Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	estate_n	life_n	tail_n	3,334	5	10.1071	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A59386	Rights of the kingdom, or, Customs of our ancestors touching the duty, power, election, or succession of our Kings and Parliaments, our true liberty, due allegiance, three estates, their legislative power, original, judicial, and executive, with the militia freely discussed through the British, Saxon, Norman laws and histories, with an occasional discourse of great changes yet expected in the world.	Sadler, John, 1615-1674.	1682 (1682)	Wing S279; ESTC R11835	136,787	326

in affirmance of the Common Law As appeareth not only by Bracton and Fleta but by Glanvil who did write before the Charter and by all the Saxon Laws which were the samplers to King Henry the first But how tender our Law hath always been in matters that concern Estate or Liberty may well appear by all the Executions grantable for Debt or Dammages The Merchant and the Staple Statutes are and were by Statute not by Common Law They seem as sweeping Rain and Storms that drive away the Body Goods and Lands in Fee at time of Recognition or accrewing since but none in Tail but during life of him that was the Cognisor Nor Copyhold or Goods or Leases for a Term of years but only what was in possession at the Execution done They are fore-known and therefore may be well avoided by all such as do not choose their own destructions And there is a tender care in Law not only of exact and punctual Recognitions and recording of them but in case of forfeit upon a Certiorari sued forth from the Chancery and not before return thereof a Capias shall be granted on the Statute Merchant for the Body only if it be a Laic and if Laic be not found and so returned into the Kings Bench or Common Pleas then on pauze of divers months the exigent may be awarded But in Statute Staple on the first Return of Certiorari may the Execution issue forth returnable into the Petty Bag of all it seems the worst in this But the Merchants Court Aequitatem summam desiderat although a kind of Peepoudres as Bracton and the Notes on Fortescue Upon a Recognizance a Capias doth not go before a Scire Facias be Returned into the Chancery Then a Capias or a Fieri Facias or an Elegit at the choyce of Cognisee as in other Common Judgements And of these the fieri facias is the mildest and the oldest by the Common Law It toucheth Goods and Chattels only such as are the Parties Own not lent by or Leased to another For although the Sheriff find them in the Parties Use and full Possession as he thinks yet may he be a Trespasser in taking such and so may run the hazard of an Action ere he be aware Nor did the old Levari facias seize the Land but Corn or that which grew thereon An Elegit hath its Name from his Election or his Choice that sues it out Who so concludes himself from other Executions This did come by Statute not by Common Law and toucheth Half the Fee and all the Goods but yet with Salvo to Contenement he must not lose his Oxen or his Cattle for his Plough For then he cannot live and keep his Family So Tender is our Law for all Estates and Livelihood Nay this Extent must not be made by Sheriffs who may not divide a right but by a Iury of Inquest And so must be Returned and preserved on Record as the first Capias with all mean Processe must or else it shall be nothing worth as may appear at large in the fourth and fifth parts of the great Reports Hoes and Fulwood with divers other Cases And the second of Westminster that giveth this Elegit doth require both Extent of Lands and prize of Goods to be Reasonable that is by Inquest of Twelve and so returned of Record As is cleared in the Commentator See also Littletons Parceners A Capias ad Satisfaciendum taketh the Body but it is by Statute only for it did not lye by Common Law in Debt or Dammages but only where the Original Action was for Forceable Trespass Vi Armis Which is Now crept into every Trespass But of this Sir William Herberts Case in the third part of Reports It may be forbidden again by Statute as it was first granted and that justly too for ought I know if other course be taken for the payment of Just and Reasonable Debts For the Capias as now managed is a great mischief and divers times to the utter ruine of the Debttors whole Family And yet but very little advantage to the Creditor except the Debtor escape and so the Sheriff come to pay the Debt or except he dye in Prison and the Plaintiff get an Elegit for the Debtors Goods at his death or half his Fee-Simple which he had at the time of Judgement or after it For an Action for Debt or Dammages doth but respect the Person and the Law attendeth not what Lands were enjoyed at the Original or