THE BOOK Called, The Mirror of Justices: Made By ANDREW HORN. With the Book, called, The Diversity of Courts, AND Their Jurisdictions. Both translated out of the old French into the English Tongue. By W.H. of Gray's Inn Esquire. Cassiodor. jura publica, certissima sunt virae humanae solatia; infirmorum anxilia, impiorum frana. Imprinted at London for Matthew Walbancke. at Gray Inn gate. 1646. The Translator to the READER. Courteous Reader: IT hath ever been an Objection (grounded upon ignorance,) which hath been made by the meaner sort of the people to traduce the Common Laws of England, and to bring the Professors thereof into contempt, to give out Speeches, and cast it in the teeth (as it were) of them, That the said Laws are built but upon a sandy foundation, viz. the conceits of a few men, and that they are not grounded upon the Laws of God; from which all Laws of men ought to flow, as from a clear and pure Fountain. This vulgar conceit and objection hath been principally nourished amongst them, because the Common Laws have been kept from their view and understandings, being for the most part published in the French Tongue. I must ingeniously confess, That since it is a received Maxim amongst us, That ignorance of the Law doth excuse no man, that it were good that the fundamental Laws were published in our Mother Tongue, that so no person might be miscounsant thereof. And I have observed, that it hath been the course and care of most of the late Publishers of our Laws, to put them forth in such Language as the common people might the better know them, and practise the due observation of them. But that I may with the more ease and plainness answer that frivolous Objection, remove that fond conceit of the ignorant, vindicate our Commnn Laws from so foul an aspersion, and let the Objectors see from whence our Laws deduce their Original (though the learned Author in the ensuing Treatise hath in part done it) yet for the clear manifestation thereof I shall entreat the courteous Reader to be pleased favourably to accept of this short Breviary of the Grounds and originals of the Common Law, which I shall apply only as an introduction to the Work which followeth. All Laws are comprehended under a division: 1. The Law of Nature. 2. The Law of God, of Faith, or of the Gospel. 3. The Law of man, made upon the Dictates of Reason; upon all which Laws the Common Laws of England are built, as upon firm and sure foundations. The First is, that which is called the Law of Nature, which is ordained of God, and may be called God's Law, united unto man's nature; Gen. 1. ver. 26,27. for what was that Image of God in man, consisting of righteousness, holiness and truth; but Lex primordialis, a primordial Law, exactly requiring, and absolutely enabling the performance of duties of Piety unto God, and of equity to men both in habit and Art. St. Ambrose Amiquam scripte fuit lex in hominum mentibut vigebat. God in the beginning wrote his Laws in men's hearts, and therefore according unto the opinion of most learned Divines and Legists: Lex nature nibil aliud est quam participatio legis eterne in rationali creatura; And according to others, Lex naturae est lamen ac dictamen illud rationis, quo inter bonum & malum discernimus. The most principal Precepts of the Law of Nature) which are also Maxims and Grounds of the Laws of England) are 1. Deum venerari, 2. Honestè vivere, 3. Patrie magistratibus, & parentibus obedire, 4. Alteri ne facias quod tibi non vis fieri. 5. Suum cuique tribuere. 6. Tollere nocentes è medio propter servandam publicam salutem. 7. Rerum dominia proprietates, possessiones, & usum distinguere; To honour God, to live honestly, to obey Magistrates, etc. to do as we would be done unto, to render every one his due, to punish the guilty for the preservation of the Public, to distinguish and settle the Dominion, propriety, possession, and use of temporal things. These fundamentals of the Law of Nature are not principally acquired or obtained by Art, or Doctrine, but naturally engrafted. Learning and instruction serve only to bring forth and increase those natural Seeds; but neither Learning nor instruction do principally and originally give them; they are (faith Socrates) but as skilful Midwives, Socrates. whose office it is only to further the birth of the Child not to beget the Child. The Second is the Law of God, the Law of Faith, or of the Gospel; which may well be called Lex amoris, the Law of love. Is not this Nation Christian? Hath it not professed the common Faith for 1200. years? Do not our Laws all tend to the maintaining of peace, concord and love fruits of the Gospel? Are not all Statutes, Acts of Parliament, Constitutions Customs, made and used for the government of this people, founded upon such principals? Let the Objectors cite me any Law in use now amongst us, which is not warranted by some express Gospel, Text, either in the Letter, or not by necessary consequence drawn from it; sure I am that every Law, Custom, Usage, Privilege, Prescription, Act of Parliament, or Prerogative, which doth exalt itself above or beyond the Law of God, the Law of Christ, or the Law of Nature hath ever by the worthy Sages of our Laws been declared to be void It were to no purpose to instance upon particulars, it is sufficient to say; That as it appertaineth to all godly and Christian men to observe and keep this Law; so to let all men know, that we are instructed by the worthy Professors of the Gospel of Christ, in the fundamental Rules and grounds of this Law, to live after it, and to direct all our words and actions according to it; and by it, and therefore I shall not say more of it. The third the Laws of men, and the municipal Laws of this Realm, which although they may seem to some to have their progeny from men, (for as Solon to the Athenians, Lycurgus to the Lacedæmonians, Numa Pompelius, and Actius Claudius to the Romans, were accounted the Principal Authors and givers of Law to those several Nations; so Alured on Alfred, Athelstone, Edmundus, Edgar, Canutus, Edward the Confessor, William the first, and Henry the first, called Beauclark, noble and famous Princes of this Nation, part of all whose Laws are yet in force, were the chief promulgers of many necessary and good Laws yet in use with us in this Realm) yet if we look into their Laws we shall find, that most of them have their rise from a higher power, from the Law of God, and the Law of Faith. It is true, Dan. Hist. in tit. Wil Conq. Cicero l. 1. De legibus. that some Historiographers have written, that the original of the Common Laws now in use flowed first out of Normandy, I shall decline that as to the generality; but as Cicero was bold to derive the pedigree of his Roman Law from the great God Jupiter, so I hope without offence I may be emboldened in the person of our Common Law, to say, That when the Laws of God, and Reason came first into England, then came I in. The Temporal Laws of this Kingdom may be divided into three parts. 1. The general or Common Law. Bracton. lib. Serm. 2. The customary Law: 3. Statute or Parliament Laws; the end of all which are, sopianter jurgia & vitia propulsenter, & ut in regno conservetur pax & justitia. The Common Law is nothing else but pure and tried Reason (Responsa prudentum) allowed and known containing the Principals and Maxims of Law (consonant unto the Laws of God) with a certain method for the orderly proceeding therein; Egerton, Postant. the rest consisting in the minds of the Sages of the Law, ready by Argument to approve what is truth, and underpropt with Authorities to condemn what is false. The customary Laws are certain ancient Customs grounded upon Reason, which abridge the course of the Common Law. The diversity of Customs have grown by reason of the several Nations who have had government over this Kingdom; as 1. The Britain's. 2. The Romans. 3. The Britain's again. 4. The Saxons. 5. The Danes, and lastly the Normans; all which sorts of people have left behind them within this Realm part of their Language, and part of their Country usages. The Customs within the Realm are called by several names: as As Customs. As Prescriptions. As Usages. As By Laws. Customs extend properly to Conntries, Cities, Boroughs, Towns Corporate, and large Signiories. 2. Prescriptions run with persons who have capacities to have Interests and properties. 3. Usages refer to Places or Towns not incotporate, as to Inhabitants and the like. 4. By-Lawes are properly made in Courts by the Tenants of the Manor or Precinct, or out of Courts, with a common consent for good order and Neighbourly usage. The efficient causes of good and lawful Customs are, Reason and Time, the one begetting, the other bringing forth and continuing the same; in one place Master Lit saith, This is a good Custom, because it stands with some reason; Litt. pl. 209.212. in another, This is a void Custom because it is against reason. 3 The last is Statute or Parliament Laws; Parliaments have been ancient, they were in the time of the Saxons, long before the Norman Conquest (for as the Proverb is) In the time of the Danes, the Laws lay then in water, the people were governed rather by Prince's wills then public Laws, for then (as one saith) Sepultum fuit jus in regno, leges & consuitudines simul sopitae, temporibus illorum prava voluntas vis & violentia magis regnabunt, quam judicium in terra.) And although in the Saxons time I find the usual words of the Acts then to have been: Edictum, Constitutio, little mention being made of the Commons, yet I further find that, Tum demum leges vim & vigonem habuerunt, cum fuerunt non modo justituta sed firmatae approbatione Communitatis. Our Author and others tell us, 20. H. 7.7. c. 12. part 86. That the administration of Justice was only originally in the Crown, Bracton, lib. 2. cap. 24. and Kings in their own Persons road Circuit every seven years through the Realm, to hear the Complaints of their People, and to redress Public grievances. But after the division of the Realm into Shires, public Courts were erected; as the County Court, Sheriffs Turns, Hundred Court, Court Leets, Views of Frankpledges, and Court Barons, for the conservation of the King's Peace, and the hearing and determining of all differences, Debts, Contracts, etc. which might arise betwixt Party and Party; and all persons were forted into Companies or Societies, wherein ten of the principal men called, Capitales plegii, or Franchi plegii, because they were Freemen, stood as Sureties for the residue, that they should stand to Justice, and not fly from it when they had committed any offence; The Law of Saint Edward is most excellent to that purpose in these words; Legis Sancti Edwardi in Lambert. Est quedam summa & maxima sccuritas qua omnes Statu firmissimo sustinentur, viz. unusquisque stabiliat se sub fidejussionis sccuritate, (quod Angli vocant Friburber;) Haec securitas hoc modo fiebat, quod de omnibus villis totius Regni sub fidejussione decemali debeant esse universi: And to that purpose also is the Ordinance of King Alured: Decrevit Aluredus ut liberae conditionis quisque in Centuriam aseriberetur aliquam atque in docemvirale coniiceretur Collegium, the difference only consisting in this, That King Alureds' Law extended but to Freemen, Saint Edward's to all men. This Decemalis fidenissio, or Decemvirale Collegium, by our Author is called the Decenery, who were charged to bring forth the Person of every offender to answer unto the Law; Bracton, lib. 3. cap. 10. whereof Mr. Bracton speaketh in these words: De eo autem qui fugam fecerit (he speaketh of one after a Felony committed) Diligentur erit inquirenum si fuerit in Franciplegio & decenna, & tunc erit decenna in misercordia coram Justiciariis quia non habent ipsum malefactorem ad rectum. 13. H. 4.13.6. And according to that Law if a Felon after his flying, or conviction were possessed of Goods, the Town or Decenary was answerable for the same. And if the same were imbesselled, or holden from them, the Decenery might seize those goods in whose possession soever they were found; as appeareth by 3. E. 3. Itin North, Fitz Corone 366. quod vicecomes & Decennarii sesire possunt cattella felonum in manus Domini Regis; Et vic. cattella illa deliberabit villae ad respondend. Regi in itinere, quod si vic. nec Decinnarii sesicrint villa respondebit dom. regi in itenere, but this Law hath been since altered by the Statute of 3. E. 3. I have Courteous Reader stood the longer upon these things, as well to vindicate the Common Laws from those weak cavils of the ruder sort, as to demonstrate the care our ancient Kings and Counsels have had for the peaceable Government of the people of the Land, according to the right rules of Justice, deduced from the Law of Nature, of God, and of right Reason; and I wish that Princes in this age would consider and put in practice, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Demoth. that golden Rule of Demosthenes: Benè gubernare, rectè judicare, justè facere; so should their Kingdom's flourish, and they themselves be in high estimation in the eyes of all their people. In these distracted times, wherein the fundamental Laws, and Liberties of the Subject have been by a Malignant Party so much opposed, I have offered this Treatise, entitled, The Mirror of Justices; I have translated the same out of the French Tongue into English: In this Book many of those fundamental Laws so much of late called upon, are to be found (though I do not warrant all in this Book to be Law at this day; many of the Laws being absolete, and altered by Acts of Parliaments and common usages) It hath been some difficulty for me to finish it: And although that the Manuscript Copy be in the Original very imperfect: the French impression by mil joining of words in many places without sense, and false Printed; the Terms of Law therein for the most part obsolete and worn out; yet have I endeavoured (as all Translators of Books, especially of Books of the Law ought) to keep myself close to the words and meaning of the Author, and of the Law then in use and practise, well knowing, that Laws many times have their interpretation according to the strict Letter, and not according to such flourishes of Rhetoric and Oratory as may be put upon them. I entreat thee, Courteous Reader, to accept of it as it is; if thou find any Errors in the Translation (as I suppose thou mayst do many) to pass them over, or amend them: If thou find any thing in the Work it itself which may advance the Common Laws, or the Liberties of the Subject, or set forth the true Prerogative of Kings, to weigh them in the Balance of Justice: If thou find any thing therein not fit to be published in these days of distraction betwixt the King and prople, Consider that this Work was written in in the time of King Edward the first: Consider again, it is not mine, but the Authors; who for his Antiquity and Learning in the Laws of the Realm then in use, hath found the favour and honour to be cited by many of the grave Sages of our Public Laws; so I commend it to thy favourable acceptance, and bid thee farewell: Thy friend, who in his desires strives that the Common Laws of the Land may now and for ever flourish. W. H. The PREAMBLE. When I perceived divers of those who should Govern the Law by Rules of Justice, to have a respect to their own earthly profit, and chief to please Lords, and their friends, and to have a respect thereunto, and not to give their consents that the right Usages should be ever put in writing, whereby power might be taken from them to pervert Judgement, and others to banish or disinherit without punishment for the same; covering their offences by the exceptions of Error and Ignorance, never or little regarding the Souls of Offenders condemned by their Judgements, as their duties and places required; having used to Judge the people according to their own heads by Abusions, and by the Examples of others erring in the Law, rather than by the Rules of the Holy Scripture, greatly to have erred from the true understanding thereof, building without any Foundation, and to Judge and have Cognizance, and Jurisdiction in that which they little understood both in the Law of the Land, and of the Law of the Persons; as it is of those who take upon them Art to pronounce false Judgements, and by their Executions falsely to pervert the Privileges of the KING, and the ancient Rolls of his Treasure. Taking the same into my serious consideration, and the Foundation and Original of the Usages of England given by the Law, together with the Rewards of good Judges, and the punishments of others; I thought it needful (wherein my Companions gave me their assistance) to study the Old and New Testament; and therein we found, That the Law is nothing else but Rules, delivered by our holy Predecessors in the Holy Scriptures, for the saving of Souls from perpetual Damnation, notwithstanding that the same were disused by false Judges. And we found that the Holy Scripture remained in the Old and New Testament. The Old Testament contained 3. orders. The Law. The Prophets. The Hagiographies. In the Law there are five Volumes Genesis. Exodus. Leviticus. Numbers. Deuteronomy. In the order of the Prophets are eight Volumes. Josua. Judges. Samuel with the 1. and 2. of Kings. The 1. and 2. of Kings. Esay. Jeramy. Ezekiel. The Books of the 12. small Prophets. In the order of Hagiographie are Job. The Psalms. Proverbs of Solomon. Ecclesiastes. The Song of Solomon. Daniel. Paralipomenon. Esdras. Hester. And besides these there are Books in the old Testament, although they are Not authorized Canonical. Toby. Judeth. Maccabees. Ecclesiasticus. The New Testament contain 3 Books. The Evangelists. The Apostles. The holy Fathers. The Evangilists contain 4 Volumes. The Epistles of St. Paul. The Epistles of the Canon. The Revelation. The Acts of the Apostles. The writings of the Apostles contain four Volumes. Of the writings of the Fathers there is no certain matter agreed upon. And we find that our Laws were agreeing to Scriptures, and that they were in a Language best known both for the help of us and the common people. And for the condemning of false Judges, I compiled this little Book of the Law of Persons, into 5. Chapters, that is to say, 1 Of offences against the peace. 2 Of Actions. 3 Of Exceptions. 4 Of Judgements. 5 Of Abusions. Which Book I have called The Mirror of justices, according as I have found their virtues, and the most excellent substance after the time of King Arthur, used by holy usages according to the Rules aforesaid; and I desire you that you would amend the defects therereof, according to such lawful and true warrants as you prove, both to learn the truth, and confound the daily abuses of the Law. ERRATA. FOl 4. l. 18. for jarrickshire, r. Everwickshire. f. 5. l. 12. r. after. f. 7. l. 5. r. estray. f. 10. l. 1●. r thence f 10. l. 20. r. exigent. f. 11. l. 22 r. right heirs. f. 12. l. 8. r. that married before. f. 13. l. 5. add they. ib. l. 6. r. Escuage. f. 14. l. 20. r. good. f. 14. l. 35. r. disseisins. f. 16. l. 27 r. Heresy. fi 19 l. 5. r. chinniage. f. 25. l. 5. r. offence. f. 28. l. 18. r. not. f. 30. l. 11. r. duresse f. 34. l. 19 put out, to f. 35. l. 6. after appoineed. ad time f. 30. l. 1. r. trove f. 47. l. 10. r. unknown. f. 49. l. 3. r. done. f 63 l. 10. r. endictee. f. 65. l. 3. r. Countors. f. 66. l. 12. put our (as) f. 69. l. 24 r. seisin. f. 70. l. 5. put out (the) f. 76. l 9 r. contumacers. f. 77. l. 8. put out (the) f. 93. l. 34. r. disscisin. l. 16. r. Darcein presentment. l. 15. r. Mortdamicester f. 99 l. r. promy t. An. f. 102. l. 17. r. l. eplegiary facias. f. 103. l, 18. put out (of) f 1105. after 100 f. r. five pounds. f. 116 l 30. r, resummons. f. 123. l. 29. add (in) f. 126. l. 3 r. felony. f. 150. l. 6. add (not) f. 152. l. 28, 29. r. diffesivit. f. 154. l. 8. r. waging. f. 155. l 14, ad (not) f. 156. 33. r. Record. f. 163. l. 29. r. enjoyed. f. 167. l. 14. r. plaintiffs f. 267. l. 26 put out (not). f. 168. l. 27 add (be) f. 176. l. 23. r. plaint. f. 178. l. 14. r. remove. f. 181. l. 2●. where the blank is, put (demean) f. 183. l, 16. 18. r. Law. f. 190. l. 10. r. pecuniary. f. 191 l 3. r. they. f. 192. l. 9 r. judgement. f. 198. l. 3. r. if. f. 201. l. 30. r. contradict. f. 208. l. 11. r. by breach. f. 209. ●. 31. r. or by. f. 215. l. 18 add (say) f. 217. l. 9 put out (done) f. 220. l. 4. r. bought. f. 226. l, 28 r. payment or brasie. f. 228. l. 8. r. forcjudged. f. 229. l. 8. r. in. f. 230 l. 32. r. mortal. f. 239. l. 1. r. rarely. f. 240. l. 19 r. assist. f. 243. l. 17 ●had. f. 256. l. 33. r. grantiog. f. 274. l. 17. r. servants. f. 288. l. 28. r. tent f. 287. l. 27. r. delivered. f. 304. l. 17. r. consideraverit. f. 308. l. 3. r. ville●●b. l. 7. r. scientes. f. 312. l. 4. r. consuram. f. 324. l. 28. r. quaerens. ibid. l. 28. r. netvi. f l 318. l. 2. r. confessed. f. 320. l. 1. in the blank put the word (mark) f. 322. l. 23. r. possessor. ibib. l. 28. to et per. i. of. r. quaerens recaperit. f. 325. l. 12. r. bos●●. ibid. l. 17. r. 〈◊〉 it. ibib. l. 13. r. villa. l. 25. r. prefato. f. 324. l. 11. r. conduction 〈◊〉 l. 13. r. impedit. ibid. r. plona; lie. f. 325. l. 16. r. pe●lapidem. 〈◊〉 l. 17, 18. r. jur●. l. 2●. ad per. The Contents of the first Chapter. OF the Original of the Law. Of the coming of the English into this Land. Of the first Constitutions. Of Offences, and their division. Of the Crime of Majesty. Of falsifying. Of Treason. Of Burning. Of Murder. Of Larcine. Of Burglary. Of Rape. Of the Office of the Coroner. Of the Exchequer. Of inferior Courts. Of the Turns of Sheriffs. Of Viewes of Franckpledges. CHAP. I. SECT 1. Of the Offences against the Peace. Of the Original of the Law. ALmighty God shown more love to Man then to any other creature; when he made him after his own image and gave him understanding; considering that he stood continually ready to fall into sin by three manner of Adversaries, and therefore he gave the Law to force and drive sinners to salvation by earthly punishments; That for the pure love of God men would abstain from sin, and thereof made Moses their Teacher, which place the Pope now holdeth. That Law by Ordinance of our holy Predecessors is divided into two Volumes; into the Cannon Law, which consisteth in the amendment of Spiritual offences; First, by Admonitions, Prayers, Reproofs, Excommunication; Secondly, into the written Law, which consisteth in the punishing of temporal Offences, by Summons, Attachments, and punishments or penalties. Of the Spiritual Law, the Prelates judged; and say Princes of the other Law: The Law whereof this sum is made, is the written Law of the ancient usages warranted by the holy Scripture. And because it is given to all in general, it is called the Common Law. And because there was no other Law but that, were general Counsels and Parliaments in use, and that diversely in several places, according to the qualities of the people of divers Countries, and Boroughs; they were according to ancient privileges changed for the ease of the people of those places. All our Usages and Laws are also laid for the keeping and exaltation of the peace of God; and therefore it is to be known, That the people are not to be adjudged by similitudes and examples not canonised, but by the love of Peace, of Chastity, of Temperance, of Charity, of Mercy, and of good Works. CHAP. 1. SECT. 2. Of the coming of the English into this Realm. AFter that God brought down low the Nobility of the Britons, who used more force then right, he delivered the Realm to the most humble and simple of all the countries adjoining; that is to say, to the Saxons, who from the parts of Almain became Conquerors thereof, of which Nation there were forty Sovereigns who were Companions. These Princes called this Land (England) which before was called Great Brittainie, or Britania Major. These Princes after great wars, tribulations, and troubles, suffered for a long time, chose themselves one King to Reign over them, to govern God; people, and to maintain and defend their Persons and their goods in peace by Rules of Law. And at the beginning they made the King to swear; That he should maintain the Christian Faith with all his power, and govern his people by Law, without having regard to the Person of any one; and that he should be obedient to suffer Right as well as his other people should be. And afterward this Realm was divided in Inheritances according to the number of those Companions who then remained in the Realm, into parts, by Shires, and every one had a Shire delivered unto him to keep and defend against the enemies, according to every one's estate; That is to say. Berkshire Bedfordshire Buckinghamshire Cornwall Chestershire Cumberland Dorset Devonshire Darbyshire Essex Barrickshire Yorkshire Norfolk Not●inghamshire Northumberland Northamptonshire Oxfordshire Rutlandshire Suffolk Gloucestershire Cambridgeshire Hertfordshire Herefordshire Huntingtonshire Kent London Leicestershire Lancashire Lincolnshire Middlesex Surrey Southampton Somersetshire Shropshire Staffordshire Wiltshire Westmoreland Worcestershire. And although that the King ought not to have any Peer in the Land; nevertheless because that the King of his own wrong if he offend against any of his people, not none of his Commissaries can be Judge and Party; It was behooveful by the Law that he should have Companions, to hear and determine of all Writs, and Plaints, of all wrongs, as well of the King, as of the Queen, and her Children; and of those especial where one could not have otherwise Common Right: These Companions are now called Countees, Earls, according to the Latin Comites; and so at this day are those Shires called Counties, in Latin Comitatus; and that which is without these Counties, belongeth to the English by conquest. Afer that time, these Companions, after the division of the Realm into Shires, divided their people which they found scattering about into Centuties, and to every Century they appointed a Centeyner, and according to the number of the Centuries spoke every Shire; and to every Centeyner they assigned his part by Metes and Bounds, to keep and defend the same with his Century, so that they were ready to run to their Arms at all times when the enemies came, or other needful occasion was. And these divisions in some places are called Hundreds, according to the number of the first people; and in some places tithings, or Wapentakes, according to the English; (which is in French, taking of Arms) These divisions they made, whereby the Peace, which consisted in charity and true love, was kept and maintained. CHAP. 1. SECT. 3. Of the first Constitutions made by the ancient Kings. Of King Alfred. FOr the Estate of the Realm, King Alfred caused the Earls to meet, and Ordained for a perpetual usage, That twice in the year, or ostner, if need were, in time of Peace they should assemble together at London, to speak their minds for the guiding of the people of God, how they should keep themselves from offences, should live in quiet, and should have right done them by certain usages, and sound judgements. By this Estate many Ordinances were made by many Kings, King Ed. 1. until the time of the King that now is; the which Ordinance; were abused, or not used by many, nor very currant, because they were not put into writing, and certainly published. One of the Ordinances was; That every one should love his Creator with all his soul, and according to the points of the Christian Faith; And wrong, force, and every offence was forbidden. And it was assented unto, that these things following should belong to Kings, and to the Right of Crown. Sovereign Jurisdiction. The Sovereign Jurisdiction throughout the whole Land unto the midst of the Sea encompasaing the whole Realm, as franchises, treasure found in the Land, Waife, Estray; goods of Felons and Fugitives which should remain out of any one's rights, Counties, Honours, Hundreds, Wards, Goals, Forests, chief Cities; the chief Ports of the Sea, great Manors; these Rights the first Kings held, and of the residue of the Land they did infeoff the Earls, Barons, Knights, Sergeants and others, to hold of the Kings by the services provided, and ordained for the defence of the Realm according to the Articles of the ancient Kings. Also Coronors were ordained in every Country, and Sheriffs to defend the Country, when the Counties were dismissed of their Guards, and Bailiffs in the places of Centyners. And the Sheriffs and Bailiffs caused the Free-Tenants of their Bailiwicks to meet at the Counties and Hundreds; at which Justice was so done, that every one so judged his Neighbour by such judgement as a man could not elsewhere receive in the like cases, until such times as the customs of the Realm were put in writing, and certainly established. And although a Freeman commonly was not to serve without his assent, nevertheless it was assented unto, that Free-Tenants should meet together in the Counties, Hundreds, and the Lord Courts, if they were not especially exempted to doesuch Suits, and there judged their Neighbours. And that Right should be done from 15. days to 15. days before the King and his Judges, and from month to month in the Counties, if the largeness of the Counties required not a longer time; and that every three weeks Right should be administered in other Courts; And that every Free-Tenant was bound to do such suit; And every Free-Tenant had ordinary jurisdiction: And that from day to day the Right should be hastened of Strangers, as in Courts of Pipowders according to the Law-Merchant. The Turns of Sheriffs and views of Free-pledges were Ordained; and it was Ordained, That none of the age of 14. years or above, was to remain in the Realm above forty days, if they were not first sworn to the King by an Oath of Fealty, and received into a Decenery. It was Ordained; That every Plaintiff have a remedial Writ to his Sheriffs, or to the Lord of the Fee in this form. Questus est nobis C. quod O. etc. Et ideo tibi (vices nostras in boc parte committentes) precipimus quod causam illam audias & legitimo fine decidas. It was Ordained; That every one have a remedial Writ from the King's Chancery, according to his plaint without difficulty, and that every one have the Process from the day of his plaint without the seal of the Judge, or of this Party. It was Ordained; That Coroners should receive Appeals of Felony, and should give the Judgements of Outlawries, and should make the visnes in the Causes aforesaid; And that all the next Towns should present to the Coroners in the County the mischances of the bodies of the people, and the names of the finders. And that every Country should present Felonies, Mischances, and other Articles presentable in the Eyres for offences, that the Kings might send to summon them to appear against the coming of the Kings, or of the Justices assigned to hold all Pleas. And for the great damages which the Commons suffer by Amercements issuing out for Concealments, and for fault of these presentments in Eyres it was agreed unto; That these presentments in Eyres should be by the Coroners chosen by all the Commons of the County, and so the Coroners are as it were the Commons Bailiffs as to these Charges: nevertheless they are the King's ministers, because they take an Oath to him. For personal trespasses, nevertheless the Coroners are only punishable without any damage to those who chose them, unless they have not sufficient wherewith to satisfy for their trespasses. The Exchequer was Ordained in manner as followeth; and the pecuniary penalties of Earldoms, and Baronies certain, and also of all Earldoms and Baronies entire or dismembered; and that those Amercements were afferred by the Barons of the Exchequer, and that the Estreats of the Amercements be sent into the Exchequer though they were amerced in the King's Court. It was Ordained; That after a plaint of wrong be sued, that no other have jurisdiction in the same place, before the first plaint be determined; and from the 〈◊〉 came this clause in the Writ of Right, Et nist foreris vicecones saciat. It was Ordained; That every one of the age of fourteen years and above should be ready to kill mortal offenders in their notorious sins, or to follow them from Town to Town with Hue and Cry; and if they could not kill them, the offenders to be put in exigent, and Outlawed or banished. And that none should be Outlawed but for a mortal offence, and in no other County but where he committed the offence. It was Ordained; That the King's Courts should be open to all Plaints, by which they had original Writs without delay, as well against the King or the Queen as against any other of the people for every injury but in case of life, where the plaint held without Writ. It was Ordained; That no King of this Realm should change his money, nor impair it, nor inhannse it, nor make any other money but of Silver, without the sssent of the Lords and all the Commons It was Ordained; That Felonies should be tried by Appeals, and that Appeals might sometimes be ended by Battle, and that Exigents of the Offenders should continue by three County Courts before the Outlawrie. It was Ordained; That all Free-Tenants should be obedient, and appear at the Summons of the Lords of the Fee, and if one caused a man to be summoned elsewhere then in the Fees of the Avowants, or oftener than from Court to Court, that they were not bound to obey such smmmons, if not at the charges of the Avowants of the Summons. It was Ordained; That Knights Fees should come to the eldest Son by mecession of Inheritance, and that Socage Lands should be partable amongst the Heirs rights, and that none might alien but the fourth part of his Inheritance without the consent of his Heir, and that none might alien his Lands by Purchase from his Heirs, if Assigns were not specified in the Deeds. It was Ordained; That every one might endow his Wife Adestúm Ecclesia, or of the Monastery without the consent of his Heirs; that Heir Females, nor Widows should not Marry themselves without the assent of their Lords, because the Lords were not bound to take the Homages from their Enemies, or other unknown Persons, and the same is forbidden upon pain of Forfeitures, whether their Parents were cousenting thereunto or not; and that Widows in case they Mary without the consent of the Guardians of the Lands should lose their Dowries; That those also should be disinherited or lose their Dowries before that they Married; Widows nevertheless this should not forfeit their Inheritance for whoredom, and that the eldest Son should forfeit nothing to the prejudice of his Ancestor, nor his Heirs living the Ancestor whose Heir apparent he is. It was Ordained, That the Lords of Fees might Summon their Tenants by the award of their Peers into the Lords Courts or into his Counties, or the Hundred at all times that they detain or deny to do their services in Deed, or in Word, Etè contra, that is to say; The Lords against the Tenants, and there they shall be acquitted or forfeit their Allegiance with the appurtenances by the judgement of the Suitors, and all their Tenancy; and the Tortuous or outrageous Lords shall lose their Fees and the Services, and the Tenements shall go to the chief Lords of the Fee. It was forbidden, that none be destreyned by his movable goods, but by their bodies, or by their Fees, except in special Cases after mentioned. It was Ordained that Infants should be in Ward; with their Lands and Goods, and that the Guardians should answer for Trespasses done by their Wards, and give satisfaction to those who were damaged, except of Felonies; and that their Marriages should be to the Lords, and that should have Escuage Relief and Aids of their Tenants which they held of the Lords, as to make the Heir of the Lord Knight, and to Marry their eldest Daughters, and that the Heirs males should do homage to their Lords, and the Females should swear fealty: and that the Inheritance should descend to all the Children by warrant of right of the possession, and that the male should bar the female, and the next the more remote by warrant of right of propriety. It was Ordained; That offenders guilty of death should not be suffered to remain amongst the guiltless, and that the King should have the value of the Lands and the rent for one year, and the waist of Felons Lands; and also that he should have all Deodand; and that the Goods and Chattels of Usurers should remain as Escheates to the Lords of the Fèes. Essoines were Ordained in mixed and real Actions, and not in personal Actions, as after is said. It was forbidden that any one should alien the profits of his Lands, or his Rents to any one out of the Realm; and it was also forbidden, that none sold Wine in the Kingdom but by Tonnell or Pipe. It was forbid that no money was to be carried out of the Realm; and that none should carry Wool out of the Kingdom, nor should kill Lamb, or Calf which might live, nor Ox which was not gelt. It was forbidden; That no Bishop doordaine Lay-m●n to the Order of Clerks above the number which are sufficient to serve the Churches, whereby the King's Jurisdiction be destroyed: It was Ordained, That the poor should be sustained by Parsons, Rectors of the Church, and by the Parishioners, so that none of them die for want of sustenance. It was Ordained, That Fairs and Markets should be in places, and that the buyers of Corn and Cattell should pay Tole to the Lords Bailiffs of Markers or Fairs; That is to say, a false penny of six shillings of good, and of less, less, and of more, more; so that no Tole exceed a penny for one manner of Merchandise: and this Tole was given to testify the Contracts, for that every private Contract was forbidden. It was Ordained; That no action was receiveable to Judgement, if there was not a present proof by Witnesses or other things; and that none was bound to Answer to any Suit, not to appear to any Action in the King's Courts before the King's Justices, before they found Sureries to Answer damages, and the costs of Suit if damages lay in the C●se, except in four offences; Diss●rsins, Cirtification of Dissersius, Attaints, Rediffeisius and other Cases. To which Ordinance King Henry the first put this mitigation in favour of poor Plaintiffs, that those who had not sufficient Sureties present, should make satisfaction according to their ability, according to a reasonable taxation; and in the same manner in Summances, and in hatred of Perjury Attaints were Ordained in all Actions. It was forbidden; That no Merchant Alien should repair into England but at four Fairs, and that none such should remain in the Realm above forty days. Of the Courtesy of King Henry the first, It was granted; That all those who survived their Wives who were with child by them, should hold their Wife's Inheritance for ever. Many other Ordinances were made by them, and since have been made in aid of the Peace, according as afterwards shall be said. CHAP. 1. SECT. 4. Of Offences, and the Division of them. THe division of Offences is according to that which appeareth by the punishment. Mortal, or Venial. The mortal Offences are these: Of Majesty, Falsifying, Treason, Burning, Larcency, Burglary. Homicide, Of the Offence of Majesty. The Crime of Majesty is an horrible offence done against the King; and that is either against the King of Heaven, or an earthly King. Against the King of Heaven in three manners. Heresy, Venery, Sodomy. Against the earthly King in 3. manners. 1 By these who kill the King, or compass so to do. 2 By those who disinherit the King of his Realm, by bringing in an Army, or compass so to do. 3 By those Adulterers who ravish the King's Wife, the King's lawful eldest Daughter before she be married, being in the King's custody; or the Nurse, or the King's Ant, heir to the King. Heresy is an evil and false belief, arising out of Error of the true Christian Faith; under this offence is Witchcraft o● Divination, which are members of Heresy; and in case less notorious they come by presumptions of ill works, which are by evil Art, arising from an ill belief; and sometimes of a firmer belief they do wonders, and sometime they come by open confessions of Error. So Eresie is an Art to Divine. Divination properly is taken in the ill sense as Prophecy is taken in a good sense. Divination used to be in many kinds, whereof one manner of Divination was through an ill belief, by the which the Witch caused Samuel to rise, who warned Saul of his death. Another kind is Pyromancy, which is done by fire. Another is Areomancy, which used to be done by signs in the Air. Another is Hydromancy, which is done by signs in the water. Another is Geomancy, which is done by signs in the land. Another is Negromancy, which is done by death, by making the dead to speak. Another is Soothsaying, which was done by signs in the entrails and bowels of Birds. On the other part, some Diviners used to put trust in Lots, some in Songs, some in Verses of Psalms; some in carrying Gospel and Charms about their necks; some in Enchantments and Spells; some in signs in the entrails of beasts, and in the palms of the hands. Some were called Mathematitions, and Magij, and Divined by the Starts. Others were called Arioles, who took their answers from the Devil by evil men. Others Soothsayers, who numbered nights and days, and hours whereby they ordered their business. There were many other kinds, all which manner of Divinersate to be by the Word of God himself, and authority of the Church to be excommunicated, and sobidden as much as Mahometry, and things against the true Faith. And this S. Augustine proves by many Reasons; & hence it is, that they who travel to Witches or Diviners to know things to give that to the creatures which belongeth to God alone. Wherefore these wicked doers are to be removed from the society of God's holy people, so that no good Christian be taken with their Art, nor partner in their sins. CHAP. 1. SECT. 5. THe Crime of Majesty, or offence against the King is neighbour to many other offences; For all those who commit Perjury, whereby every one lieth against the King falleth into this offence. As the King's Ministers who are sworn to do Justice, and forswear themselves in any thing, so those who disseise the King of any of his Franchises, or of any manner of Right which belongeth to the Crown by Occupations, or Purpestures, or in any other manner although it be no mortal offence. Into Perjury fall all those Subjects of the King who appropriate to themselves Jurisdictions over the King, and of themselves make Judges, Sheriffs, Coronours, and other Officers to have Counsance of Law. Into Perjury against the King fall all the King's Subjects who appropriate to themselves Jurisdictions of Counties, Honours, Socknes, Retorna brevium, or any thing which may fall to his Inheritance; as Wards, Escheates, Reliefs, Suits, Services, or Marriages, Fairs, Markers, Enfang thef. Out Fangthef, Waife, Estray, Treasure found in the ground, Warren in their own lands, or in the lands of others, Tole, Pavage, Pontage, Chinueage, Murage, Carriage, or other the like Customs. Into Perjury against the King fall those the King's Subjects who take Abjurations of Felons, and Fugitives, and are no Coroner, nor warranted by the King so to do; and those who put out any Indicted, or Appealed of any Crime out of the Roll of the Coronour; and those Coronours who oftener than once receive Appeal; of Aprovers, or procure that a man who is innocent be appealed by an Approver. And those who have detained Appeals of Approvers of foreign Acts, or whereby any foreigner is Appealed. And those Coronours who wittingly suffer the goods and chattels of Fugitives to be less valued than they ought to be of right; Or conceal them in part or in all, or detain them to their own uses, to the damage of the King; or deliver them elsewhere then to the Towns; or for lucre have taken more than they should in damage of the Towns; Or suffered their Servants to have the garments, or other things which are to be seized for the King's use; or the garments of the dead, or delay to do their office through covetousness. Into Perjury against the King fall those Officers who pardon Fines and Amercements which belong to the King, or any manner of penalty either corporal or pecuniary without special warrant. And those Officers who by Summons and Ad. journments make the people to travail in vain, as to Goal deliveries, Assizes, Inquests, or otherwise; and all those Subjects who bear Arms against the King, or run away from his lawful Army or Battle; And those Ministers who unlawfully stop, or counsel the people that they go not into War with the King, or that they are not bound to go, where they have reasonable summons; and that the people be not made Knights but according to the Statutes of the Realm. Into Perjury against the King fall all those the King's Subjects, who hold Plea of Withernam, and have not return of Writs, or hold Pleas of Distresses, or of any other thing which belongeth to the King's Jurisdiction only, without the King's special Commission; or hold Plea in case of life, of imprisonment, of bloodshed, of false Judgements, or of any thing disavowable of right without the King's Writ, or Commission And all those the King's Ministers who maintain false Actions, false Appeals, or false defences. Into Perjury against the King fall those Ministers, who deny to Plaintiffs original Writs possessory, Attaints, or of Formedon; or otherwise do delay their Rights; and those who wrongfully do delay, or disturb right Judgements, and those who wrongfully favour wrongful Judgements; and all those who use their Privileges or Liberties wrongfully, or too largely, contrary to their knowledge. Into Perjury against the King fall those Ministers who receive Fines to other uses then to the King's use for Treasure trove, for Wrerk, Waife, Estray, aliens for bloodshed, or imprisonment, Withernam, Reddissesin, or Dissesin; or forswear themselves to resist, that a lawful Judgement have not execution; for Usury, perpresture upon the King, or for any other thing whereof the Counsance doth belong to the King. And those Receivers who pay not the King's debts as they ought to do, and are enjoined, or render to him part for satisfaction of the whole, and do not pay the King the rest. Into Perjury against the King fall those who Charge the King wrongfully. And those who spend the King's Quarries, Timber, or other things otherwise then in the King's Service without sufficient warrant. Into Perjury against the King fall Escheators, who make waste of the King's Wards, or in his Fees, or unlawfully take Venison, Fish, or other goods; and by their authority seize the goods of the dead, and for gain release them; or endow Widows to the King's loss; or make hurtful extents for the King acompting for less than the very value to the King; Ot willingly suffer possessions to remain in Mortmain which ought to be seized into the King's hands, and whereof the King ought to have the profit, or which receive more of their Bailiwickes' then they answer to the King, ot who wittingly suffer Feoffements of Lands, or of Advowsons' of Churches prejudicial to the King, or who suffer them to alien Wards or Marriages to the King's prejudice, or suffer the ages of infants to be proved in damage, or to the King's prejudice take Fines for Wards, or Marriages without Writ, or deceive any one by colour of their Office; or levy money upon any upon his own proper Amercement. Into Perjury against the King fall Sheriffs, who too high charge the People, by a surcharge upon the people of Horses, or of Dogs, and who levy Fines or Amercements for escapes of Prisoners, or for any thing against Law before the escapes be adjudged by the Justices in Eure, and who increase or diminish Fines, or Amercements beyond the Wills of the Afferrors or Jurours, and those Officers who conceal people deliverable to prison, and do not bring them to Judgement. Into Perjury fall all those Officers who are reprovable for the sufferance, negligence, or consent to the alienation of the franchises, or of the right of the King wrongfully, or to the occupying, or withholding of them. And all those who elsewhere change old money which is forbidden for new, then at the King's change. CHAP. 1. SECT. 6. Of Falsifying. FAlsifying is done in two manners; by falsifying the King's Seal, & his Mony. His Seal may be falsifyed in many manners. It is always falsifyed when a Writ is sealed, whereof the engrossing, and the matter, or the form is not justifiable by the King, nor by the Law, nor by the lawful Customs of the Realm, which is not to be intended of every Writ abatable. It is falsifyed if a man scale therewith after that the Chancellor, or other Keeper thereof hath lost his Warrant, either by death, or in any other manner. It is falsifyed when a Writ, or a Patent passeth against the Kings forbidding. It is falsifyed by those who seal by ill Art, or by Warrants not justifiable, and it is falsifyed by those who seal and have not authority to seal. Of falsifying the Money. The Money was Ordained round and quarterable, and use so to be made that the outward eircle was apparent through the whole, otherwise it was not to be received; and that the 1. l. was of 12. ounces of sine Silver, and it was assented unto that the King should have 6d. for the sealing of every Writ, and for the coinage of every pound of money 12.d. and no more of moneys currant in the Realm. The money is falsifyed by him who by evil covetousness maketh it not justifiable; and it is falsifyed by those who make it, and have not authority or warrant so to do; It is also falsifyed by those who for evil gain put more allay in it then of right there ought to be. And it is falsifyed by all those who make it without the King's coinage. And it is also falsifyed by all those who by ill Art sergeant it, and by those who clip or wash it for ill gain. CHAP. 1. SECT. 7. Of Treason. TReason is not done but betwixt Allies, who may be by Blood, Affinity, and Homage, Oath, and Service. By blood, as if one of Parentage do any thing to another of his blood which is the cause of his death, or dis-inherison, or to loss of homage; for the quality of Treason is the taking away of life or member, or decrease of earthly Honour, ot the increase of villainous shame. And in the same manner is this offence betwixt Aff●●●, as betwixt Sisters, Sons in Law and Parents; sot as cozenage is a line of divers percenets descending of the same Stock, and drawn from carnal Copulation. In like manner Affinity is a nearness of Persons descending from carnal copulation where there is no blood; and as this Office is done betwixt Affines, and Cousens, so it is also betwixt Allies. Alliance is sometimes by Service, Homage, and Oaths. Which happeneth sometimes by reason of Fealty issuing from the service of the Fee, sometimes issuing from the Oath of Service of the body, and as one of the Allies, Parents, or Affines commit this offence against the other, in the same manner may they do against them. By Service; as if one who I have rewarded, to do me Fealty, and be seized in demeane of a Manor or other gift, or service, or Courtesy, falsify my Seal, or ravish my Daughter, or my Wry, or the Nurse, or the Ant of my Heir, or doth any thing which is the cause of my death by a Feionious compassing the same, or to the great dishonour or damage of my body, or of my goods, or discovereth my Counsel, or my Confession, which he is charged to conceal. And by reward is meant, Fee Possession, Robe, Church, Rent, or other gist; and meat and drink curing the service. And as such a one may commit Treason against me, who taketh from me so much that he is seized, in the same manner I may offend against him; by such Action or demand he shall have against me, as I may have against him. CHAP. 1. SECT. 8. Of Burners. BUrners are those who burn a City, Town, House, Men, Beasts, or other Chattels, Feloniously, in time of peace for hatred or revenge. And if any one put a man into the fire, whereby he is burnt or blemished by the fire, although he be not killed with the fire, nevertheless it is an offence for which he shall die. Under this offence sometimes fall those who threaten burning. CHAP. 1. SECT. 9 Of Manslaughter. Manslaughter is the kill of a man by a man; for if it be done by a beast, or by mischance it is not Manslaughter. This offence is two ways; either by the Tongue, or by the Act. By the Tongue three ways; by Counsel, Commandment, or Denial. By Counsel, as he who counselleth another to kill; and so also is it by Commandment. By Denial; as he who denieth sustenance to a man. By Act many ways; sometimes by Striking, by Poisoning, by Necessity, by Will. By striking, as it afterward appeareth in the Appeals. By poison or venoming; as by secret felony, and feigned friendship giving poison to another to eat, or poisoneth or envenomed any thing, whereby a man is presently or in time killed. Or by Imprisonment; as he who keepeth the body of a man in prison by colour of Law, till he dyeth. By Chance; as by casting, or drawing of a Vessel, or other thing, and some one is killed by mischance; or by the falling of a Tree, and other the like cases. But you must distinguish where the kill is justifiable by Law, for there it is no offence; and when he doth not that which he ought to do, and the party useth all the diligence which he may, crying out, and defending himself, for than he doth not greatly offend; but he who doth not so do, he offendeth mortally. By necessity; where in you ought to distinguish whether the necessity be avoidable or not, and if it be avoidable, it is a mortal offence. By Will; and that may be either of himself, or of some other person. Of himself; as in case when people hang themselves or hurt themselves, o● otherwise kill themselves of their owner felony. Of others; as by beating, famine, or other punishment; in like cases, all are Man-slayers. Also this offence is done willingly; as by those who pain men so much as ought not, or not so much as they ought, he offendeth mortally. But it may be alleged; that by reason of the pain the dead doth failly confess the Felony; and sometimes by the Reward of the Coroners or Justices are destroyed; and as it is of those who cast and leave Children and others who cannot go in Deserts, or in such places and return not to them though they do now die in the Deserts, God succouring them. And also false Jurours, and Wunesses are Men-slayers, and those who appeal others, or scande●ously Indict them, or in other manner falsely accuse them. And also they fall under this offence who Imprison the people in such places, or put them to such punishment, where it may be found by Enquest that by those means place, or punishments they came fooner to their deaths. Three ways was God himself killed; for Tongues killed him indeed, with the other who Crucified him, or procured him so to be; By the Tongue Pilate killed him, who Commanded him to be killed; By Will, the false witnesses, and all those who consented thereunto killed him; And hence it is that the Evargelifts differ of the hour of his death, in setting forth his Passions. This offence doth contain many branches: viz. Imprisonment, Mayheim, Wounding, Battery, False Witnesses. Imprisonment is the wrongful detaining of a man's body, and that may be in two manners; either in a common Prison of the King; or in a private Prison which is forbidden. In a common Prison none ought to be put, if he be not attainted of an offence which requireth death; or especially appealed, or indicted, and by Judgement of a false and wrongful Imprisonment. A private Prison is 1. sometimes rightful and justifiable; 2. wrongful. The same is lawful and justifiable, when a man who is Bailable, is taken and put in custody till he hath found Bail to do that which he ought. People are in Custody in divers manners; In one manner by the warrant of Law, as it is of Enfants within age, Women in the Custody of their Husbands; men of Religion in the Custody of the Abbots; or other Sovereigns of their houses; and Villains in the Custody of their Lords. In another manner people are in Custody by Common assent, as it is of Idiots, of people wasters of their estates, of madmen, and of those who are drawn to follow infamous, though pardonable offences, who are to be in Custody in such Cases. Into the offence of Manslaughter fall all those by whom a man dyeth in Prison; and that may be either by the Judge, who delayeth to do Justice, or by durenesse of the Keepers, or by other unjustifiable occasion. Into this offence fall all those through whose default people die, being forsaken of those who are bound to sustain them. And those who kill a man imprisoned, by a surcharge of pain, in case when any is adjudged to penance. And all those who unjustly adjudge a man to death; and those who assent thereunto, and false Witnesses who falsely testify a mortal offence against an innocent man. Into this offence fall all Jurours, and false Physicians, and maintainers of killing, and those who beat or wound a man, so so that he is far from living, and nearer to his death. Mayhem is the want of member, or the enseebling of it by breaking, or cutting the bones o●a man, whereby he is less able to combare. And Turgis saith; That the loss of the foreteeth is Mayhem, and of the turning of the mouth, and of the little finger, and of the right joint; and the taking away the toes of the feet is Mayhem, and the more reason where more loss appeareth. And Sennall said; That the loss of the eyes is Mayhem, if nature have not taken them away; but the loss of the middle Teeth, or of the Nose, or the Ears is not Mayhem, although the body are thereby reviled or dishonoured. And Billing saith; That Rasure by turning the bones of the Head, or of the Scull of the Head backward; is Mayhem, and also of other bones. A wound is cause of death made by cutting of the hand, or the arm feloniously, which is showed by the length, breadth, or depth; for the cutting of a stone, or of a staff seldom becometh a wounding but a bruising. CHAP. 1. SECT. 10. Of Larcines. LArcine is the treacherously taking away from another moveables Corporeal, against the will of him to whom they do belong, by evil getting of the Possession, or the use of them. It is said a taking, for bailing, or delivery is not in the Case; It is said of moveables Corporiall, because of goods not movables, or not Corporiall; as of Land, Rent, Advowsons' of Churches there can be no Larcine. It is said; Treacherously, because that if the taker of them away conceive the goods to be his own, and that he may well take them, in such Case it is no offence. Nor in case where one conceives that it pleaseth the owner of the goods that he take them, but thereof there ought to be apparent presumption and evidence. There be two parts of Larcine. One which is done openly in the day by Robbery. The other which is done in the night, or in the twilight. Robery is done sometimes By 1. Thiefs. 