facto ius oritur héere the Sergeantes or counsellers before the Iudges doe in passing forewarde with their pleading determine and agrée vpon the lawe and for the most part and in manner all actions as well criminiall as ciuill come to the issue state of some fact which is denied of the one partie and auerred of the other which fact being tried by the xij men as they find so the action is wonne or lost And if a man haue many peremptorie exceptions peremptorie exceptions I call onely those which can make the state and issue because the xij men be commonly rude and ignorant the partie shalbe compelled to choose one exception whereupon to founde his issue which chosen if he faile in that by the verdite of xij men he looseth his action and cause and the rest can serue him for nothing Having séene both in France and other places many deuices edictes and ordinaunces howe to abridge proces and to finde howe that long suites in law might be made shorter I haue not perceiued nor reade as yet so wise so iust and so well deuised a meane found out as this by any man among vs in Europe Trueth it is that where this fashion hath not béene vsed and to them to whom it is newe it will not be so easily vnderstood and therfore they may peraduenture be of contrarie iudgement but the more they doe weigh and consider it the more reasonable they shall finde it Howe the issue question or status iuris is decided I haue tolde now I will shewe howe it is tryed when it doth come to the question state or issue of the déede or fact And first I must speake more largely of the manner of procéeding in the processe and of such persons as be necessary for the execution thereof Of the sherife of the shire and of the court of exchequer CHAP. 14. THe Romans had to execute the commaundementes of the magistrates Lictores viatores accensos The ciuill lawe sith that time hath other names termes and officers The execution of the commaundementes of the magistrates in England is ordinarily doone by the sherifes The sherife which is as much to say as the Réeue or Bayly of the shire is properly word for word Questor prouinciae it is he which gathereth vppe and accompteth for the profittes of the shire that come to the exchequer The exchequer which is fiscus principis or aerarium publicum and I cannot tell in what language it is called Scaccarium some thinks that it was first called statarium because that there was the stable place to account for the reuenues of the crowne aswell that which came of the patrimony which we cal the demeasnes as that which commeth of other incident acquisitions be they rentes customes tenthes quinziesmes taxes subsidies wheresoeuer the Prince or his court be according to the time and occasion was a place stable continual and appointed for to recken and account The hearers of the account who in latin may be called tribuni aerarij haue auditors vnder them which the Latines doe call Rationales but they are the chiefe for the accounts of the Prince and may be called Iuridicirationales in English we cal them Barons of the exchequer whereof is one who is called the chiefe Baron as Tribunus or Iuridicus rationalis primus or princeps The chiefe of all is called high treasurer of Englande as you would say in latin Supremus aerarij anglici quaestor or Tribunus aerarius maximus In this court be heard Quadruplatores which we call promoters which be those that in popular and penall action be delatores hauing thereby part of the profit by the lawe assigned In this court if anie question be it is determined after the order of the common lawe of Englande by the xij men as I haue saide and all customers which were in latin called publicarij in gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 do account in this office The Sherife of the shire is called in our common latin vicecomes as one would say vicarius comitis or procomes doing that seruice to attende vpon the execution of the commaundementes of the Tribunalles or Iudges which the Earle or countie should doe which Earle or Countey for the most part was attending vppon the Prince in the warres or otherwise about the Prince as the worde beareth Comes principis whereby it may appeare that the chiefe office of the Countie or Earle was to sée the kinges Justice to haue course and to bee well executed in the shire or Countie and the Princes reuenues well answered and brought in aerarium principis which is called of vs the treasurie If any fines or amerciaments which in latin be called mulctae beleuied in any of the saide courtes vpon any man or any arrerages of accountes by the latins called reliqua of such thinges as is of customes taxes subsidies or any other such occasions the same y e sherife of the shire doth gather and is respondent therefore in the exchequer As for other ordinarie rentes of patrimoniall landes and most commonly for the taxes customes and subsidies there be particular receiuers and collectors which doe answere it into the exchequer The sherife hath vnder him an vnder sherife at his charge and appointment learned somewhat in the law especially if he be not learned himselfe diuers bailifes which he called errantes whom he maketh at his pleasure who can knowe ech lande and person in the shire and their abilitie to goe vppon enquestes either to distreine or to summon him to appeare whom the sherife shal appoint and for this cause to the sherifes as to the minister most proper of the lawe the writtes be directed When any thing commeth to an issue of the déede or fact there is a writ or writing directed to the sherife of the shire where the lande is whereupon the controuersie is or where the man dwelleth of whom the money is demaunded which writ is called venire facias Then after the same effect an alias pluries or distringas according to the nature of the action to the returne of the sherife And if for any disobedience of not comming and appearing there be a fine which the latins doe call Mulcta set vpon any iurors head the sherife is charged with it and taketh the distresses which in latin be called Pignora and answereth therefore to the exchequer The sherife also is readie by himselfe or by his vndersherife to serue aswell the Iustices of peace in their quarter sessions as y e Iustices called Itinerantes in their great assises when they come into the shire which is twise in the yeare to dispatch and voide actions criminall and ciuil depending at the common law and which be come nowe to the issue He hath also the charge of all the prisoners cōmitted to y e prison which we call the gaole and when any is condemned to die it is his charge to sée the sentence executed To be short he is as it were the generall minister
man for these faults he putteth in his bil which bil is presented first to the Iustices sitting vpon the bench to sée if it be conceived in forme of lawe which doone the complainant doth deliuer it to one of these enquests after the complainant is sworne he declareth to thē what he can for y e profe of it And if they finde it true they do nothing but write on the backeside of it billa vera as ye would say scriptum verum or accusatio iusta or reus est qui accusatur Then he who is there named is called indicted If they do not finde it true they write on the backside ignoramus so deliuer it to the Iustices of whome it is rent into péeces immediatly he that is indicted is accounted a lawefull prisoner and after that time looked more streitly vnto For this inditement is no conuiction and if he be indicted and be not alreadie in prison the sherife if he can finde him bringeth him into prison if he cannot finde him proces is made out against him to render himselfe prisoner or else hee shalbe outlawed So he is called thrée times in diuerse countie daies to render himselfe to the lawe The fourth is called the exigent by which he is outlawed not rendring himselfe as ye would say exactus or actus in exilium The outlawe looseth all his goods to the King for his disobedience But if after he wil render himselfe to answere to the lawe and shewe some reasonable cause of his absence manie times of grace his outlawerie is pardoned These méetinges of the Iustices of peace foure times in the yeare be called quarter sessions or sessions of enquirie because that nothing