before the Judgment But an Action brought against an Heir may aim at Land and so may charge it although he Aliene while the suit dependeth Neither shall I need to add that all these Executions must be sued out For this is required by Law except in the Kings Case within one year and a day after Judgment Yet they may be continued after and by a scire facias be renewd or repealed till the Judgment have Full Execution But this was also given by Statute and to this may the Debter plead although he cannot plead against an Execution Yet it may be suspended by a Writ of Errour and Recognizance according to the Statute of Iames and 3 Caroli And without a Writ of Error after judgement if the Defendant have matter to discharge him of the Execution still the Law is open for him And he may relieve himself by a Writ of Audita Querela And in case of Elegit as soon as the Debt is satisfied the Debtor may enter on his Lands again and if he conceive the Creditor satisfied by casual profits he may bring a scire facias upon which the Creditor may clear how much he hath received of the Debtor's Estate Unto this occasional discourse I shall only add that grand maxime of our Law that Executions ought to be more favourable than any other Process of Law whatever Of which the great Judge upon Littletons Releases and the second of Westminster in Edward the First And for Executions for the Kings Debt's restrained by the great Charter I have little to add to the Comment on the eight chapter of that Charter But the twelfth of Articuli super Chartas hath afforded a Writ commanding the Sheriff to accept of Sureties else an Attachment lieth against him or the party may bring an Action against the Shetiff that refuseth Sureties It is a maxime in Law that a mans House is his Castle so that the Sheriff cannot break it open for an Execution But upon a Writ of Seisin or Possession the Sheriff and other Officers upon suspicion of Treason or Felony may break open an House and so also in common Executions where the King is a party But in all such Cases first the Sheriff must request the door to be opened And the First of Westminster doth also require solemn demand of Beasts driven away into a Castle or Fort which is a kind of vetitum nomium which may be regained By Withernam Which Case I cite the rather because of

Bishops Abbots Dukes Senators Populo Terrae Lords and Commons It was Decreed and Enacted That Kings should be Elected by the Parliament à Sacerdotibus Senioribus Populi Eligantur and that being so Chosen they should have prudent Councellers fearing God Consiliarios Prudentes Deum Timentes and that Bastards de adulterio vel Incestu procreati should not be admitted to the Crown it is both in Sir Henry Spelman and in the Magdeburgens cent 8. cap. 9. pag. 583. c. Edit Basil 1567. Egbert by all is a fixed settled Monarch but without or against Right of Succession Ordinatur in Regem So Ethelwerd Omnium Consensu Rex Creatur in Polidor Ad Regnum Electus moxque imperare Iussus Patriae desideriis satisfecit as we read in the Monk of Malmsbury About this time the Mannor of Mallings in Sussex was settled on the Church of Canterbury by Act of Parliament Consentientibus Magnatibus It had been given before by one of the Kings but it was recovered again Eo quod Magnates noluere Donationem illam Ratam fore To what Sir Henry Spelman hath of 838 I shall only add that Matthew of Westminster doth afford us Princes Dukes Earls and Barons both in that and former Years besides Inferior Laios and Clergy whom he calleth Rectores Ecclesiarum and in Ingulph we find Principes Duces Comites Barones Comitatus and Baronias with Proceres Majores long before the Norman Ethelwolf a Monk a Deacon and a Bishop yet Elected King because they could not find a fitter person for the Crown Necessitate Cogente factus est Rex in Roger Hoveden Consensus Publicus in Regem Dari petiit in Bale At Rome he repaired the English Colledge lately Burnt but he displeased the Parliament by getting his Son Alfred to be Crowned by the Pope and by Marrying a Daughter of France whom without their Consent he styled Queen which was against the Common and the Statute-Law contra Morem Statuta as we find in Florilegus to be compared with the Saxon Chronology and Asser Menevensis with Wigornensis and Malmsbury before Stow or Polidore But notwithstanding his Coronation by the Pope King Alfred did acknowledge his Kingdom to the Bounty of his Princes and Elders of his People Deus Principes cum Senioribus Populi misericorditer ac benignè dederunt as himself speaketh in his Will subjoyned to his Life by Menevensis wherein he also desireth to leave his People whom he calleth Noble West Saxons as free as mans Thoughts within him Ità Liberos sicut in Homine Cogitatio