for a yeare or of sicknesse in the Journey and that holds not but to the example of a common Essoigne in these Essoignes of hinderance are Essoignes De malo veniendi This Essoigne lyeth after every Summons and generall Râ—-summons upon Pleas except to Jurours and those who are summoned for the common-wealth But of Adjournments it is to distinguish for in the Eyre of Justices the Adjournement is for three daies or foure at the most or lesse according as the places are â—eare or containe and to this Essoigne is respited fifteen daies at the least The Essoigne of sicknesse in passage lyeth before the Essoigne De malo lecti and also after the yeare of the languishing and it lyeth before appearance and after appearance except in foure Assizes and where it lyeth in Actions it holdeth in Warranties This common Essoigne is not allowable in the cases aforesaid but once after the Parties have joyned issue not after the Parties have agreed to appeare without Essoigne nor where a Bishop is commanded that he have or cause such a Person to appeare nor there where many claime by one right or are Tenants of the same right nor to a man and his Wife not to all the paeceners but if a man dyeth without Heire after the Writ purchased and brought the Writ is thereby abateable because at the day of the date the Plaintiffe had no Action against the other parceners which are alive as to that of the Party This common Essoigne lyeth as well for Infants where they are impleaded of their Lands as for men of full age And as the same is allowed to the Tenant so is it warranted where no sicknesse is adjudged this Essoigne is allowable from day to day according to the common Adjournments in Writs of right till the sicknesse be Judged if the Tenant rise not before from his sicknesse neverthelesse none can doe it in such a case if not with the Plaintiffes leave or by the command of the King if the Plaintiffe will not give him leave This Essoigne holdeth in the Writ of Droit Potent sent to the Lord of the Mannour and in a Writ of Droit close of Lands holden of the Kings in Capite and in the Writ of Customes and Services after that the deforceor hath pleaded and said that the Batraile or the Grand Assize may be joyned The Essoigne De malo Lecti is in Court for two yeares when the sicknesse turnes to weaknesse this Essoinge lyeth not for the Plaintiffe and after the sicknesse adjudged it is adjournable by a yeare of respite to the Court of London Weakenesse lyeth not in any Writ of right after appearance but where Battaile may be joyned or the Grand Assize This Essoigne De malo Lecti was never allowable to any Atturney nor to any but those who had a Warrant before the common Essoigne cast by the Tenant nor to any after the weakenesse adjudged nor without â—â—sing nor in Justiâ—â—es nor in the Writs De quo jure nor De rationabilibus divisis nor Quo warranto nor Customes and Services before that the Court be certified that Battaile might be joyned or the grand Assize This Essoigne of De malo veniendi is called De malo villa and this lyeth in case where one appeareth the first day in Judgement and is suddenly taken with sicknesse in the Town that he cannot the next day appeare in Court This Essoigne may be cast the second day by one the third day by another and the fourth day by a third in which case the Judge ought to receive the Atturnies of those who are sicke but this Essoigne lyeth not but there where the Essoigne De molo lecti lyeth CHAP. II. SECT 31. Of Atturnies BEfore a Plea put into Court by Essoignes by Attachment or by appearance of the Parties none is to be received by Atturney no more then a Plea is removeable out of Court into a higher Court where the Plaint or the Writ is not brought nor any is to be received by Atturney in a Plea which was nor in a Plea which shall be but onely in a Plea which is Pendant in the County Court or else-where or is brought by the Kings Writ and this Plea be afterwards removed into a higher Court. By this removing the Atturney is not removed for no Atturney is removeable unlesse he whose Atturney is come into the Court in proper person and remove him if not in case where one hath generall Atturnies for generall Atturnies may appoint speciall and remove them nor any can receive Atturnies after the Plea brought but the King or other warranted by a speciall Writ if not in the presence of the parties All may be Atturnies which the Law will permit Women may not be Atturnies nor Infants nor Villaines nor any who are in Custody or any other who is not free of himselfe nor any who is criminous nor any who are not sworne to the King nor any in any personall Action nor in an Accompt nor in Nativo habendo Plaintiffes notwithstanding they have Atturnies in personall Actions are not to appeare not answer in Judgement by no Atturney but he disseiseth his Clyent when he doth it The Contents of the Third Chapter OF Exceptions What is Exception and the division and order of excepting Exceptions Dillatories Of Exception of Clergy Exception of Bigamy Exception of the power of the Judge Exception of time Exception of place Exception to the person of the Plaintiffe Exception of Prison and of Ward Exception of Summons Exception of vicious Counts Exception of Approvers Excedtion to Indictments Pleas to Treason Pleas to Bâ—â—ning Pleas to Murder To Larcine To Burglary Of Rape Of imprisonment Of Mayhem and â—ounding Juramentum Duelli The order of Battaile Exception of Personall Trespasse Of Purprestures Of Treasontrove Of Wrecks Of Vsury Of Driving Of Obligation Of Attaint Of Oathes Homage Fealty annexed to Homage Common Oathes Of finall Accords CHAP. III. CHAP. III. Sect. 1. Of Exceptions IT behoveth the Defendant to Answer the Plaintiffes Declaration and because the people commonly know not all the Exceptions in Pleadings Countors are necessary who know how to advance and defend their Clyents Causes according to the rules of Law and the Costoms of the Realm and the more needfull are they to defend them in Indictments and Appeales of Felony then in personall or veniall Causes and the better to helpe our memory which every day inclineth to forgetsulnesse it is necessary to shew what is an Exception and the division of it and the order of Excepting or Pleading for some account them guilty who Plead not or Plead ill or not sufficiently for example If any one Vouch one to warranty and Judgement passe if he tell not the yeare or before what Judges the Judgement passed it is as if he had said nothing and so of other Cases and although a Plea be requisire neverthelesse every one is not received to plead for some are admitted to Plead without Tutors
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
owne Purchase or of the seisin of his Ancestor or his owne seisin the taking of the Explees and the seisin thereof in the time of what King and in the time of peace and the tender of the Demy marke a good discent and in wha manner he hath right and the averment And note that the Explees ought to be of the Demesne or of the Services and in a Precipe quod reddat of the manner of Explees in Services c. and of the Demesnes in Sheep and Corne in Pasture in feeding of Cattle of Wood in selling of the Wood Gardens in selling the Apples or Grasse of Villain is in base service to his profit and in seisin of those of his blood and for a Chaplaine or findeing of poore men the Explees are alledged in Masses and Prayers c. and of a Gorge in taking of the Fish of a Mill in taking of Tole And generally a man shall alledge Explees according to the matter in demand and the nature of it And the triall in this Writ of Right may be two waies the one by the Grand Assize and the other by Battaile but if the right be to be determined by the Battaile it shall be done by Champions and not by the parzies themselves as it is said and the reason is that if any of the parties be killed Judgement of the Land cannot be given against a dead person Quaere if that be the reason or not And it was said That a man cannot have a Writ of Right of a Rent but onely of a Rent-service for that other Rents are against common right c. And see that a Writ of Right doth differ from other Writs in pleading for in a Writ of Right the Tenant