is there determined touching the malefactors but onely the custodie of them and this kinde of procéeding which is by inquisition of the xij men within themselues and their owne consciences or by denunciation of him that putteth in his bill to the xii is called at the kings suite and the king is reckoned the one partie and the prisoner the other The Iustices of the peace doe méete also at other times by commandement of the Prince vpon suspition of warre to take order for the safetie of the shire sometimes to take musters of harnes and able men and sometime to take orders for the excessiue wages of seruaunts and labourers for excesse of apparell for vnlawefull games for conuenticles and euill orders in alehouses and tauernes for punishment of idle and vagabund persons and generally as I haue saide for the good gouernement of the shire the Prince putteth his confidence in them And commonly euery yeare or each seconde yeare in the beginning of summer or afterwardes for in the warme time the people for the most part be more vnrulie euen in the calme time of peace the Prince with his counsell chooseth out certaine articles out of penall lawes alreadie made for to represse the pride and euill rule of the popular and sendeth them downe to the Iustices willing thē to looke vpon those pointes and after they haue mette together and consulted among themselues howe to order that matter most wisely and circumspectly whereby the people might be kept in good order and obedience after the lawe they diuide themselues by thrée or foure and so each in his quarter taketh order for the execution of the saide articles And then within certaine space they méete againe and certifie the Prince or his priuie counsell how they do finde the shire in rule order touching those pointes and all other disorders There was neuer in any commonwealth diuised a more wise a more dulce and gentle nor a more certaine way to rule the people whereby they are kept alwaies as it were in a bridle of good order sooner looked vnto that they should not offend than punished when they haue offended For séeing the chiefe amongst them their rulers to haue this speciall charge and doe call vpon it and if occasion so doe present one or two presently either punished or sent to prison for disobedience to those olde orders lawes they take a feare within themselues they amende and doe promise more amendment So that it is as a newe forbushing of the good lawes of the realme and a continuall repressing of disorders which doe naturally rest among men But as the inuention of this and the vse and execution thereof is the most benefitte that can be deuised for the common wealth of Englande So when it shalbe misused dissembled with or be contemned be doone pro forma tantum and as they terme it in Fraunce par mainere d' acquit onely it will be the present ruine though not at the first apperceiued of the common wealth Of which the fault may be as well in the commaunders for not making good choice what and howe they commaunde as in the commanded for not executing that which is commaunded Of hue and crie and recognisaunce taking vppon them that may giue euidence CHAP. 20. BY the olde lawe of Englande if any theft or robberie be doone if he that is robbed or he that séeth or perceiueth that any man is robbed doe leuie hue crie that is to say doe call and crie for aide and say that a theft or robberie is doone contrarie to the Princes peace and assurance The Constable of the village to whom he doth come and so make that crie ought to raise the parish to aide him and séeke the théefe and if the théefe be not founde in that parish to go to the next and raise that Constable and so still by the Constables and them of the parish one after an other This hue and crie from parish to parish is caried till the théefe or robber be founde That parish which doeth not his dutie but letteth by their negligence the théefe to depart doth not onely paie a fine to the king but must repaie to the partie robbed his dammages So that euerie English man is a sergiant to take the théefe and who sheweth himselfe negligent therein doth not only incurre euill opinion therefore but hardly shall escape punishment what is doone with the théefe or robber when he is taken I shall shewe you heereafter The same manner is followed if anie man bee slaine for streight the murtherer is pursued of euerie man till he be taken So soone as any is brought to the Iustices of peace by this hue or crie by the Constable or anie other who doth pursue the malefactor he doeth examine the malefactor and writeth the examinations and his confession then he doth binde the partie that is robbed or him that sueth and the Constable and so manie as can giue euidence against the malefactor to be at the next sessions of gaole deliuerie to giue their euidence for the Quéene He bindeth them in recognisance of xl xxl. xxxl xll. or C. l. according to his discretion and the qualitie of the crime which certified vnder his hande is leuied vpon the recognizance if
they faile of being there Of the Coroner CHAP. 21. BVt if anie man woman or child be violently slaine the murtherer not knowen no man ought or dare burie the bodie before the Coroner hath séene it The Coroner is one chosen by the Prince of the meaner sort of gentlemen and for the most part a man séene in the lawes of the Realme to execute that office And if the person slaine slaine I cal here whosoeuer he be man woman or childe that violently commeth to his death whether it be by knife poyson cord drowning burning suffocation or otherwise be it by his owne fault or default or by any other if I say the person slaine be buried before the Coroner doe come which for the most part men dare not doe he doeth cause the bodie to be taken vp againe and to be searched and vppon the sight of the bodie so violently come to his death he doth empanell an enquest of xij men or mo of those which come next by be they strangers or inhabitantes which vpon their othes and by the sight or viewe of the bodie and by such informations as they can take must search howe the person slaine came to his death and by whome as the doer or causer thereof These are not inclosed into a streit place as I tolde before of other enquestes but are suffered to goe at large and take a day sometime after xx or xxx daies more or lesse as the fact is more euident or more kept close to giue their euidence at which day they must appeare there againe before the saide Coroner to giue their verdict So sometime the person slaine himselfe sometime the brother the husbande the wife the sister some of acquaintance or stranger such as God wil haue reueiled be taken For whosoeuer they doe finde as guiltie of the murder he is streight committed to prison and this is against him in the nature of an inditement which is not a full condemnation as ye shall sée héereafter The empanelling of this enquest and the viewe of the bodie and the giuing of the verdict is commonly in the stréete in an open place and in Corona populi but I take rather that this name commeth because that the death of euerie subiect by violence is accounted to touch the crowne of the Prince and to be a detriment vnto it the Prince accounting that his strength power and crowne doth stande and consist in the force of his people and the maintenaunce of them in securitie and peace Of the Constables CHAP. 22. THese men are called in the elder bookes of our lawes of the Realme custodes pacis and were at the first in greater reputation than they be nowe It may appeare that there was a credit giuē vnto them not altogether vnlike to that which is now giuen to the Iustices of peace To this day if any affraie chaunce to be made the Constables ought and will charge them that be at debate to kéepe the Princes peace and whosoeuer refuseth to obey the Constable therein all the people will set streight vpon him and by force make him to render himself to be ordered Likewise if any be suspected of theft or receiuing or of murther or of manslaughter the Constable may take such persons yea enter into any mans house with sufficient power to search for such men till he finde them and if hee sée cause kéepe the suspected persons in the stockes or custodie til he bring them before a