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
the Earles to meet and Ordained for a perpetuall usage That twice in the yeere or ostner if need were in time of Peace they should assemble together at London to speake their mindes for the guiding of the people of God how they should keepe themselves from offences should live in quiet and should have right done them by certaine usages and sound judgements By this Estate many Ordinances were made by many Kings King Ed. 1. untill the time of the King that now is the which Ordinance were abused or not used by many nor very currant because they were not put into writing and certainly published One of the Ordinances was That every one should love his Creator with all his soule and according to the points of the Christian Faith And wrong force and every offence was forbidden And it was assented unto that these things following should belong to Kings and to the Right of Crown Soveraigne Jurisdiction The Soveraigne Jurisdiction throughout the whole Land unto the middest of the Sea encompasaing the whole Realme as franchises treasure found in the Land Waife Estray goods of Felons and Fugitives which should remaine out of any ones rights Counties Honours Hundreds Wards Goales Forrests chiefe Cities the chiefe Ports of the Sea great Mannours these Rights the first Kings held and of the residue of the Land they did infeoffe the Earles Barons Knights Serjeants and others to hold of the Kings by the services provided and ordained for the defence of the Realme according to the Articles of the ancient Kings Also Coronors were ordained in every Country and Sheriffes to defend the Country when the Counties were dismissed of their Guards and Bailiffes in the places of Centyners And the Sheriffes and Bayliffes caused the Free-Tenants of their Bayliwicks to meet at the Counties and Hundreds at which Justice was so done that every one so judged his Neighbour by such judgement as a man could not elsewhere receive in the like cases untill such times as the customes of the Realme were put in writing and certainly established And although a Free-man commonly was not to serve without his assent neverthelesse it was assented unto that Free-Tenants should meet together in the Counties Hundreds and the Lord Courts if they were not especially exempted to doesuch Suits and there judged their Neighbours And that Right should be done from 15. daies to 15. daies before the King and his Judges and from month to month in the Counties if the largenesse of the Counties required not a longer time and that every three weekes Right should be administred in other Courts And that every Free-Tenant was bound to doe such suite And every Free-Tenant had ordinary jurisdiction And that from day to day the Right should be hastened of Strangers as in Courts of Pipowders according to the Law-Merchant The Turnes of Sheriffes and views of Free-pledges were Ordained and it was Ordained That none of the age of 14. yeeres or above was to remaine in the Realme above forty daies if they were not first sworne to the King by an Oath of Fealty and received into a Decenery It was Ordained That every Plaintiffe have a remediall Writ to his Sheriffes or to the Lord of the Fee in this forme Questus est nobis C. quod O. c. Et ideo tibi vices nostras in boc parte committentes precipimus quod causam illam audias legitimo fine decidas It was Ordained That every one have a remediall Writ from the Kings Chancery according to his plaint without difficulty and that every one have the Processe from the day of his plaint without the seale of the Judge or of ths Partie It was Ordained That Coroners should receive Appeales of Felony and should give the Judgements of Out-lawries and should make the visnes in the Causes aforesaid And that all the next Townes should present to the Coroners in the Countie the mischances of the bodies of the people and the names of the finders And that every Country should present Felonies Mischances and other Articles presentable in the Eyres for offences that the Kings might send to summon them to appear against the comming of the Kings or of the Justices assigned to hold all Pleas. And for the great dammages which the Commons suffer by Amercements issuing out for Concealements and for fault of these presentments in Eyres it was agreed unto That these presentments in Eyres should be by the Coroners chosen by all the Commons of the County and so the Coroners are as it were the Commons Bayliffes as to these Charges neverthelesse they are the Kings ministers because they take an Oath to him For personall trespasses neverthelesse the Coroners are only punishable without any damage to those who chose them unlesse they have not sufficient wherewith to satisfie