2. Tortuous Distresses of Bailiffs and other, who wrongfully extort from the people. 3. Extruders and Disseifors who with force openly take the goods of others as before is said 4. By others, who run away with other men's Wives, or Wards, and thei●goods. Into this offence fall all such who take the goods of others by Authority of the King, or of other great Lords, without the consent of those whose goods they are. Larcine is committed sometimes by open Theeve, sometimes by Treacherous; as it is in divers kinds of Merchandizes, and as it is o● Labourer, who steal their labours; and as it is of Bailiffs, Receivers, and Administrators of others goods, who steal them in not giving their Accounts. Into this offence fall all those who steal Purses or Cloke-baggs, or do any other Larcine by increase or covetousness of themselves, and all their favourers. Into this offence fall all those who suffer Thiefs to pass when they may arrest them; those also who may take or hinder them, or warn them of malice and do nor; & those who conceal them for love of Theef-boore; or other reward, or wittingly receive their Larcine, or their persons. Into this offence fall all those who steal by false measures, and false weights, or in any other manner of treachery by colour of Merchandise, and those who wittingly suffer them where they may hinder them. Into this offence fall those who wrongfully amerce the people with outrageous Amercements, or outrageously afferre Amercements, or wrongfully condemn their Neighbours either in damages, or penalties; and those who wrongfully detain treasure found. Wreck, Waife, or Estray which belongeth to the King; and those who otherwise find them and do not restore them when they may, and know to whom they do belong. Into this offence fall all those who take wrongful or outrageous Tole in Markets, Ciries, Boroughs, Towns, Mills, or elsewhere; and those who take pavage, murage, chinniage, carriage, or other manner of Customs more than they ought to do. Into this offence fall those Bailiffs who do inquire in Turns and views of Franck-pledges of more Articles then of personal offences, & of wrongs done to the King and his Crown, and of wrongs done to the common people, & those who by extortion take moneys or Fines for Beaupleader, or for which the Jurours are not charged; and those who amerce any of their own heads without reasonable affirment of the people sworn thereunto. Into this offence fall those who unjustly distrain, and those who sell distresses for the King's debt within the 15. days. Into this offence fall all those Officers of the Exchequer, and others who forbidden to make Acquittances under the Exchequer Seal, to every one for so much as he hath paid; and who oftener than once cause a debt to be levied; who to take Rewards, whereby the Towns do not in due manner according to the Constitution of Winchester; or who suffer that the people be not furnished with Arms, according to Common appointment. Into this offence fall all stealers of others Venison, and of Fish in Ponds, and of Coneys, Hares, Pheasants, Partridges being in Warrens, & otherfowl, Doves and Swans, of the Eires of all manner of birds. Into this offence fall all the Sheriffs, Bailiffs, and other the King's Officers, who unjustifiable by extortions take money of the people, as for defaults unjustifiable, or for sheaves or other Custom unalowable, or for Plea whereof the Judge hath no jurisdiction; and those who take money to put men out of Pannells of Juries, and put others in. Into this offence fall all those who take Lands, Tenements, Horses, or other things, and use them beyond the appointed for the loan of them; and those who by the authority of their Bailiffs make unjustifiable Collections for moneys, or other provisions, or Corn in Sheaves for Scottalls, or other festivals, or do to the people other unlawful grievance in the like case. And those sworn Officers who cause Fines, or Amercements, or other m●nner of duty to be oftentimes levied upon one man, without making restitution; and those officers who take of other then of the King, or of their Lords, to do their Office; and those who oftener than twice in the year hold Sheriffs Turns, or who oftener than once in the year hold views of Frank-pledges in one Court; and those who by unjustifiable Articles amerce the people; and those who at Mills or Markets take outrageous Tole, and those who amerce the people by Presentments not made by the whole Decenry, or by others then of Freemen. Into this offence fall they who do any thing upon another Inheritance by evil covetousness, or for hatred. Into this offence fall Counters who take outrageous Salary, or not deserved, or who are attainted of ill defence, or of other discontinuance, and those who deny their Seals in Judgement, and those who make Contracts which are forbidden. Into this offence shall Usurers, who lend money or other things, through covetousness to take the forfeiture. And those who rob, or steal the Marriages of others, or run away with others Wives, or villains with the goods of others. And all Forestallers, by whom Victuals or Cattles are made dear. They are Forestallers who within any Town or Franchise buy to engross, and unlawfnlly to sell more dear; and those Butchers who sell unwholesome flesh for wholesome; and those Fishmongers who buy and sellagainst the established Law; and all those of what Mysteries soever they be, who do deceitfully in their trade or Mysteries. CHAP. 1. SECT. 11. Of Hamsockne, or Burglary. BUrglary by an ancient Ordinance is a mortal offence; for the Law is, That every one be at peace in his own house. This offence is not done only by breaking of a house, but is also done by a felonious assault of Enemies in time of peace, upon those who are in their houses with intent to repose there in peace; whether the assault be to kill, or to rob, or to beat those who are in rest within their houses. And although it be that these offenders do not accomplish their purpose, if nevertheless they make any breaking by their assault of the doors, windows, or walks, to enter felloneously, they are guilty of this crime. Into this offence fall all those who feloniously force their entry into another's house, and therein do any violence against the peace, although they do not break the house, and that as well in the day time as the night; and those who diffeise the people in such case, or cast them our of their houses, and out of their peaceable possessions wrongfully. CHAP. 1. SECT. 12. RApe is done two ways, that is to say, of things, and of Women. This offence is here put because King E. 1. by his Statute made it mortal, which is more grounded upon the will, then upon diseretion; for one fortis Whoredom, another Fornication, another Adultery, another Incest, and another Rape; but to speak properly we are to distinguish of the offences, whereof the first offence is greater than the other. Whoredom is the deslouring of a married woman feloniously. Fornication is to ravish women not Married. Adultery is to ravish another's wife. Incest is to ravish Cousins, Parents, or Affines. Rape is properly the taking away of a woman for the desire of Marriage. Rape nevertheless according to the meaning of the Statute is taken for one proper word, given for every enforcement of a woman, of what condition soever she be. CHAP. 1. SECT. 13. Of the Office of the Coroners. TO Coroners anciently were enjoined the keeping of the Pleas of the Crown, which extend now but to Felonies and Adventures. There are 2 kinds of Coroners General and Special To the Office of general Coroners it belongeth to receive the Appeals of all the County of Felonies done within the year; to award the Exigents of Contempts, and to pronounce the Judgements of Outlawries; and more, to inquire in what Pledge they were, or Decenery, or of whom Mainprized, and in whose Ward. Special Coroners are Coroners of Liberties, and of privileged places. To the Office of the one and the other it doth belong, to view the Carcases of the dead by Felony, or by mischance; or to see the burn, and the wounds, and the other felonies, that is to say, every one in his Bailiwick; and to see Treasure t'other and Wreaks of the sea, and to take the acknowledgements of Felony, and to give the Abjuration to flyers to sanctuary, and to take the Inquests of Felonies happening within their Bailiwicks. As to the view of the Carcase of the body of a man, it is his office that so soon as he shall be certified thereof, to send to the Hundred of the place to summon sufficient able men of the next Towns, that at a short day certainly named, they be before him at such a place, all which done the Carcase is to be viewed; and if he find it there buried, that it be taken up, and to the Coroner it belongeth to Record the names of them who buried him; and if it hath been decreased or endamaged by ill keeping, or lain so long that it cannot be judged how it came by its death, that the same also be Recorded, that this negligence be punished at the coming of the King, or his Justices in Eyre into those parts; and if the Coroner, with the advice of the people present be able to judge of the death, than they are to present the manner of his kill, whether he died of another's Felony, or of his own, or by mischance; and if of blows, whether of a staff, or a stone, or a weapon; and the the Coroner is to Record in his Book the names of those who were summoned and appeared not, that the same offences of disobedience remain not nnpunished, whereby the Coroner could not at that time do his office for want of Jurours. In those Inquests lie no Exceptions, or Challenges to the Persons of the Jurours; but he ought to make his Pannells of the discreetest, and of the ablest and best of them, and to see that the Carcase be buried. The Pannells are to be of Decenies; for Coroners at these Inquests, Sheriffs at their Turns, Bailiffs at the views of Franck-pledges, Escheators and the King's Officers of his Forests, have power by authority of their Office to send for the people, which none other have without the King's Writ; and that is for the keeping of the peace, and for the right of the King, and for the common people. The Articles are these. YOu shall by your Oaths declare of the death of this man, whether be died of Felony, or by mischance; and if of Felony, whether of his own, o● of another's; and if by mischance, whether by the Act of God, or of man, and if of Famine, whether of Poverty, or of common Pestilence; and from whence he came, and who be was, and if he died of another's Felony, who were Principals, and who Accessours; and if Hue and Cry were duly made or not; and whether the men fled according to Law or not, and who threatened him of his life or members, and who were Sureties for the Peace; or whether he died of long Imprisorment, or of pain, and by whom he was farther from Life, and neaver to his death; and so of all prevading circumstances that can come by presumptions. And in case where he died by hurt, or fall, or other chance by the Act of God, so that he had not power to speak before his death; than you shall tell the names of the finders, and of his next Neighbours, and who were his Parents, and if he were killed there or elsewhere, and if elsewhere, by whom, and how he was thence brought, and the value & kind of the Deodand, and to whose hands it came; for in case a man dyeth by a fall, in such case according to Randulfe de Glanvill, it is Ordained, whatsoever is cause of his death is Deodand; as it is for whatsoever moveth in the thing whereof be fell, as Horse, Cart, Millstone; also Vessels are sometimes Deodands but not in the sea; the sums upon the Horses, the goods lying in Ships, Mills, Carts, and Houses, are not acconnted for Deodands. And in case of another's Felony, than the Jurours declare who were the Felons, in what Pledge, Dosien, Ward, or Mainprize they were, and from whence they came, and where they returned. And if he was killed by false Judgement, then that the Jewry declare who were the Judges, who the Officers to form the Judgement, and who Accessories; and if of false Witnesses, who were they, and the Jurours. And if he died of his own Felony, then that they tell the manner, and the value of his goods, and the names of his Parents, and the Finders, and of the Neighbours, and the value of the waist. There are nine manner of Accessories. 1 Those who command. 2 Those who conceal 3 Those who allow and consent. 4 Those who see it. 5 Those who help. 6 Those who be partners in the gain. 7 Those who knew thereof, and did not interupt or hinder it by forbidding. 8 Those who knowingly receive. 9 Those who are in the force. Of misadventures in Tournaments, in Courts and Lists, King Henry the 2. Ordained, that because at such Duels happen many mischances; That each of them take an Oath that he beareth no deadly hatred against the other, but only that he endeavoureth with him in love to try his strength in those common places of Lists, and Duels, that he might the better know how to defend himself against his enemies; and therefore such mischances are not supposed Felony, nor the Coroners have not to do with such mischances which happen in such common meetings, where there is no intent to commit any felony. Coroners also ought to make their views of Sodomies, and of monstruous births of Children, who have nothing of humanity, or who have more of other Creatures then of man; and Coroners were to bury them. But the holy Faith doth more and more now daily confirm men, that they abstain to commit these horrible sins which they used to do. Also they used to inquire of butnings, and who put to the fire, and how; and whether it were by felony or mischance; and if of felony, of whose felony, and who were the Principal, and who the Accesories, and who were the threatners thereof. It belongeth to them at their views to inquire after Treasure privately hidden, and found in the ground, and how the Treasure was found, and by whom, and how much there was; and if it be all seized upon, or all carried away, and who carried it away, and how much; and who were the finders of it, and the next Neighbours. At their views of Wrecks, they ought to inquire whether the Wreck came to Land, what be the things, and how much, and the value of them distinctly by parcels; and if a Man, Beast, Cat, or other living thing came with it or not; and that by Dividend it be delivered to the next Town, that they may answer the Lord if he come to claim it, & receive it within the year. At his view of wounds, it behooveth him that he view the Wound, and make a Record of the length, breadth, and depth of it, in aid of the wounded if he complain, in case the wound be healed, the Coroner of the County may help him by the Record. Also it belongeth to them to view Burglaries, & to enquir of the names of the Felons, and what they have to live of, and from whence they came, or whether they returned; and of the Menasors, and of other Circumstances. The Jurours are severed into doziens, so that one dozien speak not with another, but that every Jury answer by itself, and review the Presennnents, and the Verdict, so are they chargeable, to accuse the Conspirators who procure to save any Offendant, or to indict an innocent in such Inquests. All the Verdicts before the Coroners as well of Accessories as of the Principal are at the Commandment of the Coroners receiveable by the Sheriffs, and the Principal and Accessories are to be taken and delivered to Main prisors, and in the presence of them and of the Sheriffs their goods moveables and not moveables are to be seized into the King's hands, and by a reasonable Extent and Dividend, the moveables are deliverable for the finding of the Prisoners, and for their needful and reasonable sustenance, & the King to be answered the residue, saving, the right both to the Principal if they be acquitted, and to the Accessories by Mainprize. And if any one fly, or make resistance, and will not answer the Law, it is lawful for every one to kill him, if he cannot otherwise apprehend him. And Bermund awarded; That all goods of those that fled should remain forfeit to the King, saving to every one his right, although that afterwards he yield himself to the Peace. And Iselgram said; That he is no flyer who appeareth in Judgement before he be Outlawed. If any one fly to Sanctuary and there demand protection, we are to distinguish; for ●●le be a common Thief, Robber, Murderer, Nightwalker, and be known for such a one, and discovered by the people, &c of his Pledges and Deziners; or if any one be convict for Debr, or other offence upon his own confession, and hath sorjered the Realm, or hath been exiled, banished, Outlawed or Weyved; or if any one have offended in Sanctuary, or joined upon this hope to be defended in Sanctuary, they may take him out thence without any prejudice to the Franchue of Sanctuary. But in the right of Offenders, who by mischance fall into an offence mortal out of Sanctuary, and for true Repentance run to Monasteries, and commonly confess themselves sorrowful, and repent, such offenders being of good fame, if they require tuition of the Church, King Hen. 2. at Clarendon granted unto them, that they should be defended by the Church for the space of forty days; and Ordained that the Towns should defend such flyers for the whole forty days, and send them to the Coroner at the Coroners view. It is in the election of the offender to yield to the Law, or to acknowledge his offence to the Coroners, and to the people, and to waive the Law; and if he yield himself to be tried by Law, he is to be sent to the Goal, and to wait for either acquittal or Condemnation; And if he confess a nortall offence, and desire to departed the Realm, without desiring the tuition of the Church, he is to go from the end of the Sanctuary ungirt in pure Sackcloth, and there swear that he will keep the strait way to such a Port, or such a passage which he hath chosen, and will stay in no parts two nights together, until that for this mortal offence which he hath confessed in the hearing of the people he hath avoided the Realm, never to return during the King's life without leave, so God him help, and the holy Evangelists; and afterwards let him take the sign of the Cross and carry the same; and the same is as much as if he were in the protection of the Church. And if any one remain in Sanctuary above the forty days, by so doing he is barred of the grant of Abjuration if the fault be in him, after which time it is not lawful for any one to give him victuals. And although such be out of the peace, and the protection of the King. yet none ought to dishearten them, all one as if they were in the protection of the Church, if they be not found out of the high way, or wilfully break their Oaths, or do other mischief in the high way. If he who is killed be unknown, in such case the Coroners ought to show the murdered , according to the Statute of King Kanute, who Ordained for the safeguard of his Danes whom he lest in England; That if a man unknown were killed, that the whole Hundred should be amerced to the King by the Judgement of Murder. Four things excuse the Hundred from the Judgement of Murder. 1 If the Felon be known who killed him, for if the Felon be known, then may he be attainted of the Felony. 2 Another, If the Felon be apprehended, or if he fly to a Monastery. 3 If the kill come not by Felony, but by mischance. 4 The fourth in case where a man is a fellow of himself, and because there could be no Murder of a man known, it belongeth to the Coroners to inquire in those Felonies of what Kindred or Lineage those that were killed were, so that one may know by their Parents whether they were of the English nation or not; for if no man could name their Parents, it was great presumption that they were Alliens. And thence it is that one calleth that Parentage Englishire, where the Parentage be found of the Fathers or of the Mother's side; and if no Englishire be found, then that it hath the Judgement of Murder. To the Office of the Coroners it also belongeth to receive the confession of Felons in the hearing of Witnesses, whereby of a grand Felony done by many offenders it came to pass in the time of King John, that one of the offenders petitioned the King; That he would pardon him his life, for that he had accused the other offenders who were his companions, and that the King Outlawed them; and at the request of the King the Earls granted; That in Sanctuary; only it should remaire for Law, that offenders having confessed the Felony might accuse others; and that it was then Ordained; That the Coroners should take such Confessions, and such Appeals but once, and not many times. Women are not admitted to bring Appeals, nor Infants within the Age of 21. years, no Idiots, nor men professors, not Clerks indicted or appealed of any Crime, nor men attainted of false Appeal, not those who are vanquished in battle, but those who have government of themselves. The Appelees are to be seized upon body and goods twice in the year, that is to faith; once after Michaelmas, and another time after Easter; And because Sheriffs to do the same make their Turns of the Hundred, such visnes are called the Sheriffs Turns; where it belongeth to the Sheriff to inquire of all personal Offences, and of all the circumstance; of Offences done within the Hundred; and of the wrongs of the King and Queen's Officers, and of wrong done to the King and the Common people, according to the Articles aforesaid in the division of Offences. The Appeals are to be seized upon body and goods as afore is said; and if any Foreigner be appealed who is out of the power of the Coroner, the King's Commisrary is to cause him to appear, or Outlaw him. CHAP. 1. SECT. 14. Of the Exchequer. THe Exchequer is a place which was Ordained only for the King's Revenue, where two Knights, two Clerks, and two learned men in the Law are assigned to hear and determine wrongs one to the King and Crown in right of his Fees, and the Franchises, and the Account, of Bailiffs, and Receivers of the King's Money; and of the Administrators of his Goods, by the oversight of one Chief who is the Treasurer so England. The two Knights usually called two Barons, were for to afferre the Amercements of Earls, Barons, and of the Tenant; of Earldoms and Baronies, so that none be amerced but by his Peers. To this place there was a Seal assigned, with a Keeper of it, to make Acquittances upon every payment to those who desired them, and to seal Writs and Escheates under green Wax issuing from thence for the King's Revenue. In this place there are also Chamberlains and many other Officers, who belong not very much to the Law. CHAP. 1. SECT. 15. Of inferior Courts. FRom the first Assemblies came Consistories which we now call Courts, and that in divers places, and in divers manners; whereof the Sheriffs held one Monthly or every five week; according to the greatness or largeness of the Shires. And these Courts are called County-Courts, where the Judgement is by the Suitors if there be no Writ, and is by warrant of Jurisdiction ordinary. The other inferior Courts are the Courts of every Lord of the Fee, to the likeness of Hundred Courts; and also in Fairs and Markets, where right is to be ministered without delay, whether the matter concern the Plaintiff or Defendant, according to the first Ordinances; in which Court; they have counsans of Debts, Covenant; broken, and of Trespasses, and of such small things which pass not forty shilling; value; and also they have Counsans of Trespasses, and forfeitures of the Fees betwixt the Lords Plaintiffs, and the Tenants Defendants, Et è contra. There are other inferior Courts which the Bailiffs hold in every Hundred, from three weeks to three weeks by the Suitors of the Freeholders' of the Hundred. All the Tenants within the Fees are bounden to do their Suit there, and that not for the service of their Persons, but for setvice of their Fees. But Women, Infants within the age of 21. years, deaf, dumb, idiots; those who are Indicted or Appealed of any mortal Felony before they be acquitted, diseased persons, and excommunicated persons are exempted from doing Su●t, and although it be that such Freeholders' may do Suits at inferior Courts by their Attorneys, nevertheless the Judgement is not to be given or holden for foreign; and if any Plea be removed by Writ of Justities, Replegiatie, waist, or of other nature, that enable the Jurisdiction from which the Writ is originally sent, and returneable. CHAP. 1. SECT. 16. Of the Sheriff's ●urnes. THe Sheriffs by ancient Ordinances hold several meeting; twice in the year in every Hundred, where all the Freeholders' within the Hundred are ●ound to appear for the service of their Fees; that is to say, once after Michael●as, and another time after Easter; and because Sheriffs to do this make their Turn; of Hundreds, such appearances are called the Sheriffs Turns, where it belongeth to Sheriffs to inquire of all personal offences, and of all their Circumstance, done within those Hundreds and of all wrongs done by the King and Queen's Officers, and of wrongs done to the King, and to the common people, according to the points aforesaid in the division of offences. All Freeholders' within the Hundred are not bounden to appear at these Courts, for King Hen. 3. excused some persons, & said; That it was not needful that Arch-Bishops, Bishops, Abbots, Priors, Earls, Barons, religious Persons, nay such people, not other who were exempted to do Suit at inferior Courts should appear in proper person, if their appearance were not necessary for some other cause then only to make their appearance. And if any one hath divers Tenements in divers Hundreds, his presence is not to be excused notwithstanding the Kings grant. CHAP. 1. SECT. 17. Of views of Franck-pledges. OF these first Assembly, it was also Ordained; That every Hundred do make a common meeting once in the year, not only of the Freeholders', but of all Persons within the Hundred, Strangers and Denizens of the age of 12. years and upwards, except of Arch-Bishops, Bishops, Abbots, Priors, teligious Persons, and all Clerks, Earls, Barons, and Knights, Feme Coverts, Deaf, Dumb, Sick, Idiots, infected Persons, and those who are not in any Dozien, to inquire of the points aforesaid, and of the Articles following, and not by villainies, nor by women, but by the afferment of Freemen at the least; for a Villain cannot indict a Freeman, nor any other who is not receiveable to do Suit in inferior Courts, and therefore it was anciently Ordained; that none should remain in the Realm if he were not in some Decenny, and pledge of Freemen; it belongeth also to Hundredours once a year to show the Franck-pledges, and the Pledgers, and therefore are the Views called the View of Franck-pledges. The Articles are these. BY the Oaths you have taken, you shall declare whether all they who ought, do appear or not. If all the Freemen of the Hundred, or of the Fees be present. If all the Franck-pledges have their doziens entire, and all those who they have in pledge. If all those of the Hundred, or of the Fees of the age of 12. years and above, have sworn fealty to the King; and of the receivers of others wittingly. Of all Bloudsheds, of Hue and Cry wrongfully levied, or rightfully levied and not duly pursued, and of the names of the Pursuers; of all mortal offences, and of their kinds, and as well of the Principals as of the Accessories. Of all Exiles, Outlaws, Warves, and banished Persons returned, and who have since received them, and of those who have been judged to death, or abjured the Realm. Of Usarers, and of all their goods. Of Treasure trove, Wrecks, Waifes, Estreyes, and of every purpresture and encreachment upon the King, o● upon his Dignity. Of all wrongs done by the King's Officers and others to the common people, and of all purprestures in common places, in the Land, or in the Water, or elsewhere. Of Boundaries remsved to the common Nuisance of the people. Of every breach of the Assize of Breed, Bear, Wine, Clothes, Weights, Measwes, Beams, Bushels, Gallons, Fills, and Yards, and of all false Scales, and of those who have used them. And of those who have bought by one kind of measure, and sold by another kind in deceit of Merchants, or buyers. Of the disturbers of f●aming lawful Judgements, and of the framers of wrongful Judgements, and of the Abettors, and consenters thereunto. Of every wrongful detinue of the body of a mar, or other distress. Of every false Judgement given by the View in the other Hundred, o● in the Fee. Of every Fore-stallment done in the common Highway. Of wrongful Replovies, and wrongful Reco●sses Of every outrageous Distress in another Fee, or in the Market for a foreign contract. Of all Bridges broken, and Causies, ways, common Bridges, and who ought for to repair him. Of the makers of dwelling out of great Towns in places forbidden. Of Tanners and Curriers of Leather. Of Butchers, and who sell unwholesome flesh for that which is sound; and of all those who sell corrupt Wine for sound Wine; or Bear, Ale raw and not well brewed, for that which is good and wholesome. Of small La eines. Of cutters of Purses. And of those who suffer people to use any Mystery for reward or Fee. Of Receivers of Thies-boot. Of makers and baunters of false Dice. Of outrageous Tole-takers, and of all other deceivers. Of all manner of Conspiraters. And of all other Articles available for the destruction of offenders. And the Presentments are to be sealed with the Seals of the Jurours, so that none by fraud do increase or diminish them; and that which cannot be redressed there by these Presentments, is presentable at the Sheriff's first Turn; and those things which the Sheriffs cannot redress are to be presented by the Sheriffs into the Exchequer. All those who are Presented for any offence which is mortal, and banished Persons who are returned, and their receivers, and those who are not in allegiance under the King are to be seized upon, and their goods to be seized into the King's hands. And although it be so that the Bailiff can not hear and determine any Action at the Leete, nevertheless if any one present be grieved by any wrongful Presentment, and complain thereof; or if the Bailiff or Steward have a suspicion that the Jurours be in some case perjured by concealing of any offence which is Presentable, or of any offender; It is lawful for the Bailiffs (or Stewards) by twelve more disereet men, to inquire of the truth thereof without delay; and although that the last Jurours joy that the first are perjured, nevertheless because that no Decenery or Jurour is not attestable with less than two Juryes; and because the latter Jury is not taken but ex officio of the Bailiff, and not in the nature of an Attaint, the first Jurours are not to be taken Attainted, but are only to be amerced. And if any one proffer himself to swear fealty to the Kings he is first to be pledged in some Franck-pledgs and put in the Decenety; and afierwards sworn to the King; and then he is forbidden to offend and common with offenders, and he is to be enjoined to be obedient to his chief pledge. And to take this Oath in those Views is none exempted who is past the age of 21. years, man or woman, Clerk nor Layman, except aliens, Strangers, Mossengers, or Merchants, and those who are in custody. At these Views of Turns, and views of Franck-pledges Essoignes hold, where the absence of those who cannot be there is excusable, and such Essoignes are adjournable to the next Courts following, that the Essoigners have their Warrants. The Contents of the Second Chapter. OF Actions. Of Judges. Of Plaintiffs. Of Rewards or Fees. Of Pleaders or counties. Of Attachments. Appeals, and to whom Appeal is given. Of Goals and Goaters. Of bail in Appeals. Of the Appeal of Majesty. Appeal of falsifying. Of Appeals of Tredson. Of Appeals of burning. Of the Appeals of murder. Of the Appeals of Robbery and Larcine. Of the Appeal of Burglary. Of the Appeal of Imprisonment. Of the Appeal of Mayhorn. Of the Appeal of wounding. Of the Appeal of Rape, Of real offences at the Kings Suit. Of offences personal at the Kings Suit. Of venial offences and personal Suits. Of the Assize of Novel dissesin. Of Distresses. Of Contracts. Of villinage and Neifitie. Of Summons. Of Essoignes. Of Attorneys. CHAP. II. CHAP. II. SECT 1. Of Actions. WHen it is said that Kings and Princes have the Government and Correction of Offenders, with aid of the Prelates; and to that intent they are Gods Vicegerant, on Earth, and to do the same they have Jurisdiction over the offenders by pains, and chiefly those offenders which are under their Jurisdiction; nevertheless Kings cannot not ought not to take notice of the offences of others without Actions of Accusers, which well appeareth by the example which God shown when he was in his Consistory, and demanded who was the Accuser of the woman-sinner; and because none presented himself an Accuser against her, to give us a perpetual example that right Judgement cannot be given without there be three persons at the least, viz. a Judge, a Plaintiff, and a Defendant, God said to the woman-sinner, That she should go in peace or quiet, since it belongeth not to a Judge, to be both Judge, and Plaintiff; and therefore it behooveth to speak of Actions, and who are and may be Judges, and who Plaintiffs, and who Defendants. An Action is nothing else but a lawful demand of right, and there are three manner of Actions which have their Introductions by Writs, and by Plaints in manner as followeth, viz. Personal, Real, and Mixt. CHAP. II. SECT. 2. Of Judges. ALthose who are not forbidden by Law may be Judges. To women it is forbidden by Law that they be Judges; and thence it is, that seem Coverts are exempted to do Suit in inferior Courts. On the other part, a villain cannot be a Judge by reason of the two estates which are repugnants; Persons attainted of false Judgement cannot be Judges, nor Infants, nor any under the age of 21. years, nor infected persons, nor Idiots, nor madmen, nor deaf, nor dumb, nor parties in the Pleas, nor men excommunicated by the Bishop, nor criminal persons; for God when he was upon Earth entered into the Consistory where a sinner was to be judgeed to death, when God wrote upon the ground, and said to the Suitors who came to Judge her, Who of you is without sin? and there gave a Judgement as an example to Judges, who take upon them every day to Judge the people, whereby he taught them, That none should take upon themselves so high and noble a ●alling, as to sit in the Seat of God to judge offenders, when they themselves are guilty and Condemnable. And those who are not of the Christian Faith cannot be judges, not those who are out of the King; Allegiance; next, those who have no Commission from the King cannot be judges, not none whose Authority is repealed, not any one after judgement is given in the Cause; an example thereof appeareth in the Writ of Right, Et●nist ficeris, viceconnes faciat; not none after death, or the Return; none whose warrant is vicious, not any one if his superiout will not have him. A judge Commissary hath not power to judge but according to the points, and within the words of his Commission; and the original Writ, no more than the Arbitrary judge hath power to go beyond the points of his submission. CHAP. 2. SECT. 3. Plaintiffs are those who pursue their right against others by plaint. All may be Accusers or Plaintiffs who are not forbidden by the Law. Infected Persons, Idiot's, Infants within age cannot accuse, or be Plaintiffs without their Guardians, nor Criminal Persons, nor an Outlawed; exiled or banished Person, nor a woman wayve, nor a villain without his Lord, nor a Feme Covert without her Husband, nor religious Persons without their Sovereigns, nor Persons Excommunicate, nor deaf, nor dumb Persons without their Guardians, nor the judges of the Cases whereof they are judges, nor any one who is nor of the King's Allegiance, so as he hath been more than forty days within the Realm, except Approvers who are suffered to accuse criminally people of his own condition in favour of the peace. How lawful men ought to complain. They ought in friendly manner to show their offenders, that is to say, their trespassers that they reconcile or amend themselves towards them; and if they will not do so, and the Cause be Criminal, than ye are to distinguish, for if any one seek revenge, than it behoveth him to bring his Action by Appeal of Felony, and if he seeketh only reparation of damages, than he behoveth to bring his Action by Writ which is to contain the name of the King, and of the Parties, and the name of the Judge, and of the County, and the Plaint in the demand, if the damages or the demand exceed forty shillings; and if not, than a Plaint sufficeth without a Writ. And because all Suits of the Plaintiffs could not be determined upon the first preferring of the Suits, nor the Suitors or Plaintiffs presently relieved in their Suits. Therefore Kings used to go from County to County every seven years, to inquire of Offences and Trespasses, and of wrongs done to themselves and to the Crown, and to the Common people; and of all wrongs, errors, and negligences of their Officers, and of all false Judgements; of pains pardoned or wrongfully judged, or outrageously; of Outlaws returned, and of their Receivers, of the values of Counties out of Hundreds, Towne●, Manners, and of movable goods which belong to the King, and to the Crown; of the Lands of Idiets, of alienators of Fees, of offences against the King's Inhibition, of Privileges and Franchises prejudicial to the Kings of Bridges and High-wa●e●, and of all other needful Articles; and they used to do right to all Persons by themselves, or by their Chief Justices; and now Kings do the same by the justice's Commisfaries in Eyre, assigned to hold all Pleas. Infante of such Eyres are Sheriff, Turns needful, and views of Franck-pledges, and when the people by such Inquests were indicted of any mortal offence, the King used to Condemnethem without Answers, which usage still remaineth in Almain; but of pity and mercy, and because that man by reason of his frailty cannot keep himself from sin (if he abstain not from it by the Grace of God) it was accorded that no Appelee or Indicter should be condemned without answer. And Kings had no Jurisdiction but of mortal offences, and of the rights of the Crown, and of their own rights, and of the wrongs of their Ministers, and of wrongs done against Common Law, and Common Ordinances, and the Articles of Eyres. CHAP. 2. SECT. 4. Of Rewards and Fees. KIngs used to give Rewards to the chief of the Stock, and to all those who faithfully served them; and from the Rewards of King's others took example to reward their servants; and because no Freeman was bouden to serve against his will, by reason whereof none were bound to serve the King or any other but by the service of his Fee, or by reason of his Residence or dwelling in another Fee; some are bound to serve the King for a certainty by the year. And it is not lawful for those Officers who take wages certain of the King, to take any wages of the people. But the judges who serve the King, it is lawful for them to take twelve pence of the Plaintiff after the hearing of the Cause and no more, although there be two judges, or two Plaintiffs in one Action: and the Pleader six pence, and a Knight sworn a witness four pence, and every jurour four pence, and the two Summoners four pence Nevertheresse in the time of King Henry the 1. It was Ordained and assented unto; That jurours sworn upon Inquests of Office, as in Assizes, Recognizances of Assizes, Redissessins', ●ertisicates of Assize, and Attaints, and other the like should not take Fees because they did the same Ex officio; and to answer these moneys, and the damages are the Defendants chargeable, if judgement be given against them. And to those who followed any Suit for the King's profit, and were not any of his Ministers, ●ing Henry the ●. gave to them the twentieth part of the profit with their reasonable ●o●●, In like manner the judge was not to hear the Plaintiffs Cause if he put not in security to answer his Adversaries damages, if he complain of him wrongfully. CHAP. II. SECT. 5. Of Countorr or Plaaders. THere are many who know not how to defend their Causes in judgement, and there are many who do, and therefore Pleaders are necessary, so that that which the Plaintiffs, or Actors cannot, or know not how to do by themselves, they may do by their Sergeants, Attorneys, or friends. Countors are Sergeants skilful in the Laws of the Realm, who serve the common people to declare and defend Actions in judgement, for those who have need of them for their fees Every Pleader of others Causes ought to have a regard to four things. 1. That there be a person receiveable in judgement, that he be no Heretic, Excommunicate Person, nor Criminal, nor a man of Religion nor a woman, nor within the Orders of a Subdeacon, nor a Benificed Clerk who hath cure of Souls, nor under the age of 21. years, nor judge in the same Cause, nor attainted of falsity in his place. 2 Another thing is; That every Countor is chargeable by Oath that he shall do no wrong not falsity contrary to his knowledge, but shall plead for his Cliant the best he can according to his understanding. 3 The third thing is, that he put no false Dilatories into Court, not false Witnesses, not move or offer any false corruptions, deceits, leasings, or false lies, not consent to any such, but truly maintain his Client's cause, so that it fail not by any negligence or default in him, not by any threatening, hurt, or villainy disturb the Judge, Plaintiff, Sergeant, or any other in Court, whereby he hinder the right, or the hearing of the Cause. 4 The fourth thing is as his Salary, concerning which four things are to be regarded; 1. The greatness of the Cause. 2. The pains of the Sergeant. 3. His worth, as his Learning, eloquence, and gists. 