreine for Arâ—erages of services issuing out of Lands moveable goods whereas no distresse ought to be but in the Land onely 151 It is abuse that the Tenant may without punishment enfeoffe a third person of the Land of his Lord in prejudice of him or doe other thing or say any thing against the points of his Oath of fealty 152 It is abuse to suffer a man who is a Champion to be a witnesse 153 It is abuse that none have recovery of wrong done by the King or the Queen but at the Kings pleasure 154 It is abuse to judge a man to divers punishments for one Trespasse as to a corporall punishment and to a ransome since ransome is but a Redemption from corporall punishment by payment of a fine of money 155 It is abuse that people defamed of offence are not barred from making oathes and of their dignities and of their other Honors And divers other abuses appeare by those who well understand the Writ before written CHAP. V. SECT 2. The defects of the great Charter SEeing how the Law of this Realm sounded upon forty points of the Great Charter of Liberties is damnably dis-used by the Governours of the Law and by Statutes afterwards made contrary to some of the points to shew the defects or defaults of the points aforesaid and the errours of some Statutes I have put in memory this Chapter of the defect and reprehensions of Statutes and first of the defects of the points of the Great Charter To the point That the Church of England shall have all her Rights and Liberties inviolable for first it were necessary to ordaine a Corporall punishment and namely to the Lay Judges the Kings Ministers and others who Judge Clerkes for mortall Crimes to Corporall punishments infamatories doe detain their goods after their purgation and to those Secular Judges who take upon them Cognizance in causes of Matrimony and Testaments or other speciall things The other point is That every Free-man of the Realme inherite the Liberties of the Charter and whereof every one is disseised as of his Free-hold which is not adjudged according to the points following there lyeth no recovery of damages by the Assize of Novel Disseisin A third point seemeth to be defective for as the releife of an Earldome entire was to decrease in him who held lesse so it seemeth that that certainety was to encrease as much if an Earle held more so as he who held two Earldoms and who held an Earldome and a Barony shall pay as an Eardome and as a Barony and so of other Fees if they be not expressed in the Charter that the Fyne of one hundred pound be not an Eirldome for no point oncreased and so of other certainties The fourth point is defective for although it be that such a point be grounded upon Law to binde the Lord of Fees to warranties by taking of such Homages whether they tooke them of the right Heires or not because it is not expressed whoshould be Guardian of the Fees in time of vacancy and have the issues in the mean
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
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
Bishop and not by Verdict of 12. men as generall Bastardy alledged in any of the parties it shall be certified by the Bishop and in a Quaere impedit if the issue be joyned upon the institution it shall be tryed by the Bishop for the same is in a manner a spirituall thing But induction shall be tryed by Jury and also in a Quare impedit if issue be taken upon Plenary it shall be tryed by the Bishop but whether the Church be void or not void shall be tryed by the Jury And if the Parties be at issue in a quare impedit upon the ability of the Person whether he were sufficiently learned or not it shall be tryed by the Bishop during the life of the Clerke but if the Clerke be dead it shall be tryed by Jury And it is said That if Bastardy or other the like thing be alledged upon a thing which is not but dillatory it shall be remanded to the Bishop to be tryed c. And a man in an Action of Debt brought against him upon a Contract may wage his Law to sweare upon a Booke that he oweth not the Plaintiffe the money which he demandeth nor any penny thereof and he ought to have with him 11. more to sweare with him that they beleeve in their Conscience that he sayeth truth and so he shall be discharged but if the Action be brought upon any specialty or upon matter of Record or upon a thing touching Land c. he shall not help himselfe in that manner but shall put the same upon the tryall of