for their trespasses The Exchequer was Ordained in manner as followeth and the pecuniary penalties of Earldomes and Baronies certaine and also of all Earldomes and Baronies entire or dismembred and that those Amercements were afferred by the Barons of the Exchequer and that the Estreats of the Amercements be sent into the Exchequer though they were amerced in the Kings Court. It was Ordained That after a plaint of wrong be sued that no other have jurisdiction in the same place before the first plaint be determined and from the 〈◊〉 came this clause in the Writ of Right Et nist foreris vicecones saciat It was Ordained That every one of the age of fourteene yeares and above should be ready to kill mortall offenders in their notorious sinnes or to follow them from Towne to Towne with Hue and Cry and if they could not kill them the offenders to be put in exigent and Out-lawed or banished And that none should be Out-lawed but for a mortall offence and in no other County but where he committed the offence It was Ordained That the Kings Courts should be open to all Plaints by which they had originall Writs without delay as well against the King or the Queene as against any other of the people for every injury but in case of life where the plaint held without Writ It was Ordained That no King of this Realme should change his money nor impaire it nor inhannse it nor make any other money but of Silver without the sssent of the Lords and all the Commons It was Ordained That Felonies should be tryed by Appeales and that Appeales might sometimes be ended by Battaile and that Exigents of the Offenders should continue by three County Courts before the Out-lawrie It was Ordained That all Free-Tenants should be obedient and appeare at the Summons of the Lords of the Fee and if one caused a man to be summoned elsewhere then in the Fees of the Avowants or oftner then from Court to Court that they were not bound to obey such smmmons if not at the charges of the Avowants of the Summons It was Ordained That Knights Fees should come to the eldest Sonne by mecession of Inheritance and
wrong to the King when I disseise him of his right or use force where I ought to use Judgement On the other side that which is taken from me by the rightfull Judgement of any Judge Ordinary or Arbitraty is not taken wrongfully from me Wrong is here taken as well for deforcement or disturbance as for ejection Deforcement as if another entereth into anothers Tenement when the rightfull owner is at the Market or else where and at his returne cannot enter therein but is kept out and hindred so to doe Disturbance is as if one disturbe me wrongfully to use my seisin which I have peaceably had and the same may be done three waies 1 As when one driveth away a distresse so that I cannot distreyne in the Tenement lyable to my distresse whereof I have had seisin before 2 Another is where one doth Repleive his distresse by the Sheriffe or the Hundred wrongfully 3 As if one distreyne me so outragiously that I cannot manure Plow or the my Land duely in which Case it maketh one an outragious distreyner to disseise or for to eject the Tenant as if any one eject me out of my Tenement whereof I have had peaceable possession by discent of Inheritance or other lawfull title to the possession Note that all right is in two kinds either in right of possession or in right of property and therefore the right of property is not so determinable by this Assize as is the knowne possession or as that which altogether favoureth of a possessory right The remedy of Disseisins hold not of moveable goods nor of any thing which falleth not into Inheritance as Land Tenement Rent Advowson of a Church and a house of Religion Franchises and the Appurtenances and such other rights whether they are holden perpetually in Fee or for terme of life or yeares according to the Contract as well as the Land morgaged to such a one and his Heires untill so much be paid to such a Tenant or his Heires Eiection of a terme of yeares falleth into the Assize which sometimes commeth by Lease or Baylement or Loane and sometimes by right of Wardship by the Nonage of some Heire and to the recoverer it belongeth to hold them according to the Contracts Villinage in some Case falleth into this Assize as to Free-tenants who are ejected or disturbed to continue their seisin of lawfull Presentments and whereof a Bargaine is made betwixt any Doner and any Purchaser although that the Purchaser cannot present living the Clerke of the Doner instituted into the Church the Title neverthelesse of Contracts barreth not altogether the Donee so that afterwards he cannot present against the forme of the Contract and if he doe the Doner falleth into this Assize and the Bishop who gave the