How far West Sex did then extend may be known in the Saxon Laws with those of St. Edward and Hen. the first where it is Styled Caput Regni Legum as London before to which all must have recourse in omni Dissidentia Contingentum Edward the Senior was his Son but Elected King by Parliament Successor Monarchiae Eadwerus à Primatis Electus my Auhor is old Ethelwerd King Ethestane a natural Son and so excluded from the Crown by Act of Parliament at Calcuth yet being a gallant Prince of great Hopes and Virtues he was Elected Electus magno Consensu Optimatum à Populo consalutatur ab Archiepiscopo more-Majorum Coronatur as we read in Malmsbury Huntingdon and Virgil. Yet there was a great Lord Elfred who opposed much and e're long Rebelled scorning to Submit to him Quem suo non diligisset Arbitrario being sent to Rome to purge himself of this Treason he Forswore it at St. Peters Altar but fell down and being carryed into the English Colledge Dyed and his Estate by Act of Parliament was given to the King Adjudicata est tota Possessio in magnis in Modicis quemadmodum judicaverunt omnes Optimates Regni Anglorum as the Kings Charter speaketh settling his Land on Malmsbury How tender they were of Blood I spake before and of K. Williams Law Nequis occidatur vel suspendatur but Wigornensis and Hoveden speak of K. Henrys Law for Hanging any found in Furto vel Latrocinio yet in Ethelstane the Wergylds were agreed by Parliament and a Kings Life valued at 30000 Thrymses Of Anlo's League among the Saxon Laws that he was chosen King by some that rejected Edmund we read in Florence and Hoveden as of one that Scrupled in Ethestane because he had Sworn Fealty to Anlave in the Monk of Malmsbury but it might be another Anlave Edred came in by Election being preferred before the Sons of Edmund who was King before him of his Parliament Summoned by Writ we spake before in the Militia About this time were the Constitutions of Odo de officio Regum Secularium Principum they are found in Saxon and are now Printed in Latin to be compared with the Statutes of Calcuth What Power they had may appear in Edwin for Incest Excommunicate by the same Odo unanimi omnium Conspiratione Edwino dejecto Eligerunt Deo Dictante Edgarum in Regem Annuente Populo res Regni Publica despertita inter Fratres and afterwards Clito Edgarus ab omni Anglorum Populo Electus est c. Confluentibus Principibus omnis Ordinis Viris cum magna Gloria Bathoniae coronatus est presentibus Praesulibus ac Magnatibus Universis Datis singulis Donariis consuetis quae Reg. Coronat dari Magnatibus consuescant of which Matth. Westmon Malmsbury Hoveden and Florence of Worcester How this Mighty Edgar was handled and Humbled for Ravishing a kind of Nun is observed by divers and that after his seven Years Pennance being not to wear his Crown Congregatis omnibus Angliae Principibus Episcopis Abbatibus The Crown was again Restored to him Coram omni Multitudine Populi Anglorum cunctis Laetantibus Deum in Sancto Dunstano Laudantibus as may be read in Capgrave Baronius of this and a great Lords Rape of that time speaketh of some Appeal to Rome whence Dunstan was commanded Peccatori condescendere but he would understand it only si Penitens Peccatum relinqueret Nec aliter saith Baronius potuit intellexisse Edgar being dead there was much Contest in Electing the next King De Rege eligendo Magna inter Regni Primores orta est Dissensio quidam Eadwardum Quidam eligerunt Ethelredum as the Monk of Worcester besides Hoveden and Matthew of VVestmon who agree also that at length the Arch-Bishops cum Chorepiscopis Abbatibus Ducibusque quamplurimis did Elect Consecrate and Anoint Edward Who enjoyed it with little quiet and among divers Contests of Parliament affrighted at the House Fall or amazed at the Angels or some Strangers voice they knew not whence E're long we find him hudled into Dust at VVarham which Queen Aelfrith or Aelsted attoned by Hospitals or other works of Devotion but a Fiery bloody Cloud followeth a Blazing Comet Of St. Edwards and St. Dunstans annual Festivals established by Parliament the Laws of Canute It was that Dunstan who presaged so much ill of Ethelred at his Baptism and to him

