SECT 1. Of the Offences against the Peace.
Of the Originall of the Law.

ALmighty God shewed more love to Man then to any o­ther creature; when he made him after his own image and gave him understanding; con­sidering that he stood conti­nually ready to fall into sinne by three man­ner of Adversaries, and therefore he gave the Law to force and drive sinners to sal­vation by earthly punishments; That for the pure love of God men would abstain from sinne, and thereof made Moses their Teacher, which place the Pope now holdeth.

That Law by Ordinance of our holy Predecessors is divided into two Volumes; [Page 2]into the Cannon Law, which consisteth in the amendment of Spirituall offences; First, by Admonitions, Prayers, Reproofs, Excommunication; Secondly, into the written Law, which consisteth in the pu­nishing of temporall Offences, by Sum­mons, Attachments, and punishments or penalties.

Of the Spirituall Law, the Prelates jud­ged; and say Princes of the other Law: The Law whereof this summe is made, is the written Law of the ancient usages war­ranted by the holy Scripture. And because it is given to all in generall, it is called the Common Law. And because there was no other Law but that, were generall Coun­cels and Parliaments in use, and that di­versly in severall places, according to the qualities of the people of divers Countries, and Boroughs; they were according to an­cient priviledges changed for the ease of the people of those places.

All our Usages and Laws are also lay­ed for the keeping and exaltation of the peace of God; and therefore it is to be known, That the people are not to be ad­judged by similitudes and examples not canonized, but by the love of Peace, of Chastity, of Temperance, of Charity, of Mercy, and of good Works.

CHAP. 1. SECT. 2. Of the coming of the English into this Realme.

AFter that God brought down low the Nobility of the Brittons, who used more force then right, he delivered the Realm to the most humble and simple of all the countries adjoyning; that is to say, to the Saxons, who from the parts of Almaine be­came Conquerours thereof, of which Na­tion there were forty Soveraigns who were Companions. These Princes called this Land (England) which before was called Great Brittainie, or Britania Major. These Princes after great warrs, tribulations, and troubles, suffered for a long time, chose themselves one King to Raign over them, to governe God; people, and to maintaine and defend their Persons and their goods in peace by Rules of Law. And at the be­ginning they made the King to sweare; That he should maintaine the Christian Faith with all his power, and governe his people by Law, without having regard to the Person of any one; and that he should be obedient to suffer Right as well as his other people should be.

And afterward this Realme was divided in Inheritances according to the number [Page 4]of those Companions who then remained in the Realme, into parts, by Shieres, and every one had a Shiere delivered unto him to keepe and defend against the enemies, according to every ones estate; That is to say.

• Barkeshire
• Bedfordshire
• Buckinghamshire
• Cornwall
• Chestershire
• Cumberland
• Dorset
• Devonshire
• Darbyshire
• Essex
• Barrickshire
• Yorkshire
• Norfolk
• Not [...]inghamshire
• Northumberland
• Northamptonshire
• Oxfordshire
• Rutlandshire
• Suffolk
• Gloucestershire
• Cambridgeshire
• Hertfordshire
• Herefordshire
• Huntingtonshire
• Kent
• London
• Leicestershire
• Lancashire
• Lincolnshire
• Middlesex
• Surrey
• Southampton
• Somersetshire
• Shropshire
• Staffordshire
• Wiltshire
• Westmerland
• Worcestershire.

And although that the King ought not to have any Peere in the Land; neverthe­lesse because that the King of his owne wrong if he offend against any of his peo­ple, not none of his Commissaries can be Judge and Party; It was behovefull by the Law that he should have Companions, to heare and determine of all Writs, and [Page 5]Plaints, of all wrongs, as well of the King, as of the Queene, and her Children; and of those especiall where one could not have otherwise Common Right: These Companions are now called Countees, Earles, according to the Latine Comites; and so at this day are those Shires called Counties, in Latine Comitatus; and that which is without these Counties, belong­eth to the English by conquest.

Afer that time, these Companions, after the division of the Realme into Shires, divided their people which they found scattering about into Centuties, and to every Century they appointed a Centey­ner, and according to the number of the Centuries spake every Shire; and to every Centeyner they assigned his part by Metes and Bounds, to keep and defend the same with his Century, so that they were ready to run to their Armes at all times when the enemies came, or other needfull occasi­on was. And these divisions in some places are called Hundreds, according to the number of the first people; and in some places Tythings, or Wapentakes, accor­ding to the English; (which is in French, taking of Armes) These divisions they made, whereby the Peace, which consisted in charity and true love, was kept and maintained.

CHAP. 1. SECT. 3. Of the first Constitutions made by the ancient Kings.
Of King Alfred.

FOr the Estate of the Realme, King Alfred caused the Earles to meet, and Ordained for a perpetuall usage, That twice in the yeere, or ostner, if need were, in time of Peace they should assemble to­gether at London, to speake their mindes for the guiding of the people of God, how they should keepe themselves from offen­ces, should live in quiet, and should have right done them by certaine usages, and sound judgements.

By this Estate many Ordinances were made by many Kings, King Ed. 1. untill 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 soule, 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. Soveraigne Jurisdiction.

The Soveraigne Jurisdiction through­out the whole Land unto the middest of the Sea encompasaing the whole Realme, as franchises, treasure found in the Land, Waife, Estray; goods of Felons and Fu­gitives which should remaine out of any ones rights, Counties, Honours, Hun­dreds, Wards, Goales, Forrests, chiefe Cities; the chiefe Ports of the Sea, great Mannours; these Rights the first Kings held, and of the residue of the Land they did infeoffe the Earles, Barons, Knights, Serjeants and others, to hold of the Kings by the services provided, and ordained for the defence of the Realme according to the Articles of the ancient Kings.

Also Coronors were ordained in every Country, and Sheriffes to defend the Country, when the Counties were dismis­sed of their Guards, and Bailiffes in the places of Centyners. And the Sheriffes and Bayliffes caused the Free-Tenants of their Bayliwicks 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, untill such times as the customes of the Realme were put in writing, and certainly established.

And although a Free-man commonly was not to serve without his assent, never­thelesse it was assented unto, that Free-Tenants should meet together in the Counties, Hundreds, and the Lord [Page 8]Courts, if they were not especially ex­empted to doesuch Suits, and there judged their Neighbours.

And that Right should be done from 15. daies to 15. daies before the King and his Judges, and from month to month in the Counties, if the largenesse of the Counties required not a longer time; and that every three weekes Right should be administred in other Courts; And that every Free-Tenant was bound to doe such suite; 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 Turnes of Sheriffes and views of Free-pledges were Ordained; and it was Ordained, That none of the age of 14. yeeres or above, was to remaine in the Realme above forty daies, if they were not first sworne to the King by an Oath of Fealty, and received into a Decenery.

It was Ordained; That every Plaintiffe have a remediall Writ to his Sheriffes, or to the Lord of the Fee in this forme. Questus est nobis C. quod O. &c. 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 remediall Writ from the Kings Chan­cery, according to his plaint without diffi­culty, and that every one have the Processe from the day of his plaint without the [Page 9]seale of the Judge, or of ths Partie.

It was Ordained; That Coroners should receive Appeales of Felony, and should give the Judgements of Out-lawries, and should make the visnes in the Causes aforesaid; And that all the next Townes should present to the Coroners in the Countie 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 comming of the Kings, or of the Justices assigned to hold all Pleas.

And for the great dammages which the Commons suffer by Amercements issuing out for Concealements, 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 Bay­liffes as to these Charges: neverthelesse they are the Kings ministers, because they take an Oath to him. For personall tres­passes, neverthelesse the Coroners are only punishable without any damage to those who chose them, unlesse they have not sufficient wherewith to satisfie for their trespasses.

The Exchequer was Ordained in manner as followeth; and the pecuniary penalties of Earldomes, and Baronies certaine, and [Page 10]also of all Earldomes and Baronies entire or dismembred; 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 Kings 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 fourteene yeares and above should be ready to kill mortall offenders in their notorious sinnes, or to follow them from Towne to Towne with Hue and Cry; and if they could not kill them, the offenders to be put in exigent, and Out-lawed or banished.

And that none should be Out-lawed but for a mortall offence, and in no other County but where he committed the of­fence.

It was Ordained; That the Kings Courts should be open to all Plaints, by which they had originall Writs without delay, as well against the King or the Queene 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 Realme should change his money, nor im­paire it, nor inhannse it, nor make any [Page 11]other money but of Silver, without the sssent of the Lords and all the Commons

It was Ordained; That Felonies should be tryed by Appeales, and that Appeales might sometimes be ended by Battaile, and that Exigents of the Offenders should continue by three County Courts before the Out-lawrie.

It was Ordained; That all Free-Tenants should be obedient, and appeare 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 oftner then 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 Sonne by me­cession of Inheritance, and that Socage Lands should be partable amongst the Heires rights, and that none might alien but the fourth part of his Inheritance without the consent of his Heire, and that none might alien his Lands by Purchase from his Heires, if Assignes 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 Heires; that Heire Females, nor Widowes 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 [Page 12]unknowne Persons, and the same is for­bidden upon paine of Forfeitures, whe­ther their Parents were cousenting there­unto or not; and that Widowes in case they Marry without the consent of the Guardians of the Lands should lose their Dowries; That those also should be dis-inherited or lose their Dowries before that they Married; Widowes neverthelesse this should not forfeit their Inheritance for whoredome, and that the eldest Son should forfeit nothing to the prejudice of his Ancestour, nor his Heires living the Ancestour whose Heire apparant he is.

It was Ordained, That the Lords of Fees might Summon their Tenants by the award of their Peeres into the Lords Courts or into his Counties, or the Hundred at all times that they detaine or deny to doe 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 Alegi­ance with the appurtenances by the judge­ment of the Suiters, and all their Tenancy; and the Tortious or outragious Lords shall lose their Fees and the Services, and the Tenements shall goe to the chief Lords of the Fee.

It was forbidden, that none be destrey­ned by his moveable goods, but by their bodies, or by their Fees, except in speciall Cases after mentioned.

It was Ordained that Infants should be in Ward; with their Lands and Goods, [Page 13]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 Reliefe and Aydes of their Tenants which they held of the Lords, as to make the Heire of the Lord Knight, and to Marry their eldest Daugh­ters, and that the Heires males should doe homage to their Lords, and the Females should sweare fealty: and that the Inheri­tance should discend to all the Children by warrant of right of the possession, and that the male should barre 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 remaine amongst the guiltlesse, and that the King should have the value of the Lands and the rent for one yeere, and the wast of Felons Lands; and also that he should have all Deodand; and that the Goods and Chattels of Usurers should remaine as Escheates to the Lords of the Fèes.

Essoines were Ordained in mixt and reall Actions, and not in personall 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 Realme; and it was also forbidden, that none sold Wine in the Kingdome but by Tonnell or Pipe.

It was forbid that no money was to be carried out of the Realme; and that none should carry Wooll out of the Kingdom, nor should kill Lamb, or Calf which might live, nor Oxe which was not gelt.

It was forbidden; That no Bishop do­ordaine Lay-m [...]n to the Order of Clerkes above the number which are sufficient to serve the Churches, whereby the Kings Jurisdiction be destroyed: It was Ordai­ned, That the poore should be sustained by Parsons, Rectors of the Church, and by the Parishioners, so that none of them dye for want of sustenance.

It was Ordained, That Faires and Markets should be in places, and that the buiers of Corne and Cattell should pay Tole to the Lords Bayliffes of Markers or Faires; That is to say, a false penny of six shillings of good, and of lesse, lesse, and of more, more; so that no Tole exceed a penny for one manner of Merchandize: and this Tole was given to testifie 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 proofe by Witnesses or other things; and that none was bound to An­swer to any Suite, not to appeare to any Action in the Kings Courts before the Kings Justices, before they found Sureries to Answer damages, and the costs of Suite if damages lay in the C [...]se, except in foure offences; Diss [...]rsins, Cirtification of Dis­sersius, [Page 15]Attaints, Rediffeisius and other Cases. To which Ordinance King Henry the first put this mittigation in favour of poore Plaintiffes, 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 repaire into England but at foure Fayres, and that none such should remaine in the Realm above forty daies.

Of the Curtesie of King Henry the first, It was granted; That all those who sur­vived their Wives who were with childe by them, should hold their Wives Inheri­tance for ever.

Many other Ordinances were made by them, and since have been made in aide 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. Mortall, or Veniall.

The mortall Offences are these: Of

• Majesty,
• Falsifying,
• Treason,
• Burning,
• Larcency,
• Burglary.
• Homicide,

CHAP. 1. SECT. 5.

THe Crime of Majesty, or offence against the King is neighbour to many other offences; For all those who commit Perjury, whereby every one lyeth against the King falleth into this offence. As the Kings Mi­nisters who are sworn to doe Justice, and forswear themselves in any thing, so those who disseise the King of any of his Fran­chises, or of any manner of Right which belongeth to the Crowne by Occupations, or Purpestures, or in any other manner al­though it be no mortall offence.

Into Perjury fall all those Subjects of the King who appropriate to themselves Jurisdictions over the King, and of them­selves make Judges, Sheriffes, Coronours, and other Officers to have Counsance of Law.

Into Perjury against the King fall all the Kings Subjects who appropriate to them­selves Jurisdictions of Counties, Honours, Socknes, Retorna brevium, or any thing which may fall to his Inheritance; as Wards, Escheates, Reliefs, Suits, Services, [Page 19]or Marriages, Faires, Markers, Enfang thef. Out Fangthef, Waife, Estray, Treasure found in the ground, Warren in their owne lands, or in the lands of others, Tole, Pavage, Pontage, Chinue­age, Murage, Carriage, or other the like Customes.

Into Perjury against the King fall those the Kings Subjects who take Abjura­tions of Felons, and Fugitives, and are no Coroner, nor warranted by the King so to doe; and those who put out any Indi­cted, or Appealed of any Crime out of the Roll of the Coronour; and those Coro­nours who oftner then once receive Ap­peale; of Aprovers, or procure that a man who is innocent be appealed by an Ap­prover. And those who have detained Ap­peales of Approvers of forraign Acts, or whereby any forraigner is Appealed. And those Coronours who wittingly suffer the goods and chattels of Fugitives to be lesse valued then they ought to be of right; Or conceale them in part or in all, or detaine them to their owne uses, to the damage of the King; or deliver them elsewhere then to the Townes; or for lucre have ta­ken more then they should in damage of the Townes; Or suffered their Servants to have the garments, or other things which are to be seized for the Kings use; or the garments of the dead, or delay to doe their office through covetousnesse.

Into Perjury against the King fall those Officers who pardon Fines and Amerce­ments [Page 20]which belong to the King, or any manner of penalty either corporall or pecuniary without speciall warrant. And those Officers who by Summons and Ad. journments make the people to travaile in vaine, as to Goale deliveries, Assizes, En­quests, or otherwise; and all those Subjects who beare Armes against the King, or run away from his lawfull Army or Battaile; And those Ministers who unlawfully stop, or counsell the people that they goe not into War with the King, or that they are not bound to goe, where they have reaso­nable summons; and that the people be not made Knights but according to the Statutes of the Realme.

Into Perjury against the King fall all those the Kings Subjects, who hold Plea of Withernam, and have not returne of Writs, or hold Pleas of Distresses, or of any other thing which belongeth to the Kings Jurisdiction only, without the Kings speciall Commission; or hold Plea in case of life, of imprisonment, of blood-shed, of false Judgements, or of any thing disavow­able of right without the Kings Writ, or Commission

And all those the Kings Ministers who maintaine false Actions, false Appeales, or false defences.

Into Perjury against the King fall those Ministers, who deny to Plaintiffes originall Writs possessory, Attaints, or of Formedon; or otherwise doe delay their Rights; and those who wrongfully doe delay, or di­sturbe [Page 21]right Judgements, and those who wrongfully favour wrongfull Judgements; and all those who use their Priviledges or Liberties wrongfully, or too largely, con­trary to their knowledge.

Into Perjury against the King fall those Ministers who receive Fines to other uses then to the Kings use for Treasure trove, for Wrerk, Waife, Estray, Alliens for blood-shed, or impri [...]onment, Withernam, Reddissesin, or Dissesin; or forsweare them­selves to resist, that a lawfull Judgement have not execution; for Usury, perpresture upon the King, or for any other thing whereof the Counsance doth belong to the King.

And those Receivers who pay not the Kings debts as they ought to doe, and are enjoyned, or render to him part for satis­faction of the whole, and doe not pay the King the rest.

Into Perjury against the King fall those who Charge the King wrongfully. And those who spend the Kings Quarries, Timber, or other things otherwise then in the Kings Service without sufficient war­rant.

Into Perjury against the King fall Eschea­tors, who make wast of the Kings Wards, or in his Fees, or unlawfully take Venison, Fish, or other goods; and by their authori­ty seise the goods of the dead, and for gaine release them; or endow Widowes to the Kings losse; or make hurtfull extents for the King acompting for lesse then [Page 22]the very value to the King; Ot willingly suffer possessions to remaine in Mortmaine which ought to be seized into the Kings hands, and whereof the King ought to have the profit, or which receive more of their Bailiwickes then they answer to the King, ot who wittingly suffer Feoffements of Lands, or of Advowsons of Churches pre­judiciall to the King, or who suffer them to alien Wards or Marriages to the Kings prejudice, or suffer the ages of infants to be proved in damage, or to the Kings preju­dice take Fines for Wards, or Marriages without Writ, or deceive any one by co­lour of their Office; or leavy money upon any upon his owne proper Amercement.

Into Perjury against the King fall She­riffes, who too high charge the People, by a surcharge upon the people of Horses, or of Doggs, and who leavy Fines or Amerce­ments for escapes of Prisoners, or for any thing against Law before the escapes be adjudged by the Justices in Evre, and who increase or diminish Fines, or Amerce­ments beyond the Wills of the Afferrors or Jurours, and those Officers who conceal people deliverable to prison, and doe not bring them to Judgement.

Into Perjury fall all those Officers who are reproveable for the sufferance, negli­gence, or consent to the alienation of the franchises, or of the right of the King wrongfully, or to the occupying, or with­holding of them.

And all those who elsewhere change old [Page 23]money which is forbidden for new, then at the Kings change.

CHAP. 1. SECT. 6. Of Falsifying.

FAlsifying is done in two manners; by falsifying the Kings Seal, & his Mony. His Seal may be falsifyed in many man­ners. It is alwaies falsifyed when a Writ is sealed, whereof the ingrossing, and the matter, or the forme is not justifiable by the King, nor by the Law, nor by the lawfull Customes of the Realme, which is not to be intended of every Writ abatable.

It is falsifyed if a man scale therewith af­ter that the Chancellour, or other Keeper thereof hath lost his Warrant, either by death, or in any other manner.

It is falsifyed when a Writ, or a Patent passeth against the Kings forbidding. It is falsifyed by those who seale by ill Art, or by Warrants not justifiable, and it is fal­sifyed by those who seale and have not authority to seale.

Of falsifying the Money. The Money was Ordained round and quarterable, and use so to be made that the outward eircle was apparant through the whole, otherwise it was not to be received; and that the 1. l. was of 12. ounces of sine Silver, and it was [Page 24]assented unto that the King should have 6d. for the sealing of every Writ, and for the coynage of every pound of money 12.d. and no more of monies currant in the Realme.

The money is falsifyed by him who by evill covetousnesse maketh it not justifia­ble; and it is falsifyed by those who make it, and have not authority or warrant so to doe; It is also falsifyed by those who for evill gaine put more alay in it then of right there ought to be. And it is falsifyed by all those who make it without the Kings coy­nage. And it is also falsifyed by all those who by ill Art counterfeit it, and by those who clip or wash it for ill gaine.

CHAP. 1. SECT. 7. Of Treason.

TReason is not done but betwixt Alies, who may be by Blood, Affinity, and Homage, Oath, and Service. By blood, as if one of Parentage doe any thing to another of his blood which is the cause of his death, or dis-inherison, or to losse of homage; for the quality of Treason is the taking away of life or member, or decrease of earthly Ho­nour, ot the increase of villanous shame. And in the same manner is this offence be­twixt Aff [...], as betwixt Sisters, Sonnes in Law and Parents; sot as cosinage is a line of [Page 25]divers percenets discending of the same Stock, and drawne from carnall Copulation. In like manner Affinity is a neernesse of Persons discending from carnall copulation where there is no blood; and as this Office is done betwixt Affines, and Cousens, so it is also betwixt Allies.

• Alliance is sometimes by
  • Service,
  • Homage, and
  • Oathes.

Which happeneth sometimes by reason of Fealty issuing from the service of the Fee, sometimes issuing from the Oath of Service of the body, and as one of the Allies, Pa­rents, or Affines commit this offence against the other, in the same manner may they doe against them.

By Service; as if one who I have rewarded, to doe me Fealty, and be seized in demeane of a Mannour or other gift, or service, or Courtesie, falsifie my Seale, or ravish my Daughter, or my Wrie, or the Nurse, or the Ant of my Heire, or doth any thing which is the cause of my death by a Feio­nious compassing the same, or to the great dishonour or damage of my body, or of my goods, or discovereth my Counsell, or my Confession, which he is charged to conceale.

And by reward is meant, Fee Possession, Robe, Church, Rent, or other gist; and meat and drinke curing the service.

And as such a one may commit Treason against me, who taketh from me so much that he is seized, in the same manner I may [Page 26]offend against him; by such Action or de­mand he shall have against me, as I may have against him.

CHAP. 1. SECT. 8. Of Burners.

BUrners are those who burne a City, Towne, House, Men, Beasts, or other Chattels, Felloniously, in time of peace for hatted or revenge. And if any one put a man into the fire, whereby he is burnt or blemished by the fire, although he be not killed with the fire, neverthelesse it is an offence for which he shall dye. Under this offence sometimes fall those who threaten burning.

CHAP. 1. SECT. 9. Of Man-slaughter.

MAn-slaughter is the killing of a man by a man; for if it be done by a beast, or by mischance it is not Man-slaughter.

This offence is two waies; either by the Tongue, or by the Act.

By the Tongue three waies; by Coun­sell, Commandement, or Deniall.

By Counsell, as he who counselleth ano­ther to kill; and so also is it by Command­ment.

By Deniall; as he who denieth sustenance to a man.

By Act many waies; sometimes by Stri­king, by Poisoning, by Necessity, by Will.

By striking, as it afterward appeareth in the Appeales.

By poison or venoming; as by secret felony, and fained friendship giving poi­son to another to eate, or poisoneth or en­venomed any thing, whereby a man is pre­sently or in time killed. Or by Imprison­ment; as he who keepeth the body of a man in prison by colour of Law, till he dyeth. By Chance; as by casting, or draw­ing of a Vessell, or other thing, and some one is killed by mischance; or by the fal­ling of a Tree, and other the like cases. But you must distinguish where the killing is justifiable by Law, for there it is no offence; and when he doth not that which he ought to doe, and the party useth all the diligence which he may, crying out, and defending himselfe, for then he doth not greatly offend; but he who doth not so doe, he offendeth mortally.

By necessity; where in you ought to di­stinguish whether the necessity be avoida­ble or not, and if it be avoidable, it is a mortall offence.

By Will; and that may be either of him­selfe, or of some other person.

Of himselfe; as in case when people hang themselves or hurt themselves, 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 paine men so much as ought not, or not so much as they ought, he offendeth mortally. But it may be alleadged; that by reason of the paine the dead doth failly confesse 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 goe in Deserts, or in such places and returne not to them though they doe now dye in the Deserts, God succouring them. And also false Jurours, and Wunesses are Men­slayers, and those who appeale others, or scande [...]ously Indict them, or in other man­ner falsly 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 meanes place, or punishments they came fooner to their deaths.

Three waies was God himselfe 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 [Page 29]all those who consented thereunto killed him; And hence it is that the Evargelifts differ of the houre of his death, in setting forth his Passions.

This offence doth containe many bran­ches: viz.

• Imprisonment,
• Mayheim,
• Wounding,
• Battery,
• False Witnesses.

Imprisonment is the wrongfull detaining of a mans 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 wrongfull Imprisonment.

A private Prison is 1. sometimes rightfull and justifiable; 2. wrongfull.

The same is lawfull and justifiable, when a man who is Baileable, is taken and put in custody till he hath found Baile to doe 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 Soveraignes of their houses; and Villaines 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 mad-men, and of those who are drawne to follow infamous, though pardonable offences, who are to be in Custody in such Cases.

Into the offence of Man-slaughter fall all those by whom a man dyeth in Prison; and that may be either by the Judge, who delayeth to doe Justice, or by durenesse of the Keepers, or by other unjustifiable occasion.

Into this offence fall all those through whose default people dye, being forsa­ken of those who are bound to sustaine them.

And those who kill a man imprisoned, by a surcharge of paine, 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 falsly re­stifie a mortall offence against an innocent man.

Into this offence fall all Jurours, and false Phisitions, and maintainers of killing, and those who beate or wound a man, so so that he is sarre 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 lesse able to combare.

And Turgis saith; That the losse of the [Page 31]fore-teeth is Mayhem, and of the turning of the mouth, and of the little finger, and of the right joynt; and the taking away the toes of the feet is Mayhem, and the more reason where more losse appeareth.

And Sennall said; That the losse of the eyes is Mayhem, if nature have not taken them away; but the losse of the middle Teeth, or of the Nose, or the Eares 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 arme felloniously, which is shewed by the length, breadth, or depth; for the cutting of a stone, or of a staffe seldome becometh a wounding but a bruising.

CHAP. 1. SECT. 10. Of Larcines.

LArcine is the treacherously taking away from another moveables Corpo­reall, against the will of him to whom they doe belong, by evill 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 moueables, or not Corporiall; [Page 32]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 owne, 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 apparant 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. Theeves.
• 2. Tortious Distresses of Bayliffes 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 mens 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 [...] Labou [...]er, who steale their la­bours; and as it is of B [...]iffes, Receivers, and Administrators of others goods, who [Page 33]steale them in not giving their Accompts.

Into this offence fall all those who steale Purses or Cloke-baggs, or doe any other Larcine by encrease or covetousnesse of themselves, and all their favourers.

Into this offence fall all those who suffer Theeves to passe when they may arrest them; those also who may take or hinder them, or warne them of malice and doe 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 steale 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 outragious Amercements, or outragiously afferre A­mercements, or wrongfully condemne their Neighbours either in damages, or penalties; and those who wrong­fully detaine treasure found. Wreck, Waife, or Estray which belongeth to the King; and those who otherwise finde them and doe not restore them when they may, and know to whom they doe belong.

Into this offence fall all those who take wrongfull or outragious Tole in Markets, Ciries, Boroughs, Townes, Mills, or else­where; and those who take pavage, mur­age, chinniage, carriage, or other manner of Customes more then they ought to doe.