Institution to him who is not presented by him to whom the right of presentation doth belong in his owne name Into this Assize also fall Donors and Purchasers who make vicious Contracts of Lands and Possessions as also it is of Guardians and of Farmers who Lease their Lands for a longer time then their terme endureth in prejudice of the Lord of the Fee or of him to whom the Reversion belongeth as it is of those Lessors who have Fee rayle On the other side fall into offence those the Kings Officers and others who disseise a man or a Corporation of their Franchises whereof they have the Inheritance by lawfull Title if not through the default abuse or negligence of those or of their Bayliffes to whom the Franchises belong Into this offence also fall all Atturnies who yeeld up the Inheritance or Freehold of their Clyents in Judgement and the Justices also who yeeld to them and the Tenants also for it behoveth not Atturnies to lose their Clyents rights but it behoveth them to defend them till a rightfull Judgement be given Into this offence fall all those who commit any wast exile or destruction in Lands as that which is not justifiable by Law as those who assigne over Lands to others where in the Feoffments to themselves or their Ancestors there is mentioned but of Heires only and that may be two waies viz. to Heires generall or to speciall Heires named as in Fee tayle or not named as in Franck-marriages This Action all Persons may bring Men Women Clerkes and Laymen Infants and others of what condition soever they be who are not forbidden by the Law It is forbidden to Villaines to bring this Action without their Lord for as much as they are in the Custody of their Lords In the same manner to Feme Coverts and to others who are in Ward and to those who were never Tenants in their owne names but in the name of the Lord The Law also denyeth the Suit to those who have withdrawne themselves from the same action in Judgement or have released or quit-claimed their right And note that Retrahere sub-trahere is not all one Retrahere doth acquit a man from those things which are in his Writ or in his Action but neither the one not the other can utterly barre him if he doe not openly declare the same but subtrahere withdraw his Action every Plaintiffe may doe either by himselfe or his Atturney whether he be present in Court or absent and although it be that one will not pursue his Action yet he doth not so barre himselfe nor withdraw himselfe but that he may have a new Writ and a new Plaint if he doe not openly in Judgement say that he withdraweth his Action these remedies hold against a Disseisor and where there are many against all those who appeare in the force or in the aide CHAP. II. SECT 26. Of Distresses ANy Action rightfully grounded upon a Personall Trespasse accrueth to people wrongfully distreyned which is called a Distresse and because that none can cover his Robbery or his Latcine by Distresse it is 1 to be knowne what is the division of Distresses 2 Who may distreyne 3 When and of what things a Repleive lyeth A Repleive is nothing else but a reasonable distresse A reasonable distresse is to the value of the thing in demand without any other fault for no outragious distresse is termed lawfull There are two manner of Distresses a dead distresse as of Corne Wine and other such Chattels and a live distresse as of a Man a Beast and of such like things No man can distreyne who is not warranted so to doe by Law or by some other speciall deed 1 By the Law as for Damage feasance and for Debts and Contracts of Forraigners for Forraigners are distreynable by their moveable goods and summonable because they are not free Tenants in the places where they are destreyned and for as well a Debt recovered as any other and so for Amercements of damages and Arrerages of Accompt or other thing 2 By Deed as if you grant me any Annuity and doe grant me to distreyne in the Lands for the Arrerages of the same or other service and binde
after default untill due satisfaction was made so as the defaults were more hurtfull to persons in contempt then profitable Some Actions are personalls and not mixt in the introduction as of Neistie of Acccompt of leading away distresses and some actions there are that although they savour of the personalty and realty yet they hold not the rules of those actions As of Recognitions of Assizes in which if the Tenants make defaults for that there is no distresse nor seisure of the Land or other thing in the Kings hands but the Recognitions are to be taken ex officio and the Judgements are to be pronounced according to the Verdict of the Jurours in respect of such defaults CHAP. IIII. SECT 6. Of Personall Action IN personall Actions venialls where the Defendants