Front Page Titles (by Subject) Magna Charta, - Selected Writings of Sir Edward Coke, vol. II
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Magna Charta, - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. II 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 2.
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Magna Charta,Anno nono
| Henry, by the Grace of God, King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Earl of Anjou, to all Archbishops, Bishops, Abbots, Priors, Earls, Barons, Sheriffs, Provosts, Officers, and to all Bailiffs, and other our faithful Subjects, which shall see this present Charter, Greeting: Know Ye, that We, unto the honour of Almighty God, and for the salvation of the souls of our Progenitors and Successors Kings of England, to the advancement of Holy Church and amendment of our Realm, of our meer and free will, have given and granted to all Archbishops, Bishops, Abbots, Priors, Earls, Barons, and to all Freemen of this our Realm, these Liberties following, to be kept in our Kingdom of England for ever.
“Henry, by the Grace of God, King of England, &c.”
Concerning the Styles of the Kings of England, both before and after this King, and how often they altered the same, see in the first part of the Institutes, Sectione prima.1
“Archbishops, Bishops, Abbots, Priors, Earls, Barons, &c.”
Note not onely the preamble of this Charter, & of the forest, but the bodies of the Charters themselves are contained in the Charter of King John, An. 17. of his reign, Mat. Par. Pag. 246. Quae ex parte maxima leges antiquas & regni consuetudines continebant. pag. 244.This or the like particular direction, this King and his Progenitors before him used; and so did Edw. 1. Edw. 2. &c. Edw. 3. King Ric. 2. in his Letters Patents used a more generall, and compendious direction, viz. Omnibus ad quos praesentes literae pervenerint, &c.2 which direction is used to this day, saving in Charters of Creation of Dignities, the directions to this day, are Archiepiscopis, Episcopis, Ducibus, Marchionibus, &c. and hiis testibus,3 in the end.
“We, unto the honour of Almighty God, and for the salvation of the souls, of our Progenitors and Successors Kings of England, to the advancement of Holy Church and amendment of our Realm.”
Here bee foure notable causes of the making of this great Charter rehearsed. 1. The honour of God. 2. For the health of the Kings soul. 3. For the exaltation of holy Church; and fourthly, for the amendment of the Kingdome.
There be those excellent Laws contained in this great Charter, and digested into 38. Chapters, which tend to the honour of God, the safety of the Kings conscience, the advancement of the Church, and amendment of the Kingdome, granted and allowed to all the Subjects of the Realme.
| “our meer and free will.”
These words were added, for that King John, as hath been said, made the like Charter in effect, and sought to avoid the same, pretending it was made by duress.
This great Charter is divided into 38. Chapters.
First, We have granted to God, and by this our present Charter have confirmed, for Us and our Heirs for ever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable. We have granted also, and given to all the Freemen of our Realm, for Us and our Heirs for ever, these Liberties under-written, to have and to hold to them and their Heirs, of Us and our Heirs for ever.
Sanctum Dei,1 imprimis, Ecclesiam liberam facio, ita quod nec vendam, nec ad firmam ponam, nec mortuo Archiepiscopo sive Episcopo, vel Abbate aliquid accipiam de dominio Ecclesiae, seu de hominbus ejus, donec successor in eam ingrediatur, et omnes malas consuetudines quibus regnum Angliae injuste opprimebatur, inde aufero.2
“We have granted to God.”
We have graunted to God: when any thing is granted for God it is deemed in Law to be graunted to God, and whatsoever is graunted to his Church for his honour, and the maintenance of his Religion and service, is graunted for and to God; Quod datum est Ecclesiae, datum est Deo.3
And this and the like were the formes of ancient Acts and Graunts, and those ancient acts and graunts must be construed and taken as the Law was holden at that time when they were made.4
Here in this Charter, both in the title and in divers parts of the body of the Charter, the King speaketh in the plurall number, concessimus;5 The first King that I read of before him, that in his graunts wrote in the plurall number, was King John, Father of our King Henry the third other Kings before him wrote in the singular number, they used Ego,6 and King John, and all the Kings after him, Nos.7
“for Us and our Heirs for ever.”
These words were added to avoid all scruples, that this great Parliamentary Charter might live and take effect in all successions of ages for ever. More of this word (heires) hereafter in this Chapter: When Pro nobis, haeredibus & successoribus nostris8 came in, shall be shewed in his fit place.
“that the Church of England, &c.”
This at the making of this great Charter, extended not to Ireland, nor to any of the Kings forain Dominions; but by the Law of Poynings,9 made by the Authority of Parliament in Ireland, in Anno 11. Hen. 7. all the Laws and Statutes of this Realm of England before that time had or made do extend to Ireland, so as now Magna Charta doth extend into Ireland.
“That the Church of England shall be free.”
That is, that all Ecclesiasticall persons within the Realm, their possessions, and goods shall be freed from all unjust ex-|-actions and oppressions, but notwithstanding should yeeld all lawfull duties, either to the King or to any of his Subjects, so as libera10 here, is taken for liberata,11 for as hath been said, this Charter is declaratory of they ancient Law and Liberty of England, and therefore no new freedom is hereby granted, (to be discharged of lawfull tenures, services, rents, and aids) but a restitution of such as lawfully they had before, and to free them of that which had been usurped and incroached upon them by any power whatsoever; And purposely, and materially, the Charter saith Ecclesia, because Ecclesia non moritur,12 but moriuntur Ecclesiastici,13 and this extends to all Ecclesiasticall persons of what quality or order soever.
“and shall have all her whole Rights.”
That is that all Ecclesiasticall persons shall enjoy all their lawful jurisdictions, and other their rights wholly without any diminution or substraction whatsoever; and jura sua14 prove plainly, that no new rights were given unto them, but such as they had before, hereby are confirmed;15 and great were sometimes their rights, for they had the third part of the possessions of the Realme, as it is affirmed in a Parliament Roll.
Libertates16 are here taken in two senses. 1. For the Laws of England so called, because liberos faciunt,17 as hath been said. 2. They are here taken for priviledges held by Parliament, Charter or prescription more then ordinary;18 and in this sense it is taken in the Writ De libertatibus allocandis,19 and in another Writ De libertatibus exigendis in itinere,20 but it is but libertates suas,21 such as of right they had before; Jura Ecclesiae publicis aequiparantur.22Regula.
Every Archbishoprick and Bishoprick in England are of the Kings foundation, and holden of the King per Baroniam,23 and many Abbots and Priors of Monasteries were also of the Kings foundation, and did hold of him per Baroniam, and in this right the Archbishop and Bishops, and such of the Abbots and Priors as held per Baroniam, and called by Writ to Parliament, were Lords of Parliament; and this is a right of great honour that the Church, viz. the Archbishop and Bishops now have. Ecclesia est infra aetatem, & in custodia Domini Regis, qui tenetur jura & haereditates suas manutenere & defendere;24 And in other Records it is said,25Ecclesia quae semper est infra aetatem fungitur semper vice minoris, nec est juri consonum quod infra aetatem existentes, per negligentiam custodum suorum exhaeredationem patiantur seu ab actione repellantur.26
They are discharged of purveyance for their own proper goods.27
And this was the ancient Common Law, and so declared by divers Acts of Parliament, and there is a Writ in the Register for their discharge in that behalfe:28 And this is not restrained by the said Act of 27. Hen. 8. for thereby it is provided that the Purveyor shall observe the Statutes for them provided, so as where the Purveyor is prohibited to purvey by any Statute, the said Act of 27. Hen. 8. setteth him not at liberty.
And true it is, that Ecclesiaticall persons have more and greater liberties then other of the Kings Subjects, wherein, so set down all, would take up a whole Volume of it self, and to set down no example, agreeth not with the Office of an Expositor; therefore some few examples shall be expressed, and the studious Reader left to observe the rest as he shall reade them in our Books, and other Authorities of Law.
If a man holdeth Lands of Tenements, by reason whereof he ought (upon election, &c.) to serve in a temporall office,29 if this man be made an Ecclesiasticall person within holy Orders, he ought not to be elected to any such office, and if he be, he may have the Kings Writ for his discharge, and the words of the Writ are observable, Rex, &c. Cum secundum legem & consuetudinem Regni nostri Angliae Clerici infra sacros ordines constituti ad tale officium eligi non debeant, nec hactenus consueverunt, &c.,30 and the reason thereof is expressed in the Writ, Quia juri non est consonum, quod hii qui salubri statu animarum, &c. (in tali loco, &c.) deserviunt, alibi extra (eundem locum) secularibus negotiis compellantur.31
| By this writ it appeareth that this was the ancient common Law, and custome of England and had a sure foundation,32Nemo militans Deo, implicet se negotiis secularibus, ut ei placeat cui se probavit.33 Ecclesiasticall persons have this priviledge that they ought not in person to serve in warre. Also Ecclesiasticall persons ought to be quit and discharged of Tolles and Customes, Avirage, Pontage, Paviage, and the like, for their Ecclesiasticall goods, and if they be molested therefore, they have a writ for their discharge, by which writ it appeareth that this was the ancient Common Law of England.34Rex, &c. cum personae Ecclesiasticae secundum consuetudinem hactenus in regno nostro usitatam, & approbatam; ac ad telonium, paviagium & muragium, &c. de bonis suis Ecclesiasticis alicubi in eodem regno praestand’ nullatenus teneantur, &c.35
If any Ecclesiasticall person be in feare or doubt that his goods or Chattells, or Beasts, or the goods of his farmor, &c. should be taken by the ministers of the King, for the businesse of the King, he may purchase a protection cum clausula nolumus.36 ,37
Distresses shall not be taken by Sheriffs or other of the Kings ministers in the inheritance of the Church wherewith it was anciently endowed, but otherwise it is of late purchase.38
If any Ecclesiasticall person knowledge a statute Merchant or statute staple or a recognizance in the nature of a statute staple, his body shall not be taken by force of any processe thereupon, and for more surety thereof the writ thereupon to take the body of the conusor is si laicus sit.39
If a person bee bound in a recognizance in the Chancery or in any other Court, &c. and he pay not the sum at the day, by the Common Law, if the person had nothing but Ecclesiasticall goods, the recognizee could not have had a levari fac’40 to the Sheriffe to levie the same of these goods, but the writ ought to be directed to the Bishop of the Dioces to levie the same of his Ecclesiasticall goods.41
*42 In an action brought against a person (wherein a Capias43 lieth) for example, an account, the Sheriffe returns quod clericus est beneficiatus, nullum habens laicum feodum,44 in which he may be summoned, in this case the plaintiffe cannot have a Capias to the Sheriffe to take the body of the person, but he shall have a writ to the Bishop to cause the person to come and appeare. But if he had returned quod clericus est nullum habens laicum feodum,45 then is a Capias to be granted to the Sheriffe, for that it appeared not by the returne that he had a benefice, so as he might bee warned by the Bishop his Diocesan, and no man can be exempt from justice. See more of this matter Artic. Cleri. cap. 9.
Secundum legem & consuetudinem Regni Angliae clerici in decenna, &c. poni non debeant, vel ea occasione distringi vel inquietari non consueverunt:46 and Ecclesiasticall persons are not bound to appeare at Tournes or viewes of Frankpledge.47 ,48
But hereof this little taste shall in this place suffice, with this, that as the over-flowing of waters doe many times make the river to lose his proper chanell, so in times past Ecclesiasticall persons seeking to extend their liberties beyond their true bounds, either lost or enjoyed not that which of right belonged to them.
“We have granted also, and given to all Freemen of our Realm, &c.”49
These words (omnibus liberis hominibus regni50 ) doe include all persons Ecclesiasticall and temporall and temporal incorporate politique or naturall, nay they extend also to villeines, for they are accounted free against all men saving against the Lords.
*51 “these Liberties under-written.”
Here it is to be observed that the aforesaid clause that concerned the Church onely, is in favour of the Church generall without any restraint, but this clause that concernes all the Kings subjects hath a restraint by reason of this word (subscriptas52 ) which restraineth libertates to the 38. Chapters of this great Charter.
In this place these words are not inserted to make a legall tenure of the King, but to intimate that all liberties at the first were derived from the Crowne.
If any of our Earls or Barons, or any other, which hold of Us in chief by Knight’s Service, die, and at the time of his death his Heir be of full age, and oweth to us Relief, he shall have his inheritance by the old Relief; that is to say, the Heir or Heirs of an Earl for a whole Earldom, by one hundred pound; the Heir or Heirs of a Baron, for an whole Barony, by one hundred marks; the Heir or Heirs of a Knight, for one whole Knight’s Fee, one hundred shillings at the most; and he that hath less shall give less, according to the old Custom of the Fees.
“If any of our Earls or Barons.”
At this time there was never a Duke, Marquesse, or Viscount in England, for if there had been, they had (no doubt) been named in this Chapter; the first Duke that was created since the Conquest, was Edward the Black Prince, in 11 Edw. 3. Robert de Vere Earle of Oxford, was in the 8. year of Richard the second, created Marquesse of Dublin in Ireland, and he was the first Marquesse that any of our Kings created.1
The first Viscount that I finde of Record, and that late in Parliament by that name, was John Beaumont, who in the 18. yeare of H.6. was created Viscount Beaumont.2
Dicuntur Comites, viz. quia in Comitatu sive à societate nomen sumpserunt, qui etiam dici possunt Consules a consulendo: Reges enim tales sibi associant ad consulendum & regendum populum Dei, ordinantes eos in magno honore, & potestate, & nomine, quando accingunt eos gladius, ringis gladiorum, &c, gladius autem significat defensionem Regni & Patriae.4
Sunt & alii potentes sub Rege qui dicuntur Barones, hoc est, robur belli:5 ,6 And where some have thought that Baro is no Latin word, we find it in Tullies Epistles, Apud Patronem, Et alios Barones te in maxima gratia posui.7Galfridus Cornwall tenet manerium de Burford de Rege, per servitium Baroniae,8 But it is to be understood, that if the King give Land to one and his heirs, Tenend de rege per servitium Baroniae,9 he is no Lord of Parliament untill he be called by Writ to the Parliament. These which are Earls and Barons have offices and duties annexed to their dignities of great trust and confidence, for two purposes, 1. Ad consulendum tempore pacis.10 2. Ad defendendum Regem & Patriam tempore belli.11 And prudent Antiquity hath given unto them two ensignes to resemble, and to put them in minde of their duties;12 for first they have an honourable and long robe of scarlet resembling Counsell, in respect whereof they are accounted in Law, De magno concilio Regis.13 2. They are girt with a sword that they should ever be | ready to defend their King and Country: And it is to be observed that in ancient Records the Barony (under one word) included all the Nobility of England,14 because regularly all Noblemen were Barons, though they had a higher dignity, and therefore of the Charter of King Edward the first in the Exposition of this Chapter hereafter mentioned, the conclusion is, Testibus Archiepiscopis, Episcopis, Baronibus, &c.15 So placed, in respect that Barones included the whole Nobility: and the great Councell of the Nobility, when there were besides Earles and Barons, Dukes and Marquesses, were all comprehended under the name De la Councell de Baronage.16 ,17
“or any other, which hold of Us in chief ”
It is worthy of observation, with what great judgement this Statute concerning reliefe is penned; For by the Act of Parliament called, The Assise of Clarendon, Anno 10. Hen. 2. Anno Domini 1164. it is thus enacted; Archiepiscopi, Episcopi, & universae personae Regni, qui de Rege tenent in capite, habeant possessiones suas de Rege, sicut Baroniam, & inde respondeant Justiciariis & ministris Regis, & sicut caeteri Barones debent interesse curiae Regis cum Baronibus, &c.18 Therefore this Chapter beginneth, Si quis Comitum, vel Baronum;19 So as (as to reliefe of an Earle or Baron) it is not materiall that he hath Baroniam, unlesse he be Noble, that is, Earle or Baron, and others being not Noble, but holding in Capite,20 shall pay reliefe according to the Knights fees which he hath. See hereafter Cap. 31. who shall be said to hold in Capite.
“by Knight’s Service,”
For this see the first part of the Institutes, Sect. 103. 112, 154, 157, 126, 127. whereunto you may adde this Record following.
Per Assisam Johannes de Moyse, qui est infra, aestatē, implacitat Thom’ de Weylaund & Marg’ ux’ ejus pro uno Messuag.ii. molendinis, iiii. acris prati, & xlii.s. red. in Eastsmithfield ext’ Algate.21 Ipsi voc’ ad war’ Rad’ de Berners, qui war’ & dic’ quod nihil clamat nisi custod. eo quod Johannes pater dicti Johannis tenuit de eo praedicta ten’ per homag’ & servic’ vi.d. & inveniendi quendam hominem pro eo in turri London. cum arcubus & sagittis per quadraginta dies tempore guerrae. Johannes dic’ quod tenet ten’ praed. per homagium & servitium quorundam calcariorum vel vi.d. pro omni servic’. Et sic omittendo multa ex utraque parte manifeste patebit per verd’ Jur’ & per Jud’ Cur’ quid in hac ass. terminatum fuit.Veredictum. Jur’ dic’ quod praedicta ten’ tenent’ de praedicto Radulpho per homagium & servic’ unius paris calcariorū deauratorum vel sex den’*22 & inven’ quend’ hominē pro ipso Radulpho in turri Lond. cum arcub’ & sagit’ per xl. dies tempore guerrae in boreal’ Angulo turris praedicta pro omni servic’.**The Judgement. Et quia compertū est, &c. quod Radulphus cognoscit in responc’ quod praedict’ herestenere debet eadem ten’ per pradict’ homag’ & servic’ praedict’ calcar’ vel sex denar’ & per serjantiā inveniedi unū hominē pro eo in praed’ turri per xl. dies, & manifeste liquet quod huōdi minores serjantiae quae debent fieri pro Dominis suis de quibus tenent tenementa sua per alios quā seipsos nullā inde dabunt custodiā eisdē Dominis, nec dare debent licet iidem Domini infra etatem haeredū per negligentiam propinquorum parentū hujusmodi custodias occupaverunt, & iste Radulpus non potest dedicere quod unquā aliquā habuit seisinam de praedict’ Custod’ nisi per occupationem suam & negligentiam parentum praedict’ haeredis antecessoris sui dum infra aetatem fuit, & non alio jure. Considerat’ est quod praedict’ Johannes rec’ inde seis. &c. & damn’ Cx.l.iv.s.vii.d. &c. Valor terr’ per annum x.x.l.x.d.23
See the first part of the Institutes, Sect. 155. & 157. and note the diversitie between such a tenure of the King, for in that case it should be a tenure by Grand-serjanty,24 and that Grand-serjanty, for the greatest part, is to be done within the | Realme, and Knights service out of the Realme, as Littleton there saith.
See the first part of the Institutes, Sect. 104.
“the old Relief; that is to say, &c.”
Concerning the word Relevium,25 vide 1. Part Institut. Sect. 103. It appeareth that the reliefe here set down, is the ancient relief, and was certain at the Common Law; But there had been of long time an heavy incroachment of an incertain reliefe at will and pleasure, which under a fair term was called rationabile Relevium,26 and this Act had just cause to say, Per Antiquum relevium,27 for in the raign of Hen. 2. Grandfather to Hen. 3. the King exacted an incertain reliefe, for so Glanvill saith,28 who wrote in his time, De Baroniis vero nihil certum Statutum est, quia juxta voluntatem & misericordiam Domini Regis solent Baroniae Capitales de releviis suis Domino Regi satisfacere.29 And Glanvill under the name of Baronies doth include Earledomes also, so the reliefe of all the nobility was taken as incertain at that time, and therefore how necessary it was that the ancient reliefe should be restored is evident.
“that is to say, the Heir or Heirs.”
Of this word (heire) see the first part of the Institutes, Sect. 1. whereunto you may adde that which was there omitted, concerning the Antiquity of descents, which the Germanes had agreeable with the ancient Laws of the Britons, continued in England to this day, out of that faithfull and learned Historian, who of the ancient Germanes saith;30Haeredes successoresq; sui cuique liberi, & nullū Testamentum: si liberi non sunt, proximus gradus in possessione, fratres, patrui, avunculi, &c.31 Wherein we observe three things. 1. That for Default of children and brethren, the Uncle, &c. and not the Father, or any in the right line ascendent should inherit, but the collaterall onely. 2. That by the Common Law no Testament or last Will could be made of Land. 3. That of ancient time Successores32 were Synoyma33 with haeredes.34 But in this ancient Statute it is pertinently said, haeres,35 and not successor, for every Bishop of England hath a Barony, and so had many Abbots and Priors (in respectwhereof they were Lords of Parliament) and yet they paid no reliefe, because their successors came to it by succession and not as heire by inheritance; And this Act saith, Habeat haereditatem suam.36 And they are seised in Jure Episcopatus Monasterii, &c. de Comitatu integro & de Baronia integra.37 The Barons in Domesday are accounted amongst the Tenants in Chiefe. Vide Glanv. lib. 9. cap. 6 Magna Charta cap. 31.
It is to be understood that of ancient time (as it evidently appeareth by this Chapter, and by our Books)38 every Earledome and Barony were holden of the king in Capite, which proveth that both the Dignities of the Earle and the Baron, and the Earldome and Barony were derived from the Crown.a39 And it is to be known that the fourth part of the yearly valus of an Earledome, a Barony, and the living of a Knight, was the ancient reliefe that this Chapter speaketh of. And for that of ancient time,b40 a Knights living was esteemed at 20.l. per ann. (which in those dayes was sufficient to maintain the dignity of a Knight) his ancientc41 relief was 5.l. which is the fourth part of his living by one year.
The yearly value of a Barony was to consist of 13. Knights fees, and a quarter, which by just account amounted to 400. Marks by the year, therefore his reliefe was as is here set down 100. Marks.
See an ancient Manuscript intituled, De modo tenendi Parliamentum, &c. tempore Regis Edwardi filii Regis Etheldredi, cui quidem modus suit perdiscretiores Regni cora Willielmo Duce Normannorū & Conquestore & Rege Angliae ipso conquestore hoc tempore praecipiente recitat’& per ipsum approbat’, &c.42 Of the Authority and Antiquity whereof you may reade in the fourth part of the Institutes Cap. of the Court of Parliament, Et hic infra.43
Now every Earledome consisted of the value of an entire Barony and an halfe, which amounted to 20. Knights fees amounting to 400.l. per annum, and therefore his ancient reliefe here called Antiquum relevium, being the fourth part of the yearly value of his Earledome was 100.l. In that excellent Charter which King H. 1. | made on the day of his Coronation, Communi Concilio & assensu Baronum Regni Angliae44 amongst other things it is thus contained, Omnes malas consuetudines, quibus Regnum Angliae opprimebatur, inde aufero, quas malas consuetudines exinde suppono. Si quis Baronum meorum, Comitum, five aliorum, qui de me tenet, mortuus fuerit, haeres suus non redimet terram suam, sicut faciebat tempore fratris mei, sed legitima & justa relevatione relevabit eam, sicut homines Baronum meorum legitima & justa relevatione relevabunt terras suas a Dominis suis, &c. Legem *45Regis Edw. vobis reddo cum illis emendationibus, quibus Pater meus emendavit consilio Baronum suorum.46
By this Charter it appeareth, 1. that there was a lawfull and just reliefe, to bee paid by the Earle, and Baron, which implyeth a proportionable reliefe according to the value of the living, by reason of this word (Justa)47 which cannot be intended of an uncertaine reliefe, but of the just reliefe, upon the Computation of so many Knights fees contained in the Modus,48 whereunto this Charter hath relation. 2. It appeareth that there was an unjust reliefe, in the time of William Rufus his Brother, which upon search we have found in an ancient Manuscript in the Librarie of Arch-Bishop Parker, which we have seene, and will transcribe, in that Language that we finde it.
De releefe al cunte que al Roy afert 8. chivals enfrenees, & ensebees, & 4. Hauberts & 4. Hawmes & 4. escues, & 4. launces, & 4. espees les aultres, & 4. chaceurs & 4. palefrees à freins eta chevestre.49
De reliefe a barun 4. chivals les 2. exfrenes & enseeles & 2. hauberts & 2. hawmes & 2. escus, & 2. espees & 2. launces, & les autres 2. chivals un chaceur & un palfrey a freins & a chevestres.50
De reliefe a vavassur a son lige senior doit estre quite per le chival son pier; tiel come il avoit jour de son mort, & per son hawme, & per son escu & per son haubert, & per son lance, & sul fuit disaparaile, que il noust chiual ne arme juste quite per C. sol.51
Le relief al villian le meliour avoir que il averad 2. Chivals, 2. Boefs, 2. Vaches durrad a son seignior & puis sont touts les villains in frankpledge.52
Et: mediocris thani equus cum apparatu suo et arma sua et halstang in Westsexa, &c.58
Lastly, this Chapter of Magna Charta is but a restitution and declaration of the ancient Common Law, and that antiquum relevium of the Earle, and Baron was certaine; so now joyning both together, this certaine reliefe here set downe is legitimum, justum & antiquum relevium,59 mentioned in the Modus, &c.
It is said that there be ancient precedents in the Exchequer, that he that held by a Dukedome, which being valued at two Earles livings, should pay according to the proportionall and just fourth part of his living by yeare, 2co. li. And a Marques that held by a Marquedoome, who should have two Baronies, should pay for his reliefe 200. marks. What the value of the living of a Viscount should be, I have not heard, but certaine it is he should pay the fourth part of the yeerely value of his Viscountesdome.
But all this is to be intended, where the King granteth a Dukedome, Marquesdome, Earledome, Viscountesdome, or Barony to hold, as here it is spoken, de nobis in Capite per servitium militare, viz. De Comitatu integro & de Baronia integra, & qui minus habuerit, minus det secundum antiquam consuetudiē feodorū.60
| But in some cases the heire of an Earle, or a Baron may pay the reliefe expressed in this statute, albeit he hath not so many knights fees, as is above-said;61 so if upon the creation of the Earle the King did grant any Mannors, Lands, or Annuity per Comitatum, & nomine Comitis,62 or sub nomine & honore Comitis,63 or the like, he should pay, C. li. for reliefe, and so of the Baron, mutatis mutandis64 for a speciall reservation may derogate from the Common Law.
But otherwise it is, if the Mannors, Lands, or annuity be granted unto the Earle, ut idem Comes statum & honorem Comitis melius manutenere &supportare possit,65 or, ad sustinendum nomen et onus,66 or the like; for then the Earle holdeth not per Comitatum, or, nomine Comitis.
But now the ancient manner of creation is altered, for now, when the King creates a Duke, a Marques, an Earle, a Viscount, or Baron, he seldome creates a Dukedome, Marquisdome, Earledome, &c. ad sustinendum nomen & onus,67 viz. to grant him Mannors, Lands, tenements, &c to hold of him in chiefe, for commonly upon creations the King grants to them created an annuity; And therefore at this day Noblemen doe pay such reliefes,68 as other men use to doe, in respect of their tenures, for as the heire of a Knight shall not pay reliefe, unlesse he have a Knights fee, &c. so the heire of an Earle, or Baron, shall not pay reliefe by this great Charter, unlesse he hath an Earledome, or Baronie, as is aforesaid.69
“one hundred shillings at the most;”
And this was the ancient reliefe for a Knights fee, and so was holden in the reigne of Hen. 2. for Glanvil saith,70dicitur autem rationabile relevium alicujus juxta consuetudinem regni de feodo unius militis per centum solidos,71 so as the fee of a Knight at that time was certaine, viz. the fourth part of his living per annum,72 and so ought, as appearreth, the relief of the Nobility to have been in curtainty, though they were not permitted to have it so, which favored of the power of a conqueror to keepe the Nobility under, or to make himselfe the more amiable to them.
“according to the old Custom of the Fees.”
This is observable, that these certaine and proportionable rates are according to the ancient custome of reliefes.
73 A Knight holds land by Grand Serjantie, he is not within this Statute, and therefore shall not pay the reliefe of a Knight declared by this act, but the heire being of full age at the decease of his ancestor, shall pay the value of his lands for one yeere which is his Primer season.74
But here it is demanded, seeing Littleton saith, that tenure by Cornage, if it be of any other Lord then the King, is Knights service, what reliefe the Heir of such a tenant shall pay, or whether he shall pay any reliefe at all. Littleton in the same place saith, that tenure by Cornage draweth unto it ward, and mariage, and speaketh nothing of reliefe, and by this act reliefe is to be payed according to the quantity of the Knights fee,75viz. De feodo militis integro per centum solidos & qui minus habuerit,76 but a tenure by Cornage hath no such quantities, nec suscipit majus & minus,77 and therefore tenure by Cornage, though it be Knights service, is not within this Statute; Hereof you may read a Record to this Effect.
Inter Johannem Craistoke querentem versus Idoneam de Leybourne quae distrinxit ipsum per averia pro relevio dando, pro terris in Dunston, Brampton yanene which, Eseclyve, et Boulton, quae valent C. li. per ann. quae tenet de ea per homagium et Cornagium. Et ipse dicit quod talis est consuetudo patriae de Westm. quod haeredes post mortem antecessorum suorum debent relevare terras suas dominis de quibus, &c. scilicet solvendo pro relevio quantum terrae valent per annum, quae de ipsis dominis tenentur, nisi de minori ipsis dominis possunt satisfacere, unde ipsa advocat captionem pro relevio secundum praedictam consuetudinem, &c.
Johannes negat talem esse consuetudinem, sed concedit, quod tenet tenementa prae-|-dicta per Cornag’ xxv. s. vi.d. et dicit quod antecessores sui prius duplicarunt antecessor.ipsius Idoneae solvendo Li.s. Ipsa dicit quod cum Johannes cogn’, quod ipse tenet praedicta ten’ de ipsa per cornagiū, ad quod hujusmodi relevium mere est accessor’, ratione consuet’ praedictae. Et dic’ quod idem Johannes exigit tale relevium versus tenentes suos in eadem patria a tempore quo non, &c. Et de consuet’ uterq’, pon’ se super patriam. Ideo ven’ Jur’ in Crō S. Johannis Baptistae, &c. Insuper Idonea dic’ quod duplex est tenura in Com’ Westmerl. scilicet, una per Albā firmā, et alia per Cornagium.78Et quod tenentes per Albam firmam post mortem antecessorum suorum debent duplicare firmam suam tantum. Et tenentes per Cornagium post mortem antecess. suorum tenentur reddere valorem terrarum suarum unius anni. Et Johannes e contra dic’ quod consuetudo patriae est quod haeredes non solvant nisi duplicando Cornaginm, &c.79
Bracton li. 2. fo. 84. cap. 36. nu. 2.80Et imprimis de feodo militari quale sit rationabile relevium antiquum de feodo militari distinguitur in Carta libertatum, cap.2.&c.81 And in the same Chapter, nu.7. saith thus, De serjantiis vero nihil certum exprimitur, quid vel quantum dare debeant haeredes, ideo juxta voluntatem Dominorum Dominis satisfaciant pro relevio, dum tamen ipsi Domini rationem & mensuram non excedant.82
Certain it is, that he that hold by Castle-guard shall pay no Escuage, for Escuage must be rated according to the quantity of the Knights fees,83 as for a whole Knights fee, or half a Knights fee, &c. and of that nature is not Castle-guard. Littleton treating of Castle-guard, saith,84 that in all cases where a man holdeth by Knights service, such service draweth to it Ward and Marriage, and speaks not there of relief.
But if the Heir of any such be within Age, his Lord shall not have the Ward of him, nor of his Land, before that he hath taken of him Homage; and after such an Heir hath been in Ward, when he is come to full Age, that is to say, to the Age of one and twenty years, he shall have his Inheritance without Relief, and without Fine: So that, if such an Heir being within Age, be made Knight, yet nevertheless his Land shall remain in the keeping of his Lords, unto the term aforesaid.
This Statute is onely to be intended of an heire male, whereof haeres1 is derived: and who shall be haeres, &c. See the first part of the Institutes. lib. 1. sect. 1, 2, 3. Custumier de Norm. 99. and the Expositions upon the same.2
“before that he hath taken of him Homage.”3
For homage see the first part of the Institutes. sect. 85. and it is to be observed that in England and France it is called Homage, Homagium, and in Italy Vassalagium.
Some have thought that these words are to be understood that the heire within age shall not be in Ward untill the Lord hath taken the homage of some of the auncesters of the Ward, so as the auncester of the heire may die in the homage of the Lord: for in a Writ of Ward brought by the Lord, it is a good plea to say that the auncester died not in his homage, and the Statute saith not Antequam homagium | suum ceperit,4 but homagium5 generally; and, say they, if the Lord should receive homage of the heire, he should not be in Ward at all.6
But this is not the right intendment of these words, but the Statute meant that the homage should be taken of the heire himselfe, and that for the benefit of the heire and so doth it appear bya7 our old Books that wrote some after this Statute, and contemporanea expositio est fortissima in lege,8 and so do the words themselves of this Law import, and the reason thereof is notable, which was, that before the Lord should have benefit of Wardship, he should be bound to two things;b9 To warrant the Land to the heir and to that end the heir might have a Writ, De homagio capiendo;10 2. To acquit him from service and other duties to be done and paid to all other Lords, both which the Lord was bound to doc11 as the law was then holden) if the Lord accepted homage de droit12 of his tenant, (in such sort as the Lord is, if he receiveth homage auncestrel13 at this day) but otherwise it is of homage in fait;14 ,15Homagium est juris vinculum, quo quis astringitur ad warrantizandum, defendendum, & acquietandum tenentem suum in seisina versus omnes per certum servitum in donatione nominatum & expressum; & etiam vice versa, quo tenens astringitur ad fidem Domino suo servand: & servitium debitum faciend.16 ,17 We have an ancient Manuscript of a case adjudged in a Writ of Customes and Services betweene Alexander of Poulton, and Robert de Norton, that homage is of an higher nature to divers purposes then escuage. 1.f18 For that homage bindeth to warranty, which escuage doth not. 2. Homage is so solemne as that it cannot be done again as long as the Tenant that made it liveth, but escuage may be given every other year.g19 And Littleton saith that homage is the most honourable service, and humble service of reverence, and yet it is true that escuage taking it for service, draweth to it homage.
h20 But at the Common Law, if a man holding Land by Knights service, had made a gift in frank marriage, and the donee had died, his heir within age, the heir should be in Ward before any homage received, Quia Dominus non potest capere homagium usque ad tertium haeredem,21 and this Statute is to be intended where homage was to be received by Law, yet did the Tenant in judgement of Law die in the homage of the Lord, or otherwise he could not be in Ward, a case worthy of great consideration.
i22 But after when it was resolved for Law, and so held to this day, that homage of it selfe doth not binde the Lord to any warranty or acquitall, unlesse it were homage auncestrell, which either is worne out, or very rare in England at this day; then according to the old rule, Cessante ratione legis cessat ipsa lex;23 The heir cannot binde the Lord to receive homage in this case, but if the tenure be by homage auncestrell there the Lord shall not have the custody of body or land before he receiveth homage of the heire, for that homage bindeth him to warranty and acquitall, and consequently within the reason of this Law.
k24 Here is to be noted that one within age may doe homage, but he cannot do fealty because that is to be done upon oath. Hoc observato, quod si minor homagium fecerit nullum tamen juramentum fidelitatis, antequam ad aetatem pervenerit, praestabit.25 See more concerning this matter 1. Part. Institut. lib. 2. cap. Homage & Fealty.
“be made Knight.”
Be made a Knight; And his tenure of service is called Servitium militare,26 Knights service,27 and therefore if the King create the heire within age, a Duke, a Marquesse, an Earle, a Viscount or a Baron, yet he shall remain in Ward for his body, but if the heire of a Duke, or of any other of the Nobility be made a Knight, he shall be out of Ward for his body. If the heire in Ward be created a Knight of the Garter, a Knight of the Bathe, a Knight Banneret, or a Knight Bachelor, he shall be out of Ward for his body for that he is a Knight, and somewhat more, and the Statute speaketh generally, unlesse a Knight, and therefore within the words and meaning of this Law, and the Soveraigne of Chivalry hath adjudged him able to doe Knights service.
And this word Fiat,28 be made, proveth that Knighthood ought to be by creation making, and cannot be by descent.
m29 But albeit the heir be made a Knight within age yet is he not freed of the value | of his marriage, for that was vested before in the King, or other Lord, and the King being Soveraigne of Chivalry hath adjudged him of full age, that is, able to doe Knights service to this intent, to free his body from custody, but neither to barre the King or other Lord of the value of the marriage, no more then if he had attained to his full age of 21. years.
“remain in the keeping of his Lords.”30
This word (remaneat31 ) implieth that this Statute is to be understood onely, where the heir after he be in Ward is made knight within age, for when the heire apparent is made knight within age in the life of the auncester, and the auncester dieth, his heir within age, he shall be out of Ward both for body and Land, because the Soveraign of Chivalry hath adjudged him of full age, and able to do knights service in the life of his auncester, so as in that case no title of Wardship did ever accrew, and there can be no remanere32 or residue, but of that thing that had his essence or beeing.
The Keeper of the Land of such an Heir, being within Age, shall not take of the Lands of the Heir, but reasonable Issues, reasonable Customs, andreasonable Services, and that without Destruction and Waste of his men, and his goods. And if We commit the custody of any such Land to the Sheriff, or to any other, which is answerable to Us for the Issues of the same Land, and he make Destruction or Waste of those things that he hath in Custody, We will take of him amends and recompence therefore, and the Land shall be committed to two lawful and discreet men of that Fee, who shall answer unto Us for the Issues of the same Land, or unto him whom we will assign. And if We give or sell to any man the Custody of any such Land, and he therein do make Destruction or Waste, he shall lose the same Custody. And it shall be assigned to two lawful and discreet Men of that Fee; who also in like manner shall be answerable to Us, as afore is said.
A Keeper, some derive the word à cura & sto, quia custos est is cui cura rei stat custodiend’;1 and thereupon sometime he is called Curator, in French he is called a Gardien, so as his name custos doth put him in minde of his office and duty, that is not onely to keep and preserve the Lands and Tenements of the Ward committed to his custody in safety, but also to educate and bring up his ward vertuously, and to advance him in marriage without disparagement. Vide 1. part Institut. Sect. 103. of the cause and end of Wardship; and see the 4 part of the Institut. cap. Court of Wards and Liveries.
Exitus is derived ab exeundo,3 and signifieth the rents and profits issuing out or comming of the Lands or Tenements of the Ward, which must be taken by the Gardien in reasonable manner, and therefore to exitus, rationabiles4 is added, for that nothing that is unreasonable is allowed by Law.5
That is, things due by custome or prescription, and appendant or appurtenant to the Lands or Tenements in Ward, as advowsons, commons, waste, straie wreck, and the like; also the reaso-|-nable customes, fines, &c. of Tenants in Villenage, or by Copy of Court roll where fines be incertain: for though the customes, duties, fines, or the like be incertain, yet if that which is exacted or demanded be unreasonable, it is against the Common Law, for this word (consuetud’)6 and the divers significations thereof see hereafter cap.30.
This also, as appeares by Glanvill that wrote in the reigne of Hen. 2. was the Common Law of England, that incertain services and aides ought to be reasonable; for, saith he,7 the Lord may rationabilia auxilia de hominibus suis inde exigere, ita tamen moderate secundum quantitatemfeodorumsuorum&secundum facultates, ne minus gravari inde videantur, vel suum contenementum amittere;8 ,9 and that which he speaketh there of aids, is tobe appliedtoallincertainservices, customes, fines, or duties.
But it may be demanded, How and by whom shall the said reasonablenesse in the cases aforesaid be tried? This you may reade in the first part of the Institutes, Sect. 69.
“and that without Destruction and Waste of his men, and his goods.”10
For these words, Destruction and Waste, see the first part of the Institutes, Sect. 67. and the Statute of Gloc. cap. 5.
“And if We Commit, &c.”
For this word commiserimus11 vide the first part of the Institutes, Sect. 58. & 531. Here the Committee of the King is taken for him to whom the king committeth the custody of the Land to one or more; by this word commisimus, reserving a Rent, Quamdiu quis alius plus dare voluerit,12 and there the king remain Gardien.
“We will take of him amends and recompence therefore.”13
And this may be upon an office found, or by Writ directed to the Sheriffe to this effect, Quia datum est nobis intelligi, &c.14
“And if We give or sell to any man the Custody, &c.”
In this case the King graunteth, or selleth the very custody itselfe, so as the grauntee or vendee becommeth Guardian in fact: and that this distinction betweene the Committee and Grauntee was by the Common Law, hear what Glanvill saith,15Si verò Dominus Rex aliquam custodiam alicui commiserit, tune distinguitur utrum ei custodiam pleno jure commiserit ita quod nullum inde reddere computum oportet ad Scaccarium aut aliter: si vero plene ei custodiam commiserit, tunc poterit, &c. negotia sicut sua recte disponere.16 King H. 7. graunted a Ward to the Dutches of Buckingham quamdiu in manibus suis fore contigerit;17 And afterwards the King made a speciall Livery, as by Law he might, to the heir within age, and it was adjudged, as Justice Frowick reported, that the Duches was without remedy; but otherwise it had been if the graunt were durante minore aetate haeredis,18 or, durante minore aetate & quamdiu in manibus nostris, &c.19
But here it may be materially demanded, What if the Committee or Grauntee doth waste, and the King during the minority taketh no amends, what remedy hath the heire after his full age?20 The answer is, That he shall have an action of Waste, and that by order of the Common Law: and then it is further doubted and demanded, What shall the heire then recover, for the Wardship cannot be lost, seeing the heire is of full age, neither by this Statute nor by the Statute of Gloc.21 To this the answer is very observable, that seeing that the Wardship cannot be lost, and the Waste, being to the heirs ditherision, ought not to remain unpunished, that the heire shall recover treble damage, for that penalty is annexed to the action of Waste; and therefore if an action of Waste were given against Tenant in tail apres possibilitie,22 generally the plaintife shall recover treble damages, because they are annexed to this suit. But if the king doe take amends, then the heire at full age shall have no action of Waste.
| “he shall lose the same Custody.”23
This is understood of the land, and not of the body for the words be tradatur duobus, &c. qui de exitibus terrae nobis inde respondeant.24
(*)25 Nota, since this statute of Magna Charta divers other statutes against wastes and destructions in the lands of Wards have been made.
At the making of this statute, the King has not any prerogative in the Custodie of the lands of Idiots during the life of the Idiot, for if he had had, this Act would have provided against Wast, &c. committed by the Committee, or assignee of the King to be done in their possessions, as well as in the possessions of Wards, but at this time the gardianship of Idiots &c. was to the Lords and others according to the Course of the Common Law. And Idiots from their nativity were accounted alwayes within age, and therefore the Custodie of them was perpetuall so long as they lived, for that their impotencie was perpetuall. And the Lord of whom the Land was holden, had not a tenant that was able to doe him service. And therefore within the reason of a Custodie of a minor or of an heire within age in Case of Wardship. And this appeareth by Fleta,26Solent tutores Idiotarum & stultorum cum corporibus eorum perpetuo, quod lictium fuit & provisum, eo quod se ipsos regere non noverint,*27nam semper judicabantur infra aetatem: vel quia verumq: plures per hujusmodi custodiam ex haeredationes compatiebantur, provisum fuit. & cōmuniter concessum quod Rex corporū & haereditatū hujusmodi idiotarum & stultorum sub perpetuis custodiam obtineret, dum tamen à nativitate fuerint idiotae & stulti; secus autē si tardae a quocunque Domino tenuerint, & ipsos maritaret, & ex omni exhaeredatione salvaret hoc cum adjecto quod domini feodorum & aliis quorum interfuerit ut servitiis, redditibus & custodiis usque ad legitimam aetatem secundum conditionem feodorum, releviis & hujusmodi nihil juris deperiret.28
But then it is demanded, when was this prerogative given to the King?29 Certain it is, that the King had it before the statute of 17. E. 2. de praerogativa Regis,30 for it appeareth in our Bookes, that the King had this prerogative, Anno. 3. E. 2. And before that, it is manifest that the King had it before Britton wrote in the raigne of E. 1. as you may read in his booke.31
And it is as cleare, that when Bracton wrote32 (who wrote about the end of the reigne of Hen. 3. that the King had not then this prerogative.
And therefore it followeth, that this prerogative was given to King Edward the first before that Britton wrote, by some Act of Parliament, which is not now extant. And it appeareth by the Mirror of Justices agreeing with Fleta, that this prerogative was granted by Common assent, vide. lib. 4. Beverleys Case fol. 126.
The Keeper, so long as he hath the Custody of the Land of such an Heir, shall keep up the Houses, Parks, Warrens, Ponds, Mills, and other things pertaining to the same Land, with the Issues of the said Land; and he shall deliver to the Heir, when he cometh to his full Age, all his Land, stored with ploughs and all other things, at the least as he received it. All these things shall be observed in the Custodies of Archbishopricks, Bishopricks, Abbeys, Priories, Churches, and Dignities vacant, which appertain to Us; except this, that such Custody shall not be sold.
| That this was the Common Law appeareth by Glanvile, who saith,1Restituere autem tenentur custodes haereditates ipsis haeredibus inslauratas & debitis acquietatas juxta exigentiam temporis custodiae & quantitatis haereditatis.2
“All these things shall be observed in the Custodies of Archbishopricks, &c.”
The Custodie of the temporalties of every Arch-Bishop, and Bishop within the realme, and of such Abbeyes, and Priories, as were of the Kings foundation, after the same became voide, belonged to the king during the vacation thereof by his prerogative:3 for as the spiritualties belonged during that time to the Deane and Chapter, de communi jure,4 or to some other Ecclesiascticall person by prescription, or composition, so the temporalties came to the King as founder, and this doth belong to the King, being patronus & protector Ecclesiae,5 in so high a prerogative incident to his Crowne, as no subject can claime the temporalties of an Arch-Bishop, or Bishop, when they fall by grant or prescription.6
Regula.But as, In omni re nascitur res quae ipsam rem exterminat,7 unlesse it bee timely prevented (as the worme in the wood, or the mothe in the Cloth, and the like) so oftentimes no profession receives a greater blow, then by one of their owne coat: for Ranulph an ecclesiasticall person, and King William Rufus his Chaplain, a man subacto ingenio,8 and profunda nequitia,9 was a factor for the King in making merchandize of Church livings, in as much, as when any Archbishopricke, Bishopricke, or Monastery became void, first he perswaded the King to keepe them voide a long time, and converted the profits thereof sometime by letting, and sometime by sale of the same, whereby the temporalties were exceedingly wasted, and destroyed. Secondly, after a long time no man was preferred to them per traditionem annuli & baculi,10 by livery of season, freely, as the old fashion was, but by bargain, and sale from the King to him, that would give most, by meanes whereof the Church was stuffed with unworthy, and insufficient men, and many men of lively wits, and towardlinesse in learning despairing of preferment turned their studies to other professions. This Ranulph, for serving the Kings turnes, was advanced, first, to be the Kings Chancellour, & after to be Bishop of Duresme, who after his advancement to so high dignities, made them servants to his sacrilegious and simoniacall designes. King Henry the first seeing this mischiefe, and foreseeing the great inconvenience that would follow thereupon, was contented for his owne time to binde his owne hands, to the end the Church now naked and bare might receive some comfort, and have meanes to provide things necessary for their profession, and calling. He thereupon at his Coronation made a Charter to this effect,11Quia regnum oppressum erat injustis exactionibus, ego in respectu dei & amore quem erga vos omnes habeo, sanctā Dei Ecclesiamimprimis liberam fac’ ita quod nec vendam, nec ad firmam ponam, nec mortuo Archiepiscopo, sive Episcopo vel abbate, aliquid accipiam de Dominio Ecclesiae vel hominibus ejus, donec successor eam ingrediatur, & omnes malas consuetudines, quibus regnum Angliae opprimebatur, inde aufero.12 He committed the said Ranulph then Bishop of Durham to prison for his intolerable misdeeds, and injuries to the Church, where he lived without love, and died without pity, saving of those, that thought it pity, he lived so long.
“Shall not be sold.”
Heirs shall be married without Disparagement.
This is an ancient maxime of the Common Law: see more hereof in the first part of the Institutes sect. 107. 108. 109.
| A Widow, after the Death of her Husband, incontinent, and without any difficulty, shall have her Marriage and her Inheritance; and shall give nothing for her Dower, her Marriage or her Inheritance, which her Husband or she held the day of the death of her Husband; and she shall tarry in the chief house of her Husband by forty days after the death of her Husband, within which days her Dower shall be assigned her, if it were not assigned her before, or that the house be a Castle. And if she depart from the Castle, then a competent house shall be forthwith provided for her, in the which she may honestly dwell, until her Dower be to her assigned, as aforesaid; and she shall have in the mean time her reasonable Estovers of the Common. And for her Dower shall be assigned unto her the third part of all the Lands of her Husband, which were his during Coverture, except she were endowed of less at the Church-door. No Widow shall be distrained to marry herself: Nevertheless she shall find Surety that she shall not marry without our Licence and Assent, if she hold of Us, nor without the Assent of the Lord, if she hold of another.
It appeareth by Bracton of ancient time,1 that a woman being Heire, sine Dominorum dispositione & assensu, haereditatem habens, maritari non potest, nec etiam in vita antecessorum de jure sine assensu Domini capitalis, quod si olim fecissent, haereditatem amitterent sine spe recuperandi, nisi solum per gratiam: hodie tamen aliam poenam incurrunt, sicut inferius dicetur, & hoc ideo ne cogatur Dominus homagium capere de capitali inimico, vel de alio minime idoneo.2
Item cum semel legitime maritatae fuerint, & postea viduae, iterum non custodientur sub custodia Dominorum, licet teneantur assensum eorum requirere maritandi se, &c.5 And herewith agreeth Glanvile, who wrote before this statute.6
Hereby you may see what had beene used of ancient time in these cases: But at this day widowes are presently after the decease of their husbands without any difficulty to have their marriage (that is, to marrie where they will without any licence, or assent of their Lords) and their inheritance, without any thing to be given to them; but in this branch the King is not included, as hereafter in the end of this Chapter shall appeare.
“And she shall tarry in the chief house of her Husband by forty days after the death of her Husband.”7
And this is called her Quarentine, and if the Widow be witholden from her Quarentine, she shall have her Writ, De quarentena habenda8 to the Sherife, which reciting this Statute, is in nature of a Commission to him, Quod vocatis coram vobis partibus praedictis, & auditis inde earum rationibus, eidem B.C. Viduae plenam & celerem justitiam inde fieri faciatis juxta tenorē cartae praedictae, ne pro defectu justitiae querela ad nos perveniat iterata.9 ,10 | By force of which Writ, the Sherife may make processe against the defendant, retournable within two or three dayes &c. and may, and ought (if no just cause may be shewed against it) speedily to put her in possession; and the reason why such speed is made, is for that her Quarentine is but for forty dayes.
“A Widow, &c. shall tarry &c.”
Therefore if she marry within the forty dayes, she loseth her Quarentine, for then her Widowhood is past, and she hath provided for her selfe, and the Quarentine is appropriate to her Widowes estate.11
“within which days her Dower shall be assigned her.”12
Here it appeareth how speedily Dower ought to be assigned, to the end the Widow might not be without livelihood.
“after the death of her Husband.”
The day wherein the husband dieth, shall be accounted the first day, so as she shall have but thirty nine after.13
“or that the house be a Castle.”14
This is intended of a Castle, that is warlike, and maintained for the necessary defence of the Realm, and not for a Castle in name maintained for habitation of the owner, but hereof see more in the first part of the Institutes, Sect. 36. & 242. De aedibus kernelatis.15Kernellare, or cernellare,16 by some is derived from the French word kerner, or cerner,17 to fortifie, inviron, or inclose round about: And by others, from karnean, or carnean,18 a battlement of a wall; or from karnele, or carnele,19 imbatteled, or having imbattlements; and the truth is, it beareth all these significations in the Lawes of England, and the use of it in Castles and forts was to defend himselfe by the higher place, and to offend the assailants at the lower.
Brittons words be,20Si le chief mees foit chief del Countee, ou del Barony, ou Castle, &c.21 So as it appeareth by him that she is not to have her Quarentine of that, which is Caput Comitatus, seu Baroniae,22 and with him, agreeth Fleta,23 but Bracton only speaketh de Castro.24 The ancient Law of England had great regard of honour and order.