Iustice of the peace to be examined But for so much as euerie litle village hath commonly two Constables and many times artificers labourers and men of small abilitie be chosen vnto that office who haue no great experience nor knowledge nor authoritie the Constables at this present although this they may do vppon their owne authoritie yet they séeme rather to be as it were the executors of the commaundement of the Iustices of peace For the Iustice of peace as soone as he vnderstandeth by complaint that any man hath stolen robbed slaine or any seruant or labourer without license hath departed out of his maisters seruice or any that liueth idle and suspectly knowing once in what parish he is he writeth to the Constable of the parish cōmanding him in the Princes name to bring that man before him the Constable dareth not disobey The man is brought and examined by the Iustice and if the Iustice doe finde cause hee committeth him to the same Constable to conuey him further to the Princes gaole where the partie must lie till the Iustices of peace doe méete either at their quarter sessions or at their gaole deliuerie and that the lawe hath either condemned or acquited him These Constable are called in some places headborowes in some places tithingmen and be like to them who are called Consuls in manie townes and villages in Fraunce The Constables are commonlie made and sworne at the Léetes of the Lordes chosen thereto by the homage and they kéepe that office sometime ij iij or iiij yeare more or lesse as the parish doth agrée What headborow doth betoken it is easily knowen our language doth declare him as the head or chiefe of the borowe or village likewise tithing man is the chiefe of y e tithing Constable séemeth to me to come of our old English worde kinnyng which is Kinnyngstable as ye would say a mā established by the king for such thinges as appertaineth to pleas of the crowne conseruation of the Kings peace as I saide at the first were in some more reputation approching to that authoritie which the Iustices of peace nowe doth holde Of the sessions of gaole deliuerie and the definitiue proceedinges in causes criminall CHAP. 23. HOwe théeues and murtherers and other malefactors against the crowne and the peace are taken brought into holde to answere to iustice partly by hue and crie partly by information and partly by the diligence of the Justices of peace and the Constables and howe that at the quarter sessions they be indicted or else by the Coroners yee haue hearde before Enditement as yee may perceive by that which is also gone before is but a former iudgement of xij men which be called enquirers and no definitiue sentence but that which in latin is called praeiudicium it doth but shewe what opinion the countrey hath of the malefactor and therefore commonly men be endicted absent not called to it nor knowing of it For though a man be endicted yet if when he come to the arainement there be no man to pursue further nor no euidence of witnesse or other triall and indices against him he is without difficultie acquited No man that is once indicted can be deliuered without arainement For as xij haue giuen a preiudice against him so xii againe must acquite or condemne him But if the prisoner be not indicted but sent to prison vpon some suspition or suspitious behauiour and none doe pursue him to the enditement first being proclaimed thus A. B.
prisoner standeth héere at the barre if any man can say anything against him let him now speake for the prisoner standeth at his deliueraunce if no man doe then come hee is deliuered without any further proces or trouble agréeing first with the gaoler for his fées And these be called acquited by proclamation Twise euerie yeare the one is commonly in lent what time there is vacation from pleading in Westminster hall the other is in the vacation in summer The Prince doth sende downe into euerie shire of Englande certaine of his Iudges of Westminster hall and some Sergeantes at the lawe with commission to heare and determine ioyntly with the Justices of the peace all matters criminall and all prisoners which be in the gaoles These Iudges doe goe from shire to shire till they haue doone their circuit of so manie shires as be appointed to them for that yeare at the ende of the terme going before their circuit it is written and set vp in Westminster hall on what day and in what place they will be That day there méeteth all the Justices of the peace of that shire the sherife of that shire who for that time beareth their charges and asketh after allowance for it in the Exchequer The shirife hath readie for criminall causes as I writ before at the sessions of inquirie iiii v. or vi enquestes readie warned to appeare that day to serue the Prince and so manie more as he is commaunded to haue readie to go in civill matters betwixt priuate men which they call Nisi prius because that worde is in the writ In the towne house or in some open or common place there is a tribunall or place of iudgement made aloft vpon the highest bench there sitteth the two Judges which be sent downe in Commission in the midst Next them on eche side sitteth the Justices of peace according to their estate and degrée In a lower bench before them the rest of the Justices of the peace and some other gentlemen or their clarkes Before these Iudges and Justices there is a table set beneath at which sitteth the Custos rotulorum or kéeper of writtes Thexchetor the vndershirife and such clarkes as doe write At the end of that table there is a barre made with a space for thenquestes and xii men to come in when they are called behind that space another barre and there stand the prisoners which be brought thither by the gaoler all chained one to another Then the cryer crieth and commaundeth silence One of the Iudges briefely telleth the cause of their comming giueth a good lesson to the people Then the prisoners are called for by name and bidden to aunswere to their names And when the Custos rotulorum hath brought foorth their enditements the Iudges do name one or two or thrée of the prisoners that are endicted whom they will haue arraigned There the clarke speaketh first to one of the prisoners A. B. come to the barre hold vp thy hand The clarke goeth on A. B. thou by the name of A. B. of such a towne in such a countie art endicted that such a day in such a place thou hast stolen with force and armes an horse which was such ones of such a colour to such a valor and carried him away feloniously contrarie to the peace of our soueraigne Ladie the Quéene What sayest thou to it art thou guiltie or not guiltie If he will not aunswere or not aunswere directly guiltie or not guiltie after he hath béene once or twise so interrogated he is iudged mute that is dumme by contumacie and his condemnation is to be pressed to death which is one of the cruellest deathes that may be he is layd vpon a table and an other vppon him and so much weight of stones or lead laide vppon that table while as his bodie be crushed his life by that violence taken from him This death some strong stout hearted man doth choose for being not condemned of felonie his bloud is not corrupted his lands nor goods confiscate to the Prince which in all cases of felonie are commonly lost from him and his heires if he be foreiudged that is condemned for a felon by the lawe If he confesse the enditement to be true then when he is arraigned no xii men goeth vpon him there resteth but the Iudges sentence of the paine of death If he pleade not guiltie as commonly all théeues robbers murtherers doe though they haue confessed the fact before the Justice of the peace that examined them though they be taken with the maner which in Latine they call inflagranti crimine howesoever it be if he pleade there not guiltie the Clarke asketh him howe he will be tryed and telleth him he must saie by God and the Countrie for these be the words formall of this triall after Inditement and where the Prince is partie if the prisoner doe say so I will be tryed by God and the Countrie then the Clarke replyeth Thou hast béene endicted of such a crime c. Thou hast pleaded not guiltie being asked how thou wilt be tryed thou hast aunswered by God and by the Countrie Loe these honest men