Parliamento personaliter Existentibus And the Title of these Acts is Statutae Canuti Regis Angl. Dan. Norw venerando Sapientum ejus Concilio ad Laudem Gloriam Dei sui Regalitatem Reipub. Utilitatem Commune Commodum habita in S. Nat. D. apud Winton c. This I find also cited by the great Judge in one part of his Reports but fuller by Sir Henry Spelman It would be tedious and superfluous to cite the Authors that assert he did confirm King Edgar's Laws in full Parliament For which we might produce some better or at least much older than good Bale or Grafton Many of his Acts of Parliament are printed Consultum quod Canut Angl. Dan. Norw Rex Sapientum Concilio Wintoniae Sancivit Here Allegiance or Fealty setled by Parliament and afterwards Praecipimus uniuscujusque Ordinis singuli Muneris atque Officii sui Religionem Diligenter cauteque teneant And among other Encouragements to Chastity this is one That such chast men of God should enjoy the same Rights or Priviledges with Thanes and Ethelstane's Laws do equal Priests with Thanes But there are two or three degrees of Thanes in these Laws about the Hereots for the Eorles and Thanes c. much to be marked as pertaining to the Militia For which and for all Canutes Laws the old MSS. Huntingdon is worth perusal Again we find other Statutes Civil or Politick Sapientum adhibito Consilio Mid Minan Witenan raede that Man heald ofer eall Englaland With provision against Thieves Robbers for the Peace Hue and Cry c. There are Statutes also for repair of Burgs and Bridges Scyrforhinga praefidii fiat apparatus Terrestis ac Maritimus quoties ejus Muneris Necessitas Reipublicae obvenerit And presently after Quae ad Reipublicae pertinent Vtilitatem Among the Crown-Prerogatives Violata Pacis Divitatae Militiae Mulcta Sheriffs Turns Hundreds and Tythings are here confirmed and the twelve-year-old Fealty with views of Frank-pledge But this Oath was to the Kingdom rather than to the King Fidem det omni se in posterum aetate tum Furti tum Furti Societate Conscientià temperaturum Again of passing Ordeals Sythan tha Gemot waes on Winceaster since the Parliament at Winchester this being at Oxford at after Iussum vero ac Placitum hoc Nostrum si Praepositorum aliquis incuriâ omiserit aut exequi aspernabitur ex Nostrà Omnium Sententia Regi 120 s. Dependito A clear Parliament Si quis alium injustè armis spoliavit eam quae est loco Colli obstricti Mulctam Dependito Healsfange It is also in the same Laws the punishment of false Witnesses Some think it the Pillory some worse as the Original of that Proverbial Letany From Hell and from Halefax See K. Hen. Laws and Helfang Si quis in Militiâ perfectione Militari pacem violaverit vita vel Weregild Mulctator si quid rapuerit pro facti Ratione compensato Si quis Pensionem ad oppida pontesve reficiendos denegarit Militiamve subterfugerit dato is Regi 120 s. Again in those Statutes The King must live upon his own Feormians or Farms which in Saxon afford all needful for man and none may be compelled to give him any Maintenance That the Folk be not burthened It is the 67th Chapter Loss of Dower or Joynture to Widows marrying within twelve months might seem hard but so long she need not pay any Heriot And the same Laws free the Wife from her Husbands Theft although found with her except it be lockt in her Hord Chest or Tyge Dispensae arctae Serinii Of which that Law giveth her leave to keep the Keys But Ina's Laws are hard concerning Children Again for the Militia He that in Sea or Land-fight leaveth his Lord or Comrague Felugo must die as a Traytor his Boocland to the King other 〈…〉 Estate to his Lord. But of him that dieth fighting with his Lord without any Heriot the Heirs may enter and Scyftan hit swithe righte Of this shift-Shift-Land and Gavelkind Lambard in Terra Scripto Perambulation of Kent and Spot of Canterbury besides several Acts of Parliament in Edw. 1. Edw. 3. and Hen. 8. If Celeberrimus ex omni Satrapia Conventus which is there and by King Edgar also to be twice a year or oftner be Parliament as such great men have thought then have we much here also for Power and Priviledge of Parliament Nay more indeed if it were but the Grand Folemoot or Sheriffs Turn so much below a Parliament He that in such a Grand Moot had defended and maintained his Right and Plea to any Land is there setled without dispute for his life and his Heirs or Assigns as his Will should dispose Chapter 76. And again for Priviledge of Parliament or yet lower Sive quis ad Comitia profiscator sive revertatur ab eisdem from Gemote or to Gemote placidissima pace fruitur nisi quidem furti fuerit manifestus Theof Thievery founded more with them than now with us For their twelve-year-Oath of which before at Frank-pledge was onely against Theof which yet seemeth to intend all above it for what forbiddeth the less forbiddeth the greater much more One thing more I may observe through all these and other old Laws there is still so much Religion and plain-hearted Simplicity with Piety expressed that it shews our Ancestors had not yet learned to be ashamed of their God or of looking towards Heaven I have been the longer in these that so I may be the more brief in those that follow for by this time I am come to the Laws of St. Edward as he is called and I should mispend my own time and abuse others in vouching