ought to conclude upon the right To conclude so that he hath more right to have the Lands c. then the demandant and not to conclude Judgement of Action as the conclusion is in other Writs yet the same holdeth not in every case for if the Tenant in a Writ of Right plead a release collaterall c. without warranty there the Tenant shall conclude Judgement if Action and not otherwise as it seemeth for the demandant hath more right to the Land then the Tenant hath but by reason of the warranty the demandant shall be barred of his Action And note that in a Writ of Right upon the Triall no attaint lyeth and yet in a Writ of right of Dower an attaint lyeth which is a Writ of Right but the reason is because the Triall thereof shall not be by the Grand Assize nor by Battaile but by a Common Jury c. And note that there are divers Writs of Right a Writ of Right which is triable by Battaile or by Grand Assize as a Writ of right of Land or a Writ of Customes and Services a Quod permittat in the debet Writ of right of Advowson c. and the like And there are other Writs of the possession mixt with the right as a Writ of Escheat Cessavit rationable part c. and the like but in those no Battaile nor Grand Assize lyeth In a Writ of Customes and Services the effect thereof is the wrongfull deforcement in not doing of the Services which ought to be done to the demandant out of the Land and the Land ought to be shewed and how he holdeth by such Services and shew seisin in him or his Ancestors of Fee and Right and alledge the taking of Explees and the Averment The Articles and things which are materiall in the Writs appeare in the Writs themselves and in the booke of Novel Tales and in other bookes and therefore they need not to be here mentioned and for that cause I omit them here c. An Indictment upon the Statute of 8. H. 6. JVrator present pro Dom. rege quod cum instatuto in Parliamento Dom. nuper Regis Henriet Angliae sexti post conquestum apâ—d Westm anno Regni sui 8. tent edit inter cetera ordinatum sit quod si aliqua persona expulsa sit seu dissesita de aliquibus terris et tenementis modo forcibili aut pacisice expulsa sit et postea manu forti et armis extra teneatur contra justic pacem vel post aliquem talem ingressum aliquod feossementum seu discontinuatio aliquo modo inde factum sit ad jus possessor defraudend aut tollend quod pars in ea parte gravata habeat assissam nove dâ—sseisine aut breve de transgressâ—one versus hujus disseisttorem et si pars gravata recuperaverit per assisam vel rationem transgr et preveredictum alio modo per debitain legis formam sit compactum quod pars defendens in terras eâ— tenem vi imgressusfuit aut ea per vim post ingressum tenuerit quaerens reciperet versus defendentem dâ—nna sua ad triplicem et ulterius finem faciet Dom. Regi et redemptionem pro ut in statuto pred plenius continetur c. Quidam tamen L. C. de E. in com pred generosus snnul cum quinque personis juratoribus pred ignotis statutum illud minime ponderans die Dom. 20. die Januarii circa horam 9. post meridiem ejusdem diei anno Regni Dom. regis nunc 12. manu forti ac vi et armis viz. Baculis et cultelltis in unum messuagium unum gardinum ducent as acras terre 40. c. prati et 30. arras basvi cum pertinetii quorundum E. K. Armigeri et L. M. armigeri c. scituat jacen et existen in perochia de L. juxta T. in com pred ingressus fuit et inde ipsas E. K. et L. M. vi et armis viz. baculis et cultellis ac manu forti dissertivit Et ejus inde statum et possessionem sic per disseissinam illam habitam et obtent cum pred personis ignotis usque in crastinum diem sequentem viz. 13. diem mensis Januarii continuavit Quo quidem 13. die Januarii H. L. de M. in comitatu pred yeoman W. B. de pred Husbandman et I. C. nuper eisdem villa et comâ—tatu laborer apud L. pred in et super tenta pred una cum prefato T. C. manu forti ac vi et armis viz. baculis cultellis gladiis scutis arcubus et sagittis se assemblaverunt et eadem tenementa vi et armis pred a pred 12. die Januarii hucusque inrurius ipsius T. C. et ipsum T. pretensa tenuerunt et prefat E. K. et L. M. c. inde hucusque extra tenent in dicti Dom. Regis nunc contemptum ac contra formam statuti pred et contra pacrm dicti Dom. Regis c. When the Parties are at issue in their Actions the common Triall thereof in our Law is by Verdict of 12. men who shall be sworne upon the Booke to speake the truth according to their conscience And sometimes the matter shall be tried by the
26 put out not f. 168. l. 27 ad be f. 176. l. 23. r. plaint f. 178. l. 14. r. remove f. 181. l. 2â— where the blank is put demeane f. 183. l 16. 18. r. Law f. 190. l. 10. r. pecuniary f. 191 l 3. r. they f. 192. l. 9. r. judgement f. 198. l. 3. r. if f. 201. l. 30. r. contradict f. 208. l. 11. r. by breach f. 209. â— 31. r. or by f. 215. l. 18 ad say f. 217. l. 9. put out done f. 220. l. 4. r. bought f. 226. l 28 r. payment or brasie f. 228. l. 8. r. forcjudged f. 229. l. 8. r. in f. 230 l. 32. r. mortall f. 239. l. 1. r. rarely f. 240. l. 19. r. assist f. 243. l. 17 â—had f. 256. l. 33. r. grantiog f. 274. l. 17. r. servants f. 288. l. 28. r. tent f. 287. l. 27. r. delivered f. 304. l. 17. r. consideraverit f. 308. l. 3. r. villeâ—â—b l. 7. r. scientes f. 312. l. 4. r. consuram f. 324. l. 28. r. quaerens ibid. l. 28. r. netvi f l 318. l. 2. r. confessed f. 320. l. 1. in the blank put the word marke f. 322. l. 23. r. possessor ibib l. 28. to et per. i. of r. quaerens recaperit f. 325. l. 12. r. bosâ—â— ibid. l. 17. r. 〈◊〉 it ibib l. 13. r. villa l. 25. r. prefato f. 324. l. 11. r. conduction 〈◊〉 l. 13. r. impedit ibid. r. plona ly f. 325. l. 16. r. peâ—lapidem 〈◊〉 l. 17 18. r. jurâ— l. 2â— ad per. The Contents of the first Chapter OF the Originall of the Law Of the comming of the English into this Land Of the first Constitutions Of Offences and their division Of the Crime of Majesty Of falsifying Of Treason Of Burning Of Murder Of Larcine Of Burglary Of Rape Of the Office of the Coroner Of the Exchequer Of inferiour Courts Of the Turnes of Sheriffes Of Viewes of Franckpledges CHAP. I. SECT 1. Of the Offences against the Peace Of the Originall of the Law ALmighty God shewed more love to Man then to any other creature when he made him after his own image and gave him understanding considering that he stood continually ready to fall into sinne by three manner of Adversaries and therefore he gave the Law to force and drive sinners to salvation by earthly punishments That for the pure love of God men would abstain from sinne and thereof made Moses their Teacher which place the Pope now holdeth That Law by Ordinance of our holy Predecessors is divided into two Volumes into the Cannon Law which consisteth in the amendment of Spirituall offences First by Admonitions Prayers Reproofs Excommunication Secondly into the written Law which consisteth in the punishing of temporall Offences by Summons Attachments and punishments or penalties Of the Spirituall Law the Prelates judged and say Princes of the other Law The Law whereof this summe is made is the written Law of the ancient usages warranted by the holy Scripture And because it is given to all in generall it is called the Common Law And because there was no other Law but that were generall Councels and Parliaments in use and that diversly in severall places according to the qualities of the people of divers Countries and Boroughs they were according to ancient priviledges changed for the ease of the people of those places All our Usages and Laws are also layed for the keeping and exaltation of the peace of God and therefore it is to be known That the people are not to be adjudged by similitudes and examples not canonized but by the love of Peace of Chastity of Temperance of Charity of Mercy and of good Works CHAP. 1. SECT 2. Of the coming of the English into this Realme AFter that God brought down low the Nobility of the Brittons who used more force then right he delivered the Realm to the most humble and simple of all the countries adjoyning that is to say to the Saxons who from the parts of Almaine became Conquerours thereof of which Nation there were forty Soveraigns who were Companions These Princes called this Land England which before was called