that be come here be in the place and stead of the Countrie and if thou hast any thing to say to any of them looke vpon them well and nowe speake for thou standest vpon thy life death Then calleth he in the first Juror B. C. come to the booke and so giueth him an othe to goe uprightlie betwixt the Prince and the prisoner c. If the prisoner obiecteth nothing against him he calleth an other and so an other till there be xii or aboue and for the most part the prisoner can say nothing against them for they are chosen but for that day and are vnknowen to him nor they know not him as I said being substantial yeomen that dwell about the place or at the least in the hundred or néere where the felonie is supposed to be committed men acquainted with daily labour and trauaile and not with such idle persons as be readie to doe such mischiefes When the enquest is full and the prisoner hath obiected nothing against them as in déede seldome he doeth for the cause aboue rehearsed The clarke saith to the cryer countes in French as ye would say recken and so nameth all those that be on the quest The crier at euerie name cryeth aloude one then ij iij. iiij and so till the number be full of xii or more then saith good men and true and then sayth aloude If any can give euidence or can saie any thing against the prisoner let him come nowe for he standeth vpon his deliuerance If no man come in then the Iudge asketh who sent him to prison who is commonly one of the Justices of peace He if he be there deliuereth vp the examination which he tooke of him and vnderneath the names of those whom he hath bound to giue euidence although the malefactor hath
and highest for execùtion of such commaundementes according to the lawe as the Iudges do ordaine and this is ynough for the sherife Of the xij men CHAP. 15. OF what manner and order of men in the common welth the xij men be I haue alreadie declared The sherife alwaies warneth xxiiij to appeare least peraduenture any might be sicke or haue a iust cause of absence and if there be not enowe to make an enquest the absentes be amersed For although they be called xii men as a man would say duodecim viri yet if they be xvj xx or the whole number of xxiiij that is no matter xij they must be at the least to make an enquest or as some call it a quest An enquest or quest is called this lawefull kinde of tryall by xii men In actions ciuill which is either of contractes or for lande or possession when so many of those which be warned appeare at the call as be able to make an enquest which as I saide before be no lesse then xii either part when they be come taketh their chalenges against so many of them as they will which be that he may not spende so much lande a yeare he is alied féed or seruant to his aduerse partie he is his enemie c. And two of the whole number doe trie and allowe or disallowe the rest If after exceptions there be so many reiected that there is not a full enquest in some cases that day is lost in some the enquest is filled ex circumstantibus when the quest is ful they be sworne to declare the truth of that issue according to the euidence and their conscience Then the Sergeantes of either side declare the issue and each for his client sayth as much as he can Euidences of writinges be shewed witnesses be sworne hearde before them not after the fashion of the ciuill law but openly that not only the xii but the Iudges the parties and as many as be present may heare what ech witnesse doeth say The aduerse partie or his aduocates which wee call counsellers and sergeants interrogateth sometime the witnesses and driueth them out of countenance Although this may séeme strange to our ciuillians now yet who readeth Cicero and Quintillian well shall sée that there was no other order and maner of examining witnesses or deposing among the Romans in their time When it is thought that it is enough pleaded before them and the witnesses haue saide what they can one of the Iudges with a briefe and pithie recapitulation reciteth to the xii in summe the argumentes of the sergeantes of either side that which the witnesses haue declared and the chiefe pointes of the euidence shewed in writing and once againe putteth them in minde of the issue and sometime giueth it them in writing deliuering to them the euidence which is shewed on either part if any be euidence héere is called writings of contractes autentical after the manner of England that is to say written sealed and deliuered and biddeth them goe together Then there is a baylife charged with them to kéepe them in a chamber not farre off without bread drinke light or fire vntill they be agréed that is till they all agrée vpon one verdite concerning the same issue and vppon one among them who shall speake for them all when they be agreed for it goeth not by the most part but each man must agrée They returne and in so fewe wordes as may be they giue their determination fewe I call vj or vij or viij wordes at the most for commonly the issue is brought so narrow that such number of words may be ynough to affirme or to denie it which doone they are dismissed to goe whither they will The partie with whom they haue given their sentence giueth the enquest their dinner that day most commonly and this is all that they haue for their labour notwithstanding that they come some xx some xxx or xl miles or more to the place where they giue their verdite all the rest is of their owne charge And necessarilie all the whole xij must be of the shire and iiij of them of the hundred where the lande lyeth which is in controuersie or where the partie dwelleth who is the defendant Of parties of Shires called hundreds lathes rapes wapentakes CHAP. 16. AN hundred or lath rape or wapentake be called of the diuisions or partes of shires in diuers countries diuersly named after the manner and language of each countrey For the shires be diuided some into x. xij xiij xvj xx or xxx hundreds more or lesse either that they were at the first C. townes villages in ech hundred and although now they be but xvj xx xxx xl l. lx more or lesse yet it is still called an hundred or else there were but so many at the first as be nowe or a fewe more or lesse and they did finde the king to his warres an hundred able men Lath and rape I take to be names of seruice for that so many townes in old time and in the first pouertie of the Realme did méete together in one day to carrie the Lordes corne into his barne which is called in olde English a Lath. Or that they mette at commaundement of the Lorde to reape his corne Wapentake I suppose came of the Danes or peraduenture of the Saxons For that so manie townes came by their orders then to one place where was taken a mouster of their armour and weapons in which place from them that could not finde sufficient pledges for their good abearing their weapons were taken away weapen or wapen in olde English doe signifie all armes offensiue as sworde dagger speare launce bill bowes arrowes Of the place where the monsters were taken or where the saide seruices were doone the hundreds Lathes Rapes and wapentakes had and haue yet their names which be most commonly good townes and it is to be thought at the first they were all such But sometime nowe in places whereof the hundred hath the name no mention nor memorie of a towne remaineth such mutation time bringeth with it of all thinges A hundred hath one or two high Constables who hath some authoritie ouer all the lower and particular Constables Those high Constables bee made by the Iustices of the peace of the shire and each hundred hath his baylife who is made by the Lorde if any hath that libertie or else by the sherife of the shire for the time being Of the court Baron CHAP. 17. IT may appeare strange that of xxxvj shires whereof each shire is diuided into diuers hundreds each hundred containing diuerse parishes all pleading should be but in one place that is in Westminster hall and that but in certaine times of the yeare making little more than one quarter of the yeare in the whole And one would thinke y e there should be much lacke of Iustice right and much wrong taken without redresse But it is not