“then a competent house shall be forthwith provided for her, in the which she may honestly dwell,”25
But this must be of a house, whereof she is Dowable, for she must have her Quarentine of that; whereof she may be endowed.
“and she shall have in the mean time her reasonable Estovers of the Common:”
So as estoverium30 here is taken for sustenance: There is an opinion in our Books,31 that the Widow cannot kill any of the Oxen of the husbands, whiles she remain in the house; But the register saith,32Quod interim habeant rationabilia estoveria de bonis eorundem maritorum,33 which seemeth to be an exposition of this Branch.
In the Statute intituled, De catallis felonum,34 it is said, Cum ibidem captus coram Justiciariis nostris fuerit convictus de felonia, tunc resid’ catallorum ultra estoverium suum secundum Regni consuetudinem nobis remaneant;35 ,36 where estovetium signifieth sustenance, or aliment, or nourishment. This word estoverium commeth of the French verb estover, id est, alere, to sustain, or nourish, and this agreeth with the said old Books, and in this sense it is taken in the Statute of Gloc.37Trover estovers in viver & vesture,38 that is, things that concern the nourishment, or maintenance of man in victu & vestitu,39 wherein is contained meat, | drink, garments, and habitation. Alimentorum appellatione venit victus, vestitus & habitatio.40
When estovers are restrained to woods, it signifieth housebote, hedgebote, and ploughbote.
“And for her Dower shall be assigned unto her the third part of all the Lands of her Husband, &c.”
See for this in the first part of the Institutes, Sect. 37.
“No Widow shall be distrained to marry herself, &c.41 ”
This is to be understood of Widowes Tenants in Dower of Lands holden of the King by Knights service in chiefe, and thereupon she is called the Kings Widow, and if the Kings Widow marry without license, she shall pay a fine of the value of her Dower by one year.
And old Readers have yeelded this reason, lest they should marry unto strangers, and so the treasure of the Realme might be carried out, and others say that the reason is for that upon the assignement of her Dower she is sworn in the Chancery,44Que el ne marier sans license, & pur ceo si el fait encont son serement el ferra fine.45
Others say that it is a contempt to marry without the Kings license, and against this Statute, and therefore for this contempt she shall make a fine.
If the Kings Tenant in Capite46 dye seised, his heire female of full age, if she marry without the Kings license, she shall pay no fine, for she is no Widow, and the Words be nulla vidua distringatur, &c.47 ,48
If the Queen being the Widow of a King be endowed, and marry without the Kings license, because she is endowed of the seison of the King himselfe, she is out of this Statute: But at the Parliament holden in anno 6.H.6.49 it is enacted by the King, the Lords temporall, and the Commons, that no man should contract with, or marry himselfe to any Queen of England, without the special license or assent of the King, on pain to lose all his goods, and lands; to which Act the Bishops, and other Lords Spirituall gave their consent, as farre forth, as the same swerved not from the Law of God, andof the Church, and so as the same imported no deadly sin.
“If she hold of another.50 ”
This is to be understood, where such a license of marriage in case of a common person, was due by custome, prescription, or speciall tenure, the words being si de alio tenuerit;51 and this exposition is approved by constant and continuall use and experience, Et optimus interpres legum consuetudo.52
We, or our Bailiffs, shall not seize any Land or Rent for any Debt, as long as the present Goods and Chattels of the Debtor do suffice to pay the Debt, and the Debtor himself be ready to satisfy therefore. Neither shall the Pledges of the Debtor be distrained, as long as the principal Debtor is sufficient for the payment of the Debt; and if the principal Debtor fail in payment of the Debt, having nothing wherewith to pay, or will not pay where he is able, the Pledges shall answer for the Debt; and if they will, they shall have the Lands and Rents of the Debtor, until they be satisfied of that which they before paid for him, except that the Debtor can shew himself to be acquitted against the said Sureties.1
These words being spoken in the politique capacity doe extend to the successors, for in judgement of Law the King in his politique capacity dieth not.
“or our Bailiffs.”2
“shall not seize any Land or Rent for any Debt, as long as the present Goods and Chattels of the Debtor, do suffice to pay the Debt,”5
By order of the Common Law, the King for his debt had execution of the body, lands, and goods of the debtor: This is an act of grace, and restraineth the power that the King before had.
For the severall kinde of rents, see the first part of the Institutes; Lit. lib. 2. cap. 12. whereunto you may adde, 1. Redditus assisus, or redditus assisae: vulgarly rents of Assise are the certain rents of the Freeholders, and ancient Copiholders, because they be assised, and certain, and doth distinguish the same from redditus mobiles, farm rents for life, years, or at will, which are variable and incertain. 2. Redditus albi, White rents, blanch Farmes, or rents, vulgarly and commonly called quitrents; they are called white rents, because they were paid in silver, to distinguish them from work-dayes, rent cummin, rent corn, &c. And again these are called, 3. Redditus nigri, black maile, that is, black rents, to distinguish them from white rents; see Rot. claus. 12. Hen. 3. m. 12. Rex concessit hominibus de Andevor maneria de M.F.A. &c. Reddendo per annum ad Scaccar̄ Regis Lxxx. li. blanc, de Antiqua firma.64. Redditus resoluti be rents issuing out of the mannors, &c. to other Lords, &c. Feodi firma, see Farm, for this kinde of rent, vide infra Gloc. cap. 8.
After the Statute of 33. Hen. 8. cap. 39. was made for levying of the Kings debts the usuall processe to the Sheriffe at this day, is, Quod diligenter per sacramentum proborum & legalium hominum de baliva tua, &c. inquiras quae & cujusmodi bona & catalla, & cujus precii idem (debitor) habuit in dicta baliva tua,&c. Et ea omnia capias in manus nostras, ad valentiam debiti praedict’, & inde fieri fac’debitum praedict’, &c. Et si forte bona & catalla praedict’ (debitoris) ad solutionem debiti praedict’ non sufficerent, tunc non omittas propter aliquam libertatem, quin eam ingrediaris, & per sacramentum praefat̄ proborum, & legalium hominum diligenter inquiras, quas terras, & quae tenementa, & cujus annui valoris, idem (debitor) habuit, seu seisitus fuit in dicta baliva tua, &c. Et ea omnia & singula in quorumcunque manibus jam existunt, extendi fac’, & in manus nostras capias, &c. Et capias praedict’ debitorem, ita quod habeas corpus praedict’ (debitoris) ad satisfac’ nobis de debito praedict’.7
Whereby it appeareth, that if the goods and chattels of the Kings Debtor be sufficient, and so can be made to appeare to the Sheriffe, whereupon he may levy the Kings debt, then ought not the Sheriffe to extend the Lands, and Tenements of the Debtor, or of his heire, or of any Purchaser, or terre Tenant.8 To conclude this point with the Authority of old and Auncient Ockham.
“Neither shall the Pledges of the Debtor.”
As pledges, or sureties to keepe the peace, pledges for a fine to the King upon a contempt, &c. are within this branch, but otherwise it is of mainperners, and this appeareth by Glanvile, to be the Common Law before the making of this act.11
And the author of the Mirror saith, ceux sont pleges queux plevisher aut’ chose que corps de home, car ceux ne sont propment pledges, mes sont main-perners pur ceo queils supposont plevishables sont liver a ceux per baille Corps pur Corps.12
“and if the principal Debtor fail in the payment, &c. or will not pay where he is able.”
Some have thought that this branch hath taken away the next precedent, concerning pledges, but both doe stand well together, for reddere noluerit cum possit13 must be understood, when the principall is able, and yet his ability cannot bee made to appeare, being in money, treasure or the like, or in debts owing to him, which he conceales, and will not reddere14 so as de non apparentibus, & non existentibus eadem est lex,15 and in that case plegii de debito respondeant,16 and yet the former branch concerning pledges doth stand, where the pledges can make it appeare to the Sheriffe, that he may levie the Kings debt: see in the statute of articuli super cartas.17 cap. 11.
“and if they will they shall have the Lands and Rents of the Debtor, &c.”
a18 Upon these words some have said that the writ de plegiis acquietandis19 is grounded, and seeing no mention is made in this Statute of any deed, the pledges shall have that Writ without any deed. And if the pledges have any deed, covenant, or other assurance for their indemnitie, then may they take their remedie at the Common Law;b20 but it appeareth by Glanvile that this was the Common Law, for he saith, Soluto vero eo quod debetur ab ipsis plegiis, recuperare inde poterint ad principalem debitorem, si postea habuerit unde eis satisfacere possit per principale placitum,21 and set downe thec22 Writ de plegiis acquietandis.
Note here is a Chapter omitted, viz. nullum scutagium, vel auxilium ponam in regno nostro nisi p commune conciliū regni nostri,23 which clause was in the Charter, anno 17. Regis Johannis, and was omitted in the exemplification of this great Charter, by Ed. I. vide Cap. 30.
The City of London shall have all the old Liberties and Customs which it hath been used to have. Moreover, We will and grant, that all other Cities, Boroughs, Towns, and the Barons of the Five Ports, and all other Ports, shall have all their Liberties and free Customs.
d1 This Chapter is excellently interpreted by an ancient Author, who saith, In pointe que demaunde, que le Citie de Londres eit fes auncient franchises, & fes frank Customes, est interpretable in cest maner, que les Citizens eient lour fraunchises, dont ils font inherit per loyall title, de dones, & confirmements des royes, & les queux ilz ne ont forsfeits per nul abusion, & que ilz eient lour franchises, & customes, que sont sufferable per droit, & nient repugnant al Ley: Et le interpretation que est dit de Londres soit intendu de les cinque ports, & des autres lieus;2 And this interpretation agreeth with divers of our later Books.3
It is a maxime in Law, that a man cannot claim any thing by custome or pre-|-scription against a Statute, unlesse the custome, or prescription be saved by another Statute; For example: They of London claim by custome, to give lands without license to mortmain, because this custome is saved, and preserved, not onely by this Chapter of Magna Charta, but by divers other Statutes, & sic de caeteris.4 See more in particular concerning London, in the fourth part of the Institutes, Cap. of the Courts of the City of London.
No Man shall be distrained to do more Service for a Knight’s Fee, nor any Frehold, than therefore is due.1
That this was the auncient Law of England, appeareth by Glanvill,2 and also that the Writ of Ne injuste vexes3 was not grounded upon this Act appeareth also by him, for he saith, Et alia quaedam placita, veluti, si quis conqueratur se curiae de Domino suo, quod consuetudines, & indebita servitia, vel plus servitii exigit ab eo, quā inde facere debeat:4 And setteth down the form of the writ of Ne injuste vexes; Rex N. salutem. Prohibeo tibi ne injuste vexes, vel vexari permittas H. de libero tenemento suo, quod tenet de te in tali villa, nec inde ab eo exigas, aut exigi permittas consuetudines vel servitia, quae tibi inde facere non debet, &c.5
And another ancient Author which wrote of the ancient Laws long before this Statute, maketh mention of the Writ of Ne injuste vexes.6
Hereby it appeareth how they are deceived, that hold that this Writ is grounded upon this Act, and how necessary the reading of ancient Authors is, to give the ancient Common Law his right, as hereby it appeareth.7
The words of the Statute be, nullus distringatur,8 therefore if the Lord incroach more Rent of the same nature, by the voluntary payment of the Tenant, be shall not avoid this incroachment in an avowry but in an assise cessavit,9 or ne injuste vexes, the Tenant shall avoyd the incroachment; This rule holdeth not in case of a successor, or of the issue in taile, for they shall avoyd it in an avowry, but if the service incroached be of another nature, the Tenant shall avoyd that season in an avowry, for majus servitium10 implieth a greater exaction of the same nature: if the incroachment of the same nature be gotten by cohertion of distresse, there the Tenant shall avoyd that season in an avowry, for nullus distringatur ad faciendum majus servitium.11 But if an incroachment be made upon a Tenant in tail, or Tenant for life, or any other, who cannot maintain a Writ of ne injuste vexes, nor a contra formam collationis,12 nor other remedy, he shall have an action upon this Statute;13 for this Statute intendeth to relieve those, which had no remedy by the Common Law.
Common Pleas shall not follow our Court, but shall be holden in some place certain.1
Before this Statute, Common pleas might have been holden in the Kings Bench, and all originall Writs retournable into the same Bench: And because the Court was holden Coram Rege,2 and followed the Kings Court, and removable at the Kings will, the Retourns were Ubicunque fuerimus, &c.3 whereupon | many discontinuances ensued, and great trouble of jurors, charges of parties, and delay of Justice, for these causes this Statute was made.
Here it is to be understood, a division of Pleas, for Placita4 are divided in Placita Coronae,5 and Communia placita:6Placita Coronae are otherwise, and aptly called criminalia,7 or mortalia,8 and placita communia are aptly called civilia:9Placita Coronae are divided into high Treason, misprision of Treason, petit Treason, Felony, &c. and to their accessories,10 so called, because they are contra coronam & dignitatem;11 and of these the Court of Common pleas cannot hold plea; of these you may reade at large in the third part of the Institutes. Common or civill pleas are divided into reall, personall, and mixt.
They are not called Placita Coronae, as some have said, because the King jure Coronae12 shall have the suite,13 and Common pleas, because they be held by common persons. For a plea of the Crown may be holden between common persons, as an appeale of murder, robbery, rape, felony, mayhem, &c. and the King may be party to a common plea, as to a Quare impedit,14 and the like.
Now as out of the old fields must come the new corne, so our old books do excellently expound, and expresse this matter, as the Law is holden at this day, therefore Glanvill saith,15Placitorum aliud est criminale, aliud civile;16 where Placitum criminale, is Placitum Coronae; and Placitum civile,17placitum commune, named in this Statute.
And Bracton that lived when this Statute was made, saith,18Sciendum quod omnium actionum sive placitorum, (ut inde utatur aequivoce) haec est prima divisio, quod quaedam sunt in rem, quaedam in personam, & quaedam mixtae; Item earū quae sunt in personam, alia criminalia, & alia civilia, secundum quod descendunt ex maleficiis vel contractibus; Item criminalium, alia major, alia minor, alia maxima, secundum criminum quantitatem.19
To treat of the jurisdiction of this Court, doth belong to another part of the Institutes, but a word or two of the Antiquity of the Court of Common pleas, which is the lock and the key of the Common Law.
Glanvill saith,24Placita in superioribus, &c. sicut & alia quaelibet placita civilia, &c. solet autem id fieri corã Justiciariis Domini Regisin Banco residentibus, &c.25 And in another place, Coram Justic’ in Banco sedentibus.26
Bracton in divers places cals the Justices of the Court of Common pleas,27 as Glanvill did, Justiciarii in Banco residentes,28 so called for that the Retourns in the Kings Bench, are Coram Rege ubicunque fuerimus in Anglia,29 as hath been said, because in ancient time it was, as hath been said, removable, and followed the Kings Court.
And therefore all Writs retournable, Coram Justiciariis nostris apud Westm.30 are retournable before the Judges of the Common Pleas, and all Write retournable, Coram nobis ubicunque tunc fuerimus in Anglia,31 are retournable into the Kings Bench.32
Fleta saith,35Habet & (Rex) curiam suam & justiciarios suos residentes, qui recordum habent in hiis, quae coram eis fuer’placitata, & qui potestatem habent de omnibus placitis, & actionibus realibus, personalibus, & mixtis &c.36
It is manifest that this Court began not after the making of this Act, as some have thought, for in the next Chapter,37 and divers others of this very great Charter mention is made De Justiciariis nostris de Banco,38 which all men know to be the Justices of the Court of Common pleas, commonly called the Common | Bench, or the Bench, and Doct. and Stud. saith, that it is a Court created by Custome.
The Abbot of B. claimed conusans of plea in Writs of assise, &c.39 in the times of King Etheldred, and Edward the Confessor, and before that time, time out of minde, and pleaded a Charter of confirmation of King Henry the first to his predecessor, and a graunt, &c. so that the Justices of the one Bench, or of the other should not intermeddle.
It appeareth by our Books that the Court of Common pleas was in the reign of Henry the first.40
That there was a Court of Common pleas in anno. 1. H. 3.41 which was before this Act; Martinus de Pateshull,42 was by Letters Patents constituted chiefe Justice of the Court of Common pleas in the first yeare of H. 3.
It is resolved by all the Judges in the Exchequer Chamber,42 that all the Courts, viz. the Kings Bench, the Common Place, the Exchequer, and the Chancery, are the Kings Courts, and have been time out of memory, Issint que home ne poet scaver que est plus auncient.43
“shall not follow our Court.”
Divers speciall cases are out of this Statute.
1. The King may sue any action for any Common plea in the Kings Bench, for this generall act doth not extend to the King.44
45 2. If any man be in custodia Mareschalli46 of the Kings Bench, any other may have an action of Debt, Covenant, or the like personall action by Bill in the Kings Bench, because he that is in custodia Mareschalli ought to have the priviledge of that Court, and this Act taketh not away the priviledge any Court, because if he should be used in any other Court, he should not in respect of his priviledge answer there, and so it is of any officers, or ministers of that Court: The like Law is of the Court of Chancery, and Exchequer.
3. Any action that is Quare vi & armis,47 where the King is to have a fine, many be purchased out of the Chancery, retournable into the Kings Bench, as ejectione firmae trn̄s, vi & armis,48 forcible entry, and the like.
5. Albeit originally the Kings Bench be restrained by this Act to hold plea of any real action, &c. yet by a mean they may. As if a writ in a real action be by judgment abated in the Court of Common pleas, if this judgement in a Writ of Error be reversed in the Kings Bench, and the Writ adjudged good, they shall proceed upon that Writ in the Kings Bench, as the Judges of the Court of Common pleas should have done, which they doe in the default of others, for necessity, lest any party that hath right should be without remedy, or that there should be a failer of Justice, and therefore Statutes are alwayes so to be expounded, that there should be no failer of Justice, but rather than that should fall out, that case (by construction) should be excepted out of the Statute, whether the Statute be in the negative, or affirmative.51
6. In a redisseisin52 or the like.
Are words collective, and not onley extend to the Kings Bench, but into the Court of Eschequer, Vide Artic. super Cart. Cap. 4.53
When judgement is given before the Sheriffe, and the Tenant hath nogoods, &c. in that County, he may have a Certiorare54 to remove the Record into the Kings Bench, and there have execution, for that is not Placitum.55 See more hereof in the fourth part of the Institutes, Cap. Of the Court of Eschequer.
| Assises of Novel Disseisin and of Mortdauncestor shall not be taken but in the Shires, and after this manner: If We be out of this Realm, our Chief Justicers shall send our Justicers through every County once in the year; which with the Knights of the Shires shall take the said Assises in those Counties; and those things that at the coming of our foresaid Justicers being sent to take those Assises in the Counties, cannot be determined, shall be ended by them in some other place in their Circuit; and those things, which for difficulty of some Articles cannot be determined by them, shall be referred to our Justices of the Bench, and there shall be ended.
Before the making of this Statute, the Writs of assise of Novel disseisin,1 and Mordanc’2 were retournable, either coram Rege,3 or into the Court of Common Pleas, and to be taken there, and this appeareth by Glanvill,4Coram me, vel coram Justiciariis meis.5 But since this Statute, these Writs are retournable, Coram Justiciariis nostris ad assisas, cum in partes illas venerint;6 by force of these words, Mittent Justiciarios nostros per unumquemque comitat̃ nostrum semel in anno, qui cum militibus eorundem comitatuum capiant in comitat̃ illis assisas prædict’.7
“but in the Shires.”8
This tendes greatly to the ease of the Jurors, and for saving of charges of the parties, and of time, so as they might follow their vocations, and proper businesse, and the rather, for that the Assise of Novel disseisin, was frequens & festinum remedium9 in those dayes, and so was the assise of Mordanc’ also: It is a great benefit to the subject to have justice administred onto him at home in his owne Country.
For an assise of Novel disseisin, and assise of Mordanc’ see the first part of the Institutes.10
And where Bracton saith,11Succurritur ei, (1. disseisito) per recognitionem assisæ novæ disseisinæ multis vigiliis excogitatam, & inventam recuperandæ possessionis gratia, quam disseisitus injuste amisit, & sine judicio, ut per summariam cognitionem absq; magna juris solemnitate quasi per compendium, negotium terminetur.12 See the Custumier de Normand’, (composed, as hath been said, in 14.H.3.) sect. 91. & 93. of the Assise of Novel disseisin, which being invented and framed in England, as Bracton and others have testfied, must of necessity be transported into Normandy.13
But where we yeeld to Bracton, that the Assise of Novel disseisin was so invented, so he must yeeld to us, that it was a very auncient invention, for Glanvill maketh mention thereof, and of the Assise of Mordaunc’, as hath been said, and by the Mirror also the antiquity of Assise De novel desseisin doth appeare, who saith, that this writ of Assise of Novel disseisin, was ordained in the time of Ranulph de Glanvill.14
But the case of 26. Assise before touched, doth prove that the Writs of Assise are of farre greater antiquity, for there it appeareth that in an Assise of Novel disseisin, claimed to have Conusans of Plea, and Writs of Assise, and other originall Writs out of the Kings Courts by prescription time out of minde of man, | in the times of S. Edmond, and S. Edward the Confessor, Kings of this Realme before the Conquest, and shewed divers allowances thereof: but true it is, as the ancient Authors affirme, that a new forme of Writs of Assise, for the more speedy recovery of possession, which werecalled Festinaremedia,15 was invented in England since the Conquest, & were called Brevia de assisa novæ disseisinæ;16 which Writs so altered continue so untill this day, and according to the alteration is cited in the Custumier cap. 93. fol. 107. b.
If an assise be taken in proprio comitatu,17 and the tenant pleade, and after the assise is discontinued by the non venu18 of the Justices, this Act extends to the Assise, but not to a reattachment thereupon, for that the Assise was first arrained and examined in the proper County, neither doth this Act extend to a Writ of attaint, brought upon the verdict of the recognitors of the Assise:19 And herewith agreeth Britton,20 who saith, Et tout conteine la grand Chie des franchises, que ascuns assises soient prises in Counties, pur ceo ne intent nul que certifications, & attaints auter foitz estre pledes, &c.21
And Bracton saith,22Et si ad hoc se habeat communis libertas, quod assisæ extra comitatum capi non debeant, non sequitur quod propter hoc remaneant juratæ in com̄ capiendæ; aliud enim habet privilegium assisa, & aliud jurata.23
An assise is brought in the Kings bench,24 then being in the County of Suff. (as it may be, as hath been said) of lands lying in that County, the tenant plead in barre, the pl’ reply and pray the Assise, the Kings bench is removed to Westm. and there the pl’ prayed the Assise, this Statute is, that the Asisse shall not be taken but in the County, and now the Kings bench is in another County, and the originall cannot goe out of this place, for when a Record is once in this Court, here it must remaine, wherefore by th’ advise of all the Judges, the Assise was awarded at large, quia nihil dicit,25 and a Nisi prius26 granted in the County of Suff. that there might the Assise be taken. A case worthy of observation, how by this exposition both the parties sute was preserved, and the purvien of this statute observed.
Yet in some case notwithstanding this negative Statute, the asisse should not have been taken in his proper County.27 And therefore if a man be disseised of a Commote or Lordship Marcher in Wales, holden of the King in Capite,28 as for example of Gowre, the Writ of assise should have been directed to the Sherife of Gloc. within the Realme of England, and albeit the land of Gowre was out of the power of the Sherife of Gloc. being out of his County within the dominion of Wales, and this Statute saith that the assise shall not be taken but in his proper County, yet was the assise taken in the County of Gloc. and Judgement thereupon given and affirmed in a Writ of error: and the reason is notable, for the Lord Marcher though he had jura Regalia,29 yet could not he doe justice in his owne case, and if he should not have remedy in this case by the Kings writ out of the Chauncery in England, he should not have right and no remedy by Law given for the wrong done unto him, which the Law will not suffer, and therefore this case of necessity is by construction excepted out of the Statute. And it was well said in an old booke,30Quamvis prohibetur quod communia placita non sequantur curiam nostram, non sequitur propter hoc, quin aliqua placita singularia sequantur Dominum Regem,31 and the like in this negative Statute.
Hereby it appeareth (that I may observe it once for all) that the best expositors of this and all other Statutes are our bookes and use or experience.
More shall be said hereof in the exposition of the Statute of W. 2.
See the first part of the Institutes, sect. 234. Custumier de Norm. cap. 98. fol. 115.
“If We be out of this Realm, our Chief Justicers.”
This Capitalis Justitiarius32 (when the King is extra Regnum, out of the Realme) is well described by Ockham, Rege extra Regnum agente, br̄ia dirigebantur sub nomine præsidentis Justitiarii & testimonio ejusdem.33 This is he that | is constituted by letters patents when the King is out of the Kingdome, to be custos sive gardianus Regni,34 keeper of the Kingdome, and locum tenens Regis,35 and for his time is Prorex,36 such as was Edward Duke of Cornewall 13. E. 3. Lionell Duke of Clarence 21. E. 3. And the teste to all originall Writs, were teste Lionello filio nostro charissimo custode Angliae &c.37 John Duke of Bedford 5. H. 5. Richard Duke of Warwick 3. E. 4. and many others:38 before whom as keepers of the Kingdome, Parliaments have been holden, and as hath been said, the teste39 of originall Writs are under the name of the Keeper, which no officer can doe, when the King is within the Realme. In 8. H. 5. a great question arose whether if the Kings Lieutenant, or Keeper of his Kingdome under his teste, doth summon a Parliament, the King being beyond sea, andinthemeane time the King returne into England, whether the Parliament so summoned might proceed: it was doubted that in praesentia majoris cessaret potestas minoris,40 and therefore it was enacted that the Parliament should proceed, and not be dissolved by the Kings returne.41 Now that this Statute is to be intended of such a Lieutenant or keeper of the Kingdome, it is proved by this Act it selfe, Capitales Justitiarii nostri mittent Justitiarios nostros.42 that is, they shall name and send Justices by authority under the great seale under their owne teste; which none can doe but the King himselfe if he be present, or his Lieutenant, or the keeper or guardian of his Kingdome, if he be, as this Act speaketh, extra Regnum:43 and this exposition is made ex verbis & visceribus Actus.44 But then it is demanded, whether this locum tenens Regis, seu custos Regni,45 was called capitalis Justitiarius before the making of this act, and this very name you shall read in Glanvile, who saith Praeterea sciendum, quod secundum consuetudines Regni, nemo tenetur respondere in Curia Domini sui de aliquo libero tenemento suo sine praecepto domini Regis, vel ejus Capitalis Justitiarii,46 where Capitalis Justitiarius is taken for Custos Regni.47
It is to be observed, that before the raigne of King Ed. 1. the Kings Chiefe Justice was some time called summus Justitiarius,48 sometime praesidens Justitiarius,49 and sometimes Capitalis Justitiarius. In anno primo E. 1. his chiefe Justice was called Capitalis Justitiarius ad placita coram Rege tenenda,50 and so ever since; and this chiefe Justice is created by Writ, and all the rest of the Justices of either bench, by letters patents.51
In Glanviles time,52 and before, the Kings Justices were called Justiciae, the returnes of Writs being coram Justiciis meis,53 so as the Kings Justices were antiently called Justitiae, for that they ought not to be only Justi in the concrete, but ipsa Justitia,54 in the abstract. Since that time, as by this great Charter in many places it appeareth, they are called Justitiarii à Justitia.55 The honourable manner of the creation of these Justices you may read in Fortescue.56
“in some other place in their Circuit.”
This is taken largely and beneficially, for they may not only make adjournement before the same Justices in their Circuite, but also to Westm. or to Serjeants Inne, or any other place out of their Circuite, by the equity of this Statute, and according as it had been alwayes used:57 for constant allowance in many cases doth make Law.
a The Statute speaking only of an adjournment in Assise of novell disseisin, &c.58 and yet a certificate of an Assise is within this Statute.
b Regula.b Sed rerum progressus ostendunt multa, quae initio praevideri non possunt.59
c60 Time found out, that because the justices of Assise came not but once in the yeare, and that any adjournment could not have beene made by this Act, unles the jurors had given a verdict, for this Act saith propter difficultatem aliquorum articulorum,61 and not upon demurrer, doubtfull plea, Estoppel, &c.*62 or for preservation of the Kings peace, and no provision was made by this Act, if the ten in the assise of Mordaunc. had made a foreine vowcher, or pleaded a foreine plea: all these are holden by the Statute of W. 2. cap. 30 as shall appeare when we come thereunto.
| Assises of Darrein Presentment1 shall be alway taken before our Justices of the Bench, and there shall be determined.
A Freeman shall not be amerced for a small Fault, but after the manner of the Fault, and for a great Fault, after the greatness thereof, saving to him his Contenement; and a Merchant likewise, saving to him his Merchandise; and any other’s Villein than ours shall be likewise amerced, saving his Wainage, if he fall into our mercy. And none of the said Amercements shall be assessed but by the oath of honest and lawful Men of the Vicinage. Earls and Barons shall not be amerced but by their Peers, and after the manner of their Offence. No Man of the Church shall be amerced after the quantity of his Spiritual Benefice, but after his Lay Tenement, and after the quantity of his Offence.
A free man hath here a speciall understanding, and is taken for him, qui tenet libere,1 for a free-holder, as it is taken in the venire fac.2 Where duodecim liberos, &c.3homines are taken for free-holders, and this appeareth by this Act which saith, salvo contenemento suo,4 whereof more shall be said in this Chapter. The words of this Act being liber homo, it extendeth as well to sole Corporations, as Bishops &c. as to lay men, but not to Corporations aggregate of many, as Major and Commonalty, and the like, for they cannot be comprehendedunder these words liber homo, &c.5
“shall not be amerced.”
This Act extends to amerciaments and not to fines imposed by any Court of Justice: what amerciaments be, and whereof this word Amerciament cometh, see the 8. book of my Reports, see also there, that this Statute is in some cases of amerciaments, to be intended of private men, and not of amerciaments of officers, or ministers of Justice, so as liber homo, is not intended of officers, or ministers of Justice.6 And how, and in what cases the afferment shall be, you shall also read there, together also with the ancient Authors, and many other authorities of Law, concerning these matters.7
It appeareth by Glanvile8 that this Act was made in affirmance of the com-|mon Law, as hereafter shall appeare, but yet the Writ de moderatamisericordia,9 is grounded upon this Statute, for it reciteth the Statute and giveth remedy to the partie that is excessively americied,
“saving to him his Contenement.”
First for the word, you shall read it in Glanvile,10Est autem misericordia Domini Regis, qua quis per juramentum legalium hominum de viceneto eatenus amerciandus est, ne quid de suo honorabili contenemento amittet.11
2. For the signification, Contenement signifieth his countenance, which he hath, together with, and by reason of his free-hold, and therefore is called contenement, or continence and in this sense doth the Statute of 1. E. 3.16 and old Nat. Brev. use it, where countenance is used for contenement: the armor of a Souldior is his countenance, the books of a Scholler his countenance, and the like.
“and a Merchant likewise, saving to him his Merchandise;”
For trade and traffique is the livelihood of a Merchant, and the life of the Commonwealth, wherein the King and every subject hath interest, for the Merchant is the good bayliffe of the Realme to export and vent the native commodities of the Realme, and to import and bring in the necessary commodities for the defence and benefit of the Realme.
“and any other’s Villein than ours shall be in likewise amerced, saving his Wainage.”17
A Villein is free to sue, and to be sued, by and against all men, saving his Lord.
“saving his Wainage.”
Wainagium, is the contenement or countenance of the Villen, and cometh of the Saxon word Wagna, which signifieth a Cart or Waine, wherewith he was to doe Villein service, as to carry the dung of the Lord out of the scite of the Mannor unto the Lords land, and casting it upon the same, and the like, and it was great reason to save his wainage, for otherwise the miserable creature, was to carry it on his back, it is said here Wainagio suo,21 but yet the Lord may take it at his pleasure.22
But hereby it appeareth, that albeit the Law of England, is a Law of mercy, yet is it a Law, which is now turned into a shadow, for where by the wisdome of the Law, these amerciaments were instituted to deterre both demaundants and plaintiffs from unjust suits, and tenants, and defendants from unjust defences, which was the cause in ancient times of fewer suits, but now we have but a shadow of it. Habemus quidem fenatus-consultum, sed in tabulis reconditum, & tanquam gladium in vagina repositum.23 ,24
“Earls and Barons shall not be amerced but by their peers, &c.”25
Although, this statute be in the negative, yet long usage hath prevailed against it, for the amerciament of the Nobility is reduced to a certainty, viz. a Duke 10 l. an Earle 5 l. a Bishop, who hath a Baronie 5 l. &c. in the Mirror it is said that the amerciament of an Earle was an C l., and of a Baron an C. marks.
It is said that a Bishop shall be amercied for an escape 100 l. A Bayler shall be amercied for a negligent escape of a Felon attaint 100 l. and of a Felon indited only 5 l.
If a Noble man and a Common person joyne in an action, and become non-sute, they shall be severally amercied: viz. the Noble man at C s. and the Common person according to the Statute, therefore when a Noble man is plaintiffe, it is pollicy rather to discontinue the action, then to be non-suite.
“by their Peers.”
By his peeres, that is, by his equalls.
| The generall division of persons by the law of England, is either one that is noble, and in respect of his nobility of the Lords house of Parliament, or one of the Commons of the Realme, and in respect thereof, of the house of Commons in Parliament,26 and as there be diverse degrees of Nobility, as Dukes, Marquesses, Earles, Viscounts and Barons, and yet all of them are comprehended within this word, Pares, so of the Commons of the Realme, there be Knights, Esquires, Gentlemen, Citizens, Yeomen, and Burgesses of severall degrees, and yet all of them of the Commons of the Realme, and as every of the Nobles is one a Peer to another, though he be of a severall degree, so is it of the Commons, and as it hath been said of Men, so doth it hold of Noble Women, either by birth, or by mariage, but see hereof Cap. 29.
Bracton saith,27Comites vero vel Barones, non sunt amerciandi, nisi per Pares suos, & secundum modum delicti, & hoc per Barones de Scaccario, vel coram ipso Rege. Nulla Ecclesiastica persona amercietur secundum quantitatem beneficii sui Ecclesiastici, sed secundum Laicum tenent-suum.28
“Man of the Church.”
For Ecclesiasticall persons, and their diversities, and degrees, see the first part of the Institutes, ubi sup.
Benefice. Beneficium is a large word, and is taken for any Ecclesiasticall promotion or Spirituall living whatsoever.
Here appeareth a priviledge of the Church, that if an Ecclesiasticall person be amercied (though amerciaments belong to the King) yet he shall not be amercied in respect of his Ecclesiasticall promotion, or benefice, but in respect of his lay fee, and according to the quantity of his fault, which is to be afferred: and Bracton setteth downe the oath of the afferers of amerciaments, & ad hoc fideliter faciend. affidabunt amerciatores, quod neminem gravabunt per odium, nec alicui deferent propter amorem, & quod celabunt ea quae audierunt.29
No Town nor Freeman shall be distrained to make Bridges nor Banks, but such as of old time and of right have been accustomed to make them in the time of King Henry our Grandfather.
Here it is to be observed, that in the raigne of King John, and of his elder brother King Richard, which were troublesome and irregular times, diverse oppressions, exactions, and injuries, were incroached upon the Subject in these Kings names, for making of Bulwarks, Fortresses, Bridges, and Bankes, contrary to Law and right.
But the raigne of King Henry the second is commended for three things, first, that his privy Counsell were wise, and expert in the Lawes of the Realme. Secondly, that he was a great defender and maintainer of the rights of his Crowne, and of the Lawes of his Realme. Thirdly, that he had learned and upright Judges, who executed Justice according to his Lawes. Therefore for his great and never dying honour, this and many other Acts made in the raigne of Hen. 3. doe referre to his raigne, that matters should be put in use, as they were of right accustomed in his time, so as this Chapter is a declaration of the common Law, and so in the raignes of Hen. 4. and Hen. 5. the Parliaments referre to the raigne of King Edw. 1. who was a Prince of great fortitude, wisedome and justice.1
And diverse Statutes referre to King Edward the third who was a noble, wise, and warlike King, in whose raigne, the Lawes did principally flourish.
Is here taken for Ripa, which is extrema & eminentior terrae ora, quam fluvius utrinque alluit.2
But the making of bulwarks, fortresses, and other things of like kinde, were not prohibited by this Act, because they could not be erected, but either by the King himself, or by Act of Parliament.3
No Banks shall be defended from henceforth, but such as were in defence in the time of King Henry our Grandfather, by the same Places and the same Bounds, as they were wont to be in his time.
That is, that no owner of the Banks of rivers shall so appropriate, or keep the rivers severall to him, to defend or barre others, either to have passage, or fish there, otherwise, then they were used in the raigne of King H. 2.
No Sheriff, Constable, Escheator, Coroner, nor any other our Bailiffs, shall hold Pleas of our Crown.
One of the mischiefes before this Statute was, That none of them here named, could command the Bishop of the Diocesse to give the delinquent his Clergy, where he ought to have it, for as Bracton saith,1Nullus alius, praeter regem, possit Episcopo demandare, &c.2 And therewith agreeth our other old, and later Books,3 that the Bishop is not to attend upon any inferiour Court, nor that any inferiour Court can write unto, or command the Bishop, but the King, (that is) the Kings great Courts of Record, and such, as since that time have authority by Act of Parliament.
See for his name, office, and antiquity in the first part of the Institutes. sect. 234.10
Is here taken for Castellanus, a Castellein, or Constable of a Castle, for so doth the Mirror interpret it.11 And Castellanus est qui custodit castellum, aut est Dominus castelli;12 And so doth Bracton; Debet, &c. ostendere castellano, sicut constabulario turris, &c.13 And therewith agreeth Fleta,14Item nullae prisae capiantur de aliquo per aliquem constabularium, castellanum, praeterquam de villa, in qua situm est castrum.15
And Castellani were men in those dayes of account, and authority, and for pleas of the Crown, &c. had the like authority within their precincts, as the Sheriffe had within his Bailiwick before this Act, and they commonly sealed (which I have often seen in many, and have cause to know, that some of the auncient family of de Sperham in Norff. did) with their portraiture on horseback.
Now for the number of Castles, in ancient time, within this Realme, Certum est Regis Henrici secundi temporibus Castella 1115. in Anglia extitisse.18
And it is to be observed, That regularly every Castle containeth a Mannor, so as every Constable of a Castle is Constable of a Mannor, and by the name of the Castle the Mannor shall passe, and by the name of the Mannor the Castle shall passe.19
For this word, Constabularius, his office, and antiquity, see the first part of the Institutes. sect. 379.
And albeit the franchises of Infangthiefe, and Outfangthiefe, to be heard and determined within Court Barons belonging to Mannors, were within the said mischiefe, yet we finde, but not without great inconvenience, that the same had some continuance after this Act. But either by this Act, or per desuetudinem,20 for inconvenience, these franchises within Mannors are antiquated and gone.21
His name is derived à Corona, so called, because he is an Officer of the Crown, and hath Conusance of some pleas, which are called Placita coronae.22
For his antiquity, see the Mirror,23 who (treating of Articles established by the ancient Kings, Alfred, &c.) saith, Auxi ordains suer Coronours in chescun County, & Viscounts a garder le peace, quant les Countees soy demisterent del gard, & Bayliffes in lieu de centeners,24 (that is) Coroners in every County, and Sheriffes were ordained to keep the peace, when the Earles dismist themselves of the custody of the Counties, and Bayliffes in place of Hundreders.
For his dignity and authority, Britton saith in the person of the King,25Purceo que nous volons, que Coroners sont in chescun Country principals gardens de | nostre peace, a porter Record des pleas de nostre Corone, & de lour views, & abjurations, & de utlagaries, volons que ilz sont eslieus solonque ceo, que est contein in nous Statutes de lour election, &c.26
29 * By the auncient Law, he ought to be a Knight, honest, loyall, and sage, Et qui melius sciat, & possit officio illi intendere.30 For this was the policy of prudent antiquity, that Officers did ever give a grace to the place, and not the place only to grace the Officer.
But what authority had the Sheriffe in pleas of the Crown before this Statute?31 This appeareth by Glanvill, that the Sheriffe in the Tourn, (for that is to be intended) held plea of theft, for he saith; Excipitur crimen furti, quod ad Vice-comitem pertinet, & in Comitatibus placitatur;32 But he may enquire of all felonies by the Common Law, except the death of man.
And what authority had the Coroner? the same authority he now hath, in case when any man come to violent, or untimely death, super visum corporis, &c.33 Abjurations, and out-lawries, &c. appeales of deaths by bill, &c. This authority of the Coroner, viz. the Coroner solely to take an indictment, super visum corporis; and to take an appeale, and to enter the appeale, and the Count remaineth to this day. But he can proceed no further, either upon the indictment, or appeale, but to deliver them over to the Justices. And this is saved to them by the Statute of W. 1. cap. 10. And this appeareth by all our old Books, Book cases, and continuall experience.34
And for the further authority of the Coroner in case of high treason, see the Book of 19. Hen. 6. fol. 47.35 and consider well thereof.
But the authority of the Sheriffe to heare and determine theft, or other felonies by the Common Law, (except the death of man) in the Tourn, is wholly taken away by this Statute, howbeit his power to take indictments of felonies, and other mis-deeds within his jurisdiction, is not taken away by this Act.36
If any that holdeth of Us Lay-Fee do die, and our Sheriff or Bailiff do shew our Letters Patents of our Summon for Debt, which the dead man did owe to Us, it shall be lawful to our Sheriff or Bailiff to attach and inroll all the Goods and Chattels of the Dead being found in the said Fee, to the value of the same Debt, by the sight and testimony of lawful men: So that nothing thereof shall be taken away, until we be clearly paid off the Debt; and the Residue shall remain to the Executors, to perform the Testament of the Dead; and if nothing be owing unto Us, all the Chattels shall go to the use of the Dead; saving to his Wife, and Children, their reasonable parts.1
By this Chapter three things are to be observed; First, that the King by his prerogative shall be preferred in satisfaction of his debt by the Executors, before any other; Secondly, that if the Executors have sufficient to pay the Kings debt, | the heire that is to beare the countenance, and sit in the seate of his ancester, or any purchaser of his lands shall not be charged. Thirdly, if nothing be owing to the King, or any other, all the Chattells shall goe to the use of the dead, that is, to his Executors, or Administrators, saving to his Wife and Children their reasonable parts, which is consilium,2 and not praeceptum;3 and the nature of a saving regularly is, to save a former right, and not to give, or create a new, and therefore, where such a Custome is, that the Wife and Children shall have the Writ de rationabili parte bonorum,4 this Statute saveth it. And this Writ doth not lye without a particular Custome, for that the Writ in the Register is grounded upon a Custome, which (as hath been said) is saved by this Act.
5 * But that it was never the Common law (though there be great variety in books) heare what Bracton saith, who wrote soone after this Act. Neq; uxorem, neq; liberos amplius capere de bonis defuncti patris vel viri mobilibus, quam fuerit eis specialiter relictum, nisi hoc sit de speciali gratia testatoris, utpote si bene meriti in ejus vita fuerint, &c. vix enim inveniretur aliquis civis, qui in vita magnum quaestum faceret, si in morte sua cogeretur invitus bona sua relinquere pueris indoctis, vel luxuriosis, & uxoribus male meritisi & ideo necessarium est valde, quod illis in hac parte libera facultas tribuatur. Per hoc enim tollet maleficium, animabit ad virtutem & tam uxoribus, quam liberis bene faciendi dabit occasionem, quod quidem non fieret, si se scirent indubitanter certam partem obtinere etiam sine testatoris voluntate.6
No Constable, nor his Bailiff, shall take Corn or other Chattels of any man, if the man be not of the town where the Castle is, but he shall forthwith pay for the same, unless that the will of the seller was to respite the Payment: And if he be of the same town, the Price shall be paid unto him within forty days.
Here also it appeareth, that in this Chapter Constabularius1 is taken for Castellanus:2 ,3 and this taking by Castelleins, though the Castell was kept for the defence of the Realme, was an unjust oppression of the Subject, and this expresly appeareth by the Mirror,4Ceo que est defendu a Constables a prender le autre, defend droit a touts gents de cy que nul difference parenter prise dautrui maugre soen, et robbery, lequel cel prise soit de chivalls, de vitaille, de merchandise, de carriage, de ostiels, ou des autres manners de biens.5 And this appeareth also by Fleta, l. 2. cap.43. Quia multa gravamina multis inferuntur per diversas districtiones, quae quidem sub colore prisarum advocantur, &c. inhibetur in Magna charta de liberta-|-tibus &c.6 no purveyance shall be taken, but only for the houses of the King, and Queene, and for no other person: so as the grievance before this, and other like Acts, is wholly taken away.7
No Constable shall distrain any Knight for to give Money for keeping of his Castle, if he himself will do it in his proper person, or cause it to be done by another sufficient man, if he may not do it himself, for a reasonable cause. And if we do lead or send him in an army, he shall be free from Castle Guard for the time that he shall be with us in fee in our host, for the which he hath done service in our wars.
Here Constabularius1 is taken in the former sense: see the first parte of the Institutes Sect. 96.
See this Act in Fleta:2 And note, this Act (consisting upon two branches) is declaratory of the Common Law, for first, that he, that held by Castle gard, that is, to keepe a tower, or a gate, or such like of a Castle in time of warre might doe if, either by himself, or by any other sufficient person for him, and in his place.3 And some hold by such service, as cannot doe it in person, as Major, and Comminalty Deane, and Chapter, Bishops, Abbots, etc. Infants being purchasers, women, and the like, and therefore they might make a deputy by order of the Common Law. If two joyn-tenants hold by such service, if one of them performe, it is sufficient.
For the second; if such a tenant be by the King led, or sent to his host, in time of warre, the tenant is excused and quit of his service for keeping of the Castle, either by himself, or by another during the time, that he so serve the King in his host, for that when the King commandeth his service in his host, he dispenceth with his service, by reason of his tenure, for that one man cannot serve in person in two places, and when he serves the King in person in one place, he is not bound to finde a deputy in the other, for he is not bound to make a deputy, but at his pleasure, and this is also declaratory of the ancient Common Law. See the first part of the Institutes 111. 121.
No Sheriff nor Bailiff of ours, or any other, shall take the Horses or Carts of any man to make carriage, except he pay the old price limited; that is to say, for carriage with two horse, x d. a day, for three horse, xiv d. a day. No Demesne Cart of any Spiritual Person or Knight, or any Lord, shall be taken by our Bailiffs. Nor We, nor our Bailiffs, nor any other, shall take any man’s Wood for our Castles, or other our necessaries to be done, but by the Licence of him whose the Wood is.1
| This Chapter consisteth of three branches, the first setteth down the auncient hire or allowance for the carriage for the King; the second setteth down, who are exempted from that carriage; the third, concerning purveyance of wood.
For the first, the carriage must be taken for the King, and Queen only, and for no other, implied in these words, Nullus Vicecomes vel balivus noster,2 and this is explained by divers other Statutes, and by our Books.3
The hire or allowance is certainly expressed, as aunciently due, Reddat liberationem antiquitus statutam;4 So as this also is declaratory of the auncient Law, and the hire or allowance ought to be paid in hand, for the Statute saith, Nullus capiat, &c. nisi reddat, &c.5
And this liberatio antiquitus statuta,6 is, (as it appeareth by this Act) per diem, by the day.
Aver-penny,7 and averagium,8 are words common in auncient Charters, and signifie to be free from the Kings carriages, cum averiis,9 and this is meant where it is said, Aver-penny, hoc est, quietum esse de diversis denariispro * averagiis Domini Regis.10
For the second branch: No demean, or proper Cart for the necessary use of any Ecclesiasticall person, or of any Knight, or of any Lord, for or about the demean Lands of any of them, ought to be taken for the Kings carriage, but they are exempted by the auncient Law of England from any such carriage.11
This Statute extendeth not to any person Ecclesiasticall, of what estate, order, or degree soever: and this was an auncient priviledge belonging to holy Church.
Also it extendeth to all degrees, and orders of the lesser, and greater Nobility, or dignity, as of Knighthood, Dukes, Marquesses, Earles, Viscounts, and Barons, for albeit there were no Dukes, Marquesses, or Viscounts within England at the making of the Statute, yet this Statute doth extend to them, for they are all Domini,12 Lords of Parliament, and of the Barony of England; and this also was an ancient priviledge belonging to these orders and dignities: And all this concerning the Ecclesiasticall and temporall State was (amongst other things for the advancement and maintenance of that great peace-maker, and love-holder, hospitality) one of the auncient ornaments, and commendations of the Kingdome of England.
The third branch is, That neither the King, nor any of his Baylies, or Ministers, shall take the wood of any other, for the Kings Castles, or other necessaties to be done, but by the license of him whose wood it is.13 And all Statutes made against this branch (amongst others) before the Parliament of 42 E. 3. are repealed: And this branch, amongst others, hath (as hath been said) béen confirmed, and commanded to bee put in execution at 32. Sessions of Parliament. And so it was resolved by all the Judges of England, and Barons of the Exchequer, Mich. 2. Jac. Reg. upon mature deliberation; and that the Kings Purveyor could take no Timber, growing upon the inheritance of the Subject, because it was parcell of the inheritance, no more then the inheritance it selfe.14 Whereof the King, and Counsell being informed, the King by his Proclamation, by advice of his Counsell, under the great Seale, 23. Aprilis, anno 4. declared the Law to be in these words: First, when We were informed, that some inferiour Ministers had presumed to goe so farre beyond their commission, as they have adventured, not onely to take timber trees growing, which being | parcell of Our Subjects inheritance, was never intended by Us to be taken without the good will, and full consent of the owners, but have accustomed also to take greater quantities of provisions for Our house, and Stable, then ever came, or were needfull, to Our use, &c. As by the said proclamation bearing date 23. Aprilis anno 4. Jac. Reg. appeareth. And divers Purveyors were according to the said resolution of the Judges punished in the Starchamber, for purveying of Timber growing, without the consent of the Dooners.
Boscus is an ancient word used in the Law of England, for all manner of wood, and the Italian useth the word bosco in the same sense, and the French, boys, accordingly. Boscus is divided into two sorts, viz. high-wood, haut-boys, or timber, and Coppice wood (so called, because it is usually cut) or underwood. High-wood is properly called Saltus, Quia arbores ibi exiliunt in altum.15 It is called in Fleta,16maeremium.
The Common Law hath so admeasured the Prerogative of the King, as he cannot take, nor prejudice the inheritance of any, and (as hath been said) a man hath an inheritance in his woods.17
And see the Statute of Marlebridge.18 Anno 52. H. 3. Magna Charta in singulis teneatur, tam in hiis, quae ad regem pertinent, quam ad alios,19 and 31 other Statutes. So as all pretence of prerogative against Magna Charta is taken away.
See hereafter the exposition of the Statute De tallagio. Anno 34. E. 1. & de prisis, Anno 18 E. 2. vet. Magna Charta. fol. 125. 1 part.20
We will not hold the Lands of them that be convict of Felony but one year and one day, and then those Lands shall be delivered to the Lords of the Fee.
