The Preface of Sr. Edward Coke, Knight Lord Chiefe Justice of England of Pleas Before the King Himselfe to be Holden Assigned, and One of the Lords of His Majesties Most Honorable Privie Councell.

Deo, Patriæ, Tibi.

He that duly considereth (learned Reader) the Theoricke and Practique parts of the laws of England, that is, the Knowledge in universalities, and the Practise in particulars, shall find that most aptly to be applied to this profession that long since was spoken of another, Ars longa, vita brevis, studium difficile, occasio præceps, experimentum periculosum. A learned man in the lawes of this realme is long in making, the student thereof, having sedentariam vitam is not commonly long lived, the study abstruse and difficult, the occasion sodaine, the practise dangerous. Many have written of the former part, onely one of the later, unlesse you will account that auncient little treatise called Les novel Tales, or Novæ narrationes, to be one; and yet the Active part is as necessarie as the Speculative, for usus & experientia dominantur in artibus; and certain it is, that no art can be perfectly attained unto by reading without use and exercise. What auayleth the Serjeant or Apprentice the general knowledge of the laws, if he know not withall the forme and order of legall proceedings in particular cases, and how to plead and handle the same soundly, and most for his Clients advauntage? Good pleading hath three excellent qualities, that is to say (as Littleton saith) it is Honorable, Laudable, and Profitable: Honorable, for he cannot be a good pleader, but he must be of excellencie in judgement, Honor est prœmium excellentiae: Laudable for the fame and estimation of the professor, Laus est sermo elucidans magnitudinemscientiæ: And profitable for three respects: first, for that good pleading is Lapis lidius the touchstone of the true sence of the law: secondly, to the Client whose good cause is often lost or long delayed for want of good pleading, for herein is occasio praeceps & experimentum periculosum lastly, to the professor himselfe, who being for skill therein exalted above others, tanquam inter viburna Cupressus it cannot be unto him but exceeding profitable. It is true, that of ancient time Judges gave no way to nice and overcurious exceptions to formes of counts or pleadings; nay before the raigne of king Edw. 3. they sometimes gave too much way to the neglect of legall formes in pleading, and that made Sir William de Thirning chiefe Justice of the Court of Common Pleas to say in 12. Hen. 4. 19. Que devant le raigne del Roy Edw. 3. le manner de pleder no fuit forsque feeble, eyant regard que fuit unques puis in temps de cel Roy. And I am of opinion, that the neglect of essentiall formes would bring in ignorance and confusion: yet doe I well allow, that men should not be fined pro non pulchre’ placitando, or as some Records say pro stultiloquio, because the same have beene forbidden by acts of Parliament, videlicet Marlebridge cap.11. Westm. 1. cap. 8. and 1. Edw. 3. cap. 8. Vide Registr’ 179. 13. Edw. 1. tit Attachment 8. & F.N.B. 270. Inter placita de Banco, termin’ Mich. ann. 5. Hen. 3. incipiente Rot’ 10. Dors. Essex. Radulphus de Bardfield qui narravit pro germano filio Turoldi, in misericordia pro stultiloquio: which and many other Records doe prove, that the fine in those dayes was set vpon the Councellor and not upon the Client; for it was not holden just that the Client should be fined for the Councellors fault, and that had beene to have added affliction to the afflicted, videlicet to fine the Client for erronious pleading, who therefore lost his cause. And Sir Robert de Wilby in Anno 24. Edw. 3. fol. 48. speaking to the Councellors at the barre, Ieo ay vieu le temps, que si vous vibes plead un erronious plea, que vous alastes al prison. And even as he that hath a long journey upon weightie affaires that require present dispatch, especially si via fit salebrosa, saxis aspera, sentibus obducta, gurgitibus intercisa, torrentibus rapida &c. would be glad of a sure guide that by approved experience could lead him in the right way, both to avoyddangers, and to come with speed to his journeys end; So the professor of the Law (that is presently to plead his Clients cause, which many times is full of obscuritie and difficultie, in the pleading whereof if there be found errour, though the right be good, the cause quaileth) will (I persuade my selfe) be glad of this Booke, contayning many excellent Presidents of Counts, Pleadings, and all other matters fitting almost everie particular Case that can fall out; which being upon mature deliberation sifted, examined, and approved in the highest Courts of Justice, videlicet the Chauncerie, Kings Bench, Common Pleas, and Exchequer, may serve for well experienced guides in his Clients cause, to conduct him in such a way as his Client may avoid daunger, and attaine to his desired end.

What reverence hath beene given by the most reverend Sages of the law to judiciall Presidents, appeareth (amongst many others) in Ellice Case in 39. H. 6. fol. 30. where the opinion of learned Prisot chiefe Justice of the Court of Common Pleas, and other Justices, was, That in a writ of Mesne, quele pl’ covient de fine force de surmitter le tenure inter le mesne & Seignior paramout en son Count, ou auterment il ne serra bone: & puis quant Prisot avoit demaund de les prothonotaries le forme de les novel Tales, & ensement que ils avoyent view que les Tales ne fesoyent mention de nultenure in tiel case, & que cest forme avoiet touts foits este use, ils ne voillont chaunger cest use, nient obstant que lour opinion fuit al contrarie, Quia non valet ratio contra experimentum.

No man can be a compleat Lawyer by universalitie of knowledge without experience in particular cases, nor by bare experience without universalitie of knowledge; he must be both speculative & active, for the science of the laws, I assure you, must joyne hands with experience. Experientia (saith the great Philosopher) est cognitio singularium, ars vero universalium. , The learned Sages of the law doe found their judgement upon legall reason and judiciall President; the one they find in our bookes of yeres and termes, the other out of records formerly examined and allowed: These two, Reason and President are clarissima mundi lumina, whereby all the wise men of the world are directed: But in these dayes of many it may be justly said, Quod statim sapiunt, statim sciunt omnia, neminem verentur, imitantur neminem, ipsi sibi exempla sunt. But it is safe for the Client and for the Councellor also (if he respect his conscience) to follow Presidents formerly approved and allowed, and not to trust to any new frame carved out of his owne invention, for Nihil simul inventum & perfectum est.

The former Booke of Entries being published at that time when the Authour was beyond the Seas (as in his Preface he confesseth) could not so exactly and perfectly be done (though it be, for many Presidents therein, verie profitable and of good use) as if he had bin at the fountaines head it selfe, and might have had conference with the grave Judges, and well experiensed Prothonotaries, Officers, and Clarkes.

In this Booke six things are worthie of observation. First, that none of the Presidents herein have bin by any published heretofore. 2. That they are of greater authoritie and use, and fitter for the moderne practise of the law, for that they be for the most part of later times, and principally, of the raigne of our late Soveraigne Ladie of ever blessed memorie Queene Elizabeth, and of his most excellent Majestie the King that now is. 3. That for thy further satisfaction (learned Reader) everie President hath a true reference to the Court, yeare, terme, number-roll, and record, where the President it selfe is to be found. 4. In this worke are contayned the records of divers of the cases which in the nine former parts of my Commentaries I have published, with a certaine reference to the report it selfe. 5. Here shall you find Presidents adjudged upon Demurrer, wherein lye hidden many matters of Law and excellent points of learning, which being never reported, here is for thy better light (studious Reader) a short touch given of the reasons and causes whereupon they were adjuged. Lastly, there is an exact and plaine table of Titles, without perplexed and intricat divsions or subdivisions or tedious referments, everie mans owne method and observation in reading, being ever the best and readiest of all others for himselfe. Read these Presidents (learned Reader) and reape in this faire and large field, the delectable and profitable fruits of reverend Experience and Knowledge; which you may doe with greater ease, for that more easily shall you learne by patterne than by precept: and they have beene so painfully and diligently weeded, as it cannot be sayd, that in this fruitfull field,

Your true and faithfull friend

Edw. Coke.

Sec. XXXIII.

| Customes are defined to be a Law, or Right not written, which being established by long use, and the consent of our Ancestors, hath been, and is daily practised.

2. To prescribe generally, not tying his Prescription to place, or person, as where a Chiefe Justice prescribeth, that it hath been | used, that every Chiefe Justice may grant Offices; or where a Sergeant prescribeth, Quod talis habetur consuetudo, that Sergeants ought to be impleaded by originall Writ, and not by Bill.

3. To Prescribe in a place certaine.

4. To Prescribe in the place of another.

The first sort of these Prescriptions, a Copyholder cannot use, in regard of the imbecillity of his estate; for no man can Prescribe in that manner, but onely Tenants in Fee simple, at the Common Law.

The second sort of these may be used sometimes by Copyholders in the pleading of a generall Custome, but in alledging of a particular Custome, a Copyholder is driven to one of the last, and as occasion serveth, he useth sometimes the one, sometimes the other. If he be to claime Common, or other profit in the soyle of the Lord, then he cannot Prescribe in the name of the Lord, for the Lord cannot Prescribe to have Common or other profit in his owne soyle; but then the Copyholder must of necessitie Prescribe in a place certaine, and alleadge, that within such a Manor, there is such a Custome, that all the Tenants within that Manor, have used to have Common in such a place, parcell of | the Manor: but if he be to claime common, or other profit in the soyle of a stranger, then he ought to prescribe in the name of his Lord, saying, that the Lord of the Manor, and all his Ancestors, and all those whose estate he hath, were wont to have a Common in such a place for himselfe, and his Tenants at will, &c.

The Conclusion with Advertisment.

The end and scope of this little Treatise is, (under correction of those of better judgement) to set forth what the Law of the Realme doth require touching Baile and Maineprize: A necessary thing (in mine opinion) for such as be Justices of the peace, to be knowne: for as he that standeth upon plaine & sure ground, although he should be borne of rage and tempest to the ground, yet might hee without danger rise of himselfe againe: so hee that hath the administration of Justice, and in all his occasions is guided and directed by the rule of the law, neither abusing his authority, nor exceeding his Commission, standeth on a sure ground, which will beare him up at all seasons: Sapientis est cogitare (saith Cicero) tantum esse permissum quantum commissum & creditum. And good was the Counsell (as those that follow it finde) whosoever gave it, (videlicet ) exceede not the Commission: And albeit it is truely said, that Judicium est legibus & non exemplis: And as the Logician saith, Exempla demonstrant, non probant; yet undoubtedly it is a great contentment and satisfaction to an honest minde and a good conscience, especially in cases that concerne the life and liberty of a man, to follow the president of grave and reverend men: how beit for as much as all good Lawes are instituted, and made for the repelling of those evils that most commonly happen: For ad ea quae frequentius accidunt jura ad prantur, and principally doe respect the generall peace and profit of the people: and therefore we use to say, that a mischiefe is rather to be suffered then an inconvenience: That is to say, that a private person should be punished or damnified by the rigour of the Law, then a general rule of the Law should be broken to the generall trouble and prejudice of many. It is therefore very necessary, that the Law and discretion should bee Concomitant, and the one to be an accident inseparable to the other, so as neither Law without discretion, least it should incline to rigour, nor discretion without Law, least confusion should follow, should bee put in use: my meaning hereby, is not to allow of every mans discretion that sitteth on the seate of Justice: (for that would bring forth a monstrous confusion) But I meane that discretion, that ariseth upon the right discerning, and due consideration of the true and necessary circumstances of the matter: and as wee commonly use to say, that Common Law is nothing else but common reason; and yet we meane thereby nothing lesse, then that common reason where-with a man is naturally endued, but that perfection of reason which is gotten by long and continuall study: so in associating discretion so neare to Law, it is not meant to preferre it to that society: each mans discretion, which commonly rather deserveth the name of affection and selfe-will, then of discretion indeed: but that discretion onely we allow of in this place, that either grave and reverend men have used in such cases before, or rise of the circumstances of the matter: (as is aforesaid) As for example, being not also impertinent to the matter of our Treatise, if it were a question, whether in an appeale of Maine, the defendant were to bee let to Baile, or Maineprize, or no. It is necessary to be examined, whether the manner of the Maine were horrible or hainous: for the defendant may be denied Baile and Maineprize: whether the same were done upon a suddaine affray, or of the plaintiffes assault, or against the intent of the defendant, &c. For the defendant may bee let to baile: and this I take to be a lawfull discretion, for to that end is the booke, reason of the booke in 6. H. 7. fo. 2. where in an appeale of Maine, the Justices of the Kings Bench denied the defendant to bee bailed; for that upontheexamination of the matter, it appeared to be most cruel and horrible, and therefore inrespect of the abhominable hainousnes of the same, the Justices would not suffer the defendant to be bailed: and with this agreeth the opinion of Bract. in the 2. treatise of his 3. booke ca. 8. Appellati vero de morte hominis, & de pace & plagis periculosis saltem capiantur, et in prisonam detru antur, et ibi custodiantur, donec per Dominum Regem per Pleg’ dimittantur, vel per Judicem deliberantur, &c. whereby I note that he saith, plag’ periculosis, insinuating a difference inter plagas periculosas, & minus periculosas, in that he saith, Donec per Dominum Regem per pleg’ demittantur, it is to bee understood, untill by that Court the offence be determined and judged, they bee let to Baile, and this particular may suffice to the resolution of the generall.