so The people being accustomed to liue in such an equalitie of Iustice that in such sort that y e rich hath no more aduantage therein than the poore the proces and procéedinges to the iudgement being so short and iudgementes also being peremptorie and without appellation Yet to helpe for small matters where no great summe is in question there are other courtes In euerie shire from thrée wéekes to thrée wéekes the sherife for small thinges not passing xl s. and in certaine hundreds and liberties the baylie likewise from thrée wéekes to thrée wéekes holdeth plea. And whosoever is possessioner and owner of a mannor may holde from thrée wéekes to thrée wéekes or at his pleasure of his tennantes and amongest his tennantes a court called a court Baron And there his tennantes being sworne make a Iurie which is not called the enquest but the homage These principallie doe enquire of the copie holders and other frée holders that be dead sith the last court and bring in their heires and next successours and likewise of incrochment or intrusion of anie of the tennantes against the Lorde or among themselues They make orders and lawes amongest themselues the paine of them if they be after broken commeth to the Lorde And if anie small matter be in controuersie it is put to them and commonly they doe ende it But these courtes doe serue rather for men that can be content to be ordered by their neighbours and which loue their quiet and profit in their husbandrie more than to be busie in the lawe For whether partie soeuer will may procure a writte out of the higher court to remooue the plea to Westminster In cities and other great townes there be diuerse liberties to holde plea for a bigger summe which doe determine aswell as the common lawe and after the same manner and yet for them that will it may be remooued to Westminster hall King Henry the eight ordained first a president Counsellers and Iudges one for the marches of Wales at Ludlowe or else where an other for the north parts of Englande at Yorke where be manie causes determined These two are as be Parliaments in Fraunce But yet if there be anie matter of great consequence the partie may mooue it at the first or remooue it afterwardes to Westminster hall and to the ordinarie Iudges of the Realme or to the Chanceller as the matter is These two courtes doe heare matters before them part after the common lawe of Englande and part after the fashion of the chauncerie Of the Leete or lawe day CHAP. 18. LEete or law day is not incident to euerie mannor but to those onely which by special graunt or long prescription haue such libertie This was as it may appeare first a special trust and confidence and commission giuen to a fewe put in trust by the Prince as is nowe to the Iustices of peace to sée men sworne to the Prince to take pledges and suerties in that maner of one for an other to answere for obedience and truth to enquire of priuie conspiracies fraies murders and bloudsheddes and to this was added the ouersight of bread and ale and other measures Many times they that be out of the homage and court Baron of that mannor and Lordship be neuerthelesse astreined and answerable to come to the Léete This Léete is ordinarily kept but twise in the yeare and that at termes and times prescribed The Léete or Lawe day is all one and betokeneth worde for worde legittimum or iuridicum diem Lawe the olde Saxons called lant or lag and so by corruption and chaunging of language from Lant to Leete vnderstanding day They which kéepe our full english terme call it yet lawe day Of the proceedinges of causes criminall and first of the Iustices of the Peace CHAP. 19. BEfore the maner of procéeding in causes criminall can be well vnderstood it will be necessarie to speake of thrée persons the Iustices of peace the Coroners and the Constables The Iustices of peace be men elected out of the nobilitie higher and lower that is the Dukes Marquisses Barons Knightes Esquiers and Gentlemen and of such as be learned in the lawes such and in such number as the Prince shall thinke méete and in whome for wisedome and discretion he putteth his trust inhabitantes within the countie sauing that some of the high nobilitie and chiefe magistrates for honors sake are put in all or in the most of the commissions of all the shires of England These haue no time of their rule limited but by commission from the Prince alterable at pleasure At the first they were but iiij after viij nowe they come commonly to xxx or xl in euerie shire either by increase of riches learning or actiuitie in policie and gouernement So many more beeing founde which haue either will or power or both are not too manie to handle the affaires of the common wealth in this behalfe Of these in the same commission be certaine named which be called of the Quorum in whome is especiall trust reposed that where the commission is giuen to xl or xxx and so at the last it commeth to iiij or thrée it is necessarie for the performance of many affaires to haue likewise diuerse of the Quorum The wordes of the commission be such Quorum vos A B. C D. E F. vnum esse volumus The Iustices of the peace be those in whom at this time for the repressing of robbers théeues and vagabunds of priuie complots and conspiracies of riotes and violences and all other misdemeanors in the cōmon wealth the Prince putteth his special trust Each of them hath authoritie vpon complaint to him made of any theft robberie manslaughter murder violence complotes riottes vnlawefull games or any such disturbance of the peace and quiet of the Realme to cōmit the persons whom he supposeth offendors to the prison and to charge the Constable or sherife to bring them thither the gaoler to receaue them and kéepe them till he and his fellowes doe méete A fewe lines signed with his hande is ynough for that purpose these doe méete foure times in the yéere that is in each quarter once to enquire of all the misdemeanors aforesaide at which daies the sherife or his vndersherife with his baylifes be there to attende vppon him who must prepare against that time fower enquestes of xxiiij yeomen a péece of diuerse hundredes in the shire and besides one which is called the great enquest out of the bodie of the shire mingled with all These fiue enquests are sworne before them to enquire of all heretiques traitors theftes murders manslaughters rapes false moniers extortioners riottes routes forcible entries vnlawefull games and all such thinges as be contrarie to the peace and good order of the Realme to bring in their verdict If they among themselues vpon their owne knowledge doe finde any culpable they cause one of the clerkes to make the bill And if any be there to complaine vppon any
confessed the crime to the Iustice of the peace and that appeare by his hande and confirmation the xij men will acquite the prisoner but they which should giue euidence pay their recognizaunce Howbeit this doth seldome chaunce except it be in small matters and where the Iustices of peace who sent the prisoner to the gaole is away If they which be bound to giue euidence come in first is read the examination which the Iustice of peace doeth giue in then is heard if he be there the man robbed what he can say being first sworne to say trueth and after the Constable and as many as were at the apprehension of the malefactor and so many as can say any thing being sworn one after an other to say truth These be set in such a place as they may sée y e Iudges and the Iustices the enquest and the prisoner heare them and be heard of them all The Iudge first after they be sworne asketh first the partie robbed if he knowe the prisoner and biddeth him looke vpon him he saith yea the prisoner sometime saith nay The partie pursuiuaunt giueth good ensignes verbi gratia I knowe thée well ynough thou robbedst me in such a place thou beatest mée thou tookest my horse from mée and my purse thou hadst then such a coate and such a man in thy companie the théefe will say no and so they stand a while in altercation then he telleth al that he can say after him likewise all those who were at the apprehension of the prisoner or who can giue any indices or tokens which we call in our language euidence against the malefactor When the Iudge hath heard them say inough he asketh if they can say any more if they say no then he turneth his