4 The usage of the Court. A Pleader is suspendable when he is attainted to have received sees of two Adversaries in one Cause; and if he say o● do any thing in despite or contempt of the Court; and if he fall under any of the points aforesaid, besides the exceptions which are to the person of the Pleader; for no man can be a Pleader who cannot be a Plaintiff or Actor. CHAP. II. SECT. 6. Of Attachments. Personal Actions have their Introductions by Attachments of the body; real by Summons and mixed Actions; first, by Summons, and afterwards by Attachments. The Law requireth that offenders in case of death have not such mitigation or favour that they be brought or summoned, or distreined to appear in Judgement by taking of their Cattles if the offenders be known, and notorious, and the Plaintiff pursue them to soon as he may. And if any one fly for such offence, then according to the Statute of Winchester he was to be followed with Hue and Cry, with Horn and Voice, so that all those of one Town who can are to follow the Felon to the next Town; and if any such Felon be attaint and convict of the felony, let him be killed if he cannot be otherwise apprehended. But it is otherwise in felonies not known, for it is not lawful to kill the offender without his Answer, if he may be taken alive. And if any one would complain to have revenge, or to drive the offender to the salvation of his Soul; let him go to the Coroner of the place where the offence was done, and set forth his complaint there as he will prove it, and the Coroner is to cause the same to be distinctly enroled; and if he cause him to record it as murder, being corrupted to destroy his Neighbour by his plaint; so that he have Judgement; the like is to be done to him if he prove not his plaint. At the next Court after the Appeal is enroled it belongeth to such Plaintiffs to recite their Appeals, and to find Sureties to pursue them, or to remain in Prison till they have found Bail; and to the Maine-prisors such Plaints are to be delivered by Coroners body for body, that they shall pursue their Appelees, and to cause them to appear in Court to receive Justice when they shall be demanded, if they do not prove their Appeals. The Personal offences are these: Imprisonment. Mayhem. Wounding. Battery. Perjury. Usury. Rescusses. Forestallings. Breaking of Parks. Resistance of framing lawful Judgements. Executions of false Judgements, and all wrongful offences. Carrying away of Treasure trove, of Wrecks, Waife, Estrays. The Attachments of mortal offenders are by their bodies without Sureties, and the Attachments of venial Personal offenders are also by their bodies, but yet they are bailable. Real offences are those upon which are grounded Writs of right, of Cozenage, of Dower; of right of Advowson, of Entre, of Escheat, Writs of Quo jure, of Formedon, and of all Writs, feodalls. Mixed offerices are those upon which these Writs are framed, viz. of Customs and Services, of Villinage, of Covenant, of Homage, of rendering Distresses, of Mesne and other Acquittances, of Escheates, and the like, and by reason of the mixture of their Introductions, they are called Mixt. CHAP. II. SECT. 7. Appeals, and to whom Appeal is given. THe Action of Appeal is not given to all alike, but every one is allowed to have his Action of Trespass to whom any Trespass is done, except such as cannot have any Action at all. Every one may have an appeal of Burning to whom the damage is done, and the property of the thing burnt doth belong. Parents, Kindred, and Allies used to be admitted to bring Appeals of Murder; but the Appeal of the Wife of the kill of her Husband is to be received before all other; and yet not of all his Wives, but of her only who lieth betwixt his Arms, which is as much as to say in whose seisage he was murdered; for if he had many Wives, and all were alive at the time of his murdet; nevertheless she only is admitted to bring the Appeals of all the rest whom he last took to be his Wife, although in right she be not his Wife; and the reason thereof is because it belongeth not to the Temporal Court to try, which was his Wife of right, and which in Fact; and the Appeals of all other are to be suspended, the pendant the same Appeal brought. After the Appeal of the Wife is the Appeal of the Son lawfully begotten, of the murder of his Father to be received before all other, it is (said lawfully begotten) because a Bastard is not to be accounted amongst Sons, for the Common Law only taketh him to be a Son whom the Marriage proveth to be so. After the Appeal of the eldest Son, the Appeal of the next of blood is used to be received, and so from one degree to another in the right Line of Cozenage; and if the blood fail in that Line, than they of the Collateral Line are admitted to bring the Appeal; or the Kinted where the blood faileth, according to the degrees of Consanguinity and Affinity, and especially in the Line of the Father's side; but the Appeals of Murder were restrained by King Henry the 1. to the four next degrees of blood. And if any one within the age of 21. years do bring an Appeal; the Defendant is not bound to answer so high an Action until he hath passed that age; and therefore such Appeals are to be suspended till both the Parties be of full age, if exception in the case be taken to the Nonage. Men and Women, Clerks and Laymen, Infants and others of what condition soever they be may bring Appeals, except those who are not suffered to bring any Actions; and although it be that many do bring Appeals, yet one nevertheless is admitted to continue, and pendant that, all the others are to be suspended. And in all Cases the Appeals against the Accessories are to be suspended pendant, the Appeal against the Principal, be it one or many. CHAP. II. SECT. 8. Of Process of Exigent in Appeals. AT the first County the Coroner is to do no more but to enter the Pledges, who properly are Mainprisors, and to Command that such take the Appeals, and seize all their Possessions and their goods into the King's hands, as before is said; and if they be taken, that they be kept till due deliverance be of them, and if they be not to be found; and the Plaintiff come at another County, and recite his Appeal or Appeals, then are such Appelees demandable only by their names, and by such names as they are best known by, that they appear to Answer the King's Peace, for if any one be Appealed as Son of the Father, and is known by another Surname, the Appeal is insufficient, and by consequence abatable at the peril of the Plaintiff; and at the third County they are to be demanded in like manner as before; at which County Court if the Appelees appear not, not are taken into Mainprize to appear at the next Court, Judgement is to be given against them for their contempt by the Coroners; and those who do appear before Judgement of the Coroner, are presently to be delivered over to the Goal, where they are to be received without difficulty of Fine, or request. CHAP. II. SECT. 9 Of Goals and Gaolers. A Goal is nothing else but a common Prison, and as a Leper, or a man who hath a diseased body is not to be suffered to dwell or remain amongst men who are sound; so mortal sin is a kind of Leprosy, which maketh the Soul abominable unto God, and therefore such mortal sinners or offenders ought to be separated from the society of the people. And to the end that Innocents' be not infected with their offences, Goals were Ordained in every County to keep such mortal offenders in, there to remain till judgement were given against them in case the offences were notorious. There are 2 kinds of Prisons Common and Privite. Every common Prison is a Goal, and none hath a Goal but the King only. A private Prison is another Prison, from whence every one may escape who can, so as he do no other Trespass in the escape. None are imprisoned in a common Prison but for a mortal offence, and therefore it was forbidden by King Henry the 3. That none should levy money for any escape in the Land, if the escape were not adjudged before the justices in Eyre, whether for the same a Corporal or a pecuniary Punishment were awardable or not; and because it is forbidden that none be pained before judgement, the Law requireth, That none be put amongst vermin, or in any horrible not dangerou place, not into any other pain; but it is lawful for Gaolers to fetter those they doubt, so as the Fetters weigh no more than 12. ounces; and to enable the keeping of those in the Goal who are violent, outrageous, or do other Trespass there. CHAP. II. SECT. 10. Of People bailable in Appeals. SOme Appeals of mortal offences, although they are not bailable by Law, nevertheless they are suffered to be bailed when they are brought into the Goal; as namely, the Appeals of Murder, Robbery, Burglary, Larcine; or out of Prison, where it is found that they are wrongfully Appealed, and for such case was the Writ De odio & accia invented. Those who are condemned to have Corporal punishment are not to be Bailed; but it is otherwise of those who are imprisoned for a Fine, or any other pecuniary penalty or punishment. CHAP. II. SECT. 11. Of the Appeal of Majesty. OF the Crimes of Majesty, not of falfifying, not of any thing which concerneth the King's right, there lieth no Appeal, but Actions, or Indictments. For slanders of Sodomy, our ancient Fathers would never agree thus for the scandals of so doing, that any one should bring Actions by way of Accusation, not Indictments, not would ever assent that they should be heard of in regard of the abominableness of the sin; but they Ordained, that such notorious sinners should be forthwith judged, and judgements framed against them. Of the imagining of the King's death, and of other kind of offences of Majesty against an earthly King, there were Accusations but for Indictments; for every true Subject was with all expedition to show the same to the King, so that he be not taken or seized upon by his long stay, or by great delay, in what cases the Accusations are to be received; and in full Parliament let the Accuser by himself, or by a Sergeant do it, according as it was done in this case in the time of King Edmond in these words. Rocelyn here saith against Walligrot; That at such a day, in such a year of the Reign of such a King, into such a place came the said Walligrot to this Rocelyn, and found him to be in Counsel, and in assistance with Atheling, Turkille, Ballard, and others, to Arrest, or to make Prisoner, or to kill our Lord King Edmond, and to do the same they were sworn to keep Counsel, and to commit this Felony according to their power. CHAP. II. SECT. 12. Appeal of Falsifying. THis offence is not openly done, it is seen by a false Writ, or false money found in ones possession, and although that three Persons are necessary in judgement in this case, nevertheless it is Ordained; That the possessor of ill things be by the judge Ex officio driven to answer to the Title of their Possession thereof, which is not so in all Cases. And if there be any one who will not plead to Judgement, than he is to be returned to the Goal, and all his goods are to be seized into the King's hands, and to be seized upon as in all Criminal Actions brought by Appeals or Indictments; also in venial Actions such contumacies used to be condemned for not pleading, as by their pleading and lawful Attainder. And if any one saith that he came to the money lawfully, and doth not know by whom, not none o●fer themselves against him to prove the affirmative of the Action; than it belongeth to the possessor of the money to prove the affirmative of his Answer. And if any one saith, that it came to him from a man certain, let it be as after herein is said. CHAP. II. SECT. 13. Of Appeals of Treason. TReason is set forth in Appeals in this manner, according as it is found in the Rolls in the time of King Alfred. Bardulf here doth appeal Dirling there for that, that in as much as this same Dirling was the Ally of the same Bardulf, the said Dirling came such a day of the year, etc. and during the Alliance ravished the Wife of the same Bardulf, or counterfeited his Seal; or did him some other mischief. Or thus; Hakenson, Father, or other Parent, or Lord, or Ally, this Dirling killed; or thus, remained in Aid, and in Counsel with Daffray, the adversary of the this Bardulf in speech which touched the loss of his life, or members, or of his earthly Honour; or thus, discovered his Counsel or his Confession; or thus, whereas he ought to have a lawful enrolment according to Law of such a Plea, the same Dirling falsely enroled the same to his dis-inherison, or otherwise to his damage; or thus, whereas he was his Attorney in such a Plea, before such Judges to gain or lose, and should have done him right, he lost by his default, or by his folly, negligence, or collusion, or restored the thing in demand, or did him such hurt. Or thus; whereas he should have excused him, or essoigned him such a day, &c he suffered him to lose the Possession, or such other thing through his default; or thus, whereas he ought to have truly spoken for him in such a Case, the said Dirling did ill advise him, or speak against him in such a Io●nt; and afterwards thus, this Treason did the said Dirling feloniously as a Felon, and traitorously as a Traitor, and if he will deny it, Bardulf is ready to prove it upon him by his body; or as a mayhened man, or a woman, or a Clerk ought to prove. And although that advice be given to some, that it belongeth not to the Plaintiff to show the proof of his Action, until it be denied of the adverse Party to hasten right, nevertheless such usage is suffered, as in this case following, and others it is; as if any Sheriff or other, take one to be Bail or Surety for another and he denyeth it, it behoveth the Plaintiff to say that he wrongfully denyeth it, and therefore wrongfully; for in such a year, such a day, and before such a one, of his own will he became Pledge for such a one, and the Plaintiff to hasten his business suffered to show the same in his Declaration, and if he denyeth it, etc. the Answer of the adverse Party is suffered to be taken, and afterwards he is to go to proof by his Replication. CHAP. II. SECT. 14. Of Appeal of Burning. THe Appeals of Burn are in this manner; Cedde here appealeth Harding there (which he sit-names) for that, that whereas this same Cedde had one house, or divers; or a stack of Corn, or of Hay, or a Mill, or other manner of goods in such a place; or thus, whereas Wetod, Father, or Mother of this Cedde was in such a place such a day, etc. the same Harding came thither, and put fire into the house, and burned the said Wetod therein, whereof he died; and this felony the said Harding did feloniously. CHAP. II. SECT. 15. Of the Appeal of Murder. OF the Offence of Murder, the Appeals are such, Knotting here Appealeth Carling thus; That where Cady, Father, Brother, Son, or Uncle of this Knotting was in God's peace and the Kings, scil. in such a place, the same Carling came thither, and the same day and year, etc. with a sword, or other kind of weapon run him through the body, gave him such a wound, in such a part of his body, whereof he died; this murder he did upon malice fore thought feloniously, etc. Or thus, with a Hatchet, or with a Stone, or a Staff struck the said Cady upon the head, or elsewhere, of which stroke he died such a day, at such a place, etc. or thus, That where the same Cady was hurt, in such a part of his body, of a curable wound; or had such a sickness, or curable Disease, and put himself to curing of this Carling, who said he was a Physician; the said Carling came, and took upon him the recovery of the said Cady, who by his folly, negligence, etc. feloniously killed him; Or thus, so long delayed his deliverance, whereby he killed him; Or thus, hung him, or feloniously killed him; Or falsely judged Regicald who first attainted the 12. jurours, Witnesses, who wrongfully hanged Gordian her Husband by 24. jurours, who afterwards by several Appeals hanged the first 12. jurours; Or thus, pained him so much to make him confess, and to be an Approver, that he falsely acknowledged himself to have offended, and made him to Appeal Innocents' of Crime, so that it lay not in Carling that the same Knotting was not adjudged to death; Or thus; whereas the said Knotting lay mayhemed upon his bed, and was reckoned so young; or so old, or so sick that he could not go, the said Carling came and carried the same Knotting from such a place, such a day, etc. to such a Water, Ditch, Marle-pit, or Defart, and therein threw him, and so left him without help or sustenance, so as he did as much as lay in him, that he was not there dead of Famine; this mischance he did unto him feloniously, as a Felon, etc. CHAP. II. SECT. 16. Appeals of Robbery and Larcine. THe Appeals of Robbery are these? Osmond here appealeth Saxemond there, That whereas this Osmond had a Horse of such a price, the said Saxemond came such a day and rob him of his Horse, etc. or of such a Garment of such a price feloniously; or of two Oxen of such a price, or other kind of goods of such a price, etc. he received the said goods so stolen, or was aiding, or consenting thereunto. Of La●cine thus: Armelwolde here Appealeth Oskerrill there: That whereas he had such goods, namely, etc. he feloniouslly, and as a Thief stole them away. In these Actions mere two rights, the right of the possession, as of the thing rob or stolen out of his possession who had no right in the property, as of things taken from the Baylee, or Lessee; and the right of property as it is of a thing stolen or rob out of the possession of him who hath the property in the thing. CHAP. II. SECT. 17 Of the Appeal of Burglary. OF Burglary are these Appeals; Athalf here appealeth Colgrum there; That whereas the said Athalf was in such a place in peace, etc. thither came the said Colgrum, and with force and arms assaulted his house, and in such a part broke it, or did such like other violence feloniously, etc. CHAP. II. SECT. 18. Of the Appeal of Imprisonment. OF the Appeal of Imprisonment thus; Darling here appealeth Wiloc there; For that whereas the said Darling, &c, the said Wiloc came and arrested the said Darling, and brought him to such a place, or at such a day, and put him into the Stocks; or in Irons, or in other pain, or enclosure, from such a day until such a day, etc. or thus; contrary to sufficient Bail offered by him, in a case baylcable detained him, or after judgement given for his deliverance from such a day to such a day, this felony he did feloniously, etc. CHAP. II. SECT. 19 Of Appeals of Mayheime. Appeals of Mayheime are these; Umbred here appealeth Maimawood there; For that whereas the said Umbred, etc. the same Maimawood came and made an assault upon him of forethought malice, and armed in such a manner, cut off the foot, or the hand of the said Vmbred; or with such a staff struck him upon the head whereby he pierced the scull of his head; or with a stone struck out his three forereeth, whereby he mayhened him; this Mayhem he did feloniously, etc. CHAP. II. SECT. 20. Of the Appeal of wounding. OF Wounding are these Appeals; Barnings here appealeth Olif there; That whereas the said Barnings, etc. the said Olif with such a weapon struck him, and wounded him in such a part of his body, which wound contained so much in length, so much in breadth, and so much in depth; and this wound he gave him feloniously. CHAP. II. SECT. 21. Appeal of Rape. AN Appeal of Rape is in this manor; Arneborough here appealeth Atheling there; For that whereas the said Arneborough, etc. the said Atheling came, and with force cast her down, and in despite of her feloniously ravished her, and because that every Rape used not to be holden for a mortal offence, no Appeal was thereof, if therein she did not say, and took away her Virginity. CHAP. II. SECT. 22. Of Offences real at the Kings Suit. THere are many who seek not Absolution, notwithstanding they have offended against the King mortally; & therefore because the King is bound Ex officio to compel them to salvation, the King used every seven years to go through all Shires in his Realm, to make enquiry according as before is said; further, in aid of such Eyres were Coroners, Sheriffs Turns, Views of Franck-pledges and other Inquests to inquire of those offenders as is said. But because some are wrongfully slandered, King Henry the 1. Ordained, that none should be arrested nor imprisoned for slander of mortal offence before he were thereof indicted by the Oaths of honest men, before those who had Authority to take such Indictments, and then they were first to be seized upon by their bodies, and goods, as in Appeals, and to be kept in prison till they cleared them of the infamy before the King or his Justices. Of the Crime of Majesty in no kind was any Indictment but of Heresy or Romery, whereof if any were indicted and brought to Judgement, let there be an indictment for the King by some of his people in this manner, according to that which is found in the Rolls of ancient Kings. I say Sebourge there is defamed by good people of the sin of Heresy, because that he of evil Art, and belief forbidden, and by Charms and Enchantments he took from Brighten by name, etc. the flower of his Alc, whereby he lost the sale thereof, so that Judgement be not given of less than three persons; or thus, Molling who is there defamed by good people, that such a day he denied his Baptism, and caused himself to be circumcised, and became a jew, or a Saracen, or offered or sacrificed to Mahomet in contempt of God, to the Damnation of his Soul; and this offence he did feloniously, etc. and so in every like Case for the King; and if he will deny it I am ready to prove it upon him for the King, as to the King it belongeth to do; that is to say, according as an Infant within age. Of falsifying thus; I say for the King, that Mimunde there is defamed, etc. for that he such a day, etc. falsifyed the King's Seal, or his Money, in such a kind, or such, etc. Of Trespasses Indictments now cease; of Burn thus, I say etc. that Seabright there is defamed, etc. for that at such a day, etc. he set a fire such a house or goods, etc. Of Murder thus, I say etc. that such a one, with such a weapon struck Agole in such a part of his body, by which stroke he is killed, etc. The degrees of Accessories are to be showed after the Principals according to their right. Of Larcine in this manner; I say, that Cuthbert there, etc. rob such a man known, or unknown of his Horse, or of other kind of goods, etc. or feloniously stole, or was consenting to the offence of such Thiefs known, or of unknown Thiefs by taking of Theef-hoot which is a receipt of Larcine, which he wittingly took to suffer such a one to pass, or to stop Suit, or wrongfully to procure his pardon. CHAP. II. Sect. 23. Of Offences personal at the Kings Suit. A Personal offence is divived into two branches, whereof the one extendeth to Persons, and the other to Goods. The Venial offence which extends to Persons is divideable into great offences, and small offences; and although the King have Counsans of all offences, yet he reserveth only the ordering of all gross offences to himself, and the Counsance of the lesser he leaves to all those men who have Courts within their Demesnes; and upon this division of offences hath the King established the Peace, so as such Lords & Bailiffs have the ordering of the Peace for small offences. The Venial offences Personal are these, Perjury when one telleth a lie against the King;, and Perjury of his Officers; The mortal offences not declared feloniously, as Imprisonment, Mayheim, Wounding, Battery, are to be showed without Appeals, alienation of old treasure sound, Diffesin, Reddisseisin, and many others; the declarations of Personal offences, venials, infamatories, are to be declared at the King's Suit in this manner: I say for our Lord the King, that Y there is Perjured, and lied against the King; that whereas the said I was the King's Chancellor, and was sworn that he should not sell not deny right, not remedial Writ to any Plaintiff, the said Y such a day, etc. and sold to such a one a Writ of Attaint, or other remedial Writ, and would not grant it him for less than half a mark, etc. Or thus, whereas he was one of his judges assigned, and was sworn to do justice, etc. he in this manner, in such a Court gave judgement, or awarded against such a Party, or released such a Party, or usurped such jurisdiction upon the King; or made himself judge, Coroner, or Sheriff, Bailiff, or other Minister of the Kings without Warrant; or thus, whereas he was Channcellor of the Exchequer, etc. he forbade to give an Acquittance of so much as such a one had paid of the King's debt under the Exchequer Seal, or delayed to give an Acquittance from such a day till such a day, and would not give an Acquittance unless he bought it for so much; or thus, for that he holdeth Plea against the Kings forbidding, or in prejudice of the King and his Crown, and the rather seeing it belongeth not to any Ecclesiastical Judge to hold secular Pleas, but only of Testamentary and of Matrimony; or thus, he disturbed the giving of Judgement, or surceased so to do justice by negligence, or by his consent. In this manner are the Presentments to be made at the King's Suit, of Personal wrongs of all his Ministers great and small; and also against all others not his Ministers, of all wrongs done to the King by those who have sworn fealty to him. CHAP. II. SECT. 24. Of Venial Trespasses, and Personal Suits. TO those who have cause of Action and will not pursue revenge according to their rights by Actions of Trespass to recover damages for the Trespasses; nevertheless ye are to distinguish where the Trespass is done to the person of a man, and where to his goods. And if to a man's person, every one may have an Action to whom the Trespass is done, except those who can maintain no Action without their Guardians. And if to the goods, than ye are to distinguish whether to his proper goods, or to the goods which he hath with others in common. And if to the proper goods, then to distinguish if proper to a man, or belonging to another thing, as to the Crown, or to any Church. If to a man, then to distinguish if to a man free of himself, or to a man who is in ward. And if to a man free of himself he hath several Actions, and if proper to any other in ward, the Action belongeth to the Guardian. If to a man in ward, the Action belongeth to the Guardian, or to the next of Kin, Parent, Affine, or Alley of his name to the use of him who is in ward. Of goods which are in common no several Action lieth, and therefore of goods which belongs to men of Religion, the Action belongeth to the Sovereign of the house, in his name for him and his Covent, or in his own name, and the name of him who is in his custody, if the Action be an Action personal, venial. And there is a difference betwixt Actions which are to cause death, and pardonable Actions, for as much as to mortal Actions the Suit is to be brought first against the Principals, and afterwards against the Accessories; and in Venial Actions of personal Trespasses, all aught to be comprehended in the Plaint in common, the Principals, the Commanders, the Conspirators, and the Accessories, for as much as a man shall not recover several damages by several plaints thereof; nevertheless none of the Accessories is to plead to the Action before the Principal hath pleaded, or be condemned for his Contempt. Personal Trespasses used to be heard and determined in inferior Courts of Lords of Fees, and then the offenders were Attachable by their bodies, and they used to keep them and bring them to Judgement, if they were not bailed, without offending the Law. The remedial Writ of Trespass requireth bay●e to them, which whosoever could not find was to remain in Custody without his Keeper, because they were bound to acquit their Pledgers. And if any nevertheless become Pledges of their own will in such cases, they are to be taken; but if they are thereby endamaged by Nonsuit of the party, they had no recovery against the principal Surety; a pursuing may be in divers manners, sometimes by Pledges, as it is of those who can find them; sometimes by trusting them, as it is in case of Foreigners and poor, who have not ability to find Pledges; and sometimes by the bodies of the Plaintiffs, as it is of Appealees, who have no other Sureties but the four walls of the Prison. And for the durenesse which is used to be done to the bodies of offenders in personal offences, or venial, King Henry the 1. Ordained; That they should arrest them first by their bodies, until they justify themselves by Bail; and if they be not found, and if they do not discharge their Bail, they are then to be distreyned by their Land; to the value of the demand, and if they then make default, their Lands are to be delivered over to the Plaintiffs, until they have made satisfaction by a reasonable Extent, if before they have not acquitted themselves by Law. Of Pledges, note that those are Pledges for pursuing who the Plaints affirm, and those are Pledges who reprieve any other thing besides the body of a man, for they are not properly Pledges, but Maine-prisors, because they suppose that those plevifables are delivered to them by Bail for the body. The ordinary Declaration of Venial Plaints gins in this form; I show unto you who am here; that E. who is there wrongfully delayed his Action, by a false essoigne which he cast such a day, in such a place, etc. to the great damage of the Plaintiff. And of Trespasses done against the King's Peace it is easy to show, and of Trespasses done against Lords or Bailiffs, and in hatred of false Plaints, King Henry the Ordained, that audience were forbidden to Plaintiffs in venial Actions, and that none was bounden to answer such Actions, if they had not present proof of a lawful Suit. And there is such a difference between a Criminal Action in pleading and a Venial, that if a Sergeant put these words, scil. (feloniously as a Felon, etc.) in Declaration; of Venial Actions, the Declaration; are vicious and abateable, because that no Judge hath power by a Venial Plaint to determine felony; and in the same manner is the Count vicious and abateable, where the Count is upon the right of property, and upon the plea of Possession, Et è contra, and there are some Actions wherein no Declaration or Count; as in Disseisin, Redisseisin, Certifications of Assize, false Judgements and Attaints. CHAP. II. SECT. 25. Of Assize of Novel, Disseisin, and Reddisseisin. AMongst other personal Trespasses, it is not to be forgotten to make mention of Dissesin, of which it is needful first to see to the Title, why it is called Assize of Novel Dissesin. An Assize in one Case is nothing else but a Session of the Justice, in another case it is an Ordinance of Certainty, where nothing could be more or less than right; for the great evils which is used to be procured in witnessing, and the great delays which were in the Examinations, Exceptions, and Attestations, Randolphus De Glanvile Ordained this certain Assize, that Recognitions should be sworn by 12. Jurours of the next Neighbours. and so this establishment was called Assize. In the third case Assize is taken properly for an Action in four manner of Pleas Possessories; Scil. Novel Dissesins Mo●ldamcester. Darreis' Presentment. Juris utrum. But such Assize are called Petit Assizes, to make a difference from Grand Assizes, for the Law concerning Fees is grounded upon two right, of Possession and property. And as the Grand Assize serveth to the right of property, so the Petit Assize serveth to the right of Possession, and because such Petzi Assizes are to be taken of the Counties where the Fees are, by the Statute of King Edward called such Actions, Assizes, either for the general Session of the Justices, and of others, or from the propernames of such Actions. It is called Novel, to put a difference from those which are ancient, for anciently Kings used to go over the Shires to inquire, hear, and determine offences, and to redress the wrongs there, and that which was not brought in such Eyres of personal Trespasses before remained to the Judgement of God alone; and afterwards by reason of the multitude of offences, and that Kings could not do all by themselves, therefore they sent their Commissaries who now are called Justices in Eyre, who have not power to decree and determine a personal offence, but for a thing brought and not determined in the last Eyre; Then for as much as the Disseisin, or the personal Action was brought before the Eyre, the Action or Disseisin was ancient; but if the Disseisin be done since the last Eyre, than it is a Novel Disseisin. Disseisin is a personal Trespass, of a wrongful putting one out of possession, it is said wrongful to put a difference from rightful, which is no offence; as if I take from my Wife, or my Villain, or from another who is my Ward that which is my own; or if you take from me that which is mine, I take it from you again, I do not offend, for I am warranted so to do by the Law of Nature, seeing this usage is common to Men, Beasts, Fishes, Fowls, and other earthly Creature;, but I cannot do so afterward; for if I take from you forcibly any thing whereof you have had the peaceable possession, I do disseise you, and I do wrong to the King, when I disseise him of his right, or use force where I ought to use Judgement. On the other side, that which is taken from me by the rightful Judgement of any Judge Ordinary, or Arbitraty, is not taken wrongfully from me. Wrong is here taken as well for deforcement or disturbance, as for ejection. Deforcement, as if another entereth into another's Tenement, when the rightful owner is at the Market, or else where, and at his return cannot enter therein, but is kept out, and hindered so to do. Disturbance is, as if one disturb me wrongfully to use my seisin which I have peaceably had, and the same may be done three ways. 1 As when one driveth away a distress, so that I cannot distrain in the Tenement liable to my distress, whereof I have had seisin before. 2 Another is where one doth Repleive his distress by the Sheriff, or the Hundred wrongfully. 3 As if one distrain me so outrageously that I cannot manure, Blow, or the my Land duly; in which Case it maketh one an outrageous distreyner to disseise, or for to eject the Tenant; as if any one eject me out of my Tenement, whereof I have had peaceable possession by descent of Inheritance, or other lawful title to the possession. Note that all right is in two kinds, either in right of possession, or in right of property, and therefore the right of property is not so determinable by this Assize, as is the known possession, or as that which altogether favoureth of a possessory right. The remedy of Disseisins hold not of movable goods, nor of any thing which falleth not into Inheritance, as Land, Tenement, Rent, Advowson of a Church, and a house of Religion, Franchises, and the Appurtenances, and such other rights, whether they are holden perpetually in Fee, or for term of life, or years, according to the Contract, as well as the Land mortgaged to such a one and his Heirs until so much be paid to such a Tenant or his Heirs. Eiection of a term of years falleth into the Assize, which sometimes cometh by Lease, or Baylement, or Loane, and sometimes by right of Wardship by the Nonage of some Heir, and to the recoverer it belongeth to hold them according to the Contracts. Villinage in some Case falleth into this Assize; as to Free-tenants who are ejected or disturbed to continue their seisin of lawful Presentments, and whereof a Bargain is made betwixt any Donor, and any Purchaser, & although that the Purchaser cannot present living the Clerk of the Donor instituted into the Church; the Title nevertheless of Contracts barreth not altogether the Donee, so that afterwards he cannot present against the form of the Contract, and if he do the Donor falleth into this Assize, and the Bishop who gave the Institution to him who is not presented, by him to whom the right of presentation doth belong in his own name. Into this Assize also fall Donors and Purchasers, who make vicious Contracts of Lands and Possessions, as also it is of Guardians, and of Farmers who Lease their Lands for a longer time than their term endureth, in prejudice of the Lord of the Fee, or of him to whom the Reversion belongeth, as it is of those Lessors who have Fee rail. On the other side fall into offence those the King's Officers, and others who disseise a man, or a Corporation of their Franchises, whereof they have the Inheritance by lawful Title, if not through the default, abuse, or negligence of those, or of their Bailiffs to whom the Franchises belong. Into this offence also fall all Attorneys, who yield up the Inheritance, or Freehold of their Clients in Judgement, and the Justices also who yield to them, and the Tenants also; for it behoveth not Attorneys to lose their Client's rights, but it behoveth them to defend them till a rightful Judgement be given. Into this offence fall all those who commit any waist, exile, or destruction in Lands, as that which is not justifiable by Law, as those who assign over Lands to others, where in the Feoffments to themselves, or their Ancestors there is mentioned but of Heirs only, and that may be two ways, viz. to Heirs general, or to special Heirs, named as in Fee tail, or not named, as in Franck-marriages. This Action all Persons may bring, Men, Women, Clerks and Laymen, Infants and others of what condition soever they be, who are not forbidden by the Law. It is forbidden to Villains to bring this Action without their Lord, for as much as they are in the Custody of their Lords; In the same manner to Feme Coverts, and to others who are in Ward, and to those who were never Tenants in their own names, but in the name of the Lord The Law also denyeth the Suit to those who have withdrawn themselves from the same action in Judgement, or have released or quit-claimed their right. And note, that Retrahere, & subtrahere is not all one, Retrahere doth acquit a man from those things which are in his Writ, or in his Action; but neither the one not the other can utterly bar him, if he do not openly declare the same; but subtrahere withdraw his Action, every Plaintiff may do either by himself or his Attorney, whether he be present in Court or absent, and although it be that one will not pursue his Action, yet he doth not so bar himself, nor withdraw himself, but that he may have a new Writ, and a new Plaint, if he do not openly in Judgement say, that he withdraweth his Action; these remedies hold against a Disseisor, and where there are many, against all those who appear in the force, or in the aid. CHAP. II. SECT. 26. Of Distresses. ANy Action rightfully grounded upon a Personal Trespass, accrueth to people wrongfully distreyned, which is called a Distress; and because that none can cover his Robbery, or his Latcine by Distress, it is 1 to be known what is the division of Distresses. 2 Who may distrain. 3 When, and of what things a Repleive lieth. A Repleive is nothing else but a reasonable distress. A reasonable distress is to the value of the thing in demand without any other fault, for no outrageous distress is termed lawful. There are two manner of Distresses, a dead distress, as of Corn, Wine, and other such Chattels; and a live distress, as of a Man, a Beast, and of such like things. No man can distrain who is not warranted so to do by Law, or by some other special deed. 1 By the Law, as for Damage feasance, and for Debts and Contracts of Foreigners; for Foreigners are distreynable by their movable goods, and summonable because they are not free Tenants in the places where they are destreyned; and for (as well) a Debt recovered as any other, and so for Amercements of damages, and Arrearages of Account, or other thing. 2 By Deed, as if you grant me any Annuity, and do grant me to distrain in the Lands for the Arrearages of the same, or other service, and bind your Possessions which are not of my Fee in whose hands soever they come to a distress. When and what things a man may distrain. A man may distrain Cattles or other things so soon as he finds them damage pheasant, and not the day after, and after the time of payment, and not before, and not every day; And in the night a man may not distrain, but only in the day time, but for damage pheasant; for before Sun rising, or after Sun set no man may distrain but for damage pheasant, where a man may distreyn in places, or Lands within the Fee, liable to distress and not elsewhere. Of what goods a Distress may be. Of all goods which the Law forbiddeth not, the Law forbids that a man shall not distrain within the view, where he may have a sufficient distress in an open Covenable place. A Covenable dead distress is not by Armour or Vessels, by Robes or Jewels, by Writings if there be found another distress sufficient in itself. A Covenable live distress is not to be of Sheep which are guelt, Muttons, of Dogs, Birds, Fishes, or by Savage Beasts when there is a sufficient distress found of other Cattles. A distress is to be carried, lead, or driven away at the will of the distreyner, and in case any distreyner find not any distress but within some enclosure, in such case he can do nothing, but to shut up the goods enclosed, and so sequester them without doing any other violence, and if a man break up such Pound, or the locks of it, or part of it, he greatly offendeth against the Peace, and doth Trespass to the King, and to the Lord of the Fee, and to the Sheriffs, and Hundredours in breach of the Peace, and to the Party, and to the delaying of Justice; and therefore Hue and Cry is to be levied against them, as against those who break the Peace. A dead distress found in a Covenable place, nor a live distress is not to be led, or driven out of the Manor, or out of the Hundred, or out of the County, not to be put in any pound or elsewhere, wherehe to whom the goods are belonging cannot have sight of them, but is to be put into such a place where the distress, and he who is the owner may be least endamaged. There are two kinds of leading of distresses 1 One when a man leads away a live distress against sufficient Gauges & Pledges. 2 Another, when one will not suffer himself to be distreyned lawfully, and the one and the other are Personal Trespasses against the Peace. And then if any be wrongfully distreyned, ye are to distinguish whether it be by those who have power to distrain or by others. And if by others, then lieth an Appeal of Robbery, whereof Ha●lif gave a notable Judgement; and if by those who may distreyve, than they ought to deliver the distress by Gauges and Pledges. And if the distreyner, and the Plaintiff of the distress lead it away, than the Counsans thereof doth belong to the King's Court, and so there is remedy by a Writ of Replegiary. Nevertheless, for the releasing of such distresses, and for the hastening of the right, Randalf de Glanvile ordained, That Sheriffs and Hundredours should take Sureties to pursue the Plaints, and should deliver the distresses, and should hear and determine the Plaints of tortuous distresses, saving to the King the Suit, as to the leading, etc. Two thing, fall in these Plaints; Plaints of taking, and of detaining; whereof there are fouredegrees. 1 Where the taking is justifiable for lawful, and the detaining also, as for a debt due, or debt recovered. 2 Where both are wrongful (as) such as are disavowable both in the taking and detaining. 3 Where the taking is lawful, as in damage pheasant, and the detaining tortuous, as against sufficient Gauges and Pledges tendered. 4 Where the taking is tortuous, as in a pound, and the detaining lawful, as for a Debt confessed, and of no more have the ordinary Judges Counsans; but in case where the Plea gins by Writ, Counsans ought to be made of the taking; of the dedaining lieth remedy by an Assize of Novel Disseisin. The taking and the detaining are sometimes by Parties known, and sometimes by Parties unknown, but although the Persons are known, nevertheless the names of the detainors ought to be known; and according to that the Avowant or the Plaintiff, or of his Bailiff if he be not present, aught to frame his Declaration, and the Plaint jointly against the Persons, and against the detainers, or severally against one of them, and if against them both then thus; A wrongfully took, and caused to be taken, by such a one known, or unknown, &c, and drove, and carried away, etc. and wrongfully doth detain from him, etc. against Gauges and Pledges, and is yet seized thereof: or thus, wrongfully detained from such a day till such a day, that he delivered the same to the King's Bailiff to his damage, etc. for these words (and yet is thereof seized) leaves it to them, that they cannot have sight of the distress, and to those who detain the distress by avowry of property. CHAP. II. SECT. 27. Of Contracts. AContract is a speech betwixt Parties, that a thing which is not done be done, of which there are many kinds, whereof some are perpetual, as those of Matrimony; others are temporary, as of Baylements, and Leases; and one kind is mixed, as of Exchanges, which sometimes are for a time, and sometimes for ever; and one special kind is an Obligation. And because the Law doth not intermeddle with every Contract, we are to see who may Contract, and of what things Contracts may be; every one may make Contracts with all persons who is not forbidden by Law. The Law forbiddeth that none Contract with the enemies of the King of Heaven, nor with the enemies of their earthly King; not with any mortal offenders, not with those who are not of the Christian Faith, not with Outlaws, nor Waives, nor with those who are known Felons, not Excommunicated, nor with any who are in Ward, if not to the profit of those who are in Ward; nor with Deaf, nor Idiors, nor Madmen, nor Appealees, nor Persons indicted of Crime. Of what thing a Contract may be made. Of all things not forbidden by Law. The Law forbiddeth that a man do not make a Contract of the right of another, although he offend not; the Law forbids Contracts of Usury, Disseisin, hurting of the body, dis-h heriting, and of other offences or vices. Contracts are forbidden which are to the damage of the Party gaining, by vice, by forbidding mixture of offence. Contracts are vicious; 1 Sometimes by intermixture of offence; 2 Sometimes by intermixture of ill beleese; 3 Sometimes when they are made against that which is absolutely forbidden; 4 And sometimes by false supposition. In the first Case, as if I Contract with you, that if I do not such a thing, or such a thing, that it shall be lawful for you or another to kill me, or to wound me, or imprison me; Or of Usury, that you shall not demand of C. for 100 l. or other thing, etc. In the second, as if I give, or deliver, or leave a thing with you in hope that you will redeliver the same to me again, and you detain this thing from me; Or if I devise in my Will, that you shall sell some of my Tenements to pay my Deb●● or to do other things with the money, and you being my Executer, keep this money for ever to your own use, without doing of it; Or if I sell, change, deliver a lease unto you to have so much of you at such a time, and you keep from me that which you promised. In the third Case, as if I make any Contract with those with whom it is not lawful, Nevertheless the Contract of Matrimony is not forbidden betwixt Infants, although it be used to be, but in case of Disparagements; for disparagement is an offence which is greatly forbidden. The fourth Case, as of Charters, or other kinds of Minuments, as it is of Charters, and Feoffments made in the seisin of the Donors, and of Charters of Quit-claime made out of the siesin of those who have them; for no Charter, no Rent, nor gist remaineth good for ever, if the Donor be not seized at the time of the Contract of two Rights, of the right of Possession, and the right of Property; and as a Charter supposing a gist to be made without difference is void, so is the Quit-claime of a thing whereof the maker of the Deed is not in Possession of the thing Quit-claimed. And as the Charters in the Cases aforesaid are nothing worth, so also are the Warranties, and whatsoever belongeth to such estates, which are without force by virtue of such false supposition. On the other side, suppose that a single Deed be false, which restifieth the gist to be returned to the Donor, or to his Heirs, or in any other manner of Condition; for agist is always simple, and not of the same affection of the giver as to the right of the gist, that the thing given should remain to the Purchasor without hope of Reversion. A single Deed is a Minument without Indenture, and therefore the Law requireth, that Escripts, testimonials of Contracts conditional, supposing a Reversion be Indented, and Chirographed. Contracts are supposed false in taking Homage in deceit of the Law, as if I take your Homage for other service then for the service issuing out of the Tenure De Haubert. The Law forbiddeth also, that none let nor take any Land, nor Fee, not Possession, nor term of years to come above the term of forty years, nor that any Contracts be made in Fee farm for ever, nor for years, rendering more Rent by the year than the fourth part of the value; nor that any be endowed of Advowsons', nor any alienation of Advowsons' be made out of the blood, if not in perpetuity, or Fee-simple, not that an Advowson be partable amongst Parceners, but that it remain entirely to the next Heir of the Ancestor, or that there be any Lease for years left, or Fee tail thereof, for the Advowson of a Church is so much in the spiritualty that there can be no alienation thereof, but in Fee-simple. In rights of Contracts of Baylement, and Administration of other goods and moneys, it is lawful for every one wisely to dispose of his goods to whom he will; and therefore it is advised that every one have Bailiffs, or Officers who he conceiveth do well understand the Manor, and if he be endamaged by any servant, or other hurt, that it be accounted his own folly, seeing he took not sufficient surety of their faithfulness and discretion; and è contra, for against him who hath nothing the Law giveth no recovery, nor other remedy but revenge; nevertheless if there be any such Bailiffs who will not render a true account to his Lord, he is chargeable thereunto by a Writ of Account, which is a mixed Action if he have wherewith to justify himself; and if he be not distreynable, nor a Freeholder, and deceiveth his Lord, and will not render an Account for such disobedience, he shall have the said Action personal mixed. And according to the change of the natures of the Actions, the forms of the remedial Writs are changed. And although that such for their contempts are bantshed for a time, or for ever, yet is no man to be Outlawed, or Imprisoned for the same; but if any be in Arrearages to his Lord, ye are to distinguish thereof if he have any thing, whereof satisfaction may be made by Judgement, to the example of a Debt recovered, or otherwise. CHAP. II. SECT. 28. Of Villinage and Neiftie. AN Action of Villinage, or Neiftie is a mixed Action, grounded upon a Personal Trespass done to another, when a man porsecutes a Freeman to enslave his blood. This Action is a Mixed Action in favour of Liberty, for very seidome will any one depart from his Lord's Manor, if he claim not himself to be a Freeman. This Action hath Introduction, by Summons, and Attachments of the Lands. A Waive is nothing else buta Villainesse, and notwithstanding that according to the Law of Nature all Creatures ought to be free, nevertheless by Constitution, and by the Deeds of men, (are) they and other Creatures enslaved, as it is of Beasts in Parks, Fishes in Ponds, and Birds in Cages. The Villinage of man is a subjection of such great Antiquity, that by the memory of man no free Stock can be found thereof; which slavery according to some is the Curse which Noah gave to Caanan the Son of Cham his Son, and to his issue, and according to others of the Philistines, who became slaves at the battle which was betwixt David and the children of Israel of the one party, and Goliath the Philistine on the other part. And as other Creatures are kept in enclosures, so are villains kept to guard the Possessions of their Lords, and from thence are said Regardants; and so men are villains by the Law of God, by the Law of man, and by the Cannon Law. From Shem and Japhet come the Gentile Christians, and from those from Cham, the Villains which the Christians may give away, or sell as they do other Chattels, but not devise by Will, because they are Astriers, who are annexed to the Francktenement, and of them there are many others. Those are Villains who are begot of Villains and Neifts in servitude, whether borne in Mattimony or out of Matrimony; those also are Villains who are begotten of Villains, and borne of Free-women in Matrimony, and those are Villains who are begotten of a Freeman and a Neife, and borne out of Matrimony. The other manner of Villains are those who are adjudged Villains by a Writ of not vo babendo, and their issue after them. Villains become free many ways; some by Baptism, as those Saracens who are taken by Christians, or bought and brought to Christianity by grace. Some became Free by the Pope, as it is of those villains who by Bishops are ordained into Orders of Deacon, and above; but norwithstanding the same a man shall not lose his right thereby who will sue for them. On the other part villains become Freemen if their Lords grant, or give unto them any free estate of Inheritance to descend to their Heirs, or if the Lord take their Homage for their land, or if the Lord eject them out of their Fees and give them sustenance; or if he put them in a common Prison if it be not for crime. A woman after she is put in possession by her Lord, is never again to be challenged as a Neife, notwithstanding she be sold. And if the Lord suffer his Villain to Answer in Judgement without him in a personal Action, or to be a Jurour amongst Freemen, as a Freeman knowingly, and without the Lords claim; the Villain hath this Plea to the Villinage if he return not of his own accord. Also a Villain becomes free through the Lord's default in a Writ of Native Habendo, as by his Nonsuit in the Writ. Also by proof of a free Stock, or to have been borne of free Parents. Also by the Lords grant in Court, and also by prescription; also for default of proof, and also by the Lord's negligence, as by the remaining of the Villain within a City, or upon the King's Demesnes for a whole year; Or if wittingly he suffer his Villain to be a Suitor in another Court, or to be sworn in Assize, or elsewhere amongst Freemen; if a Villain departed from his Lord claiming free estate, so that he cannot seize him within the Manor within the year, or out of his Fee, nor after his Writ of Nativo Habend. brought, it belongeth to the Lord that he bring again that Action which is ViceCountiel, and pleadable in the County by Summons, and Distresses of his Lands; for the Law requireth that he do right, and use not force The Parties being brought to Judgement in the County Court, and the Action being declared in the Defendant by way of exception may plead that he is Frank, and because that a free estate is of a higher nature than Villinage; therefore because the Sheriff hath not power to try so high a Plea by the Writ of Nativo Hebendo, those Writs and such Pleas are suspendable till the coming of the Justices in Eyre into those parts; but if the King Command not to the contrary, those Pleas are not adjournable but from one County Court to another Note that all Villains are not slaves, for slaves are said Regardant, as before; they can purchase nothing but to the Lords use, they know not in the Evening what service they shall do in the Morning, nor any certainty of their services; the Lords may fetter, imprison, beat, or chas●●se those at their pleasure, saving to them their ●ives and members, these may nor fly, or run from their Lords so long as they find them wherewith to live; nor is it law full for others to receive them without their Lords consent; those can have no manner of Action against any man without their Lords, but in case of Felony; and if those slaves hold Lands of their Lords, it is intended that they hold them from day to day at their Lords will, and not by any certain services. Villains are tilers of Lands, Note by Villains in this place is meant Copy-hol-ders. dwelling in Upland Villages, for of Vill cometh Villain, of Burough Burgess, and of City Citizen; and of Villain's mention is made in the Great Charter of Liberties, where it is said, that a Villain be not so grievously amerced that his Tillage be not saved to him, but the Statute maketh no mention of slaves, because they have nothing of their own to lose. And of Villains are their Tillages called Villinages. Copyhold called Copy holder's. And note, that those who are free, and quit of all servitude, become servile by Contracts made berwixt the Lords and the Tenants. And there are many manners of Contracts of Fees, as of Gift, of Rent, of Exchange and Lease, which all may make for a time, or for ever, and quitment without Obligation, and charge of service, and with charge. And these Contracts (as all other) are made by Writings. Charters, and Minuments, by solemn Witnesses, according to the example of Contracts of Marriages, which ought to be a pattern to all other Contracts; according to which Example were the first Contracts made by the first Conqueror, when the Earls were enfeoffed of the Earldoms, Barons of the Baronies, Knights of Knights Fees, Sergeants of Serjanties, Villains of Villinages, Butgesses and Merchants of Boroughs, whereof some received their Lands without Obligation, or service, or in Frankalmoigne; some to hold by Homage, and by Service for defence of the Realm, and some by Villain Customs, as to Plough the Lords Lands, to Reap, cut, and carry his Corn, or Hay, or such manner of service, without giving of any wages, whereof many Fines were levied of such services, which make mention of the doing of these base services, as well as of other more gentile services; and although it be so, that the people have no Charters, Deeds, nor Minuments of their Lands, nevertheless if they were ejected, or put out of their Possessions wrongfully, by bringing an Assize of Novel Disseisin, they might be restored to their estates as before, because they could aver that they knew the certainty of their services, and works by the year, as those whose Ancestors before them were Asteries for a long time, in case Disseisors were not their Lords. And thereupon Sr. Edward in his time, Doom-day Book, credo. caused enquiry to be made of all such who held, & did to him such services as ploughing his Lands, etc. besides their lawful Customs. And afterwards the people less fearing to offend than they ought, many of these Villains by wrongful Distresses were forced to do their Lord the service of Rechat of blood, and many other voluntary Customs, to bring them in servitude under their power, for which their remedy was a Writ of Ne investoè vexes. CHAP. II. SECT. 29. Of Summons. THis Chapter maketh mention of special Summons, to make a difference from general Summons, where all Freeholders and others ought to come according to the nature of the Cry whereof, and every one may Summon by a Common Cry; but of this Summons this Chapter maketh not mention. A special Summons is a friendly admonition of an amendment of an offence, or wrong; and because none is tied to Answer to any Action real or mixed before a Summons, therefore it is to see; 1 Who have Authority to Summon. 