Into this offence fall those Bailiffes who [Page 34]doe enquire in Turnes and viewes of Franck-pledges of more Articles then of personall offences, & of wrongs done to the King and his Crown, and of wrongs done to the common people, & those who by extor­tion take monies or Fines for Beauplea­der, or for which the Jurours are not charged; and those who amerce any of their owne heads without reasonable affir­ment of the people sworne thereunto.

Into this offence fall those who unjustly distraine, and those who sell distresses for the Kings debt within the 15. daies.

Into this offence fall all those Officers of the Exchequer, and others who forbid to make Acquittances under the Exchequer Seale, to every one for so much as he hath paid; and who oftner then once cause a debt to be leavied; who to take Rewards, whereby the Townes doe not in due man­ner according to the Constitution of Win­chester; or who suffer that the people be not surnished with Armes, according to Common appointment.

Into this offence fall all stealers of others Venison, and of Fish in Ponds, and of Co­nies, Hares, Pheasants, Partriges being in Warrens, & otherfowl, Doves and Swans, of the Eires of all manner of birds.

Into this offence fall all the Sheriffs, Bai­liffes, and other the Kings Officers, who unjustifiable by extortions take money of the people, as for defaults unjustifiable, or for sheaves or other Custome unalow­able, or for Plea whereof the Judge hath [Page 35]no jurisdiction; and those who take mony 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 loane of them; and those who by the authority of their Bailiffes make unju­stifiable Collections for monies, or other provisions, or Corne in Sheaves for Scot­talls, or other Feastivalls, or doe to the peo­ple other unlawfull grievance in the like case. And those sworn Officers who cause Fines, or Amercements, or other m [...]nner of duty to be oftentimes leavied upon one man, without making restitution; and those officers who take of other then of the King, or of their Lords, to doe their Office; and those who oftner then twice in the yeere hold Sheriffes Turnes, or who oftner then once in the yeere hold views of Frank­pledges in one Court; and those who by unjustifiable Articles amerce the people; and those who at Mills or Markets take outragious Tole, and those who amerce the people by Presentments not made by the whole Decenry, or by others then of Free-men.

Into this offence fall they who doe any thing upon another Inheritance by evill covetousnesse, or for hatred.

Into this offence fall Counters who take outragious Sallary, or not deserved, or who are attainted of ill defence, or of other dis­continuance, and those who deny their [Page 36]Seales in Judgement, and those who make Contracts which are forbidden.

Into this offence sall Usurers, who lend mony or other things, through covetous­nesse to take the forfeiture. And those who rob, or steale the Marriages of others, or run away with others Wives, or villaines with the goods of others.

And all Fore-stallers, by whom Victuals or Cattell are made deare.

They are Fore-stallers who within any Towne or Franchise buy to engrosse, and unlawfnlly to sell more deare; and those Butchers who sell unwholsome flesh for wholsome; and those Fish-mongers who buy and sellagainst the established Law; and all those of what Mysteries soever they be, who doe deceitfully in their trade or My­steries.

CHAP. 1. SECT. 11. Of Hamsockne, or Burglary.

BUrglary by an ancient Ordinance is a mortall offence; for the Law is, That every one be at peace in his owne house.

This offence is not done only by break­ing of a house, but is also done by a fello­nious 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 reb, or to beat those who are in rest within their houses. And although it be that these offenders doe not accomplish their purpose, if neverthelesse [Page 37]they make any breaking by their assault of the doores, windowes, or walkes, to en­ter felloneously, they are guilty of this crime.

Into this offence fall all those who fel­loniously force their entry into anothers house, and therein doe any violence against the peace, although they doe 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 waies, that is to say, of things, and of Women. This of­fence is here put because King E. 1. by his Statute made it mortall, which is more grounded upon the will, then upon disere­tion; for one fortis Whoredome, another Fornication, another Adultery, another Incest, and another Rape; but to speake properly we are to distinguish of the offen­ces, whereof the first offence is greater then the other.

Whoredome is the deslouring of a mar­ried woman felloniously.

Fornication is to ravish women not Mar­ried.

Adultery is to ravish anothers wife.

Incest is to ravish Cousens, Parents, or Affines.

Rape is properly the taking away of a woman for the desire of Marriage.

Rape neverthelesse 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 enjoyned the keeping of the Pleas of the Crown, which extend now but to Fellonies and Adventures.

• There are 2 kinds of Coroners
  • Generall and
  • Speciall

To the Office of generall Coroners it belongeth to receive the Appeales of all the County of Fellonies done within the yeere; to award the Exigents of Con­tempts, and to pronounce the Judgements of Out-lawries; and more, to enquire in what Pledge they were, or Decenery, or of whom Mainprized, and in whose Ward.

Speciall Coroners are Coroners of Li­berties, and of priviledged 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 burnings, and the wounds, and the other fellonies, that is to say, every one in [Page 39]his Bailiwick; and to see Treasure tothe [...] 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 Enquests of Felonies hapning within their Bailiwicks.

As to the view of the Carcase of the bo­dy of a man, it is his office that so soone as he shall be certified thereof, to send to the Hundred of the place to summon sufficient able men of the next Townes, 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 finde 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 laine 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 comming 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, then they are to pre­sent the manner of his killing, whether he dyed of anothers Felony, or of his owne, or by mischance; and if of blowes, whether of a staffe, or a stone, or a weapon; and the the Coroner is to Record in his Booke the names of those who were summoned and appeared not, that the same offences of disobedience remaine not nnpunished, whereby the Coroner could not at that [Page 40]time doe his office for want of Jurours.

In those Enquests lye 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 Enquests, Sheriffes at their Turnes, Bailiffes at the viewes of Franck-pledges, Escheators and the Kings Officers of his Forrests, have power by authority of their Office to send for the people, which none other have without the Kings Writ; and that is for the kee­ping of the peace, and for the right of the King, and for the common people.

CHAP. 1. SECT. 14. Of the Exchequer.

THe Exchequer is a place which was Ordained onely for the Kings Reve­new, where two Knights, two Clerkes, and two learned men in the Law are assigned to heare and determine wrongs one to the King and Crowne in right of his Fees, and the Franchises, and the Accompt, of Bay­liffes, and Receivers of the Kings Monie; and of the Administrators of his Goods, by the over-sight of one Chiefe 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 Earldomes and Baronies, so that none be amerced but by his Peers.

To this place there was a Seale assigned, with a Keeper of it, to make Acquittances upon every payment to those who desired them, and to seale Writs and Escheates un­der green Wax issuing from thence for the Kings Revenue.

In this place there are also Chamber­laines and many other Officers, who be­long not very much to the Law.

CHAP. 1. SECT. 15. Of inferiour Courts.

FRom the first Assemblies came Consi­stories which we now call Courts, and that in divers places, and in divers man­ners; whereof the Sheriffes held one Monethly or every five week; according to the greatnesse or largenesse of the Shires. And these Courts are called County-Courts, where the Judgement is by the Sui­ters if there be no Writ, and is by warrant of Jurisdiction ordinary. The other inferiour Courts are the Courts of every Lord of the Fee, to the likenesse of Hundred Courts; and also in Fayres and Markets, where right is to be ministred without delay, whether the matter concern the Plaintiffe 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 passe not forty shilling; value; and also they have Counsans of Trespasses, and forfeitures of the Fees be­twixt the Lords Plaintiffes, and the Te­nants Defendants, Et è contra.

There are other inferiour Courts which the Bayliffes hold in every Hundred, from three weekes to three weekes by the Su­ters of the Free-holders of the Hundred. All the Tenants within the Fees are boun­den [Page 51]to doe 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. yeeres, deafe, dumb, idiots; those who are Indicted or Appealed of any mortall Felony before they be acquitted, diseased persons, and excommunicated persons are exempted from doing Su [...]t, and although it be that such Free-holders may doe Suits at inferiour Courts by their Atturnies, never­thelesse the Judgement is not to be given or holden for forraign; and if any Plea be removed by Writ of Justities, Replegiatie, wast, or of other nature, that enable the Jurisdiction from which the Writ is origi­nally sent, and returneable.

CHAP. 1. SECT. 16. Of the Sheriffes [...]urnes.

THe Sheriffes by ancient Ordinances hold severall meeting; twice in the yeere in every Hundred, where all the Free-holders within the Hundred are [...]ound to appeare for the service of their Fees; that is to say, once after Michael­ [...]as, and another time after Easter; and because Sheriffes to doe this make their Turne; of Hundreds, such appearances are called the Sheriffes Turnes, where it be­longeth to Sheriffes to enquire of all per­sonall [Page 52]offences, and of all their Circum­stance, done within those Hundreds and of all wrongs done by the King and Queens Officers, and of wrongs done to the King, and to the common people, according to the points aforesaid in the division of of­fences.

All Free-holders within the Hundred are not bounden to appeare at these Courts, for King Hen. 3. excused some persons, & said; That it was not needfull that Arch-Bishops, Bishops, Abbots, Priors, Earls, Ba­rons, religious Persons, nay such people, not other who were exempted to doe Suit at inferiour Courts should appeare in pro­per person, if their appearance were not necessary for some other cause then onely 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 viewes of Franck-pledges.

OF these first Assemblie, it was also Or­dained; That every Hundred doe make a common meeting once in the yeere, not onely of the Free-holders, but of all Persons within the Hundred, Stran­gers and Denizens of the age of 12. yeeres and upwards, except of Arch-Bishops, Bishops, Abbots, Priors, teligious Persons, [Page 53]and all Clerkes, Earls, Barons, and Knights, Feme Coverts, Deafe, Dumb, Sick, Idiots, infected Persons, and those who are not in any Dozien, to enquire of the points afore­said, and of the Articles following, and not by villanies, nor by women, but by the affer­ment of Free-men at the least; for a Vil­laine cannot indict a Free-man, nor any other who is not receiveable to doe Suite in inferiour Courts, and therefore it was anciently Ordained; that none should re­maine in the Realme if he were not in some Decenny, and pledge of Free-men; it belongeth also to Hundredours once a yeare to shew the Franck-pledges, and the Pledgers, and therefore are the Viewes called the View of Franck-pledges.

CHAP. II. SECT 1. Of Actions.

WHen it is said that Kings and Princes have the Go­vernment and Correction of Offenders, with aide of the Prelates; and to that intent they are Gods Vicegerant, on Earth, and to doe the same they have Jurisdiction over the of­fenders by paines, and cheifly those offenders which are under their Jurisdicti­on; neverthelesse 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 shewed when he was in his Consistory, and demanded who was the Accuser of the woman-sinner; and because none presented himselfe an Accuser against her, to give us a perpetuall example that right Judge­ment cannot be given without there be three persons at the least, viz. a Judge, a [Page 59]Plaintiffe, and a Defendant, God said to the woman-sinner, That she should goe in peace or quiet, since it belongeth not to a Judge, to be both Judge, and Plaintiffe; and therefore it behooveth to speake of Actions, and who are and may be Judges, and who Plaintiffes, and who Defen­dants.

An Action is nothing else but a lawfull demand of right, and there are three man­ner of Actions which have their Introdu­ctions by Writs, and by Plaints in manner as followeth, viz. Personall, Reall, 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 seme Coverts are exempt­ed to doe Suit in inferiour Courts. On the other part, a villaine 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. yeares, nor in­fected persons, nor Ideots, nor mad-men, nor deafe, nor dumbe, nor parties in the Pleas, nor men excommunicated by the Bishop, nor criminall persons; for God [Page 60]when he was upon Earth entred into the Consistory where a sinner was to be judge­ed to death, when God wrote upon the ground, and said to the Suiters who came to Judge her, Who of you is without sinne? 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 Seate of God to Iudge offenders, when they themselves are guilty and Con­demnable.

And those who are not of the Christian Faith cannot be Iudges, not those who are out of the King; Allegiance; next, those who have no Commission from the King cannot be Iudges, not none whose Au­thority is repealed, not any one after Iudge­ment is given in the Cause; an example thereof appeateth in the Writ of Right, Et [...]nist ficeris, viceconnes faciat; not none after death, or the Returne; none whose warrant is vicious, not any one if his superi­out will not have him. A Iudge Commissary hath not power to Iudge but according to the points, and within the words of his Commission; and the originall Writ, no more then the Arbitrary Iudge hath po­wer to goe beyond the points of his sub­mission.

CHAP. 2. SECT. 3.

PLaintiffes are those who pursue their right against others by plaint.

All may be Accusers or Plaintiffes who are not forbidden by the Law.

Infected Persons, I [...]iots, Infants within age cannot accuse, or be Plaintiffes with­out their Guardians, nor Criminall Per­sons, nor an Out-lawed; exiled or banished Person, nor a woman wayve, nor a villaine without his Lord, nor a Feme Covert without her Husband, nor religious Per­sons without their Soveraignes, nor Per­sons Excommunicate, nor deafe, nor dumbe Persons without their Guardians, nor the Iudges of the Cases whereof they are Iudges, nor any one who is nor of the Kings Allegiance, so as he hath been more then forty daies within the Realme, ex­cept Approvers who are suffered to accuse criminally people of his own condition in favour of the peace.

CHAP. 2. SECT. 4. Of Rewards and Fees.

KIngs used to give Rewards to the cheife of the Stock, and to all those who faithfully served them; and from the Rewards of Kings others tooke example to reward their servants; and because no Free-man 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 [Page 64]by the yeare. And it is not lawfull for those Officers who take wages certaine of the King, to take any wages of the people.

But the Iudges who serve the King, it is lawfull for them to take twelve pence of the Plaintiffe after the hearing of the Cause and no more, although there be two Iudges, or two Plaintiffes in one Action: and the Pleader six pence, and a Knight sworne a witnesse foure pence, and every Iurour foure pence, and the two Sum­ners foure pence

Nevertheresse in the time of King Henry the 1. It was Ordained and assented unto; That Iurours sworne upon Enquests of Office, as in Assizes, Recognisances 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 monies, and the damages are the Defen­dants chargeable, if Iudgement be given against them.

And to those who followed any Suit for the Kings 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 Iudge was not to heare the Plaintiffes Cause if he put not in security to answer his Adver­saries damages, if he complaine of him wrongfully.

CHAP. II. SECT. 5. Of Countorr or Plaaders.

THere are many who know not how to defend their Causes in Iudgement, and there are many who doe, and therefore Pleaders are necessary, so that that which the Plaintiffes, or Actors cannot, or know not how to do by themselves, they may doe by their Serjeants, Atturnies, or friends.

Countors are Serjeants skilfull in the Lawes of the Realme, who serve the com­mon people to declare and defend Actions in Iudgement, for those who have need of them for their fees

Every Pleader of others Causes ought to have a regard to foure things. 1. That there be a person receiveable in Iudge­ment, that he be no Heretique, Excom­municate Person, nor Criminall, nor a man of Religion nor a woman, nor within the Orders of a Subdeacon, nor a Benificed Clerke who hath cure of Soules, nor under the age of 21. yeares, nor Iudge 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 doe 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 lyes, not consent to any such, but truly maintaine his Cly­ents cause, so that it faile not by any neg­ligence or default in him, not by any threatning, hurt, or villany disturbe the Judge, Plaintiffe, Serjeant, or any other in Court, whereby he hinder the right, or the hearing of the Cause.

4 The fourth thing is as his Sallery, concerning which four things are to be regarded; 1. The greatnesse of the Cause. 2. The paines of the Serjeant. 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 [...] doe any thing in dispite 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 Plaintiffe or Actor.

CHAP. II. SECT. 6. Of Attachments.

PErsonall Actions have their Introdu­ctions by Attachments of the body; [Page 67]reall by Summons and mixt Actions; first, by Summons, and afterwards by Attachments.

The Law requireth that offenders in case of death have not such mittigation or favour that they be brought or summoned, or distreined to appeare in Judgement by taking of their Cattell if the offenders be knowne, and notorious, and the Plaintiffe pursue them to soone 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 Horne and Voyce, so that all those of one Towne who can are to follow the Felon to the next Towne; 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 knowne, for it is not lawfull to kill the offender without his Answer, if he may be taken alive.

And if any one would complaine to have revenge, or to drive the offender to the salvation of his Soule; let him goe 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 enrolled; 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 Appeale is enrolled it belongeth to such Plaintiffes to [Page 68]recite their Appeales, and to finde Sure­ties to pursue them, or to remaine in Pri­son till they have found Baile; 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 appeare in Court to receive Justice when they shall be demanded, if they doe not prove their Appeales.

The Personall offences are these:

• Imprisonment.
• Mayhem.
• Wounding.
• Battery.
• Perjury.
• Usury.
• Rescusses.
• Forestallings.
• Breaking of Parkes.
• Resistance of framing lawfull Judgements.
• Executions of false Judgements, and all wrong­full offences.
• Carrying away of Treasure trove, of Wrecks, Waife, Estrayes.

The Attachments of mortall offenders are by their bodies without Sureties, and the Attachments of veniall Personall of­fenders are also by their bodies, but yet they are baileable.

Reall offences are those upon which are grounded Writs of right, of Cosinage, of Dower; of right of Advowson, of Entre, of Escheate, Writs of Quo jure, of For­medon, and of all Writs, feodalls.

Mixt offerices are those upon which [Page 69]these Writs are framed, viz. of Customes and Services, of Villinage, of Covenant, of Homage, of rendring 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. Appeales, and to whom Appeale is given.

THe Action of Appeale is not given to all alike, but every one is allowed to have his Action of Trespasse to whom any Trespasse is done, except such as cannot have any Action at all.

Every one may have an appeale of Bur­ning to whom the damage is done, and the property of the thing burnt doth belong.

Parents, Kinred, and Allies used to be admitted to bring Appeales of Murder; but the Appeale of the Wife of the kil­ling of her Husband is to be received be­fore all other; and yet not of all his Wives, but of her onely who lyeth betwixt his Armes, 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; neverthelesse she only is admitted to bring the Appeales of all the rest whom he last tooke to be his Wife, although in right she be not his Wife; [Page 70]and the reason thereof is because it be­longeth not to the Temporall Court to try, which was his Wife of right, and which in Fact; and the Appeales of all other are to be suspended, the pendant the same Appeale brought.

After the Appeale of the Wife is the Appeale of the Sonne 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 Sonne whom the Marriage proveth to be so.

After the Appeale of the eldest Son, the Appeale of the next of blood is used to be received, and so from one degree to ano­ther in the right Line of Cosinage; and if the blood faile in that Line, then they of the Collaterall Line are admitted to bring the Appeale; or the Kinted where the blood faileth, according to the degrees of Consanguinity and Affinity, and especially in the Line of the Fathers side; but the Appeales of Murder were restrained by King Henry the 1. to the foure next de­grees of blood.

And if any one within the age of 21. yeares doe bring an Appeale; the Defen­dant is not bound to answer so high an Action untill he hath passed that age; and therefore such Appeales 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, Clerkes and Lay­men, [Page 71]Infants and others of what condi­tion soever they be may bring Appeales, except those who are not suffered to bring any Actions; and although it be that many doe bring Appeales, yet one neverthelesse is admitted to continue, and pendant that, all the others are to be suspended. And in all Cases the Appeales against the Acces­sories are to be suspended pendant, the Appeale against the Principall, be it one or many.

CHAP. II. SECT. 8. Of Processe of Exigent in Appeales.

AT the first County the Coroner is to doe no more but to enter the Pledges, who properly are Main-prisors, and to Command that such take the Appeales, and seize all their Possessions and their goods into the Kings 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 Plain­tiffe come at another County, and recite his Appeale or Appeales, then are such Ap­pelees demandable only by their names, and by such names as they are best knowne by, that they appeare to Answer the Kings Peace, for if any one be Appealed as Son of the Father, and is knowne by another Sir-name, the Appeale is insuffici­ent, [Page 72]and by consequence abatable at the perill of the Plaintiffe; and at the third County they are to be demanded in like manner as before; at which County Court if the Appelees appeare not, not are taken into Main-prise to appear at the next Court, Judgement is to be given against them for their contempt by the Coroners; and those who doe appeare before Judgement of the Coroner, are presently to be delivered over to the Goale, where they are to be re­ceived without difficulty of Fine, or re­quest.

CHAP. II. SECT. 9. Of Goales and Goalers.

A Goale 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 remaine amongst men who are sound; so mortall siune is a kind of Lepro­sie, which maketh the Soule abhominable unto God, and therefore such mortall 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, Goales were Ordained in every County to keepe such mortall offen­ders in, there to remaine till Iudgement were given against them in case the offences were notorious.

There are 2 kinds of Prisons

• Common and
• Privite.

Every common Prison is a Goale, and none hath a Goale but the King only.

A private Prison is another Prison, from whence every one may escape who can, so as he doe no other Trespasse in the escape. None are imprisoned in a common Prison but for a mortall offence, and therefore it was forbidden by King Henry the 3. That none should leavy money for any escape in the Land, if the escape were not adjudged before the Iustices in Eyre, whether for the same a Corporall or a pecuniary Pu­nishment were awardable or not; and be­cause it is forbidden that none be pained before Iudgement, the Law requireth, That none be put amongst vermine, or in any horrible not dangerou place, not into any other paine; but it is lawfull for Goa­lers to fetter those they doubt, so as the Fetters weigh no more then 12. ounces; and to enable the keeping of those in the Goale who are violent, outragious, or doe other Trespasse there.

CHAP. II. SECT. 10. Of People Bayleable in Appeales.

SOme Appeales of mortall offences, al­though they are not bayleable by Law, [Page 74]neverthelesse they are suffered to be bay­led when they are brought into the Goale; as namely, the Appeales 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 Cor­porall punishment are not to be Bayled; 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 Appeale of Maiesty.

OF the Crimes of Majesty, not of falfi­fying, not of any thing which con­cerneth the Kings right, there lyeth no Appeale, but Actions, or Indictments.

For slanders of Sodomy, our ancient Fathers would never agree thus for the scandalls 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 abominablenesse of the sinne; but they Ordained, that such notorious sinners should be forthwith Iudged, and Iudgements framed against them.

Of the imagining of the Kings death, and of other kind of offences of Majesty against an earthly King, there were Accu­sations [Page 75]but for Indictments; for every true Subject was with all expedition to shew the same to the King, so that he be not taken or seised 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 himselfe, or by a Serjeant doe 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 yeare of the Raigne of such a King, into such a place came the said Walligrot to this Rocelyn, and found him to be in Counsell, and in assistance with Atheling, Turkille, Ballard, and others, to Arrest, or to make Prisoner, or to kill our Lord King Edmond, and to doe the same they were sworne to keepe Counsell, and to commit this Felony according to their power.

CHAP. II. SECT. 12. Appeale of Falsifying.

THis offence is not openly done, it is seene by a false Writ, or false money found in ones possession, and although that three Persons are necessary in Iudge­ment in this case, neverthelesse it is Or­dained; That the possessour of ill things be by the Iudge Ex officio driven to answer to [Page 76]the Title of their Possession thereof, which is not so in all Cases.

And if there be any one who will not plead to Jugdement, then he is to be re­turned to the Goale, and all his goods are to be seised into the Kings hands, and to be seised upon as in all Criminall Actions brought by Appeales or Indictments; also in veniall Actions such contumacies used to be condemned for not pleading, as by their pleading and lawfull 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; then it belongeth to the possessour of the money to prove the affirmative of his Answer.

And if any one saith, that it came to him from a man certaine, let it be as after herein is said.

CHAP. II. SECT. 13. Of Appeales of Treason.

TReason is set forth in Appeales in this manner, according as it is found in the Rolls in the time of King Alfred.

Bardulf here doth appeale Dirling there for that, that in as much as this same Dir­ling was the Allie of the same Bardulf, the said Dirling came such a day of the [Page 77]yeare, &c. and during the Alliance ravi­shed the Wife of the same Bardulf, or counterfeited his Seale; or did him some other mischiefe. Or thus; Hakenson, Fa­ther, or other Parent, or Lord, or Allie, this Dirling killed; or thus, remained in Aide, and in Counsell with Daffray, the adversary of the this Bardulf in speech which touched the losse of his life, or members, or of his earthly Honour; or thus, discovered his Counsell or his Con­fession; or thus, whereas he ought to have a lawfull enrolement according to Law of such a Plea, the same Dirling falsly enrol­led the same to his dis-inherison, or other­wise to his damage; or thus, whereas he was his Atturney in such a Plea, before such Judges to gaine 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 speake against him in such a Io [...]nt; and afterwards thus, this Treason did the said Dirling feloniously as a Felon, and traite­rously 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 Plaintiffe to shew the proofe of his Action, untill it be denyed of the adverse Party to hasten right, neverthelesse such usage is suffered, as in this case following, and others it is; as if any Sheriffe or other, take one to be Bayle or Surety for another and he deny­eth it, it behoveth the Plaintiffe to say that he wrongfully denyeth it, and there­fore wrongfully; for in such a yeare, such a day, and before such a one, of his owne will he became Pledge for such a one, and the Plaintiffe to hasten his businesse suffe­red to shew the same in his Declaration, and if he denyeth it, &c. the Answer of the adverse Party is suffered to be taken, and afterwards he is to goe to proofe by his Replication.

CHAP. II. SECT. 14. Of Appeale of Burning.

THe Appeales of Burnings 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 Corne, 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, &c. the same Harding [Page 79]came thither, and put fire into the house, and burnt the said Wetod therein, whereof he dyed; and this felony the said Harding did felloniously.

CHAP. II. SECT. 15. Of the Appeale of Murder.

OF the Offence of Murder, the Ap­peales are such, Knotting here Appea­leth Carling thus; That where Cady, Father, Brother, Sonne, or Vnckle of this Knotting was in Gods peace and the Kings, scil. in such a place, the same Carling came thether, and the same day and yeare, &c. with a sword, or other kinde of weapon run him through the body, gave him such a wound, in such a part of his body, where­of he dyed; this murder he did upon ma­lice fore thought feloniously, &c. Or thus, with a Hatchet, or with a Stone, or a Staffe struck the said Cady upon the head, or elsewhere, of which stroke he dyed such a day, at such a place, &c. or thus, That where the same Cady was hurt, in such a part of his body, of a curable wound; or had such a sicknesse, or curable Disease, and put himselfe to curing of this Carling, who said he was a Physitian; the said Carling came, and tooke upon him the recovery of the said Cady, who by his folly, negligence, &c. feloniously killed [Page 80]him; Or thus, so long delayed his delive­rance, whereby he killed him; Or thus, hung him, or feloniously killed him; Or falsly Iudged Regicald who first attainted the 12. Iurours, Witnesses, who wrong­fully hanged Gordian her Husband by 24. Iurours, who afterwards by severall Ap­peales hanged the first 12. Iurours; Or thus, pained him so much to make him confesse, and to be an Approver, that he falsly acknowledged himselfe to have of­fended, and made him to Appeale 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 goe, the said Car­ling came and carried the same Knotting from such a place, such a day, &c. to such a Water, Ditch, Marle-pit, or Defart, and therein threw him, and so left him with­out helpe 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, &c.

CHAP. II. SECT. 16. Appeales of Robbery and Larcine.