This appeareth by Glanvill,1 to be due to the King by his auncient Prerogative, for he saith, Sin autem de alio, quam de Rege tenuerit is, qui utlagatus est, vel de felonia convict. tunc quoque omnes res suae mobiles Regis erunt, terra quoq; per unum annum remanebit in manu Domini Regis, elapso autem anno, terra eadem ad rectum Dominum, scilicet ad ipsum, de cujus feod. est, revertetur, veruntamen cum domorum subversione, & arborum extirpatione.2
This Chapter of Magna Charta doth expresse that, which doth belong to the King, viz. the yeare, and the day, and omit the Waste, as not belonging to him, and this is notably explained by our auncient Books with an uniforme consent: Bracton treating of the yeare, and the day in this case due to the King, saith,3Sed quae sit causa, quare terra remanebit in manibus Domini Regis? Videtur quod talis est, quia revera, cum quis convictus fuerit de aliqua felonia, in potestate Domini Regis erit, prosternendi aedificia, extirpandi gardina, & arandi prata, & quoniam hujusmodi verterentur in grave damnum dominorum, pro communi utilitate provisum fuit,4quod hujusmodi aedificia, gardina, & prata remanerent, & quod Dominus Rex propter hoc haberet commoditatem totiusterrae illius per unum annum, & unum diem, & sic omnia cum integritate reverterentur in manus Dominorum capitalium, nunc autem petitur utrumque, s. finis pro termino, & similiter pro vasto, & non video rationem quare, &c.5
And Britton treating of this very matter, saith,6Lour biens mobles sont les nous, et lour heires disherit et voilons aver lour tenements de qui que unques sont tenus, le an, et le jour, issint que lour heritages, demourgent un an & un jour in nostre maine, | si que nous ne saisons estre perie les tenements, ne gaster les boys, ne arer les prees, sicome lensoloit saire in remembrance des selons attaints, &c.7
Fleta saith,8Si autem utlagati, vel alii convicti terram liberam habuerint, illa statim capienda est in manus Regis, & per unum annum, & unum diem tenend’, ad capitales Dominos post illum terminum reversura, & hoc habetur ex Statuto Magnae Chartae, quod tale est, nos non tenebimus terras illorum, qui convicti fuerint de felonia, nisi per unũ annũ, & unum diem, & tunc reddantur terrae illae Dominis feodorũ, causa verò talis termini Regis, quia in signum feloniae olim provisum fuit, quod aedificia talium prosternentur in terram, extirpentur gardina, ararentur prata, truncarentur bosci, & quoniam hujusmodi verterentur in grave damnum dominorum feodorum, pro communi utilitae provisum fuit, quod hujusmodi dura, & gravia cessarent & quod Rex propterea per annum & diem totius terrae commoditatem perciperet, secus autem, si terra non esset eschaeta Dominorum, post quem terminum Dominis proprietariis integre absque vasto vel destructione reverterentur.9
The Mirror speaking of this Chapter saith,10Le joint des terres aux selons tener per un an, est desusie, car p la ou le Roy ne duist aver que le gast de droit, ou sine, pur salver le sief de lestripment, preignont les Ministers le roy ambideux.11 Upon all which it appeareth, that the King originally was to have no benefit in this case, upon the attainder of felony, where the frée-land was holden of a Subject, but onely in detestation of the crime, Ut poena ad paucos, metus ad omnes perveniat,12 to prostrate the houses, to extirpe the gardens, to eradicate his woods, and to plow up the medows of the felon, for saving whereof, et pro bono publico,13 the Lords, of whom the Lands were holden, were contented to yeeld the lands to the King for a year, and a day, and therefore not only the Wast was justly omitted out of this Chapter of Magna Charta, but thereby it is enacted, that after the year and day, the land shall be rendred to the Lord of the fee, after which no Waste can be done.
And where the treatise of Prerogativa Regis, made in 17. Edw. 2. saith Et postquam Dominus Rex habuerit annum, diem, & vastum, tunc reddatur tenementum illud capitali Domino feodi illius, Nisi prius faciat finem pro anno, die, et vasto.14 Which is so to be expounded, that forasmuch, as it appeareth in the said old books, that the Officers, and Ministers, did demaund both for the Waste, and for the year, and day, that came in lieu thereof, therefore this Treatise names both, not that both were due, but that a reasonable fine might be paid for all that, which the King might lawfully claim. But if this act of 17. Edw. 2. be against this branch of Magna Charta, then is it repealed by the said Act of 42. Edw. 3. cap. 1.
Hereby it also appeareth, how necessary the reading of auncient Authors is for understanding of auncient Statutes. And out of these old Books, you may observe, that when any thing is given to the King in lieu, or satisfaction of an auncient right of his Crown, when once he is in possession of the new recompence, and the same in charge, his Officers and Ministers will many times demand the old also, which may turn to great prejudice, if it be not duly, and discreetly prevented.15
“We will not hold the Lands.”
If there be Lord, Mesne, and Tenant, and the Mesne is attainted of felony, the Lord Paramount shall have the Mesnalty presently. For this prerogative belonging to the King extend onely to the Land, which might be wasted, in lieu whereof the yeare and day was granted.
And this is to be understood when a Tenant in fee-simple is attainted, for when Tenant in taile, or Tenant for life is attainted, there the King shall have the profits of the Lands, during the life of Tenant in taile, or of the Tenant for life.
| “of Felony.”
Must be understood of all manner of Felonies punished by death, and not of petit larceny, which notwithstanding is felony.
All Wears from henceforth shall be utterly put down by Thames and Medway, and through all England, but only by the Sea-coasts.1
Rex, &c.2 Noveritis nos pro communi utilitate Civitatis nostrae London’ & totius Regni nostri concessisse, & firmiter praecepisse, ut omnes Kidelli qui sunt in Tamisia, vel Medeweia, ubicunque fuerint in Tamisia, vel in Medeweia amoveant’, & non de caetero Kidelli alicubi ponant’ in Tamisia, vel in Medeweya, super forisfactur’ decem libr’ sterlingorum: quietum etiam clamavimus omne id, quod custodes Turr’ nostrae London’ annuatim percipere solebant de praedictis Kidellis: Quare volumus & firmiter praecipimus, ne aliquis custos praefat’ turr’ aliquo tempore post hoc, aliquid exigat ab aliquo, nec aliquam demandam, aut gravamen, sive molestiam alicui inferat occasione praedictorum Kidellorum, satis enim nobis constat, & per fideles nostros sufficienter nobis datum est intelligi, quod maximum detrimentum, & incommodum praedictae Civitati London’, nec non & toto Regno nostro occasione praedictorum Kidellorum perveniebat; quod ut firmum, & stabile perseveret imperpetuum, praesentis paginae inscriptione & sigilli nostri appositione communimus, sicut carta Domini Regis Johannis Patrisnostriquam Baronesnostri London’ inde habent rationabilit’ testat’.3
Kidels is a proper word for open weares whereby fish are caught.4
And it appeareth by Glanvill,7 that this pourpresture was forbidden by the Common Law, for he saith, Dicitur autem purprestura, vel porprestura proprie, quando aliquid super Dominum Regem injuste occupatur, ut in dominicis Regis, vel in viis publicis obstructis, vel in aquis publicis transversis à recto cursu, vel quando aliquis in Civitate super Regiam plateam aliquid aedificando occupaverit, & generaliter quoties aliquid sit ad nocumentum Regii tenementi, vel Regiae viae, vel Civitatis,8 and every publique River or streame, is alta Regia via,9 the Kings high-way.
Pourpresture commeth of the French word pourprise, which signifie thaclose, or inclosure, that is, when one encroacheth, or makes that severall to himselfe, which ought to be common to many.
| The Writ that is called Praecipe [in capite] shall be from henceforth granted to no person of any Freehold, whereby any Freeman may lose his Court.1
This is for reformation of an abuse, and wrong offered to the Lord, of whom the land was holden, and yet upon this Statute, the tenant cannot pleade, that the lands are not holden of the King in chiefe, for two causes, first for that this Act was made for the benefit of the Lord, of whom this land is holden, and he cannot pleade it, because he is an estrang’, and if one claiming to be Lord should be admitted, another might come in and pretend the like, and so infinite. Secondly, this Act extends to the Chancery, for the words be Breve &c. non fiat,2 so in that Court the Writ is made: and therefore when the Writ is granted in the Chancery, and returned into the Court of Common pleas, that which is by this Act prohibited in the Chancery, extendeth not to the Court of Common pleas; and therefore they cannot admit of such a plea; now the tenant, least he be concluded, must take the tenure by protestation, and the King, though he be not party to the Record, yet shall he take advantage of the Estoppel, for he is ever present in Court.3
And since this Statute no man ought to have this Writ out of the Chancery upon a suggestion, but oath must be made, before the granting thereof, that the land is holden of the King in Capite.4
See Mich. 4. E. 1. de banco Rot. 114. Norff. Barth. de Redhams case, pro terris in curia comitis warren apud Castleacre, notabile recordum super hoc Statutum. Per breve praecipitur Justiciariis quod inquirant, si terrae tenentur de Rege in Capite.5 ,6 See the Writ in the Register. 4. b. by which Writ power is given to the Justices, that if it may appeare to them, that the land is not holden in Capite, then that the plea be holden in the Lords Court, according to this Statute. And for that the demandant Peter Grellye, confessed that the lands were not holden of the King in Capite, but of Edmond brother of the King, thereupon the entrie was, Ideo Petrus perquirat sibi per breve de recto pat’ in curia ipsius Ed. versus R. si voluerit.7 Mich. 14. E. 1. Rot. 48. Som. acc. Regist. fo. 4.b. & 6.a.
And the Lord, of whom the land is holden, shall upon this Statute, have his Writ of disceit against the Demandant, which have recovered by default, and recover his damages, but the Record of the judgement shall stand in force;8 and concerning the conclusion of the tenure, the Lord shall have remedy against the King by petitions of right. But if the recovery be given upon triall against the tenant, then the tenant hath concluded himself for the tenure, because his protestation cannot availe him, when his plea is found against him: But the Lord may have in that case; his action against the tenant, and his petition of right to the King, to be restored to his Seigniorie, and by that meanes the tenant himselfe may be relieved.9
Breve quidem cum sit formatum ad similitudinem regulae juris, quia breviter & paucis verbis intentionem proferent is exponit & explanat, sicut regula juris rem quae est breviter enarrat.12
There is a great diversity betweene a Writ, and an Action, (although by | some they are often confounded) which will best appeare by their severall definitions.
Actio nihil aliud est, quam jus prosequendi in judicio quod alicui debetur.15
And with Bracton agreeth Fleta.16
Actio nihil aliud est, quam jus prosequendi in judicio quod alicui debetur, & quod nascitur ex maleficio, vel quod provenit ex delicto, vel injuria.17
So as the first diversity between an Action, and a Writ is, that an Action is the right of a suite, and the Writ is grounded thereupon, and the meane to bring the demandant or pl’ to his right.
The second diversity, a Writ grounded upon right of Action is ever in soro contentioso,20 but so are not all Writs, for that Writs are much more large, then Actions are, as shall appeare by the division of Writs.
Of Writs grounded upon rights of Action, some be criminall, and some be civill or common.21
Of Criminall, some be in personam,22 to have judgement of death, as Writs of appeale, of death, robberie, rape, &c. and some to have judgement of dammage to the partie, fine to the King, and imprisonment, as Writs of Appeale of Mayhem &c.
Of Writs Civill or Common, some be reall, some personall, and some mixt. And of these, some be originall, and all they goe out of the Chancery, and some judiciall, and they issue out of the Court, where the plea depended. Some Conditionall, as Writs of Error, redisseisin, &c.23 some without Condition, some retornable, and some not retornable. And all these are warranted, either by the Common Law, or grounded upon some Actof Parliament.Which are so well knowne, as this little touch shall suffice.24
Regularly the Kings Writs are, ex debito Justitiae,29 to be granted to the subject, which cannot be denied, and some be ex gratia,30 as supersededa31 speciall liberties, and b32 Writs of Protections for the safegard of the Subject, being in the Kings warre out of the Realme.
In nature of Commissions; as Writs of Error, of Oier, and Terminer, of election of Knights and Burgesses of the Parliament, of election of a Coroner, or of discharging of him, of selection of Verderers, 33De ventre inspiciendo.34d35De viis & venellis mundandis,36 Regist. 267. Of the surety of the good behaviour, or of the peace. e37De odio & atia.38 Association, of de admittendo in socium,39 of Si non omnes,40 and the like. Writs of Justicies.
Of Writs of Praecipe,41 some be, quod reddat,42 as Writs of right &c. debt, &c. Some be quod permittat,43 as Writs De quod permittat. Some be quod faciat,44 as de consuetudinibus & servitiis. De domo reparanda.45 And of Writs of Praecipe, some containe severall precepts, and some joynt, and some are sole.
Writs Mandatory, and extrajudiciall, whereof some be affirmative, andsome negative. Affirmative, as calling of men to the upper house of Parliament to be Peers of the Realme. De Comitat’ commissis.46 Regist. 295. Of Conge de eslier,47 licence to choose a Bishop. Regist. 294. b.De regio assensu.48 Regist. ibid. To call one to be Chiefe Justice of England. To call apprentices of Law to be servants. De brevibus & Rot. deliberandis.49 Regist. 295.50De restitutione spiritualium.51 Regist. 294. b.52 Negative, as De non ponendis in assisis,&juratis. De securitate invenienda, quod se non divertat ad partes exteras sine licentia. De non residentia clerici Regis. De clerico infra sacros ordines constituto non eligendo in officium. Ne fines capias pro non pulchre placitando.53
Of Writs, some are for furtherance of Justice, and for outting of delayes, and to proceed. As the Writ De procedendo ad judicium,54 that the Justices shall not surcease to doe common right, for no commandement under the great Seale, | petit Seale, or message from the King. Or a55 if the Judges of themselves delay judgement, there lyeth also a procedendo ad judicium.56 Againe, there is a procedendo in loquela, & ad judicium57 after Aid of the King. A Writ de executione judicii.58
59 Some for advancement of Justice not to proceed.
c60 Regularly Writs are directed to the Sherifes, or Coroners, or but inspeciall cases to the partie, or others. To the partie, as Writs of prohibitions, Ne exeat regnum.61 To others, as to Judges Temporall, Ecclesiasticall, and Civill. To Serjeants at Armes. To the d62 party that hath the custody of an idiot. To the e63 Major, and Bayliffes, &c. ad amovendum eos ab officio, quousq; inquisitio foret de eorum gestu.64 ,f65Liberate thesaurario, & camerariis, thesaurario & baronibus.66
Note of Writs of right (whereof the praecipe in Capite67 is one) some be close, and some be patent.
Writs of right retornable into the Court of Common pleas be patent, and Writs directed into auncient Demesne, are close; and the reason wherefore in other Courts of the Lords, the Writs shall be patent, is, because there is a clause in those Writs, & nisi feceris, Vicecomes N. hoc faciat ne amplius clamorem audiamus pro defectu recti:68 which clause is not in the other Writs, and necessary it is that such Writs should be patent, that the Sherife might take notice thereof.
One Measure of Wine shall be through our Realm, and one Measure of Ale, and one Measure of Corn, that is to say, the Quarter of London; and one Breadth of dyed Cloth, Russets, and Haberjects, that is to say, Two Yards within the Lists. And it shall be of Weights as it is of Measures.
This Act concerning measures and weights, that there should be one measure and one weight through England, is grounded upon the Law of God.1Non habebis in sacculo diversa pondera, majus, & minus, non erit in domo tua modius major & minor, pondus habebis justum & verum, & modius aequalis erit tibi, ut multo vivas tempore super terram &c.2 And this hath often by authority of parliament been enacted, but never could be effected, so forcible is custome concerning multitudes, when it hath gotten an head, therefore good Lawes are timely to be executed, and not in the beginning to be neglected.
For Weights and Measures, there are good Lawes made before the Conquest:3In dimensione, & pondere nihil esto iniquum ab iniquitate vero deinceps quisq; temperet: Per commune concilium regni statuimus, quod habeant per univerum Regnum mensuras fidelissimas, & signata, & pondera fidelissima & signata, sicut boni praedecessores statuerunt.4
“one Breadth of dyed Cloth, &c.”
True it is that broade cloathes were made, though in small number, at the time, and long before this Statute, but in the beginning of the raigne of Edward 3.5 the same came to so great perfection, as in the 11. yeare of his raigne, all men were prohibited to bring in privillie, or apertly by himself, or any other, any clothes made in any other places, &c And this is the worthiest and richest commoditie of this Kingdome, for divide our native commodities exported into tenne parts, and that which comes from the sheepes back, is nine parts in value of the tenne, and setteth | great numbers of people on worke. For the breadth, and length of Clothes, see many Statutes made after this Act.
Nothing from henceforth shall be given for a Writ of Inquisition, nor taken of him that prayeth Inquisition of Life or of Member, but it shall be granted freely, and not denied.
“a Writ of Inquisition.”
That is the Writ de odio & atia,1 anciently called Breve de bono & malo,2 and here, of life, and member, which the Common Law gave to a man, that was imprisoned, though it were for the most odious cause, for the death of a man, for the which, without the Kings Writ he could not be bayled, yet the Law favouring the liberty, and freedome of a man from imprisonment, and that he should not be detained in prison, untill the Justices in Eire should come, at what time he was to be tried, he might sue out this writ of inquisition directed to the Sherife,3quod assumptis tecum custodibus placitorum Coronae in pleno comitatu per sacramentum proborum, & legalium hominum de &c. inquiras (inde appellatur Breve inquisitionis) utrum A. captus, & detentus in prisona &c. pro morte W. unde rettatus (1. accusatus existit) rettatus sit odio, & atia &c. nisi indictatus vel appellatus appelatus suerit, coram Iustitiariis nostris ultimo itinerantibus in partibus illis, & pro hoc captus, & imprisonatus,4 For by the Common Law, in omnibus autem placitis de felonia, solet accusatus perplegios dimitti, praeterquam de placito de homicidio, ubi ad terrorem aliter statutum est.5 ,6 In this Writ, fower things are to be observed.
First, though the offence, whereof he was accused, were such, as he was not bayleable by Law, yet the Law did so highly hate the long imprisonment of any man, though accused of an odious, and heynous crime, that it gave him this Writ for his reliefe.
Secondly, If he were indited, or appealed thereof, before the Justices in Eyre, he could not have this Writ, because this Writ was grounded upon a surmise which could not be received against a matter of record.
Thirdly, Upon this Writ, though it were found, that he was accused de odio & atia, and that he was not guilty, or that he did this Act se defendendo, vel per infortunium,7 yet the Sherife by this Writ had no authority to bayle him, but then the party was to sue a Writ de ponendo in ballium,8 directed to the Sherife, whereby he was commanded,9quod si praedictus A. invenerit tibi 12. probos, & legales homines de comitatu tuo &c. qui eum manucapiant haberecoram Justiciariis nostris ad primam assisam. &c. Standum, &c. tunc ipsum A. &c. praedictis duodecim tradas in ballium.10
Lastly, that there was a meane by the Common Law, before inditement, or appeale, to protect the innocent against false accusation, and to deliver him out of prison.
Odium, signifieth, hatred, and atin or acia in this Writ signifieth malice, because that malice is acida, that is, eager, sharpe and cruell.
And this branch, for further benefit, and in favour of the prisoner, doth enact,11 that he shall have it gratis, without fee, and without delay, or deniall, of which the Mirror saith thus,12Le defence que se fait del breife de odio, & atia, que le Roy ne son Chancelor ne preignont pur le breife granter se doit extend a touts breifs remedials, & le dit breife ne doit solement extender a felonies de homicide, mes a touts felonies, & ne solem̃t in Appeles, mes en inditements.13
| But this writ was taken away by a later Statute, viz.in 28. Edw. 3.14 because as some pretended, it became unnecessary, for that Justices of Assise, Justices of Oyer Termimer, Justices of Gaole delivery came at the least into every County twice every year; but within 12. years after this Statute, itwasitenacted, as often hath been said, that all Statutes made against Magna Charta (as the said act of 28. Edw. 3. was) should be voyd, whereby the Writs of Odio & atia, & De ponendo in balium15 are revived, and so in like cases upon all the branches of Magna Charta. And therefore the Justices of Assise, Justices of Oyer & Terminer, and of Gaole delivery have not suffered the Prisoner to be long detained, but at their next comming have given the Prisoner full and speedy Justice by due triall, without detaining him long in Prison:16 Nay, they have been so farre from allowance of his detaining in Prison without due triall, that it was resolved in the case of the Abbot of S. Albon by the whole Court, that where the King had graunted to the Abbot of S. Albon, to have a Gaole, and so have a Gaole delivery, and divers persons were committed to that Gaole for felony, and because the Abbot would not be at cost to make deliverance, he detained them in prison long time without making lawfull deliverance, that the Abbot had for that cause forfeited his franchise, and that the same might bee feifed into the Kings hand.17
For his committing to prison is onely to this end, that he may be forth coming, to be duly tried, according to the Law and custome of the Realme.18 The Abbot of Crowland had a gaole, wherein divers men were imprisoned, and because he detained some that were acquited of felony after their fees paid, the King seised the goale for ever.
And it is provided by the Statute of 5. H. 4.19 that none be imprisoned by any Justice of Peace, but in the Common gaole, to the end they might have their triall at the next Gaole delivery, or Sessions of the peace. Vide cap. 29.
And some say, that this Statute extendeth to all other Judges, and Justices for two reasons. 1. They say, that this Act is but declaratory of the Common Law. 2. Ubi lex est specialis, & ratio ejus generalis, generaliter accipienda est.20
Breve Regis De bono & malo21 is so called of the words, De bono & malo, contained in the Writ. This Writ lay when A. B. was committed to prison for the death of a man, the King did write to the Justices of Gaole delivery;22Quod si A. B. captus, & detentus in gaola praedicta pro morte C.D. de bono & malo super patriam inde ponere voluerit, & ea occasione (& non per aliquod speciale mandatum nostrum) detentus sit in eadem, tunc eandem gaolam de praedicto A. B. secundum legem, & consuetudinem Angliae, deliberetis.23 So as without question the Writ De bono & malo, is not the Writ De odio & atia, as some have imagined.
Note, in those dayes the Justices of Gaole delivery would not proceed in case of the death of a man, without the Kings Writ: For in the same Record it appeareth, that R. W. Indictatus de morte W.E. non tulit breve Regis de bono, & malo, ideo retornatur gaolae, & sic de aliis.24
If any do hold of Us by Fee-ferm, or by Socage or Burgage, and he holdeth Lands of another by Knights Service, We will not have the Custody of his Heir, nor of his Land, which is holden of the Fee of another, by reason of that Fee ferm, Socage, or Burgage; neither will We have the | Custody of such Fee-ferm, or Socage, or Burgage, except Knights Service be due unto Us out of the same Fee-ferm. We will not have the Custody of the Heir, or of any Land by occasion of any Petit Serjeanty, that any man holdeth of Us by Service to pay a knife, an arrow, or the like.
Feé farme properly taken is, when the Lord upon the creation of the Tenancy reserve to himselfe, and his heires, either the rent, for the which it was before letten to farme, or at least a fourth part of that farme rent.
But Britton saith,2Fee farmes font terrestenus in fee, a rendre pur eux per annle veray value. ou plus, ou meins,3 and is called a fee farme, because a farme rent is reserved upon a graunt in fee. And regularly, as it appeareth by this act, lands granted in fee farme are holden in socage, unlesse an expresse tenure by Knights service be reserved, as it appeareth hereafter in this Chapter.
“or by Socage.”4
*5Tenere per firmam Albam est tenere libere in socagio. Vide in libro nigro Scaccarii, capite De officio clericorum de firma blanca.6 It is commonly called blanch Farme. Lucubrat̄ Ockham, firma blanca, & vide ibi antiquum verbum [dealbari.]7
See the Custumier de Normandie cap.32. and the Commentariesuponthesame.
“by Knights Service,”9
See le Custumier de Norman. cap. 33. De gard de Orphelines,10 fol. 49. and the Comment upon the same.
This Act, as well concerning tenures in fee farme, socage, and burgage, as by little serjanty, is declaratory of the Common Law,11 and constantly in use to this day, and needeth no further explanation.
No Bailiff from henceforth shall put any man to his open Law, nor to an Oath, upon his own bare saying, without faithful Witnesses brought in for the same.
The Mirror treating of this Chapter saith,1Le point que defend, que nul Bayliffe met frank home a serement sans sute present, est interpretable en cest manner, Que nul Justice, nul Minister le Roy, ne auter seneschall, ne bailif ne eit power a mitter frank home a serement faire, sans le Commaundement le Roy, ne puit resceive aucun testmoignes, que testmoignent le monstrance estre veray.2
By this it appeareth, that under this word balivus, in this Act is comprehended every Justice, Minister of the King, Steward and Bayliffe.3
“his own bare saying,”
For as Bracton saith, Vox simplex nec probationem facit, nec praesumptionem inducit; Item non per sectam, quae fieri | potest per domesticos, & familiares, secta enim probationem non facit, sed levem inducit praesumptionem, & vincitur per probationem in contrarium, & per defensionem per legem.4
It appeareth by Glanvill,5 that the defendant ought to make his Law, 12. manu. And so it appeareth by a judgement in the same yeare, and term, that this great Charter was made, for there, in debt the defendant waged his Law,6Ideo consideratum est per Curiam, quod defendens se duodecima manu venit cum lege.7
Every wager of Law doth counterbaile a Jury,8 for the defendant shall make his Law, de duodecima manu,9 viz. an eleven, and himself. And it should seeme, that this making of Law was very auncient, for one writing of the auncient Law of England saith, Hujus purgationis non omnis evanuit vetustate memoria, nam per haec tempora de pecunia postulatus, debitum nonnunquam duodecima, quod aiunt, manu dissolvit.10
How much, and for what cause the Law respecteth the number of 12. see the first part of the Institutes.11
To make his Law, is as much as to say, as to take his oath, &c. and it is so called, because the Law giveth him that meane by his owne oath, to free himselfe.
And the reason, wherefore in an action of Debt upon a simple contract, the Defendent may wage his Law, is, for that the Defendant may satisfie the party in secret, or before witnesse, and all the witnesses may die, so the Law doth allow him to wage his Law for his discharge: and this, for ought I could ever reade, is paculiar to the Law of England, and no mischiefe insueth hereupon, for the Plaintiffe may take a Bill or Bond for his money, or if it be a simple contract, he may bring his action upon his case upon his agreement or promise, which every contract executory implieth, and then the Defendant cannot wage his Law.
No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.1
“No Free, &c.”
This extends to Villeins, saving against their Lord, for they are free against all men, saving against their Lord. See the first part of the Institutes, sect. 189.
Albeit homo doth extend to both sexes, men and women, yet by Act of Parliament it is enacted, and declared, that this Chapter should extend to Duchesses, Countesses, and Baronesses, but Marchionesses, and Vicountesses are omitted, but not withstanding they are also comprehended within this Chapter.2
| Upon this Chapter, as out of a roote, many fruitfull branches of the Law of England have sprung.
And therefore first the genuine sense hereof is to be seene, and after how the same hath been declared, and interpreted. For the first, for more perspicuity, it is necessary to divide this Chapter into severall branches, according to the true construction and reference of the words.
This Chapter containeth nine severall branches.
1. That no man be taken or imprisoned, but per legem terrae,3 that is, by the Common Law, Statute Law, or Custome of England;4 for these words, Per legem terrae, being towards the end of this Chapter, doe referre to all the precedent matters in this Chapter, and this hath the first place, because the liberty of a mans person is more precious to him, then all the rest that follow, and therefore it is great reason, that he should by Law be relieved therein, if he be wronged, as hereafter shall be shewed.
2. No man shall be disseised, that is, put out of seison, or dispossessed of his free-hold (that is) lands, or livelihood, or of his liberties, or free customes, that is, of such franchises, and freedomes, and free customes, as belong to him by his free birth-right, unlesse it be by the lawfull judgement, that is, verdict of his equals (that is, of men of his own condition) or by the Law of the Land (that is, to speak it once for all) by the due course, and processe of Law.
3. No man shall be out-lawed, made an exlex,5 put out of the Law, that is, deprived of the benefit of the Law, unlesse he be out-lawed according to the Law of the Land.
4. No man shall be exiled, or banished out of his Country, that is, Nemo perdet patriam, no man shall lose his Country, unlesse he be exiled according to the Law of the Land.
5. No man shall be in any sort destroyed (Destruere. i. quod prius structum, & factum fuit, penitus evertere & diruere)6 unlesse it be by the verdict of his equals, or according to the Law of the Land.
6. No man shall be condemned at the Kings suite, either before the King in his Bench, where the Pleas are Coram Rege,7 (and so are the words, Nec super eum ibimus,8 to be understood) nor before any other Commissioner, or Judge whatsoever, and so are the words, Nec super eum mittemus,9 to be understood, but by the judgement of his Peers, that is, equalls, or according to the Law of the Land.
7. We shall sell to no man Justice or Right.
8. We shall deny to no man Justice or Right.
9. We shall defer to no man Justice or Right.
The genuine sense being distinctly understood, we shall proceed in order to unfold how the same have been declared, and interpreted. 1. By authority of Parliament. 2. By our books. 3. By precedent.
“No Freeman shall be taken, or imprisoned.”
Attached and arrested are comprehended herein.
1. No man shall be taken, (that is) restrained of liberty, by petition, or suggestion to the King, or to his Councell,*10 unlesse it be by indictment, or presentment of good, and lawfull men, where such deeds be done.Thisbranch, and divers other parts of this Act have been notably explained by divers superseded a.11 Acts of Parliament, &c. quoted in the margent.
2. No man shall be desseised, &c.
b.12 Hereby is intended, that lands, tenements, goods, and chattells shall not be seised into the Kings hands, contrary to this great Charter, and the Law of the Land; Nor any man shall be disseised of his lands, or tenements, or dispossessed of his goods, or Chattels, contrary to the Law of the Land.
c.13 A custome was alledged in the town of C. that if the Tenant cease by two years, that the Lord should enter into the freehold of the Tenant, and hold the same untill he were satisfied of the arrerages, and it was adjudged a custome | against the Law of the Land, to enter into a mans freehold in that case without action or answer.
King H. 6. graunted to the Corporation of Diers within London, power to search, &c., and if they found any cloth died with Logwood,14 that the cloth should be forfeit:15 and it was adjudged, that this Charter concerning the forfeiture, was against the Law of the Land, and this Statute: For no forfeiture can grow by Letters Patents.
No man ought to be put from his livelihood without answer.
3. No man outlawed, that is, barred to have the benefit of the Law. Vide for the word, the first part of the Institutes.16
“of his . . . Liberties.”
This word, libertates, liberties, hath three significations:
1. First, as it hath been said, it signifieth the Laws of the Realme, in which respect this Charter is called, Charta libertatum.
2. It signifieth the freedomes, that the Subjects of England have;19 for example, the Company of the Merchant Tailors of England, having power by their Charter to make ordinances, made an ordinance, that every brother of the same Society should put the one half of his clothes to be dressed by some Clothworker free of the same Company, upon pain to forfeit r. s. &c. and it was adjudged that this ordinance was against Law, because it was against the Liberty of the Subject, for every Subject hath freedome to put his clothes to be dressed by whom he will, & sic de similibus:20 And so it is, if such or the like graunt had been made by his Letters Patents.
3. Liberties signifieth the franchises, and priviledges, which the Subjects have of the gift of the King, as the goods, and Chattels of felons, outlawes, and the like, or which the Subject claim by prescription, as wreck, waife, straie, and the like.
So likewise, and for the same reason, if a graunt be made to any man, to have the sole making of Cards, or the sole dealing with any other trade, that graunt is against the liberty, and freedome of the Subject, that before did, or lawfully might have used that trade, and consequently against this great Charter.21
Generally all monopolies are against this great Charter, because they are against the liberty and freedome of the Subject, and against the Law of the Land.
Of Customes of the Realme, some be generall, and some particular, of these reade in the first part of the Institutes. And liberties added, for that the Customes of England bring a freedome with them.
4. No man exiled.
By the Law of the Land no man can be exiled, or banished out of his native Countrey, but either by authority of Parliament, or in case of abjuration for felony by the Common Law:22 and so when our books, or any Record speak of exile, or banishment, other then in case of abjuration; it is to be intended to be done by authority of Parliament:*23 as Belknap and other Judges, &c, banished into Ireland.
This is a beneficially Law, and is construed benignly and therefore the King cannot send any Subject of England against his will to serve him out of this Realme, for that should be an exile, and he should perdere patriam:24 no, he cannot be sent against his will into Ireland, to serve the King as his Deputy there, because it is out of the Realme of England: for if the King might send him out of this Realme to any place, then under pretence of service, as Ambassadour, or the like, he might send him into the furthest part of the world, which being an exile, is prohibited by this Act. And albeit it was accorded in the Upper house of Parliament, Anno 6. Edw. 3. nu. 6. that such learned men in the Law, as should | bee sent, as Justices, or otherwise, to serve in Ireland, should have no excuse yet that being no Act of Parliament, it did not binde the Subject. And this notably appeared by a Record, in 44. Edw. 3.25 Sir Richard Pembrughs Case, who was Warden of the Cinque Posts, and had divers offices, annuities, and lands graunted to him for life, or in fee by the King under the great Seale, Pro servitio impenso, & impendendo,26 The King commanded Sir Richard to serve him in Ireland, as his Deputy there, which he absolutely refused, whereupon the King by advice of his Councell, seised all things graunted to him, pro servitio impendendo, (in respect of that clause) but he was not upon that resolution committed to prison, as by that Record it appeareth: And the reason was because his refusall was lawfull, and if the refusall was lawfull to serve in Ireland parcell of the Kings Dominions, à fortiori,27 a refusall is lawfull to serve in any forein Country. And it seemeth to me, that the said seisure was unlawfull, for pro servitio impenso & impendendo, must be intended lawfull service within the Realme.
5. No man destroyed, &c.
That is, fore-judged of life, or limbe, disherited, or put to torture, or death.28
The Mirror writing of the auncient Laws of England, saith,29Soloient les Roys faire droit a touts, pereux, ou per lour Chiefe Justices, et ore les faits les Royes per lour Justices Comissaries errants assignes a touts pleas: En aid de tiels eires font Tornes de Viscounts necessaries, & views de frankpl. & quant que bones gents a tiels inquesls inditerent de peche mortel, soloient les Royes destruere sans respons, &c. Accord est, que nul appelee, ne enditee soit destroy sans respons.30
Thomas Earle of Lancaster was destroyed, that is, adjudged to die, as a Traitor, and put to death in 14. Edw. 2. and a Record thereof made: And Henry Earle of Lancaster his brother, and heire was restored for two principall errors in the proceeding against the said Thomas Earle,31 1. Quod non fuit araniatus, & ad responsionem positus tempore pacis eo quod cancellaria, & aliae curiae Regis fuer’ apertae, in quibus lex fiebat unicuique, prout fieri consuevit. 2. Quod contra cartam de libertatibus, cum dictus Thomas fuit unus parium, & magnatum Regni, in qua continetur.32 (and reciteth this Chapter of Magna Charta, and specially, quod Dominus Rex non super eum ibit, nec mitter, nisi per legale judicium parium suorum, tamen per recordum praedictum, tempore pacis absq; aranamento, seu responsione, seu legali judicio parium suorum, contra legem, & contra tenorem Magnae Chartae).33 he was put to death: More examples of this kinde might be shewed.
Regula.Every oppression against Law, by colour of any usurped authority, is a kinde of destruction, for, Quando aliquid prohibetur, prohibetur & omne, per quod devenitur ad illud:34 And it is the worst oppression, that is done by colour of Justice.35
It is to be noted, that to this Verb destruatur,36 are added aliquo modo,37 and to no other Verb in this Chapter, and therefore all things, by any manner of meanes tending to destruction, are prohibited: As if a man be accused, or indicted of treason, or felony, his lands, or goods cannot be graunted to any, no not so much as by promise, nor any of his lands, or goods seised into the Kings hands, before attainder: For when a Subject obtaineth a promise of the forfeiture, many times undue meanes and more violent prosecution is used for private lucre, tending to destruction, then the quiet and just proceeding of Law would permit, and the party ought to live of his own untill attainder.38
“by . . . judgement of his Peers.”39
By judgement of his Peers, Onely a Lord of Parliament of England shall be tried by his Peers being Lords of Parliament: and neither Noblemen of any other Country, nor others that are called Lords, and are no Lords of Parliament are accounted Pares, Peers within this Statute. Who shall be said Pares, Peeres, or Equalls, see before Cap. 14. § per Pares.
Here note, as is before said, that this is to be understood of the Kings sute | for the words be, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum.40 ,41 Therefore, for example, if a Noble man be indicted for murder, he shall be tried by his Peeres, but if an appeale be brought against him, which is the suite of the party, there he shall not be tried by his Peeres, but by an ordinary jury of twelve men: and that for two reasons. First, for that the appeale cannot be brought before the Lord high Steward of England, who is the only Judge of Noblemen, in case of Treason, or Felony. Secondly, this Statute extendeth only to the Kings suite.
And it extendeth to the Kings suite in case of treason, or felony, or of misprision of treason, or felony, or being accessary to felony before, or after, and not to any other inferior offence. Also it extendeth to the triall it selfe, whereby he is to be convicted: but a Nobleman is to be indicted of treason, or felony, or of misprision, or being accessary to, in case of felony, by an inquest under the degree of Nobility: the number of the Noble men that are to be triers are, 12. or more.
And a Peer of the Realme may be indicted of treason, or felony, before commissioners of Oier & Terminer, or in the Kings bench, if the treason or felony be committed in the county where the Kings bench sit: he also may be indicted of murder, or manslaughter, before the Coroner, &c. But if he be indicted in the Kings bench, or the indictment removed thither, the Noble man may plead his pardon there before the Judges of the Kings bench, and they have power to allow it, but he cannot confesse the indictment, or plead not guilty before the Judges of the Kings bench, but before the Lord Steward;42 and the reason of this diversity, that the triall or judgement must be before or by the Lord Steward, but the allowance of the pardon may be by the Kings bench, is because that is not within this Statute.
If a Noble man be indicted, and cannot be found, process of Outlawrie shall be awarded against him per legem terrae,43 and he shall be Outlawed per judicium Coronatorum,44 but he shall be tried per judicium parium suorum,45 when he appeares and pleads to issue.46
“by lawful judgement”
By this word legale, amongst others, three things are implied, 1. That this manner of triall was by Law, before this Statute. 2. That their verdict must be legally given, wherein principally it is to be observed. 1. That the Lords ought to heare no evidence, but in the presence, and hearing of the prisoner. 2. After the Lords be gone together to consider of the evidence, they cannot send to the high Steward to aske the Judges any question of Law, but in the hearing of the prisoner, that he may heare, whether the case be rightly put, for de facto jus oritur;47 neither can the Lords, when they are gone together, send for the Judges to know any opinion in Law, but the high Steward ought to demand it in Court in the hearing of the prisoner. 3. When all the evidence is given by the Kings learned Councell, the high Steward cannot collect the evidence against the prisoner, or in any sort conferre with the Lords touching their evidence, in the absence of the prisoner, but he ought to be called to it; and all this is implied in this word, legale. And therefore it shall be necessary for all such prisoners, after evidence given against him, and before he depart from the Barre, to require Justice of the Lord Steward, and of the other Lords, that no question be demanded by the Lords, or speech or conference had by any with the Lords, but in open Court in his presence, and hearing, or else he shall not take any advantage thereof after verdict, and judgement given: but the handling thereof at large and of other things concerning this matter, belongs to another treatise, as before I have shewed, only this may suffice for the exposition of this Statute. See the 3. part of the Institutes, cap. Treason.48
And it is here called Judicium parium,49 and not veredictum,50 because the Noble men returned, and charged, are not sworne, but give their judgement upon their Honour, and ligeance to the King, for so are all the entries of record, separately beginning at the puisne51 Lord, and so ascending upward.
| And though of ancient time the Lords, and Peeres of the Realme used in Parliament to give judgement,52 in case of treason and felony, against those, that were no Lords of Parliament, yet at the suite of the Lords it was enacted, that albeit the Lords and Peeres of the Realme, as judges of the Parliament, in the presence of the King, had taken upon them to give judgement, in case of treason and felony, of such as were no Peeres of the Realme, that hereafter no Peeres shall be driven to give judgement on any others, then on their Peeres according to the law.
This triall by Peeres was very auncient, for I reade, that William the Conqueror, in the beginning of his raigne,53 created William Fitzosberne (who was Earle of Bretevil in Normandy) Earle of Hereford in England, his sonne Roger succeeded him, and was Earle of Hereford, who under colour of his sisters mariage at Erninge, neare Newmarket in Cambridge shire, whereat many of the Nobility, and others were assembled, conspired with them to receive the Danes into England, and to depose William the Conqueror, (who then was in Normandy) from his Kingdome of England: and to bring the same to effect, he with others rose. This treason was revealed by one of the conspirators, viz. Walter Earle of Huntingdon an English man, sonne of that great Syward Earle of Northumberland: for which treason this Roger Earle of Hereford was apprehended, by Urse Tiptost then Sheriffe of Worcester shire, and after was tried by his Peeres, and found guilty of the treason per judicium Parium suorum,54 but he lived in prison all the daies of his life.55 You have heard in the exposition of the 14. Chapter, who are to be said Peeres, somewhat is necessary to be added thereunto, It is provided by the Statute of 20. H. 6.56 That Dutchesses, Countesses, and Baronesses, shall be tried by such Peeres as a Noble man, being a Peere of the Realme ought to be; which Act was made in declaration, and affirmance of the Common law: for Marquesses, and Vicountesses not named in the Act shall be also tried by their Peeres, and the Queene being the Kings consort, or dowager, shall also be tried, in case of treason, per Pares,57 as Queene Anne, the Wife of King Henry the eight was Termino Pasch. anno 28. Hen. 8.58 in the Towre of London before the Duke of Norff. then high Steward.
If a Woman that is Noble by birth, doth marry under the degree of Nobility, yet shee shall be tried by her Peeres, but if shee be noble by marriage, and marry under the degree of Nobility shee loseth her Dignity, for as by marriage it was gained, so by marriage it is lost, and shee shall not be tried by her Peers. If a Dutchesse by marriage doe marry a Baron, shee loseth not her dignity, for all degrees of Nobility, as hath been said, are Pares.59 If a Queene Dowager marry any of the Nobility, or under that degree, yet loseth shee not her Dignity, as Katherine Queene Dowager of England, married Owen ap Meredith ap Theodore Esquire, and yet shee by the name of Katherine Queene of England, maintained an Action of Detinew, against the Bishop of Carlile.
And the Queene of Navarra marrying with Edmund the brother of Edw. 1. sued for her Dower by the name of Queene of Navarra and recovered.60
“or by the Law of the Land.”
But by the Law of the Land. For the true sense and exposition of these words, see the Statute of 37. Edw. 3. cap. 8. where the words, by the law of the Land, are rendred, without due process of Law, for there it is said, though it be contained in the great Charter, that no man be taken, imprisoned, or put out of his free-hold without proces of the Law;61 that is, by indictment of presentment of good and lawfull men, where such deeds be done in due manner, or by writ originall of the Common law.
Without being brought in to answere but by due Proces of the Common law.
No man be put to answer without presentment before Justices, or thing of record, or by due proces, or by writ originall, according to the old law of the land.62
Wherein it is to be observed, that this Chapter is but declaratory of the old law of England. Rot. Parliament. 42. E. 3. nu. 22. 23. the case of Sir John a Lee, the Steward of the Kings house.
| “by the Law of the Land.”
i. Per legem Angliae,63 and hereupon all Commissions are grounded, wherein is this clause, facturi quod ad justitiam pertinet secundum legem, & consuetudinem Angliae, &c.64 And it is not said, legem & consuetudinem Regis Angliae,65 lest it might be thought to bind the King only, nor populi Angliae,66 lest it might be thought to bind them only, but that the law might extend to all, it is said per legem terrae, i. Angliae.67
And aptly it is said in this Act, per legem terrae, that is, by the Law of England:68 For into those places, where the law of England runneth not, other lawes are allowed in many cases, and not prohibited by this Act. For example: If any injury, robbery, felony, or other offence be done upon the high sea, Lex terrae69 extendeth not to it, therefore the Admirall hath conusance thereof, and may proceed, according to the marine law, by imprisonment of the body, and other proceedings, as have been allowed by the lawes of the Realme.
And so if two English men doe goe into a foreine Kingdome, and fight there, and the one murder the other, lex terrae extendeth not hereunto, but this offence shall be heard, and determined before the Constable, and Marshall, and such proceedings shall be there, by attaching of the body, and otherwise, as the Law, and custome of that court have beene allowed by the lawes of the Realme.70
Against this ancient, and fundamentall Law, and in the face thereof, I finde an Act of Parliament made,71 that as well Justices of Assise, as Justices of peace (without any finding or presentment by the verdict of twelve men) upon a bare information for the King tofore them made, should have full power, and authority by their discretions to heare, and determine all offences, and contempts committed, or done by any person, or persons against the forme, ordinance, and effect of any Statute made, and not repealed &c. By colour of which Act, making this fundamentall Law, it is not credible what horrible oppressions, and exactions, to the undoing of infinite numbers of people, were committed by Sir Richard Empson Knight, and Edm. Dudley being Justices of peace, throughout England; and upon this unjust and injurious Act (as commonly in like cases it falleth out) a new office was erected, and they made Matters of the Kings forfeitures.
But at the Parliament, holden in the first yeare of Hen. 8.72 this Act of 11. Hen. 7. is recited, and made voide, and repealed, and the reason thereof is yeelded, for that by force of the said Act, it was manifestly known, that many sinister, and crafty, feigned, and forged informations, had been pursued against divers of the Kings subjects, to their great dammage, and wrongfull vexation: And the ill successe hereof, and the fearefull ends of these two oppressors, should deterre others from committing the like, and should admonish Parliaments, that in stead of this ordinary, and pretious triall Per legem terrae, they bring not in absolute, and partiall trialls by discretion.
If one be suspected for any crime, be it treason, felony &c. And the party is to be examined upon certaine interrogatories, he may heare the interrogatories, and take a reasonable time to answer the same with deliberation (as there the time of deliberation was tenne houres) and the examinate, if he will, may put his answere in writing, and keepe a Copie thereof:73 and so it was resolved in Parliament by the Lords Spirituall, and Temporall in the case of Justice Riehill. See the Record at large.
And the Lord Carew being examined, for being privy to the plot, for the escape of Sir Walter Rawleigh attainted of treason, desired to have a copy of his examination, and had it, as Per legem terrae he ought.74
Now here it is to be knowne, in what cases a man by the Law of the land, may be taken, arrested, attached, or imprisoned in case of treason or felony, before presentment, indictment, &c. Wherein it is to be understood, that Process of law is two fold, viz. By the Kings Writ, or by due proceeding, and warrant, either in deed, or in law without Writ.
As first, where there is any witnesse against the offendor, he may be taken and arrested by lawfull warrant, and committed to prison.
| When treason and felony is committed, and the common same and voice is, that A. is guilty, it is lawfull for any man, that suspects him, to apprehend him.75
a76 This same Bracton describeth well, Fama quae suspicionem inducit, oriri debet apud bonos, & graves, non quidem malevolos, & maledicos, sid providas & fide dignas personas, non semel, sed saepius, quia clamor minuit, & defamatio manifestat.77
b78 So it is of Hue and Cry, and that is by the Statute of Winchester, which is but an affirmance of the Common Law: Likewise if A. be suspected, and be fleeth, or hideth himselfe, it is a good cause to arrest him.
c79 If treason or felony be done, and one hath just cause of suspition, this is a good cause, and warrant in Law, for him to arrest any man, but he must shew in certainty the cause of his suspition: and whether the suspition be just, or lawfull, shall be determined by the Justices in an action of false imprisonment brought by the party grieved, or upon a Habeas corpus, &c.80
A felony is done, and one is pursued upon Hue and Cry, that is not of ill fame, suspicious, unknown, nor indicted;81 he may be by a warrant in Law, attached and imprisoned by the Law of the Land.
A Watchman may arrest a night-walker by a warrant in Law.82
If a man woundeth another dangerously, any man may arrest him by a warrant in Law, untill it may be known, whether the party wounded shall die thereof, or no.83
If a man keep the company of a notorious thiefe, whereby he is suspected, &c. It is a good cause, and a warrant in Law to arrest him.84
If an affray be made to the breach of the Kings peace, any man may by a warrant in Law restrain any of the offenders, to the end the Kings peace may be kept, but after the affray ended, they cannot be arrested without an expresse warrant.85
See now the Statutes of 1. & 2. Phil. & Mar. cap. 13. & 2. & 3. Phil. & Mar. cap. 10.
Now seeing that no man can be taken, arrested, attached, or imprisoned but by due processe of Law, and according to the Law of the Land, these conclusions hereupon doe follow.
First, that a commitment by lawfull warrant, either in deed or in Law, is accounted in Law due processe or proceeding of Law, and by the Law of the Land, as well as by processe by force of the Kings Writ.
2. That he or they, which doe commit them, have lawfull authority.
3. That his warrant, or Mittimus86 be lawfull, and that must be in writing under his hand and seale.
4. The cause must be contained in the warrant, as for treason, felony, &c. or for suspition of treason or felony, &c. otherwise if the Mittimus contain no cause at all, if the Prisoner escape, it is no offence at all, whereas if the Mittimus contained the cause, the escape were treason, or felony, though he were not guilty of the offence; and therefore for the Kings benefit, and that the Prisoner may be the more safely kept, the Mittimus ought to contain the cause.
5. The Warrant or Mittimus containing a lawfull cause, ought to have a lawfull conclusion, viz. and him safely to keep, untill he be delivered by Law, &c. and not untill the party committing doth further order. And this doth evidently appeare by the Writs of Habeas corpus, both in the Kings Bench, and Common Pleas, Eschequer, and Chancery.87
Rex Vicecom̃ Londoñ salutem. Praecipimus vobis, quod corpus A.B. in custodia vestra detent̃, ut dicitur, una cum causa dertentionis suae, quocunq; nomine praed. A.B. censeatur in eisdem, habeatis coram nobis apud Westm̃ die Jovis prox’ post Octabis S. Martini, ad subjiciend’, & recipiend’ ea, quae curia nostra de eoadtunc, & ibidem ordinar̃ contigerit in hac parte, & hoc nullatenus omittatis, periculo incumbente, & habeatis ibi hoc breve, Teste Edw. Coke 20. Nov. anno Regni nostri 10.88
This is the usuall forme of the Writ of Habeas corpus in the Kings Bench, | Vide Mich. 5. Edw. 4. Rot. 143. Coram Rege, Kefars Case, under the Teste of Sir John Markham.
Rex Vicecom̃ Londoñ salutem. Praecipimus vobis, quod habeatis coram Justiciariis nostris, apud Westm̃ die Jovis prox’ post quinque septiman. Pasche, corpus A. B. quocunque nomine censeatur, in prisona vestra, sub custodia vestra detent̃, ut dicitur, una cum die, & causa captionis & detentionis ejusdem, ut iidem Justiciar̃ nostri, visa causa illa, ulterius fieri fac’, quod de jure, & secundum legem, & consuetudinem Regni nostri Angliae foret faciend’, & habeatis ibi hoc breve, Teste, & c.89 ,90
The like Writ is to be graunted out of the Chancery, either in the time of the Terme, (as in the Kings Bench) or in the Vacation; for the Court of Chancery is officina justitiae,91 and is ever open, and never adjourned, so as the Subject being wrongfully imprisoned, may have justice for the liberty of his person as well in the Vacation time, as in the Terme.92
By these Writs it manifestly appeareth, that no man ought to be imprisoned, but for some certain cause: and these words, Ad subjiciend’, & recipiend’, &c.93 prove that cause must be shewed: for otherwise how can the Court take order therein according to Law.
And this doth agree with that which is said in the holy History,94Sine ratione mihi videtur, mittere vinctum in carcerem, & causas ejus non significare.95 But since we wrote there things, and passed over to many other Acts of Parliament; see now the Petition of Right, Anno Tertio Caroli Regis,96 resolved in full Parliament by the King, the Lords Spirituall, and Temporall, and the Commons, which hath made an end of this question, if any were.
Imprisonment doth not onely exrtend to false imprisonment, and unjust, but for detaining of the Prisoner longer then he ought, where he was at the first law, fully imprisoned.
If the Kings Writ come to the Sheriffe, to deliver the Prisoner, if he detain him, this detaining is an imprisonment against the Law of the Land:97 If a man be in Prison, a warrant cannot be made to the Gaoler to deliver the Prisoner to the custody of any person unknown to the Gaoler, for two causes; first, for that thereby the Kings Writ of Habeas corpus, or delivery, might be prevented.98 2. The Mittimus ought to bee, as hath beene said, till hee bee delivered by Law.
If the Sheriffe, or Gaoler detain a Prisoner in the Gaole after his acquitall, unlesse it be for his fees, this is false imprisonment.
In many cases a man may be by the Law of the Land taken, and imprisoned, by force of the Kings Writ upon a suggestion made.