Great Brittainie or Britania Major These Princes after great warrs tribulations and troubles suffered for a long time chose themselves one King to Raign over them to governe God people and to maintaine and defend their Persons and their goods in peace by Rules of Law And at the beginning they made the King to sweare That he should maintaine the Christian Faith with all his power and governe his people by Law without having regard to the Person of any one and that he should be obedient to suffer Right as well as his other people should be And afterward this Realme was divided in Inheritances according to the number of those Companions who then remained in the Realme into parts by Shieres and every one had a Shiere delivered unto him to keepe and defend against the enemies according to every ones estate That is to say Barkeshire Bedfordshire Buckinghamshire Cornwall Chestershire Cumberland Dorset Devonshire Darbyshire Essex Barrickshire Yorkshire Norfolk Notâ—inghamshire Northumberland Northamptonshire Oxfordshire Rutlandshire Suffolk Gloucestershire Cambridgeshire Hertfordshire Herefordshire Huntingtonshire Kent London Leicestershire Lancashire Lincolnshire Middlesex Surrey Southampton Somersetshire Shropshire Staffordshire Wiltshire Westmerland Worcestershire And although that the King ought not to have any Peere in the Land neverthelesse because that the King of his owne wrong if he offend against any of his people not none of his Commissaries can be Judge and Party It was behovefull by the Law that he should have Companions to heare and determine of all Writs and Plaints of all wrongs as well of the King as of the Queene and her Children and of those especiall where one could not have otherwise Common Right These Companions are now called Countees Earles according to the Latine Comites and so at this day are those Shires called Counties in Latine Comitatus and that which is without these Counties belongeth to the English by conquest Afer that time these Companions after the division of the Realme into Shires divided their people which they found scattering about into Centuties and to every Century they appointed a Centeyner and according to the number of the Centuries spake every Shire and to every Centeyner they assigned his part by Metes and Bounds to keep and defend the same with his Century so that they were ready to run to their Armes at all times when the enemies came or other needfull occasion was And these divisions in some places are called Hundreds according to the number of the first people and in some places Tythings or Wapentakes according to the English which is in French taking of Armes These divisions they made whereby the Peace which consisted in charity and true love was kept and maintained CHAP. 1. SECT 3. Of the first Constitutions made by the ancient Kings Of King Alfred FOr the Estate of the Realme King Alfred caused
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
a word fillable or clause as it is of abatable Writs Or because the King dyed before the Writ was brought or because the Writ is false in in the day of the date or because the Commission requireth the association of one who is not present Or because the Writ was never sealed or because the fact was not done within his Jurisdiction or in a place not there determinable or because the Iudge hath not power or Counsance either of the quality or the quantity of the thing CHAP. III. SECT 7. Exception to the Person of the Judge ALthough the Writ be good and the Power be sufficient yet there holds Dillatory Exceptions to the Person of the Iudge as it is said of such Persons who cannot be Iudges CHAP. III. SECT 8. Exception to the time OTher Dillotories there are of time of place of houres of manners c. And note there are three manner of times exempted from Pleas in which no Patries fit in Courts and give Iudgements whereof two are by Law and the other at the Will of the King One time containeth two Moneths viz. August and September which are assigned to gather 〈◊〉 the fruits of Corne c. The other times containeth the Feasts and the Sundaies which are appointed Feastivalls for the honouring of God and the Saints which Feasts are these 1 The day of the birth of Christ of St. Stephen of St. Silvester and the Epiphany and the Purification of our Lady Easter weeke of the Rogations which containe three daies of the Assention of Pentecost of the Nativity of St. John the Baptist of the twelve Apostles of St Lawrence and of the Assumption of the Mother of God and her Nativity of St. Michael and of all Saints and of St. Martin with all such Feasts which all Bishops hold Feastivalls in their Bishopricks for that they are Canonized besides these the dales of Reliques of the Anunciation of the Mother of God and of her Conception and of the invention of the Crosse And note that whereas God Commanded to keepe holy the Sabbath day it was Ordained after the Resurrection that we keepe holy the Sabbath Daies The third time is forbidden by the Kings Proclamation of Houres may arise Dillatories for after the houre of Noone or in the Night no Plea is to be holden CHAP. III. SECT 9. Exception of the place OF the manner arise Dillatorie for in Riding nor in Walking nor in Tavernes nor else where but in knowne places for a Consistory can any Court be holden CHAP. III. SECT 10. Exception to the Person of the Plaintiffe OTher Exceptions Dillatories arise from the Persons of some Plaintiffes as it is of those Persons who are rebukeable of accusations Other Exceptions Dillatories rise from the Persons of the Pleaders or of the Atturnies or of the Essoigners for none can doe that by his Atturney which himselfe cannor doe nor can any be an Essoigner Atturney or Pleader who may not be a Plaintiffe CHAP. III. SECT 11. Exception of Person and of his Custody OR he may take Exception against his owne Person and say that he is not within the Kings Power or if he be imprisoned for a greater offence or Appealed or Indicted of Crime or of a higher Crime Or he may say that he is not bound to Answer thereunto for as much as he is not brought to Judgement by a right course which willeth that no man may be attached by his body when he is distreyneable by his Lands or other goods if not for a personall offence Or he may say that he is not tyed to Answer to any Action which toucheth losse of life or member or right of property untill he be of the full age of one and twenty yeares or more and there are other Dillatories of the Persons of the Answerers which â—ppearebefore CHAP. III. SECT 12. Exception of Summons IN Pleas of Summons he may say he ought not to Answer because the Plaintiffe holdeth no Suit of Distresse nor hath any other manner of proofe present Or because the Plaintiffe hath not found Sureties to pursue his Plaint or because he was not summoned or not reasonably summoned or that he received the Summons by no Free-man or but by one Freeman Or because he was summoned too late or because he was never summoned what thing to answer to or because he was not summnoned against the Plaintiffe CHAP. III. SECT 13. Exceptions of vicious Couâ—â—â— AS Writs which are vicious are abaâ—â—able so also are vicious Appeales as if the Appeales be not brought within the yeare after the Felony done or not before the Coroner or not in the County where the offence was done or not in a right place or for variance or for Omission or Interuption or because the Plaintiffe is batred against others in the same Appeale Sometimes it happeneth that the thing which is robbed or stolne is found in the possession of a true man against whom the Owner of the property or of the possession frameth his Appeale as he who is a Robber of another in which case there is a difference for if it be found that such a thing was given sold or delivered to him without Coliusion in such case the possessor is acquitted or at least Bayleable untill the next comming of the Iustices and when the Iustices come the first possessor thereof is to be Arraigned and he may shew how it came to him neverthelesse if he would vouch one to warrant it he cannot nor deny the Title of his possession but in the name of Voucher he may say that it came to him by lawfull Title as that he