THe Appeales of Robbery are these? Osmond here appealeth Saxemond there, [Page 81]That whereas this Osmond had a Horse of such a price, the said Saxemond came such a day and robbed him of his Horse, &c. 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, &c. 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, &c. he feloniouslly, and as a Theife stole them away.

In these Actions meere two rights, the right of the possession, as of the thing rob­bed 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 robbed out of the possession of him who hath the property in the thing.

CHAP. II. SECT. 17 Of the Appeale of Burglary.

OF Burglary are these Appeales; A­thalf here appealeth Colgrum there; That whereas the said Athalf was in such a place in peace, &c. thether came the said Colgrum, and with force and armes assaulted his house, and in such a part brake it, or did such like other violence feloniously, &c.

CHAP. II. SECT. 18. Of the Appeale of Imprisonment.

OF the Appeale 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 paine, or inclosure, from such a day untill such a day, &c. or thus; contrary to suffici­ent Bayle offered by him, in a case baylca­ble detained him, or after Iudgement gi­ven for his deliverance from such a day to such a day, this felony he did feloni­ously, &c.

CHAP. II. SECT. 19. Of Appeales of Mayheime.

APpeales of Mayheime are these; Um­bred here appealeth Maimawood there; For that whereas the said Umbred, &c. the same Maimawood came and made an assault upon him of fore-thought malice, and armed in such a manner, cut off the foot, or the hand of the said Ʋmbred; or with [Page 83]such a staffe stroke 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, &c.

CHAP. II. SECT. 20. Of the Appeale of wounding.

OF Wounding are these Appeales; Barnings here appealeth Olif there; That whereas the said Barnings, &c. the said Olif with such a weapon strucke 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. Appeale of Rape.

AN Appeale of Rape is in this man­nor; Arneborough here appealeth Atheling there; For that whereas the said Arneborough, &c. the said Atheling came, and with force cast her downe, and in dispite of her feloniously ravished her, and because that every Rape used not to be [Page 84]holden for a mortall offence, no Appeale was thereof, if therein she did not say, and tooke away her Virginity.

CHAP. II. SECT. 22. Of Offences reall at the Kings Suit.

THere are many who seeke not Absolu­tion, notwithstanding they have of­fended against the King mortally; & there­fore because the King is bound Ex officio to compell them to salvation, the King used every seaven yeares to goe through all Shires in his Realme, to make enquiry according as before is said; further, in aide of such Eyres were Coroners, Sheriffes Turnes, Viewes of Franck-pledges and other Enquests to enquire 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 mortall offence before he were thereof endicted by the Oathes of honest men, before those who had Autho­rity to take such Indictments, and then they were first to be seised upon by their bodies, and goods, as in Appeales, 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 [Page 85]any Indictment but of Heresie 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 Roles of ancient Kings.

I say Sebourge there is defamed by good people of the sinne of Heresie, because that he of evill Art, and beliefe forbidden, and by Charmes and Enchantments he tooke from Brighten by name, &c. the flo­wer of his Alc, whereby he lost the sale thereof, so that Judgement be not given of lesse then three persons; or thus, Molling who is there defamed by good people, that such a day he denied his Baptisme, and caused himselfe to be circumcised, and be­came a Iew, or a Saracen, or offered or sa­crificed to Mahomet in contempt of God, to the Damnation of his Soule; and this offence he did feloniously, &c. 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 doe; that is to say, according as an Infant within age.

Of falsifying thus; I say for the King, that Mimunde there is defamed, &c. for that he such a day, &c. falsifyed the Kings Seale, or his Money, in such a kind, or such, &c.

Of Trespasses Indictments now cease; of Burnings thus, I say &c. that Seabright there is defamed, &c. for that at such a day, &c. he set a fire such a house or goods, &c.

Of Murder thus, I say &c. that such a one, with such a weapon struck Agole in such a part of his body, by which stroke he is killed, &c.

The degrees of Accessories are to be shewed after the Principalls according to their right.

Of Larcine in this manner; I say, that Cutbert there, &c. robbed such a man knowne, or unknowne of his Horse, or of other kind of goods, &c. or feloniously stole, or was consenting to the offence of such Theeves knowne, or of unknowne Theeves by taking of Theef-hoot which is a recept of Larcine, which he wittingly took to suffer such a one to passe, or to stop Suit, or wrongfully to procure his pardon.

CHAP. II. Sect. 23. Of Offences personall at the Kings Suit.

A Personall offence is divived into two branches, whereof the one extendeth to Persons, and the other to Goods.

The Veniall 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 grosse 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 & Bayliffs have the ordering of the Peace for smal offences.

The Veniall offences Personall are these, Perjury when one telleth a lye a­gainst the King;, and Perjury of his Offi­cers; The mortall offences not declared fe­loniously, as Imprisonment, Mayheim, Wounding, Battery, are to be shewed without Appeales, Allienation of old trea­sure sound, Diffesin, Reddisseisin, and many others; the declarations of Personall of­fences, venialls, infamatories, are to be declared at the Kings Suit in this manner:

I say for our Lord the King, that Y there is Perjured, and lyed against the King; that whereas the said I was the Kings Chancellour, and was sworne that he should not sell not deny right, not re­mediall Writ to any Plaintiffe, the said Y such a day, &c. and sold to such a one a Writ of Attaint, or other remediall Writ, and would not grant it him for lesse then halfe a marke, &c. Or thus, whereas he was one of his Iudges assigned, and was sworne to doe Iustice, &c. he in this man­ner, in such a Court gave Iudgement, or awarded against such a Party, or relea­sed such a Party, or usurped such Iurisdi­ction upon the King; or made himselfe Iudge, Coroner, or Sheriffe, Bayliffe, or other Minister of the Kings without War­rant; or thus, whereas he was Channcellor of the Exchequer, &c. he forbad to give an Acquittance of so much as such a one had paid of the Kings debt under the Ex­chequer Seale, or delayed to give an Ac­quittance from such a day till such a day, [Page 88]and would not give an Acquittance unlesse he bought it for so much; or thus, for that he holdeth Plea against the Kings forbid­ing, or in prejudice of the King and his Crowne, and the rather seeing it belong­eth not to any Ecclesiasticall 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 Kings Suit, of Personall 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 sworne fealty to him.

CHAP. II. SECT. 24. Of Veniall Trespasses, and Perso­nall Suits.

TO those who have cause of Action and will not pursue revenge according to their rights by Actions of Trespasse to recover damages for the Trespasses; never­thelesse ye are to distinguish where the Trespasse is done to the person of a man, and where to his goods.

And if to a mans person, every one may have an Action to whom the Trespasse is [Page 89]done, except those who can maintaine no Action without their Guardians.

And if to the goods, then 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 Crowne, or to any Church.

If to a man, then to distinguish if to a man free of himselfe, or to a man who is in ward.

And if to a man free of himselfe he hath severall 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 seve­rall Action lyeth, and therefore of goods which belongs to men of Religion, the Action belongeth to the Soveraigne of the house, in his name for him and his Covent, or in his owne name, and the name of him who is in his custody, if the Action be an Action personall, veniall.

And there is a difference betwixt Acti­ons which are to cause death, and pardo­nable Actions, for as much as to mortall Actions the Suit is to be brought first against the Principalls, and afterwards against the Accessories; and in Veniall [Page 90]Actions of personall Trespasses, all ought to be comprehended in the Plaint in com­mon, the Principalls, the Commanders, the Conspirators, and the Accessories, for as much as a man shall not recover severall damages by severall plaints thereof; never­thelesse none of the Accessories is to plead to the Action before the Principall hath pleaded, or be condemned for his Con­tempt.

Personall Trespasses used to be heard and determined in inferiour Courts of Lords of Fees, and then the offenders were Attachable by their bodies, and they used to keepe them and bring them to Judgement, if they were not bayled, with­out offending the Law.

The remediall Writ of Trespasse re­quireth bay [...]e to them, which whoso­ever could not finde was to remaine in Custody without his Keeper, because they were bound to acquit their Pledgers.

And if any neverthelesse become Pledges of their owne will in such cases, they are to be taken; but if they are thereby enda­maged by Non-suit of the party, they had no recovery against the principall Surety; a pursuing may be in divers man­ners, sometimes by Pledges, as it is of those who can finde them; sometimes by trusting them, as it is in case of For­raigners and poore, who have not ability to finde Pledges; and sometimes by the bodies of the Plaintiffes, as it is of Ap­pealees, who have no other Su [...]e [...]ies but [Page 91]the foure walls of the Prison.

And for the durenesse which is used to be done to the bodies of offenders in perso­nall offences, or veniall, King Henry the 1. Ordained; That they should arrest them first by their bodies, untill they justifie themselves by Bayle; and if they be not found, and if they doe not discharge their Bayle, 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 Plaintiffes, untill 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 affirme, and those are Pledges who reprieve any other thing besides the body of a man, for they are not properly Pledges, but Maine­prisors, because they suppose that those plevifables are delivered to them by Bayle for the body.

The ordinary Declaration of Veniall Plaints begins in this forme; I shew 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, &c. to the great damage of the Plaintiffe.

And of Trespasses done against the Kings Peace it is easie to shew, and of Trespasses done against Lords or Bayliffes, and in hatted of false Plaints, King Henry the Ordained, that audience were forbidden [Page 92]to Plaintiffes in veniall Actions, and that none was bounden to answer such Actions, if they had not present proofe of a law­full Suit.

And there is such a difference between a Criminall Action in pleading and a Veniall, that if a Serjeant put these words, scil. (feloniously as a Felon, &c.) in Declara­tion; of Veniall Actions, the Declaration; are vicious and abateable, because that no Judge hath power by a Veniall 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 Novell, Disseisin, and Reddisseisin.

AMongst other personall Trespasses, it is not to be forgotten to make menti­on of Dissesin, of which it is needfull first to see to the Title, why it is called Assize of Novell Dissesin.

An Assize in one Case is nothing else but a Cession of the Justice, in another case it [Page 93]is an Ordinance of Certainty, where no­thing could be more or lesse then right; for the great evills which is used to be pro­cured in witnessing, and the great delaies which were in the Examinations, Excep­tions, and Attestations, Randolphus De Glan­vile Ordained this certaine Assize, that Recognitions should be sworne 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 foure 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 generall Cession of the Justices, and of others, or from the propernames of such Actions.

It is called Novell, to put a difference from those which are ancient, for ancient­ly Kings used to goe over the Shires to enquire, heare, and determine offences, and to redresse the wrongs there, and that [Page 94]which was not brought in such Eyres of personall Trespasses before remained to the Judgement of God alone; and after­wards by reason of the multitude of offen­ces, and that Kings could not doe all by themselves, therefore they sent their Com­missaries who now are called Justices in Eyre, who have not power to decree and determine a personall offence, but for a thing brought and not determined in the last Eyre; Then for as much as the Dissei­sin, or the personall Action was brought before the Eyre, the Action or Disseisin was ancient; but if the Disseisin be done since the last Eyre, then it is a Novell Disseisin.

Disseisin is a personall Trespasse, of a wrongfull putting one out of possession, it is said wrongfull to put a difference from rightfull, 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 owne; or if you take from me that which is mine, I take it from you againe, I doe not offend, for I am warranted so to doe by the Law of Nature, seeing this usage is common to Men, Beasts, Fishes, Fowles, and other earthly Creature;, but I cannot doe so afterward; for if I take from you forcibly any thing whereof you have had the peaceable possession, I doe disseise you, and I doe 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 [Page 95]rightfull 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 anothers Tenement, when the rightfull ow­ner is at the Market, or else where, and at his returne cannot enter therein, but is kept out, and hindred so to doe.

Disturbance is, as if one disturbe me wrongfully to use my seisin which I have peaceably had, and the same may be done three waies.

1 As when one driveth away a distresse, so that I cannot distreyne in the Tene­ment lyable to my distresse, whereof I have had seisin before.

2 Another is where one doth Repleive his distresse by the Sheriffe, or the Hun­dred wrongfully.

3 As if one distreyne me so outragious­ly that I cannot manure, Plow, or the my Land duely; in which Case it maketh one an outragious 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 discent of Inheri­tance, or other lawfull 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 knowne possession, or as that which [Page 96]altogether favoureth of a possessory right.

The remedy of Disseisins hold not of moveable 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 terme of life, or yeares, accor­ding to the Contract, as well as the Land morgaged to such a one and his Heires untill so much be paid to such a Tenant or his Heires.

Eiection of a terme of yeares falleth into the Assize, which sometimes commeth by Lease, or Baylement, or Loane, and some­times by right of Wardship by the Nonage of some Heire, 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 lawfull Presentments, and whereof a Bar­gaine is made betwixt any Doner, and any Purchaser, & although that the Purcha­ser cannot present living the Clerke of the Doner instituted into the Church; the Ti­tle neverthelesse of Contracts barreth not altogether the Donee, so that afterwards he cannot present against the forme of the Contract, and if he doe the Doner 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 [Page 97]doth belong in his owne 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 then their terme 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 rayle.

On the other side fall into offence those the Kings Officers, and others who dis­seise a man, or a Corporation of their Franchises, whereof they have the Inhe­ritance by lawfull Title, if not through the default, abuse, or negligence of those, or of their Bayliffes to whom the Franchises belong.

Into this offence also fall all Atturnies, who yeeld up the Inheritance, or Free­hold of their Clyents in Judgement, and the Justices also who yeeld to them, and the Tenants also; for it behoveth not At­turnies to lose their Clyents rights, but it behoveth them to defend them till a right­full Judgement be given.

Into this offence fall all those who com­mit any wast, exile, or destruction in Lands, as that which is not justifiable by Law, as those who assigne over Lands to others, where in the Feoffments to them­selves, or their Ancestors there is mentio­ned but of Heires only, and that may be two waies, viz. to Heires generall, or to spe­ciall Heires, named as in Fee tayle, or not [Page 98]named, as in Franck-marriages.

This Action all Persons may bring, Men, Women, Clerkes and Laymen, Infants and others of what condition soever they be, who are not forbidden by the Law.

It is forbidden to Villaines 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 owne names, but in the name of the Lord

The Law also denyeth the Suit to those who have withdrawne themselves from the same action in Judgement, or have re­leased or quit-claimed their right.

And note, that Retrahere, & sub-trahere 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 barre him, if he doe not openly declare the same; but sub­trahere withdraw his Action, every Plain­tiffe may doe either by himselfe or his Atturney, whether he be present in Court or absent, and although it be that one will not pursue his Action, yet he doth not so barre himselfe, nor withdraw himselfe, but that he may have a new Writ, and a new Plaint, if he doe 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 appeare in the force, or in the aide.

CHAP. II. SECT. 26. Of Distresses.

ANy Action rightfully grounded upon a Personall Trespasse, accrueth to people wrongfully distreyned, which is called a Distresse; and because that none can cover his Robbery, or his Latcine by Distresse, it is 1 to be knowne what is the division of Distresses.

2 Who may distreyne.

3 When, and of what things a Repleive lyeth.

A Repleive is nothing else but a reaso­nable distresse.

A reasonable distresse is to the value of the thing in demand without any other fault, for no outragious distresse is ter­med lawfull.

There are two manner of Distresses, a dead distresse, as of Corne, Wine, and other such Chattels; and a live distresse, as of a Man, a Beast, and of such like things.

No man can distreyne who is not war­ranted so to doe by Law, or by some other speciall deed.

1 By the Law, as for Damage feasance, and for Debts and Contracts of Forraign­ers; for Forraigners are distreynable by their moveable goods, and summonable [Page 100]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 Arrerages of Accompt, or other thing.

2 By Deed, as if you grant me any An­nuity, and doe grant me to distreyne in the Lands for the Arrerages of the same, or other service, and binde your Pos­sessions which are not of my Fee in whose hands soever they come to a distresse.

When and what things a man may distreyne.

A man may distreyne Cattell or other things so soone as he findes them damage feasant, and not the day after, and after the time of paiment, and not before, and not every day; And in the night a man may not distreyne, but only in the day time, but for damage feasant; for before Sun rising, or after Sun set no man may distreyne but for damage feasant, where a man may distreyn in places, or Lands with­in the Fee, lyable to distresse and not else­where. Of what goods a Distresse may be.

Of all goods which the Law forbid­eth not, the Law forbids that a man shall not distreyne within the view, where he may have a sufficient distresse in an open Covenable place.

A Covenable dead distresse is not by Ar­mour or Vessels, by Robes or Jewels, by Writings if there be found another di­stresse sufficient in it selfe.

A Covenable live distresse is not to be of Sheepe which are guelt, Muttons, of [Page 101]Doggs, Birds, Fishes, or by Savage Beasts when there is a sufficient distresse found of other Cattell.

A distresse is to be carried, lead, or dri­ven away at the will of the distreyner, and in case any distreyner finde not any di­stresse but within some inclosure, in such case he can doe nothing, but to shut up the goods inclosed, and so sequester them without doing any other violence, and if a man breake up such Pound, or the locks of it, or part of it, he greatly offendeth against the Peace, and doth Trespasse to the King, and to the Lord of the Fee, and to the Sheriffes, 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 breake the Peace.

A dead distresse found in a Covenable place, nor a live distresse is not to be led, or driven out of the Mannour, 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 distresse, and he who is the owner may be least endamaged.

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 perpetuall, as those of Matrimony; others are temporary, as of Baylements, and Leases; and one kind is mixt, as of Exchanges, which sometimes are for a time, and sometimes for ever; and one speciall kinde is an Obligation.

And because the Law doth not enter­medle 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 forbideth that none Contract with the enemies of the King of Heaven, nor with the enemies of their earthly King; not with any mortall offenders, not with those who are not of the Christian Faith, not with Out-lawes, nor Waives, nor with those who are knowne Felons, not Ex­communicated, nor with any who are in Ward, if not to the profit of those who are in Ward; nor with Deafe, nor Idiors, [Page 105]nor Mad-men, nor Appealees, nor Per­sons endicted of Crime.

CHAP. II. SECT. 28. Of Villinage and Neiftie.

AN Action of Villinage, or Neiftie is a mixt Action, grounded upon a Personall Trespasse done to another, when a man porsecutes a Free-man to enslave his blood.

This Action is a Mixt Action in favour of Liberty, for very seidome will any one depart from his Lords Mannour, if he claime not himselfe to be a Free-man.

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, neverthelesse by Constitution, and by the Deeds of men, (are) they and other Creatures enslaved, as it is of Beasts in Parkes, 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 Stocke can be found there­of; which slavery according to some is the Curse which Noah gave to Caanan the Sonne of Cham his Son, and to his issue, and according to others of the Philistines, who became slaves at the battaile which was betwixt David and the children of [Page 110] Israel of the one party, and Goliah the Phi­listine on the other part.

And as other Creatures are kept in inclo­sures, 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 doe 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 Villaines who are begot of Villaines and Neifts in servitude, whe­ther borne in Mattimony or out of Matri­mony; those also are Villaines who are begotten of Villaines, and borne of Free-women in Matrimony, and those are Vil­laines who are begotten of a Free-man and a Neife, and borne out of Matri­mony.

The other manner of Villaines are those who are adjudged Villaines by a Writ of Nat vo babendo, and their issue after them.

Villains become free many waies; some by Baptisme, 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; [Page 111]but norwithstanding the same a man shall not lose his right thereby who will sue for them.

On the other part villains become Free­men if their Lords grant, or give unto them any free estate of Inheritance to discend to their Heires, or if the Lord take their Ho­mage for their land, or if the Lord eject them out of their Fees and give them sustinance; or if he put them in a common Prison if it be not for crime.

A woman after she is put in possession by her Lord, is never againe to be chal­lenged as a Neife, notwithstanding she be sold.

And if the Lord suffer his Villaine to Answer in Judgement without him in a personall Action, or to be a Jurour amongst Free-men, as a Free-man knowingly, and without the Lords claime; the Villaine hath this Plea to the Villinage if he re­turne not of his owne accord.

Also a Villaine becomes free through the Lords default in a Writ of Native Ha­bendo, as by his Non-suit in the Writ.

Also by proofe of a free Stocke, or to have been borne of free Parents.

Also by the Lords grant in Court, and also by prescription; also for default of proofe, and also by the Lords negligence, as by the remaining of the Villaine with­in a City, or upon the Kings Demesnes for a whole yeare; Or if wittingly he suffer his Villaine to be a Suiter in another Court, or to be sworne in Assize, or else­where [Page 112]amongst Free-men; if a Villaine depart from his Lord claiming free estate, so that he cannot seise him within the Mannour within the yeare, or out of his Fee, nor after his Writ of Nativo Habend. brought, it belongeth to the Lord that he bring againe that Action which is Vice­Countiel, and pleadable in the County by Summons, and Distresses of his Lands; for the Law requireth that he doe right, and use not force

The Parties being brought to Judge­ment in the County Court, and the Action being declared in the Defendant by way of exception may plead that he is Franck, and because that a free estate is of a higher nature then Villinage; therefore because the Sheriffe hath not power to try so high a Plea by the Writ of Nativo Hebendo, those Writs and such Pleas are suspendable till the comming of the Justices in Eyre into those parts; but if the King Com­mand not to the contrary, those Pleas are not adjournable but from one County Court to another

Note that all Villaines are not slaves, for slaves are said Regardant, as before; they can purchase nothing but to the Lords use, they know not in the Evening what ser [...]ice they shall doe 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 [Page 113]they finde them wherewith to live; nor is it law full for others to receive them with­out their Lords consent; those can have no manner of Action against any man without their Lords, but in case of Felony; and if those slaves hold Lands of their Lords, it is intended that they hold them from day to day at their Lords will, and not by any certaine services.

Villaines are Tillers of Lands, Note by Villaines in this place is meant Copy-hol-ders. dwelling in Upland Villages, for of Vill commeth Villaine, of Burough Burgesse, and of City Citizen; and of Villaines mention is made in the Great Charter of Liberties, where it is said, that a Villaine be not so grievously amerced that his Tillage be not saved to him, but the Statute maketh no mention of slaves, because they have nothing of their owne to lose.

And of Villaines are their Tillages cal­led Villinages. Copy-hold called Copy holders.

And note, that those who are free, and quit of all servitude, become servile by Contracts made berwixt the Lords and the Tenants.

And there are many manners of Con­tracts of Fees, as of Gift, of Rent, of Ex­change and Lease, which all may make for a time, or for ever, and quitment without Obligation, and charge of service, and with charge.

And these Contracts (as all other) are made by Writings. Charters, and Minu­ments, by solemne Witnesses, according to the example of Contracts of Marriages, [Page 114]which ought to be a patterne to all other Contracts; according to which Example were the first Contracts made by the first Conquerour, when the Earles were enfe­offed of the Earldomes, Barons of the Ba­ronies, Knights of Knights Fees, Serjeants of Serjanties, Villaines of Villinages, But­gesses and Merchants of Boroughs, where­of some received their Lands without Ob­ligation, or service, or in Frankalmoigne; some to hold by Homage, and by Service for defence of the Realme, and some by Villaine Customes, as to Plough the Lords Lands, to Reape, cut, and carry his Corne, or Hay, or such manner of service, with­out giving of any wages, whereof many Fines were leavied of such services, which make mention of the doing of these base services, as well as of other more gentile services; and although it be so, that the people have no Charters, Deeds, nor Mi­numents of their Lands, neverthelesse if they were ejected, or put out of their Pos­sessions wrongfully, by bringing an Assize of Novell Disseisin, they might be restored to their estates as before, because they could averre that they knew the certainty of their services, and workes by the yeare, as those whose Ancestours before them were Asteries for a long time, in case Dissei­sors were not their Lords.

And thereupon Sr. Edward in his time, Doom-day Booke, Vt credo.caused enquity to be made of all such who held, & did to him such services as plough­ing his Lands, &c. besides their lawfull Cu­stomes.

And afterwards the people lesse fearing to offend then they ought, many of these Villaines by wrongfull Distresses were for­ced to doe their Lord the service of Rechat of blood, and many other voluntary Cu­stomes, to bring them in servitude under their power, for which their remedy was a Writ of Ne investoè vexes.

CHAP. II. SECT. 29. Of Summons.

THis Chapter maketh mention of speci­all Summons, to make a difference from generall Summons, where all Free­holders and others ought to come accor­ding to the nature of the Cry whereof, and every one may Summon by a Common Cry; but of this Summons this Chapter maketh not mention.

A speciall Summons is a friendly admo­nition of an amendment of an offence, or wrong; and because none is tyed to An­swer to any Action reall or mixt before a Summons, therefore it is to see;

• 1 Who have Authority to Summon.
• 2 Who are Summonable.
• 3 In what place he is Summonable.
• 4 How farre one is Summonable.
• 5 At whose Charges.
• 6 How often.
• [Page 116]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 personall offence, not any one who is not a Free-holder.

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 Mannour appendant to such a Court where he ought to Answer, nor in all places of the Mannour, but only at the Tenement in demand.

4 How farre 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 Enquests taken ex officio; for no Free-man is compelable to travell, and appeare in Judgements at his owne 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, neverthelesse re-summo­ned holdeth place in some case.

7 Who may and ought to be Summo­nors; no man is compellable to be a Summonor if he will not agree to it; never­thelesse all those may be Summonors who [Page 117]will, that are not forbidden by the Law. Women, not Villaines, 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 loyall 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 daies to provide his Answer, and to appeare in Judgement. In Juries neverthelesse, nor Enquests 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 hinderance in comming to the Court, and lyeth as well for the Plaintiffe as for the Defendant.

The Law of every Essoigne is; That the cause of the hinderance be enrolled with the name of the Essoigner, so that if the diverse Party, or his Atturney, or Essoignor will traverse the Cause, he is to be received so to doe, 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, uo Defendant in per­sonall [Page 118]Actions, not any after default can be Essoigned, not any present in Court, nor doth Essoigne lye 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 joyned issue in Judgement though the Jury ap­peare not, nor in case where the Plain­tiffe hath not found Surety to pursue his Action, nor where one hath Atturney 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 re-summoned in Mort-daunce­ster, and Darrein presentment, nor when the day is not come, nor where the Es­soigner commeth 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 Kings Officer as Offi­cer, nor he to whom it is commanded that he appeare 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 Mad-men, to Idiots, to Excommunicated Persons, to the Jud­ges, and uo the Parties in the Cause,

Essoigners at other times not warranted, [...] [...]ainted of false delayes, to criminall Persons, and to those who are not of the Christian Faith, or in the Kings Allea­giance, it is forbidden that they be Essoigners.

There are chiefly two kinds of Essoignes; the one of the Kings service, the other of hinderance.

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 generall passage of all to the Land of, &c. — and this Essoigne is not otherwise adjournable, but that the Par­ties goe without day, and are to appeare againe by Re-summons of the Plaintiffes, at the returne of the Defendant. This Essoigne is not allowable to Plaintiffes, nor to the Defendant reasonably Sum­moned before his going from his house in a personall 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 Burgage.

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 yeare, 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 halfe a yeare [Page 120]and these Essoignees are to appeare the next Courts following the Termes ad­journed.