all the Demonstrations of Parliaments in his time His Charters to Westminster are near enough and may be known of all wherein he confesseth his Resolutions for going to Rome But Optimates Communi habito Concilio rogabant me ut ab intentione desisterem his Vows made him more pressing than else he should have been But these also his Parliament undertook to satisfie Et tandem utrisque placuit so he speaks ut mitterentur Legati c. While these stayed at Rome procuring his Absolution a Vision to a Monk commandeth repairing or refounding of St. Peters Westminster as antient as Austin the Monk I cannot omit a passage in one of the Popes Letters of that time telling the King That he must expect great Motions and Alterations for the World was near its great Change and the Kingdom which he calls Sanctorum Regnum foretold in the Scripture was coming to begin and never should have an end King Edward refers it to the Parliament and at length Cum totius Regni Electione they are his own words he sets upon the decayed Minster Which he rebuilt with the Tenth of his whole Estate and there reposed the Reliques which the Popes gave to King Alfred at his Consecration with this grand Priviledge of Refuge and Pardon to any that fled

his Priviledges was to be free from the Justies of either Bench and of Assize Which is one of the first Records for the antient Benches But it may not be impossible to trace them thorow some Elder times For the Saxon Law so often repeated and confirmed that none should complain to the King but want of Right or against summum jus at Home might in modern Language be translated Thus. The Writ of Right must abide the Baron or Bayliffe For it cannot fall to a Copyhold Steward except the Lords default or consent or the Tenants suit procure a Tolt to lift it up to the County Court Or a Pone place it in the Common Pleas. That such a course was antient may be gathered from the Mirror Asser and others of Alfred Edgar Canute Ethelred and of the Tolt before in King William To which I may add the Writ of Right in the third Book of Reports brought by I. de Beverlace against Walter of Fridastern and by a Tolt removed from the Court Baron to the County and for default of the Baron how it must be falsified we may touch anon it was concluded before Ranulph de Glanvil Sheriff of Yorkshire Glanvil is clear enough for the course of removing to higher Courts and of the Writ de Pace stepping between the Combat on the Writ of Right and Assize Coram justitiis in Banco sedentibus and although this Book intituled Glanvil was not written till about Henry the 2d yet it is plain enough that he speaketh of Antient Custom His words are very considerable The grand Assize saith he is a Royal benefit granted by the Parliament Clementia principis de Concilio procerum populis indultum as being that which saved blood and did oft prevent the Combat on the Writ of Right and of this he speaketh in the third of the same Book as of a very old and antient Custom Secundum jus consuetudinem Regni antiquam A weighty expression from so antient an Author which may possibly lead us higher than the Saxon times For we may find the Duel or Combat among the Gaules from British Druides as among the Germans also whence our Fathers came Nonnunquam etiam armis de principatu contendunt So of the Gauls or British Druids He that was like to know it and of those and Germans Tacitus and Diodorus Siculus before Aventinus Some observe it in the Salique Law and among the Laws of Charlemaign and that the Longobards did bring it into Italy where it was also setled by Law But of our Ancestors combats in another place I know not any Fines upon Record till Richard the First But Stowels Case in Plowden may inform us that they were before the Norman And we need not doubt the Books of Edward the third speaking of Benches settled in Henry the first but I do not remember the phrase of Capitalis Iusticiarius noster till great Charter which repeateth elder Customs Goodwin the famous Earl of Kent among the Saxons had two Sons that in as good an Author as Huntington are stiled Regni Iusticiariis the phrase is common in Hoveden and others of the times of Clarendon Assizes And K. Edgar had a Cosin Ailwin who was totius Angliae Aldermannus which is supposed Lord Chief Iustice by a Learned man besides the best though yet imperfect Glossary But it might denote the Lord High Constable Of which before in William the first And William the 2d found great Odo of Baieux setled L. Ch. Justice of England Iusticiarius totius Angliae So Matth. of Westminster and Huntingdon calleth him Iusticiarius and Princeps and Moderator totius Angliae in Wigornensis He is Custos Angliae And the phrase of Iusticiarius is also in Matth. Paris of William the first