spéeche to the enquest Good men saith he ye of the enquest ye haue heard what these men say against the prisoner you haue also heard what the prisoner can say for himselfe haue an eye to your othe and to your duetie doe that which God shall put in your mindes to the discharge of your consciences and marke well what is saide Thus sometime with one enquest is passed to the number of ij or iij. prisoners For if they should be charged with more the inquest will say my Lord we pray you charge vs with no more it is ynough for our memorie Many times they are charged but with one or two At their departing they haue in writing nothing giuen them but the enditement the clarke repeating to them the effect of it and shewing more that if they finde him guiltie they shall enquire what goods lands and tenements the saide person had at the time of the felonie committed and if they finde any they shal bring it in if no they shal say so If they finde him not guiltie they shall enquire whether he fled for the felonie or no. And there is a bailife to waite vpon them and to sée that no man doe speake with them and that they haue neither bread drinke meate ne fire brought to them but there to remaine in a chamber together till they agrée If they be in doubt of any thing that is saide or would heare againe some of them that giue euidence to interrogate them more at full or if any that can giue euidence come late it is permitted that any that is sworne to say the trueth may be interrogated of them to enforme their consciences This is to be vnderstood although it will séeme straunge to all nations that doe vse the ciuill Lawe of the Romane Emperours that for life and death there is nothing put in writing but the enditement onely All the rest is doone openlie in the presence of the Iudges the Iustices the enquest the prisoner and so manie as will or can come so neare as to heare it and all depositions and witnesses giuen aloude that all men may heare from the mouth of the depositors and witnesses what is saide As of this so is it of all other prisoners after y e same sort By that time that the enquests for the prisoners be dispatched it is commonlie dinner time the Iudges and Iustices goe to dinner and after dinner returne to the same place if the enquest be not readie for the prisoners they goe to some other enquests of nisiprius which be ciuill matters and priuate to driue out the time The enquests haue no sooner agréed vpon their charge one way or other but they tell the Bailife and pray to be heard and considering that they be themselues all this while as prisoners as I saide before it is no maruell though they make expedition The prisoners be sent for againe to the barre the enquest which hath agréed is called for eche one of the Iurie by his name to which he answereth Then the clarke asketh if they be agréed and who shall speake for them One or moe saith yea He that speaketh for them all is called the foreman and commonlie it is he that is first sworne then the prisoner is bidden to holde vp his hande The clarke saith vnto him Thou art endicted by the name of A. of such a place c. being therefore arraigned thou pleadest thereto not guiltie being asked howe thou would be tryed thou saydst by God and thy countrie These honest men were giuen to thee by God thy Prince for thy Countrey Hearken what they say Then he asketh of the enquest what say you Is he guiltie or not guiltie The foreman maketh aunswere in one worde guiltie or in two not guiltie the one is deadlie the other acquiteth the prisoner So that neither Iudge nor Iustice hath to doe or can reuerse alter or chaunge that matter if they say guiltie The clarke asketh what landes tenements or goods the prisoner had at the time of the felonie committed or at any time after Commonlie it is aunswered that they knowe not nor it shall not greatly néede for the Sherife is diligent enough to enquire of that for the Prince and his owne aduantage and so is the excheator also Of him whom the xij men pronounce guiltie the Iudge asketh what he can say for himselfe if he can reade demaundeth his Clergie For in many felonies as in theft of oxen shéepe money or other such things which be no open robberies by the high way side nor assaulting one by night in his house putting him that is there in feare such is the fauour of our Lawe that for the first fault the felon shalbe admitted to his Clergie for which purpose the Bishop must send one with authoritie vnder his seale to be Iudge in that matter at euerie gaole deliuerie If the condemned man demandeth to be admitted to his booke the Iudge commonly giueth him a Psalter and turneth to what place he will The prisoner readeth as well as he can God knoweth sometime very slenderly then he asketh of the Bishops commissarie legit vt clericus The commissarie must say legit or non legit for these
euidence or too much fauour in the countrey and power of the aduersarie there is in our countrey as well as theirs both stopping and prolongation of Iustice. For what will not busie heades and louers of trouble neuer being satisfied inuent in any countrey to haue their desire which is to vex their neighbours and to liue alwaies in disquiet Men euen permitted of God like flies and lise and other vermine to disquiet them who would imploie themselues vpon better businesse and more necessarie for the common wealth these men are hated and feared of their neighbours loued and aided of them which gaine by proces and waxe fatte by the expence trouble of other But as these men ordinarily spende their owne thrift and make others against their wils to spende theirs so sometime being throughly knowen they do not onely liue by the losse like euill husbandes but beside rebuke shame by the equitie of the Prince and courtes soueraigne they come to be extraordinarily punished both corporally by their purse which thing in my minde is as royall and princely an act and so beneficiall to the commonwealth as in so small a matter a King or a Quéene can doe for the repose and good education of their subiectes Of that which in England is called appeale in other places accusation CHAP. 3. IF any man hath killed my father my sonne my wife my brother or next kinsman I haue choice to cause him to be endicted by giuing information to the enquest of enquirie although he chaunce to escape the Constable or Iustices handes and therefore not to be apprehended and thereupon to procure him to be outlawed or else within a yéere and a day I may enter my appeale that is mine accusation against him If I begun first to pursue him by information or denunciation to enditement I am nowe no partie but the Prince who for his duetie to God and his common wealth and subiects must sée iustice executed against all malefactors offenders against the peace which is called Gods and his doeth in such maner as I haue saide before If I leaue that and will appeale which is profer my accusation against him who hath doone to me this iniurie the defendant hath this aduauntage to put himselfe to the Iurie which is to that which before is saide to haue that issue and triall by God and his countrie whereof the fashion I haue at large declared or to demaund the triall by battle wherein both the parties must eyther themselues in person or else finde other for them who be called in our Law Champions or Campions some doeth interprete them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because they be men chosen fat lustie fit to the feate or as the Frenche doe terme them adroicts aux armes which shall fight it out by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or as now they doe call it duellum or the campe which shall haue all things equall but according as Mars giueth the victorie so the Lawe is iudged the one as peractus reus the other is calumniator to suffer the paine of death So that by the great assise there is no appellation but death or life to the defendant but this is more daungerous and equall for the one or the other must die So it is not in the grande assise for the reus or defendaunt is onely in daunger of death Short it is from day to sunne set the quarell is ended or sooner who hath the better fortune This seemeth very militarie as in maner all our policie of Englande and to haue