After Re-summons holdeth place the common Essoigne De mal venier, and also after the terme of Adjournment, but this common Essoigne never holds place before the Essoignes before said.

The Essoigne of the King on Earths service is in two manners.

1 The one is of those who serve as Souldiers, 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 Kings 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 Realme, and he hath no day; But the Plaintiffe is with out day, and the Plea is to be re-continued in the same E­state when his Adversary shall be returned.

These latter Essoignes are allowable in Pleas, summonable to Plaintiffes 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 Dumbe, nor Mad-men, nor to any in custody, nor to any who is not free of himself; nor to any Atturney, as Atturney, nor where the Essoigner ac­knowledgeth the Cause in Judgement to be false, nor after any Cape, nor after di­stresse in the Land.

After the Essoignes of the Kings service lyeth an Essoigne of Malo veniendi, but not è con [...]a.

The Essoigne of disturbance or hinde­rance is dividable, either of sicknesse, or of some other hinderance, as of those who comming towards the Court are taken by the Kings 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 appeare at the day.

The Essoigne of hinderance and sick­nesse is divideable, either of languishing, which is called De malo lecti, and that holdeth place for a yeare; or of sicknesse in the Journey, and that holds not but to the example of a common Essoigne; in these Essoignes of hinderance are Essoignes De malo veniendi.

This Essoigne lyeth after every Sum­mons, and generall R [...]-summons upon Pleas, except to Jurours, and those who are summoned for the common-wealth

But of Adjournments it is to distinguish; for in the Eyre of Justices the Adjourne­ment is for three daies, or foure at the most, or lesse according as the places are [...]eare, or containe; and to this Essoigne is respi­ted fifteen daies at the least.

The Essoigne of sicknesse in passage ly­eth before the Essoigne De malo lecti, and also after the yeare of the languishing, and it lyeth before appearance, and af­ter appearance, except in foure Assizes; [Page 122]and where it lyeth in Actions it holdeth in Warranties.

This common Essoigne is not allowable in the cases aforesaid, but once after the Parties have joyned issue, not after the Parties have agreed to appeare without Essoigne, nor where a Bishop is comman­ded that he have or cause such a Person to appeare, nor there where many claime by one right, or are Tenants of the same right, nor to a man and his Wife, not to all the paeceners; but if a man dyeth without Heire after the Writ purchased and brought, the Writ is thereby abate­able, because at the day of the date the Plaintiffe had no Action against the other parceners which are alive, as to that of the Party.

This common Essoigne lyeth as well for Infants where they are impleaded of their Lands, as for men of full age.

And as the same is allowed to the Te­nant, so is it warranted where no sicknesse is adjudged; this Essoigne is allowable from day to day, according to the com­mon Adjournments in Writs of right, till the sicknesse be Judged, if the Tenant rise not before from his sicknesse; never­thelesse none can doe it in such a case if not with the Plaintiffes leave, or by the com­mand of the King if the Plaintiffe will not give him leave.

This Essoigne holdeth in the Writ of Droit Potent sent to the Lord of the Man­nour, and in a Writ of Droit close of [Page 123]Lands holden of the Kings in Capite, and in the Writ of Customes and Services, after that the deforceor hath pleaded, and said that the Batraile or the Grand Assize may be joyned.

The Essoigne De malo Lecti is in Court for two yeares when the sicknesse turnes to weaknesse, this Essoinge lyeth not for the Plaintiffe; and after the sicknesse ad­judged, it is adjournable by a yeare of respite to the Court of London.

Weakenesse lyeth not in any Writ of right after appearance, but where Battaile may be joyned, or the Grand Assize.

This Essoigne De malo Lecti was ne­ver allowable to any Atturney, nor to any but those who had a Warrant before the common Essoigne cast by the Tenant, nor to any after the weake­nesse adjudged, nor without [...]sing; nor in Justi [...]es, nor in the Writs De quo jure, nor De rationabilibus divisis, nor Quo warranto, nor Customes and Ser­vices before that the Court be certified that Battaile might be joyned, or the grand Assize.

This Essoigne of De malo veniendi is called De malo villa, and this ly­eth in case where one appeareth the first day in Judgement, and is sud­denly taken with sicknesse in the Town, that he cannot the next day appeare in Court.

This Essoigne may be cast the second [Page 124]day by one, the third day by another, and the fourth day by a third; in which case the Judge ought to receive the Atturnies of those who are sicke, but this Essoigne lyeth not but there where the Essoigne De molo lecti lyeth.

CHAP. II. SECT. 31. Of Atturnies.

BEfore a Plea put into Court by Es­soignes by Attachment, or by ap­pearance of the Parties, none is to be received by Atturney, no more then a Plea is removeable out of Court into a higher Court, where the Plaint or the Writ is not brought, nor any is to be received by Atturney in a Plea which was, nor in a Plea which shall be, but onely in a Plea which is Pendant in the County Court, or else-where, or is brought by the Kings Writ, and this Plea be afterwards removed into a higher Court. By this removing the Atturney is not removed, for no Atturney is remove­able unlesse he whose Atturney is come into the Court in proper person and re­move him, if not in case where one hath generall Atturnies, for generall Atturnies may appoint speciall, and remove them, [Page 125]nor any can receive Atturnies after the Plea brought but the King, or other war­ranted by a speciall Writ, if not in the presence of the parties.

All may be Atturnies which the Law will permit; Women may not be Attur­nies, nor Infants, nor Villaines, nor any who are in Custody, or any other who is not free of himselfe, nor any who is crimi­nous, nor any who are not sworne to the King, nor any in any personall Action, nor in an Accompt, nor in Nativo habendo; Plaintiffes notwithstanding they have At­turnies, in personall Actions are not to appeare, not answer in Judgement by no Atturney, but he disseiseth his Clyent when he doth it.

CHAP. III. Sect. 1. Of Exceptions.

IT behoveth the Defendant to Answer the Plaintiffes Declaration, and be­cause the people commonly know not all the Exceptions in Pleadings; Coun­tors are necessary, who know how to advance and defend their Clyents Causes according to the rules of Law, and the Co­stoms of the Realm; and the more needfull are they to defend them in Indictments and Appeales of Felony, then in personall or veniall Causes; and the better to helpe our memory, which every day inclineth to forgetsulnesse, it is necessary to shew what is an Exception, and the division of it, and the order of Excepting, or Pleading; for some account them guilty who Plead not, or Plead ill, or not sufficiently; for example, If any one Vouch one to warranty, and Judgement passe (if he tell not the yeare, or before what Judges the Judgement pas­sed) it is as if he had said nothing; and so of other Cases, and although a Plea be requisire, neverthelesse every one is not received to plead; for some are admitted to [Page 129]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 yeares, she is not admitted to Plead in any Case without her Husband, but in Case where her dis-inheriting, or that which doth amount to as much doth appeare by the malice, or negligence of her Husband; & if she be of full age, then she shall so An­awer alone in cases of death and Felony; and so it is of men within the order of Reli­gion, and of Villaines, 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 alleadged for Answer, either to delay or barre 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 Dillatory may have a recourse to [Page 130]the Peremptory, but not è contra. And of Dillatories some are principall, and some are secondary, and from the secon­daries there is no recourse to the prin­cipalls, and according to their degrees are they put in, partly to helpe out re­membrance.

And some Exceptions are in Counts, in Replications, and Re-joynders, and so forth untill the truth be cleared in the proceedings of the Pleas, whereby one may surely come to give cleare Judgements.

Voucher to warranty lyeth not in personall Actions, although that averre­ments by Record, and Minements, and Witneffes availeth.

CHAP. III. SECT. 3. Exceptions Dillatories.

THere are many Dillatory Exceptions, whereof the first is to the Judge, and that many waies; 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 Iudge Deligate hath no Power, or Coun­sance in the Cause, as it is of the person of a Clerke, by reason of the Priviledges of the Church; or because the ordinary [Page 131]Iudge hath not power or Counsans of a thing done out of his Iurisdiction, 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 Priviledge of Clergy, as if a Clerke be ordered in Court before a Lay Iudge to Answer to an Action for a personall Trespasse, and especially in a Case criminall and mortall Plead that he is a Clerke, the Iudge hath no further Counsans of the Cause, for the Church is so enfranchised, that no Lay Iudge can have Iurisdiction over a Clerke, though the Clerke will acknowledge him for his Iudge; and in such a case he is with­out delay to be delivered to his Ordi­nary.

Neverthelesse to give Actions to Plain­tiffes against the Accessories in Appeales and Indictments, it belongeth to the Iudge Ex officio to enquire by the Oathes of honest men, in the presence of the Clerke whether he be guilty or not, and if he be [...] thereof, then he is with­out delay to be delivered to his Ordi­nary, [Page 132]and the Plaintiffe shall Sue against the Accessories in the Kings Court, and in the Spirituall Court against the Clerke, and the Clerke 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.

Sit, he ought not to enjoy the benefit of this Priviledge, 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 lawfull Order of joyning together of a Christian man and woman by their assents; and as of the Diety 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 remaine in that Unity who takes to himselfe a Plurality; and of a Plu­rality, ariseth this offence of Bigamy, which offence draweth Clerkes nearer the Lay Power.

And note that Bigamy may be two waies; one by a Plurality of [...] Vives, as [Page 133]he who Marrieth two wives or more, the one after the death of the other, or out­living the other; the other is plurality of Husbands as well as wives, as it is of a widow who suffereth her selfe 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 Clerke is Bigamus, the Bigamy is triable in the Lay Court; if neverthelesse the Jury doubt thereof, then the Ordinary is to certifie the same at the Command of the King, as in the case of Matrimony when it is denyed. On the other side, a Clerke is incounterable by other Replications, as he is for being a murderer, or a notorious lyer, or of such a condition as the Church is not to protect him against the Kings 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 Dillatory Pleas in this manner; Sir, I de­mand the sight and the hearing of the Com­mission, whereby you claime Juri [...]diction over me; and if the Judge doe not deny it, or cannot shew it (notwithstanding that no Judge Deligate is compelable to shew his power) yet may the Party plead thus; Sir, I appeale from this Commission, be­cause [Page 134]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 waies, as if it be not sealed with the Kings Seale of the Chancery, for none is tyed to yeeld obedience according to the Lawes and Cu­stomes of the Realme to the Kings Privy Seale, or to the Seale of the Exchequer, nor unto any other Seale, but onely to the Seale which is assigned to be known of the common people, and especially in Juris­dictions and Originall Writs, if not for the King only. Or it may be vicious be­cause the Seale is counterfeited or falsified, or because the King is not named in the Writ, he not being out of the Kingdome, not in Ward; or because the Writ contai­neth Summons in the Action where it is personall, or Attachment where the Action is mixt or reall, or because the Seale is not fastned 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 soone; Or because it hath rasure, or enterlining, and diversity of hands, and of words, or false Latine; 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 dyed before the Writ was brought, or because the Writ is false in [Page 135]in the day of the date, or because the Com­mission requireth the association of one who is not present; Or because the Writ was never sealed, or because the fact was not done within his Jurisdiction, or in a place not there determinable, or because the Iudge hath not power or Counsance either of the quality or the quantity of the thing.

CHAP. III. SECT. 7. Exception to the Person of the Judge.

ALthough the Writ be good, and the Power be sufficient, yet there holds Dillatory Exceptions to the Person of the Iudge (as it is said) of such Persons who cannot be Iudges.

CHAP. III. SECT. 8. Exception to the time.

OTher Dillotories there are of time, of place, of houres, of manners, &c.

And note, there are three manner of times exempted from Pleas, in which no Patries fit in Courts and give Iudgements, [Page 136]whereof two are by Law, and the other at the Will of the King.

One time containeth two Moneths, viz. August, and September, which are assigned to gather [...] the fruits of Corne, &c.

The other times containeth the Feasts, and the Sundaies, which are appointed Feastivalls for the honouring of God, and the Saints, which Feasts are these:

1 The day of the birth of Christ, of St. Stephen, of St. Silvester, and the Epipha­ny, and the Purification of our Lady, Easter weeke, of the Rogations, which containe three daies; of the Assention, of Pentecost, of the Nativity of St. John the Baptist, of the twelve Apostles, of St, Law­rence, and of the Assumption of the Mother of God, and her Nativity, of St. Michael, and of all Saints, and of St. Martin, with all such Feasts which all Bishops hold Feasti­valls in their Bishopricks, for that they are Canonized; besides these the dales of Re­liques, of the Anunciation of the Mother of God, and of her Conception, and of the invention of the Crosse.

And note that whereas God Comman­ded to keepe holy the Sabbath day; it was Ordained, after the Resurrection, that we keepe holy the Sabbath Daies.

The third time is forbidden by the Kings Proclamation, of Houres may arise Dillatories, for after the houre of Noone, or in the Night, no Plea is to be holden.

CHAP. III. SECT. 9. Exception of the place.

OF the manner arise Dillatorie, for in Riding, nor in Walking, nor in Tavernes, nor else where, but in knowne places for a Consistory can any Court be holden.

CHAP. III. SECT. 10. Exception to the Person of the Plaintiffe.

OTher Exceptions Dillatories arise from the Persons of some Plaintiffes, as it is of those Persons who are re­bukeable of accusations. Other Exceptions Dillatories rise from the Persons of the Pleaders, or of the Atturnies, or of the Essoigners, for none can doe that by his Atturney which himselfe cannor doe, nor can any be an Essoigner, Atturney, or Pleader who may not be a Plaintiffe.

CHAP. III. SECT. 11. Exception of Person, and of his Custody.

OR he may take Exception against his owne Person, and say that he is not within the Kings Power, or if he be imprisoned for a greater offence, or Appealed, or Indicted of Crime, or of a higher Crime; Or he may say, that he is not bound to Answer thereunto, for as much as he is not brought to Judge­ment by a right course, which willeth that no man may be attached by his body, when he is distreyneable by his Lands or other goods, if not for a per­sonall offence.

Or he may say, that he is not tyed to Answer to any Action which touch­eth losse of life or member, or right of property, untill he be of the full age of one and twenty yeares or more; and there are other Dillatories of the Persons of the Answerers which [...]ppearebefore.

CHAP. III. SECT. 12. Exception of Summons.

IN Pleas of Summons he may say, he ought not to Answer, because the Plaintiffe holdeth no Suit of Distresse; nor hath any other manner of proofe present; Or because the Plaintiffe hath not found Sureties to pursue his Plaint, or because he was not summoned, or not reasonably summoned, or that he recei­ved the Summons by no Free-man, or but by one Freeman; Or because he was summoned too late, or because he was never summoned what thing to an­swer to, or because he was not summno­ned against the Plaintiffe.

CHAP. III. SECT. 13. Exceptions of vicious Cou [...].

AS Writs which are vicious are aba [...] ­able, so also are vicious Appeales; as if the Appeales be not brought within the yeare after the Felony done, or not be­fore the Coroner, or not in the County where the offence was done, or not in a [Page 140]right place, or for variance, or for Omis­sion, or Interuption, or because the Plaintiffe is batred against others in the same Appeale.

Sometimes it happeneth that the thing which is robbed or stolne is found in the possession of a true man, against whom the Owner of the property, or of the possessi­on frameth his Appeale, as he who is a Robber of another, in which case there is a difference, for if it be found that such a thing was given, sold, or delivered to him without Coliusion, in such case the possessor is acquitted, or at least Bayleable untill the next comming of the Iustices; and when the Iustices come, the first possessor thereof is to be Arraigned, and he may shew how it came to him; neverthelesse if he would vouch one to warrant it he cannot, nor deny the Title of his possession, but in the name of Vou­cher he may say, that it came to him by lawfull Title, as that he bought it in such a Market, or in such a place, without men­tioning of whom; and the Sheriffe is there­upon to cause a Jury to be impannelled, and if the Answer be found true, then he is acquitted, and if not, then to be condem­ned as before, as if the Plaintiffe had pro­ved the felony.

And if any one appeare, and justifie the thing to be his, he is not to be received as a Party, but the Cause is first to be tryed betwixt the two first, & afterwards he may make the estranger a Party if he will; and [Page 141]if the case be that the buying was within a place within a Franchise, and the She­riffe returne, that he cannot execute the Writ by reason of the Franchise of such a man, or of such a place; in such case the Sheriffe is to be Commanded that he for­beare not by reason of the Franchise, but that he enter and execute the Writ.

And if the Possessor saith, That he came to the thing from a man certaine, and he be present, and will maintaine the same with­out Collusion, he is to be admitted there­unto, and the other is to be discharged; and if he deny the Contract, this affirmative, and this negative are tryable by Battaile or Jury; neverthelesse at the Kings Suit the possessor ought make title to the Pos­session, or cleare himselfe thereof; for two things are necessary, Conscience for us, and 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 Mony, or Lar­cine, or thing lost, or Estrey, or other hurt is found at the Kings Suit, although that the last professor acquit himselfe of the selony; if the Plainliffe neverthelesse 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 Dillatory to a vicious Deed, for varience betwixt the words of the Writ and the nature of the Action, and the Count, as if he have [Page 142]omitted to Charge me, or if he Charge that in the Count which was not to be in that Action, as felony in a veniall A­ction.

And as the Defendant hath a Dillatory Exception to abate a vicious Count, in like manner hath the Plaintiffe a Replica­tion against the Defendant upon a faulty Answer; but because none is to be Iudged for not Answering in Appeales of Felony, it is sufficient for every one to deny the fellony generally, though he Answer not particularly to every word mentioned in the Appeale.

And in Cases venialls, 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, sworne to the King, and within a Franck-pledge; and this Approver is a Felon attainted by his owne confession, and our of the Kings pro­tection, & by consequence out of the Kings [Page 143]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 then a man who is Out-lawed by Judgement.

Or he may plead, that he ought not [...]o Answer him, because he did not Appeale him in his first Appeale, or not before the Coroners, and if the Approver cannot helpe himselfe by this Replication, as [...]o say, that he is not any way out of the Kings 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 Main-prisors un­till 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 again [...] the persons of the Endictors, or to the sorme of the Indictment, for no Villaine can indite any man.

Or if the Indictment be not made by [...] whole dozien of Free-men, or by [...] who cannot indict any man.

Or if the Indictment be not sealed with the Seale of the twelve Jurouts, or [...] it is not the record of Iudges [...] [Page 144]thereunto; Or if the Indictment hath not been within the yeare, 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 Neighbour-hood of the same County, also if the Indictment be generall, for a generall slander defameth no man, nor is he compelled to answer thereunto; as if the Indictment be such a one is a Murderer, or a Thiefe, or wicked, without alleadging any particular offence therein, for to the common fame of the people an Indictment ought to give no credit or beleefe.

Or he may say, that the Iustices 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 Kings Peace.

And as to the consideration he may say thus; Sir, notwithstanding the joynt Alliance betwixt us by Homage some­times [Page 145]before this time, neverthelesse when he counted that I should com­mit this Treason, I had yeelded up to him all the Lands which I held of him, or I lost them by Judgement, or by Disseisin, which the Plaintiffe did to me, or he appointed them to come to others; in which case the felony is barred, and the Plaintiffe is condemnable.

And as to the consideration of pre­sent Fealty he may say, that this Al­liance the Plaintiffe 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 Courtesie he may say, that such benefit was not to continue but untill a time past before the time named in the Appeale, for afterwards he paid him nothing of such Pension, or other Courtesie but by Iudgement had against him, and in de­spite of him, O [...] thus, before the time named in the Appeale he yeelded up to him his deed of the Pension, or released the same unto him, or quit­claimed the same whereby the Alliance was destroyed.

CHAP. III. SECT. 17.

TO Burning he may say, that the mischiefe came by mischance, and not of a premeditated felon.

CHAP. III. SECT. 18. Murder.

TO an Appeale of Murder he may plead, that the Action belongeth not to such women as the wife of the Plaintiffe, because he was not killed in her armes, or in her seisin. Or thus, Sir, the Plaintiffe is to have no Action, for as much as there is one nearer of blood who hath brought his Appeale, and is a person of ability so to doe; Or he may say, that he is not bounden to Answer in England unto an Act done out of the Realme, if the thing concerne not the Kings right, as his Person, or his Inheritance; nor in a Priviledged place, where the Kings Writ runneth not of an Act done in a forraigne 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 lawfull 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 killing.

CHAP. III. SECT. 19.

TO an Appeale of Robbery or of Lar­cine he may plead, that he wrongfully bringeth this Appeale, for as much as the Plaintiffe brought an Action of Tres­passe against the same Persons of the same before such Iudges; and if any one would cover his Larcine by colour of Avowry for an estray, or a Waife, in such case it behoo­veth thathe shew 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 neighbour-hood, whereas he ought to have publikely cried it in three Markets, and Monasterles next adjoyning, and keepe it in a common place for a whole yeare.

To the exception of Distresse holds this Replication; Sir, such Avowry ought not availe him, because he was not a knowne Bayliff in such a Hundred; or because he did not any thing in the manner of a distresse, as not in a due time, nor had any warrant, but tooke it in the night time, or in such other manner feloniously robbed him, and stole, &c. and in the like manner may a Replica­tion hold against a robbery made by colour of disseisin.

CHAP. III. SECT. 20. Of Burglary.

TO Burglary he may say; That he en­tred into the Tenements without do­ing any Felony, and not against the Peace, as in to his owne demeane, and free-hold.

CHAP. III. SECT. 21. Of Rape.

IN Appeale of Rape he may deny the Felony, and say that he ravished not her against her wil, but that she assented, and that appeareth because she conceived by him at the same time, and there is no presump­tion that she was ravished against her will by fouling of her Garments, nor shedding of blood, nor Hue and Cry made, or other manner of violence offered.

CHAP. III. SECT. 22. Of Imprisonment.

TO the Appeale of Imprisonment he may say, that he did it by force of a rightfull Judgement of such a Iudge; but to that Plea is this Replication good, [Page 149]that after there came a Warrant to him to deliver him, he kept him in prison for the time named in the Appeale.

CHAP. III. SECT. 23. Of Mayhem and Wounding.

IN Mayhem he may demand the View thereof, for he cannot lawfully com­plaine when there is no Mayhem to be Iudged of; and of Appeale of Wounding in the same manner. By the death of the King all Pleas are suspended, all Goales opened, no Iudge, Bayliffe, or other Offi­cer ought to entermeddle therewith for want or warrant, and all Out-lawes, and all Waives, and those who have forjured the Realme, and all banished Persons used then to returne, except those who were exiled and banished for ever; and if any recovered before for that he could not have Dett, if he were not just [...]fied to the Peace; and if he be brought to Iudgement, and if he be accused of Outlawry, he may say that he is discharged of the Outlawry by the Kings grant, Or he may say that the Outlawry ought not to prejudice him be­cause he was under the age of 2. yeares at the time of the Outlawry, and therefore that he was not Outlawed for the felony.

Or because the felony was not done in such a County, or because he was not [Page 150]Out-lawed in England, or not within the Kings Dominion where the Writ runneth; for an Outlawry prouounced against a man in the Bishoprick of Durham, or else­where in the Land where the Kings Writ doth not run, shall prejudice as one in the Land where the Kings Writ runneth, Nec è contra.

Or because the felony was not done in the time of this King, or not since the last Eyre in that County; Or because the Processe of the Outlawry was false, by a false Warrant, or without any War­rant, or because he lay sicke, and was Es­soigned De malo lect [...], or because he is alive for whose death he was Out-lawed; or because he was Imprisoned the day of the Outlawry, or because he was in the Kings service in the Holy Land, or within the Realm for the profit of the Common­wealth.

Or because he had the Kings Protection, or because he was a Mad-man, or an Idiot, or Deafe, or Dumbe, or professed in Reli­ligion, in which cases if he pray to be re­ceived to Answer, he is to be received.

And the Plaintiffe was to be demanded, and it was to be proclaimed, that if any one could shew why he should not be en­larged, that he appeared at a certaine day.

All Parties in Iudgement are necessary to be present, and they are to have Oyer of the Writs, of the Originall, the Plain­tiffes Commission, the quantity or the qua­lity [Page 151]of his plaint. And the Disseisor or their Bayliffes, every one of them for himselfe may say in this manner, he may Answer and say for himselfe, that he hath not done any wrong or disseisin, nor hath any thing in the Tenements put in the Plaint, and he may so Answer, and so of others till it come to the Tenant in whose name the disseisin was; and he may Answer and say, that he is not in by disseisin, but is in by D. who infeoffed him who is not named in the Writ; and it may be that D. entred by E. and so there may be many, according to divers Feoff­ments betwixt the first Disseisor and the Tenant, in which cases no Voucher to warranty holdeth place for a Personall Trespasse, and therefore every one is well to looke not to make a Contract of a vici­ous thing, and that he take Caution, and such Surety in the Contract that he may have a recourse to recover if he lose the thing; and therefore the Lords used so keepe their Mannours that none could enter by Intrusion, Disseisin, or by other vicious bargaines, not otherwise unlesse the bargaines were entred in their full Courts, whereby the Lords could not have received their enemies into their Mannours, nor have taken their Homage against their wills, nor any used to en­ter before they had found Sureties to restore to the Purchasor or his Heires the value of the thing, if by rightfull Iudgement it belonged to him after his [Page 152]thing lost for the offence of Allienation, or for his power of this warranty.

To the principall Disseisor it belongeth to have a regard, if the Plaintiffe put more into his Plaint, that he Answer not but to that which he may avowe; he may say, that there is varience betwixt the Originall and the Commission; or that the Writ is vicious, as it is in misprision of names, or fit-names.

Of names, as Renand for Harrand, Mar­gery for Margaret, and such like; or he may say the Writ is faulty for want of Sir­names, or if the names of Dignity be omit­ted; as if a Bishop, Abbot, Prior, or other be disseised of any thing in the right of his Dignity, and he makes his plaint simply of a Trespasse done onely to his Person, and not to his Church or Dignity in this man­ner; A. complaines to you, wherea; he ought thus to make his Plaint. A Bishop of London, and so it is of Disseisors; Or he may say that the Writ is vicious, be­cause the Plaintiffe who is solely in the Plaint hath no cause of Action, but with another who is not named in the Writ.

Or it may be faulty if it be not contai­ned in the Writ, Dissersivie eum, where it ought to be Dissersivie eam, or eos, where it should be ewn or eam, etè contra.

It is contained in the Writ, (wrong­fully and without Judgement) &c. and to that one may plead not wrongfully, but rightfully denying any other force.

And note that one may be disseised [Page 153]wrongfully and without Judgement, and wrongfully and by Judgement; as it is of those who are disseised of their Free-holds by the Judges who have no Iurisdiction, and neverthelesse adjudge men to be put out of their Possessions, and one may be rightfully and without Iudgement, as in the cases aforesaid; and further rightfully and by Iudgement, and thereof rise Ex­ceptions, and so not without Iudgement and yet by Iudgement, and that may be either by the Iudgement of Iudges Com­missaries, or Iudges Ordinaries as were the Suitors.