To conclude, the Authour of all wisedome and true knowledge, thought it requisite, that those that were Judges of the earth, should bee both wise and learned, whom I beseech God to blesse with his true knowledge and wisedome.

FINIS.

The Preface.

Deo, Patriae, Tibi.

Proemium.

The name and degree of our Author.Our Author, a Gentleman of an ancient and faire descended Family de Littleton, tooke his name of a Towne so called, as that famous chiefe Justice Sir John de Markham, and divers of our Profession and others have done.

Thomas de Littleton Lord of Frankley, had issue Elizabeth his only child, and did beare the Armes of his Ancestors,His Armes.viz. Argent, a Chevron betweene three Escalop shels Sable. The bearing hereof is verie ancient and honourable, for the Senators of Rome did weare bracelets of Escalop shels about their armes, and the Knights of the Honourable Order of S. Michael in France do weare a coller of Gold in the forme of Escalop shels at this day. Hereof much more might be said, but it belongs unto others.

With this Elizabeth married, Thomas Westcote Esquire, the Kings servant in Court,Thomas Westcote. a Gentleman anciently descended, who bare Argent, a Bend betweene two Cotisses Sable, a Bordure engrayled Gules, Bezantie.

But she being faire and of a noble spirit, and having large possessions and inheritance from her Ancestors de Littleton, and from her mother the daughter and heire of Richard de Quatermains, and other her Ancestors, (ready meanes in time to worke her owne desire) resolved to continue the honour of her name (as did the daughter and heire of Charleton with one of the sonnes of Knightly, and divers others) and therefore prudently, whilest it was in her owne power, provided by Westcotes assent before marriage, that her issue inheritable should be called by the name of de Littleton. These two had issue foure sons, Thomas, Nicholas, Edmund and Guy, and foure daughters.

Our Author bare his Mothers surname.Thomas the eldest was our Author, who bare his fathers Christian name Thomas, and his mothers surname de Littleton, and the armes de Littleton also; and so doth his posteritie beare both name and armes to this day.

Camden in his Britannia saith thus; Thomas Littleton alias Westcote, the famous Lawyer to whose Treatise of Tenures the Students of the Common Law are no lesse beholding, than the Civilians to Justinians Institutes.

The dignitie of this faire descended Family de Littleton hath growne up together, and spread it selfe abroad by matches with many other ancient and honourable Families, to many worthy and fruitfull branches, whose posteritie flourish at this day, and quartereth many faire Coats, and * enjoyeth fruitfull and opulent inheritances thereby.

He was of the Inner Temple, and read learnedly upon the Statute of W.2. De donis conditionalibus, which we have. He was afterward called ad statum & gradum Servientis ad Legem, and was Steward of the Court of the Marshalsey of the Kings houshold, and for his worthinesse was made by King H.6. his Serjeant,Kings Serjeant. and rode Justice of Assise the Northern Circuit, which places he held under King E.4. untill he in the sixth yeare of his reigne constituted him one of the Judges of the Court of Common Pleas,Judge of the Common Pleas. and then he rode North-amptonshire Circuit. The same King in the 15. yeare of his reigne, with the Prince, and other Nobles and Gentlemen of ancient bloud, honoured him with Knighthood of the Bath.Knight of the Bath.

He compiled this Book when he was Judge, after the fourteenth yeare of the reigne of King E.4. but the certain time we cannot yet attain unto,When hee wrote this Booke. but (as we conceive) it was not long before his death, because it wanted his last hand, for that Tenant by Elegit, Statute Merchant, & Staple, were in the table of the first printed Booke, and yet he never wrote of them.

Our Author in composing this Work had great furtherance, in that he flourished in the time of many famous and expert Sages of the Law.The deceased of his Contemporaries. Sir Richard Newton, Sir John Prisot, Sir Robert Danby, Sir Thomas Brian, Sir Pierce Arderne, Sir Richard Choke, Walter Moyle, William Paston, Robert Danvers, William Ascough, and other Justices of the Court of Common Pleas: And of the Kings Bench, Sir John June, Sir John Hody, Sir John Fortescue, Sir John Markham, Sir Thomas Billing, and other excellent men flourished in his time.

And of worldly blessings I account it not the least that in the beginning of my study of the Lawes of this Realme, the Courts of Justice, both of Equitie & of Law, were furnished with men of excellent Judgement, Gravitie, and Wisdome; As in the Chancerie, Sir Nicholas Bacon, and after him Sir Thomas Bromley. In the Exchequer Chamber, the Lord Burghley, Lord high Treasurer of England, and Sir Walter Mildemay Chancellor of the Exchequer. In the Kings Bench, Sir Christopher Wray, and after him Sir John Popham. In the Common Pleas, Sir James Dyer, and after him Sir Edmund Anderson. In the Court of Exchequer, Sir Edward Saunders, after him Sir John Jefferey, and after him Sir Roger Manwood, men famous (amongst many others) in their severall places, and flourished, and were all honoured and preferred by that thrice noble and vertuous Queene Elizabeth of ever blessed memorie. Of these reverend Judges, and others their Associates, I must ingenuously confesse, that in her reigne I learned many things which in these Institutes I have published: And of this Queene I may say, that as the Rose is the queene of flowers, and smelleth more sweetly when it is pluckt from the branch: so I may say and justifie,Queene Elizabeth. that shee by just desert was the Queene of Queenes, and of Kings also, for Religion, Pietie, Magnanimitie, and Justice; who now by remembrance thereof, since Almightie God gathered her to himselfe, is of greater honour and renowne, than when she was living in this world. You cannot question what Rose I meane; for take the Red or the White, she was, not onely by royall descent, and inherent Birthright, but by Rosiall Beautie also, heire to both.

And though we wish by our labours (which are but Canabula Legis, the cradles of the Law) Delight and Profit to all the Students of the Law, in their beginning of their study, (to whom the first part of the Institutes is intended) yet principally to my loving friends, the Students of the honourable and worthy Societies of the Inner Temple,Inner Temple. Cliffords Inne. Lyons Inne. and Cliffords Inne, and of Lyons Inne also, where I was sometime Reader. And yet of them more particularly to such as have been of that famous University of Cambridge, Alma mea mater. And to my much honoured & beloved Allies & Friends ofthe Counties of Norfolke, my deare & native Country; and of Suffolke, where I passed my middle age; & of Buckinghamshire, where in my old age I live. In which Counties, we out of former Collections compiled these Institutes. But now returne we againe to our Author.

His marriage.He married with Johan one of the daughters and coheires of William Burley of Broomescroft Castle in the Countie of Salop, a Gentleman of ancient descent, and bare the Armes of his Family, Argent, a Fesse Checkie Or and Azure, upon a Lion Rampant Sable, armed Gules. And by her had three sons,His issue. Sir William, Richard the Lawyer, and Thomas.

The establishment of his posteritie by the matches of his three sonnes, with Vertue & good Bloud.In his lifetime, he, as a loving Father and a wise man, provided matches for these three sons, in vertuous and ancient Families, that is to say, for his son Sir William, Ellen Daughter and Coheire of Thomas Welsh Esquire, who by her had issue Johan his onely childe, married to Sir John Aston of Tixall Knight: And for the second wife of Sir William, Mary the Daughter of William Whittington Esquire, whose posteritie in Worcestershire flourish to this day. For Richard Littleton his second son, to whom he gave good possessions of inheritance,He gave possessions of inheritance to his younger sons, for their better advancement. Alice daughter and heire of William Winsbury of Pilleton-hall in the Countie of Stafford, Esquire, whose posteritie prosper in Staffordshire to this day. And for Thomas his third son, to whom hee gave good possessions of inheritance, Anne daughter and heire of John Botreaux Esquire, whose posteritie in Shropshire continue prosperously to this day. Thus advanced he his posteritie, and his posteritie by imitation of his Vertues have honoured him.

His last Will.He made his last Will & Testament the 22. day of August in the 21. yeare of the reigne of King Edward the fourth, whereof he made his three sons, a Parson,His Executors. a Vicar, & a Servant of his Executors, & constituted supervisor thereof, his true & faithfull friend John Alcock Doctor of Law, of the famous University of Cambridge,His Superviser. then Bishop of Worcester, a man of singular Pietie, Devotion, Chastitie, Temperance, & Holinesse of life, who amongst other of his pious & charitable works, founded Jesus College in Cambridge, a fit and fast friend to our honourable & vertuous Judge.

His age.He left this life in his great & good age, on the 23. day of the month of August, in the said 21. yeare of the reigne of King Edward the fourth:His departure. For it is observed for a speciall blessing of Almighty God, that few or none of that profession die Intestatus & improles without Will & without Child; which last Will was proved the 8. of November following in the Prerogative Court of Canterbury, for that hee had Bona notabilia in divers Diocesses. But yet our Author liveth still in ore omnium juris prudentium.

Littleton is named in 1.H.7. and in 21.H.7. Some do hold, that it is no error either in the Reporter or Printer; but that it was Richard the son of our Author, who in those daies professed the Law, and had read upon the statute of West. 2.quia multaper malitiam,* , unto whom his Father dedicated his Book; And this Richard died at Pilleton hall in Staffordsh. in 9.H.8.

His Sepulchre.The body of our Author is honourably interred in the Cathedrall Church of Worcester, under a faire Tomb of Marble, with his statue of portraiture upon it, together with his own match, & the matches of some of his Ancestors, and with a memoriall of his principall titles, and out of the mouth of his statue proceedeth this praier, Fili Dei miserere mei, which he himselfe caused to be made and finished in his life time, & remaineth to this day. His wife Johan Lady Littleton survived him, and left a great inheritance of her Father, and Ellen her Mother, daughter & heire of John Grendon Esquire, and other her Ancestors, to Sir William Littleton her son.

This Work was not published in print, either by our Author himselfe, or Richard his son, or any other, untill after the deceases both of our Author, and of Richard his son.When this Worke was published. For I finde it not cited in any Booke or Report, before Sir Anthony Fitzherbert cited him in his Natura Brevium; who published that Booke of his Natura Brevium in 26.H.8. Which Work of our Author, in respect of the excellencie thereof, by all probabilitie should have beene cited in the Reports of the reignes of E.5. R.3. H.7. or H.8. or by S. Jermyn in his Booke of the Doctor and Student, which he published in the three and twentieth yeare of H.8. if in those dayes our Authors Booke had beene printed.Nota. And yet you shall observe, that Time doth ever give greater authoritie to Works and Writings that are of great and profound learning, than at the first they had.When this Work was first imprinted. The first impression that I finde of our Authors Booke was at Roan in France by William le Tailier (for that it was written in French) Ad instantiam, Richardi Pinson, at the instance of Richard Pinson the Printer of King H.8. before the said Book of Natura Brevium was published; and therefore upon these and other things that we have seene, wee are of opinion, that it was first printed about the foure and twentieth yeare of the reigne of King H.8. since which time hee hath beene commonly cited, and (as he deserves) more and more highly esteemed.