bought it in such a Market or in such a place without mentioning of whom and the Sheriffe is thereupon to cause a Jury to be impannelled and if the Answer be found true then he is acquitted and if not then to be condemned as before as if the Plaintiffe had proved the felony And if any one appeare and justifie the thing to be his he is not to be received as a Party but the Cause is first to be tryed betwixt the two first afterwards he may make the estranger a Party if he will and if the case be that the buying was within a place within a Franchise and the Sheriffe returne that he cannot execute the Writ by reason of the Franchise of such a man or of such a place in such case the Sheriffe is to be Commanded that he forbeare not by reason of the Franchise but that he enter and execute the Writ And if the Possessor saith That he came to the thing from a man certaine and he be present and will maintaine the same without Collusion he is to be admitted thereunto and the other is to be discharged and if he deny the Contract this affirmative and this negative are tryable by Battaile or Jury neverthelesse at the Kings Suit the possessor ought make title to the Possession or cleare himselfe thereof for two things are necessary Conscience for us and
holds this Replication Sir such Avowry ought not availe him because he was not a knowne Bayliff in such a Hundred or because he did not any thing in the manner of a distresse as not in a due time nor had any warrant but tooke it in the night time or in such other manner feloniously robbed him and stole c. and in the like manner may a Replication hold against a robbery made by colour of disseisin CHAP. III. SECT 20. Of Burglary TO Burglary he may say That he entred into the Tenements without doing any Felony and not against the Peace as in to his owne demeane and free-hold CHAP. III. SECT 21. Of Rape IN Appeale of Rape he may deny the Felony and say that he ravished not her against her wil but that she assented and that appeareth because she conceived by him at the same time and there is no presumption that she was ravished against her will by fouling of her Garments nor shedding of blood nor Hue and Cry made or other manner of violence offered CHAP. III. SECT 22. Of Imprisonment TO the Appeale of Imprisonment he may say that he did it by force of a rightfull Judgement of such a Iudge but to that Plea is this Replication good that after there came a Warrant to him to deliver him he kept him in prison for the time named in the Appeale CHAP. III. SECT 23. Of Mayhem and Wounding IN Mayhem he may demand the View thereof for he cannot lawfully complaine when there is no Mayhem to be Iudged of and of Appeale of Wounding in the same manner By the death of the King all Pleas are suspended all Goales opened no Iudge Bayliffe or other Officer ought to entermeddle therewith for want or warrant and all Out-lawes and all Waives and those who have forjured the Realme and all banished Persons used then to returne except those who were exiled and banished for ever and if any recovered before for that he could not have Dett if he were not justâ—fied to the Peace and if he be brought to Iudgement and if he be accused of Outlawry he may say that he is discharged of the Outlawry by the Kings grant Or he may say that the Outlawry ought not to prejudice him because he was under the age of 2. yeares at the time of the Outlawry and therefore that he was not Outlawed for the felony Or because the felony was not done in such a County or because he was not Out-lawed in England or not within the Kings Dominion where the Writ runneth for an Outlawry prouounced against a man in the Bishoprick of Durham or elsewhere in the Land where the Kings Writ doth not run shall prejudice as one in the Land where the Kings Writ runneth Nec è contra Or because the felony was not done in the time of this King or not since the last Eyre in that County Or because the Processe of the Outlawry was false by a false Warrant or without any Warrant or because he lay sicke and was Essoigned De malo lectâ— or because he is alive for whose death he was Out-lawed or because he was Imprisoned the day of the Outlawry or because he was in the Kings service in the Holy Land or within the Realm for the profit of the Common-wealth Or because he had the Kings Protection or because he was a Mad-man or an Idiot or Deafe or Dumbe or professed in Reliligion in which cases if he pray to be received to Answer he is to be received And the Plaintiffe was to be demanded and it was to be proclaimed that if any one could shew why he should not be enlarged that he appeared at a certaine day All Parties in Iudgement are necessary to be present and they are to have Oyer of the Writs of the Originall the Plaintiffes Commission the quantity or the quality of his plaint And the Disseisor or their Bayliffes every one of them for himselfe may say in this manner he may Answer and say for himselfe that he hath not done any wrong or disseisin nor hath any thing in the Tenements put in the Plaint and he may so Answer and so of others till it come to the Tenant in whose name the disseisin was and he may Answer and say that he is not in by disseisin but is in by D. who infeoffed him who is not named in the Writ and it may be that D. entred by E. and so there may be many according to divers Feoffments betwixt the first Disseisor and the Tenant in which cases no Voucher to warranty holdeth place for a Personall Trespasse and therefore every one is well to looke not to make a Contract of a vicious thing and that he take Caution and such Surety in the Contract that he may have a recourse to recover if he lose the thing and therefore the Lords used so keepe their Mannours that none could enter by Intrusion Disseisin or by other vicious bargaines not otherwise unlesse the bargaines were entred in their full Courts whereby the Lords could not have received their enemies into their Mannours nor have taken their Homage against their wills nor any used to enter before they had found Sureties to restore to the Purchasor or his Heires the value of the thing if by rightfull Iudgement it belonged to him after his thing lost for the offence of Allienation or for his power of this warranty To the principall Disseisor it belongeth to have a regard if the Plaintiffe put more into his Plaint that he Answer not but to that which he may avowe he may say that there is varience betwixt the Originall and the Commission or that the Writ is vicious as it is in misprision of names or fit-names Of names as Renand for Harrand Margery for Margaret and such like or he may say the Writ is faulty for want of Sirnames or if the names of Dignity be omitted as if a Bishop Abbot Prior or other be disseised of any thing in the right of his Dignity and he makes his plaint simply of a Trespasse done onely to his Person and not to his Church or Dignity in this manner A. complaines to you wherea he ought thus to make his Plaint A Bishop of London and so it is of Disseisors Or he may say that the Writ is vicious because the Plaintiffe who is solely in the Plaint hath no cause of Action but with another who is not named in the Writ Or it may be faulty if it be not contained in the Writ Dissersivie eum where it ought to be Dissersivie eam or eos where it should be ewn or eam etè contra It is contained in the Writ wrongfully and without Judgement c. and to that one may plead not wrongfully but rightfully denying any other force And note that one may be disseised wrongfully and without Judgement and wrongfully and by Judgement as it is of those who are disseised of their Free-holds by the Judges who have no Iurisdiction and neverthelesse