as small to doe with Lawyers as with Phisitions quicklie to dispatche and for the rest to returne eche man to his buisinesse to serue the common wealth in his vocation The Popes of Rome and men of the Church who of long time haue had dominion in our consciences and would bring things to a more moderation haue much detected this kinde of triall and iudgement as reason is euerie man misliketh that which is not like to his education and colde reasoning by Theologie and Philosophie they I say much mislike many things doone necessarily in whot policie At the least a common wealth militarie must aduenture many things to kéepe it in quiet which cannot séeme to precisely good to them which dispute thereof in the shadowe and in their studies Howsoeuer it be this kinde of triall of long time hath not béene vsed So that at this time we may rather séeke the experience of it out of our histories of time passed than of any viewe or sight thereof of them which are nowe aliue Neverthelesse the Lawe remaineth still and is not abolished and if it shall chaunce the murtherer or mansleer the one we call him that lyeth in waite and as they terme it in Frenche de guet appendaunt killeth the man the other who by casuall falling out and sodaine debate and choller doeth the same which way soeuer it be doone if he that hath slaine the man hath his pardon of the prince as occasion or the fauour of the Prince may so present y ◠he may haue it yet the partie grieued hath these two remedies I say to require iustice by grand assise or battle vpon his appeale priuate reuenge which is not denyed him And if the defendant either by great assise or by battle be conuinced vpon that appeale he shall die notwithstanding the Princes pardon So much fauourable our Princes be and the lawe of our Realme to iustice and to the punishment of blood violently shed Of the Court of Starre Chamber CHAP. 4. THere is yet in Englande an other court of the which that I can vnderstand there is not the like in any other Countrie In the Terme time the Terme time as I haue heretofore shewed I call the time and those daies when the Lawe is exercised in Westminster hall which as I haue said is but at certaine times and termes every wéeke once at the least which is commonly on Fridaies and Wednesdaies and the next day after that the terme doeth ende the Lorde Chauncellor and the Lordes and other of the priuie Counsell so many as will and other Lordes and Barons which be not of the priuie Counsell and be in the towne and the Iudges of England specially the two chiefe Iudges from ix of the clocke till it be xj doe sit in a place which is called the starre chamber either because it is full of windowes or because at the first all the roofe thereof was decked with images of starres gilted There is plaints heard of riots Riot is called in our English terme or speache where any number is assembled with force to doe any thing and it had the beginning because that our being much accustomed either in foreine wars in Fraunce Scotland or Ireland or being ouermuch exercised with ciuill warres within the Realme which is the fault that falleth ordinarily amongest bellicous nations whereby men of warre Captaines and souldiers become plentifull which when they
haue no externe seruice wherewith to occupie their buisie heads handes accustomed to fight and quarell must néedes séeke quarels and contentions amongest themselues and become so readie to oppresse right among their neighbours as they were woont before with praise of manhoode to be in resisting iniurie offered by their enemies So that our nation vsed hereunto vpon that more insolent at home and not easie to be gouerned by Lawe and politike order men of power beginning many fraies and the stronger by factions and parties offering too much iuiurie to the weaker were occasions of making good Lawes First of reteiners that no man should haue aboue a number in his Liuerie or retinue then of the enquirie of routs and riots at euerie Sessions and of the lawe whereby it is prouided that if any by force or by riot enter vpon any possessions the Iustices of the peace shal assemble themselues remooue the force within certain time enquire thereof And further because such things are not commonlie done by meane men but by such as be of power force be not to be dealt withal of euerie man nor of meane Gentlemen if the riot be found certified to the Kings Counsell or if otherwise it be complained of the partie is sent for and he must appeare in this starre chamber where séeing except the presence of the Prince onely as it were the maiestie of the whole Realme before him being neuer so stoute he will be abashed and being called to aunswere as he must come of what degrée soeuer he be he shall be so charged with such grauitie with such reason remonstrance and of those chiefe personages of Englande one after an other handeling him on that sort that what courage soever he hath his heart will fall to the grounde and so much the more when if he make not his aunswere the better as seldome he can in so open violence he shalbe commaunded to the Fléete where he shall be kept in prison in such sort as these Iudges shall appoint him lie there till he be wearie aswell of the restraint of his libertie as of the great expences which he must there sustaine and for a time be forgotten whiles after long suite of his friendes he will be glad to be ordered by reason Sometime as his deserts be he payeth a great fine to the Prince besides great costs and dammages to the partie and yet the matter wherefore he attempteth this riot and violence is remitted to the common lawe For that is the effect of this Court to bridle such stoute noble men or Gentlemen which would offer wrong by force to any manner men and cannot be content to demaund or defend the right by order of lawe This court began long before but tooke great augmentation and authoritie at that time that Cardinall Wolsey Archebishop of Yorke was Chauncellor of Englande who of some was thought to haue first deuised y ◠Court because that he after some intermission by negligence of time augmented the authoritie of it which was at that time maruellous necessary to doe to represse the insolencie of the noble men and gentlemen of the North partes of Englande who being farre from the King and the seate of iustice made almost as it were an ordinarie warre among themselues and made their force their Lawe banding themselues with their tenaunts and seruauts to doe or reuenge iniurie one against an other as they listed This thing séemed not supportable to the noble prince King Henrie the eight and sending for them one after an other to his Court to aunswere before the persons before named after they had had remonstrance shewed them of their euill demeanor and béene well disciplined as well by words as by fléeting a while and thereby their purse and courage somwhat asswaged they began to range themselues in order and to vnderstand that they had a Prince who would rule his subiects by his lawes and obedience Sith that time this court hath béene in more estimation and is continued to this day in manner as I haue saide before Of the Courts of Wards and Liueries CHAP. 5. HE whom we call a ward in Englande is called in Latine pupillus and in Gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The gardian is called in Latine tutor in Gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A warde or infant is taken for a childe in base age whose father is dead The Romanes made two distinctions pupillum minorem the one to xiiii yere old the other was accounted from thence to xxv And as pupillus had tutorem so minor had curatorem til he came to the age of xxv These tutors or curators were accountable for the reuenues of the pupils minors lands great prouision and many lawes and orders is made for them in the bookes of the ciuil Lawe for rendering iust true accounts So that to be a gardian or tutor was accounted among them to be a charge or trouble a thing subiect to much encumbraunce and small profite so that diuerse meanes were sought for to excuse men from it With vs this is cleane contrarie for it is reckoned a profite to haue a warde For the Lorde of whom the warde doeth hold the land so soone as by the death of the