are not Freeholders the defendants used to be punished after this manner First Processe was to bee awarded to arrest their bodies and those who were not found were put in exigent in what Court so ever the Plea was and were at three Courts solemnly demanded and proclaimed and if they appeared not at the fourth Court then were they banished the Lords jurisdiction or the Bayliffes of the Court for a time or for ever according to the quantity of the Trelpasses CHAP. IIII. SECT 7. Defaults in reall Actions THe defaults in reall Actions are punishable in this manner At the first default the plaintife is there seized to the value of the demand into the hand of the Lord of the Court and the Tenants are sommonable to heare their Iudgments of defaults Or after appearance the seisure is to be adjudged to the Plaintifes to hould in the name of a distresse untill by lawfull judgment hee be ousted thereof And if any one appeare in Court first he is to plenise the thing in demand and presently to answer the default In which case hee may deny the Summons because hee was never Summoned or not reasonably Summoned and thereof he may wage his Lawyer against the Testimoney of the Summoners although they be present and if he wage his Lawyer he is presently to plead to the Action or to the plaintife CHAP. IIII. SECT 8. Of Actions Miâ—t THe defaults of mixt actions are punishable in this manner The defendants are distrainable by all their moveable Goods and Lands saving that they are not put out of that possession from Court to Court till they apeare and Answere and the issues come to the profits of the Lords of the Courts CHAP. IIII. SECT 9. Of Pledge and Mainpernor PLedges and Mainpernors are of one signification notwithstanding that they differ in names But Pledges are these who baile other things then the Body of Men as in Reall Actions and Mixt Mainpernors are in personall Actions only those wâ—â— bayle the Body of a Man safe Pledges are those who are sufficient to answere the demand or the value and are true men and Freeholders to whom the Plaintife is and in whose Court the Plea is brought and if any one bring the Body or his Fees by default he is sufficient punished though hee bee not amerced but then the Offendor is first amerceable when he is brought to judgement and cannot excuse his wrong or save his default And as none who commeth before Summons is amecreable so no Plaintife is amerceable or his pledges de prosequendo for Nonsuit where the Tenant appeareth according to the warrant of the Summons or other wise maketh satisfaction for the same As in Case where the King Commands the Sheriffe that hee command such a one to appeare or to doe and if he do not and the Plaintifes put in sureties to prosecute his suit then that he summon or attach the defendant c. In which case if the Sheriffe had not warned the Tenant to appeare or to do according to the points of the Warrant if he take surety of the Plaintife to prosecute hee doth him wrong But the Plaintifes and their pledges are to bee amerced when the defendants offer themselves in judgment against them and they make defaults by Nonsuit And also those Sheriffs do wrong who forbeare to execute the Kings Commands in as much as the Plaintifes have found sureties to prosecute their Plaints when no mention is made in the Writts to put in sureties CHAP. IIII. SECT 10. Defaults after summons AS there is a default of persons in the like manner there are of things As of services issuing out of Lands where the Lands are in service and wherenot If Rent Suit or other service bee behinde to the Lord of the Fee The Tenant is not distraineable for the same by his moveable goods but it behoveth to sommon the Tenants to save their defaults or to make satisfaction or to answere wherefore those services due out of their possessions are behinde to the Lords and if they appeare not at the Sommon by the a ward of the suitors their Lands are to be seised into the Lords hands til they justify themselves by pledges And if they be againe summoned to heare the Iudgments for their defaults Although they come not at the second Summon they are not to bee amerced in as much as they came they may render the Land or alledge a priviledge or say something why they ought not to obey the Summons And if the Lord have not a proper Court nor suitors or hath not power to do Iustice to his Tenants in manner as aforesaid Then the same may bee done in the County or Hundred or elce in the Kings Courts Or at first by a Writ of Customes and Services and other Remediall Writts And if any one hath not any thing to acquit himself the Lord is not to loose his Right although hee be delayed thereof but the Lord may seize his Land as before is said and the Tenant is to recover his