2 Who are Summonable. 3 In what place he is Summonable. 4 How fare one is Summonable. 5 At whose Charges. 6 How often. 7 Who may be Summonors. 8 What is a reasonable Summons. 1 All who have Jurisdiction, have Authority to Summon. 2 All those who are not forbidden by Law are Summonable, none is to be summoned for a personal offence, not any one who is not a Freeholder. 3 A man is not summonable in all places, for no man is summonable, nor bounden to receive Summons out of the Fee of the Party who causeth the Summons, nor elsewhere but in the Manor appendent to such a Court where he ought to Answer, nor in all places of the Manor, but only at the Tenement in demand. 4 How fare one is summonable; not out of the Fee of the Court where one is to answer. 5 At whose charges? at the charges of those who are the first causers of the Summons, except in Juries and Inquests taken ex officio; for no Freeman is compelable to travel, and appear in Judgements at his own charges, notwithstanding that the Law requireth that every Tenant obey the Summons of his Lord. 6 How often one is summonable; but once in one cause, nevertheless resummoned holdeth place in some case. 7 Who may and aught to be Summonors; no man is compellable to be a Summonor if he will not agree to it; nevertheless all those may be Summonors who will, that are not forbidden by the Law. Women, not Villains, nor infants, nor any infamous Person, not any one who is not a Free holder cannot be a Summoner. 8 It is a reasonable Summons, when it is testified by two loyal free Witnesses, Neighbours to the Person, or to the House, or Tenement contained in the Writ, with warning given of the day, place, party. Judge of the Cause, and a reasonable respite at least of fifteen days to provide his Answer, and to appear in Judgement. In Juries nevertheless, nor Inquests there need not be so full time or respite given. CHAP. II. SECT. 30. Of Essoignes. ESsoigne is an excuse of a default by any hindrance in coming to the Court, and lieth as well for the Plaintiff as for the Defendant. The Law of every Essoigne is; That the cause of the hindrance be enroled with the name of the Essoigner, so that if the divers Party, or his Attorney, or Essoignor will traverse the Cause, he is to be received so to do, that if he be found false, then that the Essoigne be turned to a default. All those may be Essoigned who are not forbidden by Law, no Defendant in personal Actions, not any after default can be Essoigned, not any present in Court, nor doth Essoigne lie in a Scire facias, nor in a Venire facias, nor in a Recordari facias toquelam, nor in Admeasurement of Pasture, nor after the Parties have joined issue in Judgement though the Jury appear not, nor in case where the Plaintiff hath not found Surety to pursue his Action, nor where one hath Attorney in Court, if both be not Essoigned, nor where the Summons is not testified; nor after an Essoigne not warranted, nor to him who was not named in the Writ, or in the Plaint, except in Warranties, nor any one who is resummoned in Mort-dauncester, and Darrein presentment, nor when the day is not come, nor where the Essoigner cometh too late, nor any one whose adversary is dead, or any of his Parceners, nor he who is adjourned from day to day, nor the King's Officer as Officer, nor he to whom it is commanded that he appear if he please. No Essoigne is justifiable if it be not orderly cast, nor is it allowed to Infants within age, nor to any who is in custody, nor to many having one right, if the Cause be not divers. All may be Essoigners who the Law forbiddeth not; it is forbidden to Women, to Infants, to Villaires, and to all who are in Custody; to Madmen, to Idiots, to Excommunicated Persons, to the Judges, and uo the Parties in the Cause, Essoigners at other times not warranted, 〈◊〉 ysainted of false delays, to criminal Persons, and to those who are not of the Christian Faith, or in the King's Allegiance, it is forbidden that they be Essoigners. There are chief two kinds of Essoignes; the one of the King's service, the other of hindrance. The first is dividable, either into the service of the King of Heaven, or of the King on Earth; of the King of Heaven in three manners. 1 Either for the general passage of all to the Land of, etc.— and this Essoigne is not otherwise adjournable, but that the Parties go without day, and are to appear again by Re-summons of the Plaintiffs, at the return of the Defendant. This Essoigne is not allowable to Plaintiffs, nor to the Defendant reasonably Summoned before his going from his house in a personal action, nor in other, but in a Plea which toucheth Inheritance; nor but in a Writ of Right Patent, but not of Dower, nor of Burgages. The other Essoigne of the service of the King of Heaven, is of a common Pilgrimage beyond Sea, towards the Holy Land, and this lasts for a year, this holds not bu● according as the other. The third, of a Pilgrimage beyond Sea, as to Rome, or to Saint James De compostella, and takes place for half a year and these Essoignees are to appear the next Courts following the Terms adjourned. After Re-summons holdeth place the common Essoigne De mal venier, and also after the term of Adjournment, but this common Essoigne never holds place before the Essoignes before said. The Essoigne of the King on Earth's service is in two manners. 1 The one is of those who serve as Soldiers, as Messengers, or as Ministers; and this Essoigne is not respited but from Court to Court, or the common day, to the example of a common Essoigne, if it be not warranted at the next Court by the King's Writ, it is to be turned to a default. 2 The other is of those who serve the King by Tenure of their Land for the defence of the Realm, and he hath no day; But the Plaintiff is with out day, and the Plea is to be recontinued in the same Estate when his Adversary shall be returned. These latter Essoignes are allowable in Pleas, summonable to Plaintiffs and Defendants, except in Dower Vnde nihil habet, Quare impedat, Darrein presentment; nor to Women, nor to Infants, nor to Idiots, nor to Deaf, nor to Dumb, nor Madmen, nor to any in custody, nor to any who is not free of himself; nor to any Attorney, as Attorney, nor where the Essoigner acknowledgeth the Cause in Judgement to be false, nor after any Cape, nor after distress in the Land. After the Essoignes of the King's service lieth an Essoigne of Malo veniendi, but not è con●●a. The Essoigne of disturbance or hindrance is dividable, either of sickness, or of some other hindrance, as of those who coming towards the Court are taken by the King's enemies, and so hindered; or by Waters, Bridges, or enemies discovered, or by Tempests, or other reasonable disturbance, so that they have not power to appear at the day. The Essoigne of hindrance and sickness is divideable, either of languishing, which is called De malo lecti, and that holdeth place for a year; or of sickness in the Journey, and that holds not but to the example of a common Essoigne; in these Essoignes of hindrance are Essoignes De malo veniendi. This Essoigne lieth after every Summons, and general R●-summons upon Pleas, except to Jurours, and those who are summoned for the commonwealth But of Adjournments it is to distinguish; for in the Eyre of Justices the Adjournement is for three days, or four at the most, or less according as the places are ●eare, or contain; and to this Essoigne is respited fifteen days at the least. The Essoigne of sickness in passage lieth before the Essoigne De malo lecti, and also after the year of the languishing, and it lieth before appearance, and after appearance, except in four Assizes; and where it lieth in Actions it holdeth in Warranties. This common Essoigne is not allowable in the cases aforesaid, but once after the Parties have joined issue, not after the Parties have agreed to appear without Essoigne, nor where a Bishop is commanded that he have or cause such a Person to appear, nor there where many claim by one right, or are Tenants of the same right, nor to a man and his Wife, not to all the paeceners; but if a man dyeth without Heir after the Writ purchased and brought, the Writ is thereby abateable, because at the day of the date the Plaintiff had no Action against the other parceners which are alive, as to that of the Party. This common Essoigne lieth as well for Infants where they are impleaded of their Lands, as for men of full age. And as the same is allowed to the Tenant, so is it warranted where no sickness is adjudged; this Essoigne is allowable from day to day, according to the common Adjournments in Writs of right, till the sickness be Judged, if the Tenant rise not before from his sickness; nevertheless none can do it in such a case if not with the Plaintiffs leave, or by the command of the King if the Plaintiff will not give him leave. This Essoigne holdeth in the Writ of Droit Potent sent to the Lord of the Manor, and in a Writ of Droit close of Lands holden of the Kings in Capite, and in the Writ of Customs and Services, after that the deforceor hath pleaded, and said that the Batraile or the Grand Assize may be joined. The Essoigne De malo Lecti is in Court for two years when the sickness turns to weakness, this Essoinge lieth not for the Plaintiff; and after the sickness adjudged, it is adjournable by a year of respite to the Court of London. Weakness lieth not in any Writ of right after appearance, but where Battle may be joined, or the Grand Assize. This Essoigne De malo Lecti was never allowable to any Attorney, nor to any but those who had a Warrant before the common Essoigne cast by the Tenant, nor to any after the weakness adjudged, nor without ●●sing; nor in Justifies, nor in the Writs De quo jure, nor De rationabilibus divisis, nor Quo warranto, nor Customs and Services before that the Court be certified that Battle might be joined, or the grand Assize. This Essoigne of De malo veniendi is called De malo villa, and this lieth in case where one appeareth the first day in Judgement, and is suddenly taken with sickness in the Town, that he cannot the next day appear in Court. This Essoigne may be cast the second day by one, the third day by another, and the fourth day by a third; in which case the Judge ought to receive the Attorneys of those who are sick, but this Essoigne lieth not but there where the Essoigne De molo lecti lieth. CHAP. II. SECT. 31. Of Attorneys. BEfore a Plea put into Court by Essoignes by Attachment, or by appearance of the Parties, none is to be received by Attorney, no more than a Plea is removable out of Court into a higher Court, where the Plaint or the Writ is not brought, nor any is to be received by Attorney in a Plea which was, nor in a Plea which shall be, but only in a Plea which is Pendant in the County Court, or elsewhere, or is brought by the King's Writ, and this Plea be afterwards removed into a higher Court. By this removing the Attorney is not removed, for no Attorney is removable unless he whose Attorney is come into the Court in proper person and remove him, if not in case where one hath general Attorneys, for general Attorneys may appoint special, and remove them, nor any can receive Attorneys after the Plea brought but the King, or other warranted by a special Writ, if not in the presence of the parties. All may be Attorneys which the Law will permit; Women may not be Attorneys, nor Infants, nor Villains, nor any who are in Custody, or any other who is not free of himself, nor any who is criminous, nor any who are not sworn to the King, nor any in any personal Action, nor in an Account, nor in Nativo habendo; Plaintiffs notwithstanding they have Attorneys, in personal Actions are not to appear, not answer in Judgement by no Attorney, but he disseiseth his Client when he doth it. The Contents of the Third Chapter. OF Exceptions. What is Exception, and the division and order of excepting. Exceptions Dillatories. Of Exception of Clergy. Exception of Bigamy. Exception of the power of the Judge. Exception of time. Exception of place. Exception to the person of the Plaintiff. Exception of Prison, and of Ward. Exception of Summons. Exception of vicious Counts. Exception of Approvers. Excedtion to Indictments. Pleas to Treason. Pleas to B●●ning. Pleas to Murder. To Larcine. To Burglary. Of Rape. Of imprisonment. Of Mayhem and ●ounding. Juramentum Duelli. The order of Battle. Exception of Personal Trespass. Of Purprestures. Of Treasontrove. Of Wrecks. Of Usury. Of Driving. Of Obligation. Of Attaint. Of Oaths. Homage. Fealty annexed to Homage, Common Oaths. Of final Accords. CHAP. III. CHAP. III. Sect. 1. Of Exceptions. IT behoveth the Defendant to Answer the Plaintiffs Declaration, and because the people commonly know not all the Exceptions in Plead; Countors are necessary, who know how to advance and defend their Clients Causes according to the rules of Law, and the Costoms of the Realm; and the more needful are they to defend them in Indictments and Appeals of Felony, then in personal or venial Causes; and the better to help our memory, which every day inclineth to forgetsulnesse, it is necessary to show what is an Exception, and the division of it, and the order of Excepting, or Pleading; for some account them guilty who Plead not, or Plead ill, or not sufficiently; for example, If any one Vouch one to warranty, and Judgement pass (if he tell not the year, or before what Judges the Judgement passed) it is as if he had said nothing; and so of other Cases, and although a Plea be requisire, nevertheless every one is not received to plead; for some are admitted to Plead without Tutors in all Actions, and some not, but in Felonies. Every one may Answer without a Tutor who is not forbidden by the Law. The Law forbiddeth Married women to Answer without their Husbands, but then we are to put a difference in the Cases; for if she be within the age of one and twenty years, she is not admitted to Plead in any Case without her Husband, but in Case where her disinheriting, or that which doth amount to as much doth appear by the malice, or negligence of her Husband; & if she be of full age, than she shall so Anawer alone in cases of death and Felony; and so it is of men within the order of Religion, and of Villains, and of all those who are in Custody, and are not delivered. CHAP. III. SECT. 2. What Exception is, and the order of Exception, or Plea. APlea or Exception is a thing alleged for Answer, either to delay or bar the Action. And there are two manner of Exceptions, Dillatories, and Peremptories. The order to Plead is such, that the Peremptory Plea is in the highest degree, or the dilatory may have a recourse to the Peremptory, but not è contra. And of Dillatories some are principal, and some are secondary, and from the secondaries there is no recourse to the principals, and according to their degrees are they put in, partly to help out remembrance. And some Exceptions are in Counts, in Replications, and Rejoinders, and so forth until the truth be cleared in the proceed of the Pleas, whereby one may surely come to give clear Judgements. Vourcher to warranty lieth not in personal Actions, although that averrements by Record, and Minements, and Witneffes availeth. CHAP. III. SECT. 3. Exceptions Dillatories. THere are many dilatory Exceptions, whereof the first is to the Judge, and that many ways; one unto the power of the Judge, and that may be in two kinds, by reason of the two kinds of Jurisdictions, or because the King or his judge Deligate hath no Power, or Counsance in the Cause, as it is of the person of a Clerk, by reason of the Privileges of the Church; or because the ordinary judge hath not power or Counsans of a thing done out of his jurisdiction, nor any one within a Franchise of a thing done in guildable, nor Kings, nor those of one Country, or of one Land, of things done in another Land or Country. CHAP. III. SECT. 4 Of Exception of Clergy. FOr the Privilege of Clergy, as if a Clerk be ordered in Court before a Lay judge to Answer to an Action for a personal Trespass, and especially in a Case criminal and mortal Plead that he is a Clerk, the judge hath no further Counsans of the Cause, for the Church is so enfranchised, that no Lay judge can have jurisdiction over a Clerk, though the Clerk will acknowledge him for his judge; and in such a case he is without delay to be delivered to his Ordinary. Nevertheless to give Actions to Plaintiffs against the Accessories in Appeals and Indictments, it belongeth to the judge Ex officio to inquire by the Oaths of honest men, in the presence of the Clerk whether he be guilty or not, and if he be 〈◊〉 thereof, than he is without delay to be delivered to his Ordinary, and the Plaintiff shall Sue against the Accessories in the King's Court, and in the Spiritual Court against the Clerk, and the Clerk after his due Purgation made, shall without delay have all his lands and moveables delivered to him. CHAP. III. SECT. 5. Replication of Bigamy. THe Exception of Clergy is sometimes Counterpleadable by a Replication of Bigamy in this manner. Sat, he ought not to enjoy the benefit of this Privilege, for he hath forfeited the same by the sin of Bigamy, as he who hath Married a widow, or many wives; and note that Matrimony is the lawful Order of joining together of a Christian man and woman by their assents; and as of the Deity and Humanity of Christ there is made an undissolveable Unity; so was Matrimony, and according to such Unity was such coupling found to be, and therefore none can remain in that Unity who takes to himself a Plurality; and of a Plurality, ariseth this offence of Bigamy, which offence draweth Clerks nearer the Lay Power. And note that Bigamy may be two ways; one by a Plurality of 〈◊〉 Vives, as he who Marrieth two wives or more, the one after the death of the other, or out-living the other; the other is plurality of Husbands as well as wives, as it is of a widow who suffereth herself to be Married to another man, whether her widowhood came by the death of her Husband, or by Divorce; and because it belongeth to say in what point a Clerk is Bigamus, the Bigamy is triable in the Lay Court; if nevertheless the Jury doubt thereof, than the Ordinary is to certify the same at the Command of the King, as in the case of Matrimony when it is denied. On the other side, a Clerk is incounterable by other Replications, as he is for being a murderer, or a notorious liar, or of such a condition as the Church is not to protect him against the King's Peace. CHAP. III. SECT. 6. Exception to the Power of the Jadge. AGainst the power of the Judge the Defendant may help himself by other dilatory Pleas in this manner; Sir, I demand the sight and the hearing of the Commission, whereby you claim Jurisdiction over me; and if the Judge do not deny it, or cannot show it (notwithstanding that no Judge Deligate is compelable to show his power) yet may the Party plead thus; Sir, I appeal from this Commission, because it maketh no mention of the Cause for which I was brought to Judgement, or not of that point; Or because you have no Counsans in such a point; or because it is vicious, and that may be divers ways, as if it be not sealed with the King's Seal of the Chancery, for none is tied to yield obedience according to the Laws and Customs of the Realm to the King's Privy Seal, or to the Seal of the Exchequer, nor unto any other Seal, but only to the Seal which is assigned to be known of the common people, and especially in Jurisdictions and Original Writs, if not for the King only. Or it may be vicious because the Seal is counterfeited or falsified, or because the King is not named in the Writ, he not being out of the Kingdom, not in Ward; or because the Writ containeth Summons in the Action where it is personal, or Attachment where the Action is mixed or real, or because the Seal is not fastened to the Parchment, but one may remove it, and take it from it at his pleasure; Or because the Writ was brought too late, or too soon; Or because it hath rasure, or enterlining, and diversity of hands, and of words, or false Latin; Or because the Writ is written upon Paper, or Parchment which is forbidden; Or for default found in the Writ, as the omission or transposition of a word, fillable, or clause, as it is of abatable Writs; Or because the King died before the Writ was brought, or because the Writ is false in in the day of the date, or because the Commission requireth the association of one who is not present; Or because the Writ was never sealed, or because the fact was not done within his Jurisdiction, or in a place not there determinable, or because the judge hath not power or Counsance either of the quality or the quantity of the thing. CHAP. III. SECT. 7. Exception to the Person of the Judge. ALthough the Writ be good, and the Power be sufficient, yet there holds dilatory Exceptions to the Person of the judge (as it is said) of such Persons who cannot be judges. CHAP. III. SECT. 8. Exception to the time. OTher Dillotories there are of time, of place, of hours, of manners, etc. And note, there are three manner of times exempted from Pleas, in which no Patries' fit in Courts and give judgements, whereof two are by Law, and the other at the Will of the King. One time containeth two Months, viz. August, and September, which are assigned to gather 〈◊〉 the fruits of Corn, etc. The other times containeth the Feasts, and the Sundays, which are appointed festivals for the honouring of God, and the Saints, which Feasts are these: 1 The day of the birth of Christ, of St. Stephen, of St. Silvester, and the Epiphany, and the Purification of our Lady, Easter week, of the Rogations, which contain three days; of the Ascension, of Pentecost, of the Nativity of St. John the Baptist, of the twelve Apostles, of St, Lawrence, and of the Assumption of the Mother of God, and her Nativity, of St. Michael, and of all Saints, and of St. Martin, with all such Feasts which all Bishops hold festivals in their Bishoprics, for that they are Canonised; besides these the dales of Relics, of the Anunciation of the Mother of God, and of her Conception, and of the invention of the Cross. And note that whereas God Commanded to keep holy the Sabbath day; it was Ordained, after the Resurrection, that we keep holy the Sabbath Days. The third time is forbidden by the King's Proclamation, of Hours may arise Dillatories, for after the hour of Noon, or in the Night, no Plea is to be holden. CHAP. III. SECT. 9 Exception of the place. OF the manner arise Dillatorie, for in Riding, nor in Walking, nor in Taverns, nor else where, but in known places for a Consistory can any Court be holden. CHAP. III. SECT. 10. Exception to the Person of the Plaintiff. OTher Exceptions Dillatories arise from the Persons of some Plaintiffs, as it is of those Persons who are rebukeable of accusations. Other Exceptions Dillatories rise from the Persons of the Pleaders, or of the Attorneys, or of the Essoigners, for none can do that by his Attorney which himself cannor do, nor can any be an Essoigner, Attorney, or Pleader who may not be a Plaintiff. CHAP. III. SECT. 11. Exception of Person, and of his Custody. OR he may take Exception against his own Person, and say that he is not within the King's Power, or if he be imprisoned for a greater offence, or Appealed, or Indicted of Crime, or of a higher Crime; Or he may say, that he is not bound to Answer thereunto, for as much as he is not brought to Judgement by a right course, which willeth that no man may be attached by his body, when he is distreyneable by his Lands or other goods, if not for a personal offence. Or he may say, that he is not tied to Answer to any Action which toucheth loss of life or member, or right of property, until he be of the full age of one and twenty years or more; and there are other Dillatories of the Persons of the Answerers which ●ppearebefore. CHAP. III. SECT. 12. Exception of Summons. IN Pleas of Summons he may say, he ought not to Answer, because the Plaintiff holdeth no Suit of Distress; nor hath any other manner of proof present; Or because the Plaintiff hath not found Sureties to pursue his Plaint, or because he was not summoned, or not reasonably summoned, or that he received the Summons by no Freeman, or but by one Freeman; Or because he was summoned too late, or because he was never summoned what thing to answer to, or because he was not summnoned against the Plaintiff. CHAP. III. SECT. 13. Exceptions of vicious Cou●●●. AS Writs which are vicious are aba●●able, so also are vicious Appeals; as if the Appeals be not brought within the year after the Felony done, or not before the Coroner, or not in the County where the offence was done, or not in a right place, or for variance, or for Omission, or Interruption, or because the Plaintiff is battered against others in the same Appeal. Sometimes it happeneth that the thing which is rob or stolen is found in the possession of a true man, against whom the Owner of the property, or of the possession frameth his Appeal, as he who is a Robber of another, in which case there is a difference, for if it be found that such a thing was given, sold, or delivered to him without Coliusion, in such case the possessor is acquitted, or at least bailable until the next coming of the justices; and when the justices come, the first possessor thereof is to be Arraigned, and he may show how it came to him; nevertheless if he would vouch one to warrant it he cannot, nor deny the Title of his possession, but in the name of Voucher he may say, that it came to him by lawful Title, as that he bought it in such a Market, or in such a place, without mentioning of whom; and the Sheriff is thereupon to cause a Jury to be impanelled, and if the Answer be found true, than he is acquitted, and if not, then to be condemned as before, as if the Plaintiff had proved the felony. And if any one appear, and justify the thing to be his, he is not to be received as a Party, but the Cause is first to be tried betwixt the two first, & afterwards he may make the estranger a Party if he will; and if the case be that the buying was within a place within a Franchise, and the Sheriff return, that he cannot execute the Writ by reason of the Franchise of such a man, or of such a place; in such case the Sheriff is to be Commanded that he forbear not by reason of the Franchise, but that he enter and execute the Writ. And if the Possessor saith, That he came to the thing from a man certain, and he be present, and will maintain the same without Collusion, he is to be admitted thereunto, and the other is to be discharged; and if he deny the Contract, this affirmative, and this negative are tryable by Battle or Jury; nevertheless at the King's Suit the possessor ought make title to the Possession, or clear himself thereof; for two things are necessary, Conscience for us, and Fame against others. And that which is said of making of Title to the possession of things, in Case where a false Writ, or false Money, or Larcine, or thing lost, or Estrey, or other hurt is found at the King's Suit, although that the last professor acquit himself of the selony; if the Plainliffe nevertheless prove the thing to be his, as of his possession, or stoll en from another, or otherwise lost, the Law is, that he recover the thing without any payment for it. Or he may have Exception dilatory to a vicious Deed, for variance betwixt the words of the Writ and the nature of the Action, and the Count, as if he have omitted to Charge me, or if he Charge that in the Count which was not to be in that Action, as felony in a venial Action. And as the Defendant hath a dilatory Exception to abate a vicious Count, in like manner hath the Plaintiff a Replication against the Defendant upon a faulty Answer; but because none is to be judged for not Answering in Appeals of Felony, it is sufficient for every one to deny the felony generally, though he Answer not particularly to every word mentioned in the Appeal. And in Cases venials, where the Defendants say nothing in excuse of that which is offered against them in Judgement, they are to be adjudged and Condemned as not Answering at all; in the same manner is it where one Answereth not duly, or insufficiently. CHAP. III. SECT. 14. Exception to Approvers. TO an Approver one may thus Answer; Sir, I am a true man, sworn to the King, and within a Franck-pledge; and this Approver is a Felon attainted by his own confession, and our of the King's protection, & by consequence out of the King's Peace, whereby he hath lost his free voice, and lost every right, and every Action, so as he is not to be admitted in any Action, no more than a man who is Outlawed by Judgement. Or he may plead, that he ought not ●o Answer him, because he did not Appeal him in his first Appeal, or not before the Coroners, and if the Approver cannot help himself by this Replication, as ●o say, that he is not any way out of the King's protection; the Defendant is bound to Answer him, but he is not to be delivered to the Fee-pledges where he is in the Decenry; or to other Mainprisors until he be appealed, or indicted. CHAP. III. SECT. 15. Exceptions of Indictments. THese Exceptions hold to Indictments, Sir, I demand sight of the Indictments, whereby I may take exceptions against the persons of the Endictors, or to the form of the Indictment, for no Villain can indite any man. Or if the Indictment be not made by 〈◊〉 whole dozien of Freemen, or by 〈◊〉 who cannot indict any man. Or if the Indictment be not sealed with the Seal of the twelve Jurouts, or 〈◊〉 it is not the record of judge's 〈◊〉 thereunto; Or if the Indictment hath not been within the year, or by people of credit, and of good fame, no man is bound to answer to such an indictment. Nor if the Indictment hath not been made within the Neighbourhood of the same County, also if the Indictment be general, for a general slander defameth no man, nor is he compelled to answer thereunto; as if the Indictment be such a one is a Murderer, or a Thief, or wicked, without alleging any particular offence therein, for to the common fame of the people an Indictment ought to give no credit or belief. Or he may say, that the justices went the Eyre after the felony done, where nothing was moved of this felony. CHAP. III. SECT. 16. An Answer to Treason DArling here denies all Treasons and Felonies, and whatsoever is against the King's Peace. And as to the consideration he may say thus; Sir, notwithstanding the joint Alliance betwixt us by Homage sometimes before this time, nevertheless when he counted that I should commit this Treason, I had yielded up to him all the Lands which I held of him, or I lost them by Judgement, or by Disseisin, which the Plaintiff did to me, or he appointed them to come to others; in which case the felony is barred, and the Plaintiff is condemnable. And as to the consideration of present Fealty he may say, that this Alliance the Plaintiff forfeited against him in such a point, or such a point; such Fealty issued out of such Lands whereof the Defendant was not then Tenant, neither in demeane nor in service. And to the Alliance of Courtesy he may say, that such benefit was not to continue but until a time passed before the time named in the Appeal, for afterwards he paid him nothing of such Pension, or other Courtesy but by judgement had against him, and in despite of him, O● thus, before the time named in the Appeal he yielded up to him his deed of the Pension, or released the same unto him, or quit-claimed the same whereby the Alliance was destroyed. CHAP. III. SECT. 17. TO Burning he may say, that the mischief came by mischance, and not of a premeditated fellow. CHAP. III. SECT. 18. Murder. TO an Appeal of Murder he may plead, that the Action belongeth not to such women as the wife of the Plaintiff, because he was not killed in her arms, or in her seisin. Or thus, Sir, the Plaintiff is to have no Action, for as much as there is one nearer of blood who hath brought his Appeal, and is a person of ability so to do; Or he may say, that he is not bounden to Answer in England unto an Act done out of the Realm, if the thing concern not the King's right, as his Person, or his Inheritance; nor in a Privileged place, where the King's Writ runneth not of an Act done in a foreign place, nor è contra in a Franchise, of an Act done in Guildable; Or he may say, that he did it not feloniously, but by mischance, or by a lawful Judgement: or thus, not against the Peace as a Fugitive, or as a known Felon, or as one who was not within Allegiance to the King at the time of the kill. CHAP. III. SECT. 19 TO an Appeal of Robbery or of Larcine he may plead, that he wrongfully bringeth this Appeal, for as much as the Plaintiff brought an Action of Trespass against the same Persons of the same before such judges; and if any one would cover his Larcine by colour of Avowry for an estray, or a Waife, in such case it behooveth thathe show forth a Title allowable for such a franchise; but this exception is counterpleadable by this peremptory replication; Sir, such Avowry ought not to be of any force, because he presently carried away the Estray, or Waife so found, or changed it, or sold it, or killed it, or put it out of the View, or from the knowledge of the neighbourhood, whereas he ought to have publicly cried it in three Markets, and Monasterles next adjoining, and keep it in a common place for a whole year. To the exception of Distress holds this Replication; Sir, such Avowry ought not avail him, because he was not a known Bailiff in such a Hundred; or because he did not any thing in the manner of a distress, as not in a due time, nor had any warrant, but took it in the night time, or in such other manner feloniously rob him, and stole, etc. and in the like manner may a Replication hold against a robbery made by colour of disseisin. CHAP. III. SECT. 20. Of Burglary. TO Burglary he may say; That he entered into the Tenements without doing any Felony, and not against the Peace, as in to his own demean, and freehold. CHAP. III. SECT. 21. Of Rape. IN Appeal of Rape he may deny the Felony, and say that he ravished not her against her will, but that she assented, and that appeareth because she conceived by him at the same time, and there is no presumption that she was ravished against her will by fouling of her Garments, nor shedding of blood, nor Hue and Cry made, or other manner of violence offered. CHAP. III. SECT. 22. Of Imprisonment. TO the Appeal of Imprisonment he may say, that he did it by force of a rightful Judgement of such a judge; but to that Plea is this Replication good, that after there came a Warrant to him to deliver him, he kept him in prison for the time named in the Appeal. CHAP. III. SECT. 23. Of Mayhem and Wounding. IN Mayhem he may demand the View thereof, for he cannot lawfully complain when there is no Mayhem to be judged of; and of Appeal of Wounding in the same manner. By the death of the King all Pleas are suspended, all Goals opened, no judge, Bailiff, or other Officer ought to intermeddle therewith for want or warrant, and all Outlaws, and all Waives, and those who have forjured the Realm, and all banished Persons used then to return, except those who were exiled and banished for ever; and if any recovered before for that he could not have Dett, if he were not justified to the Peace; and if he be brought to judgement, and if he be accused of Outlawry, he may say that he is discharged of the Outlawry by the Kings grant, Or he may say that the Outlawry ought not to prejudice him because he was under the age of 2. years at the time of the Outlawry, and therefore that he was not Outlawed for the felony. Or because the felony was not done in such a County, or because he was not Outlawed in England, or not within the King's Dominion where the Writ runneth; for an Outlawry provounced against a man in the Bishopric of Durham, or elsewhere in the Land where the King's Writ doth not run, shall prejudice as one in the Land where the King's Writ runneth, Nec è contra. Or because the felony was not done in the time of this King, or not since the last Eyre in that County; Or because the Process of the Outlawry was false, by a false Warrant, or without any Warrant, or because he lay sick, and was Essoigned De malo lect●, or because he is alive for whose death he was Outlawed; or because he was Imprisoned the day of the Outlawry, or because he was in the King's service in the Holy Land, or within the Realm for the profit of the Commonwealth. Or because he had the King's Protection, or because he was a Madman, or an Idiot, or Deaf, or Dumb, or professed in Reliligion, in which cases if he pray to be received to Answer, he is to be received. And the Plaintiff was to be demanded, and it was to be proclaimed, that if any one could show why he should not be enlarged, that he appeared at a certain day. All Parties in judgement are necessary to be present, and they are to have Oyer of the Writs, of the Original, the Plaintiffs Commission, the quantity or the quality of his plaint. And the Disseisor or their Bailiffs, every one of them for himself may say in this manner, he may Answer and say for himself, that he hath not done any wrong or disseisin, nor hath any thing in the Tenements put in the Plaint, and he may so Answer, and so of others till it come to the Tenant in whose name the disseisin was; and he may Answer and say, that he is not in by disseisin, but is in by D. who enfeoffed him who is not named in the Writ; and it may be that D. entered by E. and so there may be many, according to divers Feoffments betwixt the first Disseisor and the Tenant, in which cases not Voucher to warranty holdeth place for a Personal Trespass, and therefore every one is well to look not to make a Contract of a vicious thing, and that he take Caution, and such Surety in the Contract that he may have a recourse to recover if he lose the thing; and therefore the Lords used so keep their Manors that none could enter by Intrusion, Disseisin, or by other vicious bargains, not otherwise unless the bargains were entered in their full Courts, whereby the Lords could not have received their enemies into their Manors, nor have taken their Homage against their wills, nor any used to enter before they had found Sureties to restore to the Purchasor or his Heirs the value of the thing, if by rightful judgement it belonged to him after his thing lost for the offence of alienation, or for his power of this warranty. To the principal Disseisor it belongeth to have a regard, if the Plaintiff put more into his Plaint, that he Answer not but to that which he may avow; he may say, that there is variance betwixt the Original and the Commission; or that the Writ is vicious, as it is in misprision of names, or fit-names. Of names, as Renand for Harrand, Margery for Margaret, and such like; or he may say the Writ is faulty for want of Surnames, or if the names of Dignity be omitted; as if a Bishop, Abbot, Prior, or other be disseised of any thing in the right of his Dignity, and he makes his plaint simply of a Trespass done only to his Person, and not to his Church or Dignity in this manner; A. complains to you, wherea; he ought thus to make his Plaint. A Bishop of London, and so it is of Disseisors; Or he may say that the Writ is vicious, because the Plaintiff who is solely in the Plaint hath no cause of Action, but with another who is not named in the Writ. Or it may be faulty if it be not contained in the Writ, Dissersivie eum, where it ought to be Dissersivie eam, or eos, where it should be ewn or eam, etè contra. It is contained in the Writ, (wrongfully and without Judgement) etc. and to that one may plead not wrongfully, but rightfully denying any other force. And note that one may be disseised wrongfully and without Judgement, and wrongfully and by Judgement; as it is of those who are disseised of their Free-holds by the Judges who have no jurisdiction, and nevertheless adjudge men to be put out of their Possessions, and one may be rightfully and without judgement, as in the cases aforesaid; and further rightfully and by judgement, and thereof rise Exceptions, and so not without judgement and yet by judgement, and that may be either by the judgement of judge's Commissaries, or judges Ordinaries as were the Suitors. Again, Writs may be vicious by misprision of the names of the Towns, as if a Hamlet be named for a Town, or if the Town be not right named, or if the Town be not distinguished where there are two Town, of like name in the same County. And from these words (after the Term) may arise Exceptions; as if not the Term, yet he might have distreyned for, or the Arrearages of his Penson, or special Obligation, exceptthat he had any wrong. Or because another Writ for the same Action is yet depending betwixt the same Parties, or he may say that he wrongfully complains, whereas at his one Plaint he lost the same Tenement by a lawful judgement against him; Or that he hath released or quit-claimed all his Right, or to the same purpose, or otherwise rattified his estate, or because at another time he withdrew his Action before such judges. Eor the helping of the people's memories are Escripts, Charters, and Minuments very necessary to testify the Conditions & the points of Contracts, for by the Stature of Lenfred, who ordained that one might deny Contracts by waging of his Law, and that Plaintiffs prove their Writings, otherwise their Charters which are not denied, & not to be showed by jurours in England for Foreign Contracts, or of places Enfran, chised, or elsewhere, where the King's Writs run not by Copies, or Collation of the Seals of others, or by jurours, or by Battle, according to the Plaintiffs Action. To give matter and way to Exceptions in the aid of those who are to Answer, one is to know the end and limitation of Actions, and of Pleas, so that the Pleas may have an end, and therefore Prescriptions were ordained, whereof Thurmond Ordained, That Criminal Actions for revenge should cease at the years end, if they were not brought before, and the same time he appointed in all Actions for Wrecks, Estraies, Waife, and of things lost; in Personal Actions venials be appointed the Term after the last Eyre in those parts; in real Actions and Mixed he appointed forty years, nevertheless as to the King in the right of his Crown, and to a Francke estare Nullum tempus occurrit●. To an Action of Account he may say, that he never was his Receiver, not Administrator of his goods, nor of his moneys, whereby he was bound to render him any Account, and that he received them of him under the title of Buying, whereof he gave him a writing to surrender at a certain time. Or thus, notwithstanding he was his Receiver or Administrator in a Franchise, or elsewhere out of the Realm, or in a Privileged place, whereby he is not bounden to give him an Account within the Realm, nor where the King's Writ runneth, or in guildable, or è contra. Or he may say that the Writ is vicious by false supposition, and falsely supposeth the Defendant to be a Fugitive, and besides not a Freeholder within his Bayllwick to whom the Writ is sent. Or he is not bound to yield him any Account for that he was never Receiver of his own hand, or of his daily Receipt he gave him a daily Account; or that he disbursed nothing, nor bought any thing but in the Plaintiffs sight, or of some of his; Or for that the Plaintiff by Tally; and other Rolls hath discharged him of so much in value as the Defendant was to give an Account for. Or because he hath made him an Acquittance thereof, or because he was never Guardian of his Inheritance as his Guardian, but was Guardian during the time of the thing for his own proper use, or it belongeth to him that is Guardian of the Lands in the right of his Fee whether it be Socage or other. To the Action of Villinage he may say, That he is a Freeman, and that he hath proved the same at another time by a Writ of Libertate probanda, that he is quit from any Challenge by the Plaintiff for ever, if he have no reasonable Counter-plea against it. And as to the seisin of Villain Services he may say, That he did those Services wrongfully, by Extortion, and duresse of him and his Baylisses, or for the service of Villinage and Villain Land which he held of him, and not by service of blood; and there are two other things, the one that if the Defendant can show a free Stock of his Ancestors, either in the conception or in the birth, the Defendant hath always been accounted for a Freeman, although his Father, Mother, Brother and Cousens, and all his Parentage acknowledge themselves to be the Plaintiffs Villains, and do testify the Defendant to be a Villain. The other thing to be noted is, That no more than the long Tenure of Copyhold Land maketh a Freeman a Villain, the long Tenors of maketh a Villain a Freeman; for freedom is never lost by prescription of time. There are many manner of prooffs by the same Pleas, sometimes by Rewards, sometimes by Battle, sometimes by Witnesses, sometimes by the Concessions of the Adverse parties. 1 By Record, as in case where the parties do agree together upon some enrolment, or to the judgement of some judge Ordinary or Assigned. 