adjudge men to be put out of their Possessions and one may be rightfully and without Iudgement as in the cases aforesaid and further rightfully and by Iudgement and thereof rise Exceptions and so not without Iudgement and yet by Iudgement and that may be either by the Iudgement of Iudges Commissaries or Iudges Ordinaries as were the Suitors Againe Writs may be vicious by misprision of the names of the Townes as if a Hamlet be named for a Towne or if the Towne be not right named or if the Towne be not distinguished where there are two Towne of like name in the same County And from these words after the Term may arise Exceptions as if not the Term yet he might have distreyned for or the Arrerages of his Penson or speciall Obligation exceptthat he had any wrong Or because another Writ for the same Action is yet depending betwixt the same Parties or he may say that he wrongfully complaines whereas at his one Plaint he lost the same Tenement by a lawfull Iudgement against him Or that he hath released or quit-claimed all his Right or to the same purpose or otherwise rattified his estate or because at another time he withdrew his Action before such Iudges Eor the helping of the peoples memories are Escripts Charters and Minuments very necessary to testifie the Conditions the points of Contracts for by the Stature of Lenfred who ordained that one might deny Contracts by waging of his Law and that Plaintiffes prove their Writings otherwise their Charters which are not denied not to be shewed by Iurours in England for Forraigne Contracts or of places Enfran chised or elsewhere where the Kings Writs run not by Coppies or Collation of the Seales of others or by Iurours or by Battaile according to the Plaintiffes Action To give matter and way to Exceptions in the aide of those who are to Answer one is to know the end and limitation of Actions and of Pleas so that the Pleas may have an end and therefore Prescriptions were ordained whereof Thurmond Ordained That Criminall Actions for revenge should cease at the yeares end if they were not brought before and the same time he appointed in all Actions for Wrecks Estraies Waife and of things lost in Personall Actions Venialls be appointed the Terme after the last Eyre in those parts in reall Actions and Mixt he appointed forty yeares neverthelesse as to the King in the right of his Crowne and to a Francke estare Nullum tempus occurrit◠To an Action of Accompt he may say that he never was his Receiver not Administrator of his goods nor of his monies whereby he was bound to render him any Accompt and that he received them of him under the title of Buying whereof he gave him a writing to surrender at a certain time Or thus notwithstanding he was his Receiver or Administrator in a Franchise or elsewhere out of the Realme or in a Priviledged place whereby he is not bounden to give him an Accompt within the Realme nor where the Kings Writ runneth or in guildable or è contra Or he may say that the Writ is vicious by false supposition and falsly supposeth the Defendant to be a Fugitive and besides not a Free-holder within his Bayllwick to whom the Writ is sent Or he is not bound to yeeld him any Accompt for that he was never Receiver of his owne hand or of his daily Receipt he gave him a daily Accompt or that he disbursed nothing nor bought any thing but in the Plaintiffes sight or of some of his Or for that the Plaintiffe by Tallie and other Roles hath discharged him of so much in value as the Defendant was to give an Accompt for Or because he hath made him an Acquittance thereof or because he was never Guardian of his Inheritance as his Guardian but was Guardian during the time of the thing for his owne proper use or it belongeth to him that is Guardian of the Lands in the right of his Fee whether it be Socage or other To the Action of Villinage he may say That he is a Free-man and that he hath proved the same at another time by a Writ of Libertate probanda that he is quit from any Challenge by the Plaintiffe for ever if he have no reasonable Counter-plea against it And as to the seisin of Villaine Services he may say That he did those Services wrongfully by Extortion and duresse of him and his Baylisses or for the service of Villinage and Villaine Land which he held of him and not by service of blood and there are two other things the one that if the Defendant can shew a free Stocke of his Ancestours either in the conception or in the birth the Defendant hath alwaies been accounted for a Freeman although his Father Mother Brother and Cousens and all his Parentage acknowledge themselves to be the Plaintiffes Villaines and doe restifie the Defendant to be a Villaine The other thing to be noted is That no more then the long Tenure of Copy-hold Land maketh a Free-man a Villaine the long Tenures of Free-hold maketh a Villaine a Free-man for freedome is never lost by prescription of time There are many manner of prooffs by the same Pleas sometimes by Rewards sometimes by Battaile sometimes by Witnesses sometimes by the Consessions of the Adverse parties 1 By Record as in case where the parties doe agree together upon some enrolement or to the Iudgement of some Iudge Ordinary or Assigned 2 By Battaile for upon warrant of the Combate which the Iudges tooke betwixt David for the people of Israel of the one party and Goliah for the Philistims on the other party is the usage of Battaile allowable by the Law in England so that the proofe of Felony and other cases is done by combate of two according to the diversities of the Actions for as there is a personall Action and a reall so there is a personall Combate and a reall personall in personall Actions reall in realls and these Combates are differing in this that in a Personall Combate for Felony none can combate for another neverthelesse in Actions Personalls Venials it is lawfull for the Plaintiffes to make their Battailes by their bodies or by loyall Witnesses as in the right of reall Combates because that none can be Witnesse for himselfe and no man is bound to discover his reall right and although they make these Combates for the Plaintiffes by Witnesses the Defendants neverthelesse may defend their owne right by their owne bodies or by the bodies of their Free-men and further they differ for as much as in Appeales none can Combate for another but it is otherwise in reall Actions for if that one of the Parties be hurt so as he cannot Combate his eldest Son may wage the Battaile for him The Battaile of two men sufficeth to declare the truth so that the Victory is holden for truth Combates are made in many other Cases then in Felonies for if a man hath done
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
or otherwise retaine him in his service 90 It is abuse that Villaines are Frank pledges or Pledges of Free-men 91 It is abuse that others suffer Villains to be in their Viewes of Franck-pledges 92 It is abuse that the Lords suffer their Villaines to plead or be impleaded without them for a Villaine is not Amerceable in any other Court because he can lose nothing as he who hath nothing proper of his owne 23 It is abuse to hold Villaines for Slaves and this abuse causeth great destruction of poore people great poverty and is a great offence 94 It is abuse that a man is Summoned who is no Free-holder 95 It is abuse to Summon a man elsewhere then in the Land contained in the demand if it containe Land 96 It is abuse that a man travaile at his owne Charges by any Summons personall 97 It is abuse that a Justice or other make a Summons who is not a Free-holder within the County 98 It is abuse to Summon men without giving them reasonable warning upon what to Answer 99 It is abuse that false Causes of Essoignes are admitted for as much as the Law alloweth falsity in no case 100 It is abuse that an Essoignor is admitted in a personall Action to the Defendant since one is Maine-prised to appeare in Court by Maine-prisors 101 It is an abuse to receive an Essoigne cast in by an infant within age 102 It is an abuse to receive an Atturny where no power so to doe is given by Writ out of the Chancery 103 It is abuse to receive an Atturney where the Plea is not to be judged in the presence of the Parties if not in case where one maketh an Atturney generall 104 It is abuse that none can make an Attuoney in personall Actions where Corporall pnnishment is to be awarded 105 It is abuse to receive Exceptions in Judgements if they be not sufficiently pronounced for from the Order of the Exception early ariseth cleare Judgement 106 It is abuse to allow a warrant of Voucher to a Theife or in other personall Action 107 It is abuse that Judges Assigned shew not the parties pleading their Warrants or of his power when they demand it 108 It is abuse