the Jury but he himselfe shall not be admitted to sweare c. And note that an Oath ought to have three Companions Truth Justice and Judgement and if they be wanting it is no Oath but a Perjury for if a man be forced by constraint to sweare that for many yeares he quiely held such Lands c. it is Perjury not in him who sweareth but in him who compelleth him to sweare Reum non facit nist mens sit rea Nemo se circumveniat aut seducat Qui per lapidemfalse jur at perjurus est Quacunque arte verborum jur at aliquis Deus ita accipit sicut ille qui jur at intelligit Et minus malum est per Deum falsum jur are veraciter quam per Deum verum jur are fallaciter Quanto enim id per quod juratur est magis sanctum tanto magis est penals perjurium c. FINIS The Table A ABusions of the Common Law from 124. to 151 Accords finall 171 Accompt 155 Acquittance 155 Accessories 42 Action 58.89.182,183 Afferment nnd afferrors 49 Allienations 11.14 Amercements 90.218,219 Approvers 61.142,143 Appeales and Appealers 48.61.69.303 to 316 Articles of the Coroners Enquest 40.41 Articles in the Leet 53 Articles in Eyre 211 Assize of Novell Disseisin 94,95,96,97,98 Attaints 166,167 Attachments 66 Atturnies 97.124 B BAyle 73 Barons of the Exchequer 49 Beaupleader 34 Battaile 141.157,158,159 Bigamy 132 Burning and Burners 16.78.146.193 Burglary 36.43.79.148 C. CEnturies and Centiners 5 Circuits 62 Charters Deeds Minuments 154 Clergie 131 Clerks 131 Champion 186,187,188 Chauncery 293 Cinque-Ports 297 Combets and Combattors 157 Contract 104,105 to 108 Contempts and Contumacies 76 Coroners 7.287 Courts 10.50 Court Baron 299 Common Pleas. 290,291 Countors or Pleaders 65 Coyne 10 Counsans 131 Copy-holds and Copy-holders 113.156 D. DEfaults 180,181 Defects of Magna Charta from 251. to 260 Divination and Diviners 17 Dillatory Pleas. 130 Disseisins 93,94.153.215 Distresse and Distresses 95.99.100.101 102,103,147 Doomesday Booke 114 Dower 11 E. EArles 5 Earldome 96 England 3 Englishire 47 Escape 73 Essoignes and Essoigners 117. to 124 Exchequer 9.49.296 Exceptions 128 Order of them 129 Exceptions of time persons and place 137 138 F. FAires and Markets 14 Falsifying 23.75 False Latine 152 Festivalldaies 136 Forfeiture 44 Franchises 163.213 G. GOale and Goalers 72 Grand and Petit Assize 93 H. HEresie 16 Homage and Fealty 169.170 Hunting 165 Hue and Cry 10.67 I. INformers 64 Imprisonment 82.149 Indictments 84,85,86.143.227 317. to 323 Jurours 43 Judges and Judgement 59.64.133,134 135.207.172,173.287,288,289 Judgement of death 203 Jurisdiction 7.177,178,179 Justices in Eyre 209 Infamous persons 192 K. KIng 3 Kings Bench. 287 Knights Fees 11 L. LAw 1 Larcine 31,32,33,34,35.79.147 M. MAjesty 16.74.193 Mainprisors 71 Mainpernors 184 Marshalsey 288 Manslaughter 26.28 Mayhem 82.149 Merchants 15 Misadventures 42 Misnosmer 152 Murder 47.79.146.194 to 202. N. NAtivo habendo 112 Neifty 109. 181 Ne injuste vexes 115 O. OAths 169 170. 325 Oath of the King 3 Oath of Countors 65 Oath of Battaile 161 Obligations 166 Offences and the division of them 15.68 Oflences reall and personall at the Kings Suit 84.86 Offences veniall 86 Office of Coronors 48. to 38. 67. Office of Justices in Eyre 221 Ordination of Clerks 14 Ordinary 131 Ordering of Battaile 161 Out-lawes and Outlawry 149 P. PArliaments Perjury 18,19,20,21.22 208,209 Permancies 205,206 Poore 14 Pleas and pleadings 78.129 Pledges 90,91.184 Power of the Judge 133 Presentments in Eyre 9 Proofe 14 Prison and Prisonors 29 Principall and Accessory 44 Prerogative 154 Protection 150 Processe in Appeales 71 Purprestures 164 Punishments 190.205 R. RApe 37,38.148 Receiver and Receipt 155 Replications 139,140,141,142 Rerpards or Fees 63 Reprebensions of the state of Merton 621 262 Of Malbridge 262,263 Of Westm first 264 to 270 Of Westm 2. from 270. to 279 Of Gloucester 283,282 Of circumspectè beatis 282 Robbery 32.79.147 S. SAllery 66 Satisfaction of Debt 215 Sanctuary 44,45,46 Seales 49 Sheeres and Sheriffes 16 Summons and Summonors 11. 67 115. 116. 139. 185 Sureties 14 15 Suit and Suitors 50,51 T. TEnent by the conrtesie 15 Treasure trove 7.43.144.165 Turnes of Sheriffes 8.51.62 Treason 24.76 Trespasses 88,89,90 Triall 324 Trove 135 V. VAriance 142.152 View 149 View of Frankpledges 8.52,53 Veniall Trespasses 88 Voucher 140 Villinage 96.109 to 165 Vsury 165 W. Waive 109 Wages 64 Wager of Law 154 Wounds and wounding 43.83 Writs remediall 8 Wrecks 43.164,165 FINIS