Against those that attempt to subvert, and enervate the Kings Lawes, there lieth a Writ to the Sheriffe in nature of a commission, Ad capiendum impugnatores juris Regis, & ad ducendum eos ad Gaolam de Newgate;99 ,100 which you may reade in the Register at large. Ubisupra. Andthisis lexterrae,101 by Processe of Law, to take a man without answer, or summons in this case: and the reason is, Merito beneficium legis amittit, qui legem ipsam subvertere intendit.102
If a Souldier after wages received, or prest money taken, both absenthimself, or depart from the Kings service;103 upon the certificate thereof of the Captain into the Chancery, there lieth a Writ to the Kings serjeants at Armes, if the party be vagrant, and hideth himself, Ad capiendum conductos prosiciscend’ in obsequium nostrum, &c. qui ad dictum obsequium nostrum venire non curaverint.104 And this is lex terrae, by processe of Law, pro defensione Regis, & Regni,105 or for the same cause, a Writ may be directed to the Sheriffe, De arrestando ipsum, qui pecuniam recepit ad proficiscendum in obsequium Regis, & non est profectus.106
If a man had entred into Religion, and was professed, and after he departed from his house, and became vagrant in the Country against the rules of his Religion, upon the Certificate of the Abbot, or Prior thereof into the Chancery, a Writ should be directed to the Sheriffe, De apostata capiendo,107 ,108 whereby he was | commanded in these words; Praecipimus tibi quod praefatum, &c. Sine dilatione arrestes, & praefat̃ Abbat̃, &c. liberes secundum regulam ordinis sui castigand’;109 And this was Lex terrae, by Processe of Law, in honerem religionis.110
If any lay men with force and strong hand, doe enter upon, or keep the possession either of the Church, or of any of the houses, or glebe, &c. belonging thereunto, the Incumbent upon certificate thereof of the Bishop, or without certificate upon his own surmise may have a Writ to the Sheriffe,111De vi laica amovenda,112 by which the Sheriffe is commanded in these words;113Pracipimus tibi quod omnem vim laicam seu armatam, quae se tenet in dicta Ecclesia, seu domibus eidem annexis, ad pacem nostram in Com̃ tuo perturband’, fine dilatione amoveas, & si quos in hac parte resistentes inveneris, eos per corpora sua attachias, & in prisona nostra salvo custodias, &c.114 and this is lex terrae, by Processe of Law, pro pace Ecclesiae.115
Also a Writ of Ne exeas Regnum116 may be awarded to the Sheriffe, or Justices of Peace, or to both, that a man of the Church shall not depart the Realme; the effect whereof is;117Quia datum est nobis intelligere, quod A.B. clericus versus partes exteras, ad quamplurima nobis, & quamplurima de populo nostro praejudicialia, & damnosa, ibidem prosequend’, transire proponit, &c. tibi praecipimus, quod praedict’ A.B. coram te corporaliter venire facias, & ipsum ad sufficientes manucaptores, inveniend’, &c. Et si hoc coram te facere recusaverit, tunc ipsum A.B. proximae gaolae committas salvo custodiend’, quousque hoc gratis facere voluerit.118 And there is another Writ in the Register directed to the party, either of the Clergy or Laity. And this is lex terrae, by Processe of Law, Pro bono publico Regis et Regni;119 Whereof you may reade more at large in the third part of the Institutes, Cap. Fugitives.
Upon a surmise that a man is a Leper, one that hath morbum elephantiacum,120 so called, because he hath a skin like to an Elephant, there may be a Writ directed to the Sheriffe,121Quia accepimus quod J. de N. leprosus existit, & inter homines Comitatus tui communiter conversatur, &c. ad grave damnum homin’ praed’, & propter contagionem morbi praed’ periculum manifestum, &c. tibi praecipimus quod assumptis tecum aliquibus discretis & legalibus hominibus de Comitat̃ praed’ non suspect’, &c. ad ipsum J. accedas, &c. & examines, &c. & si ipsum leprosum inveneris, ut praedict est, tunc ipsum honestiori modo, quo poteris a communione hominum praedict’ amoveri, & se ad locum solitarium ad habitand’ ibidem, prout moris est, transferre facias indilate, &c.122 And this is lex terrae, by Processe of Law, for saving of the people from contagion and infection.
But if any man by colour of any authority, where he hath not any in that particular case, arrest, or imprison any man, or cause him to be arrested, or imprisoned, this is against this Act, and it is most hatefull, when it is done by countenance of Justice.123
King Edw. 6. did incorporate the Town of S. Albons, and granted to them to make ordinances, &c.124 they made an ordinance upon paine of imprisonment, and it was adjudged to be against this Statute of Magna Charta; So it is, if such an ordinance had been contained in the patent it selfe.
A Commission was made under the great Seale to take J. N. (a notorious felon) and to seise his lands, and goods: This was resolved to be against the Law of the Land, unlesse he had been endicted, or appealed by the party, or by other due Processe of Law.127
It is enacted, if any man be arrested, or imprisoned against the forme of this great Charter, that he bee brought to his answer, and have right.
No man to be arrested, or imprisoned contrary to the forme of the great Charter.
See more of the severall Lawes allowed within this Land, in the first part of the Institutes Sect. 3.
The Philosophicall Poet doth notably describe the damnable, and dam-|-ned procedings of the Judge of hell,
And in another place,
First he punisheth, and then he heareth: and lastly, compelleth to confesse, and make and marre lawes at his pleasure; like as the Centurion in the holy history,131 did to S. Paul: For the text saith, Centurio apprehendi Paulum jussit, & se catenis ligari & tunc interrogabat, quis fuisset, & quid fecisset:132 but good Judges and Justices abhorre these courses.
Now it may be demanded, if a man be taken, or committed to prison contra legem terrae133 against the law of the land, what remedy hath the party grieved? To this it is answered: First, that every Act of Parliament made against any injury, mischiefe, or grievance doth either expresly, or impliedly give a remedy to the party wronged, or grieved, as in many of the Chapters of this great Charter appeareth; and therefore he may have an action grounded upon this great Charter. As taking one example for many, and that in a powerfull, and a late time. Pasch. 2. Hen. 8. coram Rege rot. 538. against the Prior of S. Oswin in Northumberland. And it is provided, and declared by the Statute of 36. Edw. 3.134 that any man feeleth himself grieved, contrary to any article in any Statute, he shall have present remedy in Chancery (that is, by originall Writ) by force of the said Articles and Statutes.
2. He may cause him to be indicted upon this Statute at the Kings suite, whereof you may see a Precedent Pasch. 3. Hen. 8. Rott. 71. coram Rege. Rob. Sheffields case.
3.a135 He may have an habeas corpus136 out of the Kings Bench or Chancery, though there be no priviledge &c. or in the Court of Common pleas, or Eschequer, for any officer or priviledged person there; upon which Writ the goaler must retourne, by whom he was committed, and the cause of his imprisonment, and if it appeareth that his imprisonment be just, and lawfull, he shall be remaunded to the former Gaoler, but if it shall appeare to the Court, that he was imprisoned against the law of the land, they ought by force of this Statute to deliver him: if it be doubtfull and under consideration, he may be bailed.
In 5. Edw. 4. coram Rege Rot. 143. John Keasars case, a notable record and too long here to be recited.
10. Eliz. Rot. Leas case.
In 1. & 2. Eliz. Dier. 175. Scrogs case.
In 18. Eliz. Dier. 175. Roland Hynds case in margine.
4. He may have an Action of false imprisonment 10. Hen. 7. fol. 17. but it is entered in the Court of Common pleas Mich. 11. Hen. 7. Rot. 327. Hilarie Warners case, and it appeareth by the Record, that Judgement was given for the plaintife: a Record worthy of observation.
Vide Marlebridge Cap. 8.
6.c139 He might by the Common law have had a Writ De odio, & atia,140 as you may see before. Cap. 26 but that was taken away by Statute, but now is revived againe by the Statute of 42. Edw. 3. cap. 1. as there it also appeareth. It is said ind141 W. 2. Sed ne hujusmodi appellati, vel indictati diu detineantur in prisona, habeat breve De odio & atia, sicut in Magna Charta, & aliis Statutis dict’ est:142 and by the said Act of 42. Edw. 3. all Statutes made against Magna Charta are repealed.
“We will sell to no man, &c.”
And therefore, every Subject of this Realme, for injury done to him in bonis, terris, vel persona,145 by any other Subject, be he Ecclesiasticall, or Temporall, | Free, or Bond, Man, or Woman, Old, or Young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the Law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay.
Hereby it appeareth, that Justice must have three qualities, it mustbe Libera, quia nihil iniquius venali Justitia; Plena, quia Justitia non debet claudicare; & Celeris, quia dilatio est quaedam negatio;146 and then it is both Justice and Right.
“We will not deny or defer, &c.”147
These words have beene excellently expounded by latter Acts of Parliament,147 that by no meanes common right, or Common law should be disturbed, or delayed, no, though it be commanded under the Great seale, or Privie seale, order, writ, letters, message, or commandement whatsoever, either from the King, or any other, and that the Justices shall proceede, as if no such Writs, letters, order, message, or other commandement were come to them.148Judicium redditum per defaltum affirmatur, non obstante breve Regis de progatione judicii.149
That the Common lawes of the Realme should by no meanes be delayed for the law is the surest sanctuary, that a man can take, and the strongest fortresse to protect the weakest of all; lex est tutissima cassis,150 and sub clypeo legis nemo decipitur:151 but the King may stay his owne suite, as a capias pro fine,152 for the King may respit his fine and the like.153
All protections that are not legall, which appeare not in the Register,154 nor warranted by our books, are expresly against this branch, nulli differemus:155 As a Protection under the Great seale granted to any man, directed to the Sherifes, &c. and commanding them, that they shall not arrest him, during a certaine time at any other mans suite, which hath words in it156per praerogativam nostram, quam nolumus esse arguendam;157 yetsuchprotectionshave beene argued by the Judges, according to their oath and duty, and adjudged to be void: As Mich. 11. Hen. 7. Rot. 124.158 a Protection graunted to Holmes a Vinter of London, his factors, servants and deputies, &c. resolved to be against Law. Pasch. 7. H. 8. Rot. 66.159 such a Protection disallowed, and the Sherife amerced for not executing the Writ. Mich. 13. & 14. Eliz. in Hitchcocks case,160 and many other of latter time: and there is a notable*161 Record of aucient time in 22. Edw. 1. John de Mershalls case, non pertinet ad vicecomitem de protectione Regis judicare, imo ad curiam.162
“Justice or Right.”
Wee shall not sell deny, or delay Justice and right. Justitiam vel rectum, neither the end, which is Justice, nor the meane, whereby we may attaine to the end, and that is the law.163
Rectum, right, is taken here for law, in the same sense that jus, often is so called. 1. Because it is the right line, whereby Justice distributative is guided, and directed, and therefore all the Commissions of Oier, and Terminer,164 of goale delivery, of the peace &c. have this clause, Facturi quod ad justitiam pertinet, secundum legem, and consuetudenem Angliae,165 that is, to doe Justice and Right, according to the rule of the law and custome of England; and that which is called common right in 2. Edw. 3. is called Common law, in 14. Edw. 3. &c. in this sense it is taken, where it is said, ita quod stet recto in curia, i. legi in curia.166 The law is called rectum,167 because it discovereth, that which is tort, crooked, or wrong, for as right signifieth law, so tort, crooked or wrong, signifieth injurie, and injuria est contra jus168 against right: recta linea est index sui, & obliqui,169 hereby the crooked cord of that, which is called discretion, appeareth to be unlawfull, unlesse you take it, as it ought to be, Discretio est discernere per legem, quid sit justum.170 3. It is called Right, because it is the best birth-right the Subject hath, for thereby his goods, lands, wife, children, his body, life, honor, and estimation are protected from injury, and wrong: major haereditas venit unicuiq; nostrum à jure, & legibus, quam à parentibus.171 ,172
4. Lastly, rectum is sometime taken for the right it selfe, that a man hath by | law to land: As when in so by there lieth Breve de recto,173 in so much that some old readers have supposed, that rectum in this Chapter, would be understood of a writ of right, for which at this day no fine in the hamper is paid. As the goldfiner will not out of the dust, threds, or shreds of gold, let passe the least crum, in respect of the excellency of the metall: so ought not the learned reader to let passe any syllable of this Law, in respect of the excellency of the matter.
All Merchants, if they were not openly prohibited before, shall have their safe and sure Conduct to depart out of England, to come into England, to tarry in, and go through England, as well by land as by water, to buy and sell without any manner of evil tolls by the old and rightful Customs, except in time of War; and if they be of a Land making War against Us, and be found in our Realm at the beginning of the Wars, they shall be attached without harm of body or goods, until it be known unto Us, or our Chief Justice, how our Merchants be entreated there in the Land making war against Us; and if our Merchants be well intreated there, theirs shall be likewise with Us.
This Chapter concerneth Merchant strangers.
First it is to be considered, what the ancient Lawes, before this Statute, were concerning this matter.
By the auncient Kings (amongst whom King Alfred was one)1defendu fuit que nul merchant Alien ne hantast Angleterre forsque aux 4 foires, ne que nul demurrast in a terre ouster 40. jours.2Mercatorũ navigia, vel inimicorum quidem, quaecunq; ex alto (nullis jactata tempestatibus) in portum aliquem invehentur, tranquilla pace fruantor; quin etiam si maris acta fluctibus ad domicilium aliquod illustre, ac pacis beneficio donatum navis appulerit inimica, atq; istuc nautae confugerint, ipsi & res illorum omnes augusta pace potiuntor.3 ,4
2. It is to be seene what this Statute hath provided.
1. That before this statute, merchant strangers might be publiquely prohibited, Publice prohibeantur.5 And this prohibition is intendable of Merchant strangers in amitie, for this Act provideth afterward for Merchant strangers enemies; and therefore the prohibition intended by this Act, must be by the common or publique Councell of the Realme, that is, by Act of Parliament, for that it concerneth the whole Realme, and is implyed by this word (publice.)
2. That all Merchant strangers in amity (except such as be so publiquely prohibited) shall have safe and sure conduct in 7. things. 1. To depart out of England. 2. To come into England. 3. To tarry here. 4. To goe in and through England, as well by land as by water. 5. To buy and to sell. 6. Without any manner of evill tolles. 7. By the old and rightfull customes.
Now touching Merchant strangers, whose Soveraigne is in warre with the King of England.
| There is an exception, and provision for such, as be found in the Realme at the beginning of the warre, they shall be attached with a priviledge, and limitation, viz. without harme of body, or goods, with this limitation, Untill it be knowne to us, or our chiefe Justice, (that is our guardien, or keeper of the Realme in our absence) how our Merchants there in the land in warre with us shall be intreated, and if our Merchants be well intreated there, theirs shall be likewise with us, and this is jus belli. Et in republica maxime conservanda sunt jura belli.6 ,7
But for such Merchant strangers as come into the Realme after the warre beginne, they may be dealt withall as open enemies; and yet of auncient time three men had priviledge granted them in time of warre. Clericus, Agricola, & Mercator, tempore belli, Ut oretq; colat, commutet, pace fruuntur.8
a9 The end of this Chapter was for advancement of trade, and traffique; the meanes for the well using, and intreating of Merchant strangers in all the particulars aforesaid, is a matter of great moment, as appeareth by many other Acts of Parliament, for as they be used here, so our Merchants shall be dealt withall in other Countries.
b10 Evill tolles.
This word tolnetum, and telonium, and theolonoium are all one, and doe signify in a generall sense, any manner of Custome, Subsidie, prestation Imposition, or summe of mony demanded for exporting, or importing of any wares, or merchandizes, to be taken of the buyer. In both these senses it is here taken of severall kinds of tolles: More shall be said hereof, in theexposition of the Statutes of W. 1. and W. 2. In the meane time see John Webbes case lib. 8. fol. 46.
c11 They are called mala tolneta,12 when the thing demanded for wares or merchandizes, doe so burden the commodity, as the merchant cannot have a convenient gain by trading therewith, and thereby the trade it selfe is lost or hindered. And in divers Statutes maletout for maletot, or maletout is a French word, and signifieth an unjust exaction.
Now this Act after it hath dealt privatively, sine omnibus malis tolnetis,13 it goeth on for more surety affirmatively.
“by the old and rightful Customs.”
That is, by auncient and right duties, due by auncient and lawfull custome, which hath been the auncient policy of the Realme to encourage merchant strangers, they have a speedy recovery for their debts and other duties, &c. Per legem Mercator;14 which is a part of the Common law.
This word consuetudo, hath in Law divers significations. 1. For the Common law, as consuetudo Angliae.15 2. For Statute law, as contra consuetudinem communi consilio regni edit.16 3. For particular customes, as Gavelkind, Borough English, and the like. 4. For rents services, &c. due to the Lord, as consuetudines & servitia.17 5. For customes, tributes, or impositions, as de novis consuetudinibus levatis in regno, sive in terra, sive in aqua.18 6. Subsidies, or customes graunted by common consent, that is, by authority of Parliament, pro bono publico,19 and these be antiquae, & rectae consuetudines,20 intended by this Act, this agreeth with that, which hath been said before in the end of the exposition upon the eight Chapter.21
Hereby it appeareth that the King cannot set any new impost upon the Merchant, and therefore this Act provideth not only affirmatively, viz. per antiquas, & rectas consuetudines,22 but privatively also, sine omnibus malis tolnetis,23 within which words new impositions are included, and are here called mala tol neta, as opposite to ancient and rightfull customes, or subsidies graunted by authority of Parliament.24
And where some have supposed, that there was a custome due to the King by the Common Law, as well of the Stranger, as of the English, called Antiqua custuma,25 viz. for wools wooll-fells and leather, that is to say, for every sack of wooll containing 26. stone, and every stone 14. pound, vi viii d. and for a last | of leather, xiii s. iiii. d. Certain it is, that those customes had their beginning by common consent by Act of Parliament, for King Edward the first by his Letters Patents reciteth,26Cum Praelati, Magnates, & tota communitas quandam novam consuetudinem nobis & haeredibus nostris de lanis, pellibus, & coriis, viz. de sacco lanae dimid’ Marc’, de 300. pellibus dimid’ Marc’, & de lasto corii xiii. s. iiii. d.&c.27 Herein foure things are to be observed. 1. That these customes had their creation by authority of Parliament, and were not by the Common Law, appearing by these words, Quandam novam consuetudinem,28 so as it was new, and not old. 2. That this new custome was graunted to King Edward the first proved by this word nobis.29 3. That it was graunted at the Parliament holden, Edw. 1. commonly called W. 1. (though the Record thereof cannot be found) for the said Patent bears date 10. Nov. Anno 3 Edw. 1. which was neare the ending of that yeare, and the Parliament was holden in Clauso Pasch. before. 4. That here consuetudo signifieth a custome, or Subsidie graunted by common consent by Parliament, and in that sense it is here taken, and likewise in the Statute of 51 Hen. 3. Statutum de Scaccario,30 for in 48 Hen. 3.31 Proclamation was made, Contra suggerentes, &c. Regem velle exigere tallagia inconsueta, & introducere extraneos.32
And herewith agreeth the Act of Parliament commonly called confirmationes cartarum,33 ,34 (which is but an explanation of this branch of Magna Charta) wherein it is enacted, that for no occasion any aide, tasks, or takings shall be taken by the King, or his heires, but by the common assent of the Realme, saving the auncient aides, and takings due and accustomed.
And whereas the most of the whole Comminalty of the Realme finde themselves hardly grieved of the maletont (or ill toll) of woolls, that is to say, of every, sack of wooll 40. s. and prayed the said King to release the same, thereupon the said King did release the same, and graunted further for him and his heires, that no such thing should be taken without their common assent, and their good will:35 and in that Act there is a saving, Sauve a nous, & nous heires la custume de laynes, pealx, & quiures avant grante per la Comminaltie avandit;36 So as this Act of Parliament proveth that the said custome of vi. s. viii. d. for wooll, and xiii. s. iiii. d. for leather was grannted by Parliament.
By the Statute De tallagio non concedendo,37 ,38 (which is but an explanation of this branch of the Statute of Magna Charta) it is provided: Nullum tallagium vel auxilium per nos vel haeredes nostros in Regno nostro ponatur, seu levetur sine voluntate & assensu Archiepiscoporum, Episcoporum, Comitum, Baronum, militum, burgensium, & aliorum liberorum Comit’ de Regno nostro;39 So as Edw.1. in conclusion added the effect of the clause concerning this matter, which in his exemplification he had omitted out of Magna Charta.
Upon grant to Merchant Strangers of divers priviledges, liberties, and immunities they graunted to the King and his heires,42De quoliber sacco lanae 40. d. de incremento ultra custumam antiquam dimid’ Marc’, quae prius fuerit persoluta & sic pro lasto coriorum dimid’ Marc’, & de trescentis pellibus lanatis 40. d. ultra certum illud, quod & antiqua custuma fuerit prius datum.43 Note here the Custome which was graunted 3 Edw. 1. is here called antiqua Custuma, and this new Custome to called nova Custuma, and sometime the one is called magna Custuma, and the other parva Custuma.44
2. Here it appeareth that Merchants Strangers paid the former Custome.
Moreover by that Charter, poundage of three pence upon the pound was graunted to the King, and his heires by the Merchant Strangers, Et de quolibet vini nomine Custumae duos solidos, &c.45 And this at this day is called Butlerage, and is paid onely by Merchant Strangers; but prisage is paid by the English onely, except the Citizens of London, and this is an auncient duty: for I finde it accounted for in the raigne of H. 3.46 by the Kings Butler, and is | called Certa prisa,47 which at the first was granted in lieu and satisfaction of purveyance for wines. And lastly, by that Charter it is graunted, Quod nullaexactio, prisa, vel praestatio, aut aliquod aliud onus super personas Mercatorum alienorum praedict’, seu bona eorundem aliquatenus imponatur contra formam expressam superius concessam:48 ,49 So as no imposition can be set without assent of Parliament upon any stranger.
It was ordered and resolved by divers Prelates, Earles, and Barons, by force of the Kings Commission, that no new customes could be levied, nor auncient increased, without authority of Parliament, for that should be against the great Charter.50 Anno 6. Edw. 2. Rot. Parliament, nu.4. that no tallage shall be assessed but in such manner as it hath been in time of his auncestors, and as it ought to be, and disannull all others.
In Anno 11. Edw. 3.51 it was made felony to carry wooll out of the Realme, the end whereof was, that our wool should bee draped into cloth. But the King wanting made this use of this Act: In the 12. and 13. years of his raigne he made dispensations of that Statute in consideration of money paid:52 but that Statute lived not long. In 13. Edw. 3. a great imposition was set upon woolls, and it is called a great wrong, Cum populus Regni nostri variis oneribus, tallagiis & impositionibus hactenus praegravetur, quod dolentes referimus,53 and there doth excuse himselfe.54
Note here is the word impositiones,55 first used, imposed by any King, in any Record that I have observed, and doe remember.
Anno 14. Edw. 3. cap. 21.56 A Subsidie graunted to the King of wooll, woolfells, and leather &c. by Parliament, for a certain time in respect of the warres, for which the King graunteth, that after that time, be nor his heires would take more then the old custome.
After this time ended, the King entred into a new device to get money, viz. that by agreement and consent of the Merchants, the King was to have 40.s. of a sack of wooll, &c. but hereof the Commons (that in troth were to beare the burden, for the Merchant will not be the loser) complained in Parliament, for that the graunt of the Merchants did not binde the Commons, and that the Custome might be taken according to the old order, which in the end was graunted, and that no graunt should be made but by Parliament.57
No charge shall be levied of the people, if it mere not graunted in Parliament.58
In 21. Edw. 3. by authority of Parliament, a Custome was graunted of cloth, for that the wooll was for the most part converted into cloth, which you may see in Orig. Scaccar. 24. Edw. 3. Rot. 13.59
By the Statute of 27. Edw. 3. cap. 4. in print,60 a Subsidie of every cloth to take of the seller (over the Customes thereof due, that is, such as then endured for a time, and were graunted by Parliament) that is to say, of every cloth of assise, wherein there is no grain, 4. d. &c.
And here it is worthy of observation, that there were two causes of the making of this Statute. 1. For that for cloth no custome was due other then by the Act of 21. Edw. 3. 2. For that wooll being converted to a manufacture, and made into cloth, the ancient custome of Dimid.61 mark for a sack of wool was not by Law payable, because the wooll was turned into another kinde, albeit the cloth was made of the wooll; And this doth notably appeare by the Records of the Exchequer, one of them in the same yeare that the Act of 27. Edw. 3. was made.
Ac jam magna pars lanae dicti Regni nostri eodem regno pannificetur, de qua custuma aliqua nobis non est soluta;62 And there it appeareth that that was the cause of giving to the King a Subside for cloth by the said Act of Parliament, of 27. Edw. 3.63 And yet if in any case the King by his prerogative might have set any imposition, hee might have set in that case, because, as it appeareth by the Record, by making of cloth hee lost the custome of wooll.64
| Rot. Parliam 45. Edw. 3.65 No imposition or charge, &c shall be set without assent of Parliament.
50. Edw. 3.66 Richard Lions, a Merchant of London punished for procuring new impositions, and so was the Lord Latimer, the kings Chamberlaine. And in the same Parliament, nu. 163.67 upon complaint that new impositions were set, the King in Parliament assentedthat the ancientcustomeshouldbeholden, and no new imposition set.
In the raigne of Edward the first68 the black Prince of Waleshaving Aquitaine granted to him, did lay an imposition of fuage or focage, à foco,69 upon the Subjects of that Dukedome, viz. a shilling for every fire called harth silver, which was of so great discontentment, and odious to them, as it made them to revolt.
And no King since this time imposed by pretext of any prerogative, any charge upon Marchandises imported into, or exported out of this Realme, until Queen Maries time. See the Statute of 11. Ric. 2. cap. 9. & Rot. Parliament. 8. Hen. 6. num. 29.70
And in 3. Hen. 5.71 the Subsidie of Tunnage and Poundage was graunted to King Hen. 5. during his life, in respect of the recovery of his right in France, (which was the first graunt for life of that kinde) yet therein was a proviso that the King should not make a graunt thereof of any person, nor that it should be any precedent for the like to be done to other Kings afterwards; but yet all the Kings after him have had it for life, so forcible is once a precedent fixed in the Crown, adde what proviso you will.
And this graunt by Parliament of the Subsidy of Tunnage and Poundage to the King is an argument, that the King taking it of the gift of the Subject, had no power to impose it himselfe.
The Lords and Commons cannot be charged with any thing for the defence of the Realme, for the safeguard of the Sea, &c. unlesse it be by their will in Parliament, that is, in the graunt of a Subsidy, whereunto the King assented.72
King Philip and Queen Mary, graunted by Letters Patents to the Major Bayliffes, and Burgesses of Southampton, and their Successors, that no Wines called Malmeseyes to be imported into this Realme by any Denizen, or Alien, should be discharged or landed at any other place within this Realme, but onely at the said town and Port of Southampton, with a prohibition, that none should doe to the contrary upon pain to pay treble Custome to the King and Queen, &c. And for that Anthony Donate, Thomas Frederico, and other Merchant Strangers bought divers Buts of Malmesey, &c. and landed them at Goore, and in Kent, Gilbert Gerard the Attourney Generall, informed in the Exchequer against the said Merchant Strangers for the said treble custome, &c.75 Upon which information, as to the said treble Custome, the said Anthony Donat demurred in Law &c. And this case was argued in the Exchequer Chamber by Counsell learned on both sides, and upon conference had two points were resolved by all the Judges. 1. That the graunt made in restraint of landing of the said Wines was a restraint of the Liberty of the Subject, against the Lawes and Statutes of the Realme. 2. That the assessment of treble custome was meerly void, and against the Law. As it appeareth by the report of the Lord Dier under his hand (which I have in my custody.) But after by Act of Parliament, in Anno 5 Eliz. the said Charter is established as to Merchant Strangers onely, but not against Subjects.76
And where imposts, or impositions, be generally named in divers Acts of Parliament,77 the same are to be intended of lawfull impositions, as of Tunnage, and Poundage, or other Subsidies imposed by Parliament, but none of those Acts or any other doe give the King power at his pleasure to impose. Sée the first part of the Institutes, Sect 97.
It is then demaunded, by what Law Custome is paid for Kerseyes, whites, plaine straits, and other new draperies, made of wooll; for it appeareth by Acts | of Parliament, and common experience, that all these pay Custome to the King. To this it is answered, That a proportionable Subsidy, or Custome is paid for them within the equity of the said Statute of 27 Edw. 3. cap. 4. and likewise a proportionable Alnage is also due for them by that Act.
Hil. & Pasch. anno 2 Jacobi Regis, great questions were moved, Whether Frisadoes Bayes, Northern Cottons, Northern Dozens, Cloth-rash, Durances, Perpetuanoes, Juft-mocadoes, Sackcloth, Fustians, Worsteds, Stuffes made of Worsted yarn &c. were within the said Act of 27 Edw. 3. as concerning the Subsidy, and Alnage: and if they were not, whether the King by his prerogative might not impose a reasonable Subsidy, or Custome upon them proportionably to the cloth mentioned in the Statute of 27 Edw. 3. And this being questioned before the Lords of the Councell, they wrote to the Judges to be certified what the Law was in these cases, who upon mature deliberation, the 24 of June 1605. resolved, and so certified the Lords by their Letters under all their hands, That all Frisadoes Bayes, Northern Dozens, Northern Cottons, Clothrash, and other new Drapery made wholly of wooll, of what new name soever made, as new Drapery for the use of mans body, are to yeeld Subsidy, and Alnage according to the Statute of 27. E. 3. and within the office oftheauncient Alnager,78 as may appeare by severall Decrees in that behalfe in the Exchequer, in the time of the late Queen: but as touching fustians, canvas and such like made meerly of other stuffe then wooll, or being but mixed with wooll, it was resolved by all the Judges,Note this. that no charge could be imposed for the search or measuring thereof, but that all such Letters Patents so made are voyd, as may appeare by a Record of 1. Hen. 4, wherein the reason of the judgement is particularly recited, which the Judges thought good in their Letters to set downe as followeth.
King Henry the fourth graunted the measuring of woollen cloth, and canvas, that should be brought to London, to be sold by any Stranger, or Denizen (except he were free of London) taking an ob. of every whole peece of cloth so measured of the seller, and one other ob. of the buyer, and so after that rate for a greater or lesser quantity, and one penny for the measuring of an C. ells of canvas of the seller, and so much more of the buyer; and though it were averred that two other had enjoyed the same office before with the like fees, viz. one Shearing by the same Kings graunt, and one Clithew, before by the graunt of Ric. 2. (and the truth was, Robert Pooley, in 5. Edw. 3. and John Mareis, in 25. Edw. 3. had likewise enjoyed the same) yet amongst otherreasons of the said judgement, it was set downe and adjudged that the former possession was by extortion, cohertion, and without right, and that the said Letters Patents were in onerationem, oppressionem, & depauperationem subditorum Domini Regis. &c. & non in emendationem ejusdem populi;79 and therefore the said Letters Patents were voyd. And as touching the narrow new stuffe made in Norwich, and other places of Worsted yarn, it was resolved that it was not grauntable, nor fit to be graunted, for there was never any Alnage of Norwich Worsteds, and for these stuffes, if after they be made, and tucked up for sale by the makers thereof, they should be again opened to be viewed, and measured, they will not well fall into their old plights, &c. as by the said Letters it more at large appeareth.80 These Letters were openly read at the Councell Table, and well approved by the whole Councell, and the Lords commanded the same to be kept in the Councell Chest to be a direction for them to answer suitors in these cases.
But these judgements in the Exchequer have beene cited for proofe that the King hath power to set impositions upon Merchandizes exported, and imported.
1. A judgement given in the Exchequer in an information against Germane Cioll for 40.s. set by Queen Mary upon every Tun of wine, of the growth of France, to be brought into the Realme.81 But the case there was this, the Attourney generall informed, that where King Philip, and Queen Mary by their Proclamation, 30 Martii, in the 4. and 5. yeares of their raigne, did will and straitly command, that no wines of the growth of France, should be brought into this | Realme, without speciall licence of the said King and Queene, under paine of forfeiture of such Wine to the King & Queene, Cumq; etiã dict’ nuper Rex & Regina de advisamento Concilii sui ad tunc ordinaver’ & decreverunt, quod quaelibet persona, quae in hoc Regnum Angliae induceret hujusmodi vina contra formam proclamationis praedict’, solveret pro quolibet dolio hujusmodi vini 40 s. vocat. impost. & c.82 and that German Ciol, against the forme and effect of the said Proclamation, had brought into the Realme 338. tunnes of Wines of the growth of France, and had not paid 40 s. for each and every tunne: the Defendant pleaded a licence from the said King and Queene, dated the 9. of Decemb. anno 1. & 2. to bring into the Realme 1500. tunnes of wine, of the growth of Fraunce, in strangers bottoms, with a non obstante83 of any Law, Statute, or Proclamation made or to be made to the contrary, whereupon the demurrer was joyned.
In this Record these things are to be observed, first that a Proclamation prohibiting importation of wines upon paine of forfeiture, was against Law: for it appeareth not, that any warre was between the Realmes. 2. The Proclamation was made of purpose to set an imposition, for the 40.s is imposed upon them only, and upon such as should bring in Wines against the said Proclamation, so as the Proclamation was the ground of this information. 3. The King and Queene by advice of their Councell, did order, and decree &c. and sheweth not how, or by what meanes this order and decree was made: the pleading of such a former licence so insufficiently sheweth, that it was by agreement and consent.
2. The executors of Customer Smith, were charged in a speciall information for receiving an imposition of iii.s. iiii.d. set by Queene Elizabeth, under her privy signet upon every hundred weight of allome made within the dominions of the Pope, and judgement in the Exchequer was given against them:84 the reason of this judgement was, for that Customer Smith received the same as due to the Queene, and the issue was joyned, quod praedicti executores non tenebantur ad computum, &c.85 and the validity of the imposition was never questioned.
3. A judgement was given in the Exchequer, for an imposition set upon Currants, but the common opinion was, that that judgement was against Law, and divers expresse acts of Parliament; and so by that which hath been said, it doth manifestly appeare.86
To conclude this point, with two of the maximes of the Common law. 1. Le common ley ad tielment admeasure les prerogatives le Roy, que ilz ne tolleront, ne prejudiceront le inheritance dascun,87 the Common law hath so admeasured the prerogatives of the King, that they should not take away, nor prejudice the inheritance of any: and the best inheritance that the Subject hath, is the Law of the Realme. 2. Nihil tam proprium est imperii, quam legibus vivere.88
Upon this Chapter, as by the said particulars may appeare, this conclusion is necessarily gathered, that all Monopolies concerning trade and traffique are against the liberty and freedome, declared and graunted by this great Charter, and against divers other Acts of Parliament, which are good commentaries upon this Chapter.89
Lè point del conge del demurrer des merchants aliens est issint interpretable, que ceo ne soit in prejudice des villes, ne des merchants dangleterre, & il soient seremements al Roy & plevyes silz demurront pluis que 40 jours.90 ,91
For the well intreating and ordering of Merchant strangers and denizens, and for *92 due imployment of their mony upon the native commodities of this Realme, many Statutes have beene made since this great Charter, and have been excellently expounded in the raigne of Queene Elizabeth, but that matter belongs not to this place.
| If any man hold of any Escheat, as of the Honour of Wallingford, Nottingham, Boloin, or of any other Escheats which be in our hands, and are Baronies, and die, his Heir shall give none other Relief, nor do none other Service to Us, than he should to the Baron, if it were in the Baron’s hand; and We in the same wise shall hold it as the Baron held it. Neither shall We have, by occasion of any Barony or Escheat, any Escheat or keeping of any of our men, unless he that held the Barony or Escheat otherwise held of Us in Chief.
By this Chapter it is declared, and enacted, that if any man hold of any escheate as of any honour, or of other escheats, which are Baronies, and were in the Kings hands; First, if he die, his heire being of full age, his heire shall give no other reliefe to the King then he did to the Baron. 2. Nor doe none other service to the King, then he should have done to the Baron. 3. That the King shall hold the honour or Baronie as the Baron held it, that is, of such estate, and in such manner and forme, as the Baron held it. 4. The King shall not have by occasion of any Barony, or escheate, any escheate but of lands holden of such Baronie. 5. Nor any wardship of any other lands then are holden by Knights service of such Baronie, unlesse he, which held of the Baronie, held also of the King by Knights service in capite.1
All this is meerely declaratory of the Common Law, and here it appeareth that he that holdeth of the King, must hold of the person of the King, and not of any honor, Barony, Mannor or seigniory: and it appeareth farther in our books, that he that holdeth of the King in cheife, must not only hold of the person of the King, but the tenure must be created by the King, or some one of the progenitors, or predecessors Kings of this Realme, to defend his person and Crowne, otherwise he shall have no prerogative by reason of it, for no prerogative can be annexed to a tenure created by a Subject.2 Note here is not named the honour of Lanc. which was an auncient honor ever since the conquest, which Edw. 3. raised to a Court Palatine, as in the 4. part of the Institutes, cap. Duch. of Lancastre appeareth. see 28. Hen. 6. 11. per touts les justices. 1. Edw. 6. Bro. trav. 53. Stamford Prerog. 29 b.
“of any other Escheats.”3
Some question hath been made of these words, for some have said that these words are to be understood of common escheats, as where the Lord dieth without heire, or where he is attainted of felony: But where the Lord is attainted of high Treason, there the King hath the land by forfeiture of whomsoever the land is held, and not in respect of any escheate by reason of any seigniorie: and therefore where William Riparave a Norman, held lands in fee of the King, as of the honour of Peverell, and Riparave forfeited his said land for Treason, and the King seised it as his escheate of Normandy, in this case the land so forfeited was no part of the honour, as it should have been, if it had come to the King, as a common escheate, for it cometh to the King by reason of his Person, and Crowne, and therefore if he graunt it over &c. the | Patentee shall hold it of the King in chiefe, and not of the honour. And all this is to be agreed, but yet the tenants that held before of the honour by knights service, cannot hold of the King in chiefe. 1. For that they hold not of the person of the King, but of the Honour. 2. Because the tenure was not created by the King, or any of his progenitors, as hath been said.
And so doth Bracton, who wrote soone after the Statute, expound this great Charter to extend to forfeiture of Baronies for treason, as of the Normans.4
And yet to make an end of all ambiguities and questions, the Statute of 1. Edw. 6. was made, which is, as the words be, a plain declaration and resolution of the Common Law. Likewise the Statute of 1. Edw. 3. which provideth, that where the land, that is holden of the King, as of an honour, is aliened without licence, no man shall be thereby grieved, is also a declaration of the Common law.5
By this Chapter it appeareth, that a subject may have an honour.
No Freeman from henceforth shall give or sell any more of his Land, but so that of the Residue of the Lands, the Lord of the Fee may have the Service due to him which belongeth to the Fee.1
1 First it is to be seene, what the Common law was before this Statute.
2 What is wrought by this Statute, where the lands are holden of the King.
3 What this Statute hath provided in case where lands are holden of a Subject.2
Before this Statute, in case where the tenure was of a common person, the tenant might have made a feofment of a parcell of his tenancy to hold of him, for the seigniory remained intire as it was, and the Lord might distreine in the tenancy parabaile for his rent, and service, but at the Common law, he could not have given a part of his tenancy to be holden of the Lord, for the tenant by this Act could not divide the seigniory of the Lord which was intire, for at the beginning the Lord reserved his seigniory out of the whole tenancy, and might distreine in every part thereof for his seigniory, but if the tenant might have made a feofment of part to hold of the Lord, then had he socluded the Lord of his liberty to distreine for the whole seigniory in every part thereof.
At the Common law the tenant might have made a feofment of the whole tenancy to be holden of the Lord, for that was no prejudice at all to the Lord.
a3 But in the Kings case it was doubted, whether his tenant might have given part of the tenancy to hold of himselfe, because the Land, and the profit that might come to the King thereby, was removed farther off from him, and the mesnalty was ever of lesse value, then the land, and for that cause the tenancy was called paravaile: b4 and in 18. Edw. 1. the King answered to a petition in Parliament, Rex non vult aliquem medium, &c.5 and this question remained after this Statute, about the space of 133. years, viz. till the c6 Statute of 34. Edw. 3. was made, whereby it is provided, that alienations of Lands made by tenants, which held of Henry the third or of other Kings before him, to hold of themselves, that the alienations should stand in force, saving to the King his prerogative of the time of his great Grandfather, his Father, and his own, whereby it appeareth that this pereogative to have a fine for alienation, d7 began in the raign of Hen. 3. which was by this Act, and therefore he beginneth with Henry the third his great Grandfather.
e8 To the second point by this Act, where lands are holden of the King, as King, in Capite, be it by Knights service, or in socage in Capite, & aliened without licence, | there groweth, as hath been said; to the King a fine: For by the Common law it was against the nature and purity of a fee simple; for the tenant to be resrained from alienation.
But some did hold, that upon this Act the land so aliened without licence was forfeite to the King, by reason of these words, nullus liber homo det, &c.9 and others did hold the contrary, that upon these words, the land was not forfeited, but that it should be seised in the name of a distresse, and a fine to be paid, for the trespasse, which I take to be the better opinion; and the reason why our books speake, that no fine was due before 20. Hen. 3. is, for that about that yeare Henry the third being of full age (as hath been said) did establish and confirme this great Charter, but in truth it was in 21. Hen. 3. as by the Charter it selfe appeareth.
But this question depended about the space of 100. years &c And was not determined untill the Statute made in 1. Edw. 3. whereby it is enacted, that the king shall not hold them as forfeite in such case, but that of lands so aliened there shall be from thenceforth, a reasonable fine taken in the Channcery, by due proces, which Act was but an exposition of this Chapter of Magna Charta as to lands holden of the King in Capite aliened without licence, and extendeth to lands holden of the King by grand Serjantie10 aliened without licence.11
To the 3. the great doubt upon this Act was, that in as much as this Act was a prohibition generall, and imposed no paine or penalty, what paine the tenant, or his feofee should incurre, if he did the contrary; and by the common opinion this Act was thus interpreted: that when a tenant of a common person did alien parcell contrary to this Act, the feoffor himselfe during his life should not avoide it, quia nemo contra factum suum proprium venire potest,12 but that his heire after his decease might avoid it by the intendment of this Act, to the end that men should not purchase such parcell, for feare of losing the same after the death of the feoffor: but if the heire apparent had joyned with his auncester in the feoffment, or after had confirmed it, and thereby had given his assent thereunto, he or his heires should never have avoided it, whether he survived his Father or no; and if the heire entred upon this Statute, the alienee of part might plead that the service, whereby the land was holden, might be sufficiently done of the residue, and thereuppon issue might betaken. And I have seene divers such Precedents betweene this Act of Magna Charta, and 18. Edw. 1.
Then came the Statute of 18. Edw. 1.13 which enacteth quod de caetero liceat unicuiq; libero homini terras suas, seu tenemēta sua, seu partē inde ad voluntatem suam vendere, ita tamen quod feoffatus teneat terram illam, seu tenementum illud de capitali Domino per eadem servitia, & consuetudines, per quae feoffator suus illa prius de eo tenuit, & si partem aliquam earundem terrarum, seu tenementorum alicui vendiderit, feoffatus ille partem illam immediate teneat de Domino.14
Many excellent things are enacted by this Statute, and all the doubts upon this Chapter of Magna Charta were cleered, both Statutes having both one end, (that is to say) for the upholding and preservation of the tenures, whereby the lands were holden; this Act of 18. Edw. 1. being enacted ad instantiam magnatum Regni.15
1 First this Statute of 18. Edw. 1. doth begin with a de caetero liceat16 which proveth that before it was not lawfull to alien part, unless sufficient were left, and this approveth the aforesaid common opinion, that in that case, the heire might enter, otherwise this Chapter of Magna Charta, had been in vaine and this de caetero liceat had not needed.
2 That by this Statute of 18. Edw. 1. the prohibition and penalty by this Chapter of Magna Charta, to avoide the state of the feoffee is taken away; de caetero liceat, &c.
3 The point aforesaid of the Common law, that the tenant could not alien parcell to hold of the Lord, is by this Act of 18. Edw. 1. altered.
4 Another point of the Common law is by this Act altered, that where by the Common Law, he hath aliened parcell to hold of himselfe, this is taken away, and the alienee shall hold of the Lord pro particula.17
| 5. Where the Tenant had liberty, and election by the common Law to make a feoffement of the whole, to hold either of himselfe, or of the Lord, now this liberty and election is taken away, for by this Act the Land must be immediately holden of the Lord.
6. That the King is bound by this Act, and this appeareth by the Register,18 that the King cannot charge the feoffee of part with the entire Rent, but there lieth a Writ De onerando pro rata portione;19 But the King may graunt Lands to hold of himselfe, for he is not restrained by this Act, for hereby no man is restrained, but he which holds over of some Lord, and the King holdeth of none.
But then here riseth a question, If by this Chapter of Magna Charta, a fine for alienation accrued to the King upon an alienation of the Kings Tenant in Capite, and now this restraint (as hath been said) being taken away; how can that prerogative stand when the foundation, whereupon it is built faileth?
But hereunto it is answered. 1. The restraint of Magna Charta, secundum quid,20 as to the avoydance of the state of the feoffee by the heire, is taken away, as hath been said, but not simpliciter,21 for in respect of the King, the fine for alienation remains due, and herewith agreeth constant and continuall usage. 2. The Statute of 1. Edw. 3. enacteth,22Que deformes de tielz terres & tenements alien soit reasonable fine prise in le Chauncery,23 and though it saith (desormes)24 from henceforth, that was not, that any fine was due before, but, as hath been said, to take away the question of the forfeiture.
After this Act out of the Office of the Remembrancer of the Exchequer, Writs of Quo titulo ingressus est,25 to help the King to his reasonable fine, issued out of the Exchequer, to know how the feoffee came to the whole, or part of the Land, and of what estate, whereupon the feoffee was driven to plead to his great charge and trouble, and therefore upon conference had with the Kings Officers, and the Judges, it was ordained, that seeing the Kings Tenant could not alien without licence, for if he did, he should pay a fine, that for a licence to be obtained, the King should have the third part of the value of the Land, which was holden reasonable, and the feoffee should pay the same because his Land was otherwise to be charged, and he rid of the trouble and charge by the Writ of Quo titulo ingressus est; and if the alienation was without licence, then a reasonable fine by the Statute, was to be paid by the alienee, which they resolved to be one yeares value, which ever since constantly and continually hath beene observed and paid.
This fine was to be paid by the alienee, as hath been said, or by those that claimed by or under him, and if the fine be not paid, the Land shall be seised into the Kings hands; and the intent of a Parliament is always intended just, and reasonable; and therefore if a disseisor of Lands in Capite make an alienation without licence, and the dissesee enter, the Land shall not be seised for the fine, for the dissesee is in by a title before the alienation, and so in other like cases. If he in the reversion levy a fine of Lands holden in Capite without licence, the lessee for life shall not bee charged with the fine, because that estate was before the alienation,26 but yet in a Quid juris clamat,27 the lessee shall not be compelled to attorne, because the Court will not suffer a prejudice to the King in like manner, as if the reversion had been aliened in Mortmain without the Kings licence.
I have been the longer in explaining this Chapter, because it seemed so obscure to some Readers in former times, that they passed it over without any explanation.
| All Patrons of Abbies which have the King’s Charters of England of Advowson, or have old tenure or possession in the same, shall have the Custody of them when they fall void, as it hath been accustomed, and as it is afore declared.
This Statute is intended where the Patron, or Founder of Abbeyes, or Priories by speciall reservation, tenure or custome, ought to have the custody of the Temporalties of the same, during the vacation, as many Patrons and Founders in times past had.1 But if the King be Founder, he ought to have the Temporalties during the Vacation, of common Right by his Prerogative.
If the King and a common person joyn in a foundation, the King is the Founder, because it is an entire thing.2
If a common person found an Abbey, or Priory, with possessions of small value, and the King after endow it with great possessions, yet the common person is Founder. If a common person found a Chauncery, and after the King translate it, and make it a Monastery, and endow it with possessions, yet the common person is in Law the Founder, because he gave the first living so if the translation be from regular to secular, vel è contra.3
No Man shall be taken or imprisoned upon the Appeal of a Woman, for the death of any other than of her Husband.
For this word, Appeale, see the first of the Institutes.1 At the Common Law before this Statute, a woman, as well as a man might have had an appeale of death of any of her auncestors, and therefore the son of a woman shall at this day have an appeale, if he be heire at the death of the auncestor, for the son is not disabled, but the mother onely,2 for the Statute saith, Propter appellum foeminae.3 Vide more of this in the first part of the Institutes.
By inter brachia6 in these auncient Authors, is understood the wife, which the dead had lawfully in possession at his death, for she must be his wife both of right and in possession, for in an appeale, Unques accouple in loiall Matrimony,7 is a good plea.
A woman at this day may have an appeale of robbery, &c. for she is not restrained thereof.
This Writ of appeale of the death of her husband, is annexed to her Widowhood, as her Quarentine is.
If the wife of the dead marry again, her appeale is gone, albeit the second husband die within the yeare; for shee must before any appeale brought, conti-|-nue foemina viri sui,8 upon whose death she brings the appeale.
So if she bring the appeale during her Widow-hood and take husband, the appeale shall abate, and is gone for ever.9
So likewise if in her appeale she hath judgement of death against the Defendant, if after she take husband, she can never have execution of death against him.
Albeit the husband be attainted of high Treason, or felony, yet if he be slain, his wife shall have an appeale,10 for not withstanding the attainder he was vir suus,11 but the heire cannot have an appeale, for the blood is corrupted betweene them.
“the Appeal of a Woman.”
A hermophrodite, if the male sex be predominant, shall have an appeale of death as heire, but if the female sexe doth exceed the other, no appeale doth lie for her as heire.
No County Court from henceforth shall be holden but from month to month; and where greater Time hath been used, there shall be greater: Nor any Sheriff or his Bailiff shall keep his Turn in the Hundred but twice in the Year, and no where but in due place and accustomed; that is to say, once after Easter, and again after the Feast of Saint Michael. And the View of Frankpledge shall be likewise at the Feast of Saint Michael, without occasion: So that every man may have his Liberties which he had or used to have in the time of King Henry our Grandfather, or which he hath purchased since. The View of Frankpledge shall be so done, that our Peace may be kept; and that the Tything be wholly kept, as it hath been accustomed; and that the Sheriff seek no occasions; and that he be content with so much as the Sheriff was wont to have for his View-making, in the time of King Henry our Grandfather.
“County Court.1 ”
Quod modo vocatur Comitatus, olim apud Britones temporibus Romanorum in Regno isto Britanniae vocabatur Consulatus; & qui modo vocantur Vicecomites, tunc temporis Vice-consules vocabantur; ille vero dicebatur Vice-consul, qui Consule absente ipsius vices supplebat in Juris foro.2
Curia Comitatus,3 in Saxon, δcẏpeƷemoτe, i. Comitatus conventus.4Ejus duo sunt genera, quorum alterum hodie le Countie Court, alterum le Tourne del Viscount, olim Folkmote, vulgo nuncupatur;5 ,6 So as many times Turn’ Vicecomitis7 is expressed under the name of Curia Comitatus, because it extended through the whole County: and therefore in the red Book of the Exchequer, amongst the Laws of King Hen. 1 cap. 8.8De generalibus placitis Comitatus9 it is thus contained, viz.