that Justices and their Officers who kill people by false Judgement be not destroyed as other murderours which King Alfred caused to be done who caused forty foure Justices in one yeare to be hanged as murderours for their false Judgements He hanged Darling because he had Judged Sidulf to death 1 Darling for the retreat of Edulfe his Son who afterwards acquitted him of the fact He hanged Segnor 2 Segnor who judged Vlfe to death after susfficient acquittall He hanged Cadwine 3 Cadwine because that he judged Hachwy to death without the consent of all the Jurours and whereas he stood upon the Jury of twelve men and because that three would have saved him against the nine Codwine removed the three and put others upon the Jury upon whom Hachwy put not himselfe He hanged Cole 4 Cole because he judged Jve to death when he was a Mad-man He hanged Malme 5 Malme because he judged Prat to death upon a false suggestion that he committed the felony He hanged Athulf because be caused Copping to be hanged before the age of one and twenty yeares 6 Athulf He hanged Markes because he judged During to death by twelve men who were nor sworne 7 Markes He hanged Ostline because he judged Seaman to death by a-false Warrant 8 Ostline grounded upon false suggestion which supposed Seaman to be a person in the Warrant which he was not He hanged Billing 9 Billing because he judged Leston to death by fraud in this manner he said to the people Sit all yee here but he who assisted to kill the man and because that Leston did not fit with the other he him commanded to be hanged and said that he did-assist where he knew he did not assisted to kill him He hanged Seafoule because he judged Olding to death 10 Seafoule for not answeriâ—g He hanged Thurston because he judged Thurguer to death by a verdict of Enquest 11 Thurston taken Ex officio without issue joyned He hanged Athelston 12 Athelston because he judged Herbert to death for an offence not mortall He hanged Rombold because he judged Lisilâ—ld 13 Rombold in a case not notorious without Appeale and without Endictment He hanged Rolfe 14 Rolfe because he judged Dunston to dye for an escape out of prison He hanged Freburne because he judged Harpin to dye 15 Freburne whereas the Jury were in doubt of their Verdict for in doubtfull causes one ought rather to save then to condemne He hanged Seabright who judged Aihebbrus to death 16 Seabright because he condemned one by a false judgement mortall He hanged Hale because he saved Tristram the Sheriffe from death 17 Hale who took to the Kings use from another goods against his will for as much as any such taking from another against his will and Robbery hath no difference He hanged Arnold because he saved Boyliffe 18 Arnold who robbed the people by colour of Distresses whereof some were by selling Distresses some by extortion of Fines as if betwixt extortion of Fines releasing of tortious Distresses and Robbery there were difference He hanged Erkinwald because he hanged Frankling 12 Erkiu wald for nought else but because he taught to him who vanquished by Battaile mortall to say the word of Cravant He hanged Bermond because he caused Gâ—â—bolt to be beheaded by his Judgement in England 20 Bermond for that for which he was Outlawed in Ireland He hanged Alkman because he saved cateman by colour of Disseisin 21 Alkman who was attainted of Burglary He hanged Saxmond because he hanged Barrold in England 22 Saxmond where the Kings Writ runneth for a fact which he did in the same Land where the Kings Writ did not run He hanged Alflet because he judged a Clerke to death 23 Alflet over whom he had not cognisance He hanged Piron because he judged Hanting to Death 24 Piron because he gave judgement in Appeale before the forty daies pendant the Appeale by a Writ of false judgement before the King He hanged Diling because he caused Eldon to be hanged 25 Dilling who killed a man by misfortune He hanged Oswin because he judged Fulcher to death out of Court 26 Oswin He hanged Muclin 27 Muclin because he hanged Helgrave by warrant of indictment not speciall He hanged Horne 28 Horne because he hanged Simin at daies forbidden He hanged Wolmer because he judged Graunt to death by colour of a Larcine of a thing 29 Wolmer which he had received by title of baylement He hanged Therberne because he judged Osgot to death for a Fact 30 Therbern whereof he was acquitted before against the same Plainetiffe which Acquittance he tendred
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
time in case where the right Heires fly from their Lords or cannot or will not doe their homage In the points of Wards it is defective for as much as no difference is expressed between the heires Males and the heires Females for a woman hath her age when she is fully of fourteen yeares and the seaven yeares besides were not ordained first but for the Males who before the age of one and twenty yeares were not sufficient to beare Armes for the defence of the Realme And note that every Guardian is chargeable to three things 1 That he mainetaine the infant sufficiently 2 That he maintaine his rights and inheritance without waste 3. That he answer and give satisfaction of the Trespasses done by the infants The defect of the point of Disparagements appeareth amorgst the Statutes of Merton And the default of Franckbenches and Widowes in the same manner in which point it is sufficiently expressed that no woman is dowable if she have not been sollemnly espoused at the doore of the Monastery and there endowed In the point which requireth that the City of London have its ancient Liberties and her free Customes it is to be interpreted in this manner That the Citizens have their Liberties whereof they are inherited by lawfull Title of the gifts and confirmations of Kings which they have not forfeised by any abuse and that they may have their Liberties and Customes which are sufferable by Law and not repugnant to the Law And where it is said of London that the interpretation be as well of the Cinque Ports and of other places The point which forbiddeth tortious Distresses for Fees is Covenable in it selfe but the same shal not grieve any man of the Realme who hath Tenements that it is no Trespasse in him or by his Ministers as appeareth in the Chapter of Nativo habendo The point which forbiddeth that Common Pleas follow not our Court is to be interpreted in this manner That the people shall not travail to Sue in the Kings Household in the Country as they used to doe But this point willeth that the Plaintiffes have Commissions to Sheriffes to Lords of Mannours and to Justices assigned so that right be done to the parties in certaine places where the Parties and Jurours may be the lesse travailed Although it be that the Chapter command that Petit Assizes be taken in their Counties being made for the ease of Jurors yet it is disused in as much as the Justices make the Jurours to come from the furthest marches of the Counties whereas it were better that the Justices Rod from Hundred to Hundred then so to travaile the people The point of Amercements is misused by Iustices Sheriffes Bayliffes Stewards Cap. 14. and others who amerce the people in certaine in this manner putting such a one to so much for a Contempt or other Trespasse withont a personall Trespasse and without the afferment of the people sworn to it and without specifying the manner and the quality of the Contempt Againe where the Afferrours ought to be chosen with the assent of those who are amerced and in a common place the Lords make the Afferrours to come to their houses to asser the Amercements according to their pleasures The point which forbiddeth that Rivers be defended is dis-used Cap. 16. for many Rivers are now appropriate and gotten and so put in defence which used to be common to Fish in in the time of King Hen. 1. Cap. 17. The Chapter which forbiddeth that Sheriffes Constables Coroners nor Bayliffes shall hold Pleas of the Crowne seemeth not needfull for appeales of felony are not here to be brought before Coroners and the exigents and Iudgements pronounced and therefore this point had need to have had more words to have expressed the meaning of it For the end of the Chapter of the moveable