His Picture.He that is desirous to see his picture, may in the Churches of Frankley and Hales Owen see the grave and reverend countenance of our Author, the outward man, but he hath left this Booke, as a figure of that higher & nobler part,The figure of his Minde. that is, of the excellent and rare endowments of his minde, especially in the profound knowledge of the fundamentall Lawes of this Realme. He that diligently reads this his excellent Work, shall behold the childe and figure of his minde, which the more often he beholds in the visiall line, and well observes him, the more shall he justly admire the judgement of our Author, and increase his owne. This only is desired, that he had written of other parts of the Law, and specially of the rules of good pleading (the heart-string of the Common Law) wherein hee excelled: for of him might the saying of our English Poet be verified;

• Thereto he could indite and maken a thing,
• There was no Wight could pinch at his writing.

Good pleading.So farre from exception, as none could pinch at it. This skill of good pleading he highly in this Work commended to his sonne, and under his name to all other Students sons of his Law. He was learned also in that Art, which is so necessarie to a compleat Lawyer,Logicke. I meane Logick, as you shall perceive by reading of these Institutes, wherein are observed his Syllogismes, Inductions, and other arguments; and his Definitions, Descriptions, Divisions, Etymologies, Derivations, Significations, and the like. Certaine it is, that when a great learned man (who is long in making) dieth, much learning dieth with him.

The commendation of his Worke.That which we have formerly written, that this Book is the ornament of the Common Law, and the most perfect and absolute Work that ever was written in any humane Science; and in another place, that which I affirmed and tooke upon me to maintaine against all opposites whatsoever, that it is a Work of as absolute perfection in his kinde, and as free from errour as any book that I have knowne to be written of any humane learning, shall to the diligent and observing Reader of these Institutes be made manifest, and we by them (which is but a Commentarie upon him) be deemed to have fully satisfied that, which we in former times have so confidently affirmed and assumed. His greatest commendation, because it is of greatest profit to us, is, that by this excellent Work, which he had studiously learned of others, he faithfully taught all the professors of the Law in succeeding ages. The victorie is not great to overthrow his opposites, for there was never any learned man in the Law, that understood our Author, but concurred with me in his commendation: Habae enim justam venerationem quicquid excellit; For whatsoever excelleth hath just honour due to it. Such as in words have endevoured to offer him disgrace, never understood him, and therefore we leave them in their ignorance, and wish that by these our Labors they may know the truth, and be converted. But herein we will proceed no further: For, Stultum est absurdas opiniones accuratius refellere, It is meere folly to confute absurd opinions with too much curiositie.

And albeit our Author in his three Books cites not many authorities, yet he holdeth no opinion in any of them, but is proved and approved by these two faithfull witnesses in matter of Law, Authoritie, and Reason. Certaine it is, when hee raiseth any question, and sheweth the reason on both sides, the latter opinion is his owne, and is consonant to Law. We have knowne many of his cases drawne in question,Nota. but never could find any judgement given against any of them, which we cannot affirme of any other Booke or Edition of our Law. In the reigne of our late Soveraigne Lord King James of famous and ever blessed memorie, it came in question upon a demurrer in Law, whether the release to one trespasser should be available or no to his companion, Sir Henry Hobart that honourable Judge and great Sage of the Law, and those reverend and learned Judges, Warburton, Winch, and Nichols his companions, gave judgement according to the opinion of our Author, and openly said, That they owed so great reverence to Littleton, as they would not have his Case disputed or questioned: and the like you shall finde in this part of the Institutes. Thus much (though not so much as his due) have we spoken of him, both to set out his life, because he is our Author, and for the imitation of him by others of our Profession.

What is endevoured by these Institutes.We have in these Institutes endevoured to open the true sense of every of his particular Cases, and the extent of everie of the same either in expresse words, or by implication, and where any of them are altered by any latter Act of Parliament, to observe the same, and wherein the alteration consisteth. Certaine it is, that there is never a period, nor (for the most part) a word, nor an &c. but affordeth excellent matter of learning. But the module of a Preface cannot expresse the observations that are made in this Worke, of the deepe Judgement and notable Invention of our Author. We have by comparison of the late and moderne impressions with the originall print, vindicated our Author from two injuries; First, from divers corruptions in the late and moderne prints, and restored our Author to his owne: Secondly, from all additions and incroachments upon him, that nothing might appeare in his worke but his owne.

The benefit of these Institutes.Our hope is, that the young Student, who heretofore meeting at the first, and wrastling with as difficult termes and matter, as in many yeares after, was at the first discouraged, as many have beene, may by reading these Institutes, have the difficultie and darknesse both of the Matter, and of the Termes & words of Art in the beginnings of his study facilitated & explained unto him, to the end he may proceed in his study cheerfully, and with delight; and therefore I have termed them Institutes,Wherefore called Institutes. because my desire is, they should institute and instruct the studious, and guide him in a ready way to the knowledge of the nationall Lawes of England.

Wherefore published in English.This part we have (and not without president) published in English, for that they are an Introduction to the knowledge of the nationall lawes of the Realme; a work necessary, and yet heretofore not undertaken by any, albeit in all other professions there are the like. Wee have left our Author to speake his owne language, & have translated him into English, to the end that any of the Nobilitie, or Gentrie of this Realme, or of any other estate, or profession whatsoever, that will be pleased to read him & these Institutes, mayunderstand the language wherein they are written.

I cannot conjecture that the generall communicating of these Lawes in the English tongue can worke any inconvenience, but introduce great profit, seeing that Ignorantia Juris non excusat, Ignorance of the Law excuseth not.Regula. And herein I am justified by the wisdome of a Parliament; the words whereof be,That the Lawes and Customes of this Realme the rather should be reasonably perceived and knowne, and better understood by the tongue used in this Realme, and by so much everie man might the better governe himselfe without offending of the Law, and the better keepe, save, and defend his heritage and possessions. And in divers Regions and Countries where the King, the Nobles, and other of the said Realme have beene, good governance and full right is done to everie man, because that the Lawes and Customes be learned and used in the Tongue of the Countrey:Regula. as more at large by the said Act, and the purview thereofmayappeare: Et neminem oportet esse sapientiorem Legibus, No man ought to be wiser than the Law.

And true it is that our Books of Reports and Statutes, in ancient times were written in such French as in those times was commonly spoken and written by the French themselves. But this kind of French that our Author hath used is most commonly written and read,Our Authors kinde of French. and verie rarely spoken, and therefore cannot be either pure, or well pronounced. Yet the change thereof (having been so long accustomed) should be without any profit, but not without great danger and difficultie: For so many ancient Termes and words drawne from that legall French, are growne to be Vocabula artis, Vocables of Art, so apt & significant to expresse the true sense of the Lawes, & are so woven into the lawes themselves, as it is in a manner impossible to change them, neither ought legall termes to be changed.

In Schoole Divinitie, and amongst the Glossographers and Interpreters of the Civill and Canon Lawes, in Logick and in other liberall Sciences, you shall meet with a whole Army of words, which cannot defend themselves in Bello Grammaticali, in the Grammaticall Warre, and yet are more significant, compendious, and effectuall to expresse the true sense of the matter, than if they were expressed in pure Latine.

Wherefore called the first part.This Worke wee have called The first part of the Institutes, for two causes: First, for that our Author is the first booke that our Student taketh in hand. Secondly, for that there are some other parts of Institutes not yet published, (viz.) The second part being a Commentarie upon the Statute of Magna Charta, Westm. I. and other old Statutes. The third part treateth of Criminall causes and Pleas of the Crowne: which three parts we have by the goodnesse of Almightie God already finished. The fourth part wee have purposed to be of the Jurisdiction of Courts; but hereof we have onely collected some materialls towards the raising of so great and honourable a Building. Wee have by the goodnesse and assistance of Almightie God brought this twelfth Worke to an end: In the eleven Bookes of our Reports wee have related the opinions and judgements of others; but herein we have set downe our owne.

Before I entred into any of these parts of our Institutes, I acknowledging mine owne weaknesse and want of judgement to undertake so great Workes, directed my humble Suit and Prayer to the Author of all Goodnesse and Wisdome, out of the Booke of Wisdome;Pater & Deus misericordiae, da mihi fedium tuarum assistriceur sapientiam, mitte eam de Coelis sanctis tuis & à sede magnitudinis tuae, ut mecum sit & mecum laboret, ut sciam quid acceptum sit apud te; Oh Father and God of mercie, give me wisdome, the Assistant of thy seats; Oh, send her out of thy holy Heavens, and from the seat of thy Greatnesse, that shee may be present with mee and labour with mee, that I may know what is pleasing unto thee, Amen.

Our Author hath divided his whole Worke into three Bookes: In his first he hath divided Estates in Lands and Tenements, in this manner; For; Res per divisionem melius aperiuntur. ,

Our Author dealt onely with the Estates and termes abovesaid; Somewhat Wee shall speake of Estates by force of certaine Statutes, as of Statute Merchant, Statute Staple, and Elegit, (whereof our Author intended to have written) and likewise to Executors to whom lands are devised for payment of debts, and the like.

I shall desire, that the learned Reader will not conceive any opinionagainst any part of this painfull and large Volume, untill hee shall have advisedly read over the whole, and diligently searched out and well considered of the severall Authorities, Proofes, and Reasons which wee have cited and set downe for warrant and confirmation of our opinions thorowout this whole worke.

Mine advice to the Student is, That before hee read any part of our Commentaries upon any Section, that first he read againe and againe our Author himselfe in that Section, and doe his best endevours, first of himselfe, and then by conference with others, (which is the life of Study) to understand it, and then to read our Commentarie thereupon, and no more at any one time, than he is able with delight to beare away, and after to meditate thereon, which is the life of reading. But of this Argument we have for the better direction of our Student in his Study, spoken in our Epistle to our first Booke of Reports.

And albeit the Reader shall not at any one day (doe what he can) reach to the meaning of our Author, or of our Commentaries, yet let him no way discourage himselfe, but proceed; for on some other day, in some other place, that doubt will be cleared. Our Labours herein are drawne out to this great Volume, for that our Author is twice repeated, once in French, and againe in English.

Section 1
Fee Simple

“Tenant,”

In Latine Tenens, is derived of the verb Teneo and hath in the Latin five significations. 1. It signifies the estate of the Land, as when the Tenant in a Praecipe of land pleads, Quod non tener, etc. this is as much as to say, That hee hath not seisin of the Freehold of the Land in question. And in this sense doth our Author take it in this place: & therefore he saith, tenant in fee simple is hee which hath lands to hold to him & his heires. 2. It signifieth the Tenure of the service whereby the lands & tenements beene holden, and in this sense it is said in the Writ of right, Quae clamat tenere de te per liberum seruitium, &c. And in this signification hee is called a Tenant or holder, because all the lands & tenements in England in the hands of subjects, are holden mediately or immediately of the King. For in the law of England we have not properly, Allodium, That is, any Subjects Land that is not holden, unlesse you will take Allodium, for Ex. solido, as it is often taken in the Booke of Domesday: and tenents in Fee simple are there called Alodarii or Aloarii, And he is called a Tenant, because hee holdeth of some superior Lord by some service. And therefore the King in this sense cannot be said to be a Tenant, because hee hath no superior but God Almightie; Praedium domini: regis est directum dominium cuius nullus Author est nisi Deus. And as Bracton saith, Omnis quidem sub eo, & ipse sub nullo, nisi tantum sub Deo. The posessions of the King are called Sacra patrimonia. & Dominica Coronae Regis. But though a Subject hath not properly Directum, yet hath hee utile Dominium. Of these Tenants our Author, speaketh in his second Booke. Also Tenere signifieth performance, as in the Writ of Covenant, Quod teneat conventionem, that is, That he hold or performe his Covenant. And likewise it signifieth to be bound, as it is said in everie common Obligation, teneri & firmiter obligari. Lastly, It signifieth to deeme or judge, as in 38. Ed. 3c. 4. It shall be holden for none (that is) judged or deemed for none, and so wee commonly say, it is holden in our Bookes. And these severall significations doe properly belong to our Tenant in Fee simple. For he hath the estate of the Land, he holdeth the land of some superiour Lord, and is to performe the services due, and thereunto he is bounden by doome and judgement of Law. Of the severall estates of Land, our Author treateth in his first booke, and beginneth with Fee simple, because all other estates and interests are derived out of the same.