damages where he can and it shall be accounted his follie to enter or remaine in another Fee without the consent of the Lord. And if any one oust him of his Land and of his Tenement enforceth another person to hould of him and maketh himselfe mesne betwixt the Lord and the Tenant in prejudice of the Lord in such a case the law is used to hould the course after said CAP. IIII. SECT 11. Of champion IF any one do or say to his Lord of whom he houldeth any thing which turneth to the hurt of his body or to his dissinherison or to his great dishonour First by the Award of his Court or of some other such a one is sommonable if he be his Tenant and afterwards if he make default he is destrainable by his Land by the Lord till he appeare and if hee appeare and cannot discharge himselfe by his wager of Law by 12. men more or lesse according to the Award of the Court hee is to bee disinherited of the Tenancie which hee houldeth of the Lord in such a manner by the Judgment of the Suitors and so it behoveth that the Tenants leave their Lands and
by burning of them over the eyes because the lust came in by eyes and the heate of whoredome came from the reynes of the eacher Seaven things doe stay Judgement of Death 1 False Iudgement or foolish Iudgement 2 False Testimony 3 Default of better Answer 4 The hast of the King 5 A woman with Childe The first three Cases have respite by forty daies the fourth by thirty daies the fifth by forty weekes or more if the Childe be not borne 6 Want of discretion as it is of Idiots Mad-men and of Infants 7 In Poverty in which case yee are to distinguish of the poverty of the offender or of the thing for if poore people to avoyd famine take victuals to sustaine their lives or clothes that they dye not of cold so that they perish if they keepe not themselves from death they are not to be adjudged to death if it were not in their power to have bought their victuals or clothes for as much as they are warranted so to doe by the Law of Nature and although the Law hath no respect but to the Soules of offenders neverthelesse King Edward limited the quantity of Robbery and Larcine in this manner that is to say that none should be adjudged to death if the Larcine or the stealing or the Robbery did not exceed twelve pence Sterling and note that King Hen. the 1. by Randulph de Glanvile Ordained That in all mortall Actions that where the Action was encountered with an affirmative exception that the affirmation was first to be received in proofe in favour of life and thance it was that if one man accused another of Felony and he plead that he is not the man the proofe was awarded to the Defendant to convince the other of lying either by his body or otherwise And so it is if the Defendant say that he could not be at the doing of such an Act at the day place or yeare named in the Plaint because he was then in another place where by presumption he could not doe it or that he could not be there present Or if he saith that the thing came to him by good title in favour of life the proofe belongeth to the Defendant peremptotily at his perill to the overthrowing of the Action and the exception but if the Defendant solye deny the Action in such cases the proofe belongeth to the Plaintiffe Of Out lawes returned from exile banished men and those who have forjured the Realme and returned being taken and kept for a justifiable offence the Iudgement is that they be hanged till they be dead CHAP. IV. SECT 17. Of Punishments in divers kindes THe Corporall punishments of Death being past we are to come to Corporall punishments venialls which are by open infamous Penances and first of punishments Tallions or like for like which are in three Cases that is to say in May hem Wounding and Imprisonment in which if the Pleas be brought in by Appeales of Felony for reverge onely then belongeth the Iudgement Tallion or like Iudgement as Mayhem for Mayhem Wound for Wound Imprisonment for Imprisonment And if pardonable in forme of a Trespaffe then these Iudgements hold place that the offender make reasonable satisfaction to the Plaintiffes and afterwards that they be adjudged to doe open Pennance according to the quantity of the offence Open Pennances are these amendments of High-waies Cawsies Bridges setting them up in Pillories or Stocks Imprisonment and abjuration of the Realme Exile Banishment either from off the Land or from the Towne from entring into such a place or from going out of such a place by Ransome of such a penalty by pecuniary punishment or by other Fine and such other kindes of Iudgements penals And if the offender be Infants or otherwise in custody that in such cases the Guardians be adjudged to make satisfaction of the damages and the Guardians to betake themselves to