Sicut antiqua fuerat institutione formatum, salutari Regis imperio vera est recor-|-datione firmatum, generalia *10Comitatuum placita certis locis, & vicibus, & definito tempore per singulas anni provincias convenire debere, nec ullis ultra fatigationibus agitari, nisi propria Regis necessitas, velcommune Regni commodum saepius adjiciant. Intersint autem Episcopi, Comites, Vicedomini, Vicarii, Centenarii, Aldermanni, Praefecti, Praepositi, Barones, Vavassores, Tingrevii, & caeteri terrarum Domini diligenter intendentes, ne malorum impunitas, aut gravionum pravitas, vel judicum subversio solita miseros laceratione confiniant: Agantur itaque primo, debita verae Christianitatis jura, secundo, Regis placita, postremo, causae singulorum, &c. debet enim Shcrysmote, (i. the Sheriffes Tourne) bis; Hundreda, & Wapentachia, (i. the County Courts) duodecies in anno congregari.11 ,12
And truly did Hen. 1. say, Sicut antiqua fuerat institutione formatum:13 For these Courts of the Tourn, and of the County, and of the Leete or view of frankpledge mentioned hereafter in this Chapter were vary auncient: for of the Tourn you shall reade amongst the Lawes of King Edw.14Statutum est quod ibi (scilicet apud le folkmote) debent populi omnes, &c. convenire, & se fide & sacramento non fracto ibi in unum & simul confederare, &c. ad defedendum Regnum, &c. una cum Domino suo Rege, & terras suas, & honores illius omni fidelitate cum eo servare, & quod illi, ut Domino suo Regi intra & extra Regnum universum Britanniae fideles esse velint, &c. Hanc legem invenit Arthurus (qui quondam fuit inclytissimus Rex Britonum) & ita consolidavit & confederavit Regnum Britanniae universum semper in unum, hujus legis authoritate expulit Arthurus praedictus Saracenos, & inimicos a Regno, lex enim ista diu sopita fuit, donec Edgarus Rex Anglorum, qui fuit avus Edwardi Regis, illam excitavit, & erexit in lucem & per totum Regnum firmiter observari praecepit: & hujus legis authoritate Rex Etheldred subito uno & eodem die per universum Regnum Danos occidit.15
By the Lawes of King Edward, before the Conquest the first, which succeeded King Alured, it is thus enacted:16
Praepositus quisque. i. Vicecomes, Saxonice Geresa, Anglice Sheriffe, ad quartam circiter septimanam frequentem populi concionem celebrato, cuique jus dicito aequabile, litesque singulas cum dies condicti adveniant dirimito.17
Hereby it appeareth that Common Pleas between party and party were holden in the County Court every month, which agreeth with Magna Charta, and other Statutes and continuall usage to this day.
And amongst the Laws of King Edgar it is thus concerning the Sheriffes Tourn provided.18
Celeberrimus ex omni Satrapia bis quotannis conventus agitor, cui quidemillius Dioecesis Episcopus, & Senator intersunto, quorum alter jura Divina, alter humana populum edoceto;19 which also agreeth with Magna Charta, and other Statutes and continuall usage.
By that which hath been said, it appeareth that the Law made by King Henry the first was (after the great heat of the Conquest was past) but a restitution of the auncient Law of England: And forasmuch as the Bishop with the Sheriffe did goe in Circuit twice every yeare, by every hundred within the County (which also appeareth by this Chapter of Magna Charta in these words, Turnum suum per hundreda, &c.)20 it was called Tour, or Tourn, which signifieth a circuit, or perambulation.21
Now let us peruse the severall branches of this Chapter.
“No County Court from henceforth shall be holden but from month to month, and where greater Time hath been used, there shall be greater:”
This (as hath been said) is an affirmance of the Common Law, and Custome of the Realme.
Here Comitatus is taken in the common sense for the County Court.
| That the Realme was divided into counties, long before the raigne of King Alured, viz. in the time of the auncient Britons. See the first part of the Institutes, Sect. 248.
“and where greater Time hath been used.”
This is altered by the Statute of 2. E. 6.22 whereby it is provided that no County Court shall be longer deferred, but one month from Court to Court, and so the said Court shall be kept every month, and none otherwise.
By which Act every County of England, concerning the time of the keeping of the County Court is governed by one and the same Law.
And there is to be accounted 28. dayes to the legall month in this case, and not according to the month of the Kalender.
“Nor any Sheriff or his Bailiff shall keep his Turn in the Hundred, but twice in the Year; and no where but in due and accustomed; that is to say, once after Easter; and again, after the Feast of Saint Michael.”
Where this branch saith, Semel post Pasch. &c.23 The Statute of 31. Edw. 3.24 explaineth it, viz. one time within the month after Easter, and another time within the month after S. Michael, and if they hold them in any other manner, then they should lose their Tourn for that time, which is as much to say, as the Court so holden for that time, shall be utterly void, and the Sheriffe shall lose the profits thereof.25
“but in due place . . . accustomed.”
This remaineth to this day.26
“in the Hundred.”
How Hundreds, and the Courts of the Hundreds first came, see hereafter in this Chapter.
“And the View of Frankpledge, shall be likewise at the Feast of Saint Michael, &c.”
It hath appeared before, that of auncient time the Sheriffe had two great Courts, viz. The Tourne, and the County Court: Afterwards for the ease of the people, and specially of the Husbandman that each of them might the better follow their business in their severall degrees, this Court here spoken of, viz. views of frankpledge, or Leet was by the King divided, and derived from the Tourn, and graunted to the Lords to have the view of the Tenants, and Resiants27 within their Mannors &c. So as the Tenants, and Resiants should have the same Justice, that they had before in the Tourn, done unto them at their own doors without any charge or losse of time, and for that cause come the duty in many. Leets to the Lord De certo Lete,28 towards the charge of obtaining the graunt of the said Leet.29
So likewise, and for the same reason were Hundreds, and Hundred Courts, divided and derived from the County Courts, and this the King might doe, for the Tourn and Leet both are the Kings Courts of Record: And as the King may grant a man to have power Tenere placita30 within a certain precinct, &c. before certain Judges, and in a manner exempt it from the jurisdiction of his higher Courts of Justice, so might be due in case of the Tourne, and Hundred Courts: so as the Courts and Judges, may be changed, but the Lawes and Customes, whereby the Courts proceed, cannot be altered. And as the County Court, and Hundred Court are of one Jurisdiction, so the Tourne, and Leet be also of one and the same jurisdiction; for Derivativa potestas est ejusdem jursdictionis cum primitiva.31Regula.
The style of the Tourn is Curia franc. plegii Domini Regis tent̄ apud L. coram Vicecomite in Turno suo tali die &c.32 ,33 And therefore in some Books it is called the Leete of the Tourn. And therefore where the Sheriffe styled his Court, Turn̄ Vicocom̄ tent̄ tali die apud L. &c.34 ,35 it was received that it was insufficient for | that this word Tourn is but the perambulation of the Sheriffe, but by the right style of the Tourn, it appeareth that the Tourn and Leet have but one style, and the same jurisdiction.36
But for want of the knowledge of antiquity it was obiter,37 in 18 Hen. 6.38 denied that the Tourn, and the Leet were of one jurisdiction, and two instances are there put, viz. that the Leet hath conusance of bread and ale, that is, of the assise of bread and ale, and the Tourn hath not conusance thereof; and the other is, that in the Leet they have authority de presenter ceux, queux no sont lies,39 abridged by Fitzh. a presenter ceux, que ne sont mises in le decennarie.40
To the first it is cleare, That the breach of the assise of bread and Ale is presentable in the Tourn, as a common nusance, and therewith agreeth constant and continuall experience, and reason proveth, that the derivative cannot have conusance of that which the primitive had not, unlesse it be given by some Act of Parliament; and herewith agreeth the style of the Tourn, and the authority of later Books.41
As to the second, it is ill reported in the Book it selfe; but if it be intended as Fitzh. abridgeth it, then it is cleare that in the Tourn they that be not put into the decennary may be inquired of, for, as hath been often said, the style of the Tourn is, Curia visus frank pleg’;42 and the derivative cannot of common right have more than the primitive.
But both of the Tourn and the Leete, this may be truly said,
But now let us return to our Magna Charta.
“And the View of Frankpledge shall be likewise at the Feast of Saint Michael, &c.”47
It is to be observed that the precedent branch is, That Vicecomes non faciat Turnum per Hundredum nisi bis in anno,48 as hath been said, viz. Semel post Pasch’ & iterum post festum Sancti Michaelis;49 ,50 This clause extendeth to the enquiry of felonies, common nusances and other misdeeds, the view of frankpledges, and to all things inquirable in the Tourn. Now by this clause it is provided that the Article of the Tourn concerning the view of frankpledge, being here understood in a particular sense, shall be dealt with all by the Sheriffe in his Tourn but once in the year, viz. at the Tourn holden after Easter, and so it hath been formerly expounded; and therefore it was well resolved is 24 H. 8 that this clause of the Statute of Magna Charta, is to be understood of the Leet of the Tourn, and not of other Leets, and so without question is the Law holden at this day, That he that claimes a Leet by Charter, must hold it at the same dayes which are contained in the Charter, and he that claimes it by prescription may claime to hold it once or twice every yeare, at any such dayes as shall upon reasonable warning be appointed, if the usage hath been so, so that it hath been kept at uncertain times, or else it ought to be kept at such certain dayes and times, as by prescription hath been certainly used;51 and the next words to this clause bee, Ita scilicet quod quilibet habeat libertates suas, quas habuit, &c.52 doe explaine the meaning of this Chapter, that is extended not to the Leets of the Subjects, that they should have their liberties, as before they had; and this also appeareth by the conclusion of this Chapter. Et quod Vicecomes, &c. contentus sit de eo quod Vicecomes habere consuevit de Visu suo faciendo;53 So as it must be Visus suus,54 the Sheriffes View, which of necessity must be parcell of the Tourn; and it is said in the Mirror, that this view of frankpledge (parcell of the Tourn) should be made once every yeare.
“the View of Frankpledge shall be so done, &c.”
Here it appeareth that the view of frankpledge should have two ends. 1, Quod pax | nostra teneatur. 2. Quod Trithinga teneatur integra.55
For the first, that the Kings peace might be kept; the right institution of the view of Franke pledge,56 and whereon the name came is to be considered, which is as followeth.
Franci plegii. i. Liberi fidejussores, free suretics or pledges; and here it is said fiat visus de Francis plegiis, ita scilicet quod pax nostra teneatur,57 that is, let the view of pledges or sureties for free-men be made, so that our peace may be holden: Now the institution hereof, for the keeping of the Kings peace, was, that every free-man, at his age of 12. years, should in the Leet (if he were in any) or in the Tourne, (if he were not in any Leet) take the oath of alleageance to the King, and that pledges or sureties should be found in manner hereafter expressed for his truth to the King, and to all his people, or else to be kept in prison;58 This Franke pledge consisted most commonly of ten housholds, which the Saxons called Theothung, in the North parts they call them Tenmentale, in other places of England Tithing, here in this chapter Trithinga. i. Decemvirale collegium,59 whereof the masters of the nine families (who were bound) were of the Saxons called Freoborgh, which in some places is to this day called free Barrowe. i.60 Free surety, or Franke pledge, and the Master of the tenth houshold was by the Saxon called by divers names, viz. Theothungmon, to this day in the West called Tythingman, and Tihenheofod and Freoborher. i. Capitalis plegius, chiefe pledge: and these ten masters of families, were bound one for anothers family, that each man of their severall families should stand to the Law,61 or if he were not forth coming, that they should answere for the injury or offence by him committed, De eo autem qui fugam ceperit, diligenter inquirend’ si fuerit in franco plegio, &decenna, tunc erit decenna in misericordia coram Justitiariis nostris, quia non habent ipsum malefactorem ad rectum.62 ,63
Hereby it appeareth, that the precinct of this frank pledge was called decenna,64 because it consisted most commonly, as hath been said, of tenne housholds, and every man of these severall housholds, for whom the pledge or surety was taken were called decennarii, because every particular person in the Kingdome was of one decenna or other, which names are continued as shadowes of antiquity to this day.65Ordeine suit ancientment, que nul ne demurrast en le realme, sil ne suit en dizein & plevye de frank homes, appenc aux visc’ de viewer un sois per an’ franke pledges & les plevys, &c.66 ,67
By the due execution of this Law, such peace (whereof this chapterspeaketh) was universally holden within this Realme, as no injuries, homicides, robberies, thefts, riots, tumults, or other offences were committed; so as a man with a white wand might safely have ridden before the Conquest, with much money about him, without any weapon throughout England; and one saith truely, conjectura est, eaq; non levis, haud ita multis statuisse prisca tempora sceleribus, quippe quibus rapinae, furto, caedi, plurimisq; aliis sceleribus mulctae imponebantur pecuniariae, cuim hiis hac nostra tempestate, nos omnibus merito capitis poenam irrogamus, &c.68 ,69
“and that the Tything be wholly kept.”
Trithinga or Tithinga is expounded for Theothinga, which signifieth the Frankpledge of tenne housholds, as hath been said, and it is notably expounded by Fleta,70 which there you may read at large, the sense hereof is, quod Trithinga, sive Theothinga. i. Decemvirale collegium teneatr integrum.71 that no man be not within some decenna or other, so as he may be brought forth to stand to right if he shall offend: Olim Trithinga significabat tria vel quatuor hundreda, quod autem in Trithinga definiri non poterat, ferebatur in scyram.72 ,73
What persons shall come to the Tourne and Leete &c., and who be exempted, see the Statute of Marlebridge, and the auncient authors.74
“the time of King Henry our Grandfather.”
Twice repeated in this Chapter: vid. before Cap. 15. 16.
| See the exposition of this Statute Rot. Claus. anno 18. H. 3. nu. 10.
“and that the Sheriff seek no occasions; and that he be content with . . . the Sheriff was wont to have for his View-making in the time of King Henry our Grandfather.”75
By the Common law, to avoid all extortion and grievance of the Subject, no Sherife, Coroner, Goaler or other of the Kings Ministers ought to take any reward for doing of his office, but only of the King; and this appeareth by our books, and in so declared and enacted by act of *76 Parliament in the 3. Edw. 1. And a penalty added to the prohibition of the Common law by that Act: And Fortescue cap. 24. saith, Vicecomes jurabit super sancta Dei Evangelia, inter articulos alios, quod non aliquid recipiet colore, aut causa officii sui, ab aliquo alio, quam a Rege.77
But after that this rule of the Common law was altered, and that the sherife, Coroner, Goaler, and other the Kings ministers, might in some case take of the subject, it is not credible what extortions, & oppressions have thereupon ensued. So dangerous a thing it is, to make or alter any of the rules or fundamentall points of the Common law, which in truth are the maine pillars, and supporters of the fabrick of the Common-wealth, as elsewhere I have noted more at large, and yet not so largely, as the weight of the matter deserveth.78
“and that he be content with . . . the Sheriff was wont to have, &c.”79
These words are not to be intended of any reward, &c. (for the sherife by Law, as hath been said, could take no reward for doing of his office) but of the profits of the Court of the Tourn, and such only as were accustomed in the raigne of Henry the second. So they must be very auncient, for the which the sherife should (by an auncient law) pay a certaine summe de proficuis comitatus,80 and should be charged in the Exchequer for this certain summe.
And it is to be observed, that if any man be grieved contrary to the purview of this act, he may, as hath been said, for his reliefe therein, have an action up on this Statute, albeit no action be expressly given, which in this, and many other like cases upon the branches of Magna Charta, is worthyofobservation.81
It shall not be lawful from henceforth to any to give his Lands to any Religious House, and to take the same Land again, to hold of the same House: Nor shall it be lawful to any House of Religion to take the Lands of any, and to lease the same to him of whom he received it. If any from henceforth give his Lands to any Religious House, and thereupon be convict, the Gift shall be utterly void, and the Land shall accrue to the Lord of the Fee.1
This Chapter is excellently abridged, according to the effect thereof, and notably expounded by a Parliament holden by King Edward the first, sonne of Henry the third, the words whereof are these, of late (viz. anno 9. H. 3. cap. 36.) it was provided that religious men should not enter into the fees of any without licence, and will of the chiefe Lords, of whom such fees been holden immediately,2 whereby it appeareth, that by this Chapter of Magna Charta, a gift of lands to any reli-|-gious house was prohibited, notwithstanding the Religious house gave not the same back again to hold of the same house, &c. but kept the Lands so given unto themselves in their own hands: and in that case, that the Land should incurre to the Lord of the fee, consider well the words; and the interpretation is worthy of observation for the interpretation of other Statutes in like cases.
There were two causes of making of this Statute: one that the services that were due out of such fees, and which in the beginning were created for the defence of the Realme, were unduly withdrawn. 2. The chiefe Lords did lose their Escheats, Wardships, Reliefes, and the like; for which causes, divers provident Lords at the Creation of the Seigniory had a clause in the deed of feoffment, Quod licitum sit donatori rem datam dare, vel vendere cui voluerit, exceptis viris religiosis, & Judaeis.5 Vide Bracton, libro 1. fol. 13.6 Many of these deads I have seene.
But the Ecclesiasticall persons (who in this were to be commended, that they had ever the best learned men in the Law, that they could get, of their Councell)7 found many wayes to creep out of this Statute, viz. religious men; as Abbots, Priors, and other Ecclesiasticall persons regular, to purchase Lands holden of themselves, or take leases for long term for years, and many other devices they had to escape out of this Statute: and Bishops, Parsons, and other Ecclesiastical persons secular took themselves to be out of this Statute.
The said Statute of 7. Edw. I. intended to provide against these devices, in these words, Quod nullus religiosus, aut alius quicunque8 (i. other whatsoever of like quality of being, a body politique, or corporate, Ecclesiastical, or Lay, sole, or aggregate of many,)9terras aut tenementa aliqua emere, vel vendere sub colore donationis aut termini;10 And to presvent all other inventions and evasions added these generall words, Aut ratione alterius tituli cujuscunq; terras aut tenementa ab aliquo recipere aut alio quovis modo*11arte vel ingenio sibi appropriare praesumat, sub forisfactura eorundem.12
A man would have thought that this should have prevented all new devices, but they found also an evasions out of this Statute, for this Statute of 7. Edw. 1. extended but to gifts, alienations, and other conveyances made between them and others, Arte vel ingenio, &c.13 and therefore they gave over them; And they pretending a title to the land (that they meant to get) brought a Praecipe qod reddar,14 against the Tenant of the land, and he by consent and collusion should make default, and thereupon they should recover the land, and enter by judgement of Law, Et sic fieret fraus Statuto.15
When this new invention was provided for, and taken away by the Statute of W. 2. yet found they out an evasion out of all these Statutes,16 for now they would neither get any Land by purchase, gift, lease, or recovery, buttheycaused the Lands to be conveyed by feoffement, or in other manner to divers persons, and their heires, to the use of them and their successors, by reason whereof they took the profits; but this was enacted by the Statute of 15 R. 2.17 to be mortmain within the forfeiture of the said Statute of 7. Edw. 1.
But the foundation of all these Statutes, was this Chapter of Magna Charta.
| Escuage from henceforth shall be taken like as it was wont to be in the time of King Henry our Grandfather.
Vide for this the first part of the Institutes, lib. 2. Cap. Escuage. sect. 95.
“the time of King Henry our Grandfather.”
Here is another reference to the raigne of King Henry the second. See for this before, Cap. 15. &c.
Reserving to all Archbishops, Bishops, Abbots, Priors, Templars, Hospitallers, Earls, Barons, and all Persons, as well Spiritual as Temporal, all their free Liberties and free Customs, which they have had in time passed. And all these Customs and Liberties aforesaid, which We have granted to be holden within this our Realm, as much as appertaineth to Us and our Heirs, we shall observe; and all Men of this our Realm, as well Spiritual as Temporal, as much as in them is, shall observe the same against all Persons, in like wise. And for this our Gift and Grant of these Liberties, and of other contained in our Charter of Liberties of our Forest, the Archbishops, Bishops, Abbots, Priors, Earls, Barons, Knights, Freeholders, and other our Subjects, have given unto Us the Fifteenth Part of all their Moveables. And We have granted unto them on the other part, that neither We nor our Heirs shall procure or do any thing whereby the Liberties in this Charter contained shall be infringed or broken. And if any thing be procured by any person contrary to the premises, it shall be had of no force nor effect. These being Witnesses; Lord B. Archbishop of Canterbury, E. Bishop of London, J. Bishop of Bathe, P. of Winchester, H. of Lincoln, R. of Salisbury, W. of Rochester, W. of Worcester, J. of Ely, H. of Hereford, R. of Chichester, W. of Exeter, Bishops; the Abbot of St. Edmonds, the Abbot of St. Albans, the Abbot of Bello, the Abbot of St. Augustine’s in Canterbury, the Abbot of Evesham, the Abbot of Westminster, the Abbot of Bourgh St. Peter, the Abbot of Reding, the Abbot of Abindon, the Abbot of Malmsbury, the Abbot of Winchcomb, the Abbot of Hyde, the Abbot of Certesey, the Abbot of Sherburn, the Abbot of Cerne, the Abbot of Abbotebir, the Abbot of Middleton, the Abbot of Seleby, the Abbot of Cirencester; H. de Burgh Justice, H. Earl of Chester and Lincoln, W. Earl of Salisbury, W. Earl of Warren, G. de Clare Earl of Gloucester and Hereford, W. de Ferrars Earl of Derby, W. de Mandeville Earl of Essex, H. de Bygod Earlof Norfolk, W. Earl of Albemarle, H. Earl of Hereford, J. Constable of Chester, R. de Ros, R. Fitzwalter, R. de Vyponte, W. de Bruer, R. de Muntefichet, P. Fitzherbert, W. de Aubenie, F. Gresly, F. de Breus, J. de Monemue, J. Fitzallen, H. de Mortimer, W. de Beauchamp, W. de St. John, P. de Mauly, Brian de Lisle, Thomas de Multon, R. de Argenteyn, G. de Nevil, W. de Mauduit, J. de Balun, and others.
This Chapter doth consist of five parts.
First it is enacted, That all the Liberties, and Free Customes, which any | Archbishop, Bishop, Abbot, Prior, Templar, Hospitaller, Earle, Baron, or any person either Ecclestasticall or secular, have had, be safe, that is, whole without prejudice unto them, for the words be Salvae sint omnibus Archiepiscopis, &c. omnes libertates, &c.1 all the liberties, &c. be safe to all Archibishops, &c. so as this is no saving to them, but in effect, an Act that they should enjoy them: for regularly a saving in an Act of Parliament enlargeth not, nor extendeth to any new thing, but preserveth a right or interest, that is former to things contained in the Act, which by the words of the Act might have been given away. But this clause doth enlarge, and extendeth to all other liberties, and free customes, which any Subject Ecclesiasticall, or Temporall ought to have; and therefore the English Translation, both in this and many other places of this great Charter, is very vicious. But it is principally to be observed, that here is not any saving at all for the King, his heires, or Successors, to the end that the King, his heirs, and Successors, against all pretences of evasions, should be bound by all the branches of both these Charters.
The second is, that all the Customes, and Liberties, which the King had graunted to be holden within his Realme, for him and his heires, the King himselfe and his heires, as much as appertained to him or them, shouldobserve and keepe.
The third is, that all the men of this Realme, as well of the Clergy as of the Laity, the said Customes and Liberties for themselves and their heirs, as much as to them appertained, should observe and keepe.
This is the chiefe felicity of a Kingdome, when good Lawes are reciprocally of Prince and people (as is here undertaken) duly observed.
The fourth is, that for this gift and graunt by the King, of the Liberties contained in this great Charter, and of others contained in the Kings Charter of Liberties of the Forest, the Archbishops, Bishops, Abbots, Priors, Earles, Barons, Knights, Free-holders, and other the Kings Subjects, Citizens, and Burgesses, (assembled in Parliament) gave unto the King one fifteenth;2 which proveth, that as the fifteenth was graunted by Parliament, so was this great Charter also graunted by authority of the same; But since this time the manner of the fifteenth is altered; for now the fifteenth, which is also called the Task, is not originally set upon the polles, as at this time it was, but now the fifteenth is certainly rated upon every Towne. And this was by vertue of the Kings Commissions into every County of England in 8 Edw. 3. taxations were made of all the Cities, Boroughes, and Towns in England, and recorded in the Exchequer, and that rate was at that time the fifteenth part of the value of every Town, and therefore retaineth the name of the fifteenth still.3
And after the fifteenth is graunted by Parliament, then the inhabitants rate themselves for payment thereof, and if one towne bee joyned with another in the rate of the totall, and subdivided on each a certain rate in that Commission, and the one is rated too low, and the other too high, there lieth a Writ called, Ad aequaliter taxand’4 to be taken out of the Exchequer to rate the Townes equally. The Subsidie is uncertaine, because it is set upon the person, in respect of his Lands, or goods, which commonly doe ebb and flow.
The fift is, that the King did graunt for him, and his heires, that neither he, nor his heires, shall seeke out any thing, whereby the liberties in this Charter contained may be broken, or weakned: And if by any man against this Charter any thing should be sought out, it should be of no value, and holden for nought. And all these doe evidently appeare in this Chapter.
The sixt and last is Hiis testibus.5
It is true, that of auncient time nothing passed from the King of Franchises, Liberties, Priviledges, Mannors, Lands, Tenements, and Hereditaments of any estate of inheritance, but it was by the advice of his Councell expressed under Hiis testibus, as it was then, and continues to this day in the creation of any to any degree of Nobility, for thereto Hiis testibus is still used.
This conclusion of the Kings graunts with Hiis testibus was used by King | Henry the third and his Progenitors Kings of this Realme before him, and by his son Edward the first and by Edward the second and Edward the third after him: Afterwards, in the beginning of the raigne of R. 2. I finde the clause of Hiis testibus was left out, and in stead thereof came in Teste me ipso6 in this manner, In cujus rei testimonium has literas nostras fieri fecimus patentes:7Teste me ipso, which since by all his Successors Kings, and Queens of this Realme (except in Creations) hath been used.
Those that had Hiis testibus, were called Chartae, as this Charter is called Magna Charta, and so is Charta de Foresta, &c. and those other that be Teste me ipso, are called Letters Patents, being so named in the clause of In cujus rei testimonium has literas nostras fieri fecimus patentes.8
And this was the auncient forme also of the Deeds of Subjects, concluding with Hiis testibus, which continued untill, and in the raigne of Hen. 8. but now is wholly omitted, and now the witnesses are subscribed under the Deed, or endorsed thereupon.9
Now upon this occasion to treat how these clauses, Datum per manum nostram, per manum Cancellarii nostri, per ipsum Custodem, & Concilium, &c.10 entred in, and went out: when these clauses, De gratia speciali,11 and Ex certa scientia, & mero motu12 began, (which continue to this day) and the cause and reason of the inserting of the same; and when and wherefore these clauses were subscribed under the Letters Patents, Per ipsum Regem, Per brevedeprivato sigillo, Authoritate Parliamenti,&c.13 came in, (which still doe continue) would aske a severall Treastise of it selfe, and not pertinent to our purpose for the understanding of this Charter of Magna Charta, and therefore purposely I speake not of them.
Here be Witnesses to this great Charter, a great number of Reverend, and Honourable personages, in all 63. of which there were of the Clergy 31. whereof there were 12. Bishops, and 19. Abbots, and Hugh de Burgo Chiefe Justice, and 31 Earles and Barons, as hath been said before.
Besides, it was established by Authority of Parliament, which was holden at Westminster, in forme of a Charter, as many others have been, for which, as hath been said likewise, by Parliament the Lords and Commons gave a fifteenth. Of Acts of Parliament in form of a Charter, you may reade at large in the Princess Case, and therefore need not to be recited.14
| Statute of MertonEditum Anno1
It is called the Statute of Merton, because the Parliament was holden at the Monastery of the Canons regular of Merton, seaven miles distant from the City of London, which Monastery was founded by Gislebert a noble Norman, that came in with the Conqueror. And this is that Monastery of Merton, the Prior whereof had a great case in Law, which long depended between him and the Prior of Bingham.2
It was Provided in the Court of our Lord the King, holden at Merton on Wednesday the Morrow after the Feast of St. Vincent, the 20th year of the Reign of King Henry the Son of King John, before William Archbishop of Canterbury, and other his Bishops and Suffragans and before the greater part of the Earls and Barons of England there being assembled; for the Coronation of the said King, and Hellianor the Queen, about which they were all called; where it was treated for the Commonwealth of the Realm upon the Articles underwritten; thus it was provided and granted, as well of the foresaid Archbishops, Bishops, Earls and Barons, as of the King himself and others.
“Before William Archbishop of Canterbury, and other his Bishops and Suffragans.”
Suffraganeus properly is a vicegerant of a Bishop, instituted to aid and assist him in his spirituall office, and is so called a suffragiis: Of these you may read in the Statutes of 26. Hen. 8. 1. & 2. Phil. & Mariae. I. Eliz.3 And where some copies have Coram Cantuar’ Archiepiscopo, & Coepiscopis & suffraganeis;4 this latter conjunction (&) is more then ought to be; for suffraganeis suis must referre to Coepiscopis, that is, that the Bishops should aide and assist the Archbishop with their suffrages: for other Suffragans, which were Vicegerents of Bishops, never had Voyce in Parliament, because they held not per Baroniam,5 as all Bishops doe, and many Abbots and Priors, as hath beene said, did, in respect whereof they were Lords of Parliament.6
“For the Coronation of the said King.”
The king was formerly Crowned at Gloucester on the 18, of October, in the beginning of the first yeare of his raigne, then being about nine yeares old: And here it appeareth that in the twentieth yeare of his raigne, he was Crowned again, then being about 29. yeares old, twice Crowned, as King Henry the second, and King John before him had been, and as King Richard the second after him was.
“And Hellianor the Queen.”
This Elianor was daughter, and one of the heires of Raymond Berengary Earle of Province, she was sister to the Earle of Province, andto Boniface, Archbishop of Canterbury, and she was Crowned at Westminister.
| She survived the King, and of a Crowned Queen became a professed Nun in Ambresbury, and died a Nun there, in the nineteenth yeare of her Widowhood.
The Statutes enacted at this Parliament are divided into eleven Chapters.
| To the King’s Writ of Bastardy,1 whether one being born before Matrimony, may inherit in like Manner as he that is born after Matrimony, all the Bishops answered, That they would not, nor could not answer to it; because itwasdirectly against the common Order of the Church. And all the Bishops instanted the Lords, that they would consent that all such as were born afore Matrimony should be legitimate, as well as they that be born within Matrimony, as to the Succession of Inheritance, forsomuch as the Church accepteth such for legitimate. And all the Earls and Barons with one voice answered, that they would not change the Laws of the Realm, which hitherto have been used and approved.
“Against the common Order of the Church.”2
For the better understanding of this branch, it is to be known, that in the time of Pope Alexander the third, (who lived Anno Domini 1160, which was Anno 6 Hen. 2.) This constitution was made, that children borne before solemnization of Matrimony, where Matrimony followed, should be as legitimate to inherit unto their Auncestors, as those that were borne after Matrimony, and thereupon the Statute saith, Ecclesia tales habet pro legitimis.3
Of this Canon, or constitution Glanvill writeth thus,4Orta est quaestio, si quis antequam pater matrem suam desponsaverat fuerit genitus vel natus, utrum talis filius sit legitimus haeres, cum postea matrem suam desponsaverat: Et quidem licet secundum Canones & leges Romanas talis filius sit legitimus haeres, tamen secundum jus & consuetudinem Regni nullo modo tanquam haeres in haereditate sustinetur, vel haereditatem de jure Regni petere potest.5
And herewith doe agree not onely other auncient Authors,6 but the constant opinion of the Judges in all succession of ages ever since, of the auncient Law of England. Hereupon these two conclusions doe follow:
1. That any forein Canon or constitution made by authority of the Pope, being (as Glanvill saith) Contra jus & consuetudinem Regni,7 bindeth not untill it be allowed by Act of Parliament, which the Bishops here prayed it might have beene; for no Law, or Custome of England can be taken away, abrogated, or annulled, but by authority of Parliament.8
2. That although the Bishops were Spirituall Persons, and in those dayes had a great dependency on the Pope, yet in case of generall bastardy, when the King wrote to them to certifie, who was lawfull heire to any lands, or other inheritance, they ought to certifie according to the Law, and custome of England, and not according to the Romane Canons, and constitutions, which were contrary to the Law, and custome of England, wherein the Bishops sought at this Parliament to be relieved.9
See the first part of the Institutes, sect. 399. & 400. and adde thereunto: Assisa venit, &c. Si Nicholaus de Lewkenor Pat’ Thom’ de Lewkenor fuit seisitus, &c. de manerio de Southmyms quod Rogerus de Lewkenor tenet, qui dicit quod ipse est frater ipsius Thomae antenatus de eodem Patre, & eadem Matre, & est seisitus de pradictis tenementis, & clamat per eundem discensum, et petit Judiciū.10Thom’ dic’ quod Rogerus non potest clamare per eundē descensum, quia dicit quod idem Rogerus natus fuit extra Sponsalia, &c. Et quia idem Tho’ non potest didicere, quin idem Rogerus sit frater ipsius Tho’ antenatus de eodem Patre, & eadem Matre, & post mortem praedicti Nicholai Patris, &c.11intravit in eisdem tenementis ut filius ejus & haeres, Consideratum est quod praedictus Rogerus ind’ sine die. Et Tho. Nich. cap’ per Assisam, et sit in misericordia, &c.Judgement.
Note by this judgement that the bastard eigne to this intent is accounted heire, and of the blood with the Mulier puisne, as the Mulier puisne cannot have an Assise of Mortdanc12 against him.
We remember not that we have read in any Book of the legitimation, or adoption of an heire, but onely in Bracton lib. 2. cap. 29. fol. 63. b. and that to no little purpose; but the surest adoption of an heire, is by learned advice, to make good assurance of the land, &c.
“And all the Earls and Barons with one voice answered, that they would not change the Laws of the Realm, which hitherto have been used and approved.”13
The Nobility of England have ever had the Laws of England in greatestimation and reverence, as their best birth-right, and so have the Kings of England as their principall royalty and right belonging to their Crown and dignity: This made King Henry the first that noble King sirnamed Beauclerk,14 to write to Pope Pascall, Notam habeat sanctitas vestra, quod me vivente (auxiliante | Deo) dignitates & usus regni nostri Angliae non imminuentur, & fi ego (quod absit) in tanta me dejectione ponerem, optimates mei & totus Angliae populus id nullo modo pateretur.15
And it is worthy the observation, how dangerous it is (as elsewhere hath been often noted) to change an ancient Maxime of the Common Law.
Some have written,16 that William the Conquerour being borne out of matrimony, Robert his reputed father did after marry Arlot his mother, and that thereby he had right by the Civil and Cannon Law, but that is contra legem Angliae,17 as here it appeareth. And during this Parliament in the 20. year of Hen. 3. it may be collected by the 23. and 24. Epistles of Robert Grostead then Bishop of Lincoln directed to William Rawleighe (Priest) then one of the Kings Justices, that this matter to bring the nati ante matrimonium18 to be made legitimate was vehemently laboured by the Clergie: And in the 26. Epistle to the Bishop of Canterbury, he findeth fault with the Arch-bishop, for that the King and his Councell had resolved that the Law and Custome, of the Realme in this point should continue still: Whereby it appeareth, that not onely the Nobles, but the King himselfe was against it.
And in the Letters which all the Nobilitie of England by assent of the whole cominalty assembled in Parliament at Lincoln wrote to Pope Boniface, it is this conteyned,19Ad observationem & defensionem libertatum, consuetudinum, & legum paternarum ex debito praestiti sacramenti astringimur, quae manutenebimus toto posse, totisque viribus cum dei auxilio defendemus, nec etiam permittimus aut aliquatenus permittemus, sicut nec possumus nec debemus praemissa tam insolita, indebita, praejudicialia, & alias inaudita dominum nostrum regem, etiam si vellet, facere, seu quomodolibet attemptare:20 (and there the inconveniences are set down) praecipae cum praemissa cederent manifeste in exheredationem Juris coronae Regis21Angliae & regiae dignitatis, ac subversionem status ejusdem Regni notoriam, necnon in praejudicium libertatum, consuetudinum & legum paternarum,22 sealed by the severall seales of Armes of 104, Earles and Barons, and in the name of all the comminalty of England. And to that effect King Edward the first with also to the Pope.
“The Laws of the Realm.”
Here our common lawes are aptly and properly called the lawes of England because they are appropriated to this Kingdome of England as most apt and fit for the government thereof, and have no dependancy upon any forreigne law whatsoever, no not upon the civill or cannonlawotherthenincafesallowed by the laws of England, as partly hath been touched before: and therefore the Poet spake truly hereof, Et penitus toto divises orbe Brittannos:23 so as the law of England is proprium quarto modo24 to the Kingdome of England; therefore forrein precedents are not to be objected against us, because we are not subject to forrein lawes.
And it is a note worthy of observation, that where at the holding of this Parliament in anno 20 Hen. 3. and before, and some time after, many of the Judges and Justices of this Realme were of the Clergy, as Bishops, Deanes, and Priests, and all the great officers of the Realme, as Lord Chancellor, Treasuror, Privyseale, President, &c. were for the most part of the Clergy; yet even in those times the Judges of the Realme, both of the Clergy and Laity, did constantly maintaine the lawes of England, so as no incroachment was made upon them or breach unto them by any forreine power as partly hath been shewed in Caudries case:25 and many more judgements and authorities in law might be produced for the manifestation thereof: See the first part of the Institutes, many of the Clergy, Judges and Justices of the realme of ancient time.
“And all the Bishops instanted the Lords, that they would consent, &c.”
Here was the motion and request, But Bracton saith26Rogarunt Regem & magnates: Et omnes comites & barones una voce responderunt, Nolumus leges Angliae mutare &c;27 for so it is in ancient Manuscripts.
| This is the first of this kind, that we remember, that hath been printed, for it is to be understood that by the parliamentary order all motions and petitions made (as this was) though they were denied, and never proceeded to the establishment of a Statute, yet the same were entered into the Parliament roll together with the answers thereunto: but this is the first of this kinde (as hath been said) that hath been printed.28
And yet in our books this is called a Statute, for Sr. Galfred le Scrope chiefe Justice saith, before the statute of Merton the party pleaded not general bastardy, but that he was borne out of espousals; and the Bishop ought to certifie whether he were borne before espousals or not, and according to that certificate to proceed to judgement according to the law of the land: And the prelates answered that they could not to this writ answer, and therefore ever since special bastardy (viz. that the defendant, &c. was borne before espousals) have been tried in the Kings Courts, and generall bastardy in court Christian; and herewith agreeth our old books and the constant opinion of the Judges ever since.29
Now for that this point was resolved in Parliament, it is here in a large sense called a Statute.
It is Provided and granted, that every Freeman, which oweth Suit to the County, Trything, Hundred, and Wapentake, or to the Court of his Lord, may freely make his Attorney to do those Suits for him.
Nota, There be two kinds of suits, viz. suit reall, that is, in respect of his reliance to a Leet or Tourne: and suit service, that is, by reason of a tenure of his land of the County, Hundred, Wapentake, or Mannor whereunto a Court Baron is incident: before this Act every one that held by suit service ought to appeare in person, because the suiters were Judges in those Courts,1 otherwiseheshould be amercied, which was mischievous, for it might be, that he had lands within divers of those Seigniories, and that the Courts might be kept in one day, and he could be but in one place at one time: But this Statute extends not to suit reall, because he cannot be within two Leets, &c.
Here it signifieth a Court which consisteth on three or foure Hundreds, and doth not here signifie a Leet or view of frankpledge.
That, which in some Countries is called a Hundred Court, in some Countries is called a Wapentake. Quod Angli vocant Hundredum supradicti Comitatus vocant Wapentagium.4 Now the reason of the name was this: When any on a certaine day and place took upon him the government of the Hundred, the frée suiters met him with launces, and he descending from his horse, all rose up to him, and he holding his launce upright, all the rest, in signe of obedience, with their launces touched his launce or weapon: for the Saxon word wapen, is weapon, and tac, is tactus, or touching: and thereo this assemblie was called Wapentake, or touching of weapon.5
Now albeit he that holdeth by suit service may make an Attorney, yet that | Attorney cannot sit as Judge, as the free suiter himselfe might doe, for he cannot depute another in his judiciall place; and the words of the Statute be; Libere possit facere attornatum ad sectas illas pro eo faciendas.6
This doth extend to Free-holders in ancient demesne but not to Copieholders.7
“Make his Attorney.”
8 He must make a Letter of Attorney under his seale, which the Steward ought to allow; and if he doe not, the suiter may have a Writ out of the Chancery for the allowance of him: or if he doubted that he should not be allowed, he might have a Writ before-hand to receive him as Attorney:9 and such a Writ shall serve during the life of the tenant, &c. for the words of another Writ be, Et quia virtus Brevium nostrorum de hujusmodi Attornato faciendo terminum non capit, nec terminus limitatur durantibus personis, &c.10
What such an Attorney may doe, and who cannot be Attorney, seé the Statute of West. 1.11
“To do those suits for him.”
So as by force of this Act he may doe such suit, as the Freé-holder ought to doe.
See the Register 19. This Act extendeth to Justices in Eire.
Concerning Trespasses in Parks and Ponds it is not yet discussed; for the Lords demanded the proper Imprisonment of such as they should take in their Parks and Ponds, which the king denied; wherefore it was deferred.1
Is a word of large extent, and ex vi termini2 signifieth a place in land or water, where living things be kept. Most commonly in Law it signifieth Parkes, Warrens, and Pilcharies or Fishings; here it is taken for Warrens and Fishings, for that Parks were named before.
This Petition of the Lords in Parliament stood upon three branches: 1. That they might imprison such as they should take in the Parks and Vivaries, which seemed to be against the 29. Chapter of Magna Charta. 2. That they should have propriam prisonam,3 a prison of their own, which no subject can have; for all prison or gaoles are the Kings prisons or gaoles, but a subject may have the custodie or keeping of them.4 3. That they should not be imprisoned in the common gaole. All which Dominus Rex contradixit.5
Statute of Marlebridge,EditumAnno gratiae
1 Now called Marleborough, a Town in Wiltshire, the greatest fame whereof is the holding of this Parliament there: Henricus vero, &c. Concilium convocavit Marlebrigium, quod est pagus celebris comitatus Wilceriae, qui in eo conventu primum leges ab se latas, & praesertim Magnae chartae de concilii sententia approbandas, deinde alias condendas curavit, quae ad statum & commodum regni maxime conducerent.2
This Towne in our Books is called a Citie, and the Fréemen thereof Citizens.3
“52 Hen. 3.”
This king raigned longest of any King since the Conquest, or before, that we remember; for he raigned 56. yeares. But the great and famous Quéene Elizabeth was of greater yeares then any of her progenitors, for she attained néere to 70. yeares. So King Henry the third raigned longest, and Quéen Eliz. lived longest. She raigned the yeares of the Emperour Augustus, and lived the yeares of King David.
In the Year of Grace, One thousand two hundred sixty-seven, the two-andfiftieth Year of the Reign of King Henry, Son of King John, in the Utas of Saint Martin, the said King our Lord providing for the better Estate of his Realm of England, and for the more speedy Ministration of Justice, as belongeth to the Office of a King, the more discreet Men of the Realm being called together, as well of the higher as of the lower Estate: It was Provided, agreed, and ordained, that whereas the Realm of England of late had been disquieted with manifold Troubles and Dissensions; for Reformation whereof Statutes and Laws be right necessary, whereby the Peace and Tranquillity of the People must be observed; wherein the King, intending to devise convenient Remedy, hath made these Acts, Ordinances and Statutes underwritten, which he willeth to be observed for ever firmly and inviolably of all his Subjects, as well high as low.
This generall Preamble to all the Statutes of Marlebridge both consist on foure parts.
1. The end wherefore these Statutes were made, for sapiens incipit a fine,4 and that is twofold; 1. Ad meliorationem regni Angliae.2. Ad exhibitionem justitiae (prout regalis officii exposcit utilicas) pleniorem.5
Of what members this parliament consisted, Convocatis discretioribus ejusdem regni, tam majoribus, quàm minoribus.6
3. What was the cause of calling this Parliament, Cum regni Angliae multis tribulationibus & dissentionum incommodis nuper esset depressum.7 The many fearfull and dangerous troubles and dissentions the King and his Barons, which I had rather you should reade in History, then I should relate, grew originally out of this root, that the King sometimes allowed, and sometimes disallowed Magna Charta, and Charta de Foresta.
4. What should be the remedy that peace and tranquillity might ensue, Utcum regnum &c. reformatione legum & jurium quibus pax & tranquillirat incolarum conservetur indigeat, ad quod remedium salubre per ipsum regem & suos fideles provisiones, ordinationes, & statuta subscripta, ab omnibus regni suis incolis tam majoribus quàm minoribus firmiter & inviolabiliter temporibus perpetuis statuerit observari.8
This remedy that should for ever in all future times be inviolably observed, consisted upon two parts.
1. For establishing of Magna Charta, and Charta de Foresta, whereof more shall be said when we come to the first Chapter. In the meane time, this is to be observed, that after this Parliament neither Magna Charta, nor Charta de Foresta, was ever attempted to be impugned or questioned;whereuponpeace and tranquility, whereof this Preamble speaketh, have ever since ensued.
2 For enacting of new Lawes, or declaring of old, with addition of great punishment.*
Statutum de Westminster primer.Editum Anno
The Preface of the Statute of W.1.
| These be the Acts of King Edward, Son to King Henry, made at Westminster at his first Parliament general after his Coronation, on the Monday of Easter Utas, the Third Year of his Reign, by his Council and by the assent of Archbishops, Bishops, Abbots, Priors, Earls, Barons, and all the Commonalty of the Realm, being thither summoned: Because our Lord the King had great zeal and desire to redress the State of the Realm in such Things as required Amendment for the common profit of Holy Church, and of the Realm: And because the State of the Holy Church had been evil kept, and the Prelates and Religious Persons of the Land grieved many ways, and the People otherwise intreated than they ought to be, and the Peace less kept, and the Laws less used, and the Offenders less punished, than they ought to be, by reason whereof the People of the Land feared the less to offend; the King hath ordained and established these Acts underwritten; which he intendeth to be necessary and profitable unto the whole Realm.
“These be the Acts”
The Preface of the Statute of West. 1.Stabilimina, or stabilimenta, Establishments, or Assurances comuting of stabilis, and that againe à stando, of standing; And justly may not onely these Chapters challenge that name, but all other the Statutes name in the raigne of this King may be styled by the name of Establishments, because they are more constant, standing, and durable Laws, then have been made ever since:1 so as King Edward the first who (as Sir William Herle Chiefe Justice of the Court of Common Pleas, that lived in his time, said, Fuit le pluis sage Roy que unques fuit2 ) may well bee called our Justinian.
“At his first Parliament general.”
So called, because all the Laws then made were general, and that great and honourable Assembly were not entangled with private matters, but with such onely, as were for the generall good of the Common-wealth, for the end of this Parliament, is, as hereafter in the Preface is expressed, Pour le common profit de Saint Esglise, & dei Realm.3
| “after his Coronation,”
He began his raigne the 16. day of November, Anno Dom. 1272. he then being in the land of Palestine; and after his returne into England, was crowned the 19. day of August, in the 2. yeare of his raigne, (and not the 9. day of December, in the 1. yeare of his raigne, as some have mistaken) as evidently appeareth by this Preface, and by ancient Records hereafter remembred.4
“on the Monday of Easter Utas,”5
That is, in crastino clausi Paschae, or in crastino octabis Paschae,6 which is all one: in English, the morrow of the utas of Easter. It is called utas of huit, which signifieth eight, viz. the eighth day after, including Easter day it selfe for one.
Note, this Parliament was summoned to be holden at London in quindena of the Purification after his, Coronation, and prorogued from thence until the morrow after the utas of Easter to be holden at Westminster. And the number of eight was much respected in the ancient Lawes, as amongst the Lawes of King Edward the Confessor. Pax regis die qua coronatus est quae dies tenet octo, indienatali Domini dies octo, in Paschate dies octo, in Pentecoste dies octo, &c.7 Now the eighth day, accounting the feast day for one, is clausum festi8 that is the closing up of the feast for many purposes.
“The Third Year of his Reign.”9
This proveth that he was crowned in Anno 2. for if he had been crowned in Anno 1. of his raigne, then this Parliament should have been holden in the 2. yeare: and this is proved by other matter of Record. But the truth is, that the 19. day of December, in Anno 1. of his raigne, he was not returned into England.
Rex venerabili in Christo Patri, Roberto Cant’ Archiepiscopo, totius Angliae Primati, salutem.10 Quia generale Parliamentum nostrum, quod cum Praelatis & Magnatibus regni proposuimus habere London’ ad quindenam Purificationis beatae Mariae proxim’ futur’, quibusdam certis de causis prorogavimus usque in crastinum clausi Paschae proxim’ sequen’; vobis mandamus rogantes quatenus eidem Parliamento ibidem in eodem crastino clausi Paschae intersitis ad tractandum & ordinandum una cum Praelatis & magnatibus regni nostri de negotiis ejusdem regni, & hoc nullatenus omittatis. Teste Rege apud Woodstock, 27. die Decembris.
Rex in primo generali Parliamento suo post coronationem suam in crastino octabis Paschae,11 Anno regni sui 3. de voluntate sua, & Consiliarioorm suorum consilio, & communitatis regni sui ibidem convocat’ consensu, ad honorem Dei, &c. ordinavit & statuit quod &c.
“By his Council.”
This proveth that this King and other Kings before him had a Privie Councell, which appeareth by the Writs of Parliament, that Parliaments are ever summoned to be holden de advisamento consilii nostri.14 Of this see more in this first Chapter.
“By the assent of Archbishops, Bishops, Abbots, Priors, Earls, Barons, and all the Commonality of the Realm, being thither summoned.”
Here is a compleat Parliament for the making or enacting of Lawes, the King, the Lords Spirituall and Temporall, and the Commons:15 For if an Act be made by the king, and the Lords Spirituall and Temporall, or by the King and the Commons, this bindeth not, for it is no Act of Parliament; for the Parliament concerning making or enacting of Lawes consisteth of the King, the Lords Spirituall and Temporall, and the Commons; and it is no Act of Parliament, unlesse it be made by the King, | the Lords and Commons. And where it is said, by all the Commonalty, all the Commons of the Realme are represented in Parliament by the Knights, Citizens and Burgesses.16
The purpose of this Parliament is to redresse the state of the Church and of the Realme in those things that need amendment. The end is twofold, Pur le common profit de saint Esglise, & de son Realme.17
There were five things that needed amendment.
1. For that the State of the Realme and of holy Church (which are ever like Hipocrates twins) had been ill governed.
2. That the Prelates and other men of the Church many wayes had been grieved, and the people otherwise entreated then they ought to have been.
3. The Peace had not been well kept, which was against a maine Maxime of the Law, Inprimis interest reipublicae, ut pax in regno conservetur, & quaecunq; paci adversentur, providè declinentur:18 Which Maxime hath been repeated and affirmed by authority of Parliament.19
4. That the Lawes had not been put in execution against another principle of the Common Law, Nihil infra regnum subditos magis conservat in tranquilitate et concordia, quam debita legum administratio.20 Affirmed also in Parliament.21
5. Offendors seldome punished, Et impunitas continuum affectum tribuit delinquendi;22 for this Statute saith, By reason whereof the people of the land feare lesse to offend.
The remedy hath two excellent qualities, which ought to be inseparable to every Act of Parliament, viz. to be profitable, and convenient.
2. The Writ is, Pro quibusdam arduis & urgentibus negotiis nos, statum & defensionem regaeni nostri Angli concernentibus:25 and it is expressed in this Act, Que nostre Seigniour le Roy ad graund volunt, & desire del estate de son Realme redresser, en les choses ou mestier est damendement, & ceo pur le common profit de saint Esglise & de son Realme, & pur ceo que lestate de son realme & de saint Esglise ad estre malement gard, &c.26
And here it is to be observed, that this noble and wise King Edward the first was contented in a free and generall Parliament to heare of the misgoverment of the State of the Realme and of the Church, and never sought to cover those irregular proceedings, either in his fathers time, or his owne; and thought it should be greater honour for him to rip up these grievous ulcers both in the Church and Common-wealth, and to cure them by wholsome rules and lawes, then to cover them, lest it should be vainly feared they should reflect upon his fathers, or his owne misgovernment, where in truth all the salt fault should rest upon great Counsellors, and Officers, and Ministers of Justice, and other the Kings Officers and Ministers27 and so it hath falne out in divers other Kings times. This Preamble to all the Statutes is worthy of due and deliberate consideration.
Of this worthy King we have spoken in other places; This we will adde out of an approved Author, Nemo in consiliis illo argutior, in eloquio torrentior, in periculis securior, in prosperis cautior, in adversis constantior.28
Now this Parliament holden at Westminster, is called Westminster the first for excellencie.*
Statutum de Glocester,Editum Anno
| This Parliament was holden at Glocester bordering upon Wales, for the better preservation of peace in Wales, Lluellin Prince of Wales, and the Welshmen being a little before this Parliament brought to quietnesse.