good of the dead it appeareth that the Action accrueth to the Widowes and to the Children to demand their reasonable parts of the goods of their Father taken away That which is forbidden to Constables to take is forbidden to all men Cap. 19 20. in as much as there is no difference betwixt taking from another against his will and liberty whether it be Horses Victuals Merchandizes Carriages or other manner of goods The Chapter for holding the Lands of Felons for a yeare and a day is out of nse for whereas the King ought not to have the wast by Law or but the yeare in the â—â—ame of Fine for safeguard of the land from spoile the Kings Oâ—â—cers take both The defence of the Precipe is not holden in that they doe it without Writs of possession of Farmes every day that the Lords lose the Cognizance of their Fees and the advantages of their Courts The point which commands that one Measure be throughout the whole Realm and one Weight is dis-used by Merchants and Burgesses using for the pound the old Weight of twenty shillings of right Assize and also of Ells and other measures The defence which is made of the Writ De odio atia that the King be not Chancellor nor take any thing for granted the VVrit ought to extend to all remedial VVrits and the same VVrit ought not extend onely to the felonies of Murder but it ought to extend to all felonies and not onely in Appeales but in Endictments The point which forbiddeth that no Bayliffe put a Free-man to his Oath without Suit is to be understood in this manner That no Justice no Minister of the King nor other Steward nor Bayliffe have power to make a Free-man make Oath without the Kings Command nor receive any plaint without Witnesses present who testifie the plaint to be true The point where the King granteth that he will not disseise nor imprison nor destroy but by lawfull Iudgement which overthrows the Statute of Merchants and other Statutes is to be interpreted thus that none be arrested if not by warrant grounded upon a personal Action for if the Action be veniall no Imprisonment is justifiable if not for default of Maine-pernors And so it appeareth that none is imprisonable for Debt And if any Statute be made repugnant to this point either for the Kings Debt or for the Debt of any other it is not to be kept That none be Outlawed is to be meant if not for mortall felony from which one is saved by the Oath of Neighbours ex officio as it is the use in Eyres and therefore that destroyeth the Statute of Outlawry of a man for arrerages of Accompt and all other the like Statutes and that which is said that none be exiled nor destroyed is to be interpreted in this manner that every one have an Action to appeale all Persons all Suitors all Assessors who destroy men against the right course and against the rules of Law On the other part where the King forbideth that none be disseised of his Freehold of his Liberties or of his free Customes is thus to be
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
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
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
the which the Witch caused Samuel to rise who warned Saul of his death Another kind is Piromancy which is done by fire Another is Areomancy which used to be done by signes in the Ayre Another is Hydromancy which is done by signes in the water Another is Geomancy which is done by signes in the land Another is Negromancy which is done by death by making the dead to speake Another is South-saying which was done by signes in the entrailes and bowels of Birds On the other part some Diviners used to put trust in Lots some in Songs some in Verses of Psalmes some in carrying Gospel and Charmes about their necks some in Enchantments and Spels some in signes in the entrailes of beasts and in the palmes of the hands Some were called Mathematitions and Magij and Divined by the Startes Others were called Arioles who tooke their answers from the Divell by evill men Others South-sayers who numbred nights and daies and houres whereby they ordered their businesse There were many other kinds all which manner of Divinersate to be by the Word of God himself and authority of the Church to be excommunicated and sobidden as much as Mahometry and things against the true Faith And this S. Augustine proves by many Reasons hence it is that they who travell to Witches or Diviners to know things to give that to the creatures which belongeth to God alone Wherefore these wicked doers are to be removed from the society of Gods holy people so that no good Christian be taken with their Art nor partner in their sins CHAP. 1. SECT 5. THe Crime of Majesty or offence against the King is neighbour to many other offences For all those who commit Perjury whereby every one lyeth against the King falleth into this offence As the Kings Ministers who are sworn to doe Justice and forswear themselves in any thing so those who disseise the King of any of his Franchises or of any manner of Right which belongeth to the Crowne by Occupations or Purpestures or in any other manner although it be no mortall offence Into Perjury fall all those Subjects of the King who appropriate to themselves Jurisdictions over the King and of themselves make Judges Sheriffes Coronours and other Officers to have Counsance of Law Into Perjury against the King fall all the Kings Subjects who appropriate to themselves Jurisdictions of Counties Honours Socknes Retorna brevium or any thing which may fall to his Inheritance as Wards Escheates Reliefs Suits Services or Marriages Faires Markers Enfang thef Out Fangthef Waife Estray Treasure found in the ground Warren in their owne lands or in the lands of others Tole Pavage Pontage Chinueage Murage Carriage or other the like Customes Into Perjury against the King fall those the Kings Subjects who take Abjurations of Felons and Fugitives and are no Coroner nor warranted by the King so to doe and those who put out any Indicted or Appealed of any Crime out of the Roll of the Coronour and those Coronours who oftner then once receive Appeale of Aprovers or procure that a man who is innocent be appealed by an Approver And those who have detained Appeales of Approvers of forraign Acts or whereby any forraigner is Appealed And those Coronours who wittingly suffer the goods and chattels of Fugitives to be lesse valued then they ought to be of right Or conceale them in part or in all or detaine them to their owne uses to the damage of the King or deliver them elsewhere then to the Townes or for lucre have taken more then they should in damage of the Townes Or suffered their Servants to have the garments or other things which are to be seized for the Kings use or the garments of the dead or delay to doe their office through covetousnesse Into Perjury against the King fall those Officers who pardon Fines and Amercements which belong to the King or any manner of penalty either corporall or pecuniary without speciall warrant And those Officers who by Summons and Ad. journments make the people to travaile in vaine as to Goale deliveries Assizes Enquests or otherwise and all those Subjects who beare Armes against the King or run away from his lawfull Army or Battaile And those Ministers who unlawfully stop or counsell the people that they goe not into War with the King or that they are not bound to goe where they have reasonable summons and that the people be not made Knights but according to the Statutes of the Realme Into Perjury against the King fall all those the Kings Subjects who hold Plea of Withernam and have not returne of Writs or hold Pleas of Distresses or of any other thing which belongeth to the Kings Jurisdiction only without the Kings speciall Commission or hold Plea in case of life of imprisonment of blood-shed of false Judgements or of any thing disavowable of right without the Kings Writ or Commission And all those the Kings Ministers who maintaine false Actions false Appeales or false defences Into Perjury against the King fall those Ministers who deny to Plaintiffes originall Writs possessory Attaints or of Formedon or otherwise doe delay their Rights and those who wrongfully doe delay or disturbe right Judgements and those who wrongfully favour