“Fee Simple.”

Fee commeth of the French Fief, (i)praedium beneficiarium, and legally signifieth Inheritance, as our Author himselfe hereafter expoundeth it. And Simple is added, for that it is descendible to his heires generally, that is, simply, without restraint to the heires of his body, or the like. Feodum est quod quis tenet ex quacunque causa, sive sit tenementum, sive redditus, &c. In Domesday it is called Feudum. (a) Of Fee simple, it is commonly holden, that there be three kinds, viz. fee simple absolute, fee simple conditionall, and fee simple qualified, or a base fee. But the more genuine and apt division, were to divide fee, that is, Inheritance, into three parts, viz. Simple as absolute, Conditionall, and qualified or base. For this word (Simple) properly excludeth both conditions and limitations, that defeat or abridge the fee.* Hereby appeareth, that fee in our legall understanding signifieth, that the land belongs to us & our heires, in respect whereof the owner is said to be seised in fee, and in this sense the King is said to be seised in fee. (b) It is also taken, as it is holden of another by service, and that belongeth onely to the Subject; Item dicitur feodum alio modo eius qui alium feoffat, & qod quis tenet ab alio, ut si sit qui dicat, talis tenet de me tot feoda per servitium militare. And Fleta saith, Poterit unus tenere in feodo quoad servitia, sicut dominus capitalis, & non in Dominico, alius in feodo & dominico, & non in servitio, sicut libere tenens alicuius (c) And therefore if a stranger claims a Seigniorie, and disteine and avow for the service, the Tenant may plead, That the Tenancie is extra feodum, &c. of him (that is) out of the Seigniorie, or not holden of him that claimeth it, but he cannot plead Hors de fon fee, unlesse he take the tenancie, that is, the state of the Land upon him. Of fee in the first sense our Author treateth in this first Booke; and as is taken in the second sense, in his second booke: and of the third you shall read in our Author, Sect. 13, 643, 644, 645. and plentifully in our books quoted in the margent.

“Lands or Tenements.”

Here is to be observed, That a man may have a fee simple in three kinds of hereditaments, viz. Reall, Personall, and Mixt: Reall, as Lands and Tenements, whereof our Author here speaketh: Personall, King Edward the first in the thirteenth yeare of his Reigne,Concessit Edmundo fratri suo charissimo, quod ipse & haeredes sui habeant ad requisitionem suam in Cancellaria nostra & haeredum nostrorum Justi-|-ciarios ad placita forestarum quas idem Fraternosterhabet ex dono domini Regis Henrici parris nostri secundum assiss. forestae tenend; &c. In this case the grantee and his heires had a personall inheritance in making of a request to have Letters patents of Commission to have Justices assigned to him to heare and determine of the pleas of the forrests, and concerneth neither lands or tenements. And so it is if an Annuity be granted to a man and his heires, It is a fee simple personall, & sic de similibus. And lastly hereditaments mixt both of the realty and personality. As the Abbot of Whitbie in the County of Yorke having a forrest of the gift of William of Percie founder of that Abby, and by the Charters of King John and of other his progenitors, King Henry the third did grantAbbati & conventui de Whitbye quod ipsi & eorum successores in perpetuum habeant viridarios suos proprios de libertate sua de Whitb. eligend’ de cetero in pleno com’ Eborum prout moris est ad responsiones & presentationes, faciend’ de transgressionibus quas amodo fieri continget de venatione infra metas forestae suae de Whitbye quam habent ex donatione Willi. de Percey, & Alani de Percey, filii ejus, & redditione & concessione domini Johan. quondam regis Angliae patris nostri & confirmatione nostra coram justiciariis nostris itinerantibus ad placita forestae in partibus illis & non alibi sicut viridarii forestae nostrae hujusmodi responsiones&presentationes facere debent, & consueverunt. Et si contingat aliquos forinsecos qui non sunt de libertate predictorum Abbatis & conventus transgressionem facere de venatione infra metas forestae predictae quos predicti viridarii attachiare non possunt: Volumus & concedimus pro nobis & heredibus nostris quod hujusmodi transgressores per Justicarios forestae nostrae ultra Trentam attachientur ad praesentationem viridariorum praedict. ad respondendum, inde coram justiciariis nostris itinerantibus ad placita forestae nostrae in partibus illis cum ibid. ad placitandum venerint prout secundum assisam & consuetudinem forestae fuerint faciend. Which Charter was pleaded upon the Claime made by the Abbot of Whitbye before Willoughby, Hungerford, and Hanbury, Justices in Eire in the forrest of Pickering, which Eire began Anno 8.Edw.3. And these before them were allowed. And when the King createth an Earle of such a county or other place, To hold that dignity to him and his heires, This Dignity is personall, and also concerneth lands and tenements. But of this matter more shall be said in the next Chapter, Sect. 14. & 15.

“Called in Latine, feum sinplex, for Feodum is the same that Inheritance is,”

Here Littleton himselfe teacheth the signification of feodum; according to that which hath bin said, which onely is to be applied to fee simple pure and absolute. And this and all his other interpretations of words and Etymologies throughout all his three bookes (wherein the studious Reader will observe many) are perspicuous, and ever per notiora & nunquam ignotum per ignotius, and are most necessary, for ignoratis terminis ignoratur & ars. ,

“Simplex is as much to say, as lawfull or pure.”

Hereof hee treateth onely in this place. And Litt. saith well, that Simplex idem est quod purum. Simplex enim dicitur quia sine plicis; & purum dicitur, quod est merum & solum sine additione. Simplex donatio & pura est ubi nulla addita est conditio siue modus, simplex enim datur quod nullo additamento datur. ,

“a lawfull or pure Inheritance.”

And therefore it is well said,quod donationum alia simplex & pura, quae nullo jure civili vel naturali cogente, nullo precedente metu vel interveniente ex mera gratuitaque libertate donantis procedit, & ubi nullo casu velit donator ad se reverti quod dedit, alia sub modo conditione vel ob causam, in quibus casibus non proprie sit donatio cum donator, id ad se reverti velit, sed quedam potius feodalis dimissio, alia absoluta & larga, alia stricta & coarctata sicut certis heredibus quibusdam a successoribus exclusis, &c. And therefore seeing fee simple is hereditaslegitima vel pura, it plainly confirmeth that the division of fee is by his authority rather to be divided as is aforesaid than fee simple. And he saith well in the disjunctive legitima vel pura, for every fee simple is not Legitimum. For a disseisor, abator, intruder, usurper &c. have a fee simple, but it is not a lawfull fee. So as every man that hath a fee simple, hath it either by right or by wrong. If by right, then he hath it either by purchase or discent. If by wrong, then either by disseisin, intrusion, abatement, usurpation, &c. In this Chapter he treateth onely of a lawfull fee simple, and divideth the same as is aforesaid.

“For if a man would purchase.”

Persons capable of purchase who have ability to grant.Persons capable of purchase are of two sorts, persons naturall created of God, as I. S. I. N. &c. and persons incorporate or politique created by the policy of man, (and therefore they are called bodies politique) and these be of two sorts, viz, either sole, or aggregate of many: againe aggregate of many, either of all persons capable, or of one person capable, and the rest incapable or dead in law, as in the Chapter of Discontinuance, Sect. 57. shall be shewed. Some men have capacitie to purchase, but not abilitie to hold. Some capacity to purchase and abilitie to hold, or not to hold, at the election of them or others. Some capacity to take and to hold. Some neither capacity to take nor to hold. And some specially disabled to take some particular thing.

If an alien Christian or infidell purchase houses, lands, tenements, or hereditaments to him | and his heires, albeit he can have no heires, yet he is of capacitie to take a fee simple but not to hold. For upon an office found, the king shall have it by his prerogative, of whomsoever the land is holden. And so it is if the alien doth purchase land and die, the law doth cast the freehold and inheritance upon the King. If an alien purchase any estate of freehold in houses, lands, tenements, or hereditaments, the King upon office found shall have them. If an alien be made Denizen and purchase lands and die without issue, the lord of the fee shall have the escheat, and not the King. But as to a lease for yeares, there is a diversitie betweene a lease for yeares of a house for the habitation of a marchant stranger being an alien, whose king is in league with ours, and a lease for yeares of lands, meadowes, pastures, woods, and the like. For if he take a lease for yeares of lands, meadowes, &c. upon office found, the king shall have it. But of a house for habitation he may take a lease for yeares as incident to Commercety, for without habitationheecannot merchandize or trade. But if he depart, or relinquish the realme, the king shall have the lease. So it is if he die possessed thereof, neither his Executors or administrators, shall have it, but the king: for he had it only for habitation as necessary to his trade or traffique, and not for the benefit of his Executor or adminstrator. But if the alien be no merchant, then the king shall have the lease for yeares, albeit it were for his habitatation, and so it is if he be an alien enemie. And all this was so resolved by the Judges assembled together for that purpose in the case of Sir James Croft, Pasch. 29. of the reigne of Queene Elizabeth. Also if a man commit felony, and after purchase lands and after is attainted, he had capacitie to purchase but not to hold it, for in that case the Lord of the fee shall have the Escheat. And if a man be attainted of felony, yet he hath capacity to purchase to him and to his heires, albeit he can have no heire, but he cannot hold it, for in that case the king shall have it by his prerogative, and not the Lord of the fee, for a man attainted hath no capacity to purchase (being a man civiliter mortuus ) but onely for the benefit of the king, no more than the alienee hath. If any sole Corporation or aggregate of many, either Ecclesiasticall or temporall (for the words of the statute be Si quis religiosus vel alius ) purchase Lands or Tenements in fee, they have capacity to take but not to retaine (unlesse they have a sufficient Licence in that behalfe) for within the yeare after the alienation, the next Lord of the fee may enter, and if he doe not, then the next immediate lord from time to time to have half a yeare, and for default of all the mesne Lords, then the king to have the land so aliened for ever, which is to be understood of such inheritance as may be holden. But of such inheritances as are not holden, as Villeins, rents charges, commons, and the like, the king shall have them presently by a favourable interpretation of the statute. An Annuity granted to them is not mortmaine, because it chargeth the person onely. Some have said that it is called mortmaine Manus mortua, quia possessio corum est immortalis, manus propossessione, & mortua pro immortali, and the rather for that by the lawes and statutes of the realme, all Ecclesiastiall persons are restrained to alien. Others say it is called manus mortua per Antiphrasin, because bodies politique and corporate never die. Others say that it is called Mortmaine by resemblance to the holding of a mans hand that is ready to die, for that he then holdeth he letteth not goe till he be dead. These and such others are framed out of wit and invention, but the true cause of the name, and the meaning thereof, was taken from the effects, as it is expressed in the statute it selfe,per quod quae servitia ex hujusmodi feodis debentur, & quae ad defensionem regni ab initio provisa fuerunt indebite subtrahuntur & capitales domini eschaetas suas amittunt, so as the lands were said to come to dead hands as to the Lords, for that by alienation in Mortmaine, they lost wholly their escheats, and in effect their knights services for the defence of the Realme, Wards, Marriages, Reliefes, and the like, and therefore was called a dead hand, for that a deadhandyeeldeth no service.

I passe over Villeins or Bondmen, who have power to purchase lands, but not to reteyne them against their Lords, because you shall reade at large of them in their proper place in the Chapter of Villenage.