2 By Battle, for upon warrant of the Combat which the judges took betwixt David for the people of Israel of the one party, and Goliath for the Philistims on the other party, is the usage of Battle allowable by the Law in England, so that the proof of Felony and other cases is done by combat of two according to the diversities of the Actions; for as there is a personal Action and a real, so there is a personal Combat and a real; personal in personal Actions, real in reals; and these Combats are differing in this, that in a Personal Combat for Felony none can combat for another, nevertheless in Actions, Personals, Venials, it is lawful for the Plaintiffs to make their Battles by their bodies, or by loyal Witnesses, as in the right of real Combats, because that none can be Witness for himself; and no man is bound to discover his real right, and although they make these Combats for the Plaintiffs by Witnesses, the Defendants nevertheless may defend their own right by their own bodies, or by the bodies of their Freemen; and further they differ; for as much as in Appeals none can Combat for another, but it is otherwise in real Actions, for if that one of the Parties be hurt so as he cannot Combat, his eldest Son may wage the Battle for him. The Battle of two men sufficeth to declare the truth, so that the Victory is holden for truth. Combats are made in many other Cases then in Felonies, for if a man hath done any falsity to me in deed, or in word, whereof he is Appealed or Impeached in Judgement, if he deny it, it is lawful for me to prove the Action either by Jury, or by my Body, or by the Body of one Witness; and if it be of the false Judgement of many, than the proof belongeth only against the pronouncer of the Judgement for the whole Court. And so it is in case where you deny your Gift, Baylement, Pledges, Deed, Seal, or other manner of Contract, or the words which you spoke, or the deed which you did. Nevertheless you are to distinguish of the qualities of the Causes, for in Appeals of Felony none can Combat for another as is said but in Venial Causes, although one be killed in the Battle he committeth no Murder, but only those vanquished, or their Clients for them shall tender to the Combatants vanquishing forty shillings in name of Cowardice, besides the Judgement upon the principal. And in case where Battle could not be joined, not there was no Witness, the people in personal Actions used to help themselves by a Miracle of God in this manner; If the Defendant were a woman, or of such a condition that she could not join Battle, and the Plaintiff had no Witness to prove his Action, than the Defendant might clear her credit by the Miracle of God, or leave the proof to the Plaintiff; and in the contrary case the proof only belonged to the Plaintiff. At the day of the proof, or of the purgation, after the Benediction, and the Malediction of the Priest, clothed with the holy Garments of the Mass, and after the party's Oaths one used to keep the party; and he was to carry in his hand a piece of burning Iron if he were a Freeman, or put his hand or his foot in boiling water; if he were not Free, or to do some such thing which were impossible to do without a Miracle from God; and if he was not hurt or blemished the adverse Party remained as attainted; but Christianity suffered not that they be by such wicked Arts cleared if one may otherwise avoid it. Battle is not to be joined betwixt all people, for it is not to be joined but betwixt equals, nor yet betwixt all equals, for not betwixt the Father and the Son, nor betwixt Women, or Infants, or Clerks, or Parents, or Assigns. Equals are not a man and a woman, nor a Holy man, and an Excommunicate Person, nor a Christian and an Infidel, nor a whole man and a sick, nor a man of good memory and a Madman, nor a wire man and a fool, not a sound man, nor a man mayhemed, nor a man and a child, nor a Clerk and a Lay Person, nor a man professed in Religion and a Secular man, not a trueman and a Felon, nor a man within the King's Allegiance, and out of his Allegiance, nor the Lord, and Tenant. The smallness also of the thing in demand doth hinder the Battle, and many other Caus●s, as it appeareth in the Law of Fees; nevertheless if those who are not receiveable to join in Battaise will Combat if the Bartaile be joined betwixt them, it is no wrong to them who desire it. And if any one offereth himself to Combat with one armed, who before was not brought by the Parties, and the adverse Party the nand Judgement for the default of his adversary; as if he rendereth a Witness who offereth himself to decide the difference, and now he offereth to furnish the Battle by another who was not seen, nor heard in Court, and who cannot and ought not to try the Battle: in such case it belongeth to try the Exception as peremptory to the Action, if the Parties will not agree unto it. Chap. 3. Sect. 24. juramentum Duelli. AFter the Battle joined, adjourned, and presented, & the parties duly armed, First the defendant is to swear in this manner, Hear this you man who ●hold by the hand, whom you call N. by name, that I did never kill such a one your Father, or said any such thing such a day, etc. So God me help; and the holy Evangalist. Afterwards the plaintise ought to swear in this manner, H●are you this man who I hold by the hand, That you who are called by your Right name N. are perjured, because that you such a day; etc. feloniously killed, etc. Or said such words or did such athing, etc. Cap. 3. Sect 25. The Ordering of the Combatants. AFter their Oaths be taken, it behoveth to look that the parties be Armed according to the ancient usage of what condition soever they be, Knight or others. The Ancient usage to be Armed in all Cases of Combat is this; The Bodies are armed without Seem cotu et baliea; And the heads and the necks and the hands uncovered, the backs thighs, Legs and Feet armed which Iron, And each to have a shield of Iron, and a staff ●orned of one Assize The Plaintise cometh into the List from the East, and the Defendant from the West, & on the place they swear in this manner. That they have not about them any Charm, not deceit, not have cat not drunk any thing whereby the truth might be disturbed lessined, and the Law of the Devil enhanced, So God them help and the holy Evangelists. Then Proela nation is made that none disturb the Battle, and Oyes is made, that there be no noise upon a Corporal punishment; And then they meet together, and if the defendant defend himself till after the Sun setting, and demand Judgement of the default of the Plaintiff, In that case, Judgement shall be given for the defendant. And if any fraud be found with one of the parties, as to be privily armed, or there ●s; ound or other thing unallowable, and the fraud be adjudged, that they be presently severed, and Judgement is present. lie to be given, and the vanquished is to acknowledge his offence in the hearing of the people, or speak the horrible word of Cravent in the name of Cowardice, or his left Foot to be disarmed and uncovered in sign of the Cowardice, and that judgement be presently given against the Principal. Cap. 3. Sect. 26. AS to personal Trespass, in the Case this exception lieth, Sir. He wrongfully impleadeth me of this Trespass, for the same man impleaded such or such before such judges, in such a place of the same Trespass, and made me no party to the suit, and for as much as that he then recovered by judgement his full damages against them named in his plaint, And this suit is not brought against me, but to recover damages, and the Law is, That a man shall not recover double damages, I demand Judgement of his Action. As to the Allienations and Occupations of Franchises Reals Appendants to the Crown, a man shall not vouch therein to warranty, not demand the View, not prescribe in them, for of such dignities none can help himself by a plea of long prescription, but such avowries of long Continuance, are accounted rather prescriptions of wrong. then lawful exception, seeing nullum tempus occurrit Regi, in his Franchises, but therein the King is like to an Enfant who can lose nothing Although that for the personal trespass for the using of them, it behoveth every one to Excuse the wrong done to the King, or to any other, And that may be done two ways, because his Ancester whose heir he is, died seized theref, And so that he hath enjoined the same by title of succession as a thing annexed to his Land. Or because he of whom he purchased the Land to which the Franchise belongeth, was seized, as if he were the possessor thereof. But this exception is counterpleadable by this Replication, Sir, This Anowant cannot recover 〈◊〉 excuse himself. For although that such a one his Ancestors was seized thereof, yet nevertheless he could not grant away this Franchise, for the Kings never granted them so, that the Grantees could assign them over, or make assigns of them. CHAP. III. SECX. 27. Of Purprestures. TO Purprestures if the Defendant may excuse his wrong, he need not to answer thereunto without a Writ, no more then to the Action of Franchises; Not of his own wrong of Land or Fees, or of the appurtenances against any other then against the King; nor for the King but in his presence And if the wrong be not originally, the Plaintiffs, he may vouch to warranty. CHAP. III. SECT. 28. Of Treasure. TO the Alienation of Treasure found, he may justify it if he be privileged or authorized so to do. Or he may say; that he himself put it there, or such other who he remembreth; whereby no action accrued to the King. CHAP. III. SECT. 29. Of Wrecks. TO the Action of Wrecks he may Plead, That the King hath no Action for the same, because the year is not yet past; and in the same manner is it of Estrays, and of all other things found. Or because that he knoweth to whom the goods belong who is alive. Or because the goods were taken fare in the sea, and were not cast upon the land by the waves of the sea. CHAP. III. SECT. 30. Of Usury. TO Usery he may Plead, and swear that he lent his Corn in Winter, to receive the same in September, according to the price as Corn should be sold, which was dearer at that time; Or he may swear, he lent his monies to receive better money for the same for a year; and that the same is no Usery. CHAP. III. SECT. 31. Of Hunting. TO an Action of Hunting, Chase, or Fishing, he may Plead, That he hath done no wrong, for it is his right to Hunt there, for to Chase; or it is his common Piseary belonging to his Manor of such a place, etc. CHAP. III. SECT 32. Of Obligation. AS to Obligations (or Covenants) he may Plead, That notwithstanding that Obligation be his Deed, nevertheless it ought not to bind him, because it is vicious, or by false supposition; or because the Defendant never saw any money or other thing to the value; or it is by mixture of offence or ill faith, as it is said of vicious Contracts. Or he may Pleada Release or quit-claime; or that it was contracted that he might do waste, or that he hath done nothing to be adjudged waste; or because he hath taken nothing but reasonable estovers for house-boote or ●●yboote, or he may claim Fee in the Tenement by any lawful Title. CHAP. III. SECT. 33. Of Attaint. IF any of the Parties say, That the Jurours have made a false oath, or any Jurry; an Action of Attaint lieth, which is to be tried by 24 Jurours, so that every false witness be Attainted by two Juries. In which case it behoveth the Plaintiff to have the first Verdict present under the King's Seal, or of the party, or of the Judge, and the parties to the Plea, and that he declare in what point they have made a false oath. Or the Tenant may plead, That the Plaintiff ought not to be answered to this attaint, because the first Judgement had not its full effect; or because that the principal in all, or in part, or in right of satisfaction of the damages remaineth yet to be barred. Other Exceptions there are, as to the challenge of the persons of the Jurours, as appeareth in the Chapter following. CHAP. III. SECT. 34. The Ordinance of Attaint. BEcause it belongeth to the Plaint to prove his action, & to the affirmour to prove his affirmation, and not to the denier his negation; & that two credible witnesses according to the Word of God are sufficient for witness. The usage is, That the affirmative party in aid of the Court, cause the nearest credible neighbours to appear in witness, so that there be 12 men at the least of the Jury, of ancient time ordained to be of the Assize, of which if two men are by false verdict of them, and of the other Jurours; or if by good examination, if all the Jurours be not of one assent found convenable, it sufficeth; And if not, or if all the Jurours say generally, that they know nothing, or doubt of the matter, Or if they say not expressly against the Defendant, or if they speak for the Defendant in such cases, it is to be adjudged against the Plaintiff, that he proveth not sufficiently his saying. And although the Defendant would make other defence, he shall not be suffered so to do. Against Jurours hold challenges, as against witnesses in this manner. Sir, this man is not a convenable Jurour, because he is one of those who Indicted me of a mortal crime, so as he did as much as in him lay to destroy me, and so he is my mortal enemy, Or for other cause of enmity. Or because that he is Excommunicate, or Indicted, or Appealled of a mortal Felony; or because he is not of the King's Allegiance, or because he was at another time Attainted of afalse oath, or suffered such corporal punishment for his offences, or otherwise, is infamous. Or because he is friend, cousin, or ally, or of kindred to the other party; or because he is a villain, or otherwise in custody; or because he is the servant, or Proctor, or Tenant of the adverse party; Or because she is a woman, or because he was Outlawed, or because he was forjured the Realm, or because he procured himself to one of the Jury, or because he is within age, or because he is a lunatic, or a madman, and many other exceptions of challengers there are; of which if any be denied, the challenge is to be tried by the Jurours, and according to the trial, the Jurour shall be admitted or refused And if no Jury once appear for want of Jurours, he may have another. CHAP. III. SECT. 35. Of Oaths. Oaths differ many ways; The chiefe Oath is that of Fealty, which is incident to every Homage issuing out of Land, And sometimes there is the oath of Fealty, of resients and dwellers in other Manors, and sometimes remaining in others service. The oath of Allegiance was in these words. I will bear faith to such a King of life and member, and Terren honour, against all those that from this day forward, shall, etc. So God me help, and his holy Evangelist. CHAP. III. SECT. 36. Homage. HOmage is done in these words. I become your man for such Land; so that the whose quantity be showed, and certainty specified; whereby the Lord well knoweth both how he may warrant his Tenant, and for how much he bindeth his Land to warranti; and that the Tenant know for how much he is his Tenant. Cap. 3 Sect. 37. Fealty annexed to Homage. THe Oath of Fealty annexed to Hempskirke ●iage is in these words I shall bear Fealty to him by name of life and Member, etc. for so much as I shall be his Tenant against all, etc. saving the Oath of Fealty which I have made to such a King, &c: And if I swear Fealty to another then to the King, then thus, saving the Faith which I sworn to the King, and to my other Lords, And if the Homage be done to the King or to another to whom the Tenant hath before sworn Fealty in these Cases, He needeth not swear Fealty again, if the Alliance in no case hath been broken. Chap. 3 Sect. 38. common Oaths. COmmon Oaths are in these words, I will speak truth in what you ask of me in such a Case; So God me help, etc. The Oaths in Assizes are in these words. I will speak the truth of the Land of which I have had the view by Authority of this Assize, or of the Land of which this Action of Reddisseision is arraigned, or of the Pasture, or Feeor of the Nuisance, or of the Walt, or of the Ditch, or of the Peel, or of the Water, or of the Church, or of the Rent or of the service, and nothing shall hinder me that I shall not speak the truth, etc. Of Life and Member and Terren Hanour, he will do so much that he will never assent that the King or his other Lord have damage of his life, or any of his Members, nor will assent that his honour shall be overthrown in power, not fame. Cap. 3. Sect. 39 Of sinal Accoràs. NO Law forbiddeth Pleas, nor Accords, wherefore it is lawful for overy one to agree with his adversary, and to relcase and quit claim his Right, and his Action. Nevertheless after one bath once affirmed and brought his person all Action whereby scandal ariseth, none can agree it without the leave of the judge, so as he may withdraw it For every Plaintiff in Actions of Scandal who attainteth not his Adversary according to that as he bathe brought, his plaint is adjudged scandalous, as his adversary should be if he were attainted. Nevertheless in favour to save a man from death, who is not attainted of mortal Offences, it is suffered that the Adverse parties do agree, After Battle waged one of the parties nevertheless remaineth infamous. None can accord or agree, who is 〈◊〉 of the Age of 21. years, nor any who is in custody, nor any by Attorney. In custody are villainies, married women, men professed in Religion, Infants within the age of 14 years, heirs Idiots, heirs deaf and dumb, heirs diseased, and those who are in prison, and under Bail, and women who are in the custody of the Lords, who have the marriage of them. CHAP. FOUR The Contents. OF judgement. Odinance of judgement. Of jurisdiction. Of Paul.▪ s punishable. Of Defaults. Of Personal Actions. Of Defaults in real Actions. Of Actions mixed. Of Pledge and Maynpernors. Of Defaults after summons. Of Champions. Of Pains. Of Imfamies. Of Majests. Of Burning. Of Murdur. Of Pains in divers manners. Of false Justices. Of Perjury. Of the Offices of juctices in Eyre. Of the Articles in Eyre. Of Prauchises. Of Satisfaction of Debts. Cases of Disseisin. Of Amercoments. Of Amercements taxable. Of the Office rf justices in Eyre. CHAP. IIII SECT 1. Of judgement. THe flower, and necessity of Law doth depend in righteous judgement, without which the Law can have no effect, nor any due end. And therefore it is fit speak of judgements, which are not in all points here according to therigour in the old Testament, and the usages used by Moses and the Prophets, before the Incarnation of Christ, but they are mitigated to the temper of mercy of the truth, and of the justice which Christ himselve used upon the earth, and commanded to be used in the new Testament, and which the Apostles and their successors have used since the Incarnation of Christ, and according to the judgements of the ancient usages in Pleas, touching the Laws of this Realine. CHAP. FOUR SECT. 2. The Ordinance of Judgement. Judgement cometh from jurisdiction, which is the greatest dignity which belongeth to the King. And there are two kinds of junisdiction, Ordinary, and Assigned. Every one hath ordinary jurisdiction, if offence take it not away from him; for every one may judge his own according to the right rules of Law, But this jurisdiction is now restrained by the power of Kings, in as much as none hath power to held Plea of Trespass or of Debt which passeth 40 s. but the King. Nor any hath power of Counsins of Fees without a Writ. Nevertheless, it is lawful for every one to f. oust the mortal offender, for committing of their offences by good witnesses, by warrant of ordinary jurisdiction, whether the offenders be Clerks or Lay people, of age, or within age, and all others of what condition so ever they be; and in those coses are those offences called notorious offences. There are two kinds of notorious, nototious in fait, and notorious in right. Notorious in fait is, where no contradiction lieth, nor no oaths need to justify them, by reason of the witness of the people. Notorious of Right, is where the offenders are attainted of their offences by themselves, or by the oaths of witnesses, or otherwise in judgement. This jurisdiction assigned i● that which the King assigns by his Commissions of his Writs; for without a Writ he cannot by Law grant any jurisdiction, if not in the presence, and with the assent of the parties. None can give jurisdiction but the King, & the reason is, because he is not sufficient to bear without help the charge which belongeth to him to punish the Trespasses, and to assoil the offenders which he hath to govern. And so our Ancestors appointed a Seal and a Chancellor to help the same, to give Writs remedial to all Plaintiffs without delay. That Writs used to be of this Assize, They were without raysure, without enterlyning, without blots, without usual transposition, and without every fault in the parchment and letters, and written in English with a known hand, by a Clerk of the Chancery and used to contain the name of the parties and the substance of the Plaintiff, and the name of the Judge, and of the King, or other Teste of the Writ, which sometimes were directed to the Lord of the Fee, sometimes to the Bailiffs, sometimes to the Justices in Eyre, sometimes to certain persons named, and sometimes to persons not named, as to Bailiffs, Justices, and Sheriffs. And every Plaintiff used to have a Commission to his Judge, by the Writ Patent aforesaid. And now may Justices, Sheriffs, and their Clerks forge Writs, through draw lose amend or impair them, without any prosecuting or punishment, because the Writ are made close through abuse of the Law. By that Seal only is jurisdiction grantable to all Plaintiffs without difficulty, and the Chancellor is chargeable by his oath of allegiance to make such Writs, and that he do not delay or deny justice, nor a remedial Writ to any one. CHAP. FOUR SECT. 4. Jurisdiction is a power to declare the Law. THat power God gave to Moses, and that power they have now, who hold his place upon earth, as the Pope, and the Emperor, and under them the King now hath this power in his Realm. The King by reason of his dignity, maketh his Justices in divers degrees, and appoints to them jurisdiction, and that in divers manners, sometimes certain, especially, as in Commissions of less Assizes; sometimes in certain generally, as it is of Commissions of Justices in Eyre, and of the Chiese Justices of Pleas before the king, and of Justices of the Bench, to whom jurisdiction is given to hear and determine Fines not determined, the grand Assizes, the transations of Pleas, and the rights of the King and of the Queen, and of his Fees, and the words of the King's Writs, whether they be named generally, or specially. Besides, the Barons of the Exchequer have Jurisdiction over receivers, and the King's Bailiffs, and of Alienations of Lands and rights belonging to the King, and to the right of his Crown. Sometimes jurisdiction is given to Sheriffs for the defaults of others, as appeareth in the Writ of Right; where it is said, That if he do not right, that the Sheriff of the County shall do it. Sometimes to those who have the Return of Writs Returnables. Sometimes jurisdiction is given to the Justices of the Beach by removing of the Pleas out of the Counties, before the said Justices, and sometimes to Record the Pleas holden in mean Courts without Writs, before the same Justices of the Bench: But as those Records ought not to avail the Plaintiffs, if not after judgement given, that the Pleers be Returnable until after their judgements. And as the Pleas moved upon the Writs are to be remanded into the Lords Courts, where the Lords have not failed to do right. In like manner are the Pleas removed by Pone returnable in the Counties, in case where the parties never appeared in Court for to Plead. To the office of chief Justices, it belongeth to redresle and punish the tortuous judgements, and the wrongs and the errors of other Justices, and by Writ to cause to come before the King, the proceed and the Records, with the original Writs, and before such Justices are all Letters Pleadable returnable, and to be ended, wherein mention is made before the King himself; and the Writs not Pleadable, nor Returnable before the King, are returnable into the Chancery. And also it belongeth to their office, to hear and determine all plaints made of personal wrongs, within twelve miles of the King's house, and to deliver Goals and the prisoners from thence, who are to be delivered, and to determine whatsoever is determinable by Justices in Eyre more o● less, according to the nature of their commission. On the other side, there is a kind of jurisdiction which is called Arbitrary, which is not ordinary, nor assigned, as is such which is by the assent of the parties. Of Jurisdiction cometh Judgement, which hath many significations: In the one, judgement is as much to say as absolutions from offence; In another sense, as sentence, which sometimes soundeth well, as of discharge or acquittance from punishment, and sometimes ill, as Excomengment: and in another sense, as the end of the Plea, and the end of jurisdiction. Jurisdiction assigned may be for a time, or for ever. For a time, as in some exception dilatory, where the Action reviveth; for ever, as by a definitive sentence upon the Action. Judgements vary according to the difference of offences. In like offences, nevertheless there are the like Judgements. For the mortal offences according to the warrant of the old Testament, were assoiled by death; For in the old Testament it is found, That God commanded Moses, that he should not suffer Felons to live. But before, more is to be spoken of punishments, it is to see by what introduction offenders and contumacious persons are compellable to appear in Court, and by what judgements. CHAP. FOUR SECT. 4. Defaults punishable. DEfaults are punishable many ways. In appeals of Felony they are punishable by Outlawry; which judgement is such, that after that any one hath been solemnly called, and demanded to appear to the King's peace at three several Counties for felony, and he cometh not, that from thence forward he is holden for a Wolf, and is called Wolfshead, because the Wolf is a beast hated of all people; and from thence forward it is lawful for any one to kill him; as it is a Wolf whereof the custom was to bring the heads to the chief place of the County, or of the Franchise, and according to Law, for every head of an Outlaw, to have half a mark, and such Fugitives, Outlaws, forfeited for their contempts, the Realm, Country, friends, and whatsoever belonged to the peace, and all manner of rights which they ever had, or could have by any Title, not only as to themselves, but to their heirs for ever. Also, all confederations of Homages, of alliance, of affinity, of service, of oaths, and all manner of obligations betwixt the Outlaws and others were broken, severed, and defeated by such judgement. And all manner of Grants, Rents, and Contracts; and all manner of Actions which they had against any manner of persons, were void, not only from the time of judgement, but from the time of the Felony; for which such judgement was given, and such persons could never again resort to answer the Felony, if the Process of Outlawry were not faulty, if not by the great mercy and favour of the King; Women were not plevisibles, and put in dozen as men but were waves. CHAP. FOUR SECT. 5. Defaults. IN personal Actions, venials, defaules used to be punished after this manner. The Defendants were distrained to the value of the demand, & afterwards they were to hear their judgements for their defaults, and for default after default, judgement was given for the Plaintiff. This usage was changed in the time of King Hen. the first, That no Freeman was not to be destrained by his body for an action personal, venial, so long as he had Lands; In which case the judgement by default was of force, till the time of King Hen. the third. That the Plaintiff should recover his seifure of the Land, to hold the fame in demeasure after default, until due satisfaction was made, so as the defaults were more hurtful to persons in contempt, then profitable. Some Actions are personals, and not mixed in the introduction, as of Neistie of Acccompt; of leading away distresses: and some actions there are, that although they savour of the personalty and realty, yet they hold not the rules of those actions: As of Recognitions of Assizes, in which if the Tenants make defaults, for that there is no distress nor seizure of the Land, or other thing in the King's hands, but the Recognitions are to be taken ex officio, and the Judgements are to be pronounced according to the Verdict of the Jurours, in respect of such defaults. CHAP. FOUR SECT. 6. Of Personal Action. IN personal Actions, venials, where the Defendants are not Freeholders, the defendants used to be punished after this manner. First, Process was to be awarded to arrest their bodies, and those who were not found, were put in exigent in what Court so ever the Plea was, and were at three Courts solemnly demanded and proclaimed; and if they appeared not at the fourth Court, than were they banished the Lord's jurisdiction, or the Bailiffs of the Court for a time, or for ever, according to the quantity of the Trelpasses. CHAP. FOUR SECT. 7. Defaults in real Actions. THe defaults in real Actions are punishable in this manner. At the first default the plaintiff is there seized to the value of the demand into the hand of the Lord of the Court, and the Tenants are sommonable to hear their judgements of defaults; Or after appearance, the seizure is to be adjudged to the Plaintiffs, to hold in the name of a distress, until by lawful judgement he be ousted thereof. And if any one appear in Court, first he is to plenise the thing in demand, and presently to answer the default; In which case he may deny the Summons, because he was never Summoned, or not reasonably Summoned, and thereof he may wage his Lawyer against the Testimoney of the Summoners, although they be present, and if he wage his Lawyer, he is presently to plead to the Action, or to the plaintiff. CHAP. FOUR SECT. 8. Of Actions Mi●t. THe defaults of mixed actions are punishable in this manner, The defendants are distrainable by all their movable Goods and Lands, saving that they are not put out of that possession from Court to Court, till they appear and Answer, and the issues come to the profits of the Lords of the Courts. CHAP. FOUR SECT. 9 Of Pledge and Mainpernor. PLedges and Mainpernors are of one signification, notwithstanding that they differ in names; But Pledges are these, who bail other things than the Body of Men, as in Real Actions and Mixed Mainpernors are in personal Actions, only those w●● bail the Body of a Man; safe Pledges are those who are sufficient to answer the demand, or the value, and are true men, and Freeholders to whom the Plaintiff is, and in whose Court the Plea is brought; and if any one bring the Body or his Fees by default, he is sufficient punished, though he be not amerced, but then the Offender is first amerceable, when he is brought to judgement, and cannot excuse his wrong or save his default. And as none who cometh before Summons is amecreable, so no Plaintiff is amerceable, or his pledges, de prosequendo for Nonsuit, where the Tenant appeareth according to the warrant of the Summons; or other wise maketh satisfaction for the same. As in Case where the King Commands the Sheriff, that he command such a one to appear or to do; and if he do not; and the Plaintiffs put in sureties to prosecute his suit, then that he summon or attach the defendant, etc. In which case if the Sheriff had not warned the Tenant to appear or to do according to the points of the Warrant, if he take surety of the Plaintiff to prosecute, he doth him wrong: But the Plaintiffs and their pledges are to be amerced, when the defendants offer themselves in judgement against them! and they make defaults by Nonsuit. And also those Sheriffs do wrong who forbear to execute the King's Commands in as much as the Plaintiffs have found sureties to prosecute their Plaints when no mention is made in the Writts to put in sureties. CHAP. FOUR SECT. 10. Defaults after summons. AS there is a default of persons, in the like manner there are of things; As of services issuing out of Lands where the Lands are in service; and wherenot: If Rent, Suit, or other service be behind to the Lord of the Fee, The Tenant is not distraineable for the same by his movable goods, but it behoveth to summon the Tenants to save their defaults, or to make satisfaction, or to answer wherefore those services due out of their possessions are behind to the Lords, and if they appear not at the Summon by the a ward of the suitors, their Lands are to be seized into the Lords hands, till they justify themselves by pledges. And if they be again summoned, to hear the judgements for their defaults; Although they come not at the second Summon, they are not to be amerced, in as much as they came, they may render the Land, or allege a privilege, or say something why they ought not to obey the Summons. And if the Lord have not a proper Court, nor suitors, or hath not power to do justice to his Tenants in manner as aforesaid; Then the same may be done in the County or Hundred, or else in the King's Courts; Or at first by a Writ of Customs and Services, and other remedial Writts. And if any one hath not any thing to acquit himself, the Lord is not to lose his Right, although he be delayed thereof, but the Lord may seize his Land as before is said, and the Tenant is to recover his damages where he can, and it shall be accounted his folly to enter or remain in another Fee, without the consent of the Lord. And if any one oust him of his Land, and of his Tenement, & enforceth another person to hold of him, and maketh himself mesne betwixt the Lord and the Tenant, in prejudice of the Lord, in such a case, the law is used to hold the course after said. CAP. FOUR SECT. 11. Of champion. IF any one do or say to his Lord of whom he holdeth any thing, which turneth to the hurt of his body, or to his dissinherison or to his great dishonour, First by the Award of his Court, or of some other such a one is sommonable, if he be his Tenant, and afterwards if he make default he is destrainable by his Land by the Lord, till he appear, and if he appear, and cannot discharge himself, by his wager of Law, by 12. men more, or less according to the Award of the Court he is to be disinherited of the tenancy which he holdeth of the Lord in such a manner by the Judgement of the Suitors, and so it behoveth that the Tenants leave their Lands, and that they come to the Lords. And if any one denieth his service which he ought to do, it may be said by the Lords, that wrongfully he denieth either part or the whole, and that to his wrong, and so further count of seisin by his own hand, and that such is his right, etc. as after shall be said. And the Tenant may choose to try his Right by his own body, or by another, or join issue upon the Grand Assize; And pray Conusans whether he hath the better right to hold such land specified, discharged of such service, as he holdeth, or the said A. to have the same Land indemesure as he claimeth. And if the Defendant will try his Right by the body of another, Than ye are to distinguish. For if the Action be personal, the Suit need not be present; and if the Action be Real, and the Tenant hath his Champion present; Then may the Plaintiff offer his Champion against the Champion of the defendant, or he shalloose his Covenant or his Writ. And if the Defendant have nochampion, then are the parties adjournable if they have joined Battle, that they have their Champions ready at the next Court, as appeareth in the case of Saxeling to whom Hustan was bounded in a Bond of 10. li. by a writing Obligatory made at Rome, which the said Hunstan denied, That it was not his deed, To which Saxeling by way of Replication Answered, That he wrongfully denied the same, and that wrongfully, for that he sealed it with his Seal, or with the Seal of another which he borrowed of him, such a day, such a year, and at such a place, and that if he would deny it he was ready to prove it by the body of A. who saw it, or by O. and C. who saw the same, and if any hurt come to them, he was ready to prove the same by another, who could prove the same. And so it appeareth, that it is not needful to have present Suit in such personal Actions the first day, but the Parties may be adjourned as it is said. And if any one who cannot be a fit witness, or who is a Champion be offered by one of the parties to combat who was not named before to make the Battle and the adverse party there challenge him, and demand judgement of the default, in such, such case the judgement is to be given against the profferer. And if any ill happen to any of their Champions where by they cannot combat according to their proffer, none is resceiveable to try the battle for him but only his eldeft son Lawfully begotten as by some is said. And if the Tenant's champion be vanquished. The Tenant thereby looseth all Homage and all Alliance, and all Oaths of Fealty, and all Homage betwixt him and the Lord, and the Lord is to enter therein and to hold the same in demesue as if he had recovered by the Grand Assize, And if the champion of the Lord be vanquished, that them the judgement be, that the Tenant hold his Land for ever quit of the service in the demand. And if the King doth any wrong to any of his free men, who hold of him in chief, the same course is to be holden, The Earls of Parliaments, and the Commons have jurisdiction to hear such causes and determine them, because the King cannot by himself, nor by his justices determine the Causes nor pronounce their judgement, where the King is a party. And as the Lords may challenge their Tenants of wrong, Or Injuries done to them against the Articles of their Fealty, In the like manner are the Lords challengeable of wrongs and Injuries done by them to their Tenants. And if the Lords do not appear to answer their Tenants; Then are the Tenants to be adjudged that●they do no service for their Lands, till the Lords have Answered. CHAP. FOUR SECT. 12. Of punishments. PVnishment is a satisfaction for a Trespass or an Offence, There are two kinds of punishments. Voluntary, and Violent. Volantatie is that which bindeth the doer of his own accord, as it is in his Compromises, to compel the people to keep their Bargains, But with such punishments the Law meddleth not with: Of violent punishment wherewith the Law meddleth, there are two kinds, Corporall, and Pecaniarie. Of Corporal, some are Mortal, and some Venial, Of Mortal, some are by beheading, some by drawing, some by hanging, some by burning alive, some by falling from dangerous places, and otherwise according to Ancient privileges, and Vsuages. The Offences which require punishment of death, are the mortal Offences. Of Venial punishments, some are by loss of Member; As the Felony of Mayhem in case of wrong; Of Member; some by the loss of hand as it is of false Notories, and of cutters of Purses with the Larcine of less than 12. d. and more than 6. d. which King Rich. changed, some by cutting out of Tongues, as it used to be of false witnesses, some by beating, some by Imprisonment, some by loss of all their movable goods, and not movable as of false judges, and it is of usurers attainted of usury after their decease, but not if they be attainted thereof in their life, for then thy lose but only their moveables, because by penance and Repentance, they may amend and have Heirs. Some by exile and abjuration of their Christianity, or of the Realm, of the Town, of the Manor or the Land and their friends, as it is of those who are attainted in personal Actions venials who are not able to make satisfaction, Some by Banishment, as it is in contempts in personal Actions, venials, some by other Corporal pains as it appeareth after its place. And although one offend indeed, or in word, in all judgements upon personal Actions, 7. things are to be weighed in the balance of Conscience, that is to say, 1. The cause 2. The person. 3. The place. 4. The time. 5. The Quality. 6. The Quantity. 7. The end. 1. The cause whether it be mortal or venial, 2. The person, the plaintiff, and defendant, 3. The place whether in Sanctuary, or not. 4. The time, whether in day or in the night, 5. The Quality of the Trespaffe, 6. The Quantity appeareth in itself, 7. The end; whether the taking were in manner of distress by a justisiable importment, Or in manner of Larine, By alienation unjustifiable, CHAP. FOUR SECT. 13. Of Insamous Persons. ALL those who are rightful attained of an Offence, whereupon corporal punishment followeth are infamous. Infamous are all those who offend mortally or Fellovously, all those who are perjured in giving false witness, All false judges, All false Vsurours, and all those who are attainted of personal trespasses, to whom open penance is joined by enjudgment of Law. Those who Imprison a Freeman against his will, or blemith the credit of his Franchise by extortion, or by any purchase, Those who also bring attaints and cannot prove the perjury, whereby honest jurours are slandered. And those who indite or Appeal a man who is innocent of Crime, blemishing his credit or wrongful slandering him of any personal wrong, For those 3. Pleas are held odious, the one because the Holy Scripture forbiddeth vengeance to men, but the punishment of Offenders belongeth to God; and God commandeth to show mercy, and that is against the Appeal of Felony, The other of attainder of perjury is odious ●or the Corporal punishment which folowtheth thereupon; The 3. because it is against the Law of Nature; which will not that any man should be in slavery to another Creature. Again those who combat deadly for reward, who are vanquished in the Combat by Judgement berwix● two men, those who withdraw themselves from Bartailes when they have undertaken the Combat, if therein they make default; those who keep Brothell-houses of lose women, those who take again their Wives after their fin of Adultery is known to them, or keep those suspected of that sinner; those who are Adulterers, those who Mary other Wives leaving the first, those who are El●opours or Ravishers, those who take rewards to suffer, those who cast out their Children to death, those who ravish their Cousins, or Affines, those who Mary a Wife within the year after the death of their former Wives, those who suffer themselves to be Married within the year after the deaths of their first Husbands, those and they who Contract Mart●ages elsewhere, leaving their Wives, or Husbands, and those who too soon purify themselves, and many other infamous Persons are to be punished by Corporal punishments in divers manners. CHAP. iv SECT. 14. Of Majesty. THe punishment of the mortal Sin of Majesty against the King of Heaven; Sodomy is by burying the offenders alive deep in the earth, so that the remembrance of them be forgotten for the great abomination of the fact, it being such a sin which calleth for vengeance from God, and which is more horrible than the ravishing, of the mother; but this offence is not to be brought before any Judge by way of Accusation, but the very hearing of it is forbidden. The Judgement of Romery is by fire, either to be burnt or hanged. The Judgement of Heresy is four fold, one is Excommunication, another Degradation, the third Disinheriting, the fourth is Burning to Cinders. The Judgement of Majesty against the Earthly King is by punishment according to the Ordinance, and pleasure of the King. The Judgement of falsifying, and of Treason is by drawing of the Parties, and hanging them till they be dead. CHAP. iv SECT. 15. Of Burning. THe Judgement of Burning is to hang until the Parties be dead, which used to be by burning, and in case where the damageous burning is by increase of any combustible matter; it was used to cast them into the fire when they found them fresh in the doing of it. CHAP. iv SECT. 16. Of Murder. THe Judgement of Murder is commonly by hanging until the Parties be dead, in Felonies not notorious, and in notorious it is by beheading the Murderours, nevertheless we are to distinguish, for some kill men and offend not, nor deserve any punishment; some are Man-slayers in signification and not by name; and some are slayers of themselves. The first are Lawful Judges, who by a right Judgement, and good Conscience kill men; and the Ministers, or Officers who do Executions of such lawful Judgement; and also as it is of those who kill without Judgement, and without offence, as it is of those who are without discretion and kill men, as Madmen, Idiots, Infants within the age of seven years, and those who kill men in keeping of the King's Peace, and of those who kill by Law, as of those Men-slayers, who kill men in their mortal offences, notorious in Fact, and as in is of those who kill men in their own defence, who otherwise cannot save their own lives. The other sort is of those who have a desire to kill and cannot, as it is of those who cast Infants, sick people, old people, in such places where they intent they shall die for want of help, and as it is of those who so pain innocent men, that to avoid the same they confess themselves to have mortally offended; those who Condemn men by corrupt Judgement, although that they do not directly kill them; and as wilful Men-slayers, who Appeal or Indite innocent Persons of mortal offence, and prove not their Appeals, or their Indictments; and although these used to be Judged to death, nevertheless Ring Hen. the 1. Ordained this mitdgation, that they be not Judged to die, but that they have Corporal punishment; and of those who wrongfully Appeal ye are to distinguish, for if any one hath appealed another so falsely, that there was no colour of Appeal by Judgement, or other reasonable proof, in such case he was to be adjudged to make satisfaction to the Party, and afterwards to suffer Corporal punishment. King Kannte used to Judge the Maine-prisors according as the Principals when their Principals appeared not in Judgement, but King Hen. the 1. made this difference, That the Ordinance of Kanute should hold against Maine-prisors who were consenting to the Fact, and the other should be adjudged against the Plaintiffs, according to the example of the Principals if they were present, and against the King they were punished with a pecuniary penalty. The third Case is of those who burn, hang, hurt, or otherwise kill themselves. Again ye a●e to distinguish of other Men-slayers, as of Phifitians, Jurours, Justices, Witnesses, of Idiots, Madmen, and Fugitives; for Physicians and Surgeons are skilful in their Faculties, and probably do lawful Cures having good Consciences, so as nothing faileth to the Patient which to their Art belongeth; if their Patients die, they are not thereby Men-slayers, or Mayhemors, but if they take upon them a Cure and have no knowledge or skill therein; Or if they have knowledge, if nevertheless they neglect the Cure, or minister that which is cold for hot, or hot for cold, or take little care thereof, or neglect due diligence therein, and especially in Burning, and cutting off of members which they are forbidden to do but at the peril of their Patient; if their Patients die, or lose their members, in such cases they are Men-slayers or Mayhemders. Judge's judge men sometimes falsely to death wittingly, and sometimes out of ignorance, in the first case they are Murderers, and are to be hanged by judgement, and not only those who gave the judgement but the Accessories, Abettors, and those who hindered not such judgement when they might have done it. Andin the second place ye are to distinguish; for one manner of ignorance is, as of a thing known had nor been known, and this kind of ignorance doth excuse; the other is of a thing not known which ought to have been known, although he was not bound to know it, and this excuseth; also the third kind is, which cometh of not knowing that which a man is bound to know, and this excuseth not; And note, that ignorance in its self is no offence, but this neglect of knowing is an offence. The judge doth not offend so much that he doth not make the Law, but he offendeth in foolish undertaking upon him to judge foolishly or falsely. The fourth kind of ignorance is, that a man judgeth of a thing otherwise then rightful, and if such ignorance come of the fact it excuseth, and of the Law then it excuseth nor. Or thus, there is one manner of ignorance which one may overcome, and such excuseth not; and there is another kind of ignorance which one cannot vanquish, and such excuseth whether it come by nature, or by too much passion, or sickness, as of rage. And that which is said of judges is to be intended also of jurours, and of Witnesses in cases notorious, where many intermeddle feloniously, and any one be killed, and there be no cause to kill him; in case also where a child is killed by too much beating, and in case where many have wounded one man, who dyeth of one sole stroke, all of them generally are adjudged Men-slayers for the apparent evidence of the fact; for none but God can judge the intentions of those that gave the stroke that it was to kill, nor who intermeddled therein to hinder that any hust were done, with a good intent; some who command what may be for hurt, or may be for good; some which held the Parties, and others who stroke. Again ye are to distinguish of other Men-slayers, as some kill those who enter to do a mischief, if such cases be not notorious their acquittance or Condemnaon is in the discretion of the Suitors; also in case when people kill a man in defence of themselves and their possessions, as it falleth in diffeisins. Again, if a man draw another to fence with him, or to shoot with him, and he giveth him such a wound as if he meant willingly to murder him, the same is not to be judged for murder, seeing men cannot judge but according to Facts, and not according to the intents or thoughts of the parties hearts, Of Fools also ye are to distinguish, for all fools are accountable Menslayers, as to have judgement; but only Idiots, and Infants within age, for a crime cannot be done, nor an offence but through a corrupted will, and a corrupt will cannot be but where there is discretion, and innocency of Conscience doth save fools outrageous; and therefore Robert Volround ordained, That Idiots being Heirs should be in the custody of the King, for their Marriages, and for their Inheritances of what Manors or Lords soever they held their Lands. Likewise ye are to distinguish of Madmen, for frantics and Lunatics may offend mortally, and so they are to be accounted and judged for Man-slayers, but not those who are Mad continually. Of Infants also ye are to distinguish, of Infant's Murderors, and of Infants killed; the Murderors within the age of one and twenty years are not presently to be judged to death in a fact not notorious, before they be of full age. Of Infants killed ye are to distinguish, whether they be killed in their Mother's wombs or after their births; in the first case is is not adjudged Murder; for that none can judge whether it be a Child before it be seen, and known whether it be a monster or not; and to Infants killed in the first year of their age the Counsance belongeth to the Church. Of Fugitives, and of those Defendants is the distinction which followeth; he who killeth a Fugitive after that he submiteth himself to the King's Peace in a fact not notorious, he is to be adjudged to death as a , otherwise not; and he who killeth a man defending himself, who might fly and avoid the kill is also to be adjudged to death as a , otherwise not. Of the offences of Robbery, Larcine, Burglary, where the damage exceedeth 12. pence where the offenders are taken in their offences, the offenders are to be killed by losing of their heads, if the people be present after the fact and testify the felony; and in cases not notorious the judgement is to be hanged till they be dead. And if the Defendant be a Woman ye are to distinguish, whether she hath a Husband or nor who is y●t living, and also of the Action, whether it be mortal or not, for if the be, and was sole without a Husband which she hath married at the door of the Monastery, and the Action be mortal she shall answer as a man doth; and if she be a Feme-Covert ye are to distinguish, for if she be accused of a mortal Crime as principal, she shall answer, and if as an Accessary than ye are to diflinguish; for if she be accused of consenting to the felony of her Husband, or to any other, her Husband not knowing it, yet ye are to distinguish of the Crime; os the offences of Larcine, of Burglary, and of other sinal offences she may answer, That she was under the command of her husband, and that she could not contract him; that answer is peremptory in Latcine, and if without the knowledge of her Husband she shall answer: And if a Woman without her Husband be accused to have been in the company of a Thief for a minute, or a very small time, she may say, that she was not in his company but as his Concubine. Of mortal Judgements, of Outlawry, of Abjuration of the Realm, of vanquished in Battles for mortal felony, and otherwise attainted of a notorious mortal offence, or not notorious, the offence is such that the blood is corrupted; and of the offenders the blood is extinct in every descent in right of blood, so that nothing can descend from them to any of their Heirs either next or remote by descent, but all shall remain to the Lords of the Fee, from the time they committed the offences, whoever were Tenants thereof in the mean time by what Contracts soever; and all Fealties, Contracts, and Obligations are blotted out thereby And of Fugitives it is according as it is with Outlaws, and their goods which remain (besides what belong to others) remain forfeited to the King. And the like in remembrance of their selonies, & in hatred of the felons it is lawful to destroy all their mansion houses, to erradicate their Gardens, to cut down and waste their Woods, to blow up their Meadows, or otherwise over turn them, which King Hen. the 1. did moderate at the request of the Commons in this manner, for the saving of the Lands of mortal felons in their hands, of what Manor soever they were holden, that he should hold the same, and should take the profits thereof for one year, and should do waist if there were not other agreement made with him. For the offence of Rape, the judgement was to be hanged till he died, without having regard whether the Woman ravished were a maiden or not, or without distinguishing of what condition she was, and whether at the Suit of the person, or at the King's Suit; which offence before the time of King Edw. the second, was by burning of them over the eyes, because the lust came in by eyes, and the heat of whoredom came from the reins of the eacher. Seven things do stay Judgement of Death. 