wrongfull Judgements and all those who use their Priviledges or Liberties wrongfully or too largely contrary to their knowledge Into Perjury against the King fall those Ministers who receive Fines to other uses then to the Kings use for Treasure trove for Wrerk Waife Estray Alliens for blood-shed or impriâ—onment Withernam Reddissesin or Dissesin or forsweare themselves to resist that a lawfull Judgement have not execution for Usury perpresture upon the King or for any other thing whereof the Counsance doth belong to the King And those Receivers who pay not the Kings debts as they ought to doe and are enjoyned or render to him part for satisfaction of the whole and doe not pay the King the rest Into Perjury against the King fall those who Charge the King wrongfully And those who spend the Kings Quarries Timber or other things otherwise then in the Kings Service without sufficient warrant Into Perjury against the King fall Escheators who make wast of the Kings Wards or in his Fees or unlawfully take Venison Fish or other goods and by their authority seise the goods of the dead and for gaine release them or endow Widowes to the Kings losse or make hurtfull extents for the King acompting for lesse then the very value to the King Ot willingly suffer possessions to remaine in Mortmaine which ought to be seized into the Kings hands and whereof the King ought to have the profit or which receive more of their Bailiwickes then they answer to the King ot who wittingly suffer Feoffements of Lands or of Advowsons of Churches prejudiciall to the King or who suffer them to alien Wards or Marriages to the Kings prejudice or suffer the ages of infants to be proved in damage or to the
Kings prejudice take Fines for Wards or Marriages without Writ or deceive any one by colour of their Office or leavy money upon any upon his owne proper Amercement Into Perjury against the King fall Sheriffes who too high charge the People by a surcharge upon the people of Horses or of Doggs and who leavy Fines or Amercements for escapes of Prisoners or for any thing against Law before the escapes be adjudged by the Justices in Evre and who increase or diminish Fines or Amercements beyond the Wills of the Afferrors or Jurours and those Officers who conceal people deliverable to prison and doe not bring them to Judgement Into Perjury fall all those Officers who are reproveable for the sufferance negligence or consent to the alienation of the franchises or of the right of the King wrongfully or to the occupying or withholding of them And all those who elsewhere change old money which is forbidden for new then at the Kings change CHAP. 1. SECT 6. Of Falsifying FAlsifying is done in two manners by falsifying the Kings Seal his Mony His Seal may be falsifyed in many manners It is alwaies falsifyed when a Writ is sealed whereof the ingrossing and the matter or the forme is not justifiable by the King nor by the Law nor by the lawfull Customes of the Realme which is not to be intended of every Writ abatable It is falsifyed if a man scale therewith after that the Chancellour or other Keeper thereof hath lost his Warrant either by death or in any other manner It is falsifyed when a Writ or a Patent passeth against the Kings forbidding It is falsifyed by those who seale by ill Art or by Warrants not justifiable and it is falsifyed by those who seale and have not authority to seale Of falsifying the Money The Money was Ordained round and quarterable and use so to be made that the outward eircle was apparant through the whole otherwise it was not to be received and that the 1. l. was of 12. ounces of sine Silver and it was assented unto that the King should have 6d for the sealing of every Writ and for the coynage of every pound of money 12.d and no more of monies currant in the Realme The money is falsifyed by him who by evill covetousnesse maketh it not justifiable and it is falsifyed by those who make it and have not authority or warrant so to doe It is also falsifyed by those who for evill gaine put more alay in it then of right there ought to be And it is falsifyed by all those who make it without the Kings coynage And it is also falsifyed by all those who by ill Art counterfeit it and by those who clip or wash it for ill gaine CHAP. 1. SECT 7. Of Treason TReason is not done but betwixt Alies who may be by Blood Affinity and Homage Oath and Service By blood as if one of Parentage doe any thing to another of his blood which is the cause of his death or dis-inherison or to losse of homage for the quality of Treason is the taking away of life or member or decrease of earthly Honour ot the increase of villanous shame And in the same manner is this offence betwixt Affâ—â—â— as betwixt Sisters Sonnes in Law and Parents sot as cosinage is a line of divers percenets discending of the same Stock and drawne from carnall Copulation In like manner Affinity is a neernesse of Persons discending from carnall copulation where there is no blood and as this Office is done betwixt Affines and Cousens so it is also betwixt Allies Alliance is sometimes by Service Homage and Oathes Which happeneth sometimes by reason of Fealty issuing from the service of the Fee sometimes issuing from the Oath of Service of the body and as one of the Allies Parents or Affines commit this offence against the other in the same manner may they doe against them By Service as if one who I have rewarded to doe me Fealty and be seized in demeane of a Mannour or other gift or service or Courtesie falsifie my Seale or ravish my Daughter or my Wrie or the Nurse or the Ant of my Heire or doth any thing which is the cause of my death by a Feionious compassing the same or to the great dishonour or damage of my body or of my goods or discovereth my Counsell or my Confession which he is charged to conceale And by reward is meant Fee Possession Robe Church Rent or other gist and meat and drinke curing the service And as such a one may commit Treason against me who taketh from me so much that he is seized in the same manner I may offend against him by such Action or demand he shall have against me as I may have against him CHAP. 1. SECT 8. Of Burners BUrners are those who burne a City Towne House Men Beasts or other Chattels Felloniously in time of peace for hatted or revenge And if any one put a man into the fire whereby he is burnt or blemished by the fire although he be not killed with the fire neverthelesse it is an offence for which he shall dye Under this offence sometimes fall those who threaten burning CHAP. 1. SECT 9. Of Man-slaughter MAn-slaughter is the killing of a man by a man for if it be done by a beast or by mischance it is not Man-slaughter This offence is two waies either by the Tongue or by the Act. By the Tongue three waies by Counsell Commandement or Deniall By Counsell as he who counselleth another to kill and so also is it by Commandment By Deniall as he who denieth sustenance to a man By Act many waies sometimes by Striking by Poisoning by Necessity by Will By striking as it afterward appeareth in the Appeales By poison or venoming as by secret felony and fained friendship giving poison to another to eate or poisoneth or envenomed any thing whereby a man is presently or in time killed Or by Imprisonment as he who keepeth the body of a man in prison by colour of Law till he dyeth By Chance as by casting or drawing of a Vessell or other thing and some one is killed by mischance or by the falling of a Tree and other the like cases But you must distinguish where the killing is justifiable by Law for there it is no offence and when he doth not that which he ought to doe and the party useth all the diligence which he may crying out and defending himselfe for then he doth not greatly offend but he who doth not so doe he offendeth mortally By necessity where in you ought to distinguish whether the necessity be avoidable or not and if it be avoidable it is a mortall offence By Will and that may be either of himselfe or of some other person Of himselfe as in case when people hang themselves or hurt themselves oâ— otherwise kill themselves of their owner felony Of others as by beating famine or other punishment in like cases all are Man-slayers Also this