Iusticiarii in Banco Regio of after times as also placita de Nova disseissena before Justices in Eyre But he speaketh of placita lethifera the Pleas of Life and Death yea even in Bishops Courts about the Normans coming in But in Polydore we find out 4 Terms with divers other elder Customes ascribed to the first Norman But that which he addeth of the place for these Courts to be at the Kings appointment might be true till the Law fixed the Pleas which may be long before our Charter of Henry 3d. where it is confirmed not created But for the Kings Bench the Return was coram Nobis ubicunque c. and for the Pleas coram Iusticiariis nostris apud Westmon That which Virgil addeth of the Iudges in Westminster and of those higher beyond appeal and of Iustices of Peace setled by the Conqueror as he saith Sheriffs were in every County may be more considered For it may be as much too late as some have thought it too early They which presume to make K. Henries Cubit the first Standard of Winchester must refute the old Saxon Laws of which before For those may seem to deserve as much credit as Malmsbury other marks That he did confirm the Curtesie d' Angletterre I may yeild to the Mirror and other Authors but not that he first began it For the Statute of Kentish Customs and those that treat of Gavel-kind may shew us an Older Tenure by Curtesie there also where the Tenant had no Issue And this may teach us whence the like Custom came into Ireland as also to be Curialitas Scotiae which our master seemeth to forget when he saith Que ne'st use en auter Realm forsque tant solement en Engleterre But his Commentator he lyeth in this and in divers other things In case Entails this English Curtesie is very remarkable in which the Book of Cases have great diversity But those that perswade us there was no Land in Tayles before the 2d of Westminster in King Edward the first which are all that subscribe to Littleton must interpret the Laws of King Alfred much otherwise than I can do For the 37th Chap. of his Laws is to me much clearer for Lands Entail'd then is all the Statute de Donis Conditionalibus One Case of the Courtesie may be considered for the Militia If Land in Capite descend to a Woman who upon Office found intrudeth on the King and taketh an Husband and by him hath Issue and then dieth yet cannot the King eject or detain the man but he shall be Tenant by the Kingdoms Curtesie although he came in upon Intrusion Which seemeth to hint that Our Law did chiefly intend the Kingdoms good defence and service which might be performed by such an intruder rather than the Kings pleasure or his bare Prerogative in this which is thought so great a Prerogative of Tenure in Capite For which the Comments on Magna Charta and the Statute of Prerogative with Littletons Dower and Curtesie are clear enough To Henry the first they also ascribe the Curtesie of saving the wreck from his Exchequer if there were so much as a Cat or a breathing Creature let in the Ship I do not deny him to be

the Militia For in such a Case the Sheriff or Bayliff shall not only force his Entry by the Posse-Comitatus into such a Castle on the suit of a Subject but it may also come so far that the said Fort or Castle may be beaten down without recovery And although it be said it shall be done by the Kings Command yet it is well known and seen by experience that it is and always was by Order of the Courts of Justice and for this Semain's Case in the fifth part of Reports may be very well added to the Comments on the First of Westminster By which we see how much the very Forts and Castles or Militia must be subject to the Courts of Iustice Not the King only but in and by his Courts especially the Parliament that may Command Controul and Over-rule all other Courts How tender the Law is in Case of Estate Forfeit by Alienation I have touched before much is to be added Nay in the worst and lowest Estates by Tenure of Will of which somewhat also before for a Fine Reasonable c. as by Copy where Alienation and Wast against the Custom with other Cases in the fourth part of Reports may Forfeit to the Lord but he cannot Out his Tenant at pleasure especially him that sweareth Fealty but the said Tenant may sue his Lord or bring his Action of Trespasse For Offices Forfeited by Bargain and Sale or Brocage the Statutes are clear and just To which may be added the Comments of Littletons Estates Conditional as also for Forfeitures of Conditions It is expresly provided by Act of Parliament that no Sheriff or any other Person do take or seize any mans Goods much less may he take his Lands for Treason or Felony until he be duly convicted or Attainted by Trial Confession or Outlawry upon pain to Forfeit double to the party grieved nor is this only in Richard the third but in the first great Charter and before it also as was touched before Among the Saxons none were Outlawed but for Capital crimes we find it often in the Mirror and in such the Out-law might be killed by any that met him as might any man Attainted of Premunire that vast Chaos of confusion till Queen Elizabeths Time I do not find any outlawry below Felony till about the Barons Wars and then it came not below an Action of Forceable Trespass Vi Armis But in the Common Pleas it came to lie upon Account Debt Detinue Covenant and other petty Actions which the Mirrour would pronounce a most great abuse But in Edw the third there was some amends in providing that none should kill an Out-law but a Sheriff only with lawful Authority Yet in inferiour Cases Land Issues might be sequestred in the Kings Hands till Appearance or Reversal Only in Treason and Felony it forfeiteth as much as Attainder by Judgment But it may be Pleades and Reversed divers ways And a Petty Misnomer or a misdate is ground enough to Reverse it by a Writ of Errour And of this the Books are full But Nimin's case is a criticism in Chronology One of the Sheriffs Returns was dated on the 8th of Iuly in the second and third of Phil. and Mary but it was declared there could be no such day but in the 2d and 4th year which was only between the 6th and 25th of Iuly yet this was enough to Reverse an Attainder of Treason by Writ of Errour And in Favour of Life our Law admitteth Pleas to Out-Lawries in Capitals there where in other Cases must be brought a formal Writ of Error I cannot deny but even by the common Law upon Indictment for Treasom or Felony the Goods and Chattels might be Inventored but not seized as Forfeit till Conviction Nor are Lands and Tenements Forfeit till Attainder by Judge And in case of Appeal which related no time that is only Forfeit which is possessed at the Iudgment But upon Indictment dating the crime the Forfeiture will reach to the crime committed although there be Alienation before Judgement But no Forfeiture before Conviction no seizure before Indictment And the Book of Assizes telleth us the Judges took away a Commission from one that under the great Seal had power to arrest and seize on Goods before Indictment And how tender our Law was in this for Estate it may be seen at large in Bracton and Fleta with the old Writ not only in them but in the Register also relating to the great Charter forbidding all Disseisin till Conviction Yet it requireth the Sheriff per visum suum legalium hominem to Apprise and Inventory all the Offenders Chattels but with a double Salvo both for safe keeping them and for this Security was to be given by the Bailiffs or the Township and for maintaining the person in Prison with all his necessary Family Salvo tamen eidem Capto familiae suae necessariae quamdiu fuerit in prisona Rationabili Esto verio suo Which was not only Meat but Cloathing c. as hath often been adjudged in Edward the third Henry the fourth and other Times See the third part of Institutes cap. 103. It will not be long I hope before God stirreth up our Governours to Reform the crying sins of this Kingdom and not only Gaolers in our oppressing grinding Prisons But the Heathen Moralist hath also told us that Divine wheels are also grinding and will grind to powder though they be slow in motion as unwilling to revenge It is true that Prisons should be by Law both safe and strait Custodies nor should they admit such wandring abroad as some mens Mony doth procure But although Recoveries on Record much lesse Discents do not bind men in Prison or conclude them for want of claim yet upon motion Prisoners may and ought to be brought to the Court in Suits or Actions against them in case of Judgement or where ever else they ought to be in person present And for this I may only referre to the Commentator on the continual claim and the Cases by him cited How unwilling our Law was to empair our Liberty was touched before in the Capias on Debt And although some latter Statutes do out-go our Common Law for Imprisonments yet it is still received for a general maxim in Law that Prisons should be Custodiae not Poenae And where ever any man is unjustly in Prison the Law affordeth him more ways of getting out than his Enemies had to get him in He may have an Habeas Corpus and he may have a Writ de Homine Replegiando He may have an Action of False Imprisonment And may found an Action on the Great Charter Or on it may cause his unjust friend to be Endicted And the Writ de Odio Atia was again revived though by Statute once it was forbidden And for these with Bayl by Judges or Justices Replevins by Sheriffs c. We have the Judgement of all the Judges on Articuli Cleri and the Comments on the great