An infant or minor (whome we call any that is under the age of 21 yeares) have without consent of any other, capacity to purchase, for it is intended for his benefit, and at his full age he may either agree thereunto, and perfect it, or without any cause to be alleged, Waive or disagree to the purchase, and so may his heires after him, if he agree not thereunto after his full age.

A man of non sane memory may without the consent of any other, purchase lands, but hee himselfe cannot waive it, but if he die in his madnesse, or after his memory recovered without agreement thereunto, his heire may Waive and disagree to the state, without any cause shewed, and so of an Ideot. But if the man of non sane memory, recover his memory, and agree unto it, it is unavoydable.

If an Abbot purchase lands to him and his successors without the consent of his Covent, he himselfe cannot Waive it, but his successor may upon just cause shewed, as if a greater rent were reserved thereupon than the value of the land, or the like, but he cannot Waive it unlesse it be upon just cause, et sic de similibus praelatus Ecclesiae suae conditioné meliorare potest, deteriorare nequit. And in another place he saith,Est enim Ecclesia ejusdem conditionis, quae fungitur vice minoris.

| But no Simile holds in everie thing, according to the ancient saying, Nullum simile quatuor pedibus currit. (a) An hermaphrodite may purchase according to that Sex which prevaileth. A feme covert cannot take any thing of the gift of her husband, but is of capacitie to purchase of others without the consent of her husband. And of this opinion was Littleton in our Books, and in this Booke Sect 677. but her husband may disagree thereunto, and divest the whole estate, but if he neither agree nor disagree, the purchase is good; but after his death, albeit her husband agreed thereunto, yet shee may without any cause to be alleaged waive the same, and so may her heires also, if after the decease of her husband she her selfe agreed not thereunto.

(b) A wife (Uxor) is a good name of Purchase, without a Christian name, and so it is, if a Christian name be added and mistaken, as Em for Emelya, &c. for utile per inutile non vitiatur. But the Queene, the Consort of the King of England, is an exempt person from the King by the Common Law, and is of abilitie, and capacitie to purchase and grant without the King. Of which see more at large, Sect. 206.

(c) The Parishioners or Inhabitants, or probi homines of Dale, or the Church wardens, are not capable to purchase lands, but goods they are, unlesse it were in ancient time when such grants were allowed.

(d) An ancient grant by the Lord to the Commoners in such a waste, that a way leading to their Common should not be streightened, was good, but otherwise it is of such a grant at this day. (e) And so in ancient time a grant made to a Lord, & hominibus suis tam liberis quam nativis, or the like, was good, but they are not of capacitie to purchase by such a name at this day. But yet at this day if the King grant to a man to have the goods and cattels de hominibus suis, or de tenentibus suis, or de residentibus, infra feodum, &c. it is good, for there they are not named as purchasers or takers, but for another mans benefit, who hath capacitie to purchase or take. (f ) And regularly it is requisite that the Purchaser be named by the name of Baptisme and his surname, and that speciall heed bee taken to the name of Baptisme, for that a man cannot have two names of Baptisme as he may have divers surnames. (g) And it is not safe in writs, pleadings, grants, &c. to translate surnames into Latine. As if the surname of one be Fitzwilliam, or Williamson, if he translate him to filius Willi. if in truth his father had any other Christian name than William, the Writ, &c. shall abate, for Fitzwilliam or Williamson is his surname whatsoever Christian name his father had, therefore the Lawyer never translates surnames. And yet in some cases, though the name of Baptisme be mistaken, (as in the case before put of the wife) the grant is good.

So it is if lands be given to Robert Earle of Pembroke where his name is Henry, to George Bishop of Norwich, where his name is John, and so of an Abbot, &c. for in these and the like cases there can be but one of that Dignitie or name. And therefore such a grant is good, albeit the name of Baptisme be mistaken. If by Licence lands be given to the Deane and Chapter of the holy and individed Trinitie of Norwich, this is good, although the Deane bee not named by his proper name, if there were a Deane at the time of the grant, but in pleading he must shew his proper name. And so on the other side, If the Deane and Chapter make a Lease without naming the Deane by his proper name, the Lease is good, if there were a Deane at the time of the Lease, but in pleading the proper name of the Deane must be shewed, and so to the Booke of 18.Edw.4. to be intended for the same Judges in 13.Edw.4. held the grant good to a Mayor, Alderman, and Commonaltie, albeit the Mayor was not named by his proper name, but in pleading it must be shewed, as it is there also holden. If a man be baptized by the name of Thomas, and after at his Confirmation by the Bishop he is named John, he may purchase by the name of his Confirmation. And this was the case of Sir Francis Gawdye, late chiefe Justice of the Court of Common Pleas, whose name of Baptisme was Thomas, and his name of Confirmation Francis, and that name of Francis by the advice of all the Judges in Anno 36.Hen.8. hee did beare, and after used in all his purchases and grants. (h) And this doth agree with our ancient Bookes, where it is holden that a man may have divers names at divers times, but not divers Christian names. And the Court said, that it may be that a woman was baptized by the name of Anable and fortie yeares after she was confirmed by the name of Douce, and then her name was changed, and after she was to be named Douce, and that all purchases, &c. made by her by the name of Baptisme before her Confirmation remaine good, a matter not much in use, nor requisite to be put in ure, but yet necessarie to be knowne. (i) But purchases are good in many cases by a knowne name, or by a certaine description of the person without either surname, or name of Baptisme, as Uxori I. S. as hath beene said, or primogenito filio, or secundo genito filio, &c. or filio natu minimo I.S. or seniori puero, or omnibus filiis or filiabus I.S. or omnibus liberis seu exitibus of I.S. or to the right heires of I.S.

(k) But if a man doe infranchise a Villeine, cum tota sequela sua, that is not sufficient to infranchise his children borne before, for the incertaintie of the word sequela. (l) But regularly in Writs, the Demandant or Tenant is to be named by his Christian name and Surname, unlesse it be in cases of some Corporations or Bodies politique.

| (a) A bastard having gotten a name by reputation may purchase by his reputed or knowne name to him and his heires, although he can have no heire but of his body. A man makes a lease to B. for life, remainder to the eldest issue male of B. & the heires males of his body. B. hath issue a bastard son, he shall not take the remainder, because in Law he is not his issue, for qui ex damnato coitu nascuntur inter liberos non computentur. And as Littleton saith, A bastard is quasi nullius filius & can have no name of reputation as soone as he is borne. (b) So it is if a man make a lease for life to B. the remainder to the eldest issue male of B. to bee begotten of the body of Jane S. whether the same issue be legitimate or illegitimate. B. hath issue a bastard on the body of Jane S. this son or issue shall not take the remainder, for (as it hath beene said) by the name of issue, if there had beene no other words he could not take, and (as it hath beene also said) a bastard cannot take, but after hee hath gained a name by reputation, that hee is the sonne of B. &c. (c) And therefore he can take no remainder limited before he be borne, but after he be borne, and that he hath gained by time a reputation to be knowne by the same of a son, then a remainder limited to him by the name of the sonne of his reputed father is good. But if he cannot take the remainder by the name of issue at the time when hee is borne hee shall never take it. And so it seemeth, and for the same cause, if after the birth of the issue, B. had married Jane S. so as hee became Bastard eigne, and had a possibilitie to inherit, yet he shall not take the remainder.

Persons deformed having humane shape, ideots, mad men, lepers, deafe, dumb, and blinde, minors, and all other reasonable creatures have power to purchase and retaine lands or tenements. (d) But the Common Law doth disable some men to take any estate in some particular things: As if an office either of the grant of the King or Subject which concernes the administration, proceeding, or execution of Justice, or the Kings revenue, or the Commonwealth, or the interest, benefit, or safetie of the subject, or the like; if these, or any of them be granted to a man that is unexpert, and hath no skill and science to exercise or execute the same, the grant is meerely void, and the partie disabled by Law, and incapable to take the same, pro commodo regis & populi, for only men of skill, knowledge, & abilitie to exercise the same are capable of the same to serve the King & his people. (e) An infant or minor is not capable of an office of Stewardship of the Court of a Mannor either in possession or reversion. (f ) No man though never so skilfull and expert, is capable of a judiciall office in reversion, but must expect untill it fall in possession. And see Sect. 378. where bargaining or giving of money, or any manner of reward, &c. for offices there mentioned, shall make such a purchaser incapable thereof, which is worthy to bee knowne, but more worthy to be put in due execution.

Some are capable of certaine things for some speciall purpose, but not to use or exercise such things themselves. As the King is capable of an office, not to use, but to grant, &c.

A monster borne within lawfull matrimony, that hath not humane shape cannot purchase much lesse retaine any thing. (g) The same Law is de professis & mortuis seculo, for they are civiliter mortui, whereof you shall read at large in his proper place, Sect. 200.

“purchase.”

In Latine Perquisitum of the Verbe Perquirere, Littleton describeth it in the end of this Chapter in this manner, Item, purchase est appel le possession de trés outenèments que home ad per son fait, ou per son agreement, a quel possession il neavient per title de discent de nul de ses ancesters, ou de ses cosens mes person fait dem. So as I take it, a purchase is to be taken, when one commeth to lands by conveyance or title, and that disseisins, abatements, intrusions, usurpations, and such like estates gained by wrong, are not said in Law purchases, but oppressions and injuries.

Note that purchasers of lands, tenements, leases, and hereditaments for good and valuable consideration, shall avoyd all former fraudulent and covinous conveyances, estates, grants, charges & limitations of uses, of or out of the same, (h) by a Statute made since Littleton wrote, whereof you may plainly and plentifully read in my Reports, to which I will adde this case, I. C. had a Lease of certaine lands for 60 yeares if hee lived so long, and forged a Lease for 90 yeares absolutely, and he by Indenture reciting the forged Lease for valuable consideration bargained, and sold the forged Lease: and all his interest in the land to R. G. It seemed to me that R. G. was no purchaser within the Statute of 27 Eliz. for he contracted not for the true & lawfull interest, for that was not knowne to him, for then perhaps hee would not have dealt for it, and the visible and knowne tearme was forged, and although by generall words the true interest passed notwithstanding he gave no valuable consideration nor contracted for it. And of this opinion were all the Judges in Serjeants Inne in Fleetstreet.

(i) In ancient time when a man made a fraudulent feoffment it was said, quod posuit terram illam in brigam, where brigam doth signifie wrangle, contention, or intricacie, for fraud is the mother of them all. (k) And on the other side, purchases, estates, and contracts may be avoyded since Littleton wrote by certaine Acts of Parliament against Usurie above ten in the hundred, in such manner and forme as by those Acts is provided. Which Statutes are well expounded in my books of Reports which may be read there. To them that lend money my caveat is, that | neither directly nor indirectly, by art, or cunning invention, they take above ten in the hundred, for they that seeke by fleight to creepe out of these Statutes, will deceive themselves, and repent in the end.

“Purchase Lands.”

Lands and other things to be purchased.Littleton here and in many other places putteth Lands but for an example, for his rule extendeth to Seigniories, Rents, Advowsons, Commons, Estovers, and other hereditaments of what kinde or nature soever.

“Land.”