Againe, Writs may be vicious by mis­prision of the names of the Townes, as if a Hamlet be named for a Towne, or if the Towne be not right named, or if the Towne be not distinguished where there are two Towne, of like name in the same County.

And from these words (after the Term) may arise Exceptions; as if not the Term, yet he might have distreyned for, or the Arrerages of his Penson, or speciall Ob­ligation, exceptthat he had any wrong.

Or because another Writ for the same Action is yet depending betwixt the same Parties, or he may say that he wrongfully complaines, whereas at his one Plaint he lost the same Tenement by a lawfull Iudgement against him; Or that he hath released or quit-claimed all his Right, or to the same purpose, or other­wise rattified his estate, or because at [Page 154]another time he withdrew his Action be­fore such Iudges.

Eor the helping of the peoples memo­ries are Escripts, Charters, and Minuments very necessary to testifie the Conditions & the points of Contracts, for by the Stature of Lenfred, who ordained that one might de­ny Contracts by waging of his Law, and that Plaintiffes prove their Writings, otherwise their Charters which are not denied, & not to be shewed by Iurours in England for Forraigne Contracts, or of places Enfran, chised, or elsewhere, where the Kings Writs run not by Coppies, or Collation of the Seales of others, or by Iurours, or by Battaile, according to the Plaintiffes Action.

To give matter and way to Exceptions in the aide of those who are to Answer, one is to know the end and limitation of Actions, and of Pleas, so that the Pleas may have an end, and therefore Prescrip­tions were ordained, whereof Thurmond Ordained, That Criminall Actions for revenge should cease at the yeares end, if they were not brought before, and the same time he appointed in all Acti­ons for Wrecks, Estraies, Waife, and of things lost; in Personall Actions Ve­nialls be appointed the Terme after the last Eyre in those parts; in reall Acti­ons and Mixt he appointed forty yeares, neverthelesse as to the King in the right of his Crowne, and to a Francke estare Nullum tempus occurrit [...].

To an Action of Accompt he may say, that he never was his Receiver, not Admi­nistrator of his goods, nor of his monies, whereby he was bound to render him any Accompt, and that he received them of him under the title of Buying, whereof he gave him a writing to surrender at a certain time. Or thus, notwithstanding he was his Receiver or Administrator in a Fran­chise, or elsewhere out of the Realme, or in a Priviledged place, whereby he is not bounden to give him an Accompt within the Realme, nor where the Kings Writ runneth, or in guildable, or è contra.

Or he may say that the Writ is vicious by false supposition, and falsly supposeth the Defendant to be a Fugitive, and besides not a Free-holder within his Bay­llwick to whom the Writ is sent.

Or he is not bound to yeeld him any Accompt for that he was never Receiver of his owne hand, or of his daily Receipt he gave him a daily Accompt; or that he disbursed nothing, nor bought any thing but in the Plaintiffes sight, or of some of his; Or for that the Plaintiffe by Tallie; and other Roles hath discharged him of so much in value as the Defendant was to give an Accompt for.

Or because he hath made him an Ac­quittance thereof, or because he was ne­ver Guardian of his Inheritance as his Guardian, but was Guardian during the time of the thing for his owne proper use, or it belongeth to him that is Guardian of [Page 156]the Lands in the right of his Fee whether it be Socage or other.

To the Action of Villinage he may say, That he is a Free-man, and that he hath proved the same at another time by a Writ of Libertate probanda, that he is quit from any Challenge by the Plain­tiffe for ever, if he have no reasonable Counter-plea against it.

And as to the seisin of Villaine Services he may say, That he did those Services wrongfully, by Extortion, and duresse of him and his Baylisses, or for the service of Villinage and Villaine Land which he held of him, and not by service of blood; and there are two other things, the one that if the Defendant can shew a free Stocke of his Ancestours, either in the conception or in the birth, the Defendant hath alwaies been accounted for a Free­man, although his Father, Mother, Bro­ther and Cousens, and all his Parentage acknowledge themselves to be the Plain­tiffes Villaines, and doe restifie the Defen­dant to be a Villaine.

The other thing to be noted is, That no more then the long Tenure of Copy­hold Land maketh a Free-man a Villaine, the long Tenures of Free-hold maketh a Villaine a Free-man; for freedome is never lost by prescription of time.

There are many manner of prooffs by the same Pleas, sometimes by Rewards, some­times by Battaile, sometimes by Witnesses, sometimes by the Consessions of the Ad­verse parties.

1 By Record, as in case where the par­ties doe agree together upon some enrole­ment, or to the Iudgement of some Iudge Ordinary or Assigned.

2 By Battaile, for upon warrant of the Combate which the Iudges tooke be­twixt David for the people of Israel of the one party, and Goliah for the Phi­listims on the other party, is the usage of Battaile allowable by the Law in Eng­land, so that the proofe of Felony and other cases is done by combate of two according to the diversities of the Actions; for as there is a personall Action and a re­all, so there is a personall Combate and a reall; personall in personall Actions, reall in realls; and these Combates are differing in this, that in a Personall Combate for Felony none can combate for another, ne­verthelesse in Actions, Personalls, Venials, it is lawfull for the Plaintiffes to make their Battailes by their bodies, or by loy­all Witnesses, as in the right of reall Com­bates, because that none can be Witnesse for himselfe; and no man is bound to dis­cover his reall right, and although they make these Combates for the Plaintiffes by Witnesses, the Defendants neverthe­lesse may defend their owne right by their owne bodies, or by the bodies of their Free-men; and further they differ; for as much as in Appeales none can Com­bate for another, but it is otherwise in reall Actions, for if that one of the Par­ties be hurt so as he cannot Combate, his [Page 158]eldest Son may wage the Battaile for him.

The Battaile of two men sufficeth to de­clare the truth, so that the Victory is hol­den for truth.

Combates are made in many other Cases then in Felonies, for if a man hath done any falsity to me in deed, or in word, whereof he is Appealed or Impeached in Judgement, if he deny it, it is lawfull for me to prove the Action either by Jury, or by my Body, or by the Body of one Wit­nesse; and if it be of the false Judgement of many, then the proofe 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, Seale, or other manner of Contract, or the words which you spake, or the deed which you did.

Neverthelesse you are to distinguish of the qualities of the Causes, for in Ap­peales of Felony none can Combate for another as is said but in Veniall Causes, although one be killed in the Battaile he committeth no Murder, but onely those vanquished, or their Cly­ents for them shall tender to the Com­bitants vanquishing forty shillings in name of Cowardize, besides the Judgement upon the principall.

And in case where Battaile could not be joyned, not there was no Witnesse, the people in personall Actions used to helpe themselves by a Miracle of God [Page 159]in this manner; If the Defendant were a woman, or of such a condition that she could not joyne Battaile, and the Plaintiffe had no Witnesse to prove his Action, then the Defendant might cleare her credit by the Miracle of God, or leave the proofe to the Plaintiffe; and in the contrary case the proofe onely be­longed to the Plaintiffe.

At the day of the proofe, or of the purgation, after the Benediction, and the Malediction of the Priest, cloathed with the holy Garments of the Masse, and after the parties Oathes one used to keepe the party; and he was to car­ry in his hand a peece of burning Iron if he were a Free-man, or put his hand or his foote in boyling water; if he were not Free, or to doe some such thing which were impossible to doe 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.

Battaile is not to be joyned betwixt all people, for it is not to be joyned but betwixt equalls, nor yet betwixt all equalls, for not betwixt the Father and the Son, nor betwixt Women, or Infants, or Clerkes, or Parents, or Assignes.

Equalls are not a man and a woman, nor a Holy man, and an Excommunicate [Page 160]Petson, nor a Christian and an Infidell, nor a whole man and a sicke, nor a man of good memory and a Mad-man, nor a wire man and a foole, not a sound man, nor a man mayhemed, nor a man and a childe, nor a Clerke and a Lay Person, nor a man professed in Religion and a Secular man, not a true-man and a Felon, nor a man within the Kings Al­leagiance, and out of his Alleagiance, nor the Lord, and Tenant.

The smallnesse also of the thing in de­mand doth hinder the Battaile, and many other Caus [...]s, as it appeareth in the Law of Fees; neverthelesse if those who are not receiveable to joyn in Battaise will Com­bate if the Bartaile be joyned betwixt them, it is no wrong to them who de­sire it.

And if any one offereth himselfe to Combate with one armed, who before was not brought by the Parties, and the adverse Party de nand Judgement for the default of his adversary; as if he rendereth a Wit­nesse who offereth himselfe to decide the difference, and now he offereth to furnish the Battaile by another who was not seene, nor heard in Court, and who cannot and ought not to try the Battaile: 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. Iuramentum Duelli.

AFter the Battaile joyned, adjourned, and presented, & the parties duly ar­med, First the defendant is to swear in this manner, Heare 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, &c. So God me helpe; and the holy E­vangalist.

Afterwards the plaintise ought to sweare 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; &c. felloniously killed, &c. Or said such words or did such athing, &c.

Cap. 3. Sect 25. The Ordring of the Combatants.

AFter their Oathes be taken, it beho­veth to looke that the parties be Ar­med according to the ancient usage of what condition soever they be, Knighte or others.

The Auncient usage to bee Armed in all Cases of Combate is this; The Bodies are armed without Seme cotu et baliea; And the heades and the necks and the hands uncovered, the backs thyes, Leggs and Feet armed which Iron, And each to have a shield of Iron, and a staffe [...]orned of one Assise The Plaintise com­meth into the List from the East, and the Defendant from the West, & on the place [Page 162]they sweare in this manner. That they have not about them any Charme, not deceit, not have cat not drunke any thing whereby the truth might be distur­bed lessined, and the Law of the Divill en­haunced, So God them helpe and the ho­ly Evangelists. Then Proela nation is made that none disturbe the Battaile, and Oyes is made, that there be no noise up­on a Corporall punishment; And then they meet together, and if the defendant defend himselfe till after the Sun setting, and demand Judgment of the default of the Plaintife, In that case, Judgement shall be given for the defendant.

And if any fraud bee 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 Judgment is present. ly to be given, and the vanquished is to acknowledge his offence in the hearing of the people, or speake the horrible word of Cravent in the name of Cowardize, or his left Foote to be disarmed and un­covered in signe of the Cowardize, and that Iudgment be presently given against the Principall.

Cap. 3. Sect. 26.

AS to personall Trespas, in the Case this exception lyeth, Sir. Hee wrong­fully impleadeth me of this Trespas, for the same man impleaded such or such be­fore such Iudges, in such a place of the [Page 163]same Trespas, and made me no partie to the suit, and for asmuch as that hee then recovered by Iudgment his full dama­ges against them named in his plaint, And this suit is not brought against mee, but to recover damages, and the Law is, That a man shall not recover double da­mages, I demand Judgment of his Action.

As to the Allienations and Occupations of Franchises Reals Appendants to the Crowne, a man shall not vouch therein to warranty, not demand the View, not prescribe in them, for of such dignities none can helpe himselfe by a plea of long prescription, but such avowries of long Continuance, are accounted rather pre­scriptions of wrong. then lawfull excep­tion, seing nullum tempus occurrit Regi, in his Franchises, but therein the King is like to an Enfant who can loose no­thing Although that for the personall trespas 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 wayes, because his Ancester whose heire he is, died seised theref, And so that he hath enjoyned the same by title of succession as a thing annexed to his Land. Or because hee of whom he pur­chased the Land to which the Franchise belongeth, was seised, as if hee were the possessor thereof. But this exception is counter-pleadable by this Replication, Sir, This Anowant cannot recover [...] [Page 164]excuse himselfe. For although that such a one his Ancestours was seised thereof, yet neverthelesse he could not grant away this Franchise, for the Kings never granted them so, that the Grantees could assigne them over, or make assignes 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 bee not originally, the Plaintiffes, he may vouch to warranty.

CHAP. III. SECT. 28. Of Treasure.

TO the Alienation of Treasure found, he may justifie it if hee bee priviledged or authorized so to doe. Or he may say; that he himselfe 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 yeere is not yet past; and in the same manner is it of Estrayes, 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 farre in the sea, and were not cast upon the land by the waves of the sea.

CHAP. III. SECT. 30. Of Vsery.

TO Usery hee may Plead, and sweare that hee lent his Corne in Win­ter, to receive the same in September, ac­cording to the price as Corne should bee sould, which was dearer at that time; Or hee may sweare, he lent his monyes to re­ceive better money for the same for a yeare; and that the same is no Usery.

CHAP. III. SECT. 31. Of Hunting.

TO an Action of Hunting, Chasing, or Fishing, he may Plead, That he hath done no wrong, for it is his right to Hunt [Page 166]there, for to Chase; or it is his common Piseary belonging to his Mannour of such a place, &c.

CHAP. III. SECT 32. Of Obligation.

AS to Obligations (or Covenants) he may Plead, That notwithstanding that Obligation be his Deed, neverthelesse it ought not to binde 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 est [...]vers for house-boote or [...]y­boote, or he may claime Fee in the Tene­ment by any lawfull 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 lyeth, which is to be tried by 24 Jurours, so that every false witnesse be Attainted by two Juries. In which case it behoveth the Plaintiffe to have the first Ver­dict present under the Kings Seale, or of the [Page 167]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 Plain­tiffe ought not to be answered to this attaint, because the first Judgement had not its full effect; or because that the principall 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 denyer his nega­tion; & that two credible witnesses according to the Word of God are sufficient for wit­nesse. The usage is, That the affirmative party in aide of the Court, cause the nee­rest credible neighbours to appeare in witnes, so that there bee 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 al 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 expresly against the De­fendant, or if they speake for the Defendant [Page 168]in such cases, it is to be adjudged against the Plaintiffe, that hee proveth not sufficiently his saying. And although the Defendant would make other defence, he shall not bee suffered so to doe.

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 Endicted me of a mor­tall crime, so as hee did as much as in him lay to destroy me, and so he is my mortall enemy, Or for other cause of enmity.

Or because that he is Excommunicate, or Endicted, or Appealled of a mortall Felony; or because he is not of the Kings Allegiance, or because hee was at another time At­tainted of afalse oath, or suffered such cor­porall punishment for his offences, or other­wise, is infamous.

Or because he is friend, cosen, or allie, or of kindred to the other party; or because he is a villaine, or otherwise in custody; or be­cause he is the servant, or Proctour, or Te­nant of the adverse party; Or because shee is a woman, or because he was Out-lawed, or because he was forjured the Realme, or be­cause he procured himselfe to one of the Jury, or because he is within age, or because he is a lunatique, or a mad-man, and many other ex­ceptions of challengers there are; of which if any be denied, the challenge is to be tryed by the Jurours, and according to the tryall, the Jurour shall be admitted or refused And if no Jury once appeare for want of Jurours, he may have another.

CHAP. III. SECT. 35. Of Oathes.

OAthes differ many wayes; The chiese 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 Man­nours, and sometimes remaining in others service.

The oath of Allegiance was in these words. I will beare faith to such a King of life and member, and Terren honour, against all those that from this day forward, shall, &c. So God me helpe, 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 shewed, 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 Hem [...]iage is in these words I shall beare Fealty to him by name of life and Member, &c. for so much as I shall be his Tenant against all, &c. saving the Oath of Fealty which I have made to such a King, &c:

And if I sweare Fealty to another then to the King, then thus, saving the Faith which I [...]wore 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 sworne Fealty in these Cases, Hee needeth not sweare Fealty againe, if the Alliance in no case hath bin broken.

Chap. 3 Sect. 38. common Oathes.

COmmon Oathes are in these words, I will speake truth in what you aske of mee in such a Case; So God mee helpe, &c.

The Oathes in Assises are in these words.

I will speake the truth of the Land of which I have had the view by Authority of this Assise, or of the Land of which this Action of Reddisseision is arraigned, or of the Pasture, or Feeor of the Nusance, or of the Walt, or of the Ditch, or of the Peel, or of the Water, or of the Church, or of [Page 171]the Rent or of the service, and nothing shall hinder me that I shall not speak the truth, &c.

Of Life and Member and Terren Ha­nour, he will doe 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 overthrowne in power, not fame.

Cap. 3. Sect. 39. Of sinall Accoràs.

NO Law forbiddeth Pleas, nor Ac­cords, wherefore it is lawfull for o­very one to agree with his adversarie, and to relcase and quit claime his Right, and his Action.

Neverthelesse after one bath once af­firmed and brought his person all Action whereby scandall ariseth, none can agree it without the leave of the Iudge, so as he may withdraw it For every Plaintife in Actions of Scandall who attainteth not his Adversarie according to that as hee bath brought, his plaint is adjudged scan­dalous, as his adversarie should be if he were attainted. Neverthelesse in favour to save a man from death, who is not attain­ted of mortall Offences, it is suffered that the Adverse parties doe agree, After Bat­taile waged one of the parties neverthe­lesse remaineth infamous.

None can accord or agree, who is [...] of the Age of 21. yeares, nor any who is in custody, nor any by Attorney.

In custody are villanies, married women, men professed in Religion, Infants within the age of 14 years, heirs Idiots, heirs deafe and dumbe, heirs deseased, and those who are in prison, and under Bayle, and women who are in the custody of the Lords, who have the marriage of them.

SECT 1. Of Iudgment.

THe flower, and necessity of Law doth depend in righteous judgment, without which the Law can have no effect, nor a­ny due end. And therefore it is fitte speake of judgments, 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 mittigated 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 successours have used since the Incarnation of Christ, and according to the judgements of the ancient usages in Pleas, touching the Lawes of this Realine.

CHAP. IIII. SECT. 2. The Ordinance of Judgement.

IUdgement commeth from jurisdiction, which is the greatest dignity which belong­eth to the King. And there are two kindes of junisdiction, Ordinary, and Assigned. Every one hath ordinary jurisdiction, if of­fence take it not away from him; for every one may judge his owne according to the righte 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 Trespasse or of Debt which passeth 40 s. but the King. Nor anie hath power of Coun­sins of Fees without a Writ. Neverthelesse, it is lawfull for every one to f. oust the mor­tall offender, for committing of their offen­ces by good witnesses, by warrant of ordina­ry jurisdiction, whether the offenders bee 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 kindes of notorious, noto­tious in fait, and notorious in right.

Notorious in fait is, where no contradi­ction lyeth, nor no oathes need to justisie them, by reason of the witnesse of the people.

Notorious of Right, is where the offenders are attainted of their offences by themselves, or by the oathes of witnesses, or otherwise in judgement. This jurisdiction assigned i [...] [Page 176]that which the King assignes 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 beare without helpe the charge which belong­eth to him to punish the Trespasses, and to assoile the offenders which hee hath to go­verne.

And so our Ancestours appointed a Seale and a Chancellour to helpe the same, to give Writs remediall to all Plaintiffes without delay.

That Writs used to be of this Assize, They were without raysure, without enterlyning, without blots, without usuall transposition, and without every fault in the parchment and letters, and written in English with a knowne hand, by a Clerke of the Chancery and used to containe the name of the parties and the substance of the Plaintiffe, 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 Bayliffes, sometimes to the Justices in Eyre, sometimes to certaine persons named, and sometimes to persons not named, as to Bayliffes, Justices, and Sheriffes.

And every Plaintiffe used to have a Com­mission to his Judge, by the Writ Patent aforesaid.

And now may Justices, Sheriffs, and their Clerks forge Writs, thorough draw loose a­mend [Page 177]or empaire them, without any prosecu­ting or punishment, because the Writ are made close through abuse of the Law. By that Seale only is jurisdiction grantable to all Plaintiffes without difficulty, and the Chancellour is chargeable by his oath of al­legiance to make such Writs, and that hee do not delay or deny justice, nor a remediall Writ to any one.

CHAP. IIII. SECT. 4. Jurisdiction is a power to declare the Law.

THat power God gave to Moses, and that power they have now, who hold his place upon earth, as the Pope, and the Emperour, and under them the King now hath this power in his Realme.

The King by reason of his dignity, maketh his Justices in divers degrees, and appoin [...]eth to them jurisdiction, and that in divers man­ners, sometimes certaine, especially, as in Commissions of lesse Assizes; sometimes in certaine generally, as it is of Commissions of Justices in Eyre, and of the Chiese Justices of Pleas before the king, and of Justices of the Bench, to whom ju­risdiction is given to heare and determine Fines not determined, the grand Assizes, the transations of Pleas, and the rights of the King and of the Queen, and of his Fees, and the words of the Kings Writs, whether they be named generally, or specially.

Besides, the Barons of the Exchequer have [Page 178]Jurisdiction over receivers, and the Kings Bayliffes, and of Alienations of Lands and rights belonging to the King, and to the right of his Crowne. Sometimes jurisdi­ction is given to Sheriffes for the defaults of others, as appeareth in the Writ of Right; where it is sayd, That if he do not right, that the Sheriffe of the County shall do it.

Sometimes to those who have the Returne of Writs Returnables.

Sometimes jurisdiction is given to the Ju­stices of the Beach by removing of the Pleas out of the Counties, before the sayd Justices, and sometimes to Record the Pleas holden in meane Courts without Writs, be­fore the same Justices of the Bench: But as those Records ought not to availe the Plain­tiffes, if not after judgement given, that the Pleers be Returnable untill after their judge­ments. And as the Pleas moved upon the Writs are to be remanded into the Lords Courts, where the Lords have not failed to do right. In like manner are the Pleas re­moved by Pone returnable in the Coun­ties, in case where the parties never appeared in Court for to Plead.

To the office of chiefe Justices, it belong­eth to redresle and punish the tortious judgements, and the wrongs and the errours of other Justices, and by Writ to cause to come before the King, the proceedings and the Records, with the originall Writs, and before such Justices are all Letters Pleadable returnable, and to be ended, wherein menti­on is made before the King himselfe; and [Page 179]the Writs not Pleadable, nor Returnable before the King, are returnable into the Chancery.

And also it belongeth to their office, to heare and determine all plaints made of per­sonall wrongs, within twelve myles of the Kings house, and to deliver Goals and the prisoners from thence, who are to be delive­red, and to determine whatsoever is determi­nable by Justices in Eyre more o [...] lesse, ac­cording to the nature of their commission.

On the other side, there is a kinde of ju­risdiction which is called Arbitrary, which is not ordinary, nor assigned, as is such which is by the assent of the parties.

Of Jurisdiction commeth Judgement, which hath many significations: In the one, judgement is as much to say as absolutions from offence; In another sence, as sentence, which sometimes soundeth well, as of dis­charge or acquittance from punishment, and sometimes ill, as Excomengment: and in a­nother sence, as the end of the Plea, and the end of jurisdiction.

Jurisdiction assigned may be for a time, or for ever. For a time, as in some exception dilatory, where the Action reviveth; for e­ver, as by a definitive sentence upon the Action.

Judgements vary according to the diffe­rence of offences. In like offences, never­thelesse there are the like Judgements. For the mortall offences according to the warrant of the old Testament, were assoiled by death; For in the old Testament it is found, That [Page 180]God commanded Moses, that he should not suffer Felons to live. But before, more is to be spoken of punishments, it is to see by what introduction offenders and contumacious persons are compellable to appeare in Court, and by what judgments.

CHAP. IIII. SECT. 4. Defaults punishable.

DEfaults are punishable many wayes. In appeals of Felony they are punishable by Outlawry; which judgement is such, that after that any one hath been solemnly called, and demanded to appeare to the Kings peace at three severall Counties for felony, and he commeth not, that from thence forward hee is holden for a Woolfe, and is called Wolf­shead, because the Woolfe is a beast hated of all people; and from thence forward it is lawfull for any one to kill him; as it is a Woolfe whereof the custome was to bring the heads to the chiefe place of the County, or of the Franchise, and according to Law, for every head of an Outlaw, to have halfe a marke, and such Fugitives, Outlawes, for­feited for their contempts, the Realm, Coun­trey, friends, and whatsoever belonged to the peace, and all manner of rights which they ever had, or could have by any Title, not only as to themselves, but to their heires for ever. Also, all confederations of Homa­ges, of alliance, of affinity, of service, of oathes, and all maner of obligations betwixt the Outlawes and others were broken, seve­red, [Page 181]and defeated by such judgement. And all manner of Grants, Rents, and Contracts; and all manner of Actions which they had against any manner of persons, were void, not only from the time of judgement, but from the time of the Felony; for which such judge­ment was given, and such persons could ne­ver againe resort to answer the Felony, if the Processe of Outlawry were not faulty, if not by the great mercy and favour of the King; Weomen were not plevisibles, and put in dozens as men but were waves.

CHAP. IIII. SECT. 5. Defaults.

IN personall Actions, venialls, defaules u­sed to be punished after this manner. The Defendants were distrained to the value of the demand, & afterwards they were to heare their judgements for their defaults, and for default after default, judgement was given for the Plaintiffe. This usage was changed in the time of King Hen. the first, That no Freeman was not to be destrained by his body for an action personall, veniall, so long as he had Lands; In which case the judgement by default was of force, till the time of King Hen. the third. That the Plaintiffe should recover his seifure of the Land, to hold the fame in demeasure after default, untill due satisfaction was made, so as the defaults were more hurtfull to persons in contempt, then profitable.

Some Actions are personalls, and not mixt in the introduction, as of Neistie of [Page 182]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 di­stresse nor seisure of the Land, or other thing in the Kings 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. IIII. SECT. 6. Of Personall Action.

IN personall Actions, venialls, where the Defendants are not Freeholders, the defen­dants used to be punished after this manner. First, Processe was to bee 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, then were they banished the Lords jurisdicti­on, or the Bayliffes of the Court for a time, or for ever, according to the quantity of the Trelpasses.

CHAP. IIII. SECT. 7. Defaults in reall Actions.

THe defaults in reall Actions are pu­nishable in this manner. At the first default the plaintife is there seized to the value of the demand into the hand of the Lord of the Court, and the Tenants are sommonable to heare their Iudgments of defaults; Or after appearance, the seisure is to be adjudged to the Plaintifes, to hould in the name of a distresse, untill by lawfull judgment hee be ousted thereof. And if a­ny one appeare in Court, first he is to ple­nise the thing in demand, and presently to answer the default; In which case hee may deny the Summons, because hee 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 plaintife.

CHAP. IIII. SECT. 8. Of Actions Mi [...]t.

THe defaults of mixt actions are puni­shable in this manner, The defendants are distrainable by all their moveable Goods and Lands, saving that they are not put out of that possession from Court to Court, till they apeare and Answere, and [Page 184]the issues come to the profits of the Lords of the Courts.

CHAP. IIII. SECT. 9. Of Pledge and Mainpernor.

PLedges and Mainpernors are of one sig­nification, notwithstanding that they differ in names; But Pledges are these, who baile other things then the Body of Men, as in Reall Actions and Mixt Mainpernors are in personall Actions, only those w [...] bayle the Body of a Man; safe Pledges are those who are sufficient to answere the demand, or the value, and are true men, and Freehol­ders to whom the Plaintife 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 hee bee not a­merced, but then the Offendor is first amerceable, when he is brought to judge­ment, and cannot excuse his wrong or save his default.

And as none who commeth before Sum­mons is amecreable, so no Plaintife 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 Sheriffe, that hee command such a one to appeare or to doe; and if he do not; and the Plaintifes put in sureties to prosecute his [Page 185]suit, then that he summon or attach the de­fendant, &c. In which case if the Sheriffe had not warned the Tenant to appeare or to do according to the points of the Warrant, if he take surety of the Plaintife to prosecute, hee doth him wrong: But the Plaintifes and their pledges are to bee amerced, when the defendants offer themselves in judgment a­gainst them! and they make defaults by Nonsuit.

And also those Sheriffs do wrong who for­beare to execute the Kings Commands in as much as the Plaintifes have found sureties to prosecute their Plaints when no mention is made in the Writts to put in sureties.

CHAP. IIII. 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 bee behinde to the Lord of the Fee, The Tenant is not distraineable for the same by his moveable goods, but it behoveth to sommon the Tenants to save their defaults, or to make satisfaction, or to answere wherefore those services due out of their possessions are behinde to the Lords, and if they appeare not at the Sommon by the a ward of the suitors, their Lands are to be seised into the Lords hands, til they justify themselves by pledges. And if they be againe [Page 186]summoned, to heare the Iudgments for their defaults; Although they come not at the se­cond Summon, they are not to bee a­merced, in as much as they came, they may render the Land, or alledge a priviledge, 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 Iustice to his Tenants in manner as aforesaid; Then the same may bee done in the County or Hundred, or elce in the Kings Courts; Or at first by a Writ of Customes and Services, and other Remediall Writts. And if any one hath not any thing to acquit himself, the Lord is not to loose his Right, although hee 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 follie to enter or remaine 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 hould of him, and maketh himselfe mes­ne betwixt the Lord and the Tenant, in prejudice of the Lord, in such a case, the law is used to hould the course after said.

CAP. IIII. SECT. 11. Of champion.

IF any one do or say to his Lord of whom he houldeth any thing, which turneth to [Page 187]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 appeare, and if hee appeare, and cannot discharge himselfe, by his wager of Law, by 12. men more, or lesse according to the Award of the Court hee is to bee disinherited of the Tenancie which hee houldeth of the Lord in such a manner by the Judgment 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 owne hand, and that such is his right, &c. as after shall be said.

And the Tenant may choose to try his Right by his owne body, or by another, or joyne issue upon the Grand Assise; And pray Conusans whether hee hath the better right to hould such land specified, discharged of such service, as he houldeth, 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, Then yee are to distinguish. For if the Action be personall, the Suit need not be present; and if the Acti­on bee Reall, and the Tenant hath his Champion present; Then may the Plain­ [...]ife offer his Champion against the Champi­on [Page 188]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 joyned 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 denyed, That it was not his deed, To which Saxeling by way of Re­plication Answered, That hee wrongfully denyed the same, and that wrongfully, for that he sealed it with his Seale, or with the Seale of another which he borrowed of him, such a day, such a yeare, 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 needfull to have present Suit in such personall Actions the first day, but the Parties may bee ad­ [...]urned as it is said.

And if any one who cannot bee a fit wit­nesse, or who is a Champion bee offered by one of the parties to combate who was not named before to make the Battle and the adverse partie there challenge him, and demand Iudgement of the default, in such, such case the Iudgement is to be given against the profferer.

And if any ill happen to any of their Champions where by they cannot combate ac­cording to their proffer, none is resceiveable [Page 189]to try the battle for him but only his eldeft sonne Lawfully begotten as by some is said.

And if the Tenants champion be va [...]ui­shed. The Tenant thereby looseth all Hom­age and all Alliance, and all Oathes 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 Assise, And if the cham­pion of the Lord be vanquished, that them the Iudgement 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 hould of him in chiefe, the same course is to be holden, The Earles of Parliaments, and the Commons have Iurisdiction to heare such causes and deter­mine them, because the King cannot by him­selfe, nor by his Iustices determine the Causes nor pronounce their Iudgment, where the King is a partie.

And as the Lords may challenge their Te­nants of wrong, Or Injuries done to them against the Articles of their Fealtie, In the like manner are the Lords challengeable of wrongs and Injuries done by them to their Tenants. And if the Lords do not appeare to answer their Tenants; Then are the Te­nants to be adjudged that [...]they doe no service for their Lands, till the Lords have An­swered.

CHAP. IIII. SECT. 12. Of punishments.

PVnishment is a satisfaction for a Tres­passe or an Offence, There are two kinds of punishments. Voluntarie, and Violent.

Volantatie is that which bindeth the doer of his owne accord, as it is in his Compro­mises, to compell the people to keepe their Bargaines, But with such punishments the Law medleth not with: Of violent pu­nishment wherewith the Law medleth, there are two kindes, Corporall, and Pecaniarie.

Of Corporall, some are Mortall, and some Veniall, Of Mortall, some are by be­heading, some by drawing, some by hang­ing, some by burning alive, some by falling from dangerous places, and otherwise according to Auncient priviledges, and Vsuages.

The Offences which require punishment of death, are the mortall Offences.

Of Veniall punishments, some are by losse of Member; As the Fellony of May­hem in case of wrong; Of Member; some by the losse of hand as it is of false Notories, and of cutters of Purses with the Larcine of lesse then 12. d. and more then 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 losse of all their moveable goods, and not moveable as of false Iudges, [Page 191]and it is of userers attainted of usury after their decease, but not if they bee attainted thereof in their life, for then thy loose but only their moveables, because by pen­nance and Repentance, they may amend and have Heires. Some by exile and ab­juration of their Christianity, or of the Realme, of the Towne, of the Mannor or the Land and their friends, as it is of those who are attainted in personall Actions Ve­nialls who are not able to make satisfaction, Some by Banishment, as it is in contempts in personall Actions, Venialls, some by other Corporall paines as it appeareth after its place.

And although one offend indeed, or in word, in all judgements upon personall Actions, 7. things are to bee weighed in the ballance of Conscience, that is to say, 1. The cause 2. The petson. 3. The place. 4. The time. 5. The Quality. 6. The Quantity. 7. The end.

1. The cause whether it be mortall or ve­niall, 2. The person, the plaintiffe, 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 it selfe, 7. The end; whether the taking were in man­ner of distresse by a justisiable importment, Or in manner of Larine, By Allienation unjustifiable,

CHAP. IIII. SECT. 13. Of Insamous Persons.

ALL those who are rightfull attained of an Offence, whereupon corporall punishment followeth are infamous.

Infamous ar all those who offend mortally or Fellouously, all those who are perjured in giving false witnesse, All false Iudges, All false Vsurours, and all those who are attain­ted of personall trespasses, to whom open pennance is joyned by enjudgment of Law.

Those who Imprison a Free-man 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 Iurours are slande­red.

And those who indite or Appeale a man who is innocent of Crime, blemishing his credit or wrongfull slandering him of any personall wrong, For those 3. Pleas are held odious, the one because the Holy Scripture forbiddeth vengance to men, but the pu­nishment of Offendors belongeth to God; and God commandeth to shew mercy, and that is against the Appeale of Felony, The other of attainder of perjury is odious [...]or the Corporall punishment which follow­th thereupon; The 3. because it is against the Law of Nature; which will not that any man should be in slavery to another Crea­ture.

Againe those who combate deadly for re­ward, who are vanquished in the Combate by Judgement berwix [...] two men, those who with-draw themselves from Bartailes when they have undertaken the Combate, if therein they make default; those who keepe Brothell-houses of loose women, those who take againe their Wives after their finne of Adultery is knowne to them, or keepe those suspected of that sinner; those who are Adulterours, those who Marry 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 Cousens, or Affines, those who Marry a Wife within the yeare after the death of their former Wives, those who suffer themselves to be Married within the yeare after the deaths of their first Hus­bands, those and they who Contract Mar­t [...]ages elsewhere, leaving their Wives, or Husbands, and those who too soone pu­rifie themselves, and many other infamous Persons are to be punished by Corporall punishments in divers manners.

CHAP. IV. SECT. 14. Of Majesty.

THe punishment of the mortall Sin of Majesty against the King of Heaven; [Page 194]Sodomy is by burying the offenders alive deepe 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 then 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 Heresie is foure fold, one is Excommunication, another Degrada­tion, the third Dis-inheriting, 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 untill the Parties be dead, which used to be by burning, and in case where the damageous burning is by encrease of any combustable matter; it was used to [Page 195]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 untill the Parties be dead, in Felonies not notorious, and in notorious it is by beheading the Murde­rours, neverthelesse we are to distinguish, for some kill men and offend not, nor de­serve any punishment; some are Man­slayers in signification and not by name; and some are slayers of themselves.

The first are Lawfull Judges, who by a right Judgement, and good Conscience kill men; and the Ministers, or Officers who doe Executions of such lawfull 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 Mad-men, Idiots, In­fants within the age of seven yeares, and those who kill men in keeping of the Kings Peace, and of those who kill by Law, as of those Men-slayers, who kill men in their mortall offences, notorious in Fact, and as in is of those who kill men in their owne defence, who otherwise can­not save their owne lives.

The other sort is of those who have a desire to kill and cannot, as it is of those who cast Infants, sicke people, old people, in such places where they intend they shall dye for want of helpe, and as it is of those who so paine innocent men, that to avoid the same they confesse them­selves to have mortally offended; those who Condemne men by corrupt Judge­ment, although that they doe not directly kill them; and as willfull Men-slayers, who Appeale or Indite innocent Persons of mortall offence, and prove not their Appeales, or their Indictments; and al­though these used to be Judged to death, neverthelesse Ring Hen. the 1. Ordained this mitdgation, that they be not Judged to dye, but that they have Corporall pu­nishment; and of those who wrongfully Appeale yee are to distinguish, for if any one hath appealed another so falsly, that there was no colour of Appeale by Judge­ment, or other reasonable proofe, in such case he was to be adjudged to make satis­faction to the Party, and afterwards to suffer Corporall punishment.

King Kannte used to Judge the Maine­prisors according as the Principalls when their Principalls 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 Plaintiffes, according to the example of the Princi­palls [Page 197]if they were present, and against the King they were punished with a pecuniary penalty.

The third Case is of those who burne, hang, hurt, or otherwise kill themselves.

Againe yee a [...]e to distinguish of other Men-slayers, as of Phifitians, Jurours, Justices, Witnesses, of Idiots, Mad-men, and Fugitives; for Phisitians and Chirur­gions are skilfull in their Fac [...]ties, and probably doe lawfull Cures having good Consciences, so as nothing faileth to the Patient which to their Art belongeth; if their Patients dye, 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 neverthelesse 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 doe but at the perill of their Patient; if their Patients dye, or lose their members, in such cases they are Men-slayers or Mayhem­ders.

Judges Iudge men sometimes falsly to death wittingly, and sometimes out of ig­norance, in the first case they are Murde­rers, and are to be hanged by Iudgement, and not onely those who gave the Iudge­ment but the Accessories, Abbettors, and those who hindred not such Iudgement when they might have done it.

Andin the second place yee are to di­stinguish; for one mannet of ignorance is, as of a thing known had nor been known, and this kinde of ignorance doth excuse; the other is of a thing not knowne which ought to have been knowne, although he was not bound to know it, and this excu­seth; also the third kinde is, which com­meth of not knowing that which a man is bound to know, and this excuseth not; And note, that ignorance in its selfe is no offence, but this neglect of knowing is an offence. The Iudge doth not offend so much that he doth not make the Law, but he offendeth in foolish undertaking upon him to Iudge foolishly or falsly. The fourth kinde of ignorance is, that a man Iudgeth of a thing otherwise then right­full, 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 kinde of ignorance which one cannot vanquish, and such excuseth whe­ther it come by nature, or by too much passion, or sicknesse, as of rage.

And that which is said of Iudges is to be intended also of Iurours, and of Wit­nesses in cases notorious, where many en­termedle feloniously, and any one be killed, and there be no cause to kill him; in case also where a childe is killed by too much beating, and in case where many have wounded one man, who dyeth of one [Page 199]sole stroke, all of them generally are adjudged Men-slayers for the apparant evidence of the fact; for none but God can Iudge the intentions of those that gave the stroke that it was to kill, nor who in­termedled 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.

Againe yee are to distinguish of other Men-slayers, as some kill those who enter to doe a mischiefe, if such cases be not notorious their acquittance or Condemna­on is in the discretion of the Sutors; also in case when people kill a man in defence of themselves and their possessions, as it falleth in diffeisins.

Againe, if a man draw another to fence with him, or to shoote with him, and he giveth him such a wound as if he meant willingly to murder him, the same is not to be Iudged for murder, seeing men can­not Iudge but according to Facts, and not according to the intents or thoughts of the parties hearts,

Of Fooles also yee are to distinguish, for all fooles are accountable Menslay­ers, as to have Iudgement; 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 fooles outragious; and therefore Robert Vol­round [Page 140]ordained, That Idiots being Heires should be in the custody of the King, for their Marriages, and for their Inheritances of what Mannours or Lords soever they held their Lands.

Likewise yee are to distinguish of Mad­men, for Frantickes and Lunatickes may offend mortally, and so they are to be accounted and Iudged for Man-slayers, but not those who are Mad continually.

Of Infants also yee are to distinguish, of Infants Murderors, and of Infants killed; the Murderors within the age of one and twenty yeares are not presently to be Iudged to death in a fact not notorious, before they be of full age.

Of Infants killed yee are to distinguish, whether they be killed in their Mothers wombes or after their births; in the first case is is not adjudged Murder; for that none can judge whether it be a Childe be­fore it be seene, and knowne whether it be a monster or not; and to Infants killed in the first yeare 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 himselfe to the Kings Peace in a fact not notorious, he is to be adjudged to death as a Man-slayer, otherwise not; and he who killeth a man defending himselfe, who might flye and avoid the killing is also to be adjudged to death as a Man-slayer, 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 testifie the felony; and in cases not notorious the Iudgement is to be hanged till they be dead.

And if the Defendant be a Woman yee are to distinguish, whether she hath a Husband or nor who is y [...]t living, and also of the Action, whether it be mortall or not, for if the be, and was sole without a Husband which she hath married at the doore of the Monastery, and the Acti­on be mortall she shall answer as a man doth; and if she be a Feme-Covert yee are to distinguish, for if she be accused of a mortall Crime as principall, she shall an­swer, and if as an Accessory then yee 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 yee are to distinguish of the Crime; os the offences of Larcine, of Burglary, and of other sinall 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 Theefe for a minute, or a very small time, she may [Page 202]say, that she was not in his company but as his Concubine.

Of mortall Judgements, of Outlawry, of Abjuration of the Realme, of vanquished in Battailes for mortall felony, and other­wise attainted of a notorious mortall of­fence, or not notorious, the offence is such that the blood is corrupted; and of the offenders the blood is extinct in every discent in right of blood, so that nothing can descend from them to any of their Heires either next or remote by discent, but all shall remaine to the Lords of the Fee, from the time they committed the offences, whoever were Tenants thereof in the meane 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 Out-lawes, and their goods which re­maine (besides what belong to others) re­maine forfeited to the King.

And the like in remembrance of their selonies, & in hatred of the felons it is law­full to destroy all their mansion houses, to erradicate their Gardens, to cut downe and wast their Woods, to plow up their Meadowes, or otherwise over turne them, which King Hen. the 1. did moderate at the request of the Commons in this man­ner, for the saving of the Lands of mortall felons in their hands, of what Mannor so­ever they were holden, that he should hold the same, and should take the profits thereof for one yeare, and should doe [Page 203]wast if there were not other agreement made with him.

For the offence of Rape, the Iudgement was to be hanged till he dyed, 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 Kings 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 heate of whoredome came from the reynes of the eacher.

CHAP. IV. SECT. 17. Of Punishments in divers kindes.

THe Corporall punishments of Death being past, we are to come to Corpo­rall punishments venialls, 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 hem, Wounding, and Imprisonment, in which if the Pleas be brought in by Ap­peales of Felony for reverge onely, then belongeth the Iudgement Tallion, or like Iudgement, as Mayhem for Mayhem, Wound for Wound, Imprisonment for Imprisonment.

And if pardonable in forme of a Tres­paffe, then these Iudgements hold place, that the offender make reasonable satis­faction to the Plaintiffes, and afterwards that they be adjudged to doe open Pen­nance [Page 206]according to the quantity of the offence.

Open Pennances are these; amendments of High-waies, Cawsies, Bridges, set­ting them up in Pillories, or Stocks; Imprisonment, and abjuration of the Realme, Exile, Banishment, either from off the Land, or from the Towne; from entring into such a place, or from going out of such a place, by Ransome of such a penalty by pecuniary punishment, or by other Fine, and such other kindes of Iudgements 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 Trespassours; but the open Pennance 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 Iudges, who the more greatly offend for as much as they are in a higher degree then other people.

CHAP. IV. SECT. 18. Of false Judges.

OF false Iudges Affigned, King Alfied Ordained such Iudgement, that the wrong they doe to God whose Vice­gerents they are, and to the King who is put in so noble a place as is the Seate of God, and hath given them so great Dignity as to represent the Person of God, and the Counsance as to Iudge 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 returne to them againe, and their bodies that they be punished and banished at the Kings pleasure, and for a mortall false Iudgement 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 Iudgement of false Iudges Ordina­ties is not in veniall Iudgements so penall, as it is of Iudges Deligates before; but they are to make satisfaction to the Parties [Page 148]Plaintiffes, and to the King they are pu­nishable by a pecuniary penalty, and disa­bled from all manner of Iurisdiction what­soever; and in Cases mortall, and Tallions, according as it hath been said before of other Iudges.

CHAP. IV. SECT. 19. Of Perjury.

PF [...]jury is a great offence, of whith yee 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 yee are to distinguish ei­ther of Perjury mortall, or venial [...]; if of mortall, then the Iudgement was mortall to the example of apparant murderers.

And note that in all personall Actions there belongeth such an award, that due satisfaction be made to the Plaintiffes, and that the offenders be punished with cor­porah paines, which paines are to be bought out by ransome of money; and if of veniall perjury, then that they be ba­nished for a time, or for ever; and that their Woods, Meadowes, Houses, and Gardens be erradicated according to the example of murderers, saving that their Heires doe not remaine dis-inherited.

Of the other Perjury yee are to distin­guish as breach of faith to the King, or to [Page 209]another Person, and if to the King yee 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 lyeth the Processe and defaults aforesaid; and if of an Oath not in respect of Land, yee are to distinguish whether of the common Oath of Fealty sworne to the King, for the re­maining in his Fee, & then only Corporall punishment holdeth place, which passeth the punishment which should be adjudged to others not the Kings Offices, according to the Kings pleasure.

CHAP. IV. SECT. 15. Of the Offices of Justices in Eyre.

THe Presentments of offences are Ex officio by Coroners, by Sheriffes and Bayliffes in Turnes and viewes of Franck-pledge; by Enquests, and speciall Iustices, and by Kings Ex officio, or by their Chiefe Iustices, or of their Iustices generalls; 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 doe not that duty which of right they may doe; or punish the innocent, and spare the guilty. It was anciently Ordai­ned [Page 210]that the Kings by themselves, or by their Chiefe iustices, or by generall Iu­stices to heare and determine all Pleas, should goe Circuit every seven yeares through all Shires, to receive the Roles of all Iustices assigned, of Coroners, of In­quirers of Eschetors, of Sheriffes, of Hun­dredours, and of Bayliffes, and of all Stewards, of all their Iudgements, En­quests, Presentments, and all their Offices, and to examine those Roles 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 redresse the Officers, and punish the negligence of them accor­ding to the Rules of Law, and that they should enquire of all offences which be­longed to the Kings Suit, and to his Iuris­diction. And note, that notwithstanding the King had the Suits of all mortall of­fences, and of wrongs done to the Law, and to the right of his Crowne, it is not thereby to be understood that he should have the Suit of all offences; but if any one be Plaintiffe and doth not proceed in his Suit after the same is affirmed, yee are to distinguish, if it be of a personall offence [...] it sus [...]eth for the Defendants, for the Non-suit of the Plaintiffe doth suppose [...] of the damage; and if it be of a mortall offence yet the King hath nor the [...] warrant of Appeale, or In­dictment, [Page 211]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 mortall infamy, by being Appealed or Indicted.

CHAP. IV. SECT. 21. Of the Articles in Eyre.

EVety Shire usedto be warned by forty daies at the least, by generall Summons of the Kings comming, where after the Effoignes adjourned, and the Assize of Victuals set, and the Ordinances proclai­med, and those of Franchises adjourned, and the Jurours called, Sworne, and Char­ged with their Articles; and the claimers of Franchises, and the Rolls of the Justi­ces, of Coroners, and of all Sheriffes, and of all other manner of Pleas, and Present­ments after the last Eyre taken and recei­ved; the first thing was to enquire, heare, 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 redresse the errouts, and all other wrongs by right Judgements, without respect unto any person.

All the Judges Ordinaries, and Assigned Sheriffes, Bayliffes, and Stewards of Lords of Mannours, and all other who claimed Iurisdiction which any one could attaint of any wrong done against the right rules of Law, were condemned for the wrongfull Iudgements, with regard to the distinction of the Parties grieved.

Coroners, Eschetors, Sheriffes, Bay­liffes, 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 Kings 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 Tumbrell, and afterward; were not suffered to Merchandize at any time, not could they depart from the place or Towne to any Liberty, because the usage was contrary to Law.

Cut-purses 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 lesse then sixe pence one of their eares used to be cut off without carrying them to Prison, or before any Iudge Assigned, and to ba­nish them from the Towne, or from the Mannot for the second offence.

And for their [...]arcine under the value of [...] pence they used to set them in the [Page 213]pillory for the first offence, and to banish them for the second.

In the Iudgements of Personall Tres­passes, venialls, as to the taxing of the damages put in plaints, Martin De Pate­shall used this course, the Judge used to en­quire ex officio of the Iurours, by whom any principall Trespasse 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 Iudge the damages according to the num­ber of the Endictors, so that no Plaintiffe should recover no more entire damages by plurality of Plaints for one sole trespasse against the Trespassours severally.

CHAP. IV. SECT. 22. Of Franchises.

OF Franchises note, that because the King doth not hold his Rights and Dignities of his Crowne but as an In­fant, nor a grant from him of any franchises is so established that Kings cannot repeale them againe, so as he give satisfaction to the value as by warranty; and it is law­full for every one who findeth himselfe grieved to Sue for the King, to seize every Franchise forfeited for contumacy; as if the Bayliffe of a Franchise doe not exe­cution [Page 214]of the returne of the Sheriffe ac­cording to the Command of the King, by any abuse, as by using his fr [...]nchife too large­ly, or not duely; by a Writ ensuing, it is commanded that the Sheriffe 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 Goale 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 Goale in Guilda­ble, so that the King doe not lose the Goods and Chattels of the Felons, nor his other rights; for the King giveth no Franchise to his owne prejudice, nor to the prejudice of others, especially of re­turne of Writs, nor to have the custody of a Goale. An example may be as betwixt two Neighbours in a Franchise, the one cannot keepe a Prison to the prejudice of the King, and if he doe he forfeiteth the Franchise.

And it also appeareth, that Iurours came out of Franchises before the King and his Commissioners to Guildable and elsewhere at his command, as well upon criminall Actions as upon realls.

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 Plaintiffe recover against many by Iudgement he shall have but once da­mages, as in this case: If many Persons owe one Debt, and every one be bound in the whole, if one of them make agrement for the same, although he doe not make a speciall agreement for all the Debtors, all of them neverthelesse are discharged, be­cause satisfaction hath respect to the Debt, and not to the persons.

CHAP. IV. SECT. 18. Cases of Disseisin.

IF the Iurours 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 Plaintiffe shall receive nothing because he proved not his Action; and if they be of divers opinions they are not therefore to be threatned, nor imprisoned; but they are to be severed and diligently examined. And if two Iurours be found to agree amongst [Page 216]all the rest, it sufficeth for him for whom they speake, and they are not to be exami­ned upon the title of the possession, but it is sufficient for the Iudge to know if the Plaintiffe were disseised of his Land, whether it were rightfull or wrongfull according to the Plaint; for though it were right, neverthelesse it was tortious, because the Tenant used force where he should have used Iudgement, and for that he made himselfe a Iudge therein. Iudge­ment is to be given for the Plaintiffe, so as he shall recover seisin, such as it is, saving every right by another Writ; for an Af­fize lyeth not upon Assize of the same Te­nement, betwixt the same parties, not an Attaint upon an Attaint; and if the Iu­rours for him, whether they were sworn upon the Action, or upon the Exceptions, Iudgement goes for him, and they be­hoove to enquire of the others named in the Writ, and if the Disseisors came in with force and Armes, although they hurt no persons body, all of them never­thelesse are to be adjudged to Corporall 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 Kings 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 owne for a yeare without Iudgement, although he hath no title thereunto but by Disseisin, [Page 217]or intrusion, and it sufficeth for fotce and Armes, onely the shewing of Armes for to hurt the Adversaries; and under the name of Armes are contained B [...]wes, Ar­towes, Sawes, Launces, Speeres, Staves, Swords, and Targets of Iron.

The Iury ought to enquire 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 ex­pences which the Plaintiffe hath sustay­ned in his whole recovery, and in all things, and how much he is endamaged in distresse 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, Royall Treasure, and such things locked up, the Plaintiffe hath an Action by Appeale of Robbery, or by a Writ of Trespasse.

In Iudgement 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 foure [...].

CHAP. IV. SECT. 25. Of Amercements.

A Pecuniary paine we call an Amerce­ment, which follow reall offenders and m [...]t, and sometimes are certaine, and sometimes uncertaine. An Amercement is certaine. sometimes according to the dig­nity of the Persons, as it is of Earles 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 Markes, and he who holdeth lesse, lesse; and more, more; according to the quantity of the Tenure.

And sometime; by a certaine Assize in another case, as it is of Escapes of people imprisoned, in which case yee are to di­stinguish of the place, as where one esca­peth out of the Kings Prison, or out of the Prison of another; out of the Kings Prison yee are to distinguish of the cause, whether it be mortall or veniall, and if mortall, then distinguish if the cause were adjudged or not, and if adjudged by no­rory of fact, or of right, then the Corporall punishment is uncertaine; 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 [Page 219]Keeper was not the Kings Officer, nor assented to the escape, then 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 veniall, then the escape is not punishable.

And if the escape be from the prison of others, then yee are to distingu [...]sh of the cause, and of the caption, whether the cause be mortall or veniall, and if mortall then the pecuniary paine aforesaid hold­eth place; and if the cause be veniall, there is no punishment for the escape.

CHAP. IV. SECT. 26. Of Amercements taxable.