1 False judgement, or foolish judgement. 2 False Testimony. 3 Default of better Answer. 4 The haste of the King. 5 A woman with Child. The first three Cases have respite by forty days, the fourth by thirty days, the fifth by forty weeks, or more if the Child be not borne. 6 Want of discretion, as it is of Idiots, Madmen, and of Infants. 7 In Poverty, in which case ye are to distinguish of the poverty of the offender, or of the thing; for if poor people to avoid famine take victuals to sustain their lives, or clothes that they die not of cold, so that they perish if they keep not themselves from death, they are not to be adjudged to death, if it were not in their power to have bought their victuals or clothes, for as much as they are warranted so to do by the Law of Nature; and although the Law hath no respect but to the Souls of offenders, nevertheless King Edward limited the quantity of Robbery and Larcine in this manner; that is to say, that none should be adjudged to death, if the Larcine, or the stealing, or the Robbery did not exceed twelve pence Sterling; and note that King Hen. the 1. by Randulph de Glanvile Ordained, That in all mortal Actions, that where the Action was encountered with an affirmative exception, that the affirmation was first to be received in proof in favour of life, and thance it was that if one man accused another of Felony, and he plead that he is not the man, the proof was awarded to the Defendant to convince the other of lying, either by his body or otherwise. And so it is if the Defendant say that he could not be at the doing of such an Act, at the day, place, or year named in the Plaint, because he was then in another place, where by presumption he could not do it, or that he could not be there present; Or if he saith that the thing came to him by good title, in favour of life the proof belongeth to the Defendant peremptotily at his peril, to the overthrowing of the Action, and the exception; but if the Defendant solely deny the Action, in such cases the proof belongeth to the Plaintiff Of Out laws returned from exile, banished men, and those who have forjured the Realm and returned, being taken and kept for a justifiable offence, the judgement is, that they be hanged till they be dead. CHAP. iv SECT. 17. Of Punishments in divers kinds. THe Corporal punishments of Death being past, we are to come to Corporal punishments venials, which are by open infamous Penances; and first of punishments, Tallions, or (like for like) which are in three Cases, that is to say, in May him, Wounding, and Imprisonment, in which if the Pleas be brought in by Appeals of Felony for reverge only, then belongeth the judgement Tallion, or like judgement, as Mayhem for Mayhem, Wound for Wound, Imprisonment for Imprisonment. And if pardonable in form of a Trespaffe, than these judgements hold place, that the offender make reasonable satisfaction to the Plaintiffs, and afterwards that they be adjudged to do open Pennance according to the quantity of the offence. Open Pennances are these; amendments of Highways, Cawsies, Bridges, setting them up in Pillories, or Stocks; Imprisonment, and abjuration of the Realm, Exile, Banishment, either from off the Land, or from the Town; from entering into such a place, or from going out of such a place, by Ransom of such a penalty by pecuniary punishment, or by other Fine, and such other kinds of judgements penals. And if the offender; be Infants, or otherwise in custody, that in such cases the Guardians be adjudged to make satisfaction of the damages, and the Guardians to betake themselves to the goods of the trespassers; but the open Penance is to be suspended so long as they are in Ward, so that according to the difference of the offences and the offenders the punishments were in manner as followeth; and first of false judges, who the more greatly offend for as much as they are in a higher degree than other people. CHAP. iv SECT. 18. Of false Judges. OF false judges Affigned, King Alfied Ordained such judgement, that the wrong they do to God whose Vicegerents they are, and to the King who is put in so noble a place as is the Seat of God, and hath given them so great Dignity as to represent the Person of God, and the Counsance as to judge offenders, that first they be adjudged to make satisfaction to those they have hurt, and that the remainder of the goods should be to the King, saving all other rights, and all their Possessions, with all their purchased Lands should be forfeited in whose hands foever they be come, and that they be delivered over to false Lucifer, so low that they never return to them again, and their bodies that they be punished and banished at the King's pleasure, and for a mortal false judgement that they be hanged as other murderers; And for Mayhem, Wounding, and Imprisonment, that they have like for like, and the same Law, and in the same condition. The judgement of false judges Ordinaties is not in venial judgements so penal, as it is of judges Deligates before; but they are to make satisfaction to the Parties Plaintiffs, and to the King they are punishable by a pecuniary penalty, and disabled from all manner of jurisdiction whatsoever; and in Cases mortal, and Tallions, according as it hath been said before of other judges. CHAP. iv SECT. 19 Of Perjury. PF●jury is a great offence, of ye are to distinguish either of Perjury of false Testimony, or of breach of faith, or by each of the Oath of fealty; of the first Perjury ye are to distinguish either of Perjury mortal, or venial; if of mortal, than the judgement was mortal to the example of apparent murderers. And note that in all personal Actions there belongeth such an award, that due satisfaction be made to the Plaintiffs, and that the offenders be punished with corporah pains, which pains are to be bought out by ransom of money; and if of venial perjury, then that they be banished for a time, or for ever; and that their Woods, Meadows, Houses, and Gardens be erradicated according to the example of murderers, saving that their Heirs do not remain disinherited. Of the other Perjury ye are to distinguish as breach of faith to the King, or to another Person, and if to the King ye are to distinguish whether as his Tenant or not; and if the Oath of Fealty be in respect of Land, and the fealty be broken in any of the points, then lieth the Process and defaults aforesaid; and if of an Oath not in respect of Land, ye are to distinguish whether of the common Oath of Fealty sworn to the King, for the remaining in his Fee, & then only Corporal punishment holdeth place, which passeth the punishment which should be adjudged to others not the King's Offices, according to the King's pleasure. CHAP. iv SECT. 15. Of the Offices of Justices in Eyre. THe Presentments of offences are Ex officio by Coroners, by Sheriffs and Bailiffs in Turns and views of Franck-pledge; by Inquests, and special justices, and by Kings Ex officio, or by their Chief justices, or of their justice's generals; and because that the one have not power to determine the presentments of such offences, nor to punish the Trespasses, and the other who can will not, or do not that duty which of right they may do; or punish the innocent, and spare the guilty. It was anciently Ordained that the Kings by themselves, or by their Chief justices, or by general justices to hear and determine all Pleas, should go Circuit every seven years through all Shires, to receive the Rolls of all justices assigned, of Coroners, of Inquirers of Eschetors, of Sheriffs, of Hundredours, and of Bailiffs, and of all Stewards, of all their judgements, Inquests, Presentments, and all their Offices, and to examine those Rolls whether any had erred therein, either in the Law, or to the damage of the King, or to the grievance of the people; and those things which they found not determined that they should determine them, and in the Eyre they should redress the Officers, and punish the negligence of them according to the Rules of Law, and that they should inquire of all offences which belonged to the King's Suit, and to his jurisdiction. And note, that notwithstanding the King had the Suits of all mortal offences, and of wrongs done to the Law, and to the right of his Crown, it is not thereby to be understood that he should have the Suit of all offences; but if any one be Plaintiff and doth not proceed in his Suit after the same is affirmed, ye are to distinguish, if it be of a personal offence 〈◊〉 it sus●●eth for the Defendants, for the Nonsuit of the Plaintiff doth suppose 〈◊〉 of the damage; and if it be of a mortal offence yet the King hath nor the 〈…〉 warrant of Appeal, or Indictment, wherein it behooveth to the Appealees and Enditees that they make haste to acquit themselves, for none is bound to Answer to any manner of Action brought by them, because they are barred by an Exception of mortal infamy, by being Appealed or Indicted. CHAP. iv SECT. 21. Of the Articles in Eyre. EVety Shire usedto be warned by forty days at the least, by general Summons of the Kings coming, where after the Effoignes adjourned, and the Assize of Victuals set, and the Ordinances proclaimed, and those of Franchises adjourned, and the Jurours called, Sworn, and Charged with their Articles; and the claimers of Franchises, and the Rolls of the Justices, of Coroners, and of all Sheriffs, and of all other manner of Pleas, and Presentments after the last Eyre taken and received; the first thing was to inquire, hear, and determine the Articles presented and brought in the last Eyre which were not ended, and afterwards to determine Writs and Plaints, to deliver Visnes, to examine the Rolls, to redress the errouts, and all other wrongs by right Judgements, without respect unto any person. All the Judge's Ordinaries, and Assigned Sheriffs, Bailiffs, and Stewards of Lords of Manors, and all other who claimed jurisdiction which any one could attaint of any wrong done against the right rules of Law, were condemned for the wrongful judgements, with regard to the distinction of the Parties grieved. Coroners, Eschetors, Sheriffs, Bailiffs, and other Ministers doing wrong to the King, or to the people, used to be punished according to the example of the other, and further according to the King's pleasure. The offenders which were found using false Scales, and false Measure, and gaining by breaking of any Assize, either of Bread, Wine, Ale, Cloth, or other Merchandizes used to be set in the Pillory, and Women in the Tumbril, and afterward; were not suffered to Merchandise at any time, not could they departed from the place or Town to any Liberty, because the usage was contrary to Law. Cutpurses taken De facto in their notorious sins used to be hanged, and for the cutting of Purses and stealing of other goods under the value of twelve pence, and less than six pence one of their ears used to be cut off without carrying them to Prison, or before any judge Assigned, and to banish them from the Town, or from the Mannot for the second offence. And for their sarcine under the value of 〈◊〉 pence they used to set them in the pillory for the first offence, and to banish them for the second. In the judgements of Personal Trespasses, venials, as to the taxing of the damages put in plaints, Martin De Pateshall used this course, the Judge used to inquire ex officio of the jurours, by whom any principal Trespass was adjudged before him, the names of all these who were guilty in the first degree, and of the Accessories, and therein he proceeded to judge the damages according to the number of the Endictors, so that no Plaintiff should recover no more entire damages by plurality of Plaints for one sole trespass against the trespassers severally. CHAP. iv SECT. 22. Of Franchises. OF Franchises note, that because the King doth not hold his Rights and Dignities of his Crown but as an Infant, nor a grant from him of any franchises is so established that Kings cannot repeal them again, so as he give satisfaction to the value as by warranty; and it is lawful for every one who findeth himself grieved to Sue for the King, to seize every Franchise forfeited for contumacy; as if the Bailiff of a Franchise do not execution of the return of the Sheriff according to the Command of the King, by any abuse, as by using his fr●nchife too largely, or not duly; by a Writ ensuing, it is commanded that the Sheriff enter into the Franchise, and the King doth recover the seisin thereof, and so the same becomes guildable which was before a Franchise. And all those used to forfeit the Franchise of keeping of a Goal in Fee, who by title of Franchise of Infangthiese, or of return of Writ; hurted not without delay, the Persons taken in the places within the Franchise for Felony done in Guildables, and send them into the Goal in Guildable, so that the King do not lose the Goods and Chattels of the Felons, nor his other rights; for the King giveth no Franchise to his own prejudice, nor to the prejudice of others, especially of return of Writs, nor to have the custody of a Goal. An example may be as betwixt two Neighbours in a Franchise, the one cannot keep a Prison to the prejudice of the King, and if he do he forfeiteth the Franchise. And it also appeareth, that jurours came out of Franchises before the King and his Commissioners to Guildable and elsewhere at his command, as well upon criminal Actions as upon reals. And if any one receive a Felon wittingly into his Franchise, the same is now challengable. CHAP. iv SECT. 17. Of satisfaction of Debt. IF a Plaintiff recover against many by judgement he shall have but once damages, as in this case: If many Persons own one Debt, and every one be bound in the whole, if one of them make agreement for the same, although he do not make a special agreement for all the Debtors, all of them nevertheless are discharged, because satisfaction hath respect to the Debt, and not to the persons. CHAP. iv SECT. 18. Cases of Disseisin. IF the jurours in Petit Assizes are agreed that one shall give their common Verdict for all, and if they say that they know nothing, nor that the Plaintiff shall receive nothing because he proved not his Action; and if they be of divers opinions they are not therefore to be threatened, nor imprisoned; but they are to be severed and diligently examined. And if two jurours be found to agree amongst all the rest, it sufficeth for him for whom they speak, and they are not to be examined upon the title of the possession, but it is sufficient for the judge to know if the Plaintiff were disseised of his Land, whether it were rightful or wrongful according to the Plaint; for though it were right, nevertheless it was tortuous, because the Tenant used force where he should have used judgement, and for that he made himself a judge therein. judgement is to be given for the Plaintiff, so as he shall recover seisin, such as it is, saving every right by another Writ; for an Affize lieth not upon Assize of the same Tenement, betwixt the same parties, not an Attaint upon an Attaint; and if the jurours for him, whether they were sworn upon the Action, or upon the Exceptions, judgement goes for him, and they behoove to inquire of the others named in the Writ, and if the Disseisors came in with force and Arms, although they hurt no persons body, all of them nevertheless are to be adjudged to Corporal punishment, according to the quantity of the offence; and if they cast him our of his dwelling house, or out of his Demesne, the felony of this Burglary is punishable at the King's Suit, or at the Suit of the Party, for none is to be cast out of his house where he dwelleth, and which he hath used as his own for a year without judgement, although he hath no title thereunto but by Disseisin, or intrusion, and it sufficeth for fotce and Arms, only the showing of Arms for to hurt the Adversaries; and under the name of Arms are contained Bows, Artowes, Saws, Lances, Speeres, Staves, Swords, and Targets of Iron. The jury ought to inquire of the damages, that is to say, of the profits of the Tenements done since the Disseisin, and to whose hands such profits after came, and of the Charges, Costs, and reasonable expenses which the Plaintiff hath sustained in his whole recovery, and in all things, and how much he is endamaged in distress of his goods, and in his honour; and the damages being assessed, it is to be awarded that the Plaintiffs recover his seisin, such as it is, according to the view of the Recognitors, and the damages; and the Disseisors are punishable according to the points of the offences. For the goods found in the Tenements whereof none can know the value, as Charter, Writings, Royal Treasure, and such things locked up, the Plaintiff hath an Action by Appeal of Robbery, or by a Writ of Trespass. In judgement of ●atcine veniable satisfaction is to be made to the 〈◊〉 in●ffes, to the double of the value of 〈…〉 which are stolen; and in case of 〈…〉 the value (4 double) or four 〈…〉. CHAP. iv SECT. 25. Of Amercements. A Pecuniary pain we call an Amercement, which follow real offenders and m●●t, and sometimes are certain, and sometimes uncertain. An Amercement is certain. sometimes according to the dignity of the Persons, as it is of Earls and Barons; for he who holdeth an entire Earldoine is to be amerced one hundred pound when he is least amerced; And a Baron for a Barony entire one hundred Marks, and he who holdeth less, less; and more, more; according to the quantity of the Tenure. And sometime; by a certain Assize in another case, as it is of Escapes of people imprisoned, in which case ye are to distinguish of the place, as where one escapeth out of the King's Prison, or out of the Prison of another; out of the King's Prison ye are to distinguish of the cause, whether it be mortal or venial, and if mortal, then distinguish if the cause were adjudged or not, and if adjudged by norory of fact, or of right, than the Corporal punishment is uncertain; for if the Keeper, or more be assenting to the escape, punishment of death followeth thereupon; and if the cause was not adjudged, and the Keeper was not the King's Officer, nor assented to the escape, than the Assize of punishment is so many Shillings sterling or more, according to the usage of the Country, or of the place, or of the person. And if the Cause he venial, than the escape is not punishable. And if the escape be from the prison of others, than ye are to distinguish of the cause, and of the caption, whether the cause be mortal or venial, and if mortal than the pecuniary pain aforesaid holdeth place; and if the cause be venial, there is no punishment for the escape. CHAP. iv SECT. 26. Of Amercements taxable. COmmon Amercements are Taxable by the Oaths and A●●erments of the Peers, of those who sal in misere cordia, according to the constitution of the Charter of Franchises, which willeth that a Freeman be assessed when he falleth into an Amercement according to the quantity of his offence, a Merchant saving to h●● his Merchandise, and a Vi●●aine saving his Wainage; and these Aff●rrors are to be chosen by the assent of the Parties if they will, but the King's Officers are the more grievonsly to be Amerced for the breach of their faith, etc. Many cases there are where Corporal punishments are brought in by Fines of money, and such are called Ransoms, which is as much as to say, Redemption from Corporal pains; whereof some Fines are common, as for Murders, other for personal Trespasses of Towns and Commonalties, which Fines King Edward Ordained, that they should be assessed in the presence of the Justices, so as the names of them be put into the Rolls of the justices, so that the Estreates may come to the Sheriff to leavy the same by parcels, and not by total Summons. And in case where one recovereth Debt or Damages, King Edward enacted that it should be in the election of them to do execution by levying such Debt, and damages of the movable goods of the Debtors at the very value, to the value of the thing in demand, except the Oxen, and Beasts of the Blow, together with the moiety of Lands, and Tenements of the Debtors, if the goods be held sufficient by a reasonable Extent until the debt and damages be levied. Those who are Appealed and Indicted of Felony, and are not to be found, it behooveth that they be proclaimed, and especially before the Kings and his justice's Errants, and if they be found guilty, than they are to be commanded to put them in exigent, so that the first county after the Eyre be the first day, and so they be demandable at three Counly. Courts until they be Outlawed, if they ●ender not themselves to the Peace. CHAP. iv SECT. 27. Of the Office of Justices in Eyre. TO the Office of justices in Eyre it belongeth especially to inquire by jurours, and by examination of the Rolls of the Coroners, of all that were Outlawed after the last Eyre, and after Certificate of their names they are to inquire of the names of their Pledges, that is to say, whether they were in Dozien, or in Franck-pledge, and if their Pledges be in the same County then are the Pledges punishable by a pecuniary pain because they brought not those they took in Mainprize to appear; and if they were elsewhere in Dezien, than they are to inquire in whose Mainprize they were, and they are punishable according to the example of the Pledges for the same cause. To help the memories of the people are Escripts, Charters, and Minements very necessary to prove the conditions and the points of Contracts, Gifts, Sales, Feoffments and other things. By the Statute of Leuchfred it was Enacted, that one might deny nude contracts made by words, and it was Ordained, that Plaintiffs should prove their Writings which were denied, and not provable by Neighbours in England, and for foreign Contracts by Battle, or by the setting to of other Seal, or by jurours at the election of the Plaintiffs. If jurours have obscurely or doubtfully, or not sufficiently given their Verdict in any Action or Exception; or any of the parties be grieved thereby; there is remedy by a Commission of C●●tisicate to make the jurour come again, and the Parties who are the Plaintiff, aught to have under the King's Seal, and of the judge, and of the Parties, the proceed of the Plea before, and show the defect, and the offence of the jurours; in which case if the judge by examination find it doubtful, the ●aid doubt is to be reduced to certainty, and the obscurity to clearness, and the error into truth; and so the first judgement is to be redressed. The Contents of the Fifth Chapter. A Busions of the Common Law. The defects of the great Charter. The reprehensions of the Statute of Merton and Marlebridge. The reprehensions of the Statutes of Westmister, 1. The reprehension of the Statute of Wesim. 2. and of Gloucester. The reprehensions of Circumspect agatis. The reprehensions of the new Statute of Merchants. CHAP. V. CHAP. V Sect. 1. Abusions of the Common Law. THere are many who say, That although other Realms use a written Law, yet only England useth her Customs, and her Usages for Law not written; but betwixt rightful and tortuous usages there is a difference, for tortuous usages not warranted by Law, nor suffered by Holy Scripture, are not at all to be used: as for example; those of Thiefs, whose usages are to rob and steal. And to show some abuses holden for usages, which are frauds to the Law, and repug●ants to right, and which are not found justifiable by Holy Scripture, is this Chapter made of a Collection of part of the abusions of the Law, and of persons erring from the knowledge of the right of Law, and from lawful usages. Abusion is a disuse, or a misuse of right usages turned to abuses, sometimes by contrariety and repugnancy to Law, sometimes by too large a usage thereof. 1 The first and chief abusion is, That the King is above the Law, whereas he ought to be subject to it, as it is contained in his Oath. 2 It is an abuse, that whereas Parliaments ought to be for the salvation of the Souls of Trespassors, twice in the year at London, that they are there but very seldom, and at the pleasure of the King; for Subsidies and Collections of Treasuree and where the Ordinances ought to b● made by the assent of the King, and of high Earls, they are now made by the Kin and his Clerks, and by Aliens, and others who dare not contradict the King but the fire to please him, and to Counsel him for his profit, though the Counsel be not Covenable for the common people without calling the Counties thereunto, and without following the rules of Law, whereby it followeth that many Ordinances are grounded more upon pleasure then upon Law. 3 It is an abuse that the Laws, and the Customs of the Realm, with their occasions are not put into writing, whereby they may be known, so as they might be known by all men. 4 It is an abuse, that force holds in Disseisins after the third day of peaceable seisin, for as much as he is not worthy to be aided by the Law who flieth from judgement, and useth force. 5 It is an abuse, that Justice is delayed in the King's Court, more than o●se where. 6 It is an abuse to suffer any to be in the Realm above forty days who is of the age of fourteen years, English or Alien, if he be not sworn to the King by an Oath of Fealty, and in some Pledge and Dozien, 7 It is an abuse that Clerks, and Women are exempted to make the said Oath to the King, seeing the King taketh their Homage and Fealty for Lands. 8 It is an abuse to hold an escape out of Prison, or the breach of the Goal to be a mortal offence, for that usage is not warranted by any Law, nor is it used in any place but within this Realm and in France, for as much as one is warranted to do it by the Law of Nature. 9 It is an abuse to suffer so many forms of Writs to be pleadable, and therein especially that the Writs are Close, and not Patents, as the Writs of Right; and in that they are made with interlinings and rasure, and otherwise vicious. 10 It is an abuse that the money is not quarterable, that it is not Silver, that it is held payable if the foreign circle be not whole, to allay the Money per 18. d. and make paying of Lead to every, etc. 11 It is an abuse that the King takes more than twelve pence for the exchange of twenty shillings in the pound. 12 It is an abuse that no pound is suffesed to weigh twenty five shillings, or more than twelve ounces. 13 It is an abuse that Treason is not adjudged more by Appeals than it is. 14 It is an abuse that a man who hath done Manslaughter of necessity, or with the Peace, or not feloniously, is detained and kept in Prison until he hath purchased the King's Charter of pardon of death, as it is for mischance. 15 It is an abuse to hold the movable goods of flyers forfeited before they be attainted of the Felony by Outlawry, or otherwise. 16 It is an abuse to Outlaw a man before it hath been enquired by the Oaths of Neighbours. 17 It is an abuse to suffer a man attainted of Felony to be an Approvers, and to have a voice as a true man, and that Clerks, Women, Infants, and others who cannot Combat are suffered to be Approvers. 18 It is an abuse that others receive the Appeals of Approvers, than Coroners, and that they are suffered to Appeal oftener than once, or by distress or otherwise, or in any manner falsely. 19 It is an abuse that the Justices drive a true man to be tried by his Country, where he proffereth to defend himself against the Approver by battle. 20 It is an abuse to force people Appealed by Approvers to Acquittalls, where the Approver put in his Appeals, if he be not thereof elsewhere indicted, or after the lying of the Approver attainted, or after the death of the Approver. 21 It is an abuse to suffer an Approver to live, after he shall be attainted of a false Appeal. 22 It is an abuse to suffer Thiefs, and known and notorious Felons to be defended in Sanctuaries. 23 It is an abuse that those Felons who are forjured the Realm are not suffered to choose their Port and passage out of the Realm, and to limit their journeys. 24 It is abuse that they enter into the Sea, and from the Sea, the Church next the Sea. and that enteries into great places are denied them, and that they have not the privilege of Pi'grims. 25 It is abuse to adjudge Murder for default of En. l. shire, since Murder ought to be the English punishment of an Alien. 26 It is an abuse that Acquittances of payments made to the King in the Exchequer are by Tallies, and not by the Seal appointed for it. 27 It is abuse that the King's Officers of the Exchequer, have Jurisdiction of other things than the King, Monies, of his fees, and of his Franchises without an Original Writ out of the Chancery under white Wax. 28 It is an abuse that the King's Debts lie Dormant, and are delayed to be levied by Estreates, since the Arreates of Sheriffe●s, and of other the King's Receivers are to be levied without delay upon those who preferte them, if they themselves be not sufficient, and the Arrearages of the Debts of others are to be levied upon their Sureties where the principals are not sufficient to pay the Arrearages; the Amercements are liable upon the Assessors if the principals are not sufficient, and so it is of Fines, and all other the King's Debts, whereby it appeareth that no Debt ought to be much behind; is so much as some think that none are chargeable with an old debt if not of malice, or by negligence of the King's Officers. 29 It is an abuse that they of the Exchequer, or others receive Attorneys, or hold Counsans without an Original. Writ out of the Chancery, which none can do without Jurisdiction. 30 It is an abuse that Freemen, and Freeholders' have ordinary Jurisdiction, but in the Courts of Lords of Manors, or of Hundreds, or Counties. 31 It is an abuse to Amerce any man by reason of a Presentment in personal Trespass, in as much as no man is to be Amerced but for the offence in a real or mixed Action. 32 It is abuse to Amerce any man by a Presentment made of less than twelve sworn Freemen. 33 It is an abuse to assess an Amercement certain, without the afferment of Freemen sworn to it. 34 It is an abuse to afferre Amercements in the absence of those who are to be Amerced. 35 It is an abuse to Charge the Jurours with any Article touching wrong done betwixt neighbour and neighbour. 36 It is abuse to believe any one hath Jurisdiction, if a Commission give it not. 37 It is an abuse to obey the Judge who is appealed of doing wrong, the example whereof appeareth in the old Writ of right, Et nisi feceris viceoemes faciat. 38 It is abuse that a Freeman be made the King's Officer by any election against his will. 39 It is an abuse, that the salaries of Pleaders be not certain. 40 It is an abuse that the Defendants have not amends of wrongful Plaintiffs. 41 It is abuse that Pleaders are spared of Oaths according to the points. 42 It is abuse to suspend a Pleader if he be not, attaint of a Trespass, for which he is condemnable to Corporal punishment. 43 It is abuse to Summon 2 man for 2 personal offence. 44 It is abuse to adjudge a man to death by Suitors, if not in cases so known, that there need no Answer. 45 It is an abuse to bring the Appeal else where then before the Coronet of the County, and that appeareth by the Writ of Appeal, as a Writ grounded upon error. 46 It is abuse to letto bail a man Appealed, or indicted of a martial offence by Pledges. 47 It is an abuse to determine the Appeals of felony by Judges, Ordinaries, Suitors. 48 It is abuse that all persons are commonly receiveable in Appeals of felony. 49 It is abuse that all Infants within age are in Ward. 50 It is an abuse that people may Alien their Inheritances from their Heirs further than the grants, or their purchase of Lands make mention, for none can make an Assignee if it be not specified in the grant. 51 It is abuse that the Inheritances of Heirs females are held in Ward (though it be of Knight's service) as of Heir Males, since a woman is at age at 14. years. 52 It is abuse that Gaolers or their sovereigns plunder Prisoners, or take from them other things than their Arms. 53 It is abuse that Prisoners or others for them pay any thing for their entries into the Goal, or for their coming out. 54 It is abuse that a Prisoner is laden with Irons, or put to pain before he be attainted of the felony. 55 It is abuse that the Goals are not delivered of the Prisoners who are deliverable without delay, without a Writ. 56 It is abuse to make a man to Answer to the King's Suit where he is not indicted, nor appealed. 57 It is abuse to imprison any other than a man indicted or appealed, without a special Warrant, in case for want of Pledges or Maine-prisors. 58 It is abuse that Justices deliver Prisoners not taken before the date of their Warrants, since the King's intention was not but of those who are then kept in Prison. 59 It is abuse that the Writ of Odio & Atia take no place but in Murder. 60 It is abuse that that Writ lieth for Endictees. 61 It is abuse that Appealees or Endicters of mortal Crime are got out of Prison by Bail, or those who are condemned to Corporal punishment before they do their Penance, or that they have bought in the same by Fine and Ransom. 62 It is abuse that the Writs Sicut alias, & sicut pluries pass the Seal, in case where it should make those Officers inobedient of right, and to the King, and should charge others to do such Commandment. 63 It is abuse to put these words in Writs, Nisi captus sit per speciale perceptum nostrum vel Capitalis Justiciarii nostri vel pro forresta nostra, etc. for no special Commandment ought to exceed the Common Law. 64 It is abuse to suffer the Judges to be Plaintiffs for the King. 65 It is abuse that Aliens, or others who have not sworn fealty to the King, or infamous persons, or Indicted or Appealed of mortal Crime, or who have not an able Commission, or after any wrong done, or after Judgement given, be suffered to have Jurisdiction, or to Judge out of the points specified in their Commissions. 66 It is abuse that in Appeals by Pleaders are the Places, and the Countries, and the hours of the days, and that it is against the Peace, since every offence is against the Peace, and such other words needless. 67 It is abuse to abate sufficient. Appeals, according to the Statute of Gloucester. 68 It is abuse that the remedial Writs are saleable, and that the King Commands the Sheriff, that he take Sureties to his use for the Writ, for and by the Purchase of these Writs one may destroy his eremy wrongfully; and because that such Fines and Penalties ●un in Estreates, though they do nothing but hurt to the Purchasor theref. 69 It is abuse that Foreigners are not receiveable in Actions by Sureties of Freemen, who have not wherewith to find Pledges. 70 It is abuse to distreire in personal Actions, where the profit of the Issues comes to the King, and no profit accrueth to the Plaintiffs. 71 It is abuse that any Plaint is received to be heard without Sureties present, to testify the Plaint to be true. 72 It is abuse, that it is said that Villinage is not a Frank Tenement, and that an Assize lieth not of an ejection for term of years, as well as it doth of a Frank Tenement for term of life, or in Fee; for a Villain and a Slave are not all one, either in name or signification, for as much as every Freeman may hold in Villinage to him and his Heirs, performing the services and charges of the Fees. 73 It is abuse to hold that seisin accrued not to the Purchasor when the Donor left his goods, for as a Contract of Marriage is good by the consent of the wills of men and women, although that one of them repent, and after the Marriage would withdraw himself, but he cannot thereby dissolve the Contract; so as well it sufficeth to make the Contract by the delivery of seisin as by the celebration of the Marriage, although the Purchasor have no other seisin by taking the Esplees, nor any Deed. nor writing to testify the bargain; and if it were that a Woman after the Marriage were ravished and consented thereto, and the Husband repleeve her, and the ravisher answering to the Contract say, That the Husband had no right nor action, because he was never sully seized by taking the Esplees; nor had no Deed: or said, that he was never out of seisin of the Woman because she was clothed with his Robes, and by her robe she remained in his seisin; this Exception nothing availeth him to excuse his wrong no more than in this case. If a man buy a Horse, and agree with the seller, and the seller deliver the ●●ne to the buyer, notwithstanding that the seller repent of the bargaire, and forceably take bacl the Horse, although the buyer hath no Action for the same, because he remained always seized thereof at will; such Exception is not good. 74 It is abuse to think that Contracts for goods not movables are otherwise then for movable goods. 75 It is abuse to think that seisin accrueth not as soon to a Purchaser of his Purchase, as to an Heir of his Inheritance, since the Law requires but three things in Contracts. 1. The agreement of the Wills. 2. Satisfaction to the Donor. 3. Delivery of the possession and gift. If a trans●●tation of seisin be given to the Purchaser by the Donor at the hour of one of the Clock, and the Purchaser dyeth at the hour of three of the Clock he dyeth as well seized of the Tenement as he should be of a Woman, or a Horse, though the Donor have not departed with and removed his Chattels and it shall never be a good Plea for him to say, That the after the transmutation of seisin by a simple Livery remained in the Donor, after this Livery of the Tenement; but if the agreement of the Donot be not performed according to the Contract, than he may 〈…〉 thereby. 76 It is abuse to 〈…〉 at are cannot recover a 〈…〉 P●●●entments to Church 〈…〉, since many Reasons 〈…〉 to Reddissesors. 77 It is abuse that 〈◊〉 are not granted in Chancery without difficulty, to Attaint all false Jurours, as well in all other Actions Personals, reals and mixed as in Assizes brought. 78. It is abuse to drive a Distress out of the Hundred. 79 It is abuse to make the view of the Distress to Bailiffs, in that a Plaint will suffice, and a Court, and that he is yet seized thereof. 80 It is abuse that we do not sue for a Tortuous Distress by way of Felony, and that one attaint not these Robbers at the Kings Suit. 81 It is abuse that vicious Contracts are by agreements maintaied by Law, as forbidden of offence. Is not Usury an offence? is not Imprisonment an offence? how can one bind himself to Usury, or to Imprisonment, or a Disseisin, if he do not offend. 82 It is abuse that Advowsons' of Charters are aliened by Law for years in Mortgage, or to ferine, or are partible. 83 It is abuse that Leases of Fermes are not longer than forty years, since continuance of seisin by length of time doth disinherit no man. 84 It is abuse that no Land is let to ferme or in Fee, or for years rendering Rend by the year, more than the fourth part. 85 It is abuse to Oat-law a man for a default, in case where the principal cause is not felony. 86 It is abuse that Auditors are appointed by the Lords to hear Accounts without the assent of Bailiffs. 87 It is abuse that Bailiffs have no recovery of damage; from Tortuous Auditors. 88 It is abuse that regard is had to the persons, when such Law is not for Bailiffs against their Lords, a●e contra in the right of Debts due by the one to the other. 89 It is abuse that a man may challenge one for his Neise to whom he never found sustenance, in as much as a Villain is not a Villain but so lorg as he remaireth in custody; and since none cara challenge his Villain for Villinage though he be in his custody, if he find not sustenance to his Villain, or send him to some Land in his Manor where he may gain his living, or otherwise retain him in his service 90 It is abuse that Villains are Frank, pledges, or Pledges of Freemen. 91 It is abuse that others suffer Villains to be in their Viewes of Franck-pledges. 92 It is abuse that the Lords suffer their Villains to plead, or be impleaded without them, for a Villain is not Amerceable in any other Court because he can lose nothing, as he who hath nothing proper of his own. 23 It is abuse to hold Villains for Slaves, and this abuse causeth great destruction of poor people, great poverty. and is a great offence. 94 It is abuse that a man is Summoned who is no Freeholder. 95 It is abuse to Summon a man elsewhere then in the Land contained in the demand, if it contain Land. 96 It is abuse that a man travail at his own Charges, by any Summons personal. 97 It is abuse that a Justice or other make a Summons who is not a Freeholder within the County. 98 It is abuse to Summon men without giving them reasonable warning upon what to Answer. 99 It is abuse that false Causes of Essoignes are admitted, for as much as the Law alloweth falsity in no case. 100 It is abuse that an Essoignor is admitted in a personal Action to the Defendant, since one is Maine-prised to appear in Court by Maine-prisors. 101 It is an abuse to receive an Essoigne cast in by an infant within age. 102 It is an abuse to receive an Attorney, where no power so to do is given by Writ out of the Chancery. 103 It is abuse to receive an Attorney, where the Plea is not to be judged in the presence of the Parties, if not in case where one maketh an Attorney general. 104 It is abuse that none can make an Attuoney in personal Actions, where Corporal pnnishment is to be awarded. 105 It is abuse to receive Exceptions in Judgements if they be not sufficiently pronounced, for from the Order of the Exception early ariseth clear Judgement. 106 It is abuse to allow a warrant of Voucher to a Thief, or in other personal Action. 107 It is abuse that Judges Assigned show not the parties pleading their Warrants, or of his power when they demand it. 108 It is abuse that Justices and their Officers, who kill people by false Judgement be not destroyed as other murderours, which King Alfred caused to be done, who caused forty four Justices in one year to be hanged as murderours for their false Judgements. He hanged Darling because he had Judged Sidulf to death, 1 Darling. for the retreat of Edulfe his Son, who afterwards acquitted him of the fact. He hanged Segnor, 2 Segnor. who judged Vlfe to death after susfficient acquittal. He hanged Cadwine, 3 Cadwine. because that he judged Hachwy to death without the consent of all the Jurours, and whereas he stood upon the Jury of twelve men, and because that three would have saved him against the nine, Codwine removed the three, and put others upon the Jury, upon whom Hachwy put not himself. He hanged Cole, 4 Cole. because he judged Jve to death when he was a Madman. He hanged Malme, 5 Malme. because he judged Prat to death upon a false suggestion that he committed the felony. He hanged Athulf because be caused Copping to be hanged before the age of one and twenty years. 6 Athulf. He hanged Marks because he judged During to death by twelve men who were nor sworn. 7 Marks. He hanged Ostline because he judged Seaman to death by afalse Warrant, 8 Ostline. grounded upon false suggestion, which supposed Seaman to be a person in the Warrant which he was not. He hanged Billing, 9 Billing. because he judged Leston to death by fraud, in this manner he said to the people, Sat all ye here but he who assisted to kill the man, and because that Leston did not fit with the other he him commanded to be hanged, and said that he did-assist, where he knew he did not assisted to kill him. He hanged Seafoule because he judged Olding to death, 10 Seafoule. for not answering. He hanged Thurston because he judged Thurguer to death by a verdict of Enquest, 11 Thurston taken Ex officio without issue joined. He hanged Athelston, 12 Athelston. because he judged Herbert to death for an offence not mortal. He hanged Rombold because he judged Lisil●ld, 13 Rombold in a case not notorious without Appeal, and without Endictment, He hanged Rolfe, 14 Rolfe because he judged Dunston to die for an escape out of prison. He hanged Freburne because he judged Harpin to die, 15 Freburne whereas the Jury were in doubt of their Verdict, for in doubtful causes one ought rather to save then to condemn. He hanged Seabright who judged Aihebbrus to death, 16 Seabright. because he condemned one by a false judgement mortal. He hanged Hale because he saved Tristram the Sheriff from death, 17 Hale. who took to the King's use from another goods against his will, for as much as any such taking from another against his will, and Robbery hath no difference. He hanged Arnold because he saved Boyliffe, 18 Arnold. who rob the people by colour of Distresses, whereof some were by selling Distresses, some by extortion of Fines, as if betwixt extortion of Fines, releasing of tortuous Distresses, and Robbery there were difference. He hanged Erkinwald because he hanged Frankling, 12 Erkiu. walled. for nought else but because he taught to him who vanquished by Battle mortal to say the word of Cravant. He hanged Bermond because he caused G●●bolt to be beheaded by his Judgement in England, 20 Bermond for that for which he was Outlawed in Ireland. He hanged Alkman because he saved cateman by colour of Disseisin, 21 Alkman. who was attainted of Burglary. He hanged Saxmond because he hanged Barrold in England, 22 Saxmond where the King's Writ runneth for a fact which he did in the same Land where the King's Writ did not run. He hanged Alflet because he judged a Clerk to death, 23 Alflet. over whom he had not cognisance. He hanged Piron because he judged Haunting to Death, 24 Piron. because he gave judgement in Appeal before the forty days pendant, the Appeal by a Writ of false judgement before the King. He hanged Diling because he caused Eldon to be hanged, 25 Dilling. who killed a man by misfortune. He hanged Oswin because he judged Fulcher to death out of Court. 26 Oswin. He hanged Muclin, 27 Muclin. because he hanged Helgrave by warrant of indictment not special. He hanged Horn, 28 Horn. because he hanged Simin at days forbidden. He hanged Wolmer because he judged Grant to death by colour of a Larcine of a thing, 29 Wolmer. which he had received by title of baylement, He hanged Therberne because he judged Osgot to death for a Fact, 30 Therbern. whereof he was acquitted before against the same Plainetiffe, which Acquittance he tendered to aver by Oath, and because he would not aver it by Record, Therberne would not allow of the Acquittal which he tendered him. He hanged Wolstor because he adjudged Haubert to death at the Suit of the King, 31 Wolstor. for a fact which Ha●bert con●est, and of which the King gave him his pardon, but he had no Charter thereof, nevertheless he vouched the King to warrant it, and further tendered to aver it by enrolment of the Chancery. He hanged Oskitell because he judged Catling to death, 32 Oskitell, by the Record of the Coroner, whereby Replication allowable the plea did not hold. And the case was such, Catling was taken and punished so much, as he con●est he had mortally offended, and that to be quitted of the pain; and Oskitell adjudged him to death upon his Confession which he had made to the Coroner without trial of the truth of the pain, or the fact. And further, he caused the Coroners and Officers accessories to be apprehended, who hanged the people, and all those who might have hindered the false Judgement, and did not hinder the same in all cases; For he hanged all the Judges who had falsely saved a man guilty of death, or hath falsely hanged any man against Law, or any reasonable Exception. He hanged the Suitors of Calevot, 33 Suitors of Calevo●. because they had adjudged a man to death in a case not notorious, although he were guilty thereof; for no man can judge within the Realm but the King, or his Commissaries, except those Lords in whose Lordships the King's Writ doth not run. He hanged the Suitors of Dorcester, 34 Suitors of Dorcester. because they judged a man to death by jutours in their Liberty, for a felony which he did out of the liberty, and whereof they had not the Counsance by reason of forrainty. He hanged the Suitors of Cirencester, 35 Saitors of Cirencester because they kept a man so long in Prison, that he died in Prison, who would have acquitted himself by Foreigners that he offended not feloniously. In his time the Suitors of Doncaster lost their jurisdiction, 36 Suitors of Doncaster. besides other punishments, because they held Pleas forbidden by the Customs of the Realm to judges, Ordinaries, and Suitors to hold. In his time Colgrin lost his franchise of Enfangtheise, 37 Colgrin. because he would not send a Thief to the common Goal of the County who was taken within his Liberty for a felony done out of the Liberty in Guildable. In his time Buttolphe lost his view of Franck-pledges, 38 Buttolphe because he charged the jurours with other Articles than those which belonged to the View, and Amerced people in Personal Actions where one was not to be amerced by a pecuniary punishment. And accordingly he caused mortal rewards to Criminal judges for wrongful mortal judgements, and so he did for wrongful judgements venials. Imprisonment for wrongful Imprisonments, and like for like with the other punishments; for he delivered Thelweld to Prison, because he judged men to Prison for an offence not mortal. He judged Lithing to Prison, 39 Lithing. because he imprisoned Herbote for the offence of his wife. He judged Rutwood to Prison, because he imprisoned Old for the King's Debt. On the other side he cut off the hand of Hanlf, because he saved Armocks hand, who was attainted before him that he had feloniously wounded Richbold. He judged Edulfe to be wounded, because he judged not Arnold to be wounded, who feloniously had wounded Aldens. In lesser Offences he did not meddle with the Judgements, but disinherited the Justices, and removed them according to the points of those Statutes in all points where he could understand that they had passed their Jurisdiction, or the bound; of their Delegacy, or of their Commission; or had concealed Fines, or Amercements, or other thing which belonged to the King; or had released or increased any punishment contrary to Law, or procured the exercising or pleading without Warrant. either in the property by warrant of Writ, or of a plaint of the Possession, or è contra; Or in the venial Actions by words of felony, or è contrai, or had sent to no Party a transcript of his Plea at the Journey, or any of the Parties wrongful, grieved, or done any other wrong in dis-allowance of a reasonable Exception of the Parties, or to the Judgement. In his time every Plaintiff might have a Commission and a Writ to his Sheriff, to the Lord of the Fee, or to certain Justices assigned upon every wrongwhichwas done. In his time Law was hastened from day to day, so that above fifteen days there was no default nor Essoigne adjournable. In his time the parties might carry away the parts of their Pleas under the Seal of the Judges, or the adverse parties. In his time there was no stay of Writs, all remedial Writs were grantable, as of Debt by virtue of an Oath. In his time the judges used to take twelve pence of every Plaintiff at the journey. In his time Plaintiffs recovered not only damages of the issues of the Possessions, and of the Fees, but recovered Costs as to the hurts, and as much as one might lawfully Tax, by the occasion of such a fact. 109 It is abuse that such a multitude of Clerks are suffered to be made, whereby the King's jurisdiction is overthrown. 110 It is abuse that Clerks have Leases of that which belongs to the Temporalty, and hold Lay Fees. 111 It is abuse that Pleas hold upon Sundays, or other days forbidden, or before Sun rising, or in the night time in dishonest places. 112 It is abuse that none answer to a Felony, or other personal Action of trespass or scandal before his age of one and twenty years. 113 It is abuse that when the Action is affirmative to take the proof against the Answer; or Plea affirmative. 114 It is abuse that a man be accused of life and member, ex officio, without 〈◊〉 or without indictments 115 It is abuse that the justices show not the Endictments to those who are indicted, if they require the same. 116 It is abuse that no man in England doth answer for a thing done out of the Realm Et è contra, or in a privileged place, where the King's Writ runneth not for a thing done to a Foreigner et è contra, or within a place within a Franchize, for a thing done in Guildable 117 It is abuse that Rape is a mortal offence. 