father the childe falleth warde vnto him he seaseth vpon the body of the ward and his landes of which so that he doeth nourish the ward he taketh the profite without accounts and beside that offering to his ward couenable mariage without dispergement before the age of xxl. yeres if it be a man or xiiii if it be a woman If the ward refuse to take that mariage he or she must pay the value of the mariage which is commonly rated according to the profite of his landes All this while I speake of that which is called in French garde noble that is of such as holde lands of other by knight seruice for that is an other kinde of seruice which we call in Frenche gard returier we call it gard in socage that is of such as doe not holde by knight seruice but by tenure of the plough This wardship falleth to him who is next of the kinne and cannot inherite the land of the warde as the vncle by the mothers side if the land doe discend by the father and of the fathers side if the lande discend by the mother This gardian is accountable for the reuenues and profites of the land as the tutor by the ciuill Lawe to the warde or pupill so soone as he is of full age The man is not out of wardshippe by our lawe till xxj yere olde from thence he is reckoned of full age aswell as in the Romane lawes at xxv The woman at xiiij is out of warde for shée may haue an husband able to doe knightes seruice say our bookes And because our wiues be in the power as I shall tell you hereafter of their husbands it is no reason she should be in
paying the rent accustomed shal owe to the Lord a certaine faith duetie trust obedience and as we terme it certaine seruice as libertus or cliens patrono which because it doeth not consist in the persons for the respect in them doeth not make them bond but in the lande and occupation thereof it is more properly expressed in calling the one tenaunt the other Lord of the fée than either libertus or cliens can doe the one or patronus the other for these wordes touche rather the persons and the office and duetie betwéene them than the possessions But in our case leauing the possession and lande all the obligation of seruitude and seruice is gone An other kinde of seruitude or bondage is vsed in Englande for the necessitie thereof which is called apprenticehoode But this is onely by couenaunt and for a time during the time it is vera seruitus For whatsoeuer the apprentice getteth of his owne labour or of his masters occupation or stocke he getteth to him whose apprentice he is he must not lie foorth of his masters doores he must not occupie any stocke of his owne nor mary without his masters licence and he must doe all seruile offices about the house and be obedient to all his masters commaundementes and shall suffer such correction as his master shall thinke méete and is at his masters cloathing and nourishing his master being bounde onely to this which I haue saide and to teache him his occupation and for that he serueth some for vij or viij yeres some ix or x. yeres as the masters and the friends of the young man shall thinke méete or can agrée altogether as Polidore hath noted quasi pro emptitio seruo neuerthelesse that neither was the cause of the name apprentice neither yet doeth the worde betoken that which Polydore supposeth but it is a Frenche worde and betokeneth a learner or scholer Apprendre in French is to learne and apprentise is as much to say in Frenche of which tongue we borowed this worde and many more other as discipulus in Latine likewise he to whom he is bound is not called his Lorde but his master as ye would say his teacher And the pactions agréed vpon be put in writing signed and sealed by the parties and registred for more assurance without being such an apprentice in London and seruing out such a seruitude in the same Citie for the number of yéeres agréed vpon by order of the Citie amongest them no man being neuer so much borne in London and of parentes londoners is admitted to be a Citizen or frée man of London the like is vsed in other great Cities of Englande Besides apprentises others be hired for wages and be called seruaunts or seruing men and women throughout the whole Realme which be not in such bondage as apprentises but serue for the time for daily ministrie as serui and ancillae did in the time of gentilitie and be for other matters in libertie as full frée men and women But all seruaunts labourers and others not maryed must serue by the yere and if he be in couenaunt he may not depart out of his seruice without his masters licence and he must give his master warning that he will depart one quarter of a yere before the terme of the yere expireth or else he shalbe compelled to serue out an other yere And if any young man vnmaried be without seruice he shalbe compelled to get him a master whom he must serue for that yere or else he shalbe punished with stockes and whipping as an idlè vagabond And if any man maried or vnmaried not hauing rent or liuing sufficient to maintaine himselfe doe liue so idely he is enquired of and sometime sent to the gaole sometime otherwise punished as a sturdie vagabond so much our policie doth abborre idlenesse This is one of the chiefe charges of the Iustices of peace in euerie Shire It is taken for vngentlenesse and dishonour and a shewe of enmitie if any gentleman doe take an other gentlemans seruaunt although his master hath put him away without some certificate from his master eyther by word or writing that he hath discharged him of his seruice That which is spoken of men seruaunts the same is also spoken of women seruaunts So that all youth that hath not sufficient reuenues to maintaine it selfe must néeds with vs serue and that after an order as I haue written Thus necessitie want of bondmen hath made men to vse fréemen as bondmen to all seruile seruices but yet more liberally and fréely and with a more equalitie and moderation than in time of gentilitie slaues and bondemen were woont to be vsed as I haue saide before This first and latter fashion of temporall seruitude and vpon paction is vsed in such countryes as haue left off the old accustomed maner of seruaunts slaues bondemen and bondwomen which was in vse before they had receiued the Christian faith Some after one â—ort and some either more or lesse rigorouslie according as the nature of the people is enclined or hath deuised amongest themselues for the necessitie of seruice Of the Court which is Spirituall or Ecclesiasticall and in the booke of Law Court Christian or Curia Christianitatis CHAP. 9. THe Archebishops and Bishops haue a certaine peculiar iurisdiction vnto them especially in foure maner of causes Testamentes and legations Tythes and mortuaries mariage and adulterie or fornication and also of such things as appertaine to orders amongest themselues and matters concerning religion For as it doeth appeare our auncestors hauing the common wealth before ordeined set in frame when they did agree to receiue the true and Christian religion that which was established before and concerned externe policie which their Apostles Doctors and Preachers did allowe they helde and kept still with that which they brought in of newe And those things in kéeping whereof they made conscience they committed to them to be ordered and gouerned as such things as of which they had no skill as to men in whom for the holinesse of their life and good conscience they had a great and sure confidence So those matters be ordered in their Courts and after the fashion and maner of the lawe ciuil or rather common by citation libel contestationem litis examination of witnesses priuilie by exceptions replications apart and in writing allegations matters by sentences giuen in writing by appellations from one to an other as well a grauamine as a sententia definitiua and so they haue other names as Proctor Aduocates Assessors Ordinaries and Commissaries c. farre from the manner of our order in the common lawe of Englande and from that fashion which I haue shewed you before Wherefore if I say the testament is false and forged I must sue in the spirituall lawe so also if I demaunde a legacie but if I sue the executor or administrator which is he in our lawe who is in the ciuill lawe baeres or bonoruÌ„ mobilium