COmmon Amercements are Taxable by the Oathes and A [...]erments of the Peeres, of those who sal in misere cordia, according to the constitution of the Char­ter of Franchises, which willeth that a Free-man be assessed when he falleth into an Amercement according to the quantity of his offence, a Merchant saving to h [...] his Merchandize, 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 Kings Officers are the [Page 220]more grievonsly to be Amerced for the breach of their faith, &c.

Many cases there are where Corporall punishments are brought in by Fines of money, and such are called Ran­somes, which is as much as to say, Re­demption from Corporall paines; where­of some Fines are common, as for Murders, other for personall Trespasses of Townes 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 Roles of the Iustices, so that the Estreates may come to the Sheriffe to leavie the same by parcells, and not by totall Sum­mons.

And in case where one recovereth Debt or Damages, King Edward enacted that it should be in the election of them to doe execution by leavying such Debt, and damages of the moveable goods of the Debtors at the very value, to the value of the thing in demand, except the Oxen, and Beasts of the Plow, together with the moyety of Lands, and Tenements of the Debtors, if the goods be held suf­ficient by a reasonable Extent untill the debt and damages be leavied.

Those who are Appealed and En­dicted of Felony, and are not to be found, it behooveth that they be proclaimed, and especially before the Kings and his Iustices Errants, and if they be found guilty, then they are to be commanded [Page 221]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 untill they be Out-lawed, if they [...]ender not themselves to the Peace.

CHAP. IV. SECT. 27. Of the Office of Justices in Eyre.

TO the Office of Iustices in Eyre it be­longeth especially to enquire by Iu­rours, and by examination of the Roles of the Coroners, of all that were Out-lawed after the last Eyre, and after Certificate of their names they are to enquire of the names of their Pledges, that is to say, whe­ther they were in Dozien, or in Franck­pledge, and if their Pledges be in the same County then are the Pledges punishable by a pecuniary paine because they brought not those they tooke in Maine-prise to ap­peare; and if they were elsewhere in De­zien, then they are to enquire in whose Main-prise 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 [...]ontracts made by words, and it was Ordained, that Plaintiffes should prove their Wri­tings which were denyed, and not prove­able by Neighbours in England, and for forraigne Contracts by Battaile, or by the setting to of other Seale, or by Iurours at the election of the Plaintiffes.

If Iurours 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 Iurour come againe, and the Parties who are the Plaintiff, ought to have under the Kings Seale, and of the Iudge, and of the Parties, the proceedings of the Plea before, and shew the defect, and the of­fence of the Iurours; in which case if the Iudge by examination finde it doubtfull, the [...]aid doubt is to be reduced to certain­ty, and the obscurity to cleernesse, and the errour into truth; and so the first Iudgement is to be redressed.

CHAP. V. Sect. 1. Abusions of the Common Law.

THere are many who say, That although other Realmes use a written Law, yet onely Eng­land useth her Customes, and her Usages for Law not writ­ten; but betwixt rightfull and tortious usages there is a difference, for tortious usages not warranted by Law, nor suffered by Holy Scripture, are not at all to be used: as for example; those of Theeves, whose usages are to rob and steale.

And to shew 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 lawfull 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 chiefe 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 Soules of Trespassors, twice in the yeare at London, that they are there but very seldome, 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 hi Earles, they are now made by the Kin and his Clerkes, and by Aliens, and others who dare not contradict the King but de fire to please him, and to Counsell him for his profit, though the Counsell 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 Lawes, and the Customes of the Realme, with their occa­sions are not put into writing, whereby they may be knowne, so as they might be knowne 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 flyeth from Iudgement, and useth force.

5 It is an abuse, that Justice is de­layed in the Kings Court, more then o [...]se where.

6 It is an abuse to suffer any to be in the Realme above forty daies who is of the age of fourteene yeares, English or A­lien, if he be not sworne to the King by an Oath of Fealty, and in some Pledge and Dozien,

7 It is an abuse that Clerkes, 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 Goale to be a mortall offence, for that usage is not warranted by any Law, nor is it used in any place but within this Realme and in France, for as much as one is warranted to doe it by the Law of Nature.

9 It is an abuse to suffer so many formes 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 forrein circle be not whole, to allay the Money per 18. d. and make paying of Lead to every, &c.

11 It is an abuse that the King takes more then 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 then twelve ounces.

13 It is an abuse that Treason is not [Page 227]adjudged more by Appeales then it is.

14 It is an abuse that a man who hath done Man-slaughter of necessity, or with the Peace, or not feloniously, is detained and kept in Prison untill he hath purchased the Kings Charter of pardon of death, as it is for mischance.

15 It is an abuse to hold the moveable goods of flyers forfeited before they be attainted of the Felony by Outlawry, or otherwise.

16 It is an abuse to Out-law a man be­fore it hath been enquired by the Oathes 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 Clerkes, Women, Infants, and others who cannot Combate are suffered to be Ap­provers.

18 It is an abuse that others receive the Appeales of Approvers, then Coroners, and that they are suffered to Appeale oft­ner then once, or by distresse or other­wise, or in any manner falsly.

19 It is an abuse that the Justices drive a true man to be tryed by his Country, where he profereth to defend himselfe against the Approver by battaile.

20 It is an abuse to force people Appea­led by Approvers to Acquittalls, where the Approver put in his Appeales, if he be not thereof elsewhere endicted, 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 Appeale.

22 It is an abuse to suffer Theeves, and knowne and notorious Felons to be de­fended in Sanctuaries.

23 It is an abuse that those Felons who are forjured the Realme are not suffered to chuse their Port and passage out of the Realme, and to limit their Iournies.

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 denyed them, and that they have not the priviledge 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 Alian.

26 It is an abuse that Acquittances of paiments made to the King in the Exche­quer are by Tallies, and not by the Seale appointed for it.

27 It is abuse that the Kings Officers of the Exchequer, have Jurisdiction of other things then the King, Monies, of his fees, and of his Franchises without an Originall Writ out of the Chancery under white Waxe.

28 It is an abuse that the Kings Debts lye Dormant, and are delayed to be lea­vied by Estreates, since the Arreates of Sheriffe [...]s, and of other the Kings Re­ceivers are to be leavied without delay upon those who preferte them, if they themselves be not sufficient, and the Ar­rerages of the Debts of others are to be [Page 229]leavied upon their Sureties where the principalls are not sufficient to pay the Arrerages; the Amercements are lyable upon the Assessors if the principalls are not sufficient, and so it is of Fines, and all other the Kings Debts, whereby it ap­peareth that no Debt ought to be much behinde; is so much as some thinke that none are chargable with an old debt if not of malice, or by negligence of the Kings Officers.

29 It is an abuse that they of the Ex­chequer, or others receive Atturnies, or hold Counsans without an Originall. Writ out of the Chancery, which none can doe without Jurisdiction.

30 It is an abuse that Free-men, and Free-holders have ordinary Jurisdiction, but in the Courts of Lords of Mannours, or of Hundreds, or Counties.

31 It is an abuse to Amerce any man by reason of a Presentment in personall Trespasse, in as much as no man is to be Amerced but for the offence in a reall or mixt Action.

32 It is abuse to Amerce any man by a Presentment made of lesse then twelve sworne Free-men.

33 It is an abuse to assesse an Amerce­ment certaine, without the afferment of Free-men sworne 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 [Page 230]with any Article touching wrong done be­twixt neighbour and neighbour.

36 It is abuse to beleeve 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 Free-man be made the Kings Officer by any election against his will.

39 It is an abuse, that the salaries of Pleaders be not certaine.

40 It is an abuse that the Defendants have not amends of wrongfull Plaintiffes.

41 It is abuse that Pleaders are spared of Oathes according to the points.

42 It is abuse to suspend a Pleader if he be not, attaint of a Trespasse, for which he is condemnable to Corporall punishment.

43 It is abuse to Summon 2 man for 2 personall offence.

44 It is abuse to adjudge a man to death by Sutors, if not in cases so known, that there need no Answer.

45 It is an abuse to bring the Ap­peale else where then before the Coronet of the County, and that appeareth by the Writ of Appeale, as a Writ grounded up­on errour.

46 It is abuse to letto baile a man Ap­pealed, or indicted of a martiall offence by Pledges.

47 It is an abuse to determine the Ap­peales of felony by Judges, Ordinaries, Suitors.

48 It is abuse that all persons are com­monly receiveable in Appeales 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 Heires fur­ther then the grants, or their purchase of Lands make mention, for none can make an Assignee if it bee not specified in the grant.

51 It is abuse that the Inheritances of Heires females are held in Ward (though it be of Knights service) as of Heire Males, since a woman is at age at 14. yeares.

52 It is abuse that Goalers or their sove­raignes plunder Prisoners, or take from them other things then their Armes.

53 It is abuse that Prisoners or others for them pay any thing for their entries into the Goale, or for their comming out.

54 It is abuse that a Prisoner is laden with Irons, or put to paine before he be attainted of the felony.

55 It is abuse that the Goales 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 Kings Suit where he is not indicted, nor appealed.

57 It is abuse to imprison any other then a man indicted or appealed, without a spe­ciall 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 [Page 232]Warrants, since the Kings 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 lyeth for Endictees.

61 It is abuse that Appealees or En­dicters of mortall Crime are got out of Prison by Bayle, or those who are con­demned to Corporall punishment before they doe their Penance, or that they have bought in the same by Fine and Ransome.

62 It is abuse that the Writs Sicut alias, & sicut pluries passe the Seale, in case where it should make those Officers in­obedient of right, and to the King, and should charge others to doe such Com­mandement.

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, &c. for no speciall Commandement ought to exceed the Com­mon Law.

64 It is abuse to suffer the Judges to be Plaintiffes for the King.

65 It is abuse that Aliens, or others who have not sworne fealty to the King, or in­famous persons, or Indicted or Appealed of mortall 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 [Page 233]the points specified in their Commissions.

66 It is abuse that in Appeales by Plea­ders are the P [...]aces, and the Countries, and the houres of the daies, and that it is against the Peace, since every offence is against the Peace, and such other words needlesse.

67 It is abuse to abate sufficient. Ap­peales, according to the Statute of Glou­cester.

68 It is abuse that the remediall Writs are saleable, and that the King Commands the Sheriffe, 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 doe nothing but hurt to the Pur­chasor theref.

69 It is abuse that Forraigners are not receiveable in Actions by Su [...]ties of Free­men, who have not wherewith to finde Pledges.

70 It is abuse to distreire in personall Actions, where the profit of the Issues comes to the King, and no profit accrueth to the Plaintiffes.

71 It is abuse that any Plaint is received to be heard without Sureties present, to testifie the Plaint to be true.

72 It is abuse, that it is said that Villi­nage is not a Franck Tenement, and that an Assize lyeth not of an ejection for term of years, as well as it doth of a Franck Tenement for terme of life, or in Fee; [Page 234]for a Villaine and a Slave are not all one, either in name or signification, for as much as every Free-man may hold in Villinage to him and his Heires, 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 himselfe, 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 testifie the bargaine; 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 seised 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 then 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 backe the Horse, al­though [Page 235]the buyer hath no Action for the same, because he remained alwaies seised thereof at will; such Exception is not good.

74 It is abuse to thinke that Contracts for goods not moveables are otherwise then for moveable goods.

75 It is abuse to thinke that seisin ac­crueth not as soone to a Purchaser of his Purchase, as to an Heire 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 houre of one of the Clocke, and the Pur­chaser dyeth at the houre of three of the Clocke he dyeth as well seised 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 Free-hold 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, then 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 [Page 236]granted in Chancery without difficulty, to Attaint all false Jurours, as well in all other Actions Personalls, realls and mixt as in Assizes brought.

78. It is abuse to drive a Distresse out of the Hundred.

79 It is abuse to make the view of the Distresse to Bayliffes, in that a Plaint will suffice, and a Court, and that he is yet seised thereof.

80 It is abuse that we doe not sue for a Tortious Distresse 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 binde himselfe to Usury, or to Imprisonment, or a Disseisin, if he doe not offend.

82 It is abuse that Advowsons of Char­ters are aliened by Law for yeares in Morgage, or to ferine, or are partible.

83 It is abuse that Leases of Fermes are not longer then forty yeares, since con­tinuance of seisin by length of time doth dis-inherit no man.

84 It is abuse that no Land is let to ferme or in Fee, or for yeares rendring Rent by the yeare, more then the fourth part.

85 It is abuse to Oat-law a man for a de­fault, in case where the principall cause is not felony.

86 It is abuse that Auditors are appoin­ted by the Lords to heare Accompts with­out the assent of Bayliffes.

87 It is abuse that Bayliffes have no recovery of damage; from Tortious Au­ditors.

88 It is abuse that regard is had to the persons, when such Law is not for Bayliffes 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 sustinance, in as much as a Villaine is not a Villaine 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 finde not suste­nance to his Villaine, or send him to some Land in his Mannour where he may gaine his living, or otherwise retaine him in his service

90 It is abuse that Villaines are Frank, pledges, or Pledges of Free-men.

91 It is abuse that others suffer Villains to be in their Viewes of Franck-pledges.

92 It is abuse that the Lords suffer their Villaines to plead, or be impleaded with­out them, for a Villaine is not Amercea­ble in any other Court because he can lose nothing, as he who hath nothing proper of his owne.

23 It is abuse to hold Villaines for Slaves, and this abuse causeth great de­struction of poore people, great poverty. and is a great offence.

94 It is abuse that a man is Summoned who is no Free-holder.

95 It is abuse to Summon a man else­where then in the Land contained in the demand, if it containe Land.

96 It is abuse that a man travaile at his owne Charges, by any Summons personall.

97 It is abuse that a Justice or other make a Summons who is not a Free-holder within the County.

98 It is abuse to Summon men without giving them reasonable warning upon what to Answer.

99 It is abuse that false Causes of Es­soignes are admitted, for as much as the Law alloweth falsity in no case.

100 It is abuse that an Essoignor is ad­mitted in a personall Action to the Defen­dant, since one is Maine-prised to appeare in Court by Maine-prisors.

101 It is an abuse to receive an Essoigne cast in by an infant within age.

102 It is an abuse to receive an Atturny, where no power so to doe is given by Writ out of the Chancery.

103 It is abuse to receive an Atturney, where the Plea is not to be judged in the presence of the Parties, if not in case where one maketh an Atturney generall.

104 It is abuse that none can make an Attuoney in personall Actions, where Cor­porall pnnishment is to be awarded.

105 It is abuse to receive Exceptions in Judgements if they be not sufficient­ly pronounced, for from the Order of [Page 239]the Exception early ariseth cleare Judge­ment.

106 It is abuse to allow a warrant of Voucher to a Theife, or in other perso­nall Action.

107 It is abuse that Judges Assigned shew not the parties pleading their Warrants, or of his power when they demand it.

108 It is abuse that Justices and their Officers, who kill people by false Judge­ment be not destroyed as other murde­rours, which King Alfred caused to be done, who caused forty foure Justices in one yeare to be hanged as murderours for their false Judgements.

He hanged Darling because he had Judged Sidulf to death, 1 Darling. for the retreat of Edulfe his Son, who afterwards acquitted him of the fact.

He hanged Segnor, 2 Segnor. who judged Vlfe to death after susfficient acquittall.

He hanged Cadwine, 3 Cadwine. because that he judged Hachwy to death without the con­sent of all the Jurours, and whereas he stood upon the Jury of twelve men, and because that three would have saved him against the nine, Codwine removed the three, and put others upon the Jury, upon whom Hachwy put not himselfe.

He hanged Cole, 4 Cole. because he judged Jve to death when he was a Mad-man.

He hanged Malme, 5 Malme. because he judged Prat to death upon a false suggestion that he committed the felony.

He hanged Athulf because be caused Copping to be hanged before the age of one and twenty yeares. 6 Athulf.

He hanged Markes because he judged During to death by twelve men who were nor sworne. 7 Markes.

He hanged Ostline because he judged Seaman to death by a-false Warrant, 8 Ostline. groun­ded upon false suggestion, which supposed Seaman to be a person in the Warrant which he was not.

He hanged Billing, 9 Billing. because he judged Leston to death by fraud, in this manner he said to the people, Sit all yee here but he who assisted to kill the man, and because that Leston did not fit with the other he him commanded to be hanged, and said that he did-assist, where he knew he did not assisted to kill him.

He hanged Seafoule because he judged Olding to death, 10 Seafoule. for not answeri [...]g.

He hanged Thurston because he judged Thurguer to death by a verdict of Enquest, 11 Thurston taken Ex officio without issue joyned.

He hanged Athelston, 12 Athel­ston. because he judged Herbert to death for an offence not mortall.

He hanged Rombold because he judged Lisil [...]ld, 13 Rombold in a case not notorious without Appeale, and without Endictment,

He hanged Rolfe, 14 Rolfe because he judged Dunston to dye for an escape out of prison.

He hanged Freburne because he judged Harpin to dye, 15 Freburne whereas the Jury were in doubt of their Verdict, for in doubtfull causes one ought rather to save then to condemne.

He hanged Seabright who judged Aiheb­brus to death, 16 Sea­bright. because he condemned one by a false judgement mortall.

He hanged Hale because he saved Tris­tram the Sheriffe from death, 17 Hale. who took to the Kings use from another goods against his will, for as much as any such taking from another against his will, and Robbery hath no difference.

He hanged Arnold because he saved Boy­liffe, 18 Arnold. who robbed the people by colour of Distresses, whereof some were by selling Distresses, some by extortion of Fines, as if betwixt extortion of Fines, releasing of tortious Distresses, and Robbery there were difference.

He hanged Erkinwald because he han­ged Frankling, 12 Erkiu. wald. for nought else but because he taught to him who vanquished by Bat­taile mortall to say the word of Cravant.

He hanged Bermond because he caused 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 Kings Writ runneth for a fact which he did in the same Land where the Kings Writ did not run.

He hanged Alflet because he judged a Clerke to death, 23 Alflet. over whom he had not cognisance.

He hanged Piron because he judged [Page 242] Hanting to Death, 24 Piron. because he gave judgement in Appeale before the forty daies pendant, the Appeale by a Writ of false judgement before the King.

He hanged Diling because he caused Eldon to be hanged, 25 Dilling. who killed a man by misfortune.

He hanged Oswin because he judged Ful­cher to death out of Court. 26 Oswin.

He hanged Muclin, 27 Muclin. because he hanged Helgrave by warrant of indictment not speciall.

He hanged Horne, 28 Horne. because he hanged Si­min at daies forbidden.

He hanged Wolmer because he judged Graunt to death by colour of a Larcine of a thing, 29 Wolmer. which he had received by title of baylement,

He hanged Therberne because he judged Osgot to death for a Fact, 30 Therbern. whereof he was acquitted before against the same Plaine­tiffe, which Acquittance he tendred to averre by Oath, and because he would not averre it by Record, Therberne would not allow of the Acquittall which he ten­dred 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, neverthelesse he vouched the King to warrant it, and further tendred to averre it by enrole­ment of the Chancery.

He hanged Oskitell because he judged [Page 243] 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 paine; and Os­kitell adjudged him to death upon his Con­fession which he had made to the Coroner without triall of the truth of the paine, 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 hindred the false Judgement, and did not hinder the same in all cases; For he hanged all the Judges who had falsly saved a man guilty of death, or hath falsly 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 Iudge within the Realme but the King, or his Commis­saries, except those Lords in whose Lord­ships the Kings Writ doth not run.

He hanged the Suitors of Dorcester, 34 Suitors of Dorcester. be­cause they Iudged a man to death by Iu­tours 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 dyed in Prison, who would have [Page 244]acquitted himselfe by Forraigners that he offended not feloniously.

In his time the Suitors of Doncaster lost their Iurisdiction, 36 Su [...]ors of Doncaster. besides other punish­ments, because they held Pleas forbidden by the Customes of the Realme to Iudges, Ordinaries, and Suitors to hold.

In his time Colgrin lost his franchise of Enfangtheise, 37 Colgrin. because he would not send a Theife to the common Goale 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 Iurours with other Articles then those which belonged to the View, and Amer­ced people in Personall Actions where one was not to be amerced by a pecuniary punishment. And accordingly he caused mortall rewards to Criminall Iudges for wrongfull mortall Iudgements, and so he did for wrongfull Iudgements venialls. Imprisonment for wrongfull 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 mortall.

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 Olde for the Kings Debt.

On the other side he cut off the hand of [Page 245] 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 dis-inherited 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 encreased 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 veniall Actions by words of felony, or è contrai, or had sent to no Party a transcript of his Plea at the Jo [...]ney, or any of the Parties wrongfull, grieved, or done any other wrong in dis-allowance of a reasonable Exception of the Parties, or to the Judge­ment.

In his time every Plaintiffe might have a Commission and a Writ to his Sheriffe, to the Lord of the Fee, or to certaine Justices assigned upon every wrongwhichwas done.

In his time Law was hastened from day to day, so that above fifteen daies there was no default nor Essoigne adjournable.

In his time the parties might carry away the parts of their Pleas under the Seale of the Judges, or the adverse parties.

In his time there was no stay of Writs, all remediall Writs were grantable, as of Debt by vertue of an Oath.

In his time the Iudges used to take twelve pence of every Plaintiffe at the journey.

In his time Plaintiffes recovered not onely 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 Taxe, by the occasion of such a fact.

109 It is abuse that such a multitude of Clerks are suffered to be made, whereby the Kings jurisdiction is overthrowne.

110 It is abuse that Clerkes have Lea­ses of that which belongs to the Tempo­ralty, and hold Lay Fees.

111 It is abuse that Pleas hold upon Sundaies, or other daies 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 personall Action of tres­passe or scandall before his age of one and twenty yeares.

113 It is abuse that when the Action is affirmative to take the proofe 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 Iustices shew not the Endictments to those who are en­dicted, if they require the same.

116 It is abuse that no man in England doth answer for a thing done out of the Realme Et è contra, or in a priviledged place, where the Kings Writ runneth not for a thing done to a Forraigner et è contra, or within a place within a Franchize, for a thing done in Guildable

117 It is abuse that Rape is a mortall offence.

118 It is abuse that Rape extends to others then Virgins.

119 It is abuse to Out-law a man if not for felony.

120 It is abuse that one take in England any one Out lawed in Ireland, or elsewhere out of the Realme; or that one is put out of his Fee by judgement of Law of Judges Ordinaries, Suiters

121 It is abuse to count of so iong time, whereof none can restifie the hearing or seeing, which is not to endure generally above forty yeares.

122 It is abuse that a man have an Action personall from a longer time then the last Eyre.

123 It is abuse of the Writ of Ac­compt, for which every one may imprison another wrongfully.

124 It is abuse that one is bound to render an accompt of issues of Land where­of he is Guardian by title of Law.

125 It is abuse that the Writ of Ne [Page 248]cui juste vexces is so out of use.

126 It is abuse that Battailes be not in personall Actions as well as in Felonies.

127 It is abuse that proofes and pur­gations be not by the Miracle of God where other proofe faileth.

128 It is abuse to joyne Battaile be­twixt persons who are not admitted to wage battailé.

129 It is abuse that a Knight is other­wise armed then another man in a Com­bate.

130 It is abuse that Judges have Cog­nizance by originall Writ, or warrant by Vouchers, or in others to which his juris­diction extendeth not.

131 It is abuse to suffer a Voucher to warranty in the Kings Writ of Quo war­ranto.

132 It is abuse that those who are sound Usurers by indictments after their deaths are suffered to be buried in Sanctuaries, and that the Lands doe not escheat to the Lords of the Fees.

133 It is abuse that vicious Obligati­ons drive the Authors to personall Dama­ges, in as much as they are voidables.

134 It is abuse to compell Iuronts, Witnesses, to say that which they know not by distresse of Fine and imprisonment after their Verdict, when they could not say any thing.

135 It is abuse to use the words (to their knowledge) in their Oath, to make the Iurours speake upon thoughts, since [Page 249]the chiefe words of their Oathes be that they speake the truth.

136 It is abuse that one examine not the Jurours, though they finde at least two to agree.

137 It is abuse to put more words in the doing of Homage; but thus, I become your man, for the Land which I claime to hold of you.

138 It is abuse to Answer or appeare by Atturney.

139 It is abuse to make Justices such parties without the Writ in the Kings presence, if not with the assent of the parties.

140 It is abuse that the Writs of Au­dita quareta, and Conspiracy and others containe not the substance of the plaints.

141 It is abuse that the Justices of the Bench meddle with more Pleas then of wrong done against Fines, Grand Assizes, translation of pleas out of lower Courts, and of Darrein presentment, and of the rights of the King, Queene, and their Allies.

142 It is abuse to use a Pone when their Causes are discussed, if the parties challenge the same, for a lying purchasor ought not to have benefit of his leasings.

143 It is abuse to sue forth Grand Di­stresses in Pleas of Attachments, whereof the defaults are to the profit of the King, and not of the Plaintiffes.

144 It is abuse that Trespassours who have nothing are not banished from [Page 250]Townes, Counties, Manours, and Hun­dreds as they used to be.

145 It is abuse to hold that a Petit Cape maketh other title but to save every right in reall Action, not in others.

146 It is abuse that the issues of Grand Distresses in mixt Actions come not to the profit of the Lords of the Fees, and others who have Courts, as they doe to the King of Pleas, moved in his Court upon the same Actions.

147 It is abuse to thinke the same pu­nishment is to be to Maine-prisots as to Principals who make default, whereas they are amerceable onely in Courts.

148 It is abuse to amerce a man in plesive of Fee, or of service, going out of the Land by default in a personall Action or reall; for Outlawty or losse of Land is suf­ficient punishment.

149 It is abuse that Sheriffes doe not execution of Writs Vice Conntiels, in as much as the Plaintiffes have found Pledges De proseqnend. where there is no mention to take Sureties.

150 It is abuse to distreine for Ar [...]era­ges of services issuing out of Lands move­able goods, whereas no distresse ought to be but in the Land onely.

151 It is abuse that the Tenant may without punishment enfeoffe a third per­son of the Land, of his Lord in prejudice of him, or doe other thing, or say any thing against the points of his Oath of fealty.

152 It is abuse to suffer a man who is a Champion to be a witnesse.

153 It is abuse that none have recovery of wrong done by the King, or the Queen, but at the Kings pleasure.

154 It is abuse to judge a man to divers punishments for one Trespasse, as to a corporall punishment and to a ransome, since ransome is but a Redemption from corporall punishment by payment of a fine of money.

155 It is abuse that people defamed of offence are not barred from making oathes, and of their dignities, and of their other Honors.

And divers other abuses appeare by those who well understand the Writ be­fore written.

CHAP. V. SECT. 2. The defects of the great Charter.

SEeing how the Law of this Realm soun­ded upon forty points of the Great Charter of Liberties is damnably dis-used by the Governours of the Law, and by Statutes afterwards made contrary to some of the points, to shew the defects or de­faults of the points aforesaid; and the errours of some Statutes I have put in memory this Chapter of the defect; and [Page 252]reprehensions of Statutes, and first of the defects of the points of the Great Charter.