118 It is abuse that Rape extends to others than Virgins. 119 It is abuse to Outlaw a man if not for felony. 120 It is abuse that one take in England any one Outlawed in Ireland, or elsewhere out of the Realm; or that one is put out of his Fee by judgement of Law of Judge's Ordinaries, Suitors 121 It is abuse to count of so iong time, whereof none can testify the hearing or seeing, which is not to endure generally above forty years. 122 It is abuse that a man have an Action personal from a longer time than the last Eyre. 123 It is abuse of the Writ of Account, for which every one may imprison another wrongfully. 124 It is abuse that one is bound to render an account of issues of Land whereof he is Guardian by title of Law. 125 It is abuse that the Writ of Ne cui just vexces is so out of use. 126 It is abuse that Battles be not in personal Actions as well as in Felonies. 127 It is abuse that proofs and purgations be not by the Miracle of God where other proof faileth. 128 It is abuse to join Battle betwixt persons who are not admitted to wage battailé. 129 It is abuse that a Knight is otherwise armed then another man in a Combat. 130 It is abuse that Judges have Cognizance by original Writ, or warrant by Vouchers, or in others to which his jurisdiction extendeth not. 131 It is abuse to suffer a Voucher to warranty in the Kings Writ of Quo warranto. 132 It is abuse that those who are sound Usurers by indictments after their deaths are suffered to be buried in Sanctuaries, and that the Lands do not escheat to the Lords of the Fees. 133 It is abuse that vicious Obligations drive the Authors to personal Damages, in as much as they are voidables. 134 It is abuse to compel juronts, Witnesses, to say that which they know not by distress of Fine and imprisonment after their Verdict, when they could not say any thing. 135 It is abuse to use the words (to their knowledge) in their Oath, to make the jurours speak upon thoughts, since the chief words of their Oaths be that they speak the truth. 136 It is abuse that one examine not the Jurours, though they find at least two to agree. 137 It is abuse to put more words in the doing of Homage; but thus, I become your man, for the Land which I claim to hold of you. 138 It is abuse to Answer or appear by Attorney. 139 It is abuse to make Justices such parties without the Writ in the King's presence, if not with the assent of the parties. 140 It is abuse that the Writs of Audita quareta, and Conspiracy and others contain not the substance of the plaints. 141 It is abuse that the Justices of the Bench meddle with more Pleas then of wrong done against Fines, Grand Assizes, translation of pleas out of lower Courts, and of Darrein presentment, and of the rights of the King, Queen, and their Allies. 142 It is abuse to use a Pone when their Causes are discussed, if the parties challenge the same, for a lying purchasor ought not to have benefit of his lease. 143 It is abuse to sue forth Grand Distresses in Pleas of Attachments, whereof the defaults are to the profit of the King, and not of the Plaintiffs. 144 It is abuse that trespassers who have nothing are not banished from Towns, Counties, Manors, and Hundreds as they used to be. 145 It is abuse to hold that a Petit Cape maketh other title but to save every right in real Action, not in others. 146 It is abuse that the issues of Grand Distresses in mixed Actions come not to the profit of the Lords of the Fees, and others who have Courts, as they do to the King of Pleas, moved in his Court upon the same Actions. 147 It is abuse to think the same punishment is to be to Maine-prisots as to Principals who make default, whereas they are amerceable only in Courts. 148 It is abuse to amerce a man in plesive of Fee, or of service, going out of the Land by default in a personal Action or real; for Outlawty or loss of Land is sufficient punishment. 149 It is abuse that Sheriffs do not execution of Writs Vice Conntiels, in as much as the Plaintiffs have found Pledges De proseqnend. where there is no mention to take Sureties. 150 It is abuse to distrain for Arrearages of services issuing out of Lands movable goods, whereas no distress ought to be but in the Land only. 151 It is abuse that the Tenant may without punishment enfeoff a third person of the Land, of his Lord in prejudice of him, or do other thing, or say any thing against the points of his Oath of fealty. 152 It is abuse to suffer a man who is a Champion to be a witness. 153 It is abuse that none have recovery of wrong done by the King, or the Queen, but at the King's pleasure. 154 It is abuse to judge a man to divers punishments for one Trespass, as to a corporal punishment and to a ransom, since ransom is but a Redemption from corporal punishment by payment of a fine of money. 155 It is abuse that people defamed of offence are not barred from making oaths, and of their dignities, and of their other Honours. And divers other abuses appear by those who well understand the Writ before written. CHAP. V SECT. 2. The defects of the great Charter. SEeing how the Law of this Realm sounded upon forty points of the Great Charter of Liberties is damnably dis-used by the Governors of the Law, and by Statutes afterwards made contrary to some of the points, to show the defects or defaults of the points aforesaid; and the errors of some Statutes I have put in memory this Chapter of the defect; and reprehensions of Statutes, and first of the defects of the points of the Great Charter. To the point, That the Church of England shall have all her Rights and Liberties inviolable; for first it were necessary to ordain a Corporal punishment, and namely to the Lay Judges, the King's Ministers, and others who Judge Clerks for mortal Crimes to Corporal punishments, infamatories, & do detain their goods after their purgation, and to those Secular Judges who take upon them Cognizance in causes of Matrimony, and Testaments, or other special things. The other point is, That every Freeman of the Realm inherit the Liberties of the Charter, and whereof every one is disseised as of his , which is not adjudged according to the points following, there lieth no recovery of damages by the Assize of Novel Disseisin. A third point seemeth to be defective, for as the relief of an Earldom entire was to decrease in him who held less, so it seemeth that that certainty was to increase as much if an Earl held more, so as he who held two Earldoms, and who held an Earldom and a Barony, shall pay as an Eardome and as a Barony; and so of other Fees if they be not expressed in the Charter, that the Fine of one hundred pound be not an Eirldome for no point oncreased, and so of other certainties. The fourth point is defective (for although it be that such a point be grounded upon Law, to bind the Lord of Fees to warranties by taking of such Homages, whether they took them of the right Heirs or not) because it is not expressed whoshould be Guardian of the Fees in time of vacancy, and have the issues in the mean time in case where the right Heirs fly from their Lords, or cannot or will not do their homage. In the points of Wards it is defective, for as much as no difference is expressed between the heir's Males, and the heirs Females, for a woman hath her age when she is fully of fourteen years, and the seven years besides were not ordained first but for the Males, who before the age of one and twenty years were not sufficient to bear Arms for the defence of the Realm. And note that every Guardian is chargeable to three things: 1 That he maintain the infant sufficiently. 2 That he maintain his rights and inheritance without waste, 3. That he answer and give satisfaction of the Trespasses done by the infants. The defect of the point of Disparagements appeareth amorgst the Statutes of Merton. And the default of Franckbenches and Widows in the same manner, in which point it is sufficiently expressed that no woman is dowable if she have not been solemnly espoused at the door of the Monastery and there endowed. In the point which requireth that the City of London have its ancient Liberties, and her free Customs, it is to be interpreted in this manner; That the Citizens have their Liberties whereof they are inherited by lawful Title of the gifts and confirmations of Kings, which they have not forfeised by any abuse, and that they may have their Liberties and Customs which are sufferable by Law, and not repugnant to the Law. And where it is said (of London) that the interpretation be as well of the Cinque Ports, and of other places. The point which forbiddeth tortuous Distresses for Fees is Covenable in itself, but the same shall not grieve any man of the Realm who hath Tenements, that it is no Trespass in him, or by his Ministers, as appeareth in the Chapter of Nativo habendo. The point which forbiddeth that Common Pleas follow not our Court, is to be interpreted in this manner; That the people shall not travail to Sue in the King's Household in the Country as they used to do. But this point willeth, that the Plaintiffs have Commissions to Sheriffs, to Lords of Manors, and to Justices assigned, so that right be done to the parties in certain places, where the Parties and Jurours may be the less travailed. Although it be that the Chapter command that Petit Assizes be taken in their Counties, being made for the ease of Jurors, yet it is disused, in as much as the Justices make the Jurours to come from the furthest marches of the Counties, whereas it were better that the Justice's Rod from Hundred to Hundred, then so to travail the people. The point of Amercements is misused by justices, Sheriffs, Bailiffs, Stewards, Cap. 14. and others who amerce the people in certain in this manner, putting such a one to so much for a Contempt or other Trespass without a personal Trespass, and without the afferment of the people sworn to it, and without specifying the manner and the quality of the Contempt. Again, where the Afferrours ought to be chosen with the assent of those who are amerced, and in a common place, the Lords make the Afferrours to come to their houses to asser the Amercements according to their pleasures. The point which forbiddeth that Rivers be defended is dis-used, Cap. 16. for many Rivers are now appropriate and gotten, and so put in defence, which used to be common to Fish in in the time of King Hen. 1. Cap. 17. The Chapter which forbiddeth that Sheriffs, Constables, Coroners, nor Bailiffs shall hold Pleas of the Crown seemeth not needful, for appeals of felony are not here to be brought before Coroners, and the exigents and judgements pronounced, and therefore this point had need to have had more words to have expressed the meaning of it. For the end of the Chapter of the movable good; of the dead, it appeareth that the Action accrueth to the Widows, and to the Children to demand their reasonable parts of the goods of their Father taken away. That which is forbidden to Constables to take is forbidden to all men, Cap. 19, 20. in as much as there is no difference betwixt taking from another against his will and liberty, whether it be Horses, Victuals, Merchandizes, Carriages, or other manner of goods. The Chapter for holding the Lands of Felons for a year and a day is out of nse; for whereas the King ought not to have the waist by Law, or but the year in the ●●ame of Fine for safeguard of the land from spoil, the King's O●●cers take both. The defence of the Praecipe is not holden in that they do it without Writs of possession of Farms every day, that the Lords lose the Cognizance of their Fees, and the advantages of their Courts. The point which commands that one Measure be throughout the whole Realm, and one Weight is dis-used by Merchants, and Burgesses, using for the pound the old Weight of twenty shillings of right Assize, and also of els and other measures. The defence which is made of the Writ De odio & atia, that the King be not Chancellor, nor take any thing for granted, the Writ aught to extend to all remedial Writs, and the same Writ ought not extend only to the felonies of Murder, but it ought to extend to all felonies, and not only in Appeals but in Endictments. The point which forbiddeth that no Bailiff put a Freeman to his Oath without Suit, is to be understood in this manner, That no Justice, no Minister of the King, nor other Steward nor Bailiff have power to make a Freeman make Oath without the King's Command, nor receive any plaint without Witnesses present who testify the plaint to be true. The point where the King granteth that he will not disseise, nor imprison, nor destroy, but by lawful judgement, which overthrows the Statute of Merchants and other Statutes is to be interpreted thus, that none be arrested, if not by warrant grounded upon a personal Action, for if the Action be venial, no Imprisonment is justifiable, if not for default of Maine-pernors. And so it appeareth that none is imprisonable for Debt. And if any Statute be made repugnant to this point, either for the King's Debt, or for the Debt of any other, it is not to be kept. That (none be Outlawed) is to be meant, if not for mortal felony, from which one is saved by the Oath of Neighbours, ex officio, as it is the use in Eyre's; and therefore that destroyeth the Statute of Outlawry of a man for arrearages of Account, and all other the like Statutes; and that which is said, that none be (exiled nor destroyed) is to be interpreted in this manner, that every one have an Action to appeal all Persons, all Suitors, all Assessors who destroy men against the right course, and against the rules of Law. On the other part, where the King forbiddeth that none be disseised of his Freehold, of his Liberties, or of his free Customs is thus to be understood, that one shall recover by Assize of Novel disseisin every manner of , and all manner of Possession real of Lands, or of Franchises whereout one is cast, if it be not by lawful judgement; and these words (if it be not by lawful judgement) refer to all the words of this Statute. The point which the King grants to the people, that he will sell no Right, or hurt nor delay justice, is misused by the Chansellour, who se●ls the remedial Writs, and calls them Writs o● Grace, & by the Chansellour of the Exchequer who denyeth Acquittances of payments made to the King under Green Wax, and all those who delay right judgement or other right. The point concerning leave for the staying of Merchants, aliens, is so to be understood, that it be not prejudicial to the Towns, not to the Merchants of England, and that they be sworn to the King if they stay longer than forty days. The point which forbiddeth that none Allien his Land in prejudice of the Lord of the Fee, is to be interpreted in this manner, that no Tenant allien the Fee of his Lord without his consent, or to hold in chief of the Lord without increase of new service. The point of the custody of Abbeys, and of religious places when they fall is thus to be understood, that every Lord have the keeping of his Fee during the Vacation. The point that none shall be taken or imprisoned upon the appeal of any woman, for the death of any other then of her Husband, is to be meant of such a woman which the Husband last held for his wife, if in case there be many wives alive. The points concerning Sheriffs Turns and Views of Franck-pledges are disused three ways; the first that Sheriffs, Bailiffs, and Stewards take extortion of Fines, in that they make the people to fine for what they are not occasioned which they call for Beaupleader. The second, that they amerce the people for Presentments upon personal Actions. The third is, that they charge the jurours with Articles touching Trespass done by Neighbour to Neighbour, or of Tenant, or of other Lord then to the King. The point which forbiddeth religious persons to purchase Lands, overthroweth the Statute afterward made at Westminster of the same, for as much as the Action of the chief Lord is limited in so short time, to hasten the King's Action in prejudice of the Lords of the Fee. The last point is of such virtue and of such meaning as that the King hath the Cognisance of Trespasses done in such manner, as that the Fee-Tenants have their Courts, and the Cognisance of Trespasses done within their Manors, and also as well of real Actions, and Personals, as of mixed. CHAP. V SECT. 2. The Articles upon the Statute of Merton. SOme points are reprovable amongst the Statutes made at Merton after the Great Charter made, and namely the point of Redisseisins. Since the Law doth not attaint any Trespassor by inquest of Office, and because Pleas may perhaps avail the Tenants, and should be by Law allowable, Assizes lie to the example of Novel Disseisin; and where it is said, that Redisseisors be arrested and kept in Prison, and afterwards that they be released is but an abuse of the Law, which requireth that every one who is attainted of a personal Trespass be punished by a Corporal punishment, if he cannot ransom it by money; and that which is said of this Statute is to be understood of all Statutes made after the Great Charter, made in the time of King Hen. the 1. for it is not Justice that he should be punished for one fault with Corporal punishment, as imprisonment or other, and further by a pecuniary pain, or by ransom; for ransom is nothing but a buying out the Corporal punishment. The point of Improvements of Wastes is reprovable as being too general, for it ought to distinguish of Commons; for in some places the Commonors are enfeoffed in such manner that the whole Common is only in the Tenants, so that the Lords have nothing but the soil, and in such case that Statute is prejudicial to the Commoners, and repugnant to the Great. Charter, which willeth that none be cast out of his , not the appurtenances without lawful judgement. The point of Rape of Marriages is reprovable, in as much that it hath an Exception of Persons of Laymen, and of Clerks, for there is no more Law that a Clerk should offend without punishment than a Lay man. Other points are repugnable; If the Tenant do damage to his Lord, or è contra, for they are not punishable according to the Statute, but they are bound by their Homage and Fealty betwixt them, as it is before said amongst the judgements of defaults. The points of making Attorneys in Suits at Hundreds is to be understood in this manner; That although a Suitor by this Statute may make an Attorney for him to save his default, yet none can give Judgement by Attorney; nor is a Woman named in this Statute, because that no judgement is to be given by a Woman. CHAP. V SECT. 3. Of the Statutes of Marlebridge. SOme points of the Statutes of Marlebridge are reprovable, and namely the first five points, because that every personal Trespass is punishable by a Corporal punishment if the Trespass be not bought in by ransom according to the quantity thereof. The Chapter which commandeth t●e Great Charter to be kept in all points is defective for want of addition of punishment, and it seems cross to make constitutions not holden. The Chapters remedialls of Lords of Fees is reprovable in the mitigation of punishment: For all those who do defraud the Law are punishable by a Corporal punishment, and not by a simple Amercement. The point of Proclamation of Wards is reprovable, as that which is founded upon Error, as it appeareth in the Chapter of defaults. The Chapter of Redisseisors is reprovable, for that no special command ought to exceed Common Right, not any pain of imprisonment is judgeable but for a wrongful imprisonment. The Chapter of days in dower is reprovable, since the Law hasteneth right more in the King's Court then clsewhere. The Chapters following of Attachments and Distresses are reprovable, for in pleas of Attachments no Essoigne is allowable for the Defendants, nor any such order of distresses is to be holden according to Law. The Chapter which forbiddeth that none make his Tenants Jurours is reprovable, because that no punishment is therein ordained, and because it hath no Exception; for there are many Cases where the people ought to be Jurours though they come not by the King's Command, as before Justices of Forests, before Coroners, and before Escheators, and as in Courts of Sheriffs and Views of Fraukpledges, and as Afferrours, and at Goal deliveries. The Chapter which commandeth the arresting of those who are bound to Account is reprovable, since the Action is mixed, and requireth Summons, and not personal Arrests. The Chapter of wasters of Farms is reprovable, for waste is a personal Trespass, and requireth a personal punishment, and not a simple Amercement. CHAP. V SECT. 4. Articles upon the Statute of Westminster, the first. MAny Chapters are reprovable of the Statute of Westminster. For the points touching religious Persons are matter to gain moneys, and a purchase upon a foundation of covetousness, more than for their advantage. The Chapter of Clerks found guilty of felony is reprovable, for for want of addition of punishment these Clerks are not to be delivered to Ordinaries, but at the pleasure of the King, and of his Justices. The Chapter of Wreck is reprovable, in as much as the finder is forjudged by the Statute to have part thereof, whereas he ought to have part of the profit, and so it is reprovable, as to the awarding of the punishment. Of the points of Amercements is before spoken in the Great Charter. The point of take of distress is much reprovable, Cap. 9 as before is said. The Chapter concerning pursuing of Felons to maintain the Peace is reprovable in the punishment, for he is consenting to a Felon who doth not apprehend him when he may. In the same manner is it of the Chapter of Coroners, contained in the Articles following. The point of Election of Coroners was not needful to have been ordained, Cap. ● for it behoveth more the Electors to have wise and loyal Coroners then to the King, and it had better have been enacted that the Coroners do present the points of their Office under the Seals of the Jurours, than Sheriffs should make counter parts of the Rolls. The point of Enquest of Odio & aria is reprovable, Cap. 12. for London and other places in Liberties where there are no Knights. The point of putting people found guilty of felony, who will not put themselves upon the Country to penance, it is out of use that one kill them, without having regard to the conditions of the Persons, and therein it is reprovable, since one may perhaps help and acquit himself otherways then by his Country, and in as much as none is to be put to Penance before he be attainted of the offence for which he ought to be pained. The Ordinances of punishments of long imprisonment are to be reprehended as before is said. The point of the order of Outlawry of the principals before the Accessories is no Statute, but a revocation of error. The point of Replevisalls is reprovable, according as it is said of Actions; the punishment of long imprisonment contain Error as is said before. The punishment of Heites males Married, as against the King, without the consent of their Lords, betwixt 14. years and 21. years is reprovable, for then the King should have amends for that, for which he hath not any personal Suit for the amends. The point of Heirs females containeth Error, as appeareth in the reprehension of the point of Marriages in the Great Charter. The point of tortuous Distresses ought to contain the punishment for the robbery. The punishment of Ministers, Disseisors by colour of their Office is reprovable for the smallness of it, as appeareth amongst the Judgements. The point which forbiddeth Sheriffs that they take no rewards is reprovable in as much as the King taketh of them, and they take nothing of the King. The point of Fines of Clerks, and the officers of Justices in Eyre is reprovable, for the common grievance of the people without taking of profit. The points of imprisonment are reprovable for the reasons aforesaid, and the point of Tolls for the punishment of imprisonment, and because Tolls are not established certain. The point which willeth that those who dis-use Marriages should lose them, was not needful to have been made, for the Law is, that he shall lose his Franchise who useth it not. The point of the Receivers of the King's moneys and not rendering the same is reprovable, for the smallness of the punishment, according to that which appeareth before. The Errors of taking of Carriages and other goods appeareth sufficiently by the reasons before. The point which forbiddeth Judgement to be given by Strangers in Counties is reprovable, for no judgement given by another then an ordinary Judge assigned is to hold. The point which maketh mention of Robbery, or Disseisins is reprovable, for all those are to be seized upon who the Jurours indict of Robbery, according to the example of Thiefs and other Felons. The point of Attaint is reprovable, for it should not extend to one case, but it ought to comprchend all Oaths taken by twelve men if one of the Parties complain thereof. The point of limitations of Actions is reprovable, for the reasons in the Chapter given upon the same matter. The point which forbiddeth falsities and abuses used in Courts before this time to false Judges, who used not the Law by sufferance of falsities. The point of Champions is reprovable, for no Champion is to be receiveable as a witness. The point of not allowing Essoignes in Assizes after appearance, is reprovable by the Assize of Novel disseisin, where no Essoigne is allowable for the Tenants no more before appearance then after, not in no other personal Action. The other points of Essoignes are reprovable, for no false cause of Essoigne aught to advantage any man. The point of delays in Pleas of Attachment is reprovable in many points, accordingas appearethin the chapter of defaults. The point to plead upon the surcharge falleth in prejudice of Sheriffs, and of Lords of Fees, and of Liberties; and although the two points of Disseisins, that is to say, that every one may avoid the damages in the point of personal trespass done to his Ancestors in as much as his Action lieth, of what age soever the Parties be, yet is the first reprovable, for as much as the Plaintiffs have no recovery for the damages done to their Ancestors, not any Action, but to have restitution of the possession. The other point is reprovable for the smallness of the punishment, but according to common right this punishment should have time, that he should never do Homage betwixt them for the Lords forfeiture, when he beginneth to disinherit his Tenant contrary to the right of Homage. The Prayer of the King is reprovable, because he ought to ask nothing contrary to Law, but it is the prayer of the Justices who desire always to have much to do. The point that if he who is vouched to warranty ought not to warrant, although he be bounden by the deed of his Ancestor whose Heir he is, in case he allege that nothing descended to him from that Ancestor by whose deed he is ●ouched is reprovable, for according to the old Law, Lands remained liable to the Debt of those who acknowledged it, to whose hands soever the Lands afterwards came. In the same manner it used to be in all other Contracts, where the Contracts were adjudged or granted; and although nothing descended to the Heir for that he lost not the Tenements for want of Acquittance, and if he who bond himself to warranty would not warrant the Land, not vouch over, it appeareth thereby that the Ancestor was Tenant by a naughty title, and that he was possessor thereof by an ill way; and if the Heir had nothing whereby to discharge him, the Tenements bound to warranty should be recovered. And if the Heir had nothing whereby to discharge, not no Land is found bound to the warranty, if the Purchasor lost his purchase it was at his own peril, and accounted his own folly, the better at any other time to look to his assurance. CHAP. V SECT. 5. Articles upon the Statute of Westminster, 2. THat which is said of the Statute of Westminster 2. which faileth in many cases is now to be understood, for against all Trespasses is the Law made although it be dis-used, or controlled by those who know not the Law. And the three first Chapters are not Statutes, but are the revocations of the Errors of negligent Judges, for the Law permits not that a man make a better estate to another than himself hath, but requireth that every lawful Contract be made according to the wills of the speakers; and that which is in the Statute, that if a Fine be levied in deceit of right, that the same be null is reprovable; but it might have been better said, That for that Fine, that no man be barred of his right, for the Fine levied cannot be rightly said null, but it holds in force, and barreth at the least the Donor of his Action. The point if Distresses doth not repeal any Error, but affirm them, as before appeareth in the second beoke. And that which is said in the second Statute, that Suitors in Counties have no Record, is but abusion, since every lawful testimony is a Record, and every false testimony is a lie; and as lawful may other people testify as the Justices assignned. Is not the same Writ abused, to grant to Counties Records in Outlawries, Pledges, Maine-prises, Battles, Grand Assizes and other Cases, and not other points, and to deny that the Sheriffs or Lord of the Fee, or other to whom the King sendeth his Writ, hath not as well Record of Process before him, as those whom they call justices, is but Error? And as to the causes of Writs of pains is suffered great Error, that that which is not warranted in the Accessary, that he may 〈…〉 in the principal, since the Law permits that none be aided by a lie or a vicious Writ. Of the other side, because there is more realty in the Statute than personalty, as more Attachments are awarded in personal Actions then in mixed and reals. The point of Measnes is reprovable, as to the Proclamation, and as to the non-acquittance of those who hold by less service than the Measnes, for be it that B. hold one hundred pound Land of D. by the service of twenty pound per annum, and the same B. give the moiety thereof in Frankalmoigne, or Frank marriage, or to hold by the service of a Rose to C. if it happen that the same B. forfeited what he hath, by this Statute no remedy is ordained for C. who was purchasor from B. and therefore the old course is to be holden which is said before in judgements. The remedial Statute of the right of the Wife lost by the default of the Husband is reprovable, for the old Law was, that a woman after the death of her Husband should repleeve her Inheritance or purchase so lost, summoning the Tenants, for a Cape is not, but a distress and ejection of season saving every right; and it is lawful for one of the Tenants in common to defend his right where he is damnified by the negligence or the non ability of his Partner. In the same manner may a Woman according to Law in the right of her Husband; neither doth the Law give to Widow's Action to demand Dower in the cases named in the Statute, but in all cases the Law enables her to be received by Lawful reversing of the judgement. And that which is contained that Tenants may vouch to warranty, is but abuse; how holdeth voucher place where a Writ lieth not; yet is it understood with a saving, that no jurisdiction of a judge assigned extend to other Persons than those who are named in the Writ, and that none shall vouch more than in the same Writ are named, by Writ of Replegiare, and therefore are warranties' attainable and determinable by Writs. The Statute following, which Ordaineth new Writs remedialls after defaults, is prejudicial to Lords of Fees, who lose the advantages of their Courts, because that Writs of Right are forbidden in such cases where they wont to be used. Presentments to Churches ought not to be but in the names of those to whom the mere right of the Advowson doth belong, according as is said before in Contracts; and it is error and abusion of Law to endow women of Advowsons', or to Lease them to Farm, or for the term of another's life, or in Frankmarriage, or in Mortgage, or in Fee-tail, or otherwise then in Fee-simple. And those who receive Clerks presented to Churches, in prejudice of those to whom the mere right in Fee doth appertain, are bound to make restitution of the damages, and those who have recovered to Jurours by whom they were certified of the right of the personage; and so it appeareth that the punishment lieth more against the Bishops than the presenters. And that which enacteth long Imprisonment for a punishment, is but abuse; since none is imprisonable if not for a wrongful imprisonment. The Statute of Warranties is but a revocation of Error used against Law. The Statute of Admeasurement is reprovable in many points, as to the Proclamations, since admeasurement and surcharge are to be by Jurours. The Statute of Measnes is reprovable in many points, as it appeareth in the Chapter of Distresses, Contracts, and defaults, and the same appeareth in the end of the Statute where the Plaintiffs know not a set fine. The Statute of suspension of Writs in Eyres is reprovable, as repugnant to the great Charter, which saith, we will sell no Right, nor detain it, and wherefore are Writs rebuttable from heating but for the multitude of Writs which are, and for the small number of Justices the right of many perish. The Statute of obligees in Account is reprovable in many points, one as to the exception to the Persons, for the Masters is ordained recovery, and to Sergeants not, when Auditors are assigned without the consent of the servants. The other, that the Auditors are not tied to allow any thing but at their pleasure without punishment. Another, that the recovery is ordained by detinue of the servants, and not against the Surety, not the goods. Another, that the Lords are not to be Attested according as of the servants. Another, that the wickedness of Auditors remaineth unpunished. Another of Outlawry, for none is to be imprisoned if not for a tortuous imprisonment. The Statute of Appeals is reprovable in two points, one in the specialty of the Corporal punishment, and of the Plurality punishments, since the redemption by a pecuniary pain is but the buying out of the Corporal punishment. The other to have jurisdiction against the Abettors without original Writ. The Statutes of Waste are founded upon Error since waste is a personal Trespass, and requireth other manner of Processes, as appeareth in the Chapter of defaults; and to defend a personal Trespass by Writ is but a vain labour. The Statute of not allowing a false cause in the Essoigne De malo lecti is defective, for in no Essoigne for no Party is any false cause, or any falsity to be permitted, not aught to be profitable to any. The Statute of Debt and Damages recovered is defective, for not only should such remedy be in the King's Courts, but it ought to comprehend in all other Lay Courts. The Statute of those who are dead without Wills is defective, for it ought to comprehend Felons, and Fugitives as well as true men; and the King, and all others into whose hands their goods come as well as Ordinaties, for none can forfeit the right of another. The Statute for allowing one manner of Exception in the like Actions was not needful to have been made if not for the negligence of Justices, for every affirmative is encounterable with his negative at the peril of the party. The Statute of detinue of service is a novelty dangerous to Lords of Fees, as appeareth in the Chapter of defaults. The Chapter of making new Writs had not need to have been made, if the first Ordinances of Writs were observed. The Statute to have remedy by Assize, of Novel disseism is reprovable, for as much as it comprehendeth not Lands charged with Villain Customs, not Lands holden for term of years. The point needed not have forbidden false Exceptions, if the Pleaders held themselves to the points given in charge. And as to the point of Imprisonment, the Statute is reprovable for the reasons aforesaid, and also as to the pain of double damages, for the Law giveth a man no more than is his demand. And that which appeareth in the Statute of false Appeals is more error then right in the enacting the award of amends to Defendants, whereas it is not to the Plaintiffs. And as to the Writ to the use of Sheriffs in Disseisin, it is no Statute, but it is a thing at pleasure, and a wrong. And that which is used to grant Damages in part, or in all to Justices, or to Clerks, or to Ministers, or others should be forbidden, as a usage very full of damage to the people. And as punishments are reprovable in Novel Disseisins, so are they in the Statutes of Disseisins, Corporal punishments nevertheless hold in such personal Trespasses, but in Reddisseisins more than in Disseisins. The Statute which forbiddeth that Writs of Oyer and Terminer be not Ligirment granted is not founded upon any Law, Easily. as being repugnant to the words of the Great Charter, We will not sell or delay Justice to any man; but cometh rather from the remporall judges, who cause the same for their advantages, as desiring to embrace all Pleas. The Statute of Caption of Assizes thrice in the year is reprovable, as to the adjournment of the Parties out of the Counties before the justices of the Bench, who have no jurisdiction over those Pleas, since the Commissions are given to justices assigned. And as to take juries and Inquests in their Counties, so the Statute is not to destroy the Authors and indamage the people. The Statute which forbiddeth justices that they cause not jurours say, but their advice is defective, as appeareth in the Chapter of jurours. The Statute of Exceptions allowables rebutted by justices is not founded upon Law, as appeareth in the judgement of false justices, but is when it is in no part fixed. The Statute of Rape is reprovable, for none can ordain by Statute that a venial punishment be turned into a mortal, without the consent of the Pope, or the Emperor. The Statute that the King hath the Suit in Rape, or in Ellopment of women Married is reprovable, for none is bounden to Answer to the King's Suit if not by Appeal, or by Indictment. And that which is contained in it, That Women should lose their Dower for the sin of Adultery, ought also to comprehend all Adulterers, who claim to hold the inheritances of their Wives by the courtesy of England, so that there be no exception of persons. The imprisonment of the Alloppors of Nuns and their ransom is no Law, but is an error in a double manner, as before is said in many places. The imprisonment for two years or more, ordained for a Corporal punishment to Ravishers of Marriages is but error, for no Corporal punishment ought to be ordained but for common profit, as before appeareth of open Penances. And that which is ordained of Proclamations in personal Actions is but abuse of Law, as it is said in the Statute of Moignes. The Statute which awardeth Ransome is reprovable, for Ransom is nothing else then the redemption of Corporal punishment. The Statute of Distresses made by Baylisses unknown is distinguishable, for in torrious Distresses without warrant the judgement of Robbery holdeth; and by warrant is every one receiveable, whether known or unknown. The Statute of jurours is reprovable, for the Law wills that the Plaintiffs have the aid of the Courts to cause the Witnesses to appear, whereby they may the more lawfully help themselves without distinction of persons. And that, that jurisdiction is granted to Justices assigned to Oyer and Terminer Plaints, without a special Commission is but abuse. The Statute which awardeth that Writ of Judgement be made without warrant of original Writ is nothing else then a Licence to falsify the King's Seal. The punishment of Sheriffs ill answering is reprovable, as to the punishment; for dis-inheritors of the King offend of the crime of Majesly, and are by consequence punishable by death, which ought not to be in such cases. And as to issues the Statute is reprovable, for no issues are awardable but after defaults in Actions mixed, and not to the King's use, but for the profits of the Plaintiffs. The defaults made of the Statutes of Clerks, Criers, and other Officers of the Court are but idle, because they a●e not kept at all. The Statute that Cognisances and Enrolements which are made in the Chancery, the Exchequer, and before justices be established is an Authority of great ill; for by false enrolements might every one in Authority destroy those he pleased, which should be a great inconveniency. Again, by this Statute Authority should accrue to Authority to the Chancellor and others to falsify the King's Seal by Writs, to give judgement without original Writs. And therefore note, that none but the King can receive Arturnies in the King's Court, nor recognitions betwixt Parties without warrants of original Writs. The Statute of improvements of wastes and commons of Pasture is reprovable, and distinguishable according as hath been said before. The Statute to have view of Lands is but a wrongful delay of the right of the Plaintiffs; for the View appeareth sufficient by the Certificate of the Summons, upon what Tenements the Tenants are summoned. The Statute which forbiddeth that no Officer of the Court take any presentment of any Church, not other thing which is depending in Plea, or in debate is not kept. Reprehensions upon the Statute of Gloucesier, 16. E. 1. THe Statutes to recover Damages in Pleas of possession enacted at Gloucester or else where, and of the horrible damages in waste are reprovable, for that the Law giveth one no more than is his demand, and therefore it behooveth that the damages be mentioned in the Writs if damages shall be awarded; for a Judge cannot exceed the points of his Commission, and so it would be needful to use it according to the first Ordinance of Writs. And the Statute of Tenements alliened of Lands in prejudice of others is reprovable, for the remedy ought to be such as of Guardians allienors, to the dis-inherison of the right Heirs. The Statute of Trespass pleaded in Counties is reprovable for want of distinction, for small Trespasses, Debts, Covenants broken, and such other kinds not exceeding forty shillings. Suitors have power to hear and determine without Writs, by warrant of jurisdiction Ordinary, and by Writs granted afterwards; for Sheriffs have more jurisdiction in their Writs vicontiell than Justices of the Bench by the Pone. And as to the recovery of twenty shillings or more in right of Essoigne of the King's service not warranted the Statute is reprovable; for that Essoigne might be cast where the Defendant would make default by the adverse Party, and so he should have advantage of his malice. The Statute which forbiddeth the abatement of Appeals is not observed. The Statute which awardeth an innocent man to remain in Prison, or to have no manner of punishment for necessary Manslaughter; or by mischance, where no offence is found, is but an abusion. The Statutes making mention of London ought to extend commonly throughout the whole Realm. CHAP. V SECT. 6. The reprehensions of Circumspectè agates, An. 13. E. 1. THe first point which saith, That the King's prohibition holds not in correction of mortal offences where a pecuniary pain is enjoyneable by Ordinaries, is founded upon open error, and usage to enjoin a pecuniary pain for a mortal offence, notwithstanding to destroy the King; jurisdiction. The other points to compel the Parishioners by corrections to enclose Churchyards, to offer, to give Mortuaries, moneys for Concessions, Chalices, Lights, Holy Vestments, and other adornment of Church; are more grounded upon interest then amendment of souls; and note, that after that they are offered to God, that they are so spiritual that they are to be expended but in Alms, and spiritually, for they are never to be converted to Lay uses. And then if any Parishioner for the hurt of the Parson of the Church keopeth back his Tithes, or stealeth them away, or doth not pay them duly or fully, the same is not punishable by a pecuniary pain, but by a corporal punishment. For the Excommunicate no pecunial pain was to be for restitution or satisfaction, no more then of a Pagan or a Jew, and if they do demand a pecuniary pain, there the King's Prohibition lieth, and much more in the demand of Pensions, or of damages of Trespass, or of defamation; but of Pleas of correction where one Pleads only Pro salute anima, the King's prohibition lieth not. CHAP. V SECT. 7. THe new Statute of Debts is contrary to Law, as it appeareth in the Chapter of Contracts; for every imprisonment of the body of a man is an offence if not for tortuous Judgement, and the Law will not suffer any Obligation, or vicious Contract by intermixture of offence, and therefore it was to be avoided as grounded upon an offence; for no honest man ought to agree to such a Contract which causeth him to offend, or to be punished. Again, it is contrary to the Great Charter which enacteth, that no man be taken, nor imprisored if not by the lawful judgement of his Peers, or by the Law of the Land. Here endeth the Mirror of Justices, of the right Laws of Persons according to the ancient usages of England. The end of the fifth Chapter, and of the whole Book. FINIS. THE BOOK Called, The Diversity of Courts, And Their Jurisdictions. Written by an unknown Author in the time of King Henry the Eighth, in the French Tongue. Wherein many necessary and profitable things eaten contained. Translated out of the French Tongue into English for the use of many. By W. H. of Gray's Inn Esquire. Imprinted at London for Matthew Walbancke, and are to be sold at his Shop at Gray Inn gate. 1646. The Book called, The diversity of Courts, and their Jurisdictions. IT is to be understood that the King is the fountain of Justice, and to that purpose ordaineth Judges, that Justice be administered to all his Subjects. The King himself for the excellency of his Person may fit and give Judgement in all Causes personal or real, betwixt Party and Party, but he cannot fit in Person in Judgement in any Cause where he himself is Party, or where the things of his Crown or Dignity are concerned, as upon an Indictment of Treason, or upon as appeal of Murder or Felony, or upon an Action brought by himself, as Formdon of Land, of which the right is descended to him from a colaterall Ancester, or in an Action of Debt, by reason of the affection moving him to be favourable to himself; and therefore he maketh his judges to sit and hear such matters in difference, and to do justice to the parties. And the place where the Judges sit to minister Justice are called Courts, which are of divers kinds, and the Judges thereof have several Authority. Of the Court of marshalsea. ANd first, the Court of marshalsea is an ancient Court, and made for the well government and ordering of the King's house, for the preservation of the King and his Servants; and this Court hath its bounds within which it hath jurisdiction, and not without. The judges of this Court are the Steward and Marshal of the King's house, for in them under the King is the ordering of the household, etc. The title of the Court is, Placita Corone aula Hospitii Domini Regis leat coram seneschalle & mareschallo hosp●●●i Domini Regis, etc. And this Court hath power to inquire of Treason, Murder, and Felony, and to take Appeals of them, and of Mayhem if they be done within the Verge, betwixt persons who are of the King's house. And if one of the household Sueth another who is not of the household, he may plead to the jurisdiction of the Court; and if they will not allow of the Plea, he shall have a Writ of Error, and the judgement shall be reversed in the King's Bench. And if one of the household sueth another of the household, and the Plaintiff be put from his service depending the Suit, the other shall show the same and abate the Writ; but quere if it be so, if in case the Defendant be removed out of service, etc. The Coroner of the marshalsea shall fit with the Coroner of the Country upon the death of a man, and if the Plea may be determined before the King remove out of the Verge it shall be; otherwise it shall be at the Common Law. The King's Bench. THere is another Court of high Authority called the King's Bench, and the judges of that Court have Authority to inquire of, hear, and determine Pleas and things touching the Crown; as High Treason, Murder, Manslaughter, Robberies, Felonies at the Common Law; and by Statute Law, Mayhems, Trespasses, Burglaries, and all deceits and falsities whatsoever; but they have not authority to hold Plea betwixt Party and Party by original Writ but in special cases. They have power to proceed in and determine Indictments, and Presentments taken within any County within the Realm where the King's Writ runneth, if it be certified by Certiorare, or be delivery under the hands of the justices of the Peace, or other justices before whom the Indictments or Presentments be; whether it be of Treason, Felony, forcible entre, Riot, or any other thing against the Peace; and they have Authority to reverse judgements given in the Common Pleas by a Writ of Error, or before justices of Assize, and in Liberties and Franchises but not in London; for a Writ of Error, of a judgement given before the Sheriffs of London shall be reversed before the Major in the Hustings. And erroneous judgements given before the Major in London shall be reversed at St. Martin's before special Commissioners assigned to that purpose; and thereupon a Writ of Error shall be directed to the Major to have the Record and proceed thereof, and the Record shall be certified by the Recorder, etc. And it is said, that if an erroneous judgement be given in Ireland, it shall be reversed in the King's Bench by a Writ of Error, for that in Ireland the Laws of England are used. And if an erroneous judgement be given in the Cinque Ports, it shall be reversed in the King's Bench, and the Writ shall be directed to the Warden of the Cinque Ports, and he shall return the Writ and the Record, etc. The King may have a Formdon in the King's Bench, Debt, Detinue, and every other Action, and a Quere impedit at his pleasure. And a common Person may bring an Action of trespass Quare vi & ermis in the King's Bench, and Actions for forging of false Deeds, maintenance, Conspiracy, Actions of deceit upon the case, or supposing any falsity and deceit, where the King shall have a Fine, etc. And note that there are some Actions upon the case which shall be sued in the King's Bench, and some not; as an Action upon the case against one supposing that the Defendant hath sold Land to the Plaintiff for a certain sum of Money, and that he covenanted to infeoff him by such a day, and not by any Deed, etc. Or to build a house such a day, and did not do it, & e. such actions shall be brought in in the same Court; but there are other Actions upon the case, which shall not be brought in the King's Bench; as if a Horse be stolen out of the common Inn, an Action upon the case lieth against the Hosteler, but not in the King's Bench, as it is said. And so it is where a man is so bounden to keep his fire, that the same hurt not his Neighbour's houses, etc. And note, that the chief justice of the King's Bench is made by Writ, and not by Patent, and it is to this effect; Rex dilecto & fidel. fuo. I Fitz-Iames Saltem, Quia volumus quodvos sitis capital. justiciar. noster ad placita corem nobis tenenda vobis mandamus qnod officio illi intendatis, but he shall be sworn by the Chancel or of England before he take upon him his office. The other justices of the same Court are made by Patent, viz. by these words; Constituimus etc. unwn justitiorum nostr. ad placita corum no bis tenenda, habend & occupand officium illud quam diu nobis placuerit. And if a King maketh a judge to hold and enjoy the said Office by himself, or his sufficient Deputy for life, the grant is void as to the Deputy, and if the grant be to him and his Assignees, he cannot make an Assignee, etc. The Common Pleas. ANd note, there is another Court called