Terra, Land in the legall signification comprehendeth any ground, soile or earth whatsoever, as Meadowes, Pastures, Woods, Moores, Waters, Marshes, Furses and Heath, Terra est nomen generalissimum, & comprehendit omnes species terrae, but properly Terra dicitur à terendo, quia vomere teritur, andanciently it was written with a singler, and in that sense it includeth whatsoever may bee plowed, and is all one with arvum ab arando. It legally includeth also all Castles, Houses, and other buildings: for Castles, Houses, &c. consist upon two things, viz. land or ground, as the foundation and structure thereupon, so as passing the land or ground, the structure or building thereupon passeth therewith. Land is anciently called Fleth, but land builded is more worthy than other land, because it is for the habitation of man, and in that repeat hath the precedencie to be demanded in the first place in a Praecipe, ashereafter shall be said. And therefore this element of the Earth is preferred before the other elements; first and principally, because it is for the habitation and resting place of man, for man cannot rest in any of the other elements, neither in the Water, Aire or fire. For as the Heavens are the habitation of Almightie God, so the Earth hath he appointed as the Suburbs of Heaven to be the habitation of man; Coelum coeli Domino, terram autem dedit filiis hominum. All the whole Heavens are the Lords, the earth hath he given to the children of men. Besides, everie thing as it serveth more immediately or more meerely for the food and use of man (as shall be said hereafter) hath the precedent dignitie before any other. And this doth the earth, for out of the earthcommeth mans food, and bread that strengthens mans heart, Confirmat cor hominis, and Wine that gladdeth the heart of man, and Oyle that makes him a cheereful countenance. And therefore Terra olim Ops mater dicta est quia omnia hac opus habeant ad vivendum. And the Divine agreeth herewith, for he saith,Patriam tibi & nutricem, & matrem, & mensam, & domum posuit terram Deus, sed & sepulchrum tibi hanc eandem dedit. Also the waters that yeeld fish for the food and sustenance of man are not by that name demandableina Praecipe, but the land whereupon the water floweth or standeth is demandable (as for example) viginti acr’ ter’ aqua coopert’, and besides the earth doth furnish man with many other necessaries for his use, as it is replenished with hidden treasures, namely with Gold, Silver, Brasse, Iron, Tinne, Lead, and other metals, and also with great varietie of precious stones, and many other things for profit, ornament and pleasure. And lastly, the earth hath in Law a great extent upwards, not only of water as hath beene said, but of aire and all other things even up to Heaven, for cujus est solum ejus est usque ad coelum, as it is holden, 14.Hen.8.fo.12. 22.Hen.6.59. 10.Edw.4.14. Regist. origin and in other bookes.

And albeit land, whereof our Author here speaketh, be the most firme and fixed inheritance, and therefore it is called solum, quid est solidum, and fee simple the most highest and absolute estate that a man can have, yet may the same at severall times be moveable; sometime in one person, and alternis vicibus in another, nay sometime in one place, and sometime in another. As for example, if there be 80 acres of meadow which have been used time out of minde of man, to be divided betweene certain persons, and that a certaine number of acres appertaine to everie of these persons, as for example, to A. 13. acres to be yearely assigned and lotted out, so as sometime the 13. acres lye in one place, and sometime in another, and so of the rest. A. hath a moveble fee simple in 13. acres, and may be parcell of his Mannor, albeit they have no certaine place, but yearly set out in severall places, so as the number onely is certaine, and the particular acres or place wherein they lye after the yeare incertaine. And so it was adjuged in the Kings Bench upon an especiall verdict.

If a partition be made betweene two Coparceners of one and the selfe-same land, that the one shall have the land from Easter untill Lammas to her and to her heires, and the other shall have it from Lammas till Easter to her and her heires, or the one shall have it the first yeare, and the other the second yeare alternis vicibus, &c. there it is one selfe-same land wherein two persons have severall inheritances at severall times. So it is if two Coparceners have two severall Mannors by descent, & they make partition, that the one shall have the one Mannor for a yeare, and the other the other Mannor for the same yeare, and after that yeare, then he that had the one Mannor shall have the other, & sic alternis vicibus for ever, and albeit the Mannors be severeall, yet are they certaine, and therefore stronger than Bridgewaters case, so as this doth make a Division of states of inheritances of lands, viz. Certaine or unmoveable whereof Littleton here speaketh, and incertaine and moveable, whereof these three cases for examples have beene put. Wherein it is to bee noted, that the possession is not onely severall, but the inheritance also.

(k) The same Law if a man in that case grant omnes boscos suos crescentes, &c. yet the land itselfe shall passe, as it hath been adjudged.Frassetum signifieth a wood, or ground that is woodie. (l) If a man hath a wood of Elder trees containing 20. acres, and granteth to another 20. acras alneti (with an N not a V) the wood of Elders, and the soile thereof shall passe, but no other kinde of woods shall passe by that name. Alnetum est ubi alni arbores crescunt. , And Sullings are taken for Elders. (m)Salicetum doth signifie a wood of wilowes, ubi salices crescunt, these trees in our Books are called Sawces.Selda, is a wood of Sallowes, Willowes, or Withies. A brackie ground is called Filecetum, ubi filices crescunt. A wood of Ashes is called Fraxinetum, ubi fraxini crescunt, and passeth by that name, and Lupulicetum where hops grow, and Arundinetum, where reeds grow. Some say that Dene or Denne, whereof Dena commeth, is properly a valley or dale. Denasylvae, and the like. (n)Drofden, or Drufden, or Druden, signifieth a thicket of wood in a valley, for Druf or Dru, signifieth a thicket of wood, and is often mentioned in Domesday. And sometimes Dena or Denna signifieth, as Villa and Denne, a towne.

(o)Cope signifieth a hill, & so doth Lawe, as Stanlawe is Saxeus collis. (p)Howe also signifieth a hill. And Hope combe, and Stow are valleyes, & so doth Clough. And Dunham or Duna, signifieth a hill or higher ground, and therefore commonly the townes that end in Dun, have hills or higher grounds in them, which we call Downes. It commeth of the old French word Dun.

(q) In our Latine a wood is called Boscus, Grava signifieth a little wood, in old Deeds, and Hirst or Hurst a wood and so doth Holt and Shawe. Twaite signifieth a wood grubbed up, and turned to arable. Stethe or Stede, betokeneth properly a banke of a River, and many times a place, as Stowe doth, and Wic, a place upon the Sea shore, or upon a River. Lea or Ley signifieth pasture.

(r) If a man doth grant all his pastures, Pasturas, the land it selfe imployed to the feeding of beasts doth passe, and also such pastures or feedings, as he hath in another mans soile. Leswes or Lesues is a Saxon word, and signifieth pastures. (s) Between Pastura and Pascuum, the legall difference is that Pastura in one signification containeth the ground it selfe called pasture, and by that name is to be demanded. Pascuum feeding, is wheresoever cattell are fed, of what nature soever the gound is, and cannot be demanded in a Praecipe by that name.

(t) If a man grant omnia prata sus, all his meadowes; the land it selfe of that kinde passe, & dicitur pratum quasi paratum, because it groweth sponte without maintenance. (u) A man grant omnes brueras suas, the soile where heath doth grow passeth, and may be demanded by that name | in a praecipe, it is derived from bruyer a French word for heath, and it is called Ros in the British tongue.

Roncaria or Rancaria signifieth land full of brambles & briers, and is derived of Roucier the French word which signifieth the same, & as much as senticetum. (a) By the grant of omnes Juncarias or joncarias, the soile were rushes do grow, doth passe, for Lonc in French is a Rush, whereof Joncaria commeth. (b) A man grant omnes Ruscarias suas, the soile where ruscii. kneholme, or butchers pricks or broome doe grow, shall passe, and so in the verse in the Register it is called, but in F.N.B. fol. 2. in the verse, Pischaria is put in stead of Ruscaria. And Jampna commeth of lonc and nower, a waterish place, and is all one in effect with Joncaria. Hee that granteth omnes mariscos suos, all his fennes or marish grounds doe passe. Mariscus is derived of the French word mares or marets; the Latine word for it, is palus or locus paludosus. Mora is derived of the English word Moore and signifieth a more barren and unprofitable ground than marshes, dangerous for any cattell to goe there, in respect of myrie and morish soyle, neither serves it for getting of turves there: (c) you shall read in Record, that such a man perquisuit trescent. acr. maretti, &c. this word maretrum is derived of mare the sea, and tego, and properly signifieth a moorish and gravelly ground, which the sea doth cover and overflow at a full sea, and lyeth betweene the high water marke, and the low water marke, infra fluxum & refluxum maris. By grant of these particular kindes, the land of these particular kindes onely doe passe, but as hath beene said by the grant of land in generall, all these particular kindes, and some others doe passe. Non mihi si centum linguae sint oraque centum, Omnia terrarum percurrere nomina possem. And therefore let us turne our eye to generall words, which doe include lands of severall sorts and qualities. (d) By the name of an Honor, which a subject may have, divers mannors and lands may passe. So by the name of an Isle, Insula, many mannors, lands and tenements may passe.

Holme or hulmus signifieth an Isle or fenny ground. * A Commote is a great Seigniory, & may include one or divers mannors; (e) By the name of a castle, one or more mannors may be conveyed, & è converso, by the name of a mannor, &c., a castle may passe. In Domesday I read Comes Alanus habet in suo castellatu 200. maneria, &c. praeter castellarium habet 43. maneria, and in that booke a castle is called castellum, and castrum, and domus defensibilis, and mansus muralis. (f ) But note by the way, that no subject can build a castle or house of strength embattelled, &c. or other fortress defensible, called in Law by the names aforesaid, and sometimes domus kernellatae, or Carnellatae, imbattellatae, tenellatae, machecollatae, mese, carnelet, &c without the licence of the King, for the danger which might ensue, if everie man at his pleasure might do it. And they be called imbattlements, because they are defences against battles in assaults. Tenellare or tanellare, is to make holes or loopes in walls to shoot out against the Assailants. Machecollare or machecoulare, is to make a warlik device over a gate or other passage like to a grate through which scalding water, or ponderous, or offensive things may be cast upon the assaylants. But to returne to the matter from whence upon this occasion we are fallen.

By the name of a towne Villa, a mannor may passe. In Domesday, Alodium (in a large sense) signifieth a free mannor and Alodiarii or Alodarii, Lords of the same, and Lannemanni there signifie lords of a mannor, having socam & sacam de tenentibus & hominibus suis. (g) And by the name of a Mannor, divers townes may passe, quod olim dicebatur fundus nunc manerium dicitur, by the name of a ferme or fearme firma, houses, lands, and tenements may passe, and firma is derived of the Saxon word feormian, to feed or releeve, for in ancient time they reserved upon their Leases, cattell and other victuall & provision for their sustenance. (h) Note a fearme in the North parts is called a Tacke, in Lancashire a Fermeholt, in Essex a Wike. But the word fearme, is the generall word, and anciently fundus signified a fearme and sometime land. (i) Lands making a Knights fee, shall passe by the grant of a Knights fee de uno feodo militis.

(k)Unum solinum or solinus terrae in Domesday book containeth two plow Lands and somewhat lesse than an halfe, for there it is said, Septem Solini, or Solina terrae sunt 17. carucat’. Una hida seu carucata terrae which is all one as a plow land, viz. as much as a plough can till, fullery also signifieth a plowland. Una virgata terrae, a yard land, the Saxons called it Girdland, and now the G. is turned to a Y. as in some Countries 10. in some 20. in some 24. in some 30. &c. (l)Una bovata terrae, an oxgange, or an oxgate of land, is as much as an oxe can till. (m) But carucata terrae and bovata terrae, are words compound, and may containe meadow, pasture, and wood, necessarie for such tillage. Jugum terrae in Domesday, containeth halfe a plow-land. And by all these names in the reign of Richard the first lands were usually demanded and long after.

(n) By the name of a Grange, Grangia a house or edifice, not onely where corne is stored up like as in barnes, but necessarie places for husbandrie also, as stables for hay and horses, and stables and styes for other cattell, and a curtilage, and the close wherein it standeth shall passe, and it is a French word, and signifieth the same, as we take it.

(o)Stagnum, in English a poole, doth consist of water and land, and therefore by the name of | Stagnum or a poole, the water and land shall passe also. (a) In the same manner Gurges, a deepe pit of water, a gors or gulfe consisteth of water and land, and therefore by the grant thereof by that name, the soile doth passe, and a praecipe doth lye thereof, & shall lay his esplées in taking of fishes, as Breames and Roches.Domesday. In Domesday it is called guort, gort & gors plurally, as for example, de 3. gorz. mille anguillae.