the goods of the Trespassours but the open Pennance is to be suspended so long as they are in Ward so that according to the difference of the offences and the offenders the punishments were in manner as followeth and first of false Iudges who the more greatly offend for as much as they are in a higher degree then other people CHAP. IV. SECT 18. Of false Judges OF false Iudges Affigned King Alfied Ordained such Iudgement that the wrong they doe to God whose Vicegerents they are and to the King who is put in so noble a place as is the Seate of God and hath given them so great Dignity as to represent the Person of God and the Counsance as to Iudge offenders that first they be adjudged to make satisfaction to those they have hurt and that the remainder of the goods should be to the King saving all other rights and all their Possessions with all their purchased Lands should be forfeited in whose hands foever they be come and that they be delivered over to false Lucifer so low that they never returne to them againe and their bodies that they be punished and banished at the Kings pleasure and for a mortall false Iudgement that they be hanged as other murderers And for Mayhem Wounding and Imprisonment that they have like for like and the same Law and in the same condition The Iudgement of false Iudges Ordinaties is not in veniall Iudgements so penall as it is of Iudges Deligates before but they are to make satisfaction to the Parties Plaintiffes and to the King they are punishable by a pecuniary penalty and disabled from all manner of Iurisdiction whatsoever and in Cases mortall and Tallions according as it hath been said before of other Iudges CHAP. IV. SECT 19. Of Perjury PFâ—jury is a great offence of whith yee are to distinguish either of Perjury of false Testimony or of breach of faith or by each of the Oath of fealty of the first Perjury yee are to distinguish either of Perjury mortall or venialâ— if of mortall then the Iudgement was mortall to the example of apparant murderers And note that in all personall Actions there belongeth such an award that due satisfaction be made to the Plaintiffes and that the offenders be punished with corporah paines which paines are to be bought out by ransome of money and if of veniall perjury then that they be banished for a time or for ever and that their Woods Meadowes Houses and Gardens be erradicated according to the example of murderers saving that their Heires doe not remaine dis-inherited Of the other Perjury yee are to distinguish as breach of faith to the King or to another Person and if to the King yee are to distinguish whether as his Tenant or not and if the Oath of Fealty be in respect of Land and the fealty be broken in any of the points then lyeth the Processe and defaults aforesaid and if of an Oath not in respect of Land yee are to distinguish whether of the common Oath of Fealty sworne to the King for the remaining in his Fee then
flyers forfeited before they be attainted of the Felony by Outlawry or otherwise 16 It is an abuse to Out-law a man before it hath been enquired by the Oathes of Neighbours 17 It is an abuse to suffer a man attainted of Felony to be an Approvers and to have a voice as a true man and that Clerkes Women Infants and others who cannot Combate are suffered to be Approvers 18 It is an abuse that others receive the Appeales of Approvers then Coroners and that they are suffered to Appeale oftner then once or by distresse or otherwise or in any manner falsly 19 It is an abuse that the Justices drive a true man to be tryed by his Country where he profereth to defend himselfe against the Approver by battaile 20 It is an abuse to force people Appealed by Approvers to Acquittalls where the Approver put in his Appeales if he be not thereof elsewhere endicted or after the lying of the Approver attainted or after the death of the Approver 21 It is an abuse to suffer an Approver to live after he shall be attainted of a false Appeale 22 It is an abuse to suffer Theeves and knowne and notorious Felons to be defended in Sanctuaries 23 It is an abuse that those Felons who are forjured the Realme are not suffered to chuse their Port and passage out of the Realme and to limit their Iournies 24 It is abuse that they enter into the Sea and from the Sea the Church next the Sea and that enteries into great places are denyed them and that they have not the priviledge of Pi'grims 25 It is abuse to adjudge Murder for default of En. l. shire since Murder ought to be the English punishment of an Alian 26 It is an abuse that Acquittances of paiments made to the King in the Exchequer are by Tallies and not by the Seale appointed for it 27 It is abuse that the Kings Officers of the Exchequer have Jurisdiction of other