Declaration in our Laws as the form is now used but contains both Causes in it besides there are other differences betwixt the forms used in the pleadings and declarations of both the Laws which would be too long and tedious to recite The next difference is in the Process 3. The third difference in the awarding of Process awarded in both the Laws Concerning the awarding of Process we find that with us in personal actions I mean in many of them joyning Statute Law and Common Law together In Actions personal more Process and delay permitted by our Law than by the Civil Law there are commonly awarded if the Suite be commenced in the Common Pleas summons attachment distress three capias with an exigent at the last whereby the King hath Title for the parties contumacy to his Goods and Chattels So that the plaintiffe hath now remedy by accident only and if the defendant appear and reverse the Outlary or get pardon and so answer c. which is a long time before this can be brought to pass and by this means this Suite may depend long yet the defendant never convented but at two or three years end the plaintiffe may be driven to declare anew as if he had but then begun his Suite But by the Civil Law as the Pandects shew us and Wesenbech affirmeth the Term to be now in the Empire post absentiam adversarii petat quis edictum primum mox alterum per intervallum non minus decem dierum tertium quibus propositis tunc peremptoriè impetret quod inde hoc nomen sumpsit quod perimeret disceptationem hoc est ultra non pateretur adversarium tergiversari Then if the defendant appear at the day given him by the Peremptory edict No judgment given in the absence of the plaintiffe at the Civil Law or if he do not the matter shall be discussed and judgment given for him whose part shall be found best But if the plaintiffe appear not then nothing shall be done but circumducendum erit edictum perpetuum And the peremptory edict may at the pleasure of the Judge be granted at the first by the same authority So that The interest of the plaintiffe lesse subject to prejudice in Actions personals by the Civil Law than by our Law hereby the Interest of the party who hath right is less subject to prejudice by that Law than by ours And this course of the Civil Law doth not admit so much delay as doth our Common Law For by our Law in such Cases where no Outlawry lieth in personal Actions there the Process of distress goeth out infinitely and then is there no end of the Suite as in per quae servicia quae juris clamat and such like wherein it is true that our Law severely punisheth the party which so much sheweth contumacy to the Law yet doth it no good or very little to the plaintiffe for his satisfaction But there is another difference that in Actions altogether real as Entry Escheate Right Dower and such like the remedy allowed by the Laws of England is far better for in them if at the day appointed upon the first summons the party make default and the quarto diepost be past then is there a graund cape to take his land into the hands of the King and the plaintiffe shall have it from the King by judgment if the defendant do not come to replevy it by oath that he was not summoned according to the Law or such like always remembred that Essoynes upon just occasion may herein breed much delay And herein is there much difference betwixt the Civil Law and our Law for in the Civil Law upon their peremptory edict notwithstanding the defendant A main difference betwixt the proceeding of our Law and the Civil Law in Actions real doth not appear the right shall be examined and thereupon judgment given but with us upon the default at the graund cape the plaintiffe shall have the land by judgment although the right be not examined As also upon the appearance if by oath he cannot save the first default likewise if he once appear and afterwards make default before judgment given there must be a petit cape awarded at which Writs return if he do not save the first default there shall be judgment given against him That all this was antient Law may be seen in Bractons Treatise de defaltis So that in personal actions the Civil In personal actions the Civil Law is more severe but in real more remiss than our Law of England Law hath a more severe and speedy course for recovery than the Common Law of England but in real actions it is somewhat more remiss or at the least ours is more severe For the last difference spoken of betwixt 4. The last difference is in the giving and Execution of judgment these Laws which is for the giving of judgment and Execution upon the same in real actions being in rem although the form and circumstance thereof may be divers yet in these real actions quoad substantiam effectum the difference is not very great for both Laws must make Execution of the same thing though perchance not in the same manner But for personal actions it is manifest by the course of antient and present times that for Debt ever since King Edward the third his time and damages and accompt ever since Henry the third his time in actions upon the Case ever since King Henry the 7th his time and in all actions Execution against the person after judgment by our Law in actions personal where Capias lieth in the Process before judgment there Capias ad satisfaciendum lieth after judgment to put the party in prison for Execution than the which although a more rigorous Law were by the 12 Tables whereby Corpus inter creditores secari licebat whereof Rivallius saith an example is not read in any History or other Book yet afterwards by their Lex Petilia it was decreed as Livy reporteth that no man should be for Debt nervo aut compedibus vinctus which notwithstanding was used sometimes by the violence of Vsurers and therefore sometimes renewed by the Laws Portia Sempronia Popilia and other whereby terga civium were made tanquam sacrosancta Also by the Lex Julia if the Debtor would leave his goods his Body was free as appears by the same reported in the Code But this Law Hottoman thinketh not to extend unto Banquerupts or such as are non solvendo by their own default But by the Anthentiques and Latine Law if The Civil Law more mild of latter time than ours for Execution against ones person in debt c. a man were poor by some external misfortune and not by his own means if he would ejurare copiam bonam he need not leave his goods for his Creditors nor subject himself to Prison which is so mild a Law towards Debtors that it hath no proportion
upon an Estate-tayle and to destroy perpetuities which no other Conveyance doth as a Fine is used to barr estrangers that pretend right of Possession or Action which no other Conveyance can doe Conveyance of Land by Will or Conveyance of Land by Will how it stood at first last Testament in antient time was only in such antient Cities and Boroughs which specially prescribed for the same and that the Lands were devisable by Custome But the greatest part of the Land within this Realm was not subject to this kind of Conveyance unless the same Land were first granted over to Uses or in Trust and then the said Trust was devisable by Will because it was a matter in Conscience and a Subpoena in Chancery was the only remedy But in the 27 year of King H. 8. all those Uses were transferred into Possessions so that by means thereof no Land by any means was deviseable but Customary-lands untill the 32 and 34 years of King H. 8. when it was Enacted that all Lands Farther liberty granted by statute to convey Lands by Will might be devised by Will and if the same were held in Socage tenure the whole passeth by Will But if of the King in Chief or of a Subject by Knight-service two parts only do pass by Will and the King or Lord of whom it is holden is to have a third part during the nonage of the Heir and the Heir the said third part afterwards The Conveyance by Uses was in Conveyance by Uses when and how it begun antient time unknown and began in the time of the Civil-warrs of Ed. 2. against the Barons and of Lancaster and York bred and begotten by fear for the owners of Lands doubting lest themselves by partaking should be attainted and so their livings forfeited did convey their Lands over to their Friends in trust but received the profits themselves which perception or propertie by Law was called Use And the party who was Owner in Conscience was called Cestuy a que use or pernor of the profits Also afterwards Uses were invented by fraud to deceive Creditors of their Debts Purchasers of their Bargains and Men that had right of their Actions all which was remedied by the Statute of the 27 of H. 8. whereby the Possession of the parties trusted was transferred to the Cestuy a que use and the Use and Possession were incorporated and united But yet at this day Conveyance by Use is very common and many kindes of Conveyances are lately sprung up out of this Statute of 27 of H. 8. as Bargains and Sales for money But this must be enrolled within six monthes by the Statute of 27 H. 8. CHAP. VIII Of Actions and of their Trials according to the Common-laws of England IT is a saying both in the Civil-laws and Common-laws of this Kingdome that Actions whereupon the Trials of Suits betwixt party and party do depend are of three sorts either real personal or mixt The Actions of 3 sorts first concerneth the Title of man's Lands and Freeholds the second of their Goods and Chattells and the third are in Rem personam simul as Waste Quare impedit Ejectione and the like Actions heretofore used for real Actions real matters were Assises Writts of Entry and Writts of Right for Fee-simple and as some hold for Fee-tail confirmed by Precedents of experience also Formedon for Fee-taile Cui in vita for a Woman upon the discontinuance of her Inheritance by her husband And for personal Matters and Actions personal Contracts it was as at this day which real Actions were so used because the partie oftentimes was barred of his Entry by a discent that if one did disseise or unlawfully dispossess another of any Land and the Disseisor or Wrong-doer died thereof seised the lawfull Heir or he that had the Right might not put the other out of possession or enter for his Right but ought to sue first for it But by the Statute of 32 of H. 8. The most usual Trial of Actions real at this day no discent to take away an Entry may be without five years peaceable possession And therefore now to bring such Titles to trial the use is either to enter and bring an Action of trespass and thereby to try the Title or to distrein some Cattel upon the ground and upon a Replevin to avow a dammage Fesant that by affirming the Cattell hath trespassed his ground the interest thereof may thereby be tryed but the common course is to seale a Lease upon the Land and so to try it by an Action of Ejectione firmae Few real Actions now used being full of delay At this day few real Actions are used because they are more full of delay and also they are more peremptory and binding against the party for a former Recovery was a good Plea but in these personal Actions it is not for in them the party may bring as many Actions as his purse will maintain Also Actions upon the Case for Actions upon the Case are common Words are very common CHAP. IX Of Trials allowed by the Laws of England AS it is usual amongst men to commence Suits and Actions so it is of necessity that some certain Form should be prescribed by which those Variances Suits and Actions should be brought to Conclusion so hath the Laws of this Land and Wisdome of the Law-makers found out two wayes for the Trial of Suits Two ways for the Trial of Suits and Variances which is either by Jury upon the Oaths and Verdict of twelve Free-holders or else by Battaile between the parties but this is out of use or their Champions or by the Oath of the defendant which is called Ley Gager Some have conceitedly said that A conceited opinion of Trials the Trials except Battaile have confisted upon the number of twelve with a triple distinction as twelve Judges for matter in Law twelve Jurors and twelve in Wager of Law for so is the form There is a Trial also by the Certificate Trial by Certificate of the Bishop c. of the Bishop for Bastardy and Mariage also of Infancie by Inspection of the Court also of Villanage by his Kinsfolks also Death of the Husband by proofs in Dower But these especially the latter of these are not so much in use though allowed by our Laws Of which Trials although Trial by Trial by Battaile not abolished nor lately used Battaile being antiently used and is not yet abolished by any Statute yet by reason of the unchristian and bloody proceedings thereof when the strongest Hand and Heart may overcome the best Right and losse of Living is determined with losse of Life it is therefore obsoleted and grown out of use Such Trial by Battaile was appointed to be in Tuttle-Field in the 13 Eliz. where the Champions Lists Judges and all being prepared the Demandant was non-suite and so that Trial ceased And another was appointed in the same
place about the 8 of King Charles 1. but it was taken up and so ended This Trial was both in civil and criminal Pleas. In civil Pleas it was only in a Writt of right by Champions in criminal Pleas it was in an appeal of Death by the parties Battaile is also termed a Trial in A Trial termed Battail but by Writ a Writ of right of Advouson and Rationabilibus divisis and other Writs which concern the Right only as Fitz-herbert witnesseth and also in civil Causes the Defendant might sometimes wage Battle himself as Glanvil saith lib. 2. Cap 3. Trial by Oath is as heretofore Trials by Oath used by wager of Law upon Contracts without specialtie in an Action of Debt This trial about Edw. 3. and Edw. 2. time was used in Actions which began ex maleficio as in contracts ex stipulatione for in Trespasses it hath been used as divers authorities are in the Year-books But yet of late by reason mens Consciences were found to be large and foul whereby the Oath of a perjured person for his owne profit might much prejudice an honest Man the Trial by Oath is Trial by Oath is much prevented much prevented by turning the formerly used Action of Debt into an Action upon the Case wherein no Wager of Law lyeth The most common and proper Trial by Jury most frequent and in force Tryal of Suits in this Kingdom heretofore and now in force is by Jury that is by Oath and Verdict of twelve Freeholders both in Actions reals for Lands and Actions personals for Contracts and Trespasses In this Trial the Jury is not tied only to the Evidence of two men or of more Witnesses but may find Veritatem facti upon Circumstances or by Witnesses or sometimes especially for want of manifest or probable Evidence upon their own Knowledges And in Cases doubtfull concerning points of Law the Judges are to deliver Veritatem Juris If the Jury erre in their Verdict Attaint of a Jury erring an Attaint lyeth against them wherein the matter must be tried by 24 sufficient and substantial Jurors and that to be final If it be found by them that the former Jury hath given a false Verdict and were forsworn the party wronged is to be restored to his Right and the first Jury grievously punished by the Common-law which punishment is mitigated by the Statute of 23 H. 8. If upon any Action or Suite commenced Error of Judgement how reformed the Judges do erre in Judgement in any Court of Record or that the same be supposed A Writt of Error lyeth before other Judges superiors If in the Exchequer it lyeth in the Exchequer Chamber by the Statute of 31 E. 3 Cap. 12. If in the Common-pleas or Chancery in Latine proceedings it lyeth in the Kings-bench If in the Kings-bench heretofore it lay only in Parliament but now by the Statute of 27 Eliz. in the Exchequer-chamber before the Justices of the Common-pleas and Barons of the Exchequer CHAP. X. Of some things in the Ministers and Proceedings of our Laws conceived worthy to be reformed BEcause there are divers who do complain much against our Laws whereof I may be bold to say that many if not the most part do not rightly distinguish betwixt the Use and the Abuse of our Laws The Use and Abuse of our Laws not well distinguished by some or betwixt the Laws themselves and the ill Practice and Proceedings of some corrupt persons in the handling and trial of them and for that I have formerly made some Apologie for our Laws in answer of these accusations I hold it as fit in plain and sincere dealing to deliver what defects or other indirect proceedings I do conceive there are practised in the Trials of Suits tending to the delay overburdening and deluding of the Subjects in their Suits or to the defrauding of the Law it self The Authors intention in the withdrawing or declining of it from its natural pure and upright Course which I shall set down by way of supposition only as farr as I can conceive rather than of any peremptory position And in the same sence have I spoken all the rest allwayes submitting the same unto deeper Judgement of them that are learned in our Laws The Defects whereof I spake before Defects of 2 sorts that is in Trials Proceedings of the Law are of two sorts Defects in Trials and Defects in the Proceedings of our Law The first whereof as I conceive proceedeth specially from two causes want of understanding or indifferency in Jurors who trie want of Integritie in Judges who direct Jurors much in matter of Fact and have the whole power in deciding points of Law Touching the former whereby in Want of understanding in Jurors course the Verdict of Juries the Rights Inheritances whole Estates of most of the Subjects within the Kingdome are either tryed or subject to be tryed and yet in many places the Jurors for the most part are found to be simple of mean capacitie and of as small substance in Estate for either no better are impannelled or if better be they of best Abilitie and Judgement do absent themselves presuming that either by some excuse made for them or by some other means they may be dispenced withall or if this serve not the worst is but to pay some small Fine So usually the Service is imposed on them that are least able to discharge it Sometimes to the no small prejudice of mens Rights wherein it were to be wished that either by some farther Laws or at the least by better Execution of the former Laws Sheriffs Sheriffs to be compelled to impannell able men in Juries were compelled to impannell in Juries none but men able for Judgement and Substance And that such being impannell'd a more strict No dispensation with Jury men to be permitted Course were taken by the Justices for their better appearance and attendance without any kind of dispensation or connivence Care hath been taken to remedie this by the Statute made 16 and 17 Car. 2. 3. Also another abuse there is concerning the impannelling of Jurors worthy of reformation which is That the Jurors of the principal pannel seldome appearing full it is found an usual practice for the Plaintiff to request Free-holders his friends to Free-holders desired to stand in view that they may be retorned of the Jury stand ready within view of the Court to be put into the Tales therefore to avoid this mischief it were necessary to have a special Oath always administred unto the Jurors thus added That they are not requested by either partie or laboured by any for them It should seem that the like Oath were needfull to be given unto the Sheriff or some severe penaltie appointed against the impannelling of Jurors at the nomination of the parties or their freinds whereby many men have received great hurt and prejudice Also it The Sheriff and the Jury to have