the Common Pleas, which Court hath jurisdiction to hold Common Pleas, as well personal Pleas as real, or any other Precipe quod reddant, of Lands or Tenements, &c, of Debt, Detinue, Account, and other personal Actions; and they have power to hold Plea of any of those Actions, which may be brought in the King's Bench as Actions of Maintenance, Conspiracy, Forgery of false Deeds, and Actions upon the case, and trespass against the Peace, of such Actions wherein the King ought to have a Fine, and also of Attaints; but they have not power to hold Pleas of Appeals of Murder, Rape, Felony, Mayhem, nor to inquire of them, nor of Riots. And it is said, That one may Sue the Peace against another before the justices of the Common Pleas, and if the Party be in the Hall, or in the Place, or within their View, they may send the Warden of the Fleet to bring the party before the justices to find Sureties, or else commit him to the Fleet; and the reason why they may so do is, that good order, and the Peace be kept about the Court; but the justices have not power to award Process to the Sheriff to Arrest the party to appear in the Court where the Common Plea is; but it is otherwise of the King's Bench, as it is said, etc. And it is said, That the justices of the Common Pleas have jurisdiction in some things which touch the Crown, and to inquire and hold Plea of some felony, and also of misprision, and of deceit done within the Court, and within the Record thereof. And if one embezzle a Pannell after the Enquest passed, and judgement given in the Common Pleas, by which the judgement is reversable by Error for want of that Pannell; the justices of the Common Pleas have power to inquire of the embeselment of the Pannell by 12. of the Officers and Attorneys of the same Court, and they shall be sworn before the justices to inquire of that default; and if they indite the embesselors they shall be Arraigned thereupon, and shall be compelled to answer thereunto as other Felons, etc. and if they be attainted they shall forfeit their goods and chattels, tamen quaere, etc. And if one be condemned in Debt, or trespass in the Common Pleas, and he be in the Hall, the justices at the prayer of the Plaintiff may send the Warden of the Fleet to bring him before them, to satisfy the party the money, or otherwise commit him to the Fleet. And when he appeareth and will deny that he is the same person, then Quaere what shall be done, if the Justices may commit him to the Fleet or not? And some say not, for that they know him not as Judges, but as other men by information of the parties; and the Plaintiff cannot maintain that he is the same person, because he cometh not in but by information of the party Plaintiff, & not by Process of Law; Quaere what is to be done in that case? And see another difference betwixt the Judges of the one Bench and of the other, for it is said, That if the Judges of the King's Bench do award Process in a Formedon, a Writ of right, or execution of Land recovered in value, the Sheriff ought to execute the Writs although they have not any jurisdiction therein. But if the Judges of the Common Pleas will grant Process of Treason, etc. out of their place, the Sheriff ought not to execute the Process, for that authority is only of Common Pleas, etc. The chief justice of the Common Pleas is made by Patent, viz. by these words- Constitutimus i●●●mcapital. justiciar. nostrum de Coi Banco, etc. Habendum illud own feodis vadiis & regardiis, eidem officio debit & con●suet. And the other judges of the same Bench are made by Letters Patents, etc. The Chancery. ANd note, that the Court of Chancery is a Court of a high nature, out of which Court issue all original Writs, and there a man shall traverse Offices and such things; and in that Court women who are widows to the King shall be sworn that they shall not marry without the King's Licence, before the time that they be endowed; and it is said, That of error there upon a Patent, or a Traverse, the same cannot be reversed else where but in Parliament, Quaere etc. And in that Court a man shall have remedy for that which he hath no remedy at the Common Law; and it is called by the common people, The Court of Conscience. And therefore see of matters in Conscience, how the party shall have remedy. If a man hath feoffs to his use, and maketh his Will, and thereby willeth that his feoffs should make an estate to I. for term of his life, the remainder to C. in Fee; if the said I. will not take the estate what remedy is for him in the remainder, in conscience, and how he shall help himself in Chancery, etc. A man shall have remedy in Chancery for Covenants made without writings, if the party have sufficient Witnesses to prove the Covenants, and yet he is without remedy at the Common Law, etc. And for Evidences, when a man knows not the certainty of them, nor in what they are contained; it is usually to be relieved in Chancery, for he is without remedy by the Common Law, etc. If a man infeoffeth another of certain Lands to his use, and the Feoffee selleth the Land to another, if he giveth notice to the Vendee at the time of the sale of the intent of the first Feoffment, he is bounden to perform the will of the first Feoffer, as it seemeth in the Chancery. A man was bounden unto another by Obligation in a certain sum of money, and the Oblgee brought an Action upon the same Deed in another County then where the Obligation was made, and had judgement to recover; and the Obligor in Chancery sued to be relieved, and it was surmised that by that foreign Suit he was outed of divers Pleas which he might have had, if the Action had been brought in the County where the Obligation was made, and it was conceived a good matter to relieve him in equity. In the Court of Chancery a man shall not be prejudiced by mispleading, or for want of form, but according to the truth of the Cause judgement ought to be given according to equity, and not Ex rigore juris. And note that there are two jurisdictions, Ordinary, and Absolute; Ordinary is as positive Law, and Absolute is Omnibus modis quibus veritas sciri poterit. If a man be bounden by Obligation unto two men unto the use of one of them, and one of them viz. is he to whose use it is not, releaseth to the Obligor all Actions, so as the Obligation is discharged, he to whose use the Obligation was made hath good remedy in Chancery by Subpoena against his companion who released him, but against the Obligor it seemeth he hath no remedy, for every man is bounden to help himself, and it is lawful for a man to get a discharge of that which he is charged withal, and in danger to others. And if a man hath recovered against another debt or damages, and he hath paid the same without any Acquittance, or without having a release, and notwithstanding the party taketh execution against him upon the same judgement, he shall have no remedy by the Common Law; and it was then said by the Chancellor that he shall not have any remedy in equity in this case; and if the same should be remedied in equity, than every Record should be examined before him, and thereby the Common Law overthrown. And if I do infeoffee one upon trust, and the Feoffee doth infeoffee another of the same Land upon trust, Quaere if I shall have a Subpoena against the second feoffee, but where he is enfeoffed bona fide, there the first Feoffer is without remedy against the second Feoffee, as it seemeth. It is said, That the Chancellor of England wheresoever he shall be in England, hath power to command a man to prison, and he shall not be bailed; Quaere whether the justices of the one Bench, or of the other, out of their Courts have the same authority or nor. The Exchequer. THe Court which is commonly called the Exchequer, is properly for Accomptants, Sheriffs, Escheators and the like, and there they are compellable to make their Accounts according to the usages and customs of the same Court, etc. and it seemeth to be a Court which is much for the King's profit, for there all remedies are provided, how the debts and duties to the King shall be levied. And in that Court the Barons are judges betwixt the King and his Subjects, and they are sworn thereunto; and Fines, Issues, and Amercements which are assessed in other of the King's Courts, the estreates shall be made thereof to the Court of Exchequer, and there they shall write forth Process against the parties to answer thereunto, and to satisfy the King what is due to him, and of divers other matters they have power and authority by reason of their Office, etc. The Cinque Ports. THere are also divers other Courts, and inferior places where justice is ministered, and in those places they have judges, as in the Cinque Ports, and such places which have Counsans of Pleas, and also in Court Barons, in which Courts is justice done according to Law, etc. And although they of the Cinque Ports ought to be empleaded of their Lands within the jurisdiction of the Cinque Ports, yet that holdeth only where the Tenant showeth the same, and taketh advantage thereof if he be impleaded in the King's Courts of things which are within that jurisdiction; but if the Tenant be sued in the Common Pleas for Lands within the Cinque Ports, if the demandant doth recover by default, or if the Tenant appear, and plead any matter which is found against him, so that the demandant hath judgement for to recover the Land, that judgement shall bind him for ever, etc. But the Tenant might have alleged, That the Land was within the Cinque Ports, and by such Plea the King's Courts should be outed of the jurisdiction, etc. And so it is of Lands within an ancient demeasne, if a Writ be brought thereof in the Common Pleas, if the Tenant appeareth and pleadeth, and doth not take exception to the jurisdiction, and the Plea be found against him, so that the demandant recovereth, the Tenant shall not reverse the judgement by a Writ of Error, because the Tenant might have taken exception to the jurisdiction of the Court, and it should have been allowed, etc. But yet the Lord may reverse that judgement by a Writ of deceit, and shall make the Land ancient demeasne as it was before, etc. And if one hath Counsans of Pleas in a Town, or in a Manor, and a Writ is brought in the Common Pleas of the same Land, and the Tenant pleadeth, and judgement is given against him, the recovery is good, for it is within the power of the King, and the Writ of the Common Pleas doth take place there; and if the Bailiff, or Lord doth not demand Cognusans the judgement is good. But in another Action the Bailiff shall have Cognusans for that the nature of the Lard is not changed, and so see that where a man hath counsans of Plea, etc. it ought to be demanded by the Bailiff, or the Lord, and the Tenant shall not demand the same if he be impleaded in the King's Court; but of the ancient demeasne there it behoveth the Tenant to show the same, and plead to the jurisdiction, etc. if he will have advantage thereof, etc. And so note, that in the Cinque Ports there is such a liberty that the Lands and Tenements are pleadable there before the Barons, etc. and yet if one be impleaded at the Common Law of Lands within the Cinque Ports, the Barons shall not have Counsans of the Plea, but the Tenant may plead the same to the jurisdiction in abatement of the Writ, etc. The Court Baron. NOte also that there is another Court which is called Court Baron, in which Court the Suitors are the Judges, and not the Steward; and they hold plea of Contracts within the jurisdiction, etc. and yet it is said by some, That the Defendant shall not show that the Contract was made out of the jurisdiction, and pray that the Plaintiff be examined as in a Court of Pipowder. The Judges of the Court Baron have Authority to hold plea before them of Debt upon Contracts, or Detinue, but not of detinue of Charters, nor Actions of debt upon a judgement in a Court of Record, but otherwise I think it is of a recovery in the same Court; nor shall they hold plea of Maintenance, forgery of false Deeds, of deceit, not of Decies tantum, not of pleas of Accounts, for they have not authority to assign Auditors. They shall not hold plea of Debt above the sum of forty shillings, unless it be by prescription; and they shall not hold plea of by plaint, but by a Writ of right they may. But if a judgement be given of upon a plaint, it is said it is good until it be reversed by a Writ of false judgement, tamen quaere, etc. And note for what Suit a man shall be judged in a Court Baron, and it is said, That it is where a man is seized of Lands in Fee-simple, and which he holdeth by service of Suit at the Lords Manor, that Suit is properly Suit-service, and for such Suit he shall be judged in a Court Baron, and for no other Suit as it is said, etc. And quaere also, when erroneous judgements are given how they shall be reversed, viz. when by Writ of false judgement and when by a Writ of Error. And some say, That in all Courts where the party might remove the plea by a Recordare upon a judgement given, in such Courts a Writ of false judgement lieth; as in ancient Demean, Court Baron, County Court, and Hundred; but in other Courts which are of Record the plea shall be removed by a Certiorare, and upon judgement given in such Courts which are of Record, it shall be reversed by a Writ of Error, etc. And if a man recovereth in a Court of Record by erroneous judgement, and Sueth not Execution, some say, That a Writ of Error lieth, and the party shall have a Supersedeas if he will pray the same; but if a man hath judgement in a Court Baron, and taketh not forth Execution, no Writ of false judgement lieth: Quaere the reason thereof, and what the Law is in that case. And note that sometimes the Sheriff is Judge, as in Reddisseisin, Wast, and Admeasurement, and the Process shall be served by the Bailie as is said. And note that the Sheriff is an Officer ●o the King's Court, to execute the Process thereof; yet sometimes the Coroner is the Officer to the Court where defect is found in the Sheriff, etc. so that he cannot by Law indifferently execute the Process as for divers apparent causes, yet if the Sheriff dyeth the Process shall not go to the Coroner, but shall stay till another Sheriff is chosen, etc. And because the Sheriff is an Officer appointed by the Law to attend the King's Courts, a man shall not take an Averment against the return of the Sheriff directly, and the reas●n is, because where Justice ought to be ministered and executed, those who have the Government of the Law ought to repose trust and confidence in some person, and if every one might aver against that which the Sheriff doth, than Justice should not be executed, but should for ever be delayed, etc. The means and the remedy how a man may come to his due, and to that which is wrongfully kept from him, and that is by plea, and this word is general, and hath divers effects employed therein, and may be divided into divers branches, viz. Into pleas of the Crown, as appeals of Death, Robbery, Rape, Felony, and divers other things, etc. and into Actions real, whereby Lands, Tenements, Rents, and other hereditaments are demanded, as Writs of right, Form on, etc. Or Actions possessory, as Writs of Entre, Assize of Mortdamester, Cozenage and the like, etc. And it may also be divided into Actions personals, as Debt, Trespass, Detinue, etc. and into Actions mixed, as into Assizes, and Actions of waist which are as well in the realty as in the personalty. A personal plea may be divided into two parts, one into a mere personal plea, as an Action of debt, detinue, where none hath interest but the parties themselves; the Plaintiff and the Defendant. And the other part is mixed in the Crown, the Plaintiff and the Defendant have not the sole interest in those Actions, but the King hath an interest in them also to have a fine; as in an Action of Trespass, Vi & armis, and that is an Action mixed with the pleas of the Crown, etc. And note that in matters of the Crown, for such for which a man shall suffer death, some may be principals and some accessories, as Murder, Felony, Rape, and the like; but in High Treason I conceive all are principals, & in petit treason there may be principal and accessary as well as in felony In a Praemunire all are principals, and in cutting out of Tongues, and putting out of Eyes there may be an accessary as well as a principal, as is said, etc. In Robbery all are principals who are present at the time of the Robbery done, otherwise it is in Mur●et; for if one be present and doth nothing he is an accessary, and not a principal, etc. In Mayhem some say, that all are principals, as well he who is comforting and abetting as he who giveth the Mayhen; as it is in Trespass, tamen quaere, for I conceive the Law to be contrary, etc. And it was said, That if a man be present at the death of a man, and moveth another to kill the man, that he is a principal, notwithstanding that he giveth him not any stroke, and notwithstanding that the Count in every Appeal is, That every principal did mortally strike and wound him, etc. but those are words of form, and the blow of him who struck is the stroke of him who commanded him when he was present. And it is to know that for such things for which a man deserveth death, there are two ways to bring him to answer the same; one by Appeal, which is at the Suit of the party the other is by way of Indictment, which is at the King's Suit, etc. And for a Mayhem the party shall have an Appeal of Mayhem, wherein he shall recover damages, and no death shall follow, etc. and see the Appeal following, and first of the Appeal of the death of a man, etc. An Appeal of Murder. IH. hic instanter appellat W. F. de morte H. C. fratris sui, per eo quod cum predict. H. fuit in pace Dei & Dom. regis apud D. tali die, hora, & anno. tibi venit W. F. uti felo Dom. Regis, in assultu premeditat vi & armis, etc. Et in ipsum H. ad tunc & ibid. felonicè insultum feoit & cum quodam gladio precii 12. d. quem ipse in manu sua dextra ad tunc & ibidem tenuit predict. H. super caput sunt percussit & unam plagam mortalem in longitudine duorum poduwn in auteriori parte Capitis suo usque ad cerebrum eidem H. adhunc & ibid. felonicè dedit, de qua quidem plaga pred. H. per 3. dies kunc proximè sequentes languebat & tunc ibid. obiit; or immediate obiit. Et sic idem Ichanes ut felo Dom. Regis pred. H. folonicè interfecit & mundravit contra pacem dicti Dom. regis, Coronam & dignitatem suas, & quod hoc feo it nequite, & ut felo contra pacem Dei & Dom. Regis, pred. johannes offered hoc disrationar prout curià Dom. Regis hic censideravit, etc. And it seems the Appeal of Murder ought be be brought within the year and a day after the death of him who is murdered; and in an Appeal the party hath two issues, to put himself upon the Jury to try if he be guilty or not, or to wage Battle, and to make the Battle with the Appellant; and if he do gauge Battle he ought to design the battle in his proper person, and by no Champion. But it is otherwise in a Writ of right, etc. And there are divers causes to ouste the Defendant in the appeal of Battle, for it is said, That if an Infant within age bringeth an Appeal, and the Defendant showeth that he is within age, etc. the Justices have been of opinion that he shall be put to answer the Appeal of the Appellant being within age, and the Defendant hath lost the advantage to wage the Battle, because it was his own Act. And I conceive that if a Woman bringeth an Appeal of the death of her Husband against another, the Defendant shall lose the advantage of Battle; for he cannot Combat or deraigne the Battle with a Woman, etc. And if a party be indicted of the Felony or Murder, etc. he shall not wage battle. And see that in an Appeal of the death of a man against two, the one as Principal, and the other as Accessary, and they waged Battle, and the Plaintiff demurred upon the plea, and it was said, That the Accessary should not be put to answer till the Principal was attainted or acquitted; yet it is said, That the Accessary should answer presently, but the issue should not be tried till the Principal were attainted or acquitted; and if the Principal be acquitted the other issue should not be tried. And I conceive that in every case of Felony where a man is indicted as Principal, and afterward hath his pardon, or forjureth the Realm, that in those cases and the like the Accessary shall not be arraigned, because that when the Principals life is pardoned in what manner soever it be, the Felony is determined, and by consequence acquitted, and by the same reason the accessary is discharged. But Quaere what the Law is if the Principal have his Clergy. And see that where there are three Brothers, and the middlemost killeth his eldest Brother, the youngest Brother shall have the Appeal, and yet he is not his Heir. The same Law where the eldest Brother killeth his Father, the youngest shall have the Appeal if there be but two Brothers. And where the Wife killeth her Husband, the Heir shall have the Appeal as it is said. Quaere what the Law is in the cases before, etc. And the Process in an Appeal of death is one Capias, and one Exigent, etc. but in an appeal of Robbery, an appeal of Rape and Mayhem, the Process is two Capias, and one Exigent, etc. And note that a man can never have an appeal of Robbery, Rape, or Mayhem by descent, for the same shall never descend; but it is otherwise of Murder. And also note, that the appeal shall not abate, if in the Declaration be the year, day, and other time when the Felony was done, and it shall not abate for want of Fresh-suit, if it be not within the year and the day, and that is by the Statute of Gloucester, etc. In an Appeal if the Defendant plead that the Plaintiff is a Bastard, and he is certified to be mulier, yet the Defendant shall be received to plead not guilty, because at the beginning when he alleged Bastardy, he might have pleaded over to the Felony, because he demanded another trial, for the one is tryable by the Record, and the other by Enquest. But of such matter which is tryable by Enquest if he pleadeth to the Felony, all the same shall be tried by one Trial, and by one Enquest. In an Assize, if the Tonant allege Basterdy in the Plaintiff, and the Bishop doth certify muliarity, yet the Assize shall be taken to inquire of the seisin and disseisin; quaere. And quaere if a man in an appeal plead a plea which is tryable in another County, if he shall plead over to the Felony, because he demandeth two Trials. Appeal of Robbery. THe Writ of Appeal of Robbery beginneth thus: A. B. nuper de London generosus, attackiatus fuit ad respondendum, R. F. generoso simal cum D. nuper de F. in suburbiis London, de robberia & pace demini regis nunc fracta, unde eos appellat, & sunt plegii de prosequend. A. D. et C. Et unde idem R. in propria persona suo instanter appellat pred. C. A. de eo quod ubi idem R. fait in pace dei et Domini Regis nunc apud London, viz. in parochia sancti Dunstani in Fleetstreet in suburbiis Londonj or, apud talem villam in tali Comitatu, 20. Octobris Anno Regni Regis nunc 17. circa horam septimam post meridiem ejasdem diei venurunt tam pred. W. I. et K. qui modo non comparent, quam pred. A. qui modo comparet, felonicè ut felones Dom. Regis nunc insidiando et insalt praemedatas contra● pacem Regis nunc coronam et dignitatem suns die, anno, hora parochia, et wardo pred. or villa et come. prelict. Et pred. W. unam galeam precii 26. s. 8. d. et unam crateram argenteam et deauratum precii 40. s. de bonis et catallis pred. R. ad tunc ibid. invent. felonicè furatus est, caepit et asportavit. Et pred. C. A. et I. K. die, anno, parochia et warda pred. or vile et comitatu pred. felonicè confo●taverunt, sustentaverunt et auxaliaverunt pred. W. ad feloniam pred. in forma pred. faciend et perpetrand ac eum tunc et ibidem ad feloniam illam factam, sciente eum feloniam illam sic fecisse receptaverunt. Et quam citò idem felones felonias, predictas in form● predicta fecissent, fugierunt, predictus R. eos recenter insequitus fuit de warda in wardam (if the Appeal be brought in London) or the villa In villam, (if it be brought in any County) usque ad quatuor wardas propinquiores. Et alterius quousquae, et c. Et si predictus felo qui modo comparet feloniam predictam vult contradicere, predict. R. hoc paratus est verificare et versus eum probare prout curiae, etc. And the like Declaration is in burning of Houses, and of Burglary, mutatis mutandis. And the Defendant in this Appeal shall have the same trial as he shall have in the appeal before rehearsed, to put himself upon the issue tryable by the Enquest, or to wage Battle if he pleaseth. But there are certain things which shall put the same from that advantage, that he shall not wage Battle, etc. viz. If the Defendant be indicted of the same felony, etc. and if the Plaintiff be may hemed by the Defendant, or by another as I conceive; or if the Defendant be taken in the manner, or if the Plaintiff be within age, or above the age of forty years; or if the Plaintiff be a woman or the like. And note that if the appeal of Murder, Robbery, or Rape be brought in the King's Bench, and issue be taken before the Justices of Assize, if the Plaintiff be nonsuit they have not power to arraign the Defendant; but if the appeal be brought before them, and afterwards the Plaintiff is Nonsuit, it is otherwise as it is said. And there is another difference when a man is arraigned at the King's Suit, and when at the Suit of the party; for if he be arraigned at the King's Suit, he shall be put to answer the Felony, whether he be of that name or of another name; and it shall be no plea for him to say, That he is not of that Surname, nor known by such a name, but by another name; for if a man killeth another and is indicted thereof, he shall answer to the Felony, and shall not be admitted to plead misnosiner; but if it be at the Suit of the party it is otherwise, as if a man bring an appeal against another, there he shall be admitted to have the plea, and that is the difference. Note that if a man bringeth an appeal of the death of a man who hath lawful cause to have the appeal, and after Declaration he is Nonsuit, the Defendant shall be arraigned a new at the King's Suit; but if the Heir of the dead sueth the appeal, his Wife being alive, and after Declaration the Heir is Nonsuit; the Defendant shall not be arraigned a new at the King's Suit, because that none could Sue the appeal but the Wife, and so the Declaration was with●●t warrant. And quaere how that matter may appear to the Court. And if one be acquitted in Appeal, or indictment where in there is no error in the Original; he shall be arraigned De novo at the King's Suit, although that error be in the Capias or Exigent. But if error be in the Original, and he is acquitted, he shall be arraigned De novo at the Suit of the King, because that his Arraignment was never warranted but without warrant; for when the King is ascertained of a Felon, and of the day and year, if the Felon be not lawfully acquitted of the same Felony he shall be arraigned at the King's Suits. But if he be once lawfully acquitted of the Felony, he shall never put his life in hazard again for the same Felony, if it be not for Murder, in which case it is said, That if a Murderer be acquitted within the year at the King's Suit, he may be afterwards in an appeal arraigned within the year at the Suit of the party, etc. And if an appeal of Murder be brought before the Sheriff and Coroner in the County, it is said, That it may be removed into the King's Bench by a Writ, which shall be directed to he Coroner, and not to the Sheriff, because that the Coroner hath the Record; yet I think the Law is otherwise. And if one be indicted for Murder, and afterwards an appeal is brought against him, and after Declaration the Plaintiff is Nonsuit, the Appellee shall be arraigned at the King's Suit upon the Declaration, and not upon indictment, as it is holden in 4. E. 4. Note that it was said by some Justices in times past, That in every case where the Defendant pleadeth a matter, whereby he proveth that the action doth not lie for the Plaintiff as Bastardy, or never accoupled in loyal Matrimony, etc. there he need not to answer to the Felony; but if he pleadeth a release in Bar, than he ought to plead to the Felony, because it is not denied by him that the Action once lay for the Plaintiff, for when he pleadeth to the Felony than he confesseth that the Plaintiff is such a person who can maintain the action; yet it was said to the contrary, That he shall not plead to the Felony infavorem vite, where otherwise if the plea were found against him he should be attainted, and the Felony not enquired of, and that seemeth to be both reason and Law, etc. And note, that when a man is found guilty for Murder, or Felony, etc. for which he suffereth death, he may pray his Book to save him if he be a Clerk, and shall have it if he can read. But if that Bigamy at another time convicted be alleged against him, and proved, than he shall not have his Clergy. And it was said, That if the Ordinary refuseth a Clerk generally, or specially, that the Judge may compel him to accept the fellow. But the old Law was, That if the Ordinary had refused him specially, as to say, Non habet vestem Clericalem, non habet consuram; yet the Judge might compel him to accept of him. But if the Ordinary do refuse him generally, the Judge cannot compel him to accept of him, because there may be some cause wherefore the Ordinary by the Law of Holy Church ought not to receive him. But that opinion as it was said, was altered in the time of William Hussey, and his reason was, That if this Judge be his Judge where the Ordinary refuseth him specially, it is as great reason that he shall be his Judge where he refuseth him generally. And see, that those who are so attainted of Murder, or of other Felonies, and for such things as they shall suffer death, they shall forfeit their Lands and Tenements, and their goods and chattels for ever, and the King shall have the Lands for a year and a day, and then the Lords of whom the Lands are holden shall have them. But he who is attainted of Treason, the King shall have all his Lands, as well those which are holden of other Lords as those which are holden of himself, etc. And if a man hath Land in the right of his Wife, and is attainted of Felony, the Land shall be forfeited for the term of his life; and it was said, That if before the Attainder, he and his wife were disseised, and afterwards he were attainted and restored to the King's peace; yet they could not have an Assize, Tamen quaere. Appeal of Rape. NOte also that the Appeal of Rape beginneth thus: Robertus Wood nuper de A. in Comita●● Salop Clericus, dict. R. W. nuper de A. in comitatu predict capellanus Rector Ecclesie patochialis de A. in comitatu predict. Or thus; Nuper de D. in comitatu predict gent. alias dict. R. S. nuper de D. in come. predicto yeoman attach●atus fuit per corpus saum, ad respendendum Alicie. G. de rapiu ipsius Alicie, & pa●e Dom. regis nunc fracta, unde eum appellat. Et sunt plegii de prosequend. A. D. de C. in commit. C. gentleman, & E. I. de M. in comitat. C. yeoman, etc. Et unde eadem Alicia in predict persona sua instanter appellat predict. R. W. de eo quod ubi predict. Alicia fuit in pace dei & Domini Regis nunc apud A. in predict. in commit. Salop, 8 die mensis Maii ann. Regni Dem. Regis, 17. circa horam sextam post meridiem ejusdem diei, ibidem venit predict S. felonicè ut felo predict. domini regis nunc insideand. & insultu premedita contra pacem ejusdem dom. regis coronam & dignitatem suas, die, anno, hora, & loco in comitatu predict. & in prefatam Aliciam ad tunc & ibid. insultum fecit, & ipsam ad tunc & ibid. de virginitate defloruit contra volu●tatem suant raduit & carnaliter cognovit, & sic predict. R. S. predict. Aliciam modo & forma predict. rapuit, & quam cito idem felo feloniam & raptum predict. fecissit, fugiit, dictaque Alicea ipsum recenter insecuta fuit de villa in villam usque quatuor villas propinqiores, & ulterius quousque etc. Et si idem felo felontam et rapt 'em predict in forma predict. imposit didicere velit, predict Alacia hoc parata est verificare et versus eum probare, prout curia, etc. And if a man Sueth an Appeal of the Rape of his Wife, although she be not his Wife in right but in possession, yet the Appeal doth well lie as is said; otherwise it is in an Appeal of murder brought by a woman of the death of her Husband, for there it is a good plea, that they were never lawfully coupled in Matrimony. Appeal of Mayhem. SEE also that the Appeal of Mayhem is as followeth: viz. I. N. in propria persons sua hic instanter appellat W. de F. de eo quod cum idem, quaere tali die & anno fuit in pace dei, et Dom. Regis nunc, &c, apud talem villam in tali comitatu circa horam sextam, etc. Ibi venit predict. W. vi et armis, viz. baculis ut felo domini regis nunc insid●and. et ex insulta premeditete ad tunc ibid. indiction I. insultum fecit et ad●tunc et ibid. own quodam baculo precii, etc. quem predict. W. in manibus suis ad tunc et ibid. tenuit, predict. querentem super brachium dextrum felonicè tunc purcussit, per quod vene et necui brachii sui perdict. restricti fuerunt ac neci, et mortisicat d●venerunt; Or, cum quodam gladio, vel cultello precii etc. quem defendens in manibus suis ad tunc et ibid. tenuit manum dexteram, vel policem manus dextere, vel aliud membrum, vel auriculam, vel aliquam juncturam membri querentis felonicè amputavit, vel oculum suum evulsit, vel dentes suos anteriores fregit et deposuit. Et sic idem defendens ut felo Dom. regis predict. quer. ad tunc et ibid. felonicè mayheymavit, contra pacem dicti Dom. Regis Coronam et dignitatem suus. Et si defendans hoc velit dedicere, querens hoc paratus est versus eum probare, prout curia Dom. Regis de eo consideraverit, etc. And notwithstanding that the Plaintiff declare in an appeal of Mayhem, that the Defendant hath mayhemed him feloniously, yet the Defendant shall not suffer the punishment of death, but shall answer damages according to the greatness and grievousness of the offence, etc. And if the Plaintiff declareth in an appeal of Mayhem, etc. and the Defendant prayeth that it may be viewed if it be a Mayhem or not, Quaere, if the Justices say, That he is mayhemed, if it be peremptory to the Defendant, so that he shall not be afterwards receiveable to plead not guilty to it, or any other bar. And I conceive it is peremptory, etc. And in an appeal of Mayhem the Plaintiff declared, That the Defendant struck him upon the head, so that he had lost his hearing, and because the Justices talked to him, and well perceived that he could hear they said that the Plaintiff should be fined, etc. And see that if the Defendant in in an appeal of Mayhem saith, That the Plaintiff at another time brought an Action of Trespass against the same Defendant, and sued forth the same Mayhem, and recovered damages for the same, and sued execution, if the same be a good plea or not, etc. And it was said, That by an appeal of Mayhem a man shall not lose his Action of Trespass, but contrariwise; he shall not have an appeal after he hath once recovered in Trespass for the same Mayhem. Quaere what the Law is. And in an appeal of Mayhem against two, the Plaintiff declared against one as Principal, and against the other as accessary, and it was challenged because that all aught to have been principals, and the Court said, It was in his election, so that the Declaration one way or the other was good enough. And it was said by some, That it is no Mayhem to cut off ones Ear, whereby he loseth his hearing, etc. but the bearing out of his Teeth is a Mayhem, because he may by them defend himself in Battle. Quaere if in the first case it be not a Mayhem, etc. Indictments. THere are also Indictments upon which a man shall be arraigned, upon which if he be found guilty he shall be executed, etc. and first see Indictments upon the view of the body raken before the Coroner in the County. Inquisuio indentenda capta apud B. in Com. N. 20. die mensis Maii annoregni nunc Regis Henrici, octavi 20. coram I. W. uno Coronatorum Dom●regis nunc Com. predict. et super v●sum Corpotis cujusdam I. F. ibid. jacentem interfect. per Sacramentum, I. S. W. C. etc. Qui dicunt super Sacramentum suum. Quod quidam I. N. de London gent. 20. die, etc. Ann. etc. vi et armis, viz. gladiis beculis et cultellis animo felonico et ex malitia procogitata in prefatum, I. F. apud B. predict. insult. fecit et ipsurn ver ber avit, vulneravit et male tractavit, ac dict. I. M. cum quodam cultello vocat a wood knife precii 12. d. quem ipse in manibus suis ad tunc tenuit, prefat. I. F. ●d tunc et ibid. usque ad medium corporis sui felonice percussit atque invasit in profunditatem decem pollic. dans ei plaguam mortalem, de qua quidem plaga dict. I. F. infra unam horam tunc proxime sequent. ad tunc et ibidem obiit, et sic predict. I. N. eundem I. F. ad tunc et ibidem felonice interfecit et mardravit, contra pacem Dom. Regis, etc. And it was said, That the Coroner hath not power to take any Enquest of the death of a man if not upon the view of the body, & if he do it in other manner, all that he doth is void. And it hath been used in times past that the Coroners might record the breaking of Prison by the Prisoners which are in them, and if the Prisoners were in for felony, they were put to execution without further answer; but quaere if any such Law be now in use. And a Coroner might take an appeal of an Approver, of felony done in any County of England, and in the same manter he might make abjuration, if he assested the felony to be done in another County then in the County where the Coroner dwelled. And the reason was, because by that confession they shall be attainted. But he cannot so do in an appeal of Robbery, if the felony be not done within the same County. There are also divers Indictments, as of Robbery, Burglary, and other felonies which are mentioned in sundry books, and the course of them is well known, becausethey are common, and in daily use and experience. If a man be indicted that he feloniously cut down Trees, etc. in such a place, and carried them away, the party shall not be arraigned upon such indictment, because it cannot be said to be felony. A man was indicted for that he traitorously, etc. had made 100 s. of Alchamy to the likeness of the King's money, and it was moved that the indictment was sufficient, because it was not put certain what money he made, groats or pence. A man was indicted, That whereas another man was indicted of felony who was put into the Stocks, etc. that he entered into the house without breaking of the same, and set him out of the Stocks, and set him at liberty, and it was said, That it remained in the pleasure of the King, whether he should have perpetual imprisonment, or other pecuniary punishment according to the King's Ordinance, but he shall not be hanged, etc. And see that it was the use in times past, that the party should not be restored to his goods upon an Indictment of Robbery, unsesse it were found that he made fresh-suit, if he were not appealed, yet that Law is altered and changed, and the party shall be also vestored to his goods where the fellow is arraigned upon an Indictment as well as upon an Appeal, if the party giveth evidence against the fellow at the time of his Arraignment, and he shall not be put to circuit of Action to sue his appeal, and it seemeth to be good Law. Note, that the Writs are the principal and first thing in our Law, whereby a man shall recover that which is wrongfully detained from him, and they are the foundation of every Suit; and therefore look when a man beginneth his Suit that the Writ be good, else all which followeth will be nothing worth; which Writs are ordained by Law according as the matter is. And there see first the Writ of Right and the nature of it, because it is a Writ of a higher nature than any other Writ can be; and the chief things and Articles of that Writ are, the deforcement, the quantity of the Tenements in what Town the Tenements are, and that the demandant hath a lawful estate in fee by his own Purchase, or of the seisin of his Ancestor, or his own seisin, the taking of the Explees and the seisin thereof, in the time of what King, and in the time of peace, and the tender of the Demy mark a good descent, and in wha manner he hath right, and the averment. And note that the Explees ought to be of the Demesne or of the Services, and in a Precipe quod reddat of the manner of Explees in Services, etc. and of the Demesnes in Sheep, and Corn, in Pasture in feeding of Cattle, of Wood, in selling of the Wood, Gardens, in selling the Apples, or Grass, of Villain, is in base service to his profit, and in seisin of those of his blood; and for a Chaplain, or finding of poor men, the Explees are alleged in Masses, and Prayers, etc. and of a Gorge in taking of the Fish; of a Mill, in taking of Tole: And generally, a man shall allege Explees according to the matter in demand, and the nature of it. And the trial in this Writ of Right may be two ways; the one by the Grand Assize, and the other by Battle; but if the right be to be determined by the Battle, it shall be done by Champions, and not by the parzies themselves, as it is said; and the reason is, that if any of the parties be killed, Judgement of the Land cannot be given against a dead person. Quaere if that be the reason or not. And it was said, That a man cannot have a Writ of Right of a Rent, but only of a Rent-service, for that other Rents are against common right, etc. And see that a Writ of Right doth differ from other Writs in pleading, for in a Writ of Right the Tenant ought to conclude upon the right: To conclude, so that he hath more right to have the Lands, etc. then the demandant, and not to conclude Judgement of Action, as the conclusion is in other Writs, yet the same holdeth not in every case; for if the Tenant in a Writ of Right plead a release collateral, etc. without warranty, there the Tenant shall conclude Judgement if Action, and not otherwise as it seemeth; for the demandant hath more right to the Land then the Tenant hath, but by reason of the warranty the demandant shall be barred of his Action. And note, that in a Writ of Right upon the Trial no attaint lieth, and yet in a Writ of right of Dower an attaint lieth, which is, a Writ of Right; but the reason is, because the Trial thereof shall not be by the Grand Assize, nor by Battle, but by a Common Jury, etc. And note, that there are divers Writs of Right; a Writ of Right which is triable by Battle, or by Grand Assize, as a Writ of right of Land, or a Writ of Customs and Services, a Quod permittat in the debet Writ of right of Advowson, etc. and the like. And there are other Writs of the possession mixed with the right, as a Writ of Escheat, Cessavit, rationable part, etc. and the like, but in those no Battle nor Grand Assize lieth. In a Writ of Customs and Services, the effect thereof is the wrongful deforcement in not doing of the Services which ought to be done to the demandant out of the Land, and the Land ought to be showed, and how he holdeth by such Services, and show seisin in him or his Ancestors of Fee and Right, and allege the taking of Explees, and the Averment. The Articles and things which are material in the Writs, appear in the Writs themselves, and in the book of Novel Tales, and in other books, and therefore they need not to be here mentioned, and for that cause I omit them here, etc. An Indictment upon the Statute of 8. H. 6. JVrator present. pro Dom. rege, quod cum instatuto in Parliamento Dom. nuper Regis Henriet Angliae sexti, post conquestum ap●d Westm. anno Regni sui 8. tent. edit inter cetera ordinatum sit, quod si aliqua persona expulsa sit seu dissesita, de aliquibus terris et tenementis modo forcibili aut pacisice expulsa sit, et postea manu forti et armis extra teneatur contra justice. pacem vel post aliquem talem ingressum aliquod feossementum seu discontinuatio aliquo modo inde factum sit ad jus possessor defraudend. aut tollend. quod pars in ea parte gravata habeat assissam nove d●sseisine aut breve de transgress●one versus hujus disseisttorem, et si pars gravata recuperaverit per assisam vel rationem transgr. et preveredictum alio modo per debitain legis formam sit compactum quod pars defendens in terras e● tenem. vi imgressusfuit, aut ea per vim post ingressum tenuerit, quaerens reciperet versus defendentem d●nna sua ad triplicem et ulterius finem faciet Dom. Regi, et redemptionem pro ut in statuto pred. plenius continetur, etc. Quidam tamen L. C. de E. in come. pred. generosus snnul cum quinque personis juratoribus pred. ignotis statutum illud minime ponderans, die Dom. 20. die Januarii circa horam 9 post meridiem ejusdem diei anno Regni Dom. regis nunc 12. manu forti ac vi et armis, viz. Baculis et cultelltis in unum messuagium, unum gardinum ducent as acras terre, 40. etc. prati, et 30. arras basvi cum pertinetii quorundum E. K. Armigeri et L. M. armigeri etc. scituat jacen et existen in perochia de L. juxta T. in come. pred. ingressus fuit, et inde ipsas E. K. et L. M. vi et armis, viz. baculis et cultellis ac manu forti dissertivit. Et ejus inde statum et possessionem sic per disseissinam illam habitam et obtent, cum pred. personis ignotis usque in crastinum diem sequentem, viz. 13. diem mensis Januarii continuavit. Quo quidem 13. die Januarii H. L. de M. in comitatu pred. yeoman, W. B. de pred. Husbandman, et I. C. nuper eisdem villa et com●tatu laborer apud L. pred. in et super tenta pred. una cum prefato T. C. manu forti ac vi et armis, viz. baculis cultellis, gladiis scutis, arcubus et sagittis se assemblaverunt, et eadem tenementa vi et armis pred. a pred. 12. die Januarii hucusque inrurius ipsius T. C. et ipsum T. pretensa tenuerunt et prefat. E. K. et L. M. etc. inde hucusque extra tenent in dicti Dom. Regis nunc contemptum ac contra formam statuti pred. et contra pacrm dicti Dom. Regis, etc. When the Parties are at issue in their Actions the common Trial thereof in our Law is by Verdict of 12. men, who shall be sworn upon the Book to speak the truth according to their conscience. And sometimes the matter shall be tried by the Bishop, and not by Verdict of 12. men; as general Bastardy alleged in any of the parties it shall be certified by the Bishop, and in a Quaere impedit if the issue be joined upon the institution it shall be tried by the Bishop, for the same is in a manner a spiritual thing. But induction shall be tried by Jury, and also in a Quare impedit, if issue be taken upon Plenary it shall be tried by the Bishop; but whether the Church be void or not void shall be tried by the Jury. And if the Parties be at issue in a quare impedit upon the ability of the Person, whether he were sufficiently learned or not, it shall be tried by the Bishop during the life of the Clerk, but if the Clerk be dead it shall be tried by Jury. And it is said, That if Bastardy or other the like thing be alleged upon a thing which is not but dilatory, it shall be remanded to the Bishop to be tried, etc. And a man in an Action of Debt brought against him upon a Contract may wage his Law, to swear upon a Book that he oweth not the Plaintiff the money which he demandeth, nor any penny thereof; and he ought to have with him 11. more to swear with him, that they believe in their Conscience that he sayeth truth, and so he shall be discharged; but if the Action be brought upon any specialty, or upon matter of Record, or upon a thing touching Land, etc. he shall not help himself in that manner, but shall put the same upon the trial of the Jury, but he himself shall not be admitted to swear, etc. And note, that an Oath ought to have three Companions, Truth, Justice, and Judgement, and if they be wanting it is no Oath but a Perjury; for if a man be forced by constraint to swear, that for many years he quiely held such Lands, etc. it is Perjury, not in him who sweareth, but in him who compelleth him to swear, Reum non facit nist mens sit rea. Nemo se circumveniat aut seducat. Qui per lapidemfalse jur at perjurus est. Quacunque arte verborum jur at aliquis, Deus ita accipit sicut ille qui jur at intelligit. Et minus malum est per Deum falsum jur are veraciter, quam per Deum verum jur are fallaciter. Quanto enim id per quod juratur est magis sanctum, tanto magis est penals perjurium, etc. FINIS. The Table. A ABusions of the Common Law, from 124. to 151 Accords final. 171 Account. 155 Acquittance. 155 Accessories. 42 Action. 58.89.182,183 Afferment and afferrors. 49 Allienations. 11.14 Amercements. 90.218,219 Approvers. 61.142,143 Appeals and Appealers. 48.61.69.303 to 316 Articles of the Coroners Enquest. 40.41 Articles in the Leet. 53 Articles in Eyre. 211 Assize of Novel Disseisin. 94,95,96,97,98 Attaints. 166,167 Attachments. 66 Attorneys 97.124 B BAyle. 73 Barons of the Exchequer. 49 Beaupleader. 34 Battle 141.157,158,159 Bigamy. 132 Burning and Burners. 16.78.146.193 Burglary. 36.43.79.148 C. CEnturies and Centiners. 5 Circuits. 62 Charters, Deeds, Minuments. 154 Clergy. 131 Clerks. 131 Champion. 186,187,188 Chancery. 293 Cinque-Ports. 297 Combets and Combattors. 157 Contract. 104,105. to 108 Contempts and Contumacies. 76 Coroners. 7.287 Courts. 10.50 Court Baron. 299 Common Pleas. 290,291 Countors or Pleaders. 65 Coin. 10 Counsans. 131 Copy-holds and Copy-holders'. 113.156 D. DEfaults. 180,181 Defects of Magna Charta, from 251. to 260 Divination and Diviners. 17 dilatory Pleas. 130 Disseisins. 93,94.153.215 Distress and Distresses. 95.99.100.101 102,103,147 Doomsday Book. 114 Dower. 11 E. Earls. 5 Earldom. 96 England. 3 Englishire. 47 Escape. 73 Essoignes and Essoigners. 117. to 124 Exchequer. 9.49.296 Exceptions. 128 Order of them. 129 Exceptions of time, persons, and place. 137, 138 F. Fairs and Markets. 14 Falsifying. 23.75 False Latin. 152 Festivalldays. 136 Forfeiture. 44 Franchises. 163.213 G. Goal and Gaolers. 72 Grand and Petit Assize. 93 H. Heresy. 16 Homage and Fealty. 169.170 Hunting. 165 Hue and Cry. 10.67 I. Informer's. 64 Imprisonment. 82.149 Indictments. 84,85,86.143.227 317. to 323 Jurours. 43 Judges and Judgement. 59.64.133,134 135.207.172,173.287,288,289 Judgement of death. 203 Jurisdiction. 7.177,178,179 Justices in Eyre. 209 Infamous persons. 192 K. KIng. 3 Kings Bench. 287 Knights Fees. 11 L. LAw. 1 Larcine. 31,32,33,34,35.79.147 M. MAjesty. 16.74.193 Mainprisors'. 71 Mainpernors. 184 marshalsea. 288 Manslaughter. 26.28 Mayhem. 82.149 Merchants. 15 Misadventures. 42 Misnosmer. 152 Murder. 47.79.146.194. to 202. N. NAtivo habendo. 112 Neifty 109. 181 Ne vexes. 115 O. OAths. 169, 170. 325 Oath of the King. 3 Oath of Countors. 65 Oath of Battle. 161 Obligations. 166 Offences and the division of them. 15.68 Oflences real and personal at the Kings Suit. 84.86 Offences venial. 86 Office of Coronors. 48. to 38. 67. Office of Justices in Eyre. 221 Ordination of Clerks. 14 Ordinary. 131 Ordering of Battle. 161 Outlaws and Outlawry. 149 P. PArliaments. Perjury. 18,19,20,21.22, 208,209 Permancies. 205,206. Poor. 14 Pleas, and plead. 78.129 Pledges. 90,91.184 Power of the Judge. 133 Presentments in Eyre. 9 Proof. 14 Prison and Prisonors. 29 Principal and Accessary 44 Prerogative. 154 Protection. 150 Process in Appeals. 71 Purprestures. 164 Punishments. 190.205 R. RApe. 37,38.148 Receiver and Receipt. 155 Replications. 139,140,141,142 Rerpards or Fees. 63 Reprebensions of the state of Merton. 621 262 Of Malbridge. 262,263 Of Westm. first. 264 to 270 Of Westm. 2. from 270. to 279 Of Gloucester. 283,282 Of circumspectè beatis. 282 Robbery. 32.79.147 S. Salary. 66 Satisfaction of Debt. 215 Sanctuary. 44,45,46 Seals. 49 Shears and Sheriffs. 16 Summons and Summonors. 11. 67 115. 116. 139. 185 Sureties. 14, 15 Suit and Suitors. 50,51 T. Tenant by the conrtesie. 15 Treasure trove. 7.43.144.165 Turns of Sheriffs. 8.51.62 Treason. 24.76 Trespasses. 88,89,90 Trial. 324 Trove 135 V VAriance. 142.152 View. 149 View of Frankpledges, 8.52,53 Venial Trespasses. 88 Vourcher. 140 Villinage. 96.109. to 165 Usury. 165 W. Waive. 109 Wages. 64 Wager of Law. 154 Wounds and wounding. 43.83 Writs remedial. 8 Wrecks. 43.164,165 FINIS.