(b) So it is of a Forest, Parke, Chase, vivarye, and Warren in a mans owne ground, by the grant of any of them, not onely the privilege, but the land it selfe passes, for they are compound. In the book of Domesday, that is called lewad and leuga, and lewed, and lewe, which in Latine is called leuca.

(c)Stadium, or ferlingus sive ferligum, or quarentena terrae, is a furlong of Land, and is as much as to say, a furrow long, which in ancient time was the eighth part of a mile, and land will passe by that name. And some hold, that by that name land may be demanded. And de ferlingis & quarentenis, you shall read divers times in the booke of Domesday,Domesday. and there you shall read In insula Rex habet unum frustrum terrae unde exeunt sex vomeres.Nota frustrum signifieth a parcell, (d)Warectum or wareccum, or varectum, doth signifie fallow; Terra jacet ad Warectum, the land lyeth fallow: but in truth the word is vervactum, quasi vere novo victum seu subactum, terra novalis seu requieta, quia alternis annis requiescat. (e)Tam culta novalia. (f ) By the grant of a messuage, or house mesuagium, the orchard, garden and curtilage doe passe, and so an acre or more may passe by the name of a house. It is derived of the French word mese. (g) In Domesday, a house in a City or Burrough, is called haga; other houses are called there mansiones, mansurae, & domus, (h) and in an ancient plea concerning Feuersham in Kent, hawes are interpreted to signifie mansiones. In Normans French it is called mesiul or mesuil: Bye signifieth a dwelling, bye an habitation, and byan to dwell.

It is to be noted, that in Domesday there be often named bordarii seu borduanni, cosces, coscet, cotucami, cotarii, are all in effect bores or husbandmen, or cotagers, saving that bordarii, which commeth of the French word borde for a cottage, signifieth their bores holding a little house with some land of husbandry bigger than a cottage, and coterelli are meere cottagers, qui cotagia & curtilagia tenent.

Villani in Domesday (often named) are not taken there for bondmen, but had their name de villis, because they had fermes, and there did worke of husbandry for the Lord, and they were ever named before bordarii, &c. and such as are bondmen are called there servi.

Domesday.(i)Coleberti often also named in Domesday signifieth Tenants in free socage by free rent, and so it is expounded of record. Radmans and Radchemisters, (Rad, or rede, signifieth firme and stable) there also often named, these are liberi tenentes qui arabant & herciebant ad curiam domini, seu falcabant, aut metebant, because their estates are firme and stable, and they are many times called Sochemans and sokemanni because of their plough service.

Dreuchs signifieth free tenants of a Mannor there also named. Taini or thaini mediocres were free holders, and sometime called milites regis, and their land called Tainland, and there it is said, haec terra T.R.E. fuit Tainland, sed postea conversa in Reveland. (k) But thainus regis is taken for a Baron, for it is said in an ancient Author, Thainus regis proximus comiti est, & ibidem mediocris thainus, & alibi Baro sive thainus.Berquarium or Bercaria commeth of Berc, an old Saxon word, used at this day for barkes or rindes of trees, and signifieth a Tanhouse, or a heath house, where barkes or rindes of trees are laid to tan withall,Domesday. and Berquarij are mentioned in Domesday. It signifieth also, and more legally a sheepe coat, of the french word Bergerie.

(l) By Vaccaria in Law is signified a Dairy house, derived of vacca the cow. In Latine it is Lactarium or Lactitium, and vaccarius is mentioned in Domesday. And Fleta maketh also mention of porcaria a swinestye.

The content of an Acre is knowne, the name is common to the English, German, and French. In legall Latine it is called Acra, which the Latinists call iugerum. In Domesday it is called Arpen prati, sylvae, &c. 10. R.I. inter fines, Acra in Cornwall continet 40. perticatas in longitudine & 4. in latitudine, & quaelibet perticata de 16. pedibus in longitudine.

(m) By the grant of a Selion of land, Selio terrae, a ridge of land which containeth no certainty, for some be greater and some be lesser, and by the grante de una porca, a ridge doth passe, Selio is derived of the French word Sellon for a ridge.

(n) By the grant de centum libratis terrae, or 50. libratis terrae or centum solidatis terrae &c. land of that value passeth, and so of more or lesse, and in ancient time by that name it might have beene demanded. (o) And many things may passe by a name, that by the same name cannot be demanded by a praecipe (for that doth require more prescript forme) but whatsoever may be demanded by a praecipe, may passe by the same name by way of grant.

(p)Frythe is a plaine betweene woods, and so is lawnd or laund, Combe, hope, dene, glyne, hawgh, howgh signifieth a Vally. Howe, hoo, knol, law, peu, and cope a hill. Ey, Ing and worth signifieth a watry place or water. Falesia is a banke or hill by the sea-side, it commeth of falaize, which signifieth the same: of all these you shall read in ancient bookes, charters, deeds,| and records, and to the end that our student should not be discouraged for want of knowledge when he meeteth with them (nescit enim generosa mens ignorantiam pati) wee have armed him with the signification of them, to the end he may proceed in his reading with alacritie, and set upon, and know how to worke into with delight these rough mines of hidden treasure.

(m) By the name of Minera, or Fodina plumbi, &c. the land itself shall passe in a grant if it liverie be made, and also be recovered in an assise, & sic de similibus.

By the grant of a fould course or the like, lands and tenements may passe. (n)Tenementum, Tenement is a large word to passe, not onely lands and other inheritances which are holden, but also offices, rents, commons, profits apprender out of lands and the like, wherein a man hath any franktenement, and whereof he is siesed ut de libero tenemento. But haereditamentum, hereditament, is the largest word of all in that kinde, for whatsoever may be inherited is an hereditament, be it corporeall or incorporeall, reall or personall or mixt.

(o) A man seised of lands in fee hath divers Charters, deeds & evidences, or maketh a feoffment in fee, either without warrantie, or with warrantieonely against him and his heires, the purchaser shall have all the Charters, deeds and evidences, as incident to the Lands, & ratione terrae, to the end he may the better defend the land himselfe, having no warrantie to recover in value, for the evidences are as it were the sinewes of the land, and the feoffor being not bound to warrantie hath no use of them. But if the feoffor be bound to warrantie, so that he is bound to render in value, then the defence of the title at his perill, and therefore the feoffee in that case shall have no deeds that comprehend warrantie, whereof the feoffor may take advantage. Also he shall have such Charters as may serve him to deraigne the warrantie paramount; Also hee shall have all deeds and evidences, which are materiall for the maintenance of the title of the land, but other evidences which concerne the possession, and not the title of the land, the feoffee shall have them.

“To have and to hold.”

These two words doe in this place prove a double signification, viz., a ayer to have an estate of inheritance of lands descendible to his heires, and tener to hold the same of some superior land.

There have been eight formall or orderly parts of a deed of feoffment, viz. 1. the premisses of the deed implied by Littleton. 2. the habendum, whereof Littl. here speaketh. 3. the tenendum mentioned Littleton, 4. the Reddendum, 5. the Clause of warrantie, 6. the In cujus rei testimonium, comprehending the sealing, 7. The date of the deed containing the day, the moneth, the yeare, and stile of the King, or of the yeare of our Lord. (p) Lastly, the clause of hiis testibus, and yet all these parts were contained in verie few and significant words, (q)Haec fuit candida illius aetatis fides et simplicitas, quae pauculas lineis omnia fidei firmamenta posuerunt.

The office of the premisses of the deed is twofold. First, rightly to name the feoffor and the feoffee. And secondly, to comprehend the certaintie of the lands or tenements to be conveyed by the feoffment, either by expresse words, or which may by reference be reduced to a certaintie; for, certum est quod certum reddi potest. The habendum hath also two parts, viz. first, to name againe the feoffee, and secondly to limit the certaintie of the estate. The Tenendum at this day where the fee simple passe, must be of the chiefe lords of the fee. And of the Reddendum more shall be said in his proper place, in the Chapter of Rents. Of the Clause of warantie more shall be said in the chapter of warranties. In cujus rei testimonium sigillum meum apposui was added, for the Seale is of the essentiall part of the deed. The date of the deed many times Antiquitie omitted, and the reason thereof was, for that the limitation of prescription or time of memorie did often in processe of time change, and the law was then holden that a deed, bearing date, before the limited time of prescription was not pleadable, and therefore they made their deeds without date, to the end they might alleage them within the time of prescription. And the date of the deeds was commonly added in the reiqne of Henry the second and Edward the third and so ever since.

And sometime Antiquitie added a place, as Datum apud D. which was in disadvantage of the feoffee, for being in generall, hee may alleage the deed to be made where he will. And lastly, Antiquitie did adde, hiis testibus in the continent of the deed after the In cujus rei testimonium, written with the same hand that the deed was, which witnesses were called, the Deed read, and then their names entered. (r) And this is called charter land, and accordingly the Saxons called it Bockland, as it were bookeland. Which clause of hiis testibus in subjects deeds continued until and in the reigne of Henry the eighth but now is wholly omitted. And it appeareth by the ancient Authors and authorities of the Law; that before the Statute of 12. Edw.2.ca.2. Processe should be a market against the witnesses named in the deed, testes in carta nominatos, (s) and that the same Statute was but an affirmance of the Common Law, which not being well understood, hath caused varietie of opinions in our bookes. But the delay therein was so great, and some times (though rarely) by exceptions against those witnesses, which being found true; they were not to be sworne at all, neither to be joyned to the Jurie, nor as witnesses, (t) as if the witnesse were infamous, for example, if he attainted of a false verdict, or of a conspiracie at the | suit of the King, or convicted of perjurie, or of a Premunire, or of forgerie upon the Statute of 5. Eliz. cap. 14. and not upon the Statue of 1 Hen. 5. cap. 3. or convict of felony, or by judgement lost his cares, or stood upon the pillorie or tumbrell, or beene stigmaticus branded, or the like, whereby they become infamous for some offences, quaesuntminoris culpae sunt majoris infamiae. (c) If a Champion in a Writ of right become recreant or coward, he thereby loseth liberam legem, and thereby becomes infamous, and cannot be a witnesse, for regularly he that loseth liberam legem, becommeth infamous, and can be no witness. Or if the witnesse be an Infidell, or of non sane memorie, or not of discretion, or a partie interessed, or the like. (d) But often-times a man may be challenged to be of a Jurie, that cannot be challenged to be a Witnesse, and therefore though the Witnesse be of the nearest alliance, or kindred, or of counsell, or tenant, or servant to either partie, (or any other exception that maketh him not infamous, or to want understanding, or discretion, or a partie in interest) though it be proved true, shall not exclude the witnesse to be sworn, (e) but he shall be sworne, and his credit upon the exceptions taken against him left to those of the Jurie, who are triers of the fact, insomuch as some Bookes have said, that though the witnesse named in the Deed be named a Disseisor in the writ, yet hee shall be sworne as a witnesse to the deed. (f ) A Witnesse amongst others named in a deed was outlawed, and no Processe was awarded against him by the Statute, because he was extra legem, and an outlawed person cannot be an Auditor. And the Court in some bookes have said, that they have not seene witnesses challenged, which is regularly to be understood with the limitations above-said, but such as are returned to be of a Jurie, are to be challenged for the causes aforesaid for outlawrie, and divers other causes (for the which a witnesse cannot be challenged) and such Processe against witnesses banished. But seeing the witnesses named in a Deed shall be joyned to the Inquest, and shall in some sort joyne also in the verdict (in which case if Jurie and Witnesses finde the Deed that is denied to be the Deed of the partie, the adverse partie is barred of his attaint, because there is more than twelve that affirme the verdict.) It is reason that in that case of joyning, such exception shall be taken against the Witnesse as against one of the Jurie, because he is in the nature of a Juror. (a) And therefore to put one example, if he be outlawed in a personall action he cannot be joyned to the Jurie, but yet that is no exception against him to exclude him to be sworne as a Witnesse to the Jurie. And the reason of all this is, for that if he with others should joyne in verdict with the Jurie in affirmance of the Deed, the partie should be barred of his Attaint. But note, there must be more than one witnesse, that shall bee joyned to the Inquest. And albeit they joyne with the Jurie, and finde it not his Deed, notwithstanding this joyning, the partie shall have his attaint, for it is amaxime in law, (b) That Witnesses cannot testifie a negative, but an affirmative. And if one of the witnesses named in the Deed be one of the panell, he shall be put out of the panell, and all these secrets of law doe notably appeare in our bookes.