things then the King Monies of his fees and of his Franchises without an Originall Writ out of the Chancery under white Waxe 28 It is an abuse that the Kings Debts lye Dormant and are delayed to be leavied by Estreates since the Arreates of Sheriffeâ—s and of other the Kings Receivers are to be leavied without delay upon those who preferte them if they themselves be not sufficient and the Arrerages of the Debts of others are to be leavied upon their Sureties where the principalls are not sufficient to pay the Arrerages the Amercements are lyable upon the Assessors if the principalls are not sufficient and so it is of Fines and all other the Kings Debts whereby it appeareth that no Debt ought to be much behinde is so much as some thinke that none are chargable with an old debt if not of malice or by negligence of the Kings Officers 29 It is an abuse that they of the Exchequer or others receive Atturnies or hold Counsans without an Originall Writ out of the Chancery which none can doe without Jurisdiction 30 It is an abuse that Free-men and Free-holders have ordinary Jurisdiction but in the Courts of Lords of Mannours or of Hundreds or Counties 31 It is an abuse to Amerce any man by reason of a Presentment in personall Trespasse in as much as no man is to be Amerced but for the offence in a reall or mixt Action 32 It is abuse to Amerce any man by a Presentment made of lesse then twelve sworne Free-men 33 It is an abuse to assesse an Amercement certaine without the afferment of Free-men sworne to it 34 It is an abuse to afferre Amercements in the absence of those who are to be Amerced 35 It is an abuse to Charge the Jurours with any Article touching wrong done betwixt neighbour and neighbour 36 It is abuse to beleeve any one hath Jurisdiction if a Commission give it not 37 It is an abuse to obey the Judge who is appealed of doing wrong the example whereof appeareth in the old Writ of right Et nisi feceris viceoemes faciat 38 It is abuse that a Free-man be made the Kings Officer by any election against his will 39 It is an abuse that the salaries of Pleaders be not certaine 40 It is an abuse that the Defendants have not amends of wrongfull Plaintiffes 41 It is abuse that Pleaders are spared of Oathes according to the points 42 It is abuse to suspend a Pleader if he be not attaint of a Trespasse for which he is condemnable to Corporall punishment 43 It is abuse to Summon 2 man for 2 personall offence 44 It is abuse to adjudge a man to death by Sutors if not in cases so known that there need no Answer 45 It is an abuse to bring the Appeale else where then before the Coronet of the County and that appeareth by the Writ of Appeale as a Writ grounded upon errour 46 It is abuse to letto baile a man Appealed or indicted of a martiall offence by Pledges 47 It is an abuse to determine the Appeales of felony by Judges Ordinaries Suitors 48 It is abuse that all persons are commonly receiveable in Appeales of felony 49 It is abuse that all Infants within age are in Ward 50 It is an abuse that people may Alien their Inheritances from their Heires further then the grants or their purchase of Lands make mention for none can make an Assignee if it bee not specified in the grant 51 It is abuse that the Inheritances of Heires females are held in Ward though it be of Knights service as of Heire Males since a woman is at age at 14. yeares 52 It is abuse that Goalers or their soveraignes plunder Prisoners or take from them other things then their Armes 53 It is abuse that Prisoners or others for them pay any thing for their entries into the Goale or for their comming out 54 It is abuse that a Prisoner is laden with Irons or put to paine before he be attainted of the felony 55 It is abuse that the Goales are not delivered of the Prisoners who are deliverable without delay without a Writ 56 It is abuse to make a man to Answer to the Kings Suit where he is not indicted nor appealed 57 It is abuse to imprison any other then a man indicted or appealed without a speciall Warrant in case for want of Pledges or Maine-prisors 58 It is abuse that Justices deliver Prisoners not taken before the date of their Warrants since the Kings intention was not but of those who are then kept in Prison 59 It is abuse that the Writ of Odio Atia take no place but in Murder 60 It is abuse that that Writ lyeth for Endictees 61 It is abuse that Appealees or Endicters of mortall Crime are got out of Prison by Bayle or those who are condemned to Corporall punishment before they doe their Penance or that they have bought in the same by Fine and Ransome 62 It is abuse that the Writs Sicut alias sicut pluries passe the
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
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