The Year of Grace M.C.C. lxviii, and the Sixth of the Reign of King Edward Son of King Henry, at Gloucester, in the month of August, the King himself providing for the Amendment of his Realm, and for a fuller Administration of Justice, as the good of the Kingly Office requireth, having called unto him the more discreet persons of his Kingdom, as well of the greater as of the less: It is Established and Ordained with one accord, That Whereas the same Kingdom, in many divers Cases, as well of Franchises as of other Things, wherein aforetime the Law hath failed, and to avoid the grievous Damages and innumerable Disherisons which this Default of the Law hath caused to the People of the Realm, hath need of divers Additions to the Law, and of new Provisions, therefore the Statutes, Ordinances, and Provisions under-written should be stedfastly observed by all the People of the Kingdom.
Whereas the Prelates, Earls, Barons, and others of the Kingdom, claim to have divers Franchises, for the Examination and Judgment whereof the King had appointed a day to the said Prelates, Earls, Barons, and others: It is Provided and granted with one accord, that the aforesaid Prelates, Earls, Barons, and others, may use such sort of Franchises, so that nothing accrue to them by Usurpation or Occupation, and that they occupy nothing against the King, until the next coming of the King through the County, or the next coming of the Justices in Eyre for Common Pleas into the same County, or until the King shall otherwise order: Saving the King’s Right when he shall put the same in Suit, according to what is contained in the King’s Writ. And hereof Writs shall be issued to the Sheriffs Bailiffs and others, in Behalf of every Demandant; and the Form of the Writ shall be changed according to the Diversity of the Franchises that each man claimeth.
| And the Sheriffs shall cause it to be commonly proclaimed throughout their Bailliwicks, that is to say, in Cities Boroughs Market Towns and elsewhere, that all those who claim to have any Franchises by the Charters of the King’s Predecessors, Kings of England, or in other manner, shall come before the King or before the Justices in Eyre, at a certain day and place, to shew what sort of Franchises they claim to have, and by what Warrant. And the Sheriffs themselves shall then be there in their proper persons, with their Bailiffs and Officers, to certify the King upon the aforesaid Franchises and other matters touching the same. And this Proclamation before the King shall contain Warning of three Weeks. And in like manner shall the Sheriffs make Proclamation in the Circuit of the Justices; and in like manner shall come in their proper persons, with their Bailiffs and Officers, to certify the Justices of such sort of Franchises, and other matters touching the same. And this Proclamation shall give warning of forty days, as the common summons containeth; So that if the Party who claimeth the Franchise come before the King, he shall not be put in Default before the Justices in Eyre; forasmuch as the King of his special Grace hath granted that he will save the Party harmless in respect of this adjournment. And if any such Party be impleaded upon such sort of Franchises before two of the aforesaid Justices, the same Justices before whom the Party is in Plea, shall save him harmless before other Justices; and the King likewise before himself, when he shall know from the Justices that the Party was in Plea before them, as it is before said. And if they that claim to have such Franchises come not at the day aforesaid, then the Franchises shall be taken into the King’s hand by the Sheriff of the place, in name of Distress; so that they shall not use such sort of Franchises until they come to receive Justice. And when they come upon that Distress, their Franchises shall be replevied, if they demand them; upon which Replevin they shall answer forthwith in the form aforesaid. And if peradventure the parties except, that they ought not to answer thereupon without an original Writ, then if it can be known that they have, by their own act, usurped or occupied any Franchises upon the King or his predecessors, they shall be told forthwith to answer without Writ; and shall thereon receive | such Judgment as the King’s Court shall award. And if they alledge further that their Ancestor or Ancestors died seised of the same Franchises, they shall be heard, and forthwith Inquiry shall be made of the Truth, and according thereto the Justices shall proceed in the business. And if it be found that their Ancestor died seised thereof, then the King shall have an original Writ out of his Chancery in the form made for that purpose. “The King to the Sheriff, Greeting: Summon by good summoners such an one, that he be before Us, at such a place, upon our next coming into the County; or before our Justices at the first Assises, when they shall come into those parts; to shew by what Warrant he holds his View of Frankpledge in his Manor of N. in the same County; and let the Sheriffs have there the Summoners and this Writ: or thus; by what Warrant he holds the hundred of B. in the County aforesaid: or thus; by what Warrant he claims to be quit of Toll, for him or his men, throughout our Realm, by continuance after the death of such an one late his predecessor. And have there the summoners and this Writ.” And the Forms of the Writs shall be charged according to the diversity of the Franchises and of the Case, and according to the Discretion of the Chancery, and of the Justices. And if the Parties come at the day, let them answer; whereupon Replication shall be made, and Judgment given. And if they come not, neither essoin themselves before the King, and the King tarry longer in that County, the Sheriff shall be commanded to cause them to appear at the fourth day; at which day if they come not, and the King tarry longer in that County, the proceeding shall be as it is in the Circuit of the Justices. And if the King depart out of that County, the Parties shall be adjourned unto a short day, and shall have reasonable delays according to the discretion of the Justices, as in actions personal. And the Justices in Eyre shall proceed herein, in their Circuits, according to the Ordinance aforesaid and according as such sort of Pleas ought to be proceeded upon in the Eyre.
Concerning Complaints made and to be made of the King’s Bailiffs, and of other Bailiffs, it shall be done according to the Ordinance before made thereof, and according to the Inquests before had thereupon. And the Justices in Eyre shall do therein, according to what the King hath enjoined them, and according to the Articles which the King hath given them in charge.
“Year of grace 1267.”
This should be 1278. for that was Anno 6 Edw. 1. this Parliament being holden in August, anno 6 Edw. 1. for 1267. was in 51 Hen. 3.1
This Chapter concerning Liberties and Franchises, and the Quo warranto,2 (and intituled Statutum de quo warranto) hath been supposed by many to be enacted in Latin, Anno 30 Edw. 1. and therefore some have omitted to insert it in the 6. yeare; but it is utterly mistaken: for the King in the 30. yeare did publish and proclaime this Act under the great Seale,3 and doth recite it to be made, Anno Dom. 1278. and in the 6. yeare of his raigne. Vide 14. Edw. 1. Inter originals de Anno 14 Edw. 1. Breve de libertatibus allocandis,4 and there is another Statute made | in 18 Edw.1. called Statutum de quo warranto novum,5 so called, in respect of this former Statute.
And besides; the Statute in French differeth from the recitall thereof in 30 E.1 which, for that it agreeth with the Record, we will follow it when we come to the body of the Act.
“Providing for the Amendment of his Realm, and for a fuller Administration of Justice.”
Which by the said Proclamation in 30. E.1. is rendred thus. Ad Regni sui Angliae meliorationem, & exhibitionem Justiciae pleniorem:6 two excellent ends of a Parliament, Regni melioratio,7 that is for the common good of the Kingdome, the Parliament being Commune concilium,8 and exhibitio Justiciae plenior,9 for nothing is more glorious, and necessary, then full execution of Justice.
And it is added, Prout Regalis officii exposcit utilitas;10 and accordingly at this Parliament many profitable and just Laws were made, as one speaking of this Parliament saith truly,11In quo quaedam de Regni statu decreta sunt, quae nunc ut jura, & aequitate plena maxime usurpantur.12 And that I may speak once for all, it is worthy of observation that the Statutes made in this noble Kings time are so agreeable to common right and equity, as few or none of them have been abrogated, but being founded upon these two pillars, (the amendment of the Kingdome, and the due execution of Justice) remaine and continue as just and constant Laws to this day.
“Such manner of Liberties.”
For the better understanding of this Act it shall be necessary out of History to shew the cause of the making hereof.
The truth is, that the King wanting money, there were some innovatores those dayes, that perswaded the King, that few or none of the Nobility, Clergy, or Commonalty, that had franchises of the graunts of the Kings predecessors, had right to them for that they had no Charter to shew for the same, for that in troth most of their Charters either by length of time, or injury of wars13 insurrections, or by casualty were either consumed, or lost: whereupon (as commonly new inventions have new wayes) it was openly proclaimed, that every man, that held those liberties, or other possessions by graunt from any of the Kings Progenitors, should before certain selected persons thereunto appointed shew, quo jure, quove nomine ill’ retinerent, &c.14 whereupon many that had long continued in quiet possession, were taken into the Kings hands, Eo quod nula tabella constarent:15 Hereof the Story saith, Visum est omnibus edictum ejusmodi post homines natos longe acerbissimum: Qui fremitus hominum? quam irati animi? quanto in odio princeps esse repente coepit?16
The good King understanding hereof, and finding himselfe abused by ill counsell, and considering the Statute of Magna Charta,17 at the Parliament holden in the end of his fourth yeare by Proclamation, and at the petition of the Lords and of the Commons now at this Parliament, by authority of Parliament provideth remedy, as hereafter you shall heare: This is fully agreed upon in all our Histories, onely the time in some of them (as oftentimes in other cases it falleth out) is mistaken, which by this Act shall be rectified according to true Chronologie.
“And likewise agreed.”
It was rightly said concorditer concessum, for that the said innovation was like to have been a cause of great discord betweene the King and the better sort of his Subjects.
“That the said Prelates, Earls, Barons, and others shall use such manner of liberties, after the form of the writ here following.”
| This forme of a Writ is more satisfactory, then any other forme is, and this was the auncient use.
“Cum nuper in Parliamento nostro apud Westm’ ”18
That is, in the last Parliament holden after Michaelmas, towards the end of the fourth year of his raigne, & therefore the great grievances abovesaid must be before that Parliament, for the cure was after the disease, and the remedy after the grievance.
“Provisum sit et Proclamatum”19
But this was never (that I can finde) recorded: Now by this Act it is provided that a Writ shall be granted.
“Quibus hucusque rationabiliter usi sunt ”20
See the Register 162, 163. De libertatibus allocandis,21 & F.N.B. 229, 230.
“Usque ad adventum nostrum per Comitatum praedictum, vel usque proximum adventum Justiciariorum Itinerantium, &c.”22
That is, untill the Court of Kings Bench came thither, or the next comming of the Justices in Eyre: So all men should quietly enjoy their Franchises, which they had reasonably used, untill the Court of Kings Bench, or untill the Justices in Eyre came into that County: Here it is to be observed, that this good King and his Councell in Parliament referred the party grieved to a legall proceeding, which implieth, that a contrary course was holden before. But you will demand, What remedy was this for him, that could not produce his Charter, to be left to the Law: I answer, that this was a full and perfect remedy according to Justice and right; for the better apprehension whereof these distinctions are to be observed: First, these Franchises intended by this Act be of two sorts, The one may be claimed by usage and prescription, as wreck of the Sea, Waste, Stray, Faires, Markets, and the like, which are gained by usage, and may become due without matter of Record: And Felons goods, outlawes goods, and the like, which grow not due but by matter of Record, and therefore cannot be claimed by usage in paiis,23 but by Charter: And yet all these at the first were derived from the Crowne.24
Secondly, Judicis officium est, ut res, ita tempora rerum Quaerere;25 All these were granted either before the time of memory, or after the time of memory: if before the time of memory, then for the former sort, such as might be claimed by prescription, the party grieved might prescribe, and by Law he ought to be relieven. And for such as lay in point of Charter graunted before time of memory, the party grieved had two remedies, either by allowance, or confirmation; by allowance in the Kings Bench, or before the Justices in Eyre, and in some case before the Justices of the Court of Common Pleas, and in the Exchequer; or by confirmation of the King under the great Seale: and these were sufficient for him without shewing the Charter, and the equity of the Law herein was notable, for that no Charter before time of memory was pleadable by Law.
If these Franchises either of the one sort or other were graunted within memory, yet if the same had been allowed, as is aforesaid, the same might also be claimed by force of the Charter and allowance, without shewing the Charter, because it had been adjudged and allowed of Record. And it is to be knowne that all Franchises, which any man had either by prescription or by Charter, ought to be claimed before Justices in Eyre, or else for non-claime the same might bee left, as hereafter shall bee said: So as the remedy provided by this Act was plenary and perfect to give reliefe to them that right had.26
| To this for the time may be added, that ancient Charters, whether they be before time of memory, or after, ought to be confirmed, as the Law was taken when the Charter was made, and according to ancient allowance.27 ,28 Now what time of memory is, see the first part of the Institutes, sect. 170.
But now by the Statutes of 3 Edw.6. and 13 Eliz. there is further remedy given: for albeit the Charter or Letters Patents be lost, yet the exemplification or constat29 of the Roll may be shewed forth,30 &c. And when any claimed before the Justices in Eyre any Franchises by an ancient Charter, though it had expresse words for the Franchises claimed, or if the words were generall, and continuall possession pleaded of the Franchises claimed, or if the claim was by old and obscure words, and the party in pleading, expounding them to the Court, and averring continuall possession according to that exposition; the Entry was ever Inquiratur super possessionem & usum, &c.31 which I have observed in divers Records of those Eyres, agreeable to that old Rule, Optimus interpres rerum usus.32
“Habeant praemunitionem per 40 dies.”33
This was by Writ of the common Summons of the Eyre, by the space of 40. dayes before the sitting of the Justices in Eyre.
Now leaving all that is evident, and needeth no exposition, let us come to the next that is worthy of observation.
Here is an ancient maxime in the Law implyed, that regularly no man ought to answer for his Freehold, Franchises, or other thing without originall Writ secundum legem terrae;36 and that the37 Statutes to that end provided are but declarations of the ancient Common Law, as here it is to be seen in case of Franchises in the Kings own case.
“Et si ulterius dicunt quod antecessores sui inde obierint seisiti, statim, audiantur & statim veritas inquiratur, &c.”38
By this is appeareth that a descent of Franchises doth put the King to his Writ of Quo warranto,39 which Writ is here expressed; and note that the Quo warranto is in nature of the Kings Writ of Right for Franchises and Liberties, wherein judgement finall shall be given either against the King for the point adjudged, or for the King; and the Salvo jure40 for the King serveth for any other title then that which was adjudged; and therefore William de Penbrogge the Kings Attorney,41 for prosecuting of a Quo warranto against the Abbot of Fischamp for Franches within the Mannour of Steynings sine praecepto,42 was committed to the Gavle.
“Et si non venerint, &c. praecipiatur vicecom’ quod faciat eos venire, &c. fiat sicut in Itinere Justiciariorum.”43 ,44
If before the Justice in Eyre the party come not, the Franchise should be seised into the Kings hands nomine distruction,45 which the party in the same Eyre might replevy; but if he did not replevy them while the Eyre sate in that County, the Franchises were lost and forgotten for ever.
Therefore if the party now upon the Venire facias,46 (which this Act doth give) come not while the Eyre sit in that County, the Franchises be lost for ever.
And so it is in the Kings Bench, if the party come not in upon the Venire facias during that term, and replevy his Franchises, they be lost for ever. And therefore we concurre not with that chief Justice that said, that Non-claim of Liberties before Justices in Eyre lost the Liberties, for that (saith he) was but of the Kings Grace to grant a Replevy of them, and not of Right;47 for this | opinion is against the authority of our Books, and the continuall practice before the Justices in Eyre.
“De querimoniis factiset faciendis de ballivis regis & aliorum fiat secondum ordinationem prius inde factam.”50
That is, according to the Articles of the Justices in Eyrecalled Capitula Itineris51 collected and authorised amongst other things, as here it appeareth, by ordinance of Parliament, and entered into the Parliament Roll, which you may see in old Magna Charta, fol. 150, 151, &c.
“Juxta articulo eisdem Justic’ nostris tradit’ ”52
The French saith, Solonque les articles que le roy lour ad livere.53 These Articles were delivered by the King to the Justices in Eyre to be enquired of, heard, and determined by them through all the Counties of England, which afterwards were increased, as by the same may appear.*
Statutum de Westminst Secundo,Editum Anno
The Preface of the Statute of W.2.
| Whereas of late our Lord the King, in the Quinzim of Saint John Baptist, the Sixth Year of his Reign, calling together the Prelates, Earls, Barons, and his Council at Gloucester, and considering that divers of this Realm were disherited, by reason that in many Cases, where Remedy should have been had there was none provided by him nor his Predecessors, ordained certain Statutes right necessary and profitable for his Realm, whereby the People of England and Ireland, being Subjects unto his Power, have obtained more speedy Justice in their Oppressions, than they had before; and certain Cases, wherein the Law failed, did remain undetermined, and some remained to be enacted, that were for the Reformation of the Oppressions of the People: Our Lord the King in his Parliament, after the Feast of Easter, holden the Thirteenth Year of his Reign at Westminster, caused many Oppressions of the People, and Defaults of the Laws, for the Accomplishment of the said Statutes of Gloucester, to be rehearsed, and thereupon did provide certain Acts, as shall appear here following.
It is commonly called Westminster the Second: Westminster, because this Parliament was holden at Westminster; and the Second, in respect of the former Parliament holden at Westminster, called Westminster the first.**
Statut. de Westminster 3.Editum Anno1
In the Parliament Roll it is intituled, Statutum Regis de terris vendendis & emendis.2
| It is called the Statute of Westm. 3. because two notable Parliaments had been before holden at Westminster, the one called Westm. 1. and the other called Westm 2.3 In respect whereof, and of the excellencie of it, this Parliament being holden at Westminster, is called Westm. 3.*
C. The Third Part of the Institutes
The Third Part of the Institutes of the Laws of England: Concerning High Treason, and other Pleas of the Crown, and Criminal Causes, first published in 1644, inventories the criminal law. It also covers, by way of many of the annotations, many points of criminal procedure. The complete table of offenses is reprinted here to provide a sense of Coke’s view of the whole field.—Ed.
Epigrams from the Title Page:
Quia non profertur cito contra malos sententia, absque timore ullo filii hominum perpetrant mala.1
Inertis est nescire quod sibi liceat.2
A Table of the Severall Chapters of the Third part of the Institutes, of the Pleas of the Crown.
Multi multa, nemo omnia novit.1
[101. ](a)Vide sect. 289. 14. H. 8. 6. 4. Hen. 7. 3. 10. H. 7. 24. 11. H. 7. 21. 14. H. 7. 4. 6. 21. H. 7. 36. 77. 9. H. 6. 52. 37 H. 6. 35. 22. E. 4. barre 116. 11. H. 4.90. 18. E. 3. Execution. 56. 4 E. 3.48. 8 E. 3. 13. 9. Ass. p. 12. 38. E. 3. 24.
[102. ][Ed.: The vesture of the land; that is, the corn grass underwood, sweepage and the like.]
[103. ][Ed.: According to the form of the charter (deed).]
[104. ][Ed.: Wherefore he broke the close.]
[105. ](b) Bract. fo. 222. 17. E. 3. 75. 39. H. 6. 38. II. Eliz. Dy. 285.
[106. ](c) Pasch, 12. Ja. inter Dockwray & Points in evidence al Jury in Banke le Roy.
[107. ](d) Vide Sect. 279. Bract. fo. 208. 40. E. 3.45. Pl. Com. 154. 10. H. 7. 24. 28. 7. H. 7. 13. 18. H. 6. 29. 34. H. 6. 43. 20 H. 6. 4. 18. E. 4. 4. 4. E. 3. 48. l. E. 3. 4. 32. E. 3. Scir. fac. 100. 22. E. 4. barre 116. 12. H. 3. Ass. 427. 34. Ass. 11. 13. E. 3. tit. Entrie 57. 20. E. 3. Briefe 685. W. 2. c. 24.
[108. ][Ed.: a several fishery.]
[109. ](e) Tr. 11. R. 2. in tresp. nient. Imprimee ne abridg. 11. H. 7.4.
[110. ][Ed.: fishing rights]
[1. ]The first Part of the Institutes, Sect. 1.
[2. ][Ed.: To all to whom the present letters shall come, etc.]
[3. ][Ed.: to the archbishops, bishops, dukes, marquesses, etc. [and] these being witnesses.]
[1. ]Inter leges seu Institutiones Regis Hen. 1. Cap. 1.
[2. ][Ed.: What is holy to God, and above all the church I make free, so that I shall neither sell nor farm, nor upon the death of an archbishop or bishop or abbot shall I take anything from the dominion of the church, or from their men, until their successor enters upon it, and I abolish therefrom all evil customs by which the realm of England was unjustly oppressed.]
[3. ][Ed.: That which is given to the Church is given to God.]
[4. ]See the first part of the Institutes. Sect. 1.
[5. ][Ed.: We have granted.]
[6. ][Ed.: I.]
[7. ][Ed.: we.]
[8. ][Ed.: For ourself, our heirs and successors,]
[9. ][Ed.: This is Poyning’s Law, an Irish statute that enforced English statutes there; apparently 10 Hen. 7.]
[10. ][Ed.: free.]
[11. ][Ed.: freed.]
[12. ][Ed.: The Church does not die,]
[13. ][Ed.: Ecclesiastical persons die,]
[14. ][Ed.: their rights.]
[15. ]Rot. Parliam. 4. Ric. 2. Nu. 13.
[16. ][Ed.: Liberties.]
[17. ][Ed.: it makes men free,]
[18. ]Regist. fol. 19. & 262. F. N. B. fo. 229.
[19. ][Ed.: For allowing liberties.]
[20. ][Ed.: For liberties demanded in the eyre.]
[21. ][Ed.: their liberties,]
[22. ][Ed.: The rights of the Church are equivalent to public rights.]
[23. ][Ed.: by a barony.]
[24. ][Ed.: The Church is under age, and in the wardship of the lord king, who is bound to maintain her rights and inheritances.]
[25. ]Glanv. I. 7. c. 1. Bract. lib. 3. fol. 226. 1. 5. fo. 427. TR. 22. Edw. 1. in com. Banc. Rot. Fleta lib. 2.
[26. ][Ed.: The Church, which is always under age, is always in the position of a minor, and it is not consonant with law that those who are under age should suffer a disinheritance or be barred from an action through the negligence of their guardians.]
[27. ]See hereafter c. 21
[28. ]14. Edw. 3. cap. 12. stat. 2. 18. Edw. 3. cap. 4. I Ric. 2. cap. 3. 8 Edw. 3. fol. 26. Regist. 289. vid. 27 2. Hen. 8. c. 24 vid. postea. c. 21.
[29. ]Regist. 58. F.N. B. 175.
[30. ][Ed.: The king, etc. Whereas, according to the law and custom of our realm of England, clerks in Holy Orders ought not to be elected to such an office, nor have been accustomed [to be so elected] before now, etc.]
[31. ][Ed.: because it is not consonant with law that those who, for the good estate of souls, etc., should be compelled to serve in secular business (in such a place, etc.) elsewhere outside (the same place).]
[32. ]2. Timot. c. 2.
[33. ][Ed.: No one serving God should implicate himself in secular affairs, so that he may please him to whom he has pledged himself.]
[34. ]Litt. fol. 2o. Regist. fol. F.N.B. 227.
[35. ][Ed.: The king, etc. Whereas ecclesiastical persons, according to the custom used and approved until now in our realm, are in no way liable to pay tolls, pavage and murage, etc. out of their ecclesiastical goods anywhere in the same realm, etc. (Pavage was a toll to maintain roads; murage a fee to maintain walls.)]
[36. ][Ed.: with the clause nolumus (we do not wish).]
[37. ]F.N.B. 29. Regist. 289.
[38. ]See the exposition of the statute of Artic. Cler. cap 9.
[39. ][Ed.: if he be a layman.]
[40. ][Ed.: Writ of execution to the sheriff to seize lands and goods and sell them or collect their rents until the debt is satisfied.]
[41. ]Regist. 300. F.N.B. 266. a. 16. E. 3. proces 165. Regist. judi. 22.
[42. ](*) 18. Edw. 2. Proc. 205. 9 Edw. 3. 30. 24. Edw. 3. 44. 25. Edw. 3. 44. 29. Edw. 3. 44. 32. Edw. 3. Proces 58. 34. Edw. 3. Scir. fac. 153. 45. Edw. 3. 6. 47. Edw. 3. 14. 21. Hen. 6. 16. Regis. judic. 6. Artic. Cler. c. 9.
[43. ][Ed.: an arrest warrant.]
[44. ][Ed.: that he is a beneficed clerk having no lay fee,]
[45. ][Ed.: that he is a clerk having no fee,]
[46. ][Ed.: According to the law and custom of the realm of England, clerks ought not to be put into dozins, etc., and are not accustomed to be distrained or vexed by reason thereof. (A dozin managed a frankpledge.)]
[47. ][Ed.: Combinations of ten men, all of whom pledge the good conduct of themselves and their fellows; method of social control imposed on all Saxons after the conquest.]
[48. ]Marlebr. c. 10. Briton. f. 19. B. Fleta. li. 2. c. 45. Rot. brevi. an. 2. Ric. 2. part 2. m. 8.
[49. ]Litt. sect. 189.
[50. ][Ed.: all the free men of the realm.]
[51. ]*See the statute of 34. E. I. de tallagio non conc. cap.4. which is more generall.
[52. ][Ed.: underwritten.]
[53. ]a Mich. 17. E. 1. in Com. banc. rot. 221. leic. fee the first part of the Institut. Sect. 1.
[54. ][Ed.: which make men free,]
[55. ][Ed.: Heirs.]
[56. ][Ed.: Successors.]
[1. ]Rot. Parliam. anno 11. Edw. li. 5. fo. 1. in casu principis. Rot. Par. 8. Ric. 2.
[2. ]Rot. Pat. 18 H. 6. 12 Febr.
[3. ]Bract. lib. 1. fol. 5. b. Fleta lib. 1. cap. 5. Briton. 68. b.
[4. ][Ed.: Comites (earls) are so called because they take their name from comitatus (county or company) or from society (fellowship), who might also be called consuls from counselling; for kings associate such people with themselves in governing and ruling the people of God, investing them with great honour, power and name, when they gird them with swords, sword-belts, etc. For the sword signifies the defence of the realm and the country.]
[5. ][Ed.: There are other powerful men under the king who are called barons, that is, robur belli (the strength of war).]
[6. ]Bract. ubi. supr. l.
[7. ]Ad Artic. Ep. 5. Inquis. 40. E. 3. [Ed.: I have put you in the greatest favor with Patro and the other barones (blockheads).]
[8. ][Ed.: Geoffrey of Cornwall holds the manor of Burford of the king by service of a barony.]
[9. ][Ed.: To be held of the king by baronial service.]
[10. ][Ed.: To give counsel in time of peace.]
[11. ][Ed.: To defend the king and the country in time of war.]
[12. ]Inter record. in Turri 27. Aug. 5. H. 4. the Earle of Northumb. Case, &c.
[13. ][Ed.: Of the king’s great council.]
[14. ]Glanv. 1. 9. c. 4.
[15. ][Ed.: Witnessed by the archbishops, bishops, barons, etc.]
[16. ][Ed.: Of the council of baronage.]
[17. ]5. H. 4. ubi sup.
[18. ][Ed.: The archbishops, bishops, and all persons of the realm who hold of the king in chief shall have their possessions of the king as a barony, and shall answer therefore to the king’s justices and ministers as other barons ought to do in the king’s court with the barons, etc.]
[19. ][Ed.: If any of the earls or barons.]
[20. ][Ed.: In chief.]
[21. ]Hil. 8. E. 1. in Banc. Rot. 86. Midd. Which Record is cited in the first part of the Instit. Sect. 157. in marg.
[22. ]*Tr. 17. E. 1. in Banc. Rot. 29. Salop Walt. de, Hoptons Case. Acc.
[23. ][Ed.: By the assize, John de Moyse, who is under age, impleads Thomas de Weylaund and Marg. his wife, for one messuage, two mills, four acres of meadow, and forty-two shillings-worth of rent in East Smithfield without Aldgate. They vouch to warranty Ralph de Berners, who warrants and says that he claims nothing except the wardship, inasmuch as John, father of the said John, held the aforesaid tenements of him by homage and the service of sixpence and finding a certain man for him in the tower of London with bows and arrows for forty days in time of war. John says that he holds the tenements aforesaid by homage and the service of certain spurs, or sixpence for all service. And so, omitting much on both sides, it will manifestly appear by the verdict of the jury and the judgment of the court what was determined in this assize. The jurors say that the aforesaid tenements are held of the aforesaid Ralph by homage and the service of one pair of gilt spurs or sixpence, and of finding a certain man for the selfsame Ralph in the tower of London with bows and arrows for forty days in time of war, in the north corner of the aforesaid tower, for all service. And because it was found, etc. that Ralph confessed in his answer that the aforesaid heir ought to hold the aforesaid tenement by homage and the aforesaid service of spurs or sixpence, and by the serjeanty of finding one man for him in the aforesaid tower for forty days, etc., and it manifestly appears that such petty serjeanties ought to be performed for their lords, of whom they hold theirtenements, by persons other than themselves, no wardship thereof is or ought to be given to the same lords, even if the same lords have occupied such wardships when the heirs were under age through the negligence of their nearest relatives, and Ralph could not deny that he ever had any seisin of the aforesaid wardship except by his occupancy and the negligence of the relatives of the aforesaid heir of his ancestor, while he was under age, and not in another right: it was [therefore] decided that the aforesaid John recover seisin thereof, etc. and damages of £110. 4s. 7d., etc. The value of the land £20. 0s. 10d. a year.]
[24. ]See 11 H. 4. 72. & 24. E. 3. 32.
[25. ][Ed.: Relief.]
[26. ][Ed.: reasonable Relief.]
[27. ][Ed.: By the old relief.]
[28. ]Glanv. 1. 9. c. 4. Ockham cap. Quod non absolvitur. Custummer de. Norm. Cap. 34. and the Comment thereupon.
[29. ][Ed.: Nothing certain is laid down for baronies, because the chief baronies are to make satisfaction to the lord king for their reliefs at the lord king’s mercy and pleasure.]
[30. ]Tacitus de moribus Germanorum.
[31. ][Ed.: Everyone has his children as his heirs and successors, and no testament; and if there are no children, the next degree in possession, brothers, the father’s brothers, uncles, and so forth.]
[32. ][Ed.: Successors.]
[33. ][Ed.: Synonymous.]
[34. ][Ed.: heirs.]
[35. ][Ed.: heirs.]
[36. ][Ed.: Let him have his inheritance.]
[37. ][Ed.: In right of the bishopric of the monastery, etc. of the whole earldom and of the whole barony.]
[38. ]Bract, lib. 2. fol. 76. a. 84. 16. E. 3. Eschaunge 2. 20. E. 3 Assise. 122. & tit. avowr. 126. 22. E. 3. 18. 18. Ass. Pl. ult. 24. E. 3. 66. nontenure 16. 46. E. 3. forfeit. 18. 10. H. 7. 19. a.
[39. ]a See the first part of the Institutes, sect 95. Cambden Brit. 122. Acc.
[40. ]b 1 E. 2. cap. 1. 7. H. 6. 15.
[41. ]M. 2. Jac. lib. 11. Metcalfs Case. fol. 33, 34.
[42. ][Ed.: ‘Of the manner of holding Parliament, etc.’, in the time of King Edward, son of King Æthelred, which ‘Manner’ was recited before William, duke of Normandy and conqueror and king of England, by command of the conqueror himself at that time, and by him approved, etc.]
[43. ][Ed.: And this [is dealt with] below.]
[44. ][Ed.: By the common council and the assent of the barons of the realm of England.]
[45. ]*i. Edw. filii Etheldredi. [Ed.: Edward II, the Confessor.]
[46. ][Ed.: All bad customs, whereby the realm of England was oppressed, I take away andfromhenceforth put down. If any of my barons, earls, or others, who hold of me, should die, his heir shall not redeem his land as was done in the time of my brother but shall take it up with a rightful and just relief, just as the men of my barons take up their lands from their lords with lawful and just relief, etc. I render to you the law of King Edward, with the amendments which my father made by the advice of his barons.]
[47. ][Ed.: Just.]
[48. ][Ed.: Manner.]
[49. ][Ed.: The relief of an earl which belongs to the king: eight horses with bridles and saddles, four hauberks, four helms, four shields, four lances, and four swords. The others, four hunters and four palfreys with bridles and halters.]
[50. ][Ed.: The relief of a baron: four horses, two with bridles and saddles, two hauberks, two helms, two shields, two swords, and two lances. The others, two horses, a hunter and a palfrey, with bridles and halters.]
[51. ][Ed.: The relief of a vavasour (vassal to a baron) to his liege lord: he ought to be quit by his father’s horse, the one he had on the day of his death, and by his helm, his shield, his hauberk, and his lance, and if he was unequipped so that he had no horse or arms, then he shall be quit by one hundred shillings.]
[52. ][Ed.: The relief of a villein: he shall give his lord the best thing that he had, two horses, two oxen, two cows, and then are all the villeins in frankpledge.]
[53. ]Inter leges Canuti. cap. 97.
[54. ]*CC. marc.
[55. ][Ed.: The relief of an earl was eight horses, four saddled and four unsaddled, four helms, and four hauberks, with eight lances and as many shields and swords, and two hundred gold coins (mancae ).]
[56. ]*i. Baronis.
[57. ][Ed.: Afterwards the king’s theigns, who were nearest to him: four horses, two saddled and two not, two swords, four lances, and as many shields and helms with his hauberk, andfifty goldcoins(mancae ).]
[58. ][Ed.: And the middle theigns one horse with its furniture and his arms and halstang in Wessex, etc.]
[59. ][Ed.: lawful, just and ancient relief,]
[60. ][Ed.: of us in chief by knight-service, that is to say, for a whole earldom and a whole barony, and whoever shall have less shall give less according to the old custom of the fees.]
[61. ]Com. Mich. 14. E. 3. rot. 8. ex pte rem. Thes. Com. Hil. 25. E. 3. rot 4. ex pte rem. Thef. Com. Hil. 7. H. 4. rot. 2. rot. cart. 36. E. 3. nu. 8. the Earle of Cambridges case.
[62. ][Ed.: by an earldom, and in the name of an earl.]
[63. ][Ed.: under the name and honour of an earl,]
[64. ][Ed.: changing what ought to be changed.]
[65. ][Ed.: so that the same earl might better maintain and support the estate and honour of an earl,]
[66. ][Ed.: to support the name and burden,]
[67. ][Ed.: to support the name and burden,]
[68. ]6. H. 8. Dier. 2.
[69. ]17. E. 2 prer. regis cap. 3.
[70. ]Glanvil lib. 9. cap. 4. lib. 9. fol. 124. Antony Lowes case. Stat. 1. E. 2. de militibus. 1. Part of the Institut. sect. 103. 112. 113. 154. 157. vide Bracton ubi supra. Britton cap. 69. Fleta. 1. 3. c. 17.
[71. ][Ed.: The reasonable relief of anyone according to the law and custom of the realm is said to be by one hundred shillings for one knight’s fee.]
[72. ][Ed.: by the year.]
[73. ]*11. H. 4. 72. b. 1. part of the Institut. sect. 154. 157. Litt. sect. 156.
[74. ][Ed.: Payment due to the Crown by a tenant-in-chief on the accession to the fee.]
[75. ]Mich. 18. E. 1. in Banco rot. 84. Westmerl. & eodem anno. rot. 158. Cumberland. 10. Swinborns case acc. cornagium.
[76. ][Ed.: For a whole knight’s fee by one hundred shillings, and whoever shall have less, less.]
[77. ][Ed.: nor does it admit of greater and less.]
[78. ][Ed.: Between John Craistoke, plaintiff, against Idonea de Leybourne, who has distrained him by cattle for relief to be given for lands in Dunston, Brampton, Yanenewhich, Eseclyve, and Boulton, which are worth one hundred pounds a year, and which he holds of her by homage and cornage. And she says that there is this custom of the region of Westmoreland, that heirs after the death of their ancestors ought to relieve their lands from the lords of whom, etc., that is to say, paying for relief as much as the lands which they hold of the same lords are worth by the year, unless they can satisfy the lords with less; and therefore she avows the taking for relief according to the aforesaid custom, etc.
[79. ]Alba firma Cornagium.
[80. ]Bract. 1. 2. fo. 84 vide Glanv. l. 7. cap 9. Flet. 1. 3. cap. 17. Brit. fo. 177, 178, &c.
[81. ][Ed.: First, concerning a knight’s fee, what is a reasonable old relief for a knight’s fee is distinguished in the charter of liberties (Magna Carta), ch. 2.]
[82. ][Ed.: Concerning serjeanties, nothing certain is laid down as to what or how much heirs ought to give, but they shall satisfy the lords according to the will of the lords, provided that the same lords do not exceed a reasonable measure.]
[83. ]Lit. sect. 111.
[84. ]Lit. sect. 97. Lit. sect. 111.
[1. ][Ed.: heirs.]
[2. ]35 H. 6. 52.
[3. ]See the Custumier de Norm. cap. 29. and the Comment upon the same. & cap. 32 & le Latine Com. sul. 48. b.
[4. ][Ed.: Before he has taken his homage.]
[5. ][Ed.: homage.]
[6. ]16 E. 3 Relief 6. & 10.
[7. ]a Brac. 1. 2. fo. 41. 71, 81, 89, 252. Brit. fol. 171. Fleta, 1. 1. ca. 9 Mirror, ca. 952. Glanvi. lib. cap. 1. & 6. 13 Edw. 1. gard. 136. 31 Edw. gard. 155.
[8. ][Ed.: a contemporaneous exposition is the strongest in law,]
[9. ]b Trin. 4. E. 2. fo. 65. b. in Libro meo William St. Quintin’s case. Homage auncestel only bindeth to warranty, but homage in fait bindeth to acquitall. See the first part of the institutes, sect. 143. fol. 101. Verb. & ad receive homage.
[10. ][Ed.: a writ to compel a lord to receive a tenant’s homage.]
[11. ]c Tr.9.E.2. Ubi supra.
[12. ][Ed.: homage of right.]
[13. ][Ed.: Homage held by a tenant and that tenant’s ancestors.]
[14. ][Ed.: homage in fact.]
[15. ]d Bract. fol. 78. Brit. & Fleta ubi supra. 47. E. 3. gar. 99. Temp E. 1. garr. 90.
[16. ][Ed.: Homage is a legal bond whereby someone is constrained to warrant, defend, and acquit his tenant in seisin against all persons by a certain service named and expressed in the gift; and also, conversely, whereby the tenant is constrained to keep faith to his lord and perform the service due.]
[17. ]e M. S. in temp. E. 1.
[18. ]f See the first part of the institutes, sect. 149.
[19. ]g Lit. sect. 35. Sect. 99.
[20. ]h 13 H. 3. gar. 42.
[21. ][Ed.: Because the lord cannot take homage until the third heir.]
[22. ]i 35 H. 6. gard. 72. 14 H. 7. 11. Lit. sect.
[23. ][Ed.: When the reason of the law ceases, the law itself ceases.]
[24. ]k Brac. l. 2. fo. 79. See the first part of the Institutes. Lit. lib. 2. cap. homage & fealty.
[25. ][Ed.: Observing this, that if a minor does homage he shall not take any oath of fealty until he comes of age.]
[26. ][Ed.: knight-service.]
[27. ]l Lib. 6. fol. 73. Sir Drue Druires case. 15 E. 4. 10. Pl. Com. Ratcliffes case. See hereafter verbo remaneat.
[28. ][Ed.: be made.]
[29. ]m See Sir Drue Druries case. ubi supra.
[30. ]Lib. 8. fol. 171. Sir Henry Constables case. 1 5. E. 4. 10. Pl. Com. 267. 2. E. 6 tit. gard. Br. Sir Anthony Browns case. Sir Drue Druries case. Ubi supra. Pl. Com. Ratclifs case.
[31. ][Ed.: remain.]
[32. ][Ed.: remainder.]
[1. ][Ed.: [some derive custos (keeper)] from cura (care) and sto (I stand), because a keeper is someone who stands to take care of something.]
[2. ]Bract. lib. 7. fol. 87. W. 2. ca. 39. Flet. li. 6. ca. 61. 5 E. 3. 6. 24 E. 3 28, 29.
[3. ][Ed.: exitus (issue) [is derived] from exeundo (coming out).]
[4. ][Ed.: reasonable.]
[5. ]Brac. li. 2. fo. 87.
[6. ][Ed.: customs.]
[7. ]Glanv. li. 9. c. 8. W. 1. cap. 31. 25 E. 3. cap. 11.
[8. ][Ed.: demand reasonable aids from his men for this purpose, but this must be in moderationaccording to the quantity and wealth of their fees, lest they should seem to be oppressed thereby or lose their ‘contenement’ (property necessary to maintain their position).]
[10. ]Marleb. cap. 17. Mirror. cap. 5. § 2. li. 4. fol. 57.
[11. ][Ed.: we commit.]
[12. ][Ed.: So long as someone else will give more.]
[13. ]Reg. fo. 72, 73. Brac. li. 2. fo. 47. lib. 4. fol. 317. 20 H. 3. Waste 138. 40 Assis. Pl. 22. lib. intrat. Rast. 616.
[14. ][Ed.: Because it is given to us to understand, etc.]
[15. ]Glanv. li. 7. c. 10.
[16. ][Ed.: If the lord king has committed a wardship to anyone, there is a distinction according to whether he committed to him the full right in that wardship, with no liability to render an account for it at the Exchequer, or not; if he did commit the wardship to him fully, then he may rightfully deal with it as he would his own.]
[17. ][Ed.: so long as it should happen to be in his hands.]
[18. ][Ed.: during the minority of the heir.]
[19. ][Ed.: during the minority and so long as [it should happen to be] in our hands, etc.]
[20. ]7 E. 3. 12,13. 3 E. 2 Waste 3. Registr. 72.
[21. ]12 H. 4. 3. F. N. B. 59. e. & 60. c. Vide notabile recordum. M. 32. F. l. Coram Rege. Rot. 76. Dublin. See hereafter in the Exposition upon the Statute of Gloc. ca. 5.
[22. ][Ed.: after possibility (of issue extinct).]
[23. ]Bracton lib. e. fol. 285. 316. 317. Gloc. cap. 5. Dier 28. H. 8. fol. 25. Britt. fo. 33. 34.
[24. ][Ed.: delivered to two, etc., who shall answer to us therein from the issues of the land.]
[25. ]*W. 1. cap. 21. Gloc. cap. 5. Artic. sup. cart. cap. 18. 14. E. 3. cap. 13 36. E. 3. cap. 13.
[26. ]Fleta. lib. 1. cap 10. § Solent.
[27. ]*Nota, the cause of alteration by Act of Parliament. Mirror cap. 1. c. 9 § En auter maneracc. Britton. cap. 66. fol. 167. b. acc. 17. E. 2. cap. 9.
[28. ][Ed.: It is the custom for guardians to have the wardship of [the lands of] idiots and fools, with their bodies, in perpetuity, and this has been permissible and lawful in that they do not know how to govern themselves and are always deemed to be under age. However, because several people suffered disinheritance by means of such wardships, it was provided and generally agreed that the king should have the wardship of the bodies and inheritances of such idiots and fools in perpetuity, from whatsoever lords they held [the land], provided nevertheless that they have been idiots and fools from birth—though it is otherwise if they became so later—and that the king should provide them with a marriage and preserve them from all disinheritance, with the proviso that the lords of the fees should not lose any of their rights, nor others who have an interest in the services, rents, and wardships, until the age of majority, according to the nature of the fees.]
[29. ]3. E. 3. tit. gar. 5.
[30. ][Ed.: Concerning the king’s prerogative (the name of the statute).]
[31. ]Britton cap. 66. fol. 167. b.
[32. ]Brac 1. 5. 421. a. Stanf. prerog. ca. 9. fol. 33. 34.
[1. ]Glanvil lib. 7. cap. 9. Fleta li. 1. e. 11. 10. H. 7. 6. & 30 See the 1. part of the Institutes sect. 67.
[2. ][Ed.: Guardians are bound to restore to the selfsame heirs their inheritances, in good condition and free of debts, in proportion to the length of wardship and the size of the inheritance.]
[3. ]See prer. regis, cap. 14. W. 1. cap. 21. Fleta li. 1. c. 11. 14. E. 3. ca. 4. 5 vide cap. 33.
[4. ][Ed.: of common right,]
[5. ][Ed.: patron and protector of the church,]
[6. ]adjudged 21. E. 1.
[7. ][Ed.: In every thing there arises something which exterminates the thing itself.]
[8. ][Ed.: (of) trained genius,]
[9. ][Ed.: profound wickedness,]
[10. ][Ed.: by delivery of a ring and a rod,]
[11. ]See this charter at large in Mat. Par. See libr. rubeū in principio.
[12. ][Ed.: Because the kingdom was oppressed by unjust exactions, I, out of respect for God and the love which I have for you all, make the holy Church of God free, so that I shall not sell or put to farm, nor on the death of an archbishop, bishop, or abbot, accept anything from the property of the Church or its men until the successor enters it, and I do away with all the bad customs with which the kingdom of England was oppressed.]
[13. ]Flet. ubi supra. 14 E. 3. ca. 4. 5. F. N. B. 59. b.
[14. ][Ed.: ought not to be sold or bequeathed:]
[1. ]Bracton li. 2. fol. 88. Fleta li. 5. cap. 23. 35. H. 6. 52. Mat. Par. 407.
[2. ][Ed.: Heir, without the approval and consent of [her lord], a woman who has an inheritance may not be married (not even, as of right, in the lifetime of her ancestor) without the consent of the chief lord. If women did so in former times, they lost the inheritance beyond hope of recovery, except by grace; today, however, they incur another penalty, as will be explained below. This is lest the lord be forced to take the homage of his chief enemy or some other unsuitable person.]
[3. ]Mirrour. cap. 1. §. 3. See the 1. part of the Institutes sect. 36.
[4. ][Ed.: that if a woman who has dower marries someone at her will, without the consent of her warrantor of the dower, she would at one time have lost the dower for that reason; but now she does not.]
[5. ][Ed.: If they were once lawfully married, and then widowed, they shall not be kept in the wardship of their lords, though they are bound to seek their consent to marry, etc.]
[6. ]Glanvil. lib. 7. cap. 12. Fleta. lib. 3. cap. 23.
[7. ]Bract. li. 2. c. 40. Britton. c. 103. Fleta. li. 5. c. 23.
[8. ][Ed.: for having quarantine.]
[9. ][Ed.: That, calling before you the aforesaid parties, and hearing their arguments therein, you cause full and speedy justice to be done therein to the same B. C., widow, according to the tenor of the aforesaid charter, so that the suit should not come before us again for want of justice.]
[10. ]Register. 175. F. N. B. 161.
[11. ]1 Mar. Br. Dower 101.
[12. ]Britton ca. 103.
[13. ]Dier 7 E. 6. fo. 76. 4. & 5. Phil. & Mar. fol. 161.
[14. ]Bract. li. 2. fol. 46. Britton ca. 103. Fleta lib. 5. ca. 23. 30. E. 3. Dow. 81. 30 E. 1. vouch. 298 8 H. 3. Dower 196 8 H. 3. Dower 194 17. H. 3. ibid. 192. Rot. pat. part. 1. nu. 17. Escheat 4. E. 1. m. 88.
[15. ][Ed.: On crenellated buildings.]
[16. ][Ed.: to crenellate.]
[17. ][Ed.: fortress.]
[18. ][Ed.: battlement.]
[19. ][Ed.: having battlements.]
[20. ]Britton ubi supra.
[21. ][Ed.: If the chief house is the chief of the earldom, or of the barony, or castle, etc.]
[22. ][Ed.: Chief of the earldom or barony.]
[23. ]Ubi supra.
[24. ][Ed.: of a castle.]
[25. ]Britton ubi supra.
[26. ]Britton ubi supra.
[27. ][Ed.: That they should have their suitable maintenance from the issues of the whole of the lands, etc.]
[28. ]Fleta ubi supra.
[29. ][Ed.: Where necessaries shall be decently found for her, from the common inheritance, until reasonable dower is assigned to her.]
[30. ][Ed.: The estover would otherwise be the right to take wood from wastes and commons.]
[31. ]19 H. 6. 14. b.
[32. ]Registr. 175.
[33. ][Ed.: That in the meantime they shall have reasonable estovers of the property of said husbands.]
[34. ][Ed.: Concerning the chattels of felons.]
[35. ][Ed.: when someone taken there shall be convicted of felony before our justices, then the rest of the chattels shall remain to us besides his estover (sustenance) according to the custom of the realm.]
[36. ]Vid. Mag. Chart. 2. pt fol. 66. Bract. li. 3. fo. 137.
[37. ]Gloc. ca. 4.
[38. ][Ed.: To find estovers in food and clothing.]
[39. ][Ed.: in food and clothing.]
[40. ][Ed.: Under the description of alimenta (alimentary necessaries) come food, clothing, and habitation.]
[41. ]Prer. Regis. cap. 4. Stamford. prer. 17. F. N. B. 265. c. Britton fol. 28. a. & 19. b.
[42. ]Rot pat. 4. E. I. m. 31. Bract. ubi supra. Fleta lib. I. ca. 12.
[43. ][Ed.: Lest indeed they should marry the lord king’s chief enemies.]
[44. ]35 H. 6. 52. Fortes.
[45. ][Ed.: That she should not marry without licence, and therefore if she acts against her oath she shall be fined.]
[46. ][Ed.: in chief.]
[47. ]35 H. 6. 52. 15 E. 4. 13.
[48. ][Ed.: no widow shall be distrained, etc.]
[49. ]Rot. parl. anno 6 H. 6. nu. 41.
[50. ]See the first part of the institutes. sect. 174.
[51. ][Ed.: if she hold of another;]
[52. ][Ed.: Custom is the best interpreter of laws.]
[1. ]Pl. Com. 457. in Sir Thos. Wrothes case. Pl. Com. in the Lord Berklies Case, &c.
[2. ]See the first part of the Institutes, And hereafter cap. 28.
[3. ][Ed.: Within my bailiwick.]
[4. ][Ed.: Within the county, etc.]
[5. ]See Artic. super Cart. cap. 12. li. 3. fol. 12. b. Sir William Herberts case. 5. Eliz. Dier 224. Walter de Chirtons case. 24 E. 3. Pl. Com. 31. Debet semper principalis excut antequa perveniatur ad sidei jussores. An act of grace, see W. 2. ca. 10. & 29. 18 E. 1. Stat. de quo warranto optime. Art. super Cart. ca. 12. & 14. Custumier de Norm. cap. 60. Vide 43. El. c. 13.
[6. ][Ed.: The king has granted to the men of Andover the manors of M., F., A., etc., rendering at the king’s Exchequer eighty pounds a year of the old white rent.]
[7. ][Ed.: That you diligently enquire, by the oath of good and lawful men of your bailiwick etc., what and what manner of goods and chattels, and of what price, the same (debtor) had in your said bailiwick etc.; and take them all into our hands to the value of the aforesaid debt, and cause the aforesaid debt to be made up therefrom, etc.; and if the goods and chattels of the aforesaid (debtor) should not suffice to pay the aforesaid debt, then do not omit on account of any liberty to enter it, and by the oath of the said good and lawful men diligently enquire what lands and tenements, and of what annual value, the same (debtor) had or was seised of in your said bailiwick, etc., and cause all and singular of them to be valued, in whose hands soever they now are, and take them into our hands, etc. And take the aforesaid (debtor), so that you have the body of the aforesaid (debtor) to satisfy us of the aforesaid debt.]
[8. ]See cap. 18. Glanv. li. 10 ca 3. Britton cap. 28. Fleta lib. 2. ca. 62. F. N. B. a 37. f, Pl. Com. 440. Pepys Case. lib. 3 fol. 13. Sir William Herberts case. lib. 7. fol. 17. 18, 12. 50. ass. p 5. 21 E. 4. 21.
[9. ]Ockham, cap. quod vicecomes a fundis ejus, &c.
[10. ][Ed.: The lands and tenements of the king’s debtor, into whose hands soever and by whatsoever title they come, after the king’s debt has become due, shall be held to the king unless he can be satisfied from elsewhere.]
[11. ]Custumier de Nor. cap. 60. fol. 73. &c. 76. Glanvil. lib. 12. cap. 3.
[12. ][Ed.: pledges are those who stand surety for something other than a man’s body, for those are not properly pledges but mainpernors, because those for whom they are surety are delivered to them in bail, body for body.]
[13. ][Ed.: will not pay though he is able.]
[14. ][Ed.: repay.]
[15. ][Ed.: the law is the same concerning things not appearing or not existing.]
[16. ][Ed.: the pledges shall answer for the debt.]
[17. ][Ed.: Statute of 28. Edward 1 (1300) in which Edward confirmed Magna Charta and the Charter of the Forest, without the savings clause he had used in 1297.]
[18. ]a Britton. cap. 28 Fleta lib. 2. c. 56 F. N. B. 137. Reg. 158. 43. E. 3. 11. 2. 44. E. 3. 21. 48. E. 3. 28. 32. E. 3. mr̃ans des faitz. 179. 1. E. 46. Dyer. 22. Eliz. 170.
[19. ][Ed.: for acquitting pledges.]
[20. ]b Glanvil. lib. 10. cap. 4. 5.
[21. ][Ed.: When that which is owed has been paid by the same pledges, they may have recourse to the principal debtor for its recovery, if he should afterwards have assets with which to satisfy them, by means of the principal plea.]
[22. ]c Regist. 158. Mat. Paris 247. a. Wendov. Wals. 40 Vide postea Stat. de Tallagio concedendo. 34. E. 1.
[23. ][Ed.: I shall impose no scutage or aid in our realm except by the common council of our realm.]
[1. ]d Mirror. ca. 5. §. 2. Fleta lib. 2. cap. 48. Pl. Com. fol. 400. 5. H. 7. 10, 19. 8. H. 7. 4. 11. H. 7. 21. 28. Assis. 24. 45 E. 3. 26. See acts of Parliament Art. super chartas c. 7. W. 3. cap. 9. 7. R. 2. nient im primee. 9 H. 4. cap. 1. 2 H. 6. cap. 1. &c. See the first of the Instit. sect. 7. 31. c
[2. ][Ed.: The point in question, that the city of London shall have its old liberties and free customs, is interpretable in this way, that the citizens should have their liberties which they have inherited by lawful title, by the gifts and confirmations of the kings, and which they have not forfeited for any abuse, and that they should have their liberties and customs which are allowable by right and not repugnant to the law. And the interpretation which is made for London is to be understood also for the cinque ports and other places.]
[3. ]8 H 7. 4. b.
[4. ][Ed.: likewise concerning similar things.]
[1. ]Custumier de Norm. cap. 114. fol. 132. b.
[2. ]Glanv. li. 12. ca. 9. 10. Reg fol. 4. & 59. b. Bracton fo. 329. Fleta li. 5. cap. 38. lib. 2. c. 60. Brit. c. 27. fo. 60. b.
[3. ][Ed.: Prohibition against a lord who distrains his tenant by demanding more services than the tenant owes.]
[4. ][Ed.: And certain other pleas, for example, when anyonecomplainsincourtthatthislordisdemanding customs and services which are not due, or more service than he ought to do.]
[5. ][Ed.: The king to N., greeting. I prohibit you from unjustly vexing H., or permitting him to be vexed, in respect of his free tenement which he holds of you in such and such a vill, or from demanding from him, or allowing to be demanded, customs and services which he ought not to do for you, etc.]
[6. ]Mirror ca. 2. § 19. & cap. 5. § 1.
[7. ]F. N. B. 10. c. Pl. Com. 243. b.
[8. ][Ed.: no one shall be distrained,]
[9. ][Ed.: Writ to recover lands from one who has not performed services or paid rents for 2 years.]
[10. ][Ed.: more service.]
[11. ][Ed.: no one shall be distrained to do more service.]
[12. ][Ed.: Writ against an abbot to return lands given for charitable purposes that have been used otherwise.]
[13. ]Pl. Com. 94. 243. 10. H. 7. 11. b. 30 H. 6. 5. b. 22. ass. 68. 28. ass. 33. 12. E. 4. 7. b. 8. E. 4 28. b. 4. E. 2. Avow. 202. 18. E. 2. ibidem. a 17. 20. E. 3. ibid. 131. 5. E. 4. 2. 16E. 4. 11. 20. E. 4. 11. 12. H. 423. F. N. B. 10. h. See the first part of the Inst. sect.
[1. ]Mirror cap. 5. §2.
[2. ][Ed.: Before the king,]
[3. ][Ed.: Wheresoever we shall be, etc.]
[4. ][Ed.: Pleas.]
[5. ][Ed.: Pleas of the crown,]
[6. ][Ed.: Common pleas:]
[7. ][Ed.: Criminal pleas before the crown.]
[8. ][Ed.: mortal.]
[9. ][Ed.: civil:]
[10. ]Mirror ca. 1. §4. Stamf. Pl. cor. fo. 1. Vide cap. 17.
[11. ][Ed.: against the [king’s] crown and dignity;]
[12. ][Ed.: crown prerogative.]
[13. ]Vide cap. 17.
[14. ][Ed.: Writ of re-election to recover presentation.]
[15. ]Glanv. li. 1. cap. 1.
[16. ][Ed.: Of pleas, some are criminal and others civil.]
[17. ][Ed.: Civil plea.]
[18. ]Bracton lib. 3. fol. 101. b. Fleta li. 2. cap. 58.
[19. ][Ed.: It is to be known that the first classification of all actions or pleas (to use these terms synonymously) is that some are real, some personal, and some mixed. Of those which are personal, some are criminal and some civil, according to whether they derive from misdeeds or contracts. Of those which are criminal, some are major, others minor, and others are of the most serious kind, according to the magnitude of the crime.]
[20. ]Fleta li. 1. cap. 15.
[21. ][Ed.: Of personal wrongs, some are criminal and some civil; and of criminal some lead to sentence of death and some not.]
[22. ][Ed.: of the crown.]
[23. ]Britton fol. 3. &c.
[24. ]Glanv. lib. 11. c. 1. & lib. 2. cap. 6.
[25. ][Ed.: The above pleas, etc., and all other civil pleas, etc., are accustomed to be made before the king’s justices sitting on the bench, etc.]
[26. ][Ed.: Before the justices sitting on the bench.]
[27. ]Bract. li. 3. fol. 105. b. & 108. b.
[28. ][Ed.: Justices sitting on the bench.]
[29. ][Ed.: The king’s court held throughout England.]
[30. ][Ed.: Before our justices at Westminster.]
[31. ][Ed.: Before us, wheresoever we shall then be in England.]
[32. ]Artic. super. Cart. cap. 5. Fleta lib. 2. cap. 2. F. N. B. 69. m.
[34. ][Ed.: Moreover we will that justices stay continuously at Westminster, or wherever we ordain common pleas to be pleaded, etc.]
[35. ]Fleta li. c. 28. et. 54
[36. ][Ed.: And the king has his court and his resident justices, who make a record of those things that are pleaded before them, and who have power concerning all pleas and actions, real, personal, and mixed.]
[37. ][Fleta li] & cap. 13. 7. E. 4. 53. D. & St. 12. b.
[38. ][Ed.: Of our judges of the bench.]
[39. ]26. Ass. p. 24.
[40. ]4. E. 3. 49. 39. E. 3. 21.
[41. ]Rot. pat. 1. H. 3.
[42. ]9. E. 4. 53.
[42. ]9. E. 4. 53.
[43. ][Ed.: So that no one can know which is the more ancient.]
[44. ]21. H. 3. brief. 883. Tr. 26. E. 1. Coram Rege Northhampton. Tr. 18. E. 1. Coram Rege Rot. 62. 31. E. 3. prer. 28. 17. E. 3. 50.
[45. ]31 H. 6: fo. 10,11 Artic. super cart. cap. 4. Pl. Com. 208. b. 38. ass. p. 20. sumis.
[46. ][Ed.: in the custody of the marshal.]
[47. ][Ed.: Why with force and arms; the pleading form for trespasses.]
[48. ][Ed.: ejection from the land by force & arms.]
[49. ][Ed.: an action to recover possession of goods.]
[50. ]9 H. 7. 10. 19 E. 3. assise 84. 1. H. 7. 12. Reg. F. N. B. 177. 14. H. 7. 14. 16. E. 3. bre. 661.
[51. ]Stat. de Mirton, cap. 10.
[52. ][Ed.: A second action to recover seisin; the redeseisor is liable to imprisonment.]
[53. ]F. N. B. 1907 224. 246.
[54. ][Ed.: Writ to review a record on appeal.]
[55. ][Ed.: Plea.]
[1. ][Ed.: Real action to recover recently deseised lands.]
[2. ][Ed.: Assize to reclaim lands lost at the death of an ancestor.]
[3. ][Ed.: before the king.]
[4. ]Glanv. li. 13. ca. 3. & 33. F. N. B. 177. f. Registrum.
[5. ][Ed.: Before my justices.]
[6. ][Ed.: Before our justices of assize when they come into those parts.]
[7. ][Ed.: Shall send our justices through every of our counties once a year, who with the knights of the same counties shall take the aforesaid assizes in those counties.]
[8. ]Mirror ca. 5. § 2. See W. 2. ca. 30.
[9. ][Ed.: a frequent and speedy remedy.]
[10. ]See the first part of the Institutes. sect. 234.
[11. ]Bract. 1. 4. fo. 164.
[12. ][Ed.: The disseised person is aided by a recognition of the assize of novel disseisin, which wasthought up and contrived after many wakeful nights for recovering the possession of that which he has unjustly lost, so that the matter is determined by a summary recognition without great formality of law, as it were, by a short cut.]
[13. ]See the Preface of the 2. pt of the Institutes.
[14. ]Glanv. lib. 13. ca. 3. & 33. Custumier de Norm. ubi supra. Mir. ca. 2. § 15. 26. Ass. p. 24.
[15. ][Ed.: A speedy remedy,]
[16. ][Ed.: Writs of assize of novel disseisin;]
[17. ][Ed.: in the proper county,]
[18. ][Ed.: non-arrival.]
[19. ]24. E. 3. 23. 2. E. 3. 23. 1. 1. E. 4. 1.
[20. ]6. E. 3. 55. 56. Britton cap. 97. fol. 240. F. N. B. 181.
[21. ][Ed.: Whereas it is contained in the great charter of liberties that some assizes shall be taken in the counties, this does not mean that no certificates or attaints be pleaded at other times, etc.]
[22. ]Bracton. lib. 4. fol. 291.
[23. ][Ed.: If someone has a common liberty, that assizes ought not to be taken outside the county, it does not follow from this that juries should remain to be taken in the county; for the assize has one privilege and the jury another.]
[24. ]6. E. 3. 55. 56. 19. E. 3. ass. 84.
[25. ][Ed.: because he says nothing.]
[26. ][Ed.: a court sitting with a jury.]
[27. ]18. E. 2. assise 382. 13. E. 3. Jurisd. 23. Rot. Parliam. de anno 18. E. 1. inter petitiones. 28. E. 3. cap. 2.
[28. ][Ed.: in chief.]
[29. ][Ed.: royal (or regalian) rights.]
[30. ]20. H. 3. tit. brev. 881.
[31. ][Ed.: Although it is prohibited that common pleas should follow our court, it does not follow from this that other kinds of pleas should follow the lord king.]
[32. ][Ed.: Chief justiciars.]
[33. ][Ed.: When the king was doing business outside the realm, writs were directed under the name of the presiding justice and witnessed by the same.]
[34. ][Ed.: keeper or guardian of the realm,]
[35. ][Ed.: the king’s lieutenant,]
[36. ][Ed.: viceroy,]
[37. ][Ed.: witness our beloved son Lionel keeper of England, etc.]
[38. ]Rot. Parliament 13. E. 3. nu. 11. 5. H. 5. nu. 1. 3. E. 4. nu. 14. 21. E. 3. fol. 37.
[39. ][Ed.: a witness.]
[40. ][Ed.: in the presence of a greater man, the power of a lesser ceases,]
[41. ]8. H. 5. cap. 1.
[42. ][Ed.: Our chief justiciars shall send our justices.]
[43. ][Ed.: outside the realm.]
[44. ][Ed.: from the words and innermost parts of the act.]
[45. ][Ed.: King’s lieutenant, or keeper of the realm.]
[46. ][Ed.: It is further to be known that, according to the customs of the realm, no one is bound to answer in his lord’s court for any freehold of his without a command from the lord king or his chief justiciar.]
[47. ][Ed.: keeper of the kingdom.]
[48. ][Ed.: principal Justice.]
[49. ][Ed.: presiding Justice.]
[50. ][Ed.: chief justice for holding pleas before the king.]
[51. ]Glanvil. lib. 12. cap. 25. Rot. Pat. an. 1. E. 1. Hereof you may reade more in the 4. part of the Institut. cap of the Court of Kings bench.
[52. ]Glanvil. lib. 2. c. 6. Hovend. fol. 413.
[53. ][Ed.: before my Justices.]
[54. ][Ed.: Justice itself.]
[55. ][Ed.: [called] justices from justice.]
[56. ]Fortescu. cap. 51.
[57. ]12. H. 4. 20. 29. Ass. 1. 27. Ass. 5. 60. 4. E. 3. 41.
[58. ]a 12. H. 4. 9.
[59. ][Ed.: The course of events shows up many things which were not provided for at the outset.]
[60. ]c 48. E. 3. 7. 47. ass. 1. 39. E. 3. 6. 32 ass. 9. 21. E. 3. 3. 42. E. 3. 11.
[61. ][Ed.: on account of the difficulty of any articles,]
[62. ]*7. H. 6. 9. 3. E. 3. 16. 8. ass. 15 15. E. 3. ass. 96. 17. E. 3. 28. 14. E. 3. ass. 110. 20. E. 3. ass. 123. 22. E. 3. 5. 29. ass. 7 34. ass. 3. 43. ass. 1. 3. H. 4. 18. 22. H. 6. 19.
[1. ][Ed.: Assize to recover an advowson by descent from one’s ancestors.]
[2. ]Glanvil. lib. 13. cap. 16. 18. 19. Bracton. lib. 4. fol. 238. &c. Britton cap. 90. fol. 222. Fleta lib. 5. c. 11. Regist. fol. 30. F. N. B. fol. 30. W. 2. cap. 30. 5. Mar. Dier. 135. 9. Eliz. Dier. 260.
[3. ][Ed.: before me or my justices.]
[4. ][Ed.: court sitting with a jury.]
[5. ][Ed.: reelection to recover presentation.]
[6. ][Ed.: Actions to recover an advowson (and) a presentation.]
[1. ][Ed.: who holds freely,]
[2. ][Ed.: Writ for summoning a jury.]
[3. ][Ed.: twelve free men, etc.]
[4. ][Ed.: saving his contenement,]
[5. ][Ed.: free man, etc.]
[6. ]Vide W. 1. cap. 6.
[7. ]W. 1. cap. 18. 11. H. 4. 5. Lib. 8. fol. 39. 40. Greyslies case.
[8. ]Glanvil. lib. 9. cap. 11. Fleta lib. 2. c. 60. 10. E. 2. action sur le statut. 84. Regist. 86. 184. 187.
[9. ][Ed.: Writ based on Magna Carta for one emersed in a court not of record for an offense more serious than his actions.]
[10. ]Glanvil. ubi sup.
[11. ][Ed.: The mercy of the lord king means that someone is to be amerced by the oath of lawful men of the neighbourhood, but not so as to lose his decent contenement. (“Contenement” is the land held by estate.)]
[12. ][Ed.: saving his contenement.]
[13. ]Bracton lib. 3. fol. 116.
[14. ]Fleta. lib. 1. c. 43. W. 1. cap. 6.
[15. ][Ed.: contenement.]
[16. ]1. E. 3. cap. 4. Stat. 2. Vet. N. B. fol. 11.
[17. ]See the first part of the Institutes sect. 172. 189.
[18. ][Ed.: serfs.]
[19. ][Ed.: nief, or serf, by blood.]
[20. ][Ed.: serf.]
[21. ][Ed.: The tenament of a villein.]
[22. ]See the first part of the Instituts sect. 172.
[23. ][Ed.: We have a certain senatusconsultum (enactment), but it lies buried in the tablets like a sword in its sheath.]
[25. ]Mirror cap. 1. Sect. 3. 38. E. 3. 31. 4. H. 6. 7. 9. H. 6. 2. 19. E. 4. 9. 21. E. 4. 77. b. Mirror. cap. 4. de amerciam. 3. E. 3. Coron. 370 Stanf. pl. cor. fol. 35. b. Mirror. ubi sup. Britton fol. 17. b. & 34. b.
[26. ]Britton cap. 2. fol. 36.
[27. ]Bracton. lib. 3. fol. 116. b. Brit. fol. 2. b. Fleta. lib. 1. cap. 43. & lib. 2c. 60. Vide lib. nigr. Scaccarii parte 1. cap. 4. Of Ancient time the Barons of the Exchequer were Barons and Peers of the Realme. See the first part of the Institutes Sect. 133. Bracton lib. 3. fol. 116. Fleta lib. 1. c. 43.
[28. ][Ed.: Earls or barons are not to be amerced except by their peers, and according to the manner of the offence, and this is by the barons of the Exchequer or before the king himself. No ecclesiastical person shall be amerced according to the size of his ecclesiastical benefice, but according to his lay tenement.]
[29. ][Ed.: and the amercers shall be sworn faithfully to this, that they should not vex anyone through hatred, nor favour anyone through affection, and that they should conceal what they hear.]
[1. ]See cap. 35. 37. See chart. de Foresta cap. 1. & 3. Rot. Parliam. nu. 82. 13. R. 2. c. 5. 4. H. 4. cap. 2. 3. H. 5. cap. 8. 27. H. 6. cap. 2.
[2. ][Ed.: the utmost and more prominent line of the land which a river flows against on both sides.]
[3. ]4. H. 8. cap. 1. 2. & 3. Phil. & Mar. cap. 1.
[1. ]Mirror ca. 5. § 2.
[2. ][Ed.: For many rivers are now appropriated, and stocked, and put in defence, which used to be common for fishing and using in the time of King Henry II.]
[1. ]Bract. li. 3. fo. 106.
[2. ][Ed.: No one other than the king may send for a bishop, etc.]
[3. ]Brit. c. 104. fo. 248. Fleta li. 5. ca. 24. 8 E. 3. 59. 40 E. 3. 2. 14. H. 4. 27. 15. E. 3. conusans 41. 14. H. 7. 26. 21. H. 7. 34. 35.
[10. ]1. pt. Institutes sect. 234, 248.
[11. ]Mirror cap 5. § 2. Bracton lib. 5. fo. 363. li 2. fo. 69. Vide cap. 19.
[12. ][Ed.: A castellain is he who keeps a castle, or is lord of the castle.]
[13. ][Ed.: Ought, etc. to show the castellain or constable of the tower, etc.]
[14. ]Fleta lib. 2. ca. 43.
[15. ][Ed.: Also, no prises shall be taken from anyone by any constable or castellain, except of the vill in which the castle is situated.]
[16. ]W. 1. ca. 7. & 31.
[17. ][Ed.: Of prises taken by constables, or castellains, from others, etc.]
[18. ][Ed.: It was certified in the time of King Henry II that there were 1,115 castles in England.]
[19. ]See the first part of the Institutes, fol. 5. Verbo Holme.
[20. ][Ed.: by disuse.]
[21. ]Lamb. leg. Ed. c. 26 Bract. li. 3. fo. 154. Brit. ca. 15. fo. 90. Fleta li. 1. ca. 47. Hovend. pte posterior. fol. 345. Mat. Par. Anno 1259. 44. H. 3. pl. Parl. 18. E. 1. Rot. 11. 2 R. 3. 10.
[22. ][Ed.: Pleas of the crown.]
[23. ]Mirror cap. 1. § 3.
[24. ][Ed.: There were also ordained coroners in every county, and sheriffs to keep the peace, when the earls gave up the custody, and bailiffs instead of the hundreders.]
[25. ]Brit. ca. 3. fol. 3. Stam. Pl. Cor. 48. c.
[26. ][Ed.: [Therefore] we will that the coroners in every county shall be keepers of our peace, and bear record of the pleas of our crown, and of their views, abjurations, and outlawries; and we will that they be elected according to that which is contained in our statutes concerning their election, etc.]
[27. ][Ed.: A common merchant.]
[28. ]Rot. brevium. 5. E. 3. nu. 38. Registr. 177. W. 1. cap. 10.
[29. ]*Registr. 177.
[30. ][Ed.: And, who knows best and is best able to hold that office.]
[31. ]Vide postea c. 35. Glanv. li. 1. cap. 2. & lib. 14. cap. 8. W. 2. cap. 13. 22. E. 4. fol. 22.
[32. ][Ed.: The crime of theft is excepted, for it belongs to the sheriff and is pleaded in the counties;]
[33. ][Ed.: upon the view of the body, etc.]
[34. ]Mirror cap. 1. § Coroners. & cap. 5. § 2. Bracton lib. 3. fol. 121. Brit. c. 1. fol. 3. Fleta li. 1. cap. 18. 25. 22. Ass. 97. 98, &c. 3. H. 7. cap. 3. Stamf. Pl. co. 64. 116, 117.
[35. ]19. H. 6. fol. 47.
[36. ]W. 2. c. 13. 1. E. 3. Stat. 2. ca. 17. 1. E. 4. 3. 1. R. 3. cap. 4.
[1. ]Ockham Regist 281. b. 17. E. 3. 73. 27. E. 3. 88. 29. E. 3. 13. 41. E. 3. 15. 41. E. 3. execut. 38. 4. E. 4. 16. F. N. B. 28. b. 33. H. 8. c. 39. See before cap. 8.
[2. ][Ed.: advice,]
[3. ][Ed.: command,]
[4. ][Ed.: [for a reasonable share of the goods,]
[5. ]Mirror cap. 5. § 2. Glanv. lib. 12. c. 20. Bracton. 1. 2. fol. 60. b. Fleta. l. 2. cap. 50. Regist. 142. 34. E. 1. detinew 60. 1. E. 2. ib. 56. 17. E. 2. ib. 58. 30. E. 3. 2. 26. 31. E. 3. rn’der 6. 39. E. 3. 6. 10. 17. E. 3. 17. 40. E. 3. 38. 3. E. 3. det. 156. 1. E. 4. 6 7. E. 4. 21. 13. H. 4 Sever. 30. 31. H. 8. Rationab. parte Bro. 6. Bract. 1. 2. fol. 61.
[6. ][Ed.: Neither the wife nor the children shall take more of the movable goods of the deceased father or husband than was specially left to them, except by the special favour of the testator, for instance if they have deserved well of him in their lifetime, etc. For there would scarcely be found any citizen who would undertake a great enterprise in his lifetime if, on his death, he was compelled against his will to leave his goods to ignorant or extravagant children, and undeserving wives; and therefore it is highly necessary that he should have freedom of action in this respect, for thereby he will curb misconduct, encourage virtue, and give occasion both to wives and children to do well, which some might not do if they knew without doubt that they would obtain a certain share irrespective of the testator’s wishes.]
[1. ][Ed.: Constable.]
[2. ][Ed.: Castellain.]
[3. ]See W. 1. cap. 7. & 31.
[4. ]Mirror. cap. 5. §. x.
[5. ][Ed.: That which is forbidden to constables to take from others should be forbidden to all men, inasmuch as there is no distinction between something taken from another against his will and robbery, whether the taking is of horses, victuals, merchandise, carriage, lodging, or other manner of goods.]
[6. ][Ed.: Because many grievances are suffered by many people through various distresses, which are avowed under pretext of prises, etc., it is forbidden in the great charter of liberties, etc.]
[7. ]36. E. 3. cap. 2. 23. H. 6. cap. 2.
[1. ][Ed.: Constable.]
[2. ]Fleta lib. 2. ca. 43.
[3. ]See the 1. part of the Instit. 96.
[1. ]W. 1. c. 1. verb. & que nul sace &c. Artic. super cart. cap. 2. Regist. fol. 98. Bracton lib. 3. fol. 177. Britton fol. 33. 36. 38. Fleta lib. 1. c. 20. see cap. Itineris.
[2. ][Ed.: No sherriff or bailiff of ours.]
[3. ]W. 1. cap. 1. & 32. 36. E. 3. cap. 2. 38. H. 6. cap. 2. Fleta lib. 2. ca. 1. & 24. 32. E. 3. Barre 259. 7. H. 3. tit. Waste.
[4. ][Ed.: Pay old livery as laid down in olden times;]
[5. ][Ed.: No one shall take, etc. unless he pays, etc.]
[6. ][Ed.: livery as laid down in olden times,]
[7. ][Ed.: Annual rents paid in lieu of a tenant’s service to a lord.]
[8. ][Ed.: Service with horse and carriage due a lord; also arriage.]
[9. ][Ed.: with cattle.]
[10. ]Rastall * i. carragiis cum averiis. [Ed.: Aver-penny is to be quit of all money for the carriages of the lord king.]
[11. ]W. 1. cap. 1. 14. E. 3. cap. 1. 1. R. 2. cap. 3. 10. E. 2. Vet. Mag. Chart. pt. 2. fo. 46. Fleta lib. 3. cap. 5.
[12. ][Ed.: Lords.]
[13. ]W. 1. cap. 1. & 32. See 25. E. 3. ca. 6. 35. H. 8. cap. 17. 5. Eliz. cap. 8. 7. H. 3. tit. Wa. 141 11. H. 4. 28. Pl. Com 322.
[14. ]42. E. 3. cap. 1. Mic. 2 Ja. resolved 11. H. 4. fo. 28. No purveyance of gravell, because it is part of the inheritance. See 47. E. 3. fo. 18 Issue taken upon the sale of timber for reparation of Calais.
[15. ][Ed.: Saltus, because the trees leap up (ex- + salio) to a great height.]
[16. ]Fleta ubi supra.
[17. ]Pl. Com. 236.
[18. ]Marlebr. cap. 5.
[19. ][Ed.: The Magna Carta shall be binding in all its particulars, those pertaining to the King no less than the others.]
[20. ]34. E. 1. Vet. Magna Charta. fol. 37. 2. Part.
[1. ]Glanv. li. 7. ca. 17. fol. 59.
[2. ][Ed.: But if the outlaw or convicted felon held of someone other than the king, then all his movable goods shall go to the king, and his land also shall remain in the hand of the lord king until one year has elapsed, and then the same land shall revert to the chief lord, that is, to him of whose fee it is, subject to [the king’s right to] pull down houses and root up trees.]
[3. ]Bracton lib. 3. fol. 129. & 137.
[4. ]Nota. Provisum fuit. [Ed.: Note, it was provided.]
[5. ][Ed.: But what is the reason why the land shall remain in the lord king’s hands? It seems to be this, because when someone has been convicted of some felony it will be in the king’s power to pull down his buildings, root up his gardens, and plough up his meadows; and since such things used to result in great damage to lords, it was provided for the common weal that the buildings, gardens and meadows should remain, and that the lord king for that reason should have the profit of the whole of that land for a year and a day, so that everything should revert in its entirety into the hands of the chief lords. Now, however, both are sought: that is, a fine for the term, and likewise for the waste. I do not know the reason why, etc.]
[6. ]Britton cap. 5. fol. 14.
[7. ][Ed.: Their movable goods are ours, and their heirs disinherited, and we will have their tenements (from whomever they are held) for a year and a day, so that their inheritances shall remain in our hands for a year and a day, provided that we do not cause the tenements to be destroyed, or the woods wasted, or the meadows ploughed, as used to be done with them in remembrance of the attained felons, etc.]
[8. ]Fleta li. 1. cap. 28.
[9. ][Ed.: If outlaws or other convicts have free land, it is at once to be seized into the king’s hand and kept for a year and a day, reverting after the end of that period to the chief lords; and this is from the statute of Magna Carta, which is as follows: We shall not hold the lands of those who are convicted of felony except for a year and a day, and then they shall return to the lords of the fees; and the cause of the king’s term is that it was once laid down as a mark of felony that the buildings of felons should be knocked to the ground, their gardens rooted up, their meadows ploughed up, and their woods cut down, and because such things caused great damage to the lords of the fees, it was enacted for the common weal that such harsh and grave measures should cease and that the king should instead take the profit for a year and a day of the whole land, though it is otherwise if the land does not escheat to the lords, after which term it should return to the proper lords in its entirety and without waste or destruction.]
[10. ]Mirror cap. 5. § 2.
[11. ][Ed.: The point concerning felons’ lands to be held for a year and a day is disused, for whereas the king ought not have nothing but the waste by right, or the year in the name of a fine to save the fee from being stripped bare, the king’s ministers take both.]
[12. ][Ed.: That a penalty imposed on a few should be a warning to many,]
[13. ][Ed.: and for the public good.]
[14. ][Ed.: And after the lord king has had the year, day, and waste, the tenement shall then be yielded up to the chief lord of that fee, unless he has previously made fine for the year, day, and waste.]
[15. ]Vide Stamford. Pl. Cor. 190. 191. Vide 3. E. 3. coron. 3. 27. 3. E. 3. ibid. 58. 3. E. 3. ibid. 310. Pasc. 31. E. 1. Cor. Rege Norff. Wil. de Ormesby.
[16. ][Ed.: Persons attainted.]
[17. ]See the first part of the Institutes sect. 745.
[1. ]25. E. 3. cap. 4. 1. H. 4. cap. 12. 12. E. 4. cap. 7.
[2. ]Rot. cart. 18. Feb. Anno 11. H. 3.
[3. ][Ed.: The king, etc. Know ye that we, for the common utility of our city of London, and the whole of our realm, have granted and firmly commanded that all kiddles (fishing-weirs) which are in the Thames or Medway, wherever they are in the Thames or in the Medway, should be removed, and from thenceforth no kiddles shall be placed anywhere in the Thames or in the Medway, upon forfeiture of ten pounds sterling. We have also quitclaimed all that which the keeper of our tower of London used to receive annually from the aforesaid kiddles. And therefore we will and firmly command that no keeper of our tower of London at any time hereafter should exact anything from anyone or impose any demand, vexation, or molestation upon anyone, by reason of the aforesaid kiddles, for it sufficiently appears to us, and by our faithful subjects has been given to us sufficiently to understand, that the greatest detriment and trouble has come to the aforesaid city of London and the whole of our realm by reason of the aforesaid kiddles. And we communicate this, so that it should be preserved as firm and established for ever, by the writing on this present page and by the affixing of our seal, just like the charter of the lord King John, our father, whereof our barons of London have reasonably testified.]
[4. ]Lib. 10. fo. 138. in the case of Chester Mill. Keylw. 15. H. 7. 15
[5. ][Ed.: of those who fish with kiddles (fishing-weirs) and fish-traps.]
[6. ]Cap. Itineris. nu. 5 Tr. 5. E. 2. Coram Rege. Rot. 18.
[7. ]Glanv. li. 9. ca. 11.
[8. ][Ed.: It is called a purpresture, or more properly porprestura, when something unjustifiably encroaches upon the lord king, as in the king’s demesnes, or by obstructing public ways, or in diverting public watercourses from their right course, or when someone has encroached on royal land in a city by building something, and generally whenever anything is done to the nuisance of a royal tenement or a royal way or city.]
[9. ][Ed.: a royal highway.]
[1. ]Mirror cap. 5. § 2 Bracton lib. 5. fol. 328 & 414. b. Registr 4. 3. E. 3. 23. 6. E. 3. 15. 38. E. 3. 13. 39. E. 3. 26. F. N. B. 5. c.
[2. ][Ed.: The writ, etc. shall not be made,]
[3. ]20. E. 3. estoppel. 187. 22. E. 3. 17. 40. E. 3. 30.
[4. ][Ed.: in chief.]
[5. ][Ed.: for lands in the court of Earl Warenne at Castleacre, a notable record upon this statute. The justices are commanded by writ that they should inquire whether lands are held of the king in chief.]
[6. ]Mic. 7. E. 1. in banco rot. 65. Lanc’. acc. Peter Grellyes case.
[7. ][Ed.: Therefore let Peter obtain for himself a writ of right patent in the court of the said Edward, if he will.]
[8. ]8. E. 4. 6. 6. E. 3. 15 Vet. N. B. 13. a. F. N. B. 98. n.
[9. ]See the first part of the Institutes sect. 192. 17. E. 3. 31. 36. 37. 59. 32. E. 3. Avowry 113. 45. E. 3. petition 9.
[10. ]Bract. lib. 3. f. 112. cap. 12. nu. 2. & lib. 5. fol. 413. c. 17. nu. 2.
[11. ][Ed.: It is therefore called breve (a writ), because it sets out breviter (briefly) and in few words the matter in dispute, and the intention of the plaintiff, as does a rule of law, which briefly sets out the matter which it concerns.]
[12. ][Ed.: Some writs are formed like a rule of law, because they briefly and in few words expound and explain the intention of the plaintiff, just as a rule of law briefly sets out the matter which it concerns.]
[13. ]Fleta. lib. 2. c. 12.§ dicuntur etiam brevia.
[14. ][Ed.: in exactly the same words,]
[15. ][Ed.: An action is nothing other than pursuing to judgment the right which is owed to anyone.]
[16. ]Bracton. lib. 3. fol. 98. b. cap. 1. Fleta lib. 1. cap 16. § actio&§3. Actors.
[17. ][Ed.: An action is nothing other than pursuing to judgment the right which is owed to anyone, or which arises from wrongdoing, or comes from wrong or injury.]
[18. ]Mirror. cap. 2 § 1. nest.
[19. ][Ed.: An action is nothing other than a lawful demand of one’s right. Actors (plaintiffs) are those who pursue their right by plaint, etc.]
[20. ][Ed.: in a contentious forum,]
[21. ]Bracton. lib. 3. fol. 101. cap. 3. nu. 1. Fleta lib. 1. cap. 16.
[22. ][Ed.: in the person (personal).]
[23. ][Ed.: Writ to correct an error in an earlier matter, or to recover land a second time, etc.]
[24. ]Glanvil. lib. 1. c. 1. Bracton ubi sup. Fleta ubi sup. Mirror ubi sup. Plowd. Com. 73. &c. Regist. 187.
[25. ][Ed.: [specially] formed writs.]
[26. ][Ed.: of [common] course.]
[27. ][Ed.: magistral, and they are more often varied.]
[28. ]Bract. l. 5. 413. b. Fleta. lib. 2. cap. 12
[29. ][Ed.: by the duty of Justice,]
[30. ][Ed.: of grace,]
[31. ]a Dier. 23. Fitz. 377. a.
[32. ]b F. N. B. 28. 29.
[33. ]c Regist. 227.
[34. ][Ed.: Writ for inspecting the belly (of a woman alleged to be pregnant).]
[35. ]d Ibid. 267.
[36. ][Ed.: For cleaning out ways and lanes.]
[37. ]e Regist. 133. b. Fitz. N. B. 185. Regist. 206. F. N. B. ib.
[38. ][Ed.: Of hatred and spite.]
[39. ][Ed.: for admitting in association.]
[40. ][Ed.: a command to act or show cause not to act, particularly to allow a common recovery.]
[41. ][Ed.: a command, the general form of such writs.]
[42. ][Ed.: for recovery.]
[43. ][Ed.: that he permit.]
[44. ][Ed.: that he do.]
[45. ][Ed.: For [performing] customs and services; for repairing a house.]
[46. ][Ed.: For committing counties.]
[47. ][Ed.: licence to elect [a bishop].]
[48. ][Ed.: Of the royal assent.]
[49. ][Ed.: For delivering writs and rolls.]
[50. ]Regist. 295. F. N. B. 170.
[51. ][Ed.: For restoring spiritualties.]
[52. ]Regist. 294. F. N. B. 165. a. F. N. B. 85. a. Regist. 58. b. Artic. sup. cart. c. 6. Regist. 187. b. ibid. 179. a. F. N. B. 240. d.
[53. ][Ed.: For not being put on assizes and juries; for finding surety; that he should not go away to foreign parts without licence; for non-residency of the king’s cleric; for not electing a clerk in Holy Orders to an office; for not taking fines for beaupleader.]
[54. ][Ed.: For proceeding to judgment.]
[55. ]a F. N. B. 153. b 2. E. 3. ca. 8. 5. E. 3. ca. 9. 14. E. 3. cap. 14. Regist. fo. 186. F. N. B. 153. Regist. 18. F. N. B 20.
[56. ][Ed.: Writ for proceeding to judgment.]
[57. ][Ed.: For proceeding in a suit, and to judgment.]
[58. ][Ed.: For executing a judgment.]
[59. ]b Regist. 124. 125 revocat brevis de audiendo &c. All Writs of supersedeas.
[60. ]c Pl. Com. fol. 73. &c. See 12. H. 4. 24. in debt not cited in that case. Regist. 114. 115. Writs of Audita querela &c. prohibitions ad jura regal.
[61. ][Ed.: He shall not leave the realm.]
[62. ]d Regist. 267. 2.
[63. ]e 1b. 126. b.
[64. ][Ed.: to remove them from office until there has been an enquiry into their behaviour.]
[65. ]f Ib. 192. b. 193. a. b.
[66. ][Ed.: Deliver to the treasurer and chamberlains, treasurer and barons.]
[67. ][Ed.: in Chief.]
[68. ][Ed.: and unless you will do this, let the sheriff of N. do it, that we hear no more complaints for want of right.]
[1. ]Stat. de 31. E. 1. 14. E. 3. cap. 12. 27. E. 3. cap. 10. See the Custum. de Norm. cap. 16. Deut. 25. v. 13. 14.
[2. ][Ed.: You shall not have in your bag various weights, greater and less, nor shall there be in your house greater and lesser measures, but you shall have a just and true weight; and equal measure will be given to you, so that you will live upon the earth for a long time, etc. Deuteronomy 25: 13–14.]
[3. ]Int’ leges Canut. cap. 9. Int’ leges Will. Regis conq.
[4. ][Ed.: So that henceforth there should be nothing unequal in measures and weights, by reason of iniquity, we have enacted by the common council of the realm that the most trustworthy and marked measures should be used throughout the realm, and the most trustworthy and marked weights, as our good predecessors have enacted.]
[5. ]Mirror. cap. 5. § 2. Vet. Mag. Cart. cap. Itin. f. 151. 11. E. 3. cap. 30.
[1. ][Ed.: of hatred and spite.]
[2. ][Ed.: Writ of good and ill.]
[3. ]Mirror. cap. 5. §. 2. Regist. fol. 133. Glanv. lib. 14. c. 3. Bract. 1. 3. f. 121. Fleta. lib. 1. c. 23. 25. W. 1. cap. 11 Gloc. c. 9. W. 2. cap. 29. Hill. 32. E. 1. coram Rege Rott. 71. & 79. 5. H. 7. 5.
[4. ][Ed.: that, taking with you the keepers of the pleas of the crown, in full county, by the oath of good and lawful men of, etc., you enquire (whence it is called a writ of enquiry) whether A. who was taken, etc. and detained in prison, etc. for the death of W., whereof he has been accused, was accused out of hatred and spite, etc., if he has not been indicted or appealed before our last justices in eyre in those parts, and for that reason taken and imprisoned.]
[5. ][Ed.: in all pleas of felony the accused ought to be released by pledges, except in a plea of homicide, whereof it is enacted otherwise to cause dread, etc.]
[6. ]Glanv. lib. 14. c. 1.
[7. ][Ed.: in self-defence or by misfortune,]
[8. ][Ed.: for putting in bail,]
[9. ]Hill. 32. E. 1. ubi. sup.
[10. ][Ed.: that if the aforesaid A. shall find you twelve good and lawful men of your county, etc., who mainprise to have him before our justices at the first assize, etc., to stand [to right], etc., then deliver him the said A., etc. to the aforesaid twelve men in bail.]
[11. ]Regist. f. 133. 134.
[12. ]Mirror c. 5. § 2.
[13. ][Ed.: The prohibition which is made with respect to the writ de odio et atia, that neither the king nor his chancellor should take anything for granting the writ, ought to extend to all remedial writs; and the said writ ought not to extend only to felonies of homicide, but to all felonies, and not only in appeals but in indictments.]
[14. ]28. E. 3. ca. 9. Stamf. Pl. Cor. 77. F. N. B. 92. 42. E. 3. ca. 1.
[15. ][Ed.: putting in bail.]
[16. ]See the Statute of Gloc. ca. 9.
[17. ]8. H. 4. 18. 20. E. 4. 6. Bro. tit. forfeiture.
[18. ]20. E. 4. 6.
[19. ]5. H. 4. cap. 10. Lib. 9. fol. 119. Seignior Zanchars Case. See the statute of Gloc. cap. 9.
[20. ][Ed.: Where a law is in special terms, but the reason for it is general, it is to be taken generally.]
[21. ][Ed.: the king’s writ de bono et malo (of good and ill).]
[22. ]Hil. 32. E. 1. Coram Rege Eború. Roger le Wildes Case. See the forme of this Writ at large in this Record.
[23. ][Ed.: That if A. B., who has been arrested and detained in the aforesaid prison for the death of C. D., wishes to put himself for good and ill upon the country, and is detained therein for that reason (and not by any special command of ours), then deliver that gaol of the aforesaid A. B. according to the law and custom of England.]
[24. ][Ed.: R. W., indicted for the death of W. E., had not proffered the lord king’s writ of good and ill, therefore he is returned to gaol. And likewise in similar cases.]
[1. ]See the Statute of Gloc. cap. 4 F. N. B. 210. 45. E. 3. 15.
[2. ]Brit. fol. 164. b. Bract. li. 2. fo. 35. Fleta lib. 1. ca. 10. Mirror ca. 2 § 17.
[3. ][Ed.: Fee farms are lands held in fee, paying rent for them to the true value by the year, or more, or less.]
[4. ]See the first part of the Institutes sect. 117.
[5. ]* Rot. claus. 12. H. 3. m. 12.
[6. ][Ed.: To hold by blanch-farm (white rent) is to hold freely in socage: see the Black Book of the Exchequer, in the chapter concerning the office of the clerks of the blanch-rent.]
[7. ][Ed.: It is called by Ockham ‘blanch-farm’; and see the old word dealbari (lit. to be whitewashed).]
[8. ]Litt. sect. 162.
[9. ]Ibid. sect. 103.
[10. ][Ed.: concerning the wardship of young orphans.]
[11. ]Glanv. li. 7. ca. 9.
[1. ]Mirror cap. 5. § 2. Fleta li. 2. cap. 56. W. 2. ca. 35. des hauts homes.
[2. ][Ed.: The clause which forbids a bailiff to put a free man on oath without present suit, is interpretable in this way: that no justice or minister of the king, nor any other steward or bailiff, should have power to force a free man to make an oath without the king’s command, or to receive any witnesses to give evidence that the showing is true.]
[3. ]Fleta ubi supra. Vide Vet. Magna Charta. pt 2. in stat. Hibern. 68. b. See the first part of the Institutes. Sect. 248. Brac. l. 5 fo. 400. b.
[4. ][Ed.: A simple voice does not amount to proof, or raise a presumption. Nor can proof be made by suit which is made up of servants and friends, although it raises a light presumption, and may be overcome by proof on the contrary side and by a denial by wager of law.]
[5. ]Glanv. li. 1. ca. 9.
[6. ]Mich. 9. H. 3. tit. Ley 78.
[7. ][Ed.: Therefore it is decided by the court that the defendant, with himself as the twelfth hand, should come with his law.]
[8. ]33. H. 6. 8.
[9. ][Ed.: with the twelfth hand.]
[10. ][Ed.: The memory of this ancient form of purgation has not wholly vanished, for in these days one sued for money has sometimes dissolved the debt with the twelfth hand (as they say).]
[11. ]See the first part of the Institutes. Sect. 234.
[12. ][Ed.: on his faith,]
[13. ][Ed.: concerning their belief,]
[1. ]See the Statute anno 34. E. 1. de tallagio, &c. an excellent Law.
[2. ]20 H. 6. cap. 9. Stamf. Pl. Cor. 152. b. 25. E. 3. 43. b. li. 6. fol. 52. The Countesse of Rutlands case. 11. H. 4. 1 5. 3. H. 6. 58. 48. E. 3. 30. 35. H. 6. 46.
[3. ][Ed.: by the law of the land,]
[4. ]See W. 1. ca. 15.
[5. ][Ed.: outlaw,]
[6. ][Ed.: To destroy, in other words that something which was previously constructed and made should be utterly overthrown and undone.]
[7. ][Ed.: Before the king.]
[8. ][Ed.: Nor shall we go upon him.]
[9. ][Ed.: Nor shall we put upon him.]
[10. ]*See W. 1. ca. 15.
[11. ]a 5. E. 3. cap. 9. a 5. E. 3. ca. 4. 37. E. 3. ca. 8. 38. E. 3. ca. 9. 42. E. 3. ca. 3. 17. R. 2. cap. 6. Rot. Parl. 43. E. 3. Sir Jo. a Lees case. nu. 21, 22, 23, &c. lib. 10. fol. 74. in case del Marshalsea.
[12. ]b Sec 43. Ass. p. 21 where this branch of Magna Charta, and other Statutes are cited, nota bone, the usurpation to an advowson is within this Act. 5. E. 3. cap. 9. 25. E. 3. cap. 4.
[13. ]c 43. E. 3. 32.
[14. ][Ed.: Diers (people who dye cloth) . . . Logwood (an expensive American tree yielding black dye.).]
[15. ]Lib. 8. Tr. 41. l. fol. 125. Case deé Londres.
[16. ]2. & 3. Ph. et Mar. Dier. 114, 115.
[17. ][Ed.: be outlawed.]
[18. ][Ed.: Unless by the law of the land.]
[19. ]Tr. 41. Eliz. Coram Rege. Rot. 91. in trñs int. Davenant & Hurdes.
[20. ][Ed.: and likewise of similar cases:]
[21. ]Tr. 44. Eliz. Coram Regé. lib. 11. fol. 84. 85. &c. Edw. Darcies case.
[22. ]Rot. Parliam. 19. E. 1. Rot. 12. Boilands case. 31. E. 1. Cui in vita 131. 18. E. 3. 54. Matravers case. Parliam. 15. E. 2. Exilium Hugonis.
[23. ]*Rot. Parliam. 13. R. 2. nu. 28. Stam. Pl. Cor. 116. 117. 35. E. 1. cap. 1.
[24. ][Ed.: lose his country:]
[25. ]Rot. claus. Anno 44. E. 3. Sir Richard Pembrughs Case.
[26. ][Ed.: for service performed and to be performed.]
[27. ][Ed.: so much the more so.]
[28. ]5. E. 3. cap. 9. 28. E. 3. cap. 3. Fortescue cap. 22.
[29. ]Mirror cap. 2. §3.
[30. ][Ed.: The kings used to do right to all by themselves, or by their chief justices, and now the kings do it by their itinerant commissary justices assigned for all pleas; in aid of which eyres the sheriffs’ tourns are necessary, and views of frankpledge; and whenever good men at such inquests indict of mortal sin, the kings used to destroy [the accused] without answer, etc., [but now] it is agreed that no one appealed or indicted of felony should be destroyed without answer.]
[31. ]Pasc. 39. E. 3. Coram Rege, John of Gaunts case. Rot. Parl. 4 E. 3. nu. 13. Countee de A und. case. Rot. Parl. 42. E. 3. nu. 23. Sir Jo. of Lees case.
[32. ][Ed.: That he was not arraigned and put to answer, [although it was] in time of peace, inasmuch as the Chancery and other king’s courts were open, in which law was done to everyone in the usual way; secondly, that against the charter of liberties, whereas the said Thomas was one of the peers and great men of the realm, in which it is contained.]
[33. ][Ed.: that the lord king will not go upon him, or put upon him, except by the lawful judgment of his peers, nevertheless by the aforesaid record, in time of peace, without any arraignment or answer, or lawful judgment of his peers, against the law, and against the tenor of Magna Carta.]
[34. ]Lib. 10. fol. 74. In the case of the Marshalsea.
[35. ][Ed.: When something is prohibited, everything is prohibited whereby it may be arrived at.]
[36. ][Ed.: be destroyed.]
[37. ][Ed.: in any way.]
[38. ]Rot. Parl. 15. E. 3. nu. 6. &c.
[39. ]11. E. 3. breve. 173. 6. R. 2. proces. Pl. ultimo. 20. E. 4. 6. 20. Eliz. Dier 360. Lib. 9. fol. 117. Seignior Zanchars case.
[40. ][Ed.: nor shall we go upon, or put upon him, except by lawful judgment of his peers.]
[41. ]1. H. 4. 1. 13. H. 8. 1. 10. E. 4. 6.
[42. ]19. H. 7. Edm. de la Pole Earle of Suff. case. Hil. 13. Jacob. the Lord Norrice case coram Rege.
[43. ][Ed.: by the law of the land.]
[44. ][Ed.: by judgment of the coroners.]
[45. ][Ed.: by judgment of his peers.]
[46. ]Stamf. pl. cor. 130.
[47. ][Ed.: the law arises out of the facts.]
[48. ]Pasch. 26. H. 8. in the case of the L. Dacres of the north, resolved by all the Judges of England as Justice Spelman report. See the 3. part of the Institutes cap. treason.
[49. ][Ed.: judgment of peers.]
[50. ][Ed.: verdict.]
[51. ][Ed.: most recently created.]
[52. ]Rot. Parliam. 4. E. 3. nu. 6.
[53. ]Anno 8. Will. conq.
[54. ][Ed.: by judgment of his peers.]
[55. ]Anno 8. W. 1.
[56. ]20. H. 6. cap 9.
[57. ][Ed.: by peers.]
[58. ]Pasch. 28. H. 8. Spelmans report.
[59. ]22. H. 6. 47. 11. H. 6. 51.
[60. ]Rot. Parliam. 26. E. 1. Rot. 1.
[61. ]25. E. 3. cap. 4.
[62. ]28. E. 3. cap. 3. 37. E. 3. cap. 8. 42. E. 3. cap. 3.
[63. ][Ed.: By the law of England,]
[64. ][Ed.: to do what belongs to justice according to the law and custom of England, etc.]
[65. ][Ed.: law and custom of the king of England,]
[66. ][Ed.: of the people of England,]
[67. ][Ed.: by the law of the land, that is, England.]
[68. ]19. H. 6. 7.
[69. ][Ed.: law of the land.]
[70. ]13. H. 4. 5.
[71. ]11. H. 7. cap. 3.
[72. ]11. H. 8. cap. 6.
[73. ]Rot. pl. 1. H. 4. memb. 2. nu. 1.
[74. ]Anno 16. Jacobi Regis.
[75. ]7. E. 4. 20. 8. E. 4. 3. 9. E. 4. 27. 11. E. 4. 2. 2. H. 7. 15. b. 4. 4. H. 7. 18. 5. H. 7. 5. a. 26. H. 8. 9. 27. H. 8. 23.
[76. ]a Bracton. fo. 143.
[77. ][Ed.: The rumour which begets a suspicion ought to arise from good and serious men, not men of ill will and slanderers, but careful and trustworthy persons, and it must not be only on one occasion, but frequently, that complaint arises and the bad reputation is manifested.]
[78. ]b 29. E. 3. 9. 39. E. 3. 39. 26. E. 3. 71. W. 1. cap. 9.
[79. ]c 11. H. 4. 4. b. 20. E. 4. 6. b. 14. H. 8. 16. 27. H. 8. 23.
[80. ][Ed.: Writ to challenge the lawfulness of an incarceration.]
[81. ]29. E. 3. 39.
[82. ]4. H. 7. 2. 5. H. 7. 5.
[83. ]10. H. 7. 20.
[84. ]26. E. 3. 7. a.
[85. ]38. H. 8. faux imprisonment. Br. 6.
[86. ][Ed.: We commit, an order committing a person to custody of a gaoler.]
[87. ]13. H. 7. Kelway 34. b. See more before hereof in the Exposition upon the Statute of 1. E. 2. De frangentibus prisonam. Out of the Kings Bench, though there be not any priviledge, &c.
[88. ][Ed.: The king to the sheriffs of London, greeting. We command you that you have the body of A. B., which is said to be detained in your keeping, together with the cause of his detention, by whatever name the aforesaid A. B. is known in the same, before us at Westminster on the Thursday next after the octaves of St Martin, to undergo and receive those things which our court shall happen then and there to order for him, and this in no way omit under the incumbent danger, and have there this writ. Witness Edward Coke on the twentieth day of November in the tenth year of our reign.]
[89. ][Ed.: The king to the sheriffs of London, greeting. We command you that you have the body of A. B., by whatever name he is known, who is said to be detained in your keeping, together with the day and the cause of his detention, before our justices at Westminster on the Thursday next after five weeks from Easter, that our same justices, having seen that cause, may further cause to be done what ought rightfully to be done according to the law and custom of our realm of England; and have there this writ. Witness, etc.]
[90. ]In the Common Pleas, for any man priviledged in that Court, and the like in the Eschequer.
[91. ][Ed.: the workshop of justice.]
[92. ]Out of the Chancery generally, though there be not any priviledge, &c. 4. E. 4.
[93. ][Ed.: to undergo and receive, etc.]
[94. ]Act. Apost. ca. 25. ver. ult.
[95. ][Ed.: It seems to me without reason to put a convicted person in prison and not to signify the causes thereof.]
[96. ][Ed.: in the third year of King Charles.]
[97. ]Hil. 32. E. 1. Coram Rege. Rot. 71 & 79.
[98. ]So it was holden Pasch 34 Eliz. by all the Justices. 8. H. 4. 18 20. E. 4. 6.
[99. ][Ed.: to take the offenders against the king’s laws and lead them to Newgate gaol.]
[100. ]Regist. 64. Rot. Pat. 21. E. 3. pt. 1. impugnatores jurium Regis.
[101. ][Ed.: law of the land.]
[102. ][Ed.: He deservedly loses the benefit of the law who intends to subvert the law itself.]
[103. ]Regist. 24. & 191.
[104. ][Ed.: To arrest those who have been hired to set out in our service, etc. but have not cared to come to our said service.]
[105. ][Ed.: for defence of the king and the realm,]
[106. ][Ed.: To arrest him, who received money to set out in the king’s service and has not turned up.]
[107. ][Ed.: for taking an apostate.]
[108. ]Regist fol. 267. F. N. B. 233, 234. 20 E. 2. Cor. 233. 6. E. 3. 17. 22. E. 3. 2.
[109. ][Ed.: We command you that you arrest the said, etc. without delay, and deliver him to the aforesaid abbot, etc. to be chastised according to the rule of his order.]
[110. ][Ed.: in honour of religion.]
[111. ]Registr. 59, 60. F. N. B. 54. 15. R. 2. ca. 2.
[112. ][Ed.: For removing lay force.]
[113. ][Ed.: We command you that without delay you remove all lay or armed force which holds itself in the said church or the houses thereto annexed, to the disturbance of our peace in your county, and if you find anyone resisting you in this behalf attach them by their bodies, and keep them safely in our prison, etc.]
[114. ]Vide Regist. 284. 289, 290. for the arresting of Purveyors, which make purveyance of the men of the Church.
[115. ][Ed.: for the peace of the Church.]
[116. ][Ed.: That you do not leave the realm.]
[117. ]Registr. 89. F. N. B. 85. 31. H. 8. Dier 43. 1. Mar. 92. 1. Eliz. 165.
[118. ][Ed.: Because it has been given us to understand that A. B., clerk, proposes to go into foreign parts, there to pursue many things prejudicial and damaging to us and our people, etc., we command you that you cause the aforesaid A. B. to come personally before you and find sufficient mainprise, etc.; and if he refuses to come before you, then commit the selfsame A. B. safely to the next gaol until he shall have done this willingly.]
[119. ][Ed.: for the public benefit of King and realm.]
[120. ][Ed.: elephant-disease.]
[121. ]Regist. 2697. F. N. B. 234. Bract. li. 5. fo. 421. Brit. fo. 39. 88. Fleta li. 6. ca. 39. Hil. 7. H. 5. coram Rege. Rot. 7. Rot. claus. 22. E. 3 in dos. 20. pte. m. 14.
[122. ][Ed.: Because we understand that J. de N. is a leper, and commonly mixes with men of your county, etc. to the grave damage of the aforesaid men, and because of the manifest danger of contagion from the aforesaid disease, etc., we command you that, taking with you some discerning and lawful men of the aforesaid county, not suspected, etc., you go to the selfsame J., etc. and examine him, etc. and if you find him to be a leper, as is aforesaid, then without delay cause him to be removed in the most decent way you can from the company of the aforesaid men, and to be transferred to a solitary place to live in, as is customary, etc.]
[123. ]Lib. 10. fo. 74. in the case of the Marshalsea. Rot. Parl. 42. E. 3. nu. 23. Sir John a Lees Case.
[124. ]Lib. 5. fol. 64. Clarks case.
[125. ][Ed.: According to the law and custom of England.]
[126. ]42. Ass. pl. 5. Rot. parliam. 17. R. 2. nu. 37.
[127. ]Rot. Parliam. 2. H. 4. nu. 60.
[128. ][Ed.: Gnosian Rhadamanthus keeps here his iron rule; he chastises and hears charges of wrongdoing and forces confession [Virgil, Aeneid, 6. 567.].]
[130. ][Ed.: he made laws, and remade them, for a price.]
[131. ]Act. Apost. c. 22. v. 24. 27.
[132. ][Ed.: The centurion commanded Paul to be apprehended and bound in chains, and then he asked him who he was and what he did.]
[133. ][Ed.: against the law of the land.]
[134. ]36. E. 3. cap. 9.
[135. ]a See the resolution of all the Judges of Englád in the answere to the articles of the Clergy hereafter at large in the exposition of the statute of artic. Cler. to the 21. and 22. artic. Of the Writ of Habeas corpus see more in the exposition upon the stat. of W. 1. cap. 15.
[136. ][Ed.: Writ to determine the legality of any person’s detention.]
[137. ]b Regist 77. F. N. B. 66. Bract. l. 3. f. 185.
[138. ][Ed.: Writ for replevying a man.]
[139. ]c Regist. 83. 268. F. N. B. 249. 258. Bract. l. 3. f. 154.
[140. ][Ed.: Writ of malice and spite.]
[141. ]d W. 2. c. 29. Gloc. cap. 9.
[142. ][Ed.: However, lest such appellees or indicted persons be detained too long in prison, one shall have a writ de odio et atia (of hate and spite), as is mentioned in Magna Carta and other statutes.]
[143. ]e Mirror. c. 1. §. 5. cap. 2. § 13. cap. 5. § 1. 2. Fleta. l. 2. c. 12. Ocham cap. quid sponte offerentibus F. N. B. 96. Rot. Parliam. 8. E. 3. nu. 7. 38. E. 3. n. 23 45. E. 3. n. 19 51. E. 3. n. 58 5. H. 4. nu. 32 20. R. 2. fines 134 34. H. 6. 38. 2. E. 3. c. 10. 1. E. 4. cap. 1. 26. H. 8. cap. 3. 27. H. 8. cap. 11.
[144. ][Ed.: to no one shall we sell, etc.]
[145. ][Ed.: in goods, in lands, or in person,]
[146. ][Ed.: Free, because nothing is more iniquitous than saleable justice; full, because justice ought not to limp; and speedy, because delay is in effect a denial.]
[147. ]2. E. 3. c. 8. 14. E. 3 c. 14. 20. E. 3. 1. 2 11. R. 2. cap. 11. Rot. Parl. 2. R. 2. nu. 51. Rot. Parl. 2. H. 4. nu. 64. Regist. 186.
[147. ]2. E. 3. c. 8. 14. E. 3 c. 14. 20. E. 3. 1. 2 11. R. 2. cap. 11. Rot. Parl. 2. R. 2. nu. 51. Rot. Parl. 2. H. 4. nu. 64. Regist. 186.
[148. ]1. E. 3. f. 25. 2. E. 3. 3. 14. H. 3. tit. Jour. 24. 18. E. 3. 47. 39. E. 3. 7. L. 5. E. 4. 132.
[149. ][Ed.: A judgment rendered by default is affirmed notwithstanding the king’s writ for prorogation of the judgment.]
[150. ][Ed.: the law is the safest helmet (Coke’s own motto).]
[151. ][Ed.: under the shield of law no one is deceived:]
[152. ][Ed.: Writ of arrest for imprisonment until a fine is paid.]
[153. ]Pasch 3. H. 4. coram Rege.
[154. ]Rot. 16. Warwik. Rot. Parl. 5. H. 4. nu. 33. 22. ass. pl. 9. 9. H. 6. 50. b. Fortesc. cap. 51
[155. ][Ed.: to no one shall we delay:]
[156. ]F. N. B. 237. 240. 11. H. 4. 76. 31. E. 3. quare Imp. 161.
[157. ][Ed.: by our prerogative, which we do not wish to be disputed.]
[158. ]Mich. 11. H. 7. Rot. 124. in com. banc.
[159. ]Pasch. 7. H. 8. Rot. 66. in com. banc.
[160. ]Mich. 13. & 14. Eliz. in com. banc. Hitchcock case.
[161. ]11. H. 4. 57. 39. H. 6. 38.
[162. ]*Pas. 22. E. 1. Rot. 39. coram Rege Essex.
[163. ]W. 1. cap. 1. 1. E. 3. cap. 14. 2. E. 3. cap. 8. 7. H. 4. cap. 14. 1. H. 4. cap. 1. 2. H. 4. cap. 1. 4. H. 4. cap. 1. 7. H. 4. cap. 1.
[164. ][Ed.: “To Hear and Determine,” an occasional criminal court, with a jury.]
[165. ][Ed.: to do what belongs to justice according to the law (and) custom of England,]
[166. ][Ed.: so that he stand to right in court, that is, to the law in court.]
[167. ][Ed.: right,]
[168. ]Injuria est in, seu contra jus.
[169. ][Ed.: a straight line is a guide to itself and to the crooked,]
[170. ][Ed.: Discretion is to discern by law what is just.]
[171. ][Ed.: a greater inheritance comes to each of us from the law and statutes than from our parents.]
[173. ][Ed.: Writ of right,]
[1. ]Mirror. cap. 1. § 3.
[2. ][Ed.: forbidden that any alien merchant should live in England except for four fairs, and that none should live in the land beyond forty days.]
[3. ][Ed.: All ships whatsoever of merchants, or of enemies, that are brought into any port, not being wrecked by any storms, shall enjoy peaceable protection; but also, if by the action of the sea an enemy ship should land at any abode which is at peace, and the sailors take refuge there, they and all their property shall be in sacred protection.]
[4. ]Int. leges Ethel. cap. 2.
[5. ][Ed.: Publicly prohibited.]
[6. ][Ed.: And it is important to a state to preserve the laws of war.]
[7. ]Regist. 129. de arest. fact. super bonis mercator. alienig. Rot. Parliam. Mich. 18. E. 1. coram Rege fol. 7 reprisel. Tr. 33. E. 1. corã Rege rot. 127. 27. E. 3. Stat. 2. cap. 2. lawe of marke Rot. Parl. 11. H. 4. nu 66. 4. H. 7. c. 7. 14. H. 6. c. 7. 13. H. 6. c. 9. Mat. Par. 96.
[8. ][Ed.: In time of war the cleric and farmer and trader can pray and till and trade in peace.]
[9. ]a 2. E. 3. c. 5. 9. E. 3. c. 1. 14. E. 3. c. 2. 25. E. 3. cap. 2. 11. R. 2. c. 7. 14 R. 2. cap. 9. 16. R. 2. cap. 1.
[10. ]b Lib 8. fol. 46. John Webbs case. See the exposition of W. 1. c. 31. 46. E. 3. barre 215 39 E. 3. 13. b. F. N. B. 227. d. West. 1. c. 30. W. 2. cap. 25.
[11. ]c See Rot. Parl. 17. E. 3. nu. 27. 28 and 21. H. 3. nu. 29. Maletot taken in good part. See the exposition of W. 1. cap. 31.
[12. ][Ed.: male-tolts (evil tolls).]
[13. ][Ed.: without any male-tolts,]
[14. ][Ed.: By the law merchant;]
[15. ][Ed.: the custom of England.]
[16. ][Ed.: against the custom established by the common council of the realm.]
[17. ][Ed.: customs and services.]
[18. ][Ed.: concerning new customs raised in the realm, whether on the land or on the water.]
[19. ][Ed.: for the public good,]
[20. ][Ed.: the old and rightful customs,]
[21. ]Glanvil. lib. 9. c. 7. lib. 12. cap. 9. 10. Regist. 4. 159. F. N. B. 10. 151. cap. Itineris. cap. Escheatre. See before c. 4. Cap. Itnecris.
[22. ][Ed.: that is to say, by the old and rightful customs,]
[23. ][Ed.: without all male-tolts,]
[24. ]See the Statute of Carlile 35. E. 1. for this word Imposition, and from whom it came. Dier. 31. H. 8. 43. 1 Mar. 92. 1. Eliz. Dier., 165.
[25. ][Ed.: the old customs,]
[26. ]Rot. Pat. 3. E. 1. m. 1. Rot. finium. 3. E. 1. m. 24. Mich. 26. E. 1. Int retorn. brevium. Ex pte. Remem. Thesaur. in Scac.
[27. ][Ed.: Whereas the prelates, great men, and whole commonalty, [have granted] a certain new custom for us and our heirs of wool, fells and leather, that is to say, half a mark for a sack of wool, half a mark for three hundred fells, and thirteen shillings and fourpence for a last of leather, etc.]
[28. ][Ed.: A certain new custom.]
[29. ][Ed.: us.]
[30. ][Ed.: Statute of the Exchequer.]
[31. ]Rot. Pat. anno 48 H. 3. à tergo.
[32. ][Ed.: Against those suggesting, etc. that the king wanted to exact unaccustomed tolls and introduce strange ones.]
[33. ][Ed.: confirmations of the charters.]
[34. ]Anno 25 E. 1. See more in the Exposition of that Statute.
[35. ]Rot. Parliam. 13 H. 4. nu. 18. A new Office graunted with a fee in charge of the Subject, is against this Act of 25. E. 1. and of 34. E. 1. hereafter following.
[36. ][Ed.: Saving to us and our heirs the custom of wool, fells and leather, before granted by the commonalty aforesaid;]
[37. ][Ed.: for not granting tallage.]
[38. ]Anno 34. E. 1. See more in the exposition of this Statute.
[39. ][Ed.: No tallage or aid shall be imposed or levied by us or our heirs in our realm without the will and consent of the archbishops, bishops, earls, barons, knights, burgesses, and other free men of the [commonalty] of our realm;]
[40. ][Ed.: the chapters of the eyre concerning new customs raised in the realm, whether on land or water, etc.]
[41. ]Cap. itineris.
[42. ]Rot. Chartarum. 31 E. 1. nu. 44. Charta Mercatoria.
[43. ][Ed.: For every sack of wool forty pence by way of increment, above the old custom of half a mark which has previously been paid, and similarly for a last of leather half a mark, and for three hundred woolfells forty pence beyond that certain sum and old custom which was previously given.]
[44. ][Ed.: great customs, [and the other] petty customs.]
[45. ][Ed.: and for every [blank] of wine, two shillings in the name of custom, etc.]
[46. ]Rot. Pat. Anno 40. H. 3.
[47. ][Ed.: Certain prises.]
[48. ][Ed.: That no exaction, prise, or loan, or any other burden shall in any way be imposed upon the persons of the aforesaid alien merchants or their goods contrary to the expressed form granted above.]
[49. ]Fleta lib. 2. ca. 21.
[50. ]Rot. ordinationem. Anno 5 E. 2. in Scaccario.
[51. ]11 E. 3. cap. 1.
[52. ]Rot. Parl. 13 E. 3. nu. 12. licence, &c. & 14 E. 3. nu. 3. licence.
[53. ][Ed.: Whereas the people of our realm have before now been aggrieved by various burdens, tallages, and impositions, which we relate with sadness.]
[54. ]Rot. alinance. 12 E. 3. memb. 22 in dors.
[55. ][Ed.: impositions.]
[56. ]14 E. 3. cap. 21.
[57. ]Rot. Parliam. 17 E. 3. nu. 28. 25 E. 3. nu. 22. 36 E. 3. nu. 26.
[58. ]Rot. Parliam. 21 E. 3. nu. 16.
[59. ]Rot. Parliam. 21 E. 3. Dier 1 Eliz. 165. Int’ origin. Scac. 24 E. 3. Rot. 13.
[60. ]27 E. 3. cap. 4.
[61. ][Ed.: Half.]
[62. ][Ed.: And now the great part of the wool of our said realm is made into cloth in the same realm, for which no custom is paid to us.]
[63. ]Int. original. de Scaccar. anno 24 E. 3. Rot. 4. Vide simile. ibid. 24 E. 3. Rot. 13.
[64. ]See the first part of the Institutes, fol. 49. b.
[65. ]Rot. Parliam. 45 E. 3. nu. 42.
[66. ]Rot. parliam. 50 E. 3. nu. 17, 28.
[67. ]Nu. 163. & vide ibidem 191.
[68. ]Rot. Pat. anno 25 E. 3. Created Duke of Aquitaine.
[69. ][Ed.: Fuage (a tax on chimneys) or focage (household fuel, or its tax), “from the fire.”]
[70. ]Rot. Parl. 8. H. 6. nu. 29. & Rot. Par. 28. H. 6. nu 35.
[71. ]Rot. Parl. 3. H. 5. nu. 50. Stat 2. See in the fourth part of the Institutes. Cap. of the high Court of Parliament. more of the Subsidy of Tunnage. [Ed.: Tunnage and Poundage are import tariffs.]
[72. ]Rot. Parliam. 13 H. 4. nu 10.
[73. ][Ed.: The king cannot burden an unwilling subject with impositions.]
[74. ]Fortesc. c. 9. & 18.
[75. ]Int’ communia de Termino S. Trin. anno 1 Eliz. Rot. 73.
[76. ]Mag. Chart. ca. 30 9. E. 3 c. 1. 14 E. 3 25. E. 3. cap. 2. 27 & 28 E. 3. of the Staple. 2 R. 2. cap. 1.
[77. ]23. H. 6. cap. 18. 14. H. 8. ca. 4. 13. El. c. 4 1. Jac. ca. 13 3. Jac. ca. 6. Int’decreta in camera Scac. Mich. 3 & 4 Eliz. Mich. 32 & 33. Eliz. Mic. 39. & 40 Eliz.
[78. ][Ed.: “Alnage” was a duty paid initially on each ell (42 inches) of wool, collected by the “alnager.”]
[79. ][Ed.: the burdening, oppression, and impoverishment, of the lord king’s subjects, etc., and not for the improvement of the same people;]
[80. ]13. E. 3. ex. pte Remem. Thesaurar. Rot. Parliam. 25 E. 3. Enacted according to this resolution. 30 E. 3. Compot. Forinseco. in Scaccar. compot. Joh: Mareis.
[81. ]Pasch. 1 Eliz. in Scacc. ex pte Remem. Regis.
[82. ][Ed.: And whereas also the said late king and queen, by the advice of their council, then and there ordained and decreed that whatever person should bring such wine into this realm of England, contrary to the form of the aforesaid proclamation, should pay forty shillings, called an impost, for every tun of such wine, etc.]
[83. ][Ed.: notwithstanding, an order relieving the recipient of an obligation at law.]
[84. ]Mich. 38. 39. Eliz. in Scaccari, Rot. 319.
[85. ][Ed.: that the aforesaid executors were not bound to account, etc.]
[86. ]In mem. Scaccar. int. com Pasc. 4. Jacob. Rot. 32. in inform. vers. John Bate de London mercat. Pl. Com. 236. in the B. Barkleys case. Fortesc sepe.
[87. ][Ed.: The common law has so measured the king’s prerogatives that they shall not take away or prejudice anyone’s inheritance,]
[88. ][Ed.: Nothing is more appropriate for a ruler than to live by the laws.]
[89. ]2. E. 3. c. 9. 9. E. 3. c. 1 25. E. 3. c. 2. 2. R. 2. c. 1. 11. R. 2. cap. 7. 6. R. 2. cap. 1. 12. H. 7. cap. 6.
[90. ][Ed.: The article concerning permission for alien merchants to remain is to be interpreted so that it should not prejudice the towns or the merchants of England; and they shall be sworn to the king and put in pledge if they stay for more than forty days.]
[91. ]Mirror c. 5. §. 5 4. E. 4. c. 15. 5. H. 4. c. 9. 27. H. 6. cap. 3. 17. E. 4. cap. 1. 3. H. 7. cap. 8.
[92. ]*See hereafter the exposition upon the Statutes of imployments.
[1. ][Ed.: in chief.]
[2. ]See the first part of the Institutes sect. 103. 47. E. 3. 21. F. N. B. 5.
[3. ]47. E. 3. 21. Riparaves case.
[4. ]Bracton 2. fol 87. b. 30. H. 8 tenures Br. 44. 29. H. 8 livery. 28. Br. 3. H. 8 Dier 58.
[5. ]1. E. 6 cap. 1. E. 3. cap 3. See the
[1. ]part of the Institutes sect. 1. 1. Tr. 1. E. 1 coram. Rege. Not. & Derb. a declaration made of Act. Bract. L 1. Ba. fol. 88 Flet. cap. 3. Mirror. § 2. Custumier Norm. cap. 116.
[2. ]10. H. 7. 11.
[3. ]a 29. Ass. p. 19. 20. Ass. p. 17. 26. Ass. p. 37. 20. E. 3. avowry. Rot. Parl. 29. E. 3. nu. 18.
[4. ]b Rot. Par. 18. E. 1.
[5. ][Ed.: The king does not wish any mesne, etc.]
[6. ]c 34 E. 3. c. 15. the Stat. of W. 1 de quia emptores terr. an. 18. E. 1. F. N. B. 143b. & 235c.
[7. ]d Rot. pat. an. 21. H. 3. nu. 4. H. 3. confirmed this chart. made 9. H. 3.
[8. ]e 20. Ass. p. 17. 26. Ass. p. 37. 14. H. 4. 2. 3. 15. E. 4. 13. Stamf. prer, cap. 6. fo. 27, 28. 9. E. 3. 36. Hil. 13. E. 3. coram rege. Norff. in turri.
[9. ][Ed.: no free man shall give, etc.]
[10. ][Ed.: Tenure by personal military service to the Sovereign, later honorary service.]
[11. ]1 E. 3. c. 12 See the Statute of quia emptores terrarum. ubi sup. Hil. 2 E. 3. coram Rege Wiltes. Prerog. Regis c. 6. F. N. B. 175. 14. E. 3. quare Imp. 54. Br Alienation sans licence 34. Hill. 43 Eliz. 1. 2. fo 80. 81. Seign. Cromwels case.
[12. ][Ed.: because no one can properly come against his own deed,]
[13. ]E. 1. de quia emptores terra.
[14. ][Ed.: that from henceforth it should be permissible for any free man to sell his lands or tenements, or part thereof, in such a way nevertheless that the feoffee shall hold that land or tenement of the chief lord by the same services and customs as those by which his feoffor previously held of him, and if he should sell any part of the same lands or tenements to another, the feoffee shall hold that part immediately of the lord.]
[15. ][Ed.: at the instance of the great men of the realm.]
[16. ][Ed.: it should from henceforth be permissible.]
[17. ][Ed.: for his portion.]
[18. ]Registr. 268. F. N. B. 234.
[19. ][Ed.: for charging in proportion;]
[20. ][Ed.: in a certain respect,]
[21. ][Ed.: simply,]
[22. ]17 E. 2 ca. 7. 1 E. 3. ubi supra.
[23. ][Ed.: That from henceforth a reasonable fine shall be taken in the Chancery for such lands and tenements aliened,]
[24. ][Ed.: from henceforth.]
[25. ][Ed.: Writ: by which title he has entered.]
[26. ]45. E. 3. ca. 6. 17. E. 3. 6.
[27. ][Ed.: Writ for reversioner or remainderman to compel a life tenant to attorn to him.]
[1. ]Mirror ca. 5. § 2. F. N. B. 34. 44 E. 3. 24. 38 Ass. 22. 50 Ass. p. 6.
[2. ]44. E. 3. 24.
[3. ][Ed.: or conversely.]
[1. ]See the first part of the Institutes. Sect. 500.
[2. ]Glanv. lib. 14. c. 3. 15. E. 2. Coro. 385. 17. E. 4. 1. 20 H. 6. 43. Stamf. Pl. Cor. 58; 59. Bract. li. 4. fol. 148. Brit. fo. 55. Flet. 1 c2. 33. See the first part of the institutes, sect. 24.
[3. ][Ed.: on account of the appeal of a woman.]
[4. ]*Fleta ubi supra. Mirror ca. 5 § 2. & ca. 2. §7. 50. E. 3. 14. 28. E. 3. 9. 1. 3 E. 3. Coron. 357 20. H. 6. 46.
[5. ][Ed.: A woman may appeal for the death of her husband slain between her arms, but not otherwise;]
[6. ][Ed.: between her arms.]
[7. ][Ed.: never joined in lawful matrimony,]
[8. ][Ed.: the wife of her husband,]
[9. ]11 H. 4. 46.
[10. ]35. H. 6. 63.
[11. ][Ed.: her husband.]
[1. ]Inter leges R. Ed. Lamb. 129. a. b. Idem verbo Conventus.
[2. ][Ed.: What is now called a county was called consulatus (consulate) by the Britons, in the times when the Romans were in this kingdom of Britain; and those who are now called vicecomites (sheriffs) were in those times called vice-consules (vice-consuls); and he was called a vice-consul who supplied the place of a consul in his absence in a court of law.]
[3. ][Ed.: County Court.]
[4. ][Ed.: shire-moot, that is, meeting of the county.]
[5. ][Ed.: Of this there are two kinds, one of which is now the county court, and the other is the sheriff’s tourn, which was once commonly called the folk-moot.]
[6. ]12 H. 7. 18. Lamb. 135. Britton ca. 27. Flet. 2. ca. 36, 37.
[7. ][Ed.: the sheriff’s tourn.]
[8. ]In libro rubro, in Scaccario. ca. 80.
[9. ][Ed.: concerning the general pleas of the counties.]
[10. ]* i. Turnorum placita.
[11. ]Regis placita. i. The Pleas of the Crown holden in the Sheriffes Tourn also.
[12. ][Ed.: As it was formed by ancient institution, and confirmed of record by the king’s authority, the general pleas of the county ought to be convened in certain places, and on certain occasions, and at a definite time of the year, so that no one should be made to litigate too often beyond the point of exhaustion, unless for the necessity of the king himself or the benefit of the realm. And there should be present the bishops, earls, vicelords (vicedomini ), deputies, hundredmen, ealdormen, prefects, provosts, barons, vavasours, trithing-reeves (tingrevii ), and others diligently attending on the lord’s lands, lest the impunity of the wicked, or the depravity of the reeves, or the corruption of judges, should subject the wretched to customary oppression. They deal firstly with the due rights of true Christianity, secondly with pleas of the king, and lastly the causes of individuals, etc. The shire-moot ought to meet twice a year, and hundreds and wapentakes twelve times a year.]
[13. ][Ed.: As it was formed by ancient institution.]
[14. ]Lamb. fol 135. The oath of Allegeance in the Tourn or Leet.
[15. ][Ed.: It was enacted that here (that is to say, at the folk-moot) ought all the people, etc. to come and at one and the same time contract together by faith and unbroken oath, etc. to defend the realm, etc., together with their lord king, and with all faithfulness to preserve with him his lands and honours, and that they shall be faithful subjects to him as their lord king within and without the whole realm of Britain, etc. This law was introduced by Arthur, who was at one time the most distinguished king of the Britons, and thus he consolidated and joined together the whole realm of Britain to be always as one, and by authority of this law the aforesaid Arthur expelled the Saracens and enemies from the kingdom. However, this law was long in abeyance until Edward, king of the English, who was grandfather of King Edward, revived it and brought it to light and ordered it to be firmly observed throughout the realm; and byauthority of this law King Æthelred suddenly on one and the same day put to death all the Danes throughout the realm.]
[16. ]Inter leges Edw. Regis. ante conq. 1 cap. 11. fol. 51.
[17. ][Ed.: The provost—that is, vicecomes, or (in Saxon) reeve, or (in English) sheriff—around every fourth week shall proclaim a regular assembly of the people, so that right can be done to everyone with equity and all disputes settled when the appointed days arrive.]
[18. ]Inter leges Edgari Regis. ca. 5. fo. 80.
[19. ][Ed.: The satrap shall twice a year convene the most distinguished assembly of everyone, to which the bishop of the diocese and the senator (i.e. ealdorman) shall be present, each of whom shall teach the people the divine laws and the human.]
[20. ][Ed.: his tour through the hundreds, etc.]
[21. ]Britton cap. 29. Fleta lib. 2. ca. 45 Marlebr. cap. 10. 31 H. 6. Leet 11. F. N. B 169. a.
[22. ]2. E. 6. cap. 25.
[23. ][Ed.: Once after Easter, etc.]
[24. ]31. E. 3. ca. 15.
[25. ]38. H. 6. fol. 7. 6 H. 7. 2. Stamf. pl. Cor. 84.
[26. ]42. E. 3. 4. & 5. Dier 4. & 5. Phil. & Mar. 151.
[27. ][Ed.: a resident of a manor, not holding a specified tenency.]
[28. ]11 H. 4. 89. 13 H. 4.9. lib. 11. fo. 45. Godfreyes case.
[29. ][Ed.: of a certain leet.]
[30. ][Ed.: to hold pleas.]
[31. ][Ed.: Derivative power is of the same jurisdiction as primitive power.]
[32. ][Ed.: The court of frankpledge of the lord king held at L. before the sheriff in his tourn on such and such a day, etc.]
[33. ]31 H. 6. Leet 11. 8 H. 7. 11.
[34. ][Ed.: the sheriff’s tourn held on such and such a day at L., etc.]
[35. ]6 H. 7. 2. 8 H. 7. 1.
[36. ]Mirror ca. 1. §. 16.
[37. ][Ed.: by the way.]
[38. ]18 H. 6. abbr. by F. Leet. 1.
[39. ][Ed.: to present those who are not bound,]
[40. ][Ed.: to present those who are not put into the tithing.]
[41. ]4 E. 4. 31. 22 E. 4. 22. 12 H. 7. 18. 28 H. 8. Dier 13. b.
[42. ][Ed.: Court of the view of frankpledge;]
[43. ]Pasch. 5. Jac. lib. fo. 78. Bulleins case.
[44. ][Ed.: Times change, and we change with them.]
[45. ][Ed.: The true institution of this court has vanished, and but a shadow thereof remains to this day: we have a certain senatusconsultum (statute), but it rests in the records and is like a sword hidden in its sheath.]
[47. ]Mirror ca. 1. § 117. & ca. 5. § 2.
[48. ][Ed.: The sheriff shall not make his tour through the hundred except twice a year,]
[49. ][Ed.: that is to say, Once after Easter and again after Michaelmas;]
[50. ]6 H. 7. 2. & 3.
[51. ]30 H. 6. Leet 11. 24 H. 8. Br. Leet 23. 22 H. 6. 14. 8 H 74. 12 H. 7. 15. 38 H. 6. 7. Dier 7 Eliz, 233, 234.
[52. ][Ed.: That is to say, so that everyone shall have their liberties which they had, etc.]
[53. ][Ed.: And that [the sheriff should not seek exactions] etc. but be content with what sheriffs are accustomed to have for making their view;]
[54. ][Ed.: his view.]
[55. ][Ed.: Firstly that our peace be kept, and, secondly, That the tithing shall be kept whole.]
[56. ][Ed.: Free sureties.]
[57. ][Ed.: let the view of frankpledge be made, so that our peace shall be kept,]
[58. ]Bract. lib. 3. f. 124. Int. leges Canuti fol. 108. 19. Int. leges Edw. regis fol. 132. cap. de friborgis. Bract. ubi sup. Lamb. verbo centuria & decuria.
[59. ][Ed.: Tithing, that is, a collection of ten men.]
[60. ]Bract. fol. 19. b.
[61. ]Brit. ubi sup.
[62. ][Ed.: If someone takes flight, it shall be diligently enquired whether he was in frankpledge and tithing, and then the tithing will be in mercy before our justices because they do not have that wrongdoer to do right.]
[63. ]Bract. l. 3. f. 124.
[64. ][Ed.: tithing.]
[65. ]Brit. cap. 12. Fleta lib. 1. cap. 27. acc.
[66. ][Ed.: It was anciently ordained that no one should live in the realm unless he was in a tithing and pledge of free men. It belongs to sheriffs to view the frankpledges and their sureties twice a year, etc.]
[67. ]Mirror. cap. 1. § 17.
[68. ][Ed.: It is no light conjecture that in early times, when there were far fewer crimes, pecuniary mulcts were imposed for rape, theft, and killing, and many other crimes, whereas in our time we consider all of them worthy of capital punishment, etc.]
[69. ]Lamb. verb. æstimatio capitis.
[70. ]Fleta lib. 2. c. 54. § de Trithingis.
[71. ][Ed.: that the trithing, or theothing, that is, a collection of ten men, shall be kept whole.]
[72. ]Lamb. Int. leges Sanct. Edw. nu. 34. Merton. c. 10.
[73. ][Ed.: At one time the trithing signified three or four hundreds, and what could not be determined in the trithing was carried to the shire.]
[74. ]Marlebridg c. 10. Mirror. c. 1. § 16. Bract. lib. 3. fol. 124. Brit. 19. b. Fleta lib. 1. c. 29. lib. 2. cap. 45.
[75. ]Mirror. c. 2. §5. Britton. fol. 3. b. 6. a. 18. b. 37. b. Fleta. lib. 1. c. 18. § Item. fi officium. & lib. 2. c. 39. 27. Ass. p. 14. 42. E. 3. 5. 23. H. 6. cap. 10. 17. 1. H. 8. c. 7. 33. H. 8. cap. 22. 21. H. 7. fol. 17. 76.
[76. ]W. 1. cap. 26.
[77. ][Ed.: The sheriff shall swear upon the holy gospels of God, amongst his articles, that he shall not accept anything by reason of his office from anyone other than the king.]
[78. ]See the preface to the 4. part of my reports.
[79. ]42. E. 3. 5. 38. H. 6. 7. 6. H. 7. 2. 3.
[80. ][Ed.: from the profits of the county,]
[81. ]Regist. 16. 174. 175. F. N. B. 161. d. Marleb. cap. 10.
[1. ]Mirror. c. 5. §.
[2. ]Glanv. 1. 6. c. 7. 2. 3. E. 4. 12. See the 1. part of the Institutes sect. 133. 157. Stat. de 7. E. 1. de religiosis. 23. H. 3. Ass. 436. Britton. fol. 32. b. Fleta. lib. 3. cap. 5.
[3. ][Ed.: inalienable possession, particularly alienation to a corporation.]
[4. ]First part of the Institutes. Cap. Frankalmoigne.
[5. ][Ed.: That it should be permissible for the donor to give or sell the thing given to anyone he wishes, except to religious men and Jews.]
[6. ]Bract. li. 1. fol. 13.
[7. ]Fleta lib. 3. cap. 5.
[8. ][Ed.: That no religious person or other whatsoever.]
[9. ]15 R. 2. cap. 5. 29. Ass. p. 17. Br. 29. H. 8. Mortmain 39.
[10. ][Ed.: shall buy or sell any lands or tenements under colour of a gift or term.]
[11. ]* These words are notably explained. 15 R. 2. ca. 5. 19. H. 6. 56. 41 E. 3. 16. 41 E 3. 21. 29 H. 8. Br. Mortmain 39. 17. E. 3. 59. 21. E. 3. 46. Rot. Parliam. 5. R. 2. nu. 92. Quant le terre est per covin convey al Roy.
[12. ][Ed.: Or by reason of any other title whatsoever receive from anyone, or in any other way by craft or ingenuity presume to appropriate to themselves, lands or tenements, on pain of forfeiture thereof.]
[13. ][Ed.: by craft or ingenuity.]
[14. ][Ed.: Writ requiring the addressee to act or show cause for inaction.]
[15. ][Ed.: And thus a fraud was made upon the statute.]
[16. ]W. 2. cap. 32. Fleta lib. 3. cap. 5. 45 E. 3. 19.
[17. ]15 R. 2. cap. 5. 8 H. 4 16.
[1. ]Fleta lib. 2. ca. 60.
[1. ][Ed.: let all liberties, etc. be saved to all archbishops, etc.]
[2. ]Hil. 3. Jacobi. lib. 8. The Princes Case.
[3. ]Rot. pat. 6. E. 3. 2. part. nu. 26.
[4. ][Ed.: For taxing equally.]
[5. ][Ed.: These being witnesses.]
[6. ][Ed.: Witness myself.]
[7. ][Ed.: In witness whereof we have caused these our letters to be made patent:]
[8. ][Ed.: In witness whereof we have caused these our letters to be made patent.]
[9. ]See the first part of the Institutes. sect. 1.
[10. ][Ed.: Given by our hand; by the hand of our chancellor; by the keeper himself and the council, etc.]
[11. ][Ed.: Of [our] especial grace.]
[12. ][Ed.: Of [our] certain knowledge and mere motion.]
[13. ][Ed.: By the king himself; by writ of privy seal; by authority of parliament, etc.]
[14. ]Hil. 3. Jac. in Cancellaria. The Princes Case. Lib. 8. fol. 19.
[1. ]Bracton li. 2 c. 96. saith it was in anno 18. Hen. 3.
[2. ]18 Edw. 4. 22. 19 Edw. 4. 2,7. 20 Edw. 4. 16. 21 Edw. 4. 60.
[3. ]26 Hen. 8. cap. 14. 1 & 2 Ph. & Mar. ca. 8. 1 Eliz. ca. 1.
[4. ][Ed.: Before the archbishop of Canterbury and [his] co-bishops and suffragans.]
[5. ][Ed.: by a barony,]
[6. ]See the first part of the Institutes. Cap. Frankalmoigne.
[* ][Ed.: Note sections 1–8 are here omitted.]
[1. ]See the first part of the Institutes. sect. 399, 400. & 188.
[2. ]Vide Decret. Gregorii 9. fol. 260. col. 1.
[3. ][Ed.: The Church regards them as legitimate.]
[4. ]Glanv. li. 7. c. 15.
[5. ][Ed.: A question has arisen, if someone is begotten or born before his father married his mother, whether such a son is the legitimate heir if the father later marries the mother. Although according to the Canon and Roman laws such a son is the legitimate heir, nevertheless according to the law and custom of the realm he can in no way be maintained in the inheritance as heir nor claim the inheritance by the law of the realm.]
[6. ]Bract. li. 5. fo. 41. 6., 417. Fleta lib. 6. c. 38. Fortescue c. 39. 11 Ass. p. 20.
[7. ][Ed.: Against the law and custom of the realm.]
[8. ]4 Edw. I. Stat. de Bigamis c. 9. simile.
[9. ]Glanv. ubi supra.
[10. ]Pasch. 18. Edw. 1. in Banco Rot. 80. Mid. in Ass. de Mordaunc’.
[11. ]Vide Mic. 15 Edw. I. in Banc. Rot. 129. Hertf. Tr. 15. Edw. I. ibid. Rot. 60. Not.
[12. ][Ed.: An assize comes [to make recognition], etc. whether Nicholas de Lewkenor, father of Thomas de Lewkenor, was seised, etc. of the manor of South Mimms, which Roger of Lewkenor holds. Roger says that he is the elder brother of the selfsame Thomas, born of the same father and mother, and is seised of the aforesaid tenements, and claims by the same descent, and he prays judgment. Thomas says that Roger cannot claim by the same descent, because he says that the same Roger was born outside espousals, etc. And because the same Thomas cannot deny that the same Roger is the elder brother of the selfsame Thomas, born of the same father and mother, and that after the death of the aforesaid Nicholas his father, etc. he entered in the same tenements as his son and heir, it is decided that the aforesaid Roger do go therein without day. And let Thomas take nothing by the assize, but be in mercy, etc.]
[13. ]See the first part of the Institutes. sect. 400.
[14. ]Chart. Hen. I.
[15. ][Ed.: May your holiness take note that while I am alive, by the help of God, the dignities and usages of our realm of England will not be diminished, and if (which must not be) I fall down in such matters, my nobles and the whole people of England will in no way allow it.]
[16. ]William Malms. lib. 3. circa initiū Ingulphus lib. 6. cap. 19. See the Custumer de Nor. ca. 27. fo. 42 & 44.
[17. ][Ed.: against the law of England.]
[18. ][Ed.: born before marriage.]
[19. ]Rot. Par. 28. E. 1. apud Lincoln.
[20. ][Ed.: We are constrained by the oath we have taken to observe and defend the liberties, customs and laws of our fatherland, which with the assistance of God we will maintain with all power and defend with all force, and, just as we cannot and ought not, neither shall we permit the foregoing, as unaccustomed, undue, prejudicial and previously unheard of within our realm.]
[21. ]Jus coronae.
[22. ][Ed.: especially since the foregoing matters would manifestly tend to the disinheritance of the right of our royal crown and royal dignity of England, and to the notorious subversion of the estate of the same realm, and also to the prejudice of the liberties, customs and laws of the fatherland.]
[23. ][Ed.: And the British being utterly divided from the whole world.]
[24. ][Ed.: property in the fourth degree.]
[25. ]Lib. 5. fo. 1. &c. Caudries case. 1 part of the Institutes § 534.
[26. ]Bracton lib. 5. fo. 416. 417.
[27. ][Ed.: And all the earls and barons answered with one voice, we will not change the laws of England.]
[28. ]See the last Cha. of Merton the like. 12. Ass. p. 2d.
[29. ]Bract. li. 5. fo. 416. Fleta li. 6. cap. 38. 47. Edw. 3. 14. 21. Edw. 3. 49, 28 ass. 46. 46. Edw. 3. 3.
[1. ]41 Edw. 3. Avowry 77. Vid. Glo. c. 8 West. 2. cap. 10.
[2. ]Lamb. int. leges Edw. regis, nu. 34. Magna Cart. c. 35. Temps Edw. I. Attorn. 106. Regist. 172. 23 Edw. 3. cap. 4. F. N. B. 156.
[3. ]Lam. verbo centuria int. leges Edw. regis, nu. 33. Bract. lib. 3.
[4. ][Ed.: What the English call a hundred, those of the above mentioned county call a wapentake.]
[5. ]Mirror, ca. 5. §. 3.
[6. ][Ed.: May freely make his attorney to do those suits for him.]
[7. ]Temps Edw. 1. Attorny 106.
[8. ]F. N. B. 156. Edw. West. 1. cap. 33.
[9. ]F. N. B. 157.
[10. ][Ed.: And because the force of our writs for making such an attorney has no end, nor is a term limited while the persons last, etc.]
[11. ]West 1. cap. 33. Custumier de Norm. cap. 65.
[1. ][Ed.: The Statutes at Large translated paris & vivariis as “parks and ponds.” Coke here clearly means vivariis in its wider meaning.]
[2. ][Ed.: of the word’s definition.]
[3. ][Ed.: proper imprisonment.]
[4. ]See the like before, cap. 9.
[5. ][Ed.: The Lord the king denied.]
[1. ]Polyd. Virg. p. 314. 10.
[2. ][Ed.: Henry [III] called together the council of Marlborough, which is a celebrated region in the county of Wiltshire, and in that meeting he first caused the laws laid down by him, especially Magna Carta, to be approved by the determination of the council, and then caused others to be made which greatly conduced to the estate and benefit of the realm.]
[3. ]39 Edw. 3. fo. 15.
[4. ][Ed.: the wise man begins with the end,]
[5. ][Ed.: Firstly, for the betterment of the realm of England, and secondly for the speedier execution of justice, as belongs to the office of a king.]
[6. ][Ed.: Calling together the more discerning persons of the realm, both great and small.]
[7. ][Ed.: Whereas the realm of England has recently been oppressed with many troubles and dissensions.]
[8. ][Ed.: That whereas the realm, etc., for reformation whereof statutes and laws are essential for the preservation of peace and tranquility, the king and his faithful subjects have there to provided for a convenient remedy the underwritten provisions, ordinances, and statutes, to be firmly and inviolably observed by all people of the realm, both great and small, for ever.]
[* ][Ed.: Chapters 1–30 are here omitted.]
[1. ]5 E. 3. 14.
[2. ][Ed.: Was the wisest king that ever was.]
[3. ][Ed.: For the common profit of Holy Church and of the realm.]
[4. ]Vet. Mag. Chart. fo. 144.
[5. ]Glanv. li. 1. c. 6.
[6. ][Ed.: on the morrow of the close of Easter [or] on the morrow of the octave of Easter,]
[7. ][Ed.: The king’s peace is kept on the day he was crowned for eight days, at Christmas for eight days, in Easter time for eight days, at Whitsun for eight days, etc.]
[8. ][Ed.: the close of the feast.]
[9. ]Vide vet. Mag. Char. 1. part, fo. 144. b.
[10. ]Dors. claus. An. 3. E. 1. m. 21.
[11. ]Rot. pat. An. 4. E. 1. m. 9. 14.
[12. ][Ed.: The king to the venerable father in Christ, Robert, archbishop of Canterbury, primate of all England, greeting. Because for certain causes we have prorogued our general parliament, whichweproposed to have with our prelates and great men of the realm at London at the quindene of the Purification of the Blessed Mary next to come, until the morrow of the close of Easter next following, we command you with respect to the same parliament that you be there on the same morrow of the close of Easter to treat and take order concerning the business of our realm together with the prelates and great men of the same realm, and this in no way omit. Witness the King at Woodstock, on the twenty-seventh day of December.
[13. ]Rot. pat. An. 10. E. 1.
[14. ][Ed.: by the advisement of our council.]
[15. ]See the 4. part of the Instit. cap. of the high Court of Parliament.
[16. ]H. 7. 27.
[17. ][Ed.: For the common profit of Holy Church and of his realm.]
[18. ][Ed.: First, it is in the interests of the state that peace should be preserved in the realm, andwhatsoever works against the peace should be assiduously suppressed:]
[19. ]3 E. 6. cap. 12. 1 Mar. cap. 12.
[20. ][Ed.: Nothing in the kingdom better preserves the subjects in tranquility and peace than the due administration of the laws.]
[21. ]32 H. 8. cap. 9.
[22. ][Ed.: And continuous impunity encourages men to offend.]
[23. ][Ed.: We, by the advice of our council.]
[24. ][Ed.: The king by his council.]
[25. ][Ed.: For certain arduous and urgent business concerning us and the defence of our realm of England.]
[26. ][Ed.: That our lord the king has a great wish and desire to reform the condition of his realm, in those things which are in need of amendment, and that for the common profit of Holy Church and his realm, and because the estate of his realm and of Holy Church has been badly kept, etc.]
[27. ]Rot. Parl. 50 E. 3 nu. 10. 15, 16, 17, 18, &c. Rot. Parl. 5 H. 4. nu. 8. 7 H. 4. nu. 30, 41. 9 H. 4. indemnitie des Seigniors, &c. 1. H. 5. nu. 8. &c.
[28. ][Ed.: No one was more impressive in advice, more burning in eloquence, more secure in danger, more cautious in prosperity, more constant in adversity.]
[* ][Ed.: Chapters 1–51 here omitted.]
[1. ]Vet. Mag. Chart. fol. 130.
[2. ][Ed.: Writ used to limit conduct to the extent of a royal license or charter.]
[3. ]Lib. 9. fol. 28. In the case of Strata Marcella.
[4. ][Ed.: A writ for allowing liberties.]
[5. ][Ed.: New [statute] of quo warranto.]
[6. ][Ed.: For the improvement of his realm of England and the fuller provision of justice:]
[7. ][Ed.: Improvement of the realm.]
[8. ][Ed.: The common council.]
[9. ][Ed.: fuller provision of justice,]
[10. ][Ed.: As belongs to the duty of the royal office;]
[11. ]Pol. Virgil.
[12. ][Ed.: In which certain decrees were made concerning the state of the realm, which are now made the greatest use of as full of right and fairness.]
[13. ]Vide Vet. Magna Charta. fol. 130. Stat. de Quo Warranto. Pol. Virgil.
[14. ][Ed.: by what right or by what name he retained them, etc.]
[15. ][Ed.: So that no records remained.]
[16. ][Ed.: Such an edict seemed to everyone very oppressive, long after the men were born. What grumbling of men, what angry minds, in what sudden odium the prince began to be held.]
[17. ]Mag. Charta. cap. 1, 9, 38.
[18. ][Ed.: Whereas lately, in our parliament at Westminster (This language and the next three captions are not in the excerpt commencing this chapter; they are from the Writ of summons, which Coke prescribes for use as the summons described in the statute of Gloucester.).]
[19. ][Ed.: It was provided and proclaimed.]
[20. ][Ed.: Which until now they have reasonably used.]
[21. ][Ed.: For allowing liberties.]
[22. ][Ed.: Until our next coming into the aforesaid county or until the next coming of the justices in eyre, etc.]
[23. ][Ed.: on oath, not in court.]
[24. ]8 E. 3. 18. 17 E. 3. 11. 26. Ass. 24 30 Ass. 31. 34. Ass. 14. 38 Ass. 1. 1 H. 4. 3. 12 H. 4. 23. 8 H. 6 8. 2 E. 4 22. 7 H. 6. 33. 9 H. 7. 12. 10 H. 7. 14. 16 H. 7 16 20 H. 7 7. Kelwey 189, 190. 8 H. 8.
[25. ][Ed.: The office of a judge is to seek out the things and also the times of things.]
[26. ]18 H. 6. prescript. 45. 2 E. 3. 29. 8 H. 8. Kelwey 189. stat. de 18 E. 1. De quo warranto novum. Lib. 9 fol. 29. in case de Strat Marcella.
[27. ]34 Ass. pl. 14. 40 Ass. 21. 6 E. 3. 54, 55. 7 E. 3. 40, 41 18 E. 3. Conus. 39 12 H. 4. 12. 14 H. 6. 12. 33 H. 6. 22. 35 H. 6. 54. 9. H. 7 11. 10 H. 6. 13. 16 H. 7. 9.
[28. ]Regist. 158. 5 E. 3. 50, 51. 6 E. 3. 18 20 H. 6. 34. 34 H. 6. 36 Dier. 8 El. 245.
[29. ][Ed.: Certificate stating the question in issue.]
[30. ]a 3 E. 6. c. 4. 13 El. ca. 6 lib. 5. fo. 52, 53. Pages case.
[31. ][Ed.: enquire upon the possession and usage, etc.]
[32. ][Ed.: Usage is the best interpreter of things.]
[33. ][Ed.: Let them have forty days’ warning.]
[34. ][Ed.: And if they take exception that they are not bound without writ, etc.]
[35. ]Bract. li. 1. fo. 5. & 171. 6 E. 3. 50 22E. 3. 3. 24 E. 3. 1 23. 43 E. 3. 22. 11 H. 4. 86. 9 H. 6. 58.
[36. ][Ed.: according to the law of the land:]
[37. ]Magna Charta, cap. 29. 25 E. 3. cap. 4. Stat. 5. 28 E. 3. ca. 3. 42 E. 3. ca. 3.
[38. ][Ed.: And if they further say that their ancestors died seised thereof, they shall be heard at once and the truth enquired into at once.]
[39. ]Stat. de 18 E. 1. de quo war’ nov. 6 E. 35. 8 E. 3. 10, 11. 16 E. 4. 6 3 H. 7. 15. Stanf. Praerog. 74.
[40. ][Ed.: Saving the right.]
[41. ]Pasch. 9. E. 1. Coram rege Rot. 17. Sussex.
[42. ][Ed.: Without a precept.]
[43. ]2 E. 3. 29. 6 E. 3. 5. 15 E. 4. 6, 7.
[44. ][Ed.: And if they do not come, etc., the sheriff shall be commanded to cause them to come, etc., as in the eyre of the justices.]
[45. ][Ed.: in the name of a distress.]
[46. ][Ed.: A writ commanding the sheriff to summon a jury.]
[47. ]Pl. Com. 372. in le Signior Zouches case.
[48. ][Ed.: new [statute] of quo warranto.]
[49. ][Ed.: for not granting tallage.]
[50. ][Ed.: concerning complaints made and to be made of the King’s bailiffs, and the bailiffs of others, let it be done according to the ordinance previously made therein.]
[51. ][Ed.: chapters of the eyre.]
[52. ][Ed.: according to the articles delivered to our same justices.]
[53. ][Ed.: according to the articles which the king has delivered to them.]
[* ][Ed.: Chapters 1–15 are here omitted.]
[** ][Ed.: Chapters 1–50 are here omitted.]
[1. ][Ed.: The third statute of Westminster, enacted in the eighteenth year of Edward I at the parliament after the feasts of Hilary and Easter.]
[2. ][Ed.: The king’s statute concerning the selling and buying of lands.]
[3. ]I. part of the Institutes, sect. 140.
[* ][Ed.: Chapters 1–3 are here omitted.]
[1. ][Ed.: Because sentences against wrongdoers are not passed quickly, the sons of men commit wrongs with no fear.]
[2. ][Ed.: It is idle not to know one’s rights.]
[1. ][Ed.: (There are) a great many, no one knows them all.]