To shut up this point, it is to be knowne (c) that when a triall is by witnesses, regularly the affrimative ought to be proved by two or three witnesses, as to prove a summons of the Tenant, or the challenge of a Juror, and the like. But when the triall is by verdict of 12. men, there the judgement is not given upon witnesses, or other kinde of evidence, but upon the verdict, and upon such evidence as is given to the Jurie they give their verdict. And Bracton saith there is probatio duplex, viz. viva. as by witnesses viva voce, and mortua, as by deeds, writings, and instruments. And many times Juries, together with other matter, are much induced by presumptions, whereof there be three sorts, viz. violent, probable, and light or temerarie. Violenta praesumptio is many times plena probatio, as if one be run thorow the body with a sword in a house whereof he instantly dieth, and a man is seene to come out of that house with a bloudy sword, and no other man was at that time in the house. Praesumptio probabilis moveth little, but, Praesumptio levis seu temeraria, moveth not at all. So it is in the case of a Charter of feoffment, if all the witnesses to the Deed be dead (as no man can keepe his witnesses alive, & time weareth out all men) then violent presumption which stands for a proofe is continuall and quiet possession, for ex diuturnitate temporis omnia praesumuntur solemniter esse acta, also the Deed may receive credit,per collationem sigillorum, scripturae, &c. & super fidem cartarum mortuis testibus erit ad patriam de necessitate currendum.

Note, it hath beene resolved by the Justices, that a wife cannot be produced either against or for her husband,quia sunt duae animae in carne una, and it might be a cause of implacable discord and dissention between the husband and the wife, and a meane of great inconvenience, but (d) in some cases women are by Law wholly excluded to beare testimony, as to prove a man to be a Villeine, mulieres ad probationem status hominis admitti non debent. It was also agreed by the whole Court (e) that in an Information upon the Statute of usurie, the partie to the usurious contract shall not be admitted to be a witnesse against the Usurer, for in effect hee should be testis in propria causa, and should avoyd his owne bonds and assurances, and discharge himselfe of the money borrowed, and though hee commonly raise up an Intormer to exhibit the Information, yet in rei veritate he is the partie. And herewith in effect agreeth Brit-|-ton, that be that challengeth a right in the thing in demand, cannot be a witnesse, for that he is a partie in interest. But now let us returne to that from the which by way of digression (upon this occasion) we are fallen.

And the ancient Charters of the King which passed away any franchise or revenue of any estate of inheritance, had ever this clause of hiis testibus of the greatest men of the Kingdome, as the Charters of creation of Nobilitie, yet have at this day: when hiis testibus was omitted, and when teste me ipso, came in into the Kings grants, you shall read in the second part of the Institutes, Mag. Charta, cap. 38. I have tearmed the said parts of the Deed, formall or orderly parts, for that they be not of the essence of a Deed of feoffment, for if such a Deed be without premisses, habendum, tenendum, reddendum clause of warrantie, the clause of In cujus rei testimonium, the Date, and the clause of hiis testibus, yet the Deed is good. (f ) For if a man by Deed give lands to another, and to his heires without more saying, this is good, if he put his Seale to the Deed, deliver it, and make liverie accordingly. (g) So it is if A. give lands, to have and to hold, to B. and his heires, this is good, albeit the feoffee is not named in the promisses. And yet no well advised man will trust to such Deed, which Law by construction maketh good ut res magis valeat, but when forme and substance concurre, then is the Deed faire and absolutely good. The sealing of Charters and Deeds is much more ancient than some, out of error, have imagined, for the Charter of the King Edwyn, brother of King Edgar, bearing Date Anno Domini 956, made of the land called Jecklea in the Isle of Ely, was not onely sealed with his owne Seale (which appeareth by these words, Ego Edwinus gratia Dei totius Britannicae telluris Rex meum donum proprio sigillo confirmavi) but also the Bishop of Winchester put to his Seale, Ego Aelfwinus Winton Ecclesiae divinus speculator proprium sigillum impressi. And the Charter of King Offa, whereby he gave the Peterpence, doth yet remaine under Seale. But no King of England, before, or since the Conquest, sealed with any seale of Armes, before King Richard the first but the Seale was the King sitting in a chaire on the one side of the Seale, and on horse backe on the other side in divers formes. And King Richard the first sealed with a Seale of two Lyons, for the Conqueror for England bare two Lyons, and King John in the right of Aquitaine (the Duke whereof bare one Lyon) was the first that bare three Lyons, and made his Seale accordingly, and all the Kings since have followed him. And King Edward the third in anno 13. of his reigne did quarter the Armes of France with his three Lyons, and took upon him the title of King of France, and all his Successors have followed him therein.

In ancient Charters of feoffment there was never mention made of the deliverie of the Deed, or any liverie of seisin indorsed, for certainly the witnesses named in the Deed, were witnesses of both: and witnesses either of deliverie of the Deed, or of liverie of seisin by expresse tearmes was but of latter times, and the reason was in respect of the notorietie of the feoffment. And I have knowne some ancient deeds of feoffment having liverie of seisin indorsed suspected, and after detected of forgerie. As if a Deed in the stile of the King name him Defensor fidei before 13.Henry the eighth or Supreme head before 20.Henry the eighth at what time hee was first acknowledged supreme head by the Clergie, albeit the King used not the stile of Supreme head in his Charters, &c. till 22.Henry the eighth or King of Ireland, before 33.Henry the eighth at which time he assumed the title of the King of Ireland, being before that called Lord of Ireland, it is certainly forged, & sic de similibus.

And some have observed, that Grace was attributed to King Henry the fourth. Excellent Grace to King Henry the sixth Majestie to King Henry the eighth and before, the King was called, Soveraigne Lord, Liege Lord, Highnesse and Kingly Highnesse, which in Latine in legall proceedings is called Regia Celsitudo, as the beginning of the petition of right to the King is, Humillimè supplicavit vestrae Celsitudini regiae, &c, and the like. And upon this occasson it shall not be impertinent, seeing it is part of the formall Deed, to set downe the severall stiles of the Kings of England since the Conquest.

William the Conquerour commonly stiled himselfe Willielmus Rex, and sometimes Willielmus Rex Anglorum. And the like did William Rufus, and sometimes Willielmus Dei gratia Rex Anglorum.

Henry the first, Henricus Rex Anglorum, and sometimes Henricus Dei gratia Rex Anglorum.

Mawde the sole daughter and heire of Henry the first wrote, Matildis Imperatrix Henrici Regis filia & Anglorum Domina. Divers of whose creations and grants I have seene.

King Stephen used the stile that King Henry the first did. Henry the second, Fitz Emprice omitted Dei gratia, and used this stile, Henricus Rex Angliae, Dux Normanniae, & Aquitaniae, & Comes Andegaviae, hee having the Duchie of Aquitaine, and Earledome of Poitiers in the right of Elianor his wife heire to both: And the Earledomes of Anjow, Tournie, and Maine, as sonne and heire to Jeffery Plantagenet by the said Mawde his wife, daughter and sole heire of King Henry the first. She was first married to Henry the Emperour, and after his death to the said Jeffery Plantagenet. Which Duchie of Aquitaine doth include Gascoinge and Guian.

King Richard the first used the stile that Henry the second his father did, yet was hee King of Cyprus, and after of Jerusalem, but never used either of them.

| King John used that stile, but with this addition Dominus Hiberniae, and yet all that hee had in Ireland was conquered by his father King Henry the second which title of Dominus Hiberniae, hee assumed, as annexed to the Crowne, albeit his father, in the 23. yeare of his reigne, had created him King of Ireland in his life time.

King Henry the third stiled himselfe as his father King John did, untill the 44. yeare of his reigne, and then he left out of his stile Dux Normanniae, & Comes Andegaviae, and wrote onely Rex Angliae, Dominus Hiberniae, & Dux Aquitaniae.

King Edward the first stiled himselfe in like manner as King Henry the third his father did, Rex Angliae, Dominus Hiberniae, & Dux Aquitaniae. And so did King Edward the second during all his reigne. And King Edward the third used the selfe same stile untill the 13. yeare of his reigne, and then hee stiled himselfe in this forme, Edwardus Dei gratia Rex Angliae & Franciae, & Dominus Hiberniae, leaving out of his stile Dux Aquitaniae. He was King of France, as sonne and heire of Isabel wife of King Edward the second daughter and heire of Philip le Beau King of France, he first quartered the French Armories with the English in his great Seale, Anno Domini 1338. & regni sui 14.

King Richard the second and King Henry the fourth used the same stile that King Edward the third did. And King Henry the fifth untill the 8. yeare of his reigne continued the same stile, and then wrote himselfe, Rex Angliae, Haeres & Regens Franciae, & Dominus Hiberniae, and so continued during his life.

King Henry the sixth wrote,Henricus Dei gratia Rex Angliae et Franciae, & Dominus Hiberniae; this King being crowned in Paris King of France used the said stile 39. yeares, till hee was dispossessed of the Crowne by King Edward the fourth who after he had reigned also about ten yeares, King Henry the sixth was restored to the Crowne againe, and then wrote, Henricus Dei gratia Rex Angliae, & Franciae, & Dominus Hiberniae ab inchoatione regni sui 49. & receptionis regiae potestatis primo.

King Edward the fourth Richard the third and Henry the seventh stiled themselves, Rex Angliae & Franciae, & Dominus Hiberniae.

King Henry the eighth used the same stile till the tenth yeare of his reigne, and then hee added this word (Octavus)as Henricus octavus Dei gratia, &c. In the 13. yeare of his reigne hee added to his stile Fidei Defensor. In the 22. yeare of his reigne, in the end of his stile hee added, Supremum Caput Ecclesiae Anglicanae. And in the 23. yeare of his reigne hee stiled himselfe thus, Henricus octavus Dei gratia Angliae, Franciae & Hiberniae Rex, Fidei Defensor, &c. & in terra Ecclesiae Anglicanae & Hiberniae supremum caput.

King Edward the sixth used the same stile, and so did Queene Mary in the beginning of her reigne, and by that name summoned her first Parliament, but soone after omitted Supremum Caput. And after her marriage with King Philip, the stile not withstanding that omission was the longest that ever was, viz. Philip and Mary by the grace of God King and Queene of England and France, Naples, Jerusalem and Ireland, Defenders of the faith, Princes of Spaine and Cicily, Archdukes of Austria, Dukes of Millaine, Burgundy and Brabant, Countees of Hasburgh, Flanders and Tyroll. And this stile continued till the fourth and fifth yeare of King Philip and Queen Mary, and then Naples was put out, and in place thereof both the Cicilies put in, and so it continued all the life of Queene Mary.

I need not mention the stile of Queene Elizabeth, King James, nor of our Soveraigne Lord King Charles, because they are so well knowne, and I feare I have beene too long concerning this point, which certainlyis notunnecessarie to be knowne for many respects. But to shew the causes and reasons of these alterations would aske a Treatise of itselfe, and doth not sort to the end that I have aimed at. And now let us returne to the learning of Charters and Deeds of Feoffments and Grants.

Verie necessarie it is that Witnesses should bee underwritten or indorsed, for the better strengthening of Deeds, and their names (if they can write) written with their owne hands. For Liverie of seisin see hereafter Sect. 59. and for Deeds, Sect. 66. and of Conditionall Deeds see our Author in his Chapter of Conditions. And now let us proceed to the other words of our Author.

“To him and to his Heires.”

Haeres, in the legall understanding of the Common Law, implyeth that he is ex justis nuptiis procreatus, for haeres legitimus est quem nuptiae demonstrant, and is he to whom lands, tenements, