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A28196 A treatise of the nobilitie of the realme collected out of the body of the common law, with mention of such statutes as are incident hereunto, upon a debate of the Barony of Aburgavenny : with a table of the heads contained in this treatise.; Magazine of honour Bird, William, 17th cent. 1642 (1642) Wing B2956; ESTC R18509 58,218 162

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6.36 37. H. 6. forasmuch as our bookes doe acknowledge them to be determined by course of the Civill law It is true Resol that the manner of performance of those severall kinds of Combates is very different and although the combate for Honour or upon the Appeale for treason be performed within England according to the custome of forraigne Nations in some respects although not altogether so that almost every particular Countrey hath a particular manner by meanes whereof some men seeing the difference betwixt those and the ordinary course of observance of Combates for land in the Writ of right or for life in the Appeale of felony have therefore imagined that the proceeding in Combate before the Lord Constable or Lord Marshall in the Appeals of treason or in causes of Honour betwixt such persons Paris de Putio Iohannes de delignatio Iac. de Castilio And. Assiatus Iul. Herret Anthon. Mosseus Cod. lib. 21. gladiatus lege unica Dig lib 9. ad legem aqualiam leg 7. Justus Lipsius de gladiatoribus as by the law may wage the same should be according to the course of the Civill law yet neverthelesse it must been certaine that the Civill law of the Romanes is so farre off from giving any allowance thereto as that it seemeth to forbid it For that law of the Christian Emperour Constantine is most notably alledged to this purpose by most of the learned Doctors of the Civill law that have written De duello the words of which law are these Cruenta spectacula in otio civili domest quiete non placent And that which for disputation sake is alledged to the contrary Si quis in collustratione vel pancratio vel pugiles dum inter se exercenturs alius alium occideret Si quidem in publico certamine alius alium occiderit cessat equalia quia gloriae causa virtutis non injuriae gratia vitetur damnum datum is understood rather of Justs and such like playes de gladiatoribus as were usuall among the Romanes all which were abrogated by this law of Constantine I. de Lignano de Duel a 5. Inlius Ferret de duel n. 20.5 Andr. Ascicus de du●ll cap. 4. de legibus Congobard ●it de Monarchijs n. ● Iul. Ferre● de duel●o 17 ●et Gregor lib. 48. cap 161. n 8. Neverthelesse among these warlike Nations that invaded the Romane Empire this kind of single Combate hath beene againe exercised in divers Kingdomes according to the custome of every severall Countrey Among the Lumbards it was permitted in 19 cases Their weapons being nothing else but the Shield and the Baston And yet of the use or rather abuse therreof the King Katharius seemeth to complaine purposing to have abrogated the some Quia incerti sumus de judicio dei multos audivimus per pugnam sine justa causa suam causaem perders sed propter consuetua gentis nostre Longobardor legem impiam vetare non possumus In the severall Kingdomes of Cicilie in Spaine it hath beene allowed in some Cases Likewise in France by the constitution of Philip le Beau. Anno 1306. Likewise the Emperour Fredericke did permit it in certaine cases expressed in the Treatise De consuetud feodorum in the title De Pace tenenda ejus violatoribus si quis hominem si quis alium si quis Miles c. In some places of Italy the battell hath beene allowed upon lesse occasion De pugn cern cap. 4. in fine of the which Alciatus maketh mention with some detestation Hereof it is evident that the order manner and causes of single Combate are different in divers Countries and every Countrey that people following their owne Customes and usages being their peculiar Law and in this our Realme it was a tryall much more frequented in antient times neere the Conquest then succeeding ages for it is evident by some antient Records and Plea rolls yet extant of King Steven Wager of battell in personall causes H. 2. R. 1. and King Iohn that it was permitted to be waged in personall occasions in cases wherein men now commonly wage their law 37. H. 6. fol 36.37 H. 6. fol. 20. Glan lib. 8. cap 8. Que battalle partee gage en ascun case en vn ' bre de fac Iudgement and therefore in 37. H. 6. and 37. H. 6. fol. 20. Needehams opinions are much more agreeable to the truth where both doe affirme that such waging of battell before the Lord high Constable and Earle Marshall is by the Lawes of this Realme although it bee determined before them and so great a Sympathy is betweene that Court and others of common Justice as that the Judges shall take notice of the proceedings before the Lord Constable and Earle Marshall upon occasion offered rising in debate before them Object 6 The sixth Objection is this The common Law in the trials of matters in sentence doth proceed by a Jury of 12. but the law of Chivalry in the triall of matters in fact concerning Honour and ARmes proceedeth upon examination of witnesses which is according to the course of the civill Law therefore matters of Honour are to bee determined by the civill not common Law I the tryall of matters in fact Resolu the common law doth not alwayes proceed by a Jury for although they most properly lye in the Conusance of the Jury 8. Ed ●● triall 94. 9 Ed 2. Iudg mēt 231. yet in other matters the Law hath ordained some other manner of tryall as they gage others by Witnesses as if a Wife bring a Writ of Dower supposing her Husband to bee dead and the tenant saith that he is alive whereupon they arer at issue this shall be tried by Witnesses only and not by Jury 33. H. 6.9 35. H. 6.47 So likewise if land be recovered by default and after brings a Writ of discript for that hee was not lawfully summoned in the former action upon which they are at issue 13. Ed. 1.36.37 13. H 7. vill 43.47 H. 3 15. Ed 2. Coron 385. Vill. 3● 19 H. 6.32 this shall be tried by examination and depositions of the summoners c. and not by the Jury In a Write de Nativo habendo whereby the Plaintife claimeth the Defendant to bee his villaine the Defendant saith hee is a freeman and thereupon they are at issue this shall not be tried by a Jury but by Witnesses namely such males as be of the blood and kindred of the Defendant and not otherwise 48. Ed. 3. n. 34. H 2. 46. E. 3. Some matters of tryall in fact are tried by view and inspection of the Court 8. Account 121. not by a Jury as the Nonage of the Plaintife or defendant alledging himselfe to be within the age of twenty one yeares And the like tryall is of a Maykem 21. H. 7 33. 39. E. 3.32 7. H 4.24 38 E. 3 27. 18 E. 4 36. 2 H 4.17 22. H 6.27 wherras in