To the point, That the Church of Eng­land shall have all her Rights and Liber­ties inviolable; for first it were necessary to ordaine a Corporall punishment, and namely to the Lay Judges, the Kings Mi­nisters, and others who Judge Clerkes for mortall Crimes to Corporall punishments, infamatories, & doe detain their goods after their purgation, and to those Secular Judges who take upon them Cognizance in causes of Matrimony, and Testaments, or other speciall things.

The other point is, That every Free-man of the Realme inherite the Liberties of the Charter, and whereof every one is disseised as of his Free-hold, which is not adjudged according to the points following, there lyeth no recovery of damages by the Assize of Novel Dis­seisin.

A third point seemeth to be defective, for as the releife of an Earldome entire was to decrease in him who held lesse, so it seemeth that that certainety was to en­crease as much if an Earle held more, so as he who held two Earldoms, and who held an Earldome and a Barony, shall pay as an Eardome and as a Barony; and so of other Fees if they be not expressed in the Charter, that the Fyne of one hundred pound be not an Eirldome for no point oncreased, and so of other certainties.

The fourth point is defective (for al­though [Page 253]it be that such a point be groun­ded upon Law, to binde the Lord of Fees to warranties by taking of such Homages, whether they tooke them of the right Heires or not) because it is not expressed whoshould be Guardian of the Fees in time of vacancy, and have the issues in the mean time in case where the right Heires fly from their Lords, or cannot or will not doe their homage.

In the points of Wards it is defective, for as much as no difference is expressed between the heires Males, and the heires Females, for a woman hath her age when she is fully of fourteen yeares, and the seaven yeares besides were not ordained first but for the Males, who before the age of one and twenty yeares were not suffici­ent to beare Armes for the defence of the Realme.

And note that every Guardian is charge­able to three things: 1 That he maine­taine the infant sufficiently. 2 That he maintaine his rights and inheritance with­out waste, 3. That he answer and give satisfaction of the Trespasses done by the infants.

The defect of the point of Disparage­ments appeareth amorgst the Statutes of Merton.

And the default of Franckbenches and Widowes in the same manner, in which point it is sufficiently expressed that no wo­man is dowable if she have not been sol­lemnly espoused at the doore of the Mo­nastery [Page 254]and there endowed.

In the point which requireth that the City of London have its ancient Liberties, and her free Customes, it is to be interpre­ted in this manner; That the Citizens have their Liberties whereof they are in­herited by lawfull Title of the gifts and confirmations of Kings, which they have not forfeised by any abuse, and that they may have their Liberties and Customes which are sufferable by Law, and not re­pugnant to the Law. And where it is said (of London) that the interpretation be as well of the Cinque Ports, and of other places.

The point which forbiddeth tortious Distresses for Fees is Covenable in it selfe, but the same shal not grieve any man of the Realme who hath Tenements, that it is no Trespasse in him, or by his Ministers, as appeareth in the Chapter of Nativo ha­bendo.

The point which forbiddeth that Com­mon Pleas follow not our Court, is to be interpreted in this manner; That the people shall not travail to Sue in the Kings House­hold in the Country as they used to doe. But this point willeth, that the Plaintiffes have Commissions to Sheriffes, to Lords of Mannours, and to Justices assigned, so that right be done to the parties in certaine places, where the Parties and Jurours may be the lesse travailed.

Although it be that the Chapter com­mand that Petit Assizes be taken in their [Page 255]Counties, being made for the ease of Jurors, yet it is disused, in as much as the Justi­ces make the Jurours to come from the furthest marches of the Counties, whereas it were better that the Justices Rod from Hundred to Hundred, then so to travaile the people.

The point of Amercements is misused by Iustices, Sheriffes, Bayliffes, Stewards, Cap. 14. and others who amerce the people in cer­taine in this manner, putting such a one to so much for a Contempt or other Tres­passe withont a personall Trespasse, and without the afferment of the people sworn to it, and without specifying the manner and the quality of the Contempt.

Againe, where the Afferrours ought to be chosen with the assent of those who are amerced, and in a common place, the Lords make the Afferrours to come to their houses to asser the Amercements ac­cording to their pleasures.

The point which forbiddeth that Ri­vers be defended is dis-used, Cap. 16. for many Ri­vers are now appropriate and gotten, and so put in defence, which used to be com­mon to Fish in in the time of King Hen. 1. Cap. 17.

The Chapter which forbiddeth that Sheriffes, Constables, Coroners, nor Bay­liffes shall hold Pleas of the Crowne see­meth not needfull, for appeales of felony are not here to be brought before Co­roners, and the exigents and Iudgements pronounced, and therefore this point had need to have had more words to [Page 256]have expressed the meaning of it.

For the end of the Chapter of the move­able good; of the dead, it appeareth that the Action accrueth to the Widowes, and to the Children to demand their reasona­ble parts of the goods of their Father ta­ken away.

That which is forbidden to Constables to take is forbidden to all men, Cap. 19, 20. in as much as there is no difference betwixt taking from another against his will and liberty, whether it be Horses, Victuals, Merchan­dizes, Carriages, or other manner of goods.

The Chapter for holding the Lands of Felons for a yeare and a day is out of nse; for whereas the King ought not to have the wast by Law, or but the yeare in the [...]ame of Fine for safeguard of the land from spoile, the Kings O [...]cers take both.

The defence of the Precipe is not hol­den in that they doe it without Writs of possession of Farmes every day, that the Lords lose the Cognizance of their Fees, and the advantages of their Courts.

The point which commands that one Measure be throughout the whole Realm, and one Weight is dis-used by Merchants, and Burgesses, using for the pound the old Weight of twenty shillings of right Assize, and also of Ells and other measures.

The defence which is made of the Writ De odio & atia, that the King be not Chan­cellor, nor take any thing for granted, the VVrit ought to extend to all remedial VVrits, and the same VVrit ought not [Page 257]extend onely to the felonies of Murder, but it ought to extend to all felonies, and not onely in Appeales but in Endict­ments.

The point which forbiddeth that no Bayliffe put a Free-man to his Oath with­out Suit, is to be understood in this man­ner, That no Justice, no Minister of the King, nor other Steward nor Bayliffe have power to make a Free-man make Oath without the Kings Command, nor receive any plaint without Witnesses present who testifie the plaint to be true.

The point where the King granteth that he will not disseise, nor imprison, nor destroy, but by lawfull Iudgement, which overthrows the Statute of Merchants and other Statutes is to be interpreted thus, that none be arrested, if not by warrant groun­ded upon a personal Action, for if the Action be veniall, no Imprisonment is justifiable, if not for default of Maine-pernors. And so it appeareth that none is imprisonable for Debt. And if any Statute be made re­pugnant to this point, either for the Kings Debt, or for the Debt of any other, it is not to be kept. That (none be Outlawed) is to be meant, if not for mortall felony, from which one is saved by the Oath of Neighbours, ex officio, as it is the use in Eyres; and therefore that destroyeth the Statute of Outlawry of a man for arrerages of Accompt, and all other the like Statutes; and that which is said, that none be (exiled nor destroyed) is to be interpreted [Page 258]in this manner, that every one have an Acti­on to appeale all Persons, all Suitors, all Assessors who destroy men against the right course, and against the rules of Law.

On the other part, where the King for­bideth that none be disseised of his Free­hold, of his Liberties, or of his free Cu­stomes is thus to be understood, that one shall recover by Assize of Novel disseisin every manner of Free-hold, and all man­ner of Possession reall of Lands, or of Franchises whereout one is cast, if it be not by lawfull Iudgement; and these words (if it be not by lawfull Iudgement) referre 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 Iustice, is misused by the Chan­sellour, who se [...]ls the remediall Writs, and calls them Writs o [...] Grace, & by the Chan­sellour of the Exchequer who denyeth Acquittances of payments made to the King under Green Waxe, and all those who delay right judgement or other right.

The point concerning leave for the stay­ing of Merchants, Alliens, is so to be un­derstood, that it be not prejudiciall to the Townes, not to the Merchants of Eng­land, and that they be sworne to the King if they stay longer then forty daies.

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 [Page 259]his Lord without his consent, or to hold in chiefe of the Lord without encrease of new service.

The point of the custody of Abbies, 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 appeale 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 Sheriffes Turnes and Viewes of Franck-pledges are disused three waies; the first that Sheriffes, Bay­liffes, 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 personall Actions. The third is, that they charge the Iurours with Articles touching Trespasse 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 chiefe Lord is limited in so short time, to hasten the Kings Action in prejudice of the Lords of the Fee.

The last point is of such vertue 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 Mannours, and also as well of reall Actions, and Personalls, as of mixt.

CHAP. V. SECT. 2. The Articles upon the Statute of Merton.

SOme points are reproveable 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 enquest of Office, and because Pleas may perhaps availe the Tenants, and should be by Law allowable, Assizes lye 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 personall Trespasse be punished by a Corporall punishment, if he cannot ran­some it by money; and that which is said of this Statute is to be understood of all Statutes made after the Great Charter, [Page 261]made in the time of King Hen. the 1. for it is not Justice that he should be puni­shed for one fault with Corporall punish­ment, as imprisonment or other, and fur­ther by a pecuniary paine, or by ransome; for ransome is nothing but a buying out the Corporall punishment.

The point of Improvements of Wasts is reproveable as being too generall, for it ought to distinguish of Commons; for in some places the Commonors are infeoffed in such manner that the whole Common is onely in the Tenants, so that the Lords have nothing but the soile, and in such case that Statute is prejudiciall to the Commoners, and repugnant to the Great. Charter, which willeth that none be cast out of his Free-hold, not the appurte­nances without lawfull judgement.

The point of Rape of Marriages is re­proveable, in as much that it hath an Exception of Persons of Laymen, and of Clerkes, for there is no more Law that a Clerke should offend without punishment then a Lay man.

Other points are repugnable; If the Te­nant doe 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 Atturnies in Suits at Hundreds is to be understood in this manner; That although a Suitor by this [Page 262]Statute may make an Atturney for him to save his default, yet none can give Judge­ment by Atturney; 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 Marle-bridge.

SOme points of the Statutes of Marle-bridge are reproveable, and namely the first five points, because that every personall Trespasse is punishable by a Corporall punishment if the Trespasse be not bought in by ransome 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 seemes crosse to make consti­tutions not holden.

The Chapters remedialls of Lords of Fees is reproveable in the mittigation of punishment: For all those who doe de­fraud the Law are punishable by a Corpo­rall punishment, and not by a simple Amercement.

The point of Proclamation of Wards is reproveable, as that which is founded [Page 263]upon Errour, as it appeareth in the Chap­ter of defaults.

The Chapter of Redisseisors is reprove­able, for that no speciall command ought to exceed Common Right, not any paine of imprisonment is judgeable but for a wrongfull imprisonment.

The Chapter of daies in dower is re­proveable, since the Law hasteneth right more in the Kings Court then clsewhere.

The Chapters following of Attachments and Distresses are reproveab [...]e, 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 reprove­able, 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 Kings Command, as be­fore Justices of Forrests, before Coroners, and before Escheators, and as in Courts of Sheriffes and Viewes of Frauk­pledges, and as Afferrours, and at Goale deliveries.

The Chapter which commandeth the arresting of those who are bound to Ac­compt is reproveable, since the Action is mixt, and requireth Summons, and not personall Arrests.

The Chapter of wasters of Farmes is reproveable, for waste is a personall Tres­passe, [Page 264]and requireth a personall punish­ment, and not a simple Amercement.

CHAP. V. SECT. 4. Articles upon the Statute of Westminster, the first.

MAny Chapters are reproveable of the Statute of Westminster. For the points touching religious Persons are matter to gaine monies, and a purchase upon a foun­dation of covetousnesse, more then for their advantage.

The Chapter of Clerkes found guilty of felony is reproveable, for for want of addi­tion of punishment these Clerkes are not to be delivered to Ordinaries, but at the pleasure of the King, and of his Justices.

The Chapter of Wreck is reproveable, 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 reproveable, as to the awarding of the punishment.

Of the points of Amercements is before spoken in the Great Charter.

The point of takings of distresse is much reproveable, Cap. 9. as before is said.

The Chapter concerning pursuing of Fe­lons to maintaine the Peace is reproveable [Page 265]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 needfull to have been ordained, Cap. [...] for it be­hoveth more the Electors to have wise and loyall Coroners then to the King, and it had better have been enacted that the Co­roners doe present the points of their Of­fice under the Seales of the Jurours, then Sheriffes should make counter parts of the Rolls.

The point of Enquest of Odio & aria is reproveable, 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 pennance, it is out of use that one kill them, without ha­ving regard to the conditions of the Per­sons, and therein it is reproveable, since one may perhaps helpe and acquit him­selfe otherwaies then by his Country, and in as much as none is to be put to Pen­nance 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 principalls before the Accessories is no Statute, but a revocation of errour.

The point of Replevisalls is reprove­able, according as it is said of Actions; the punishment of long imprisonment containe Errour as is said before.

The punishment of Heites males Mar­ried, as against the King, without the con­sent of their Lords, betwixt 14. yeares and 21. yeares is reproveable, for then the King should have amends for that, for which he hath not any personall Suit for the amends.

The point of Heires females containeth Errour, as appeareth in the reprehension of the point of Marriages in the Great Charter.

The point of tortious Distresses ought to contain the punishment for the robbery.

The punishment of Ministers, Dissei­sors by colour of their Office is reprovea­ble for the smalnesse of it, as appeareth amongst the Judgements.

The point which forbiddeth Sheriffes that they take no rewards is reproveable in as much as the King taketh of them, and they take nothing of the King.

The point of Fines of Clerkes, and the officers of Justices in Eyre is reproveable, for the common grievance of the people without taking of profit.

The points of imprisonment are re­proveable for the reasons aforesaid, and the point of Tolls for the punishment of imprisonment, and because Tolls are not established certaine.

The point which willeth that those who [Page 267]dis-use Marriages should lose them, was not needfull 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 Kings monies and not rendring the same is re­proveable, for the smallnesse of the punish­ment, according to that which appeareth before.

The Errours 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 reproveable, for no Iudgement given by another then an ordinary Judge assigned is to hold.

The point which maketh mention of Robbery, or Disseisins is reproveable, for all those are to be seised upon who the Ju­rours indict of Robbery, according to the example of Theeves and other Felons.

The point of Attaint is reproveable, for it should not extend to one case, but it ought to comprchend all Oathes taken by twelve men if one of the Parties complaine thereof.

The point of limitations of Actions is reproveable, 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 reproveable, [Page 268]for no Champion is to be receiveable as a witnesse.

The point of not allowing Essoignes in Assizes after appearance, is reproveable by the Assize of Novel disseisin, where no Essoigne is allowable for the Tenants no more before appearance then after, not in no other personall Action.

The other points of Essoignes are re­proveable, for no false cause of Essoigne ought to advantage any man.

The point of delaies in Pleas of Attach­ment is reproveable in many points, accor­dingas appearethin the chapter of defaults.

The point to plead upon the sur­charge falleth in prejudice of Sheriffes, 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 personall tres­passe done to his Ancesters in as much as his Action lyeth, of what age soever the Parties be, yet is the first reproveable, for as much as the Plaintiffes have no recovery for the damages done to their Ancestors, not any Action, but to have restitution of the possession.

The other point is reproveable for the smallnesse of the punishment, but accor­ding to common right this punishment should have time, that he should never doe Homage betwixt them for the Lords for­feiture, when he beginneth to dis-inherite his Tenant contrary to the right of Ho­mage.

The Prayer of the King is reprovea­ble, because he ought to aske nothing contrary to Law, but it is the prayer of the Justices who desire alwaies to have much to doe.

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 Heire he is, in case he alledge that nothing descended to him from that Ancestor by whose deed he is [...]ouched is reproveable, 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 Heire for that he lost not the Tenements for want of Ac­quittance, and if he who bound himselfe 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 Heire had nothing whereby to discharge him, the Tenements bound to warranty should be recovered. And if the Heire had nothing whereby to discharge, not no Land is found bound to the warranty, if the Purchasor lost his purchase it was at his owne perill, and ac­counted his owne folly, the better at any other time to looke 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 controuled by those who know not the Law.

And the three first Chapters are not Statutes, but are the revocations of the Errours of negligent Judges, for the Law permits not that a man make a better estate to another then himselfe hath, but requi­reth that every lawfull Contract be made according to the wills of the speakers; and that which is in the Statute, that if a Fine be leavied in deceit of right, that the same be null is reproveable; but it might have been better said, That for that Fine, that no man be barred of his right, for the Fine leavied 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 repeale any Errour, but affirme them, as before ap­peareth in the second beoke.

And that which is said in the second Statute, that Suitors in Counties have no [Page 271]Record, is but abusion, since every lawfull restimony is a Record, and every false testimony is a lye; and as lawfull may other people testifie as the Justices assign­ned. Is not the same Writ abused, to grant to Counties Records in Outlawries, Pledges, Maine-prises, Battailes, Grand Assizes and other Cases, and not other points, and to deny that the Sheriffes or Lord of the Fee, or other to whom the King sendeth his Writ, hath not as well Record of Processe before him, as those whom they call Iustices, is but Errour?

And as to the causes of Writs of paines is suffered great Errour, that that which is not warranted in the Accessory, that he may [...] in the principall, since the Law permits that none be aided by a lye or a vicious Writ.

Of the other side, because there is more realty in the Statute then personal­ty, as more Attachments are awarded in personall Actions then in mixt and realls.

The point of Measnes is reproveable, as to the Proclamation, and as to the non-acquittance of those who hold by lesse service then 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 moyety 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. [Page 272]and therefore the old course is to be hol­den which is said before in Iudgements.

The remediall Statute of the right of the Wife lost by the default of the Hus­band is reproveable, 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 distresse and eje­ction of seasin saving every right; and it is lawfull 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 Widowes Action to de­mand Dower in the cases named in the Statute, but in all cases the Law enables her to be received by Lawfull reversing of the Iudgement.

And that which is contained that Te­nants may vouch to warranty, is but abuse; how holdeth voucher place where a Writ lyeth not; yet is it understood with a saving, that no jurisdiction of a Iudge assigned extend to other Persons then those who are named in the Writ, and that none shall vouch more then 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 prejudiciall to Lords of Fees, who lose [Page 273]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 meere right of the Advowson doth be­long, according as is said before in Con­tracts; and it is errour and abusion of Law to endow women of Advowsons, or to Lease them to Farme, or for the terme of anothers life, or in Frank-marriage, or in Mortgage, or in Fee-tayle, or other­wise then in Fee-simple.

And those who receive Clerkes presen­ted to Churches, in prejudice of those to whom the meere right in Fee doth apper­taine, 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 lyeth more against the Bishops then the pre­sentors.

And that which enacteth long Impri­sonment for a punishment, is but abuse; since none is imprisonable if not for a wrongfull imprisonment.

The Statute of Warranties is but a re­vocation of Errour used against Law.

The Statute of Admeasurement is re­proveable in many points, as to the Procla­mations, since admeasurement and surcharge are to be by Jurours.

The Statute of Measnes is reproveable in many points, as it appeareth in the [Page 274]Chapter of Distresses, Contracts, and de­faults, and the same appeareth in the end of the Statute where the Plaintiffes know not a set fine.

The Statute of suspension of Writs in Eyres is reproveable, as repugnant to the great Charter, which saith, we will sell no Right, nor detaine 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 Accompt is reproveable in many points, one as to the exception to the Persons, for the Masters is ordained recovery, and to Ser­jeants not, when Auditors are assigned without the consent of the servants.

The other, that the Auditors are not tyed 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 wickednesse of Au­ditors remaineth unpunished.

Another of Outlawry, for none is to be imprisoned if not for a tortious imprison­ment.

The Statute of Appeales is reproveable in two points, one in the specialty of the Corporall punishment, and of the Plurality punishments, since the redemption by a [Page 275]pecuniary paine is but the buying out of the Corporall punishment.

The other to have jurisdiction against the Abettors without originall Writ.

The Statutes of Waste are founded up­on Errour since waste is a personall Tres­passe, and requireth other manner of Processes, as appeareth in the Chapter of defaults; and to defend a personall Tres­passe by Writ is but a vaine 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 ought to be profitable to any.

The Statute of Debt and Damages reco­vered is defective, for not onely should such remedy be in the Kings 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 needfull to have been made if not for the negligence of Justices, for every affirma­tive is encounterable with his negative at the perill of the party.

The Statute of detinue of service is a novelty daugerous to Lords of Fees, as [Page 276]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 reproveable, for as much as it comprehendeth not Lands charged with Villain Customes, not Lands holden for terme of yeares.

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 reproveable for the reasons aforesaid, and also as to the paine of dou­ble damages, for the Law giveth a man no more then is his demand.

And that which appeareth in the Sta­tute of false Appeales is more errour then right in the enacting the award of amends to Defendants, whereas it is not to the Plaintiffes.

And as to the Writ to the use of She­riffes 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 Clerkes, or to Ministers, or others should be forbidden, as a usage very full of da­mage to the people.

And as punishments are reproveable in Novel Disseisins, so are they in the Statutes of Disseisins, Corporall punishments ne­verthelesse hold in such personall Trespas­ses, but in Reddisseisins more then 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 commeth rather from the remporall Iudges, who cause the same for their advantages, as desiring to embrace all Pleas.

The Statute of Caption of Assizes thrice in the yeare is reproveable, as to the adjournment of the Parties out of the Counties before the Iustices of the Bench, who have no jurisdiction over those Pleas, since the Commissions are given to Iustices assigned.

And as to take Iuries and Enquests in their Counties, so the Statute is not to destroy the Authours and indamage the people.

The Statute which forbiddeth Iustices that they cause not Iurours say, but their advice is defective, as appeareth in the Chapter of Iurours.

The Statute of Exceptions allowables rebutted by Iustices is not founded upon Law, as appeareth in the Iudgement of false Iustices, but is when it is in no part fixt.

The Statute of Rape is reproveable, for none can ordaine by Statute that a veniall punishment be turned into a mor­tall, without the consent of the Pope, or the Emperour.

The Statute that the King hath the Suit [Page 278]in Rape, or in Ellopment of women Mar­ried is reproveable, for none is bounden to Answer to the Kings Suit if not by Ap­peale, or by Indictment.

And that which is contained in it, That Women should lose their Dower for the sinne of Adultery, ought also to compre­hend all Adulterours, who claime to hold the inheritances of their Wives by the courtesie of England, so that there be no exception of persons.

The imprisonment of the Alloppors of Nunnes and their ransome is no Law, but is an errour in a double manner, as before is said in many places.

The imprisonment for two yeares or more, ordained for a Corporall punish­ment to Ravishers of Marriages is but er­rour, for no Corporall punishment ought to be ordained but for common profit, as before appeareth of open Penances.

And that which is ordained of Procla­mations in personall Actions is but abuse of Law, as it is said in the Statute of Moignes.

The Statute which awardeth Ransome is reproveable, for Ransome is nothing else then the redemption of Corporall punishment.

The Statute of Distresses made by Bay­lisses unknowne is distinguishable, for in torrious Distresses without warrant the Iudgement of Robbery holdeth; and by warrant is every one receiveable, whether knowne or unknowne.

The Statute of Iurours is reproveable, for the Law wills that the Plaintiffes have the aide of the Courts to cause the Wit­nesses to appeare, whereby they may the more lawfully helpe themselves with­out distinction of persons.

And that, that jurisdiction is granted to Justices assigned to Oyer and Terminer Plaints, without a speciall Commission is but abuse.

The Statute which awardeth that Writ of Judgement be made without warrant of originall Writ is nothing else then a Li­cence to falsifie the Kings Seale.

The punishment of Sheriffes ill answe­ring is reproveable, 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 reprove­able, for no issues are awardable but af­ter defaults in Actions mixt, and not to the Kings use, but for the profits of the Plaintiffes.

The defaults made of the Statutes of Clerkes, Cryers, and other Officers of the Court are but idle, because they a [...]e not kept at all.

The Statute that Cognizances and En­rolements which are made in the Chan­cery, the Exchequer, and before Iustices be established is an Authority of great ill; for by false enrolements might every one in Authority destroy those he pleased, [Page 280]which should be a great inconveniency. Againe, by this Statute Authority should accrue to Authority to the Chancellor and others to falsifie the Kings Seale by Writs, to give judgement without origi­nall Writs.

And therefore note, that none but the King can receive Arturnies in the Kings Court, nor recognitions bitwixt Parties without warrants of originall Writs.

The Statute of improvements of wasts and commons of Pasture is reproveable, and distinguishable according as hath been said before.

The Statute to have view of Lands is but a wrongfull delay of the right of the Plaintiffes; for the View appeareth suffi­cient by the Certificate of the Sum­mons, upon what Tenements the Tenants are summoned.

The Statute which forbiddeth that no Officer of the Court take any presentment of any Church, not other thing which is depending in Plea, or in debate is not kept.

CHAP. V. SECT. 6. The reprehensions of Circumspectè agates, An. 13. E. 1.

THe first point which saith, That the Kings prohibition holds not in corre­ction of mortall offences where a pe­cuniary paine is enjoyneable by Ordina­ries, is founded upon open errour, and usage to enjoyne a pecuniary paine for a mortall offence, notwithstanding to destroy the King; jurisdiction.

The other points to compell the Parishi­oners by corrections to enclose Church­yards, to offer, to give Mortuaries, Mo­nies for Consessions, Chalices, Lights, Holy Vestments, and other adornement of Churche; are more grounded upon interest then amendment of soules; and note, that after that they are offered to God, that they are so spirituall that they are to be expen­ded but in Almes, and spiritually, for they are never to be converted to Lay uses.

And then if any Parishioner for the hurt of the Parson of the Church keopeth back his Tithes, or stealeth them away, or doth not pay them duly or fully, the same is not punishable by a pecu­niary paine, but by a corporall punish­ment.

For the Excommunicate no pecuniall paine was to be for restitution or sa­tisfaction, no more then of a Pagan or a Jew, and if they doe demand a pecu­niary paine, there the Kings Prohibition lyeth, and much more in the demand of Pensions, or of damages of Trespasse, or of defamation; but of Pleas of correction where one Pleades onely Pro salute anima, the Kings prohibition lyeth not.

CHAP. V. SECT. 7.

THe new Statute of Debts is contrary to Law, as it appeareth in the Chap­ter of Contracts; for every imprison­ment of the body of a man is an offence if not for tortious Judgement, and the Law will not suffer any Obligation, or vicious Contract by intermixture of of­fence, and therefore it was to be avoided as grounded upon an offence; for no ho­nest man ought to agree to such a Contract [Page 284]which causeth him to offend, or to be pu­nished.

Againe, it is contrary to the Great Charter which enacteth, that no man be taken, nor imprisored if not by the law­full judgement of his Peeres, or by the Law of the Land.

Here endeth the Mirrour of Justices, of the right Lawes of Persons according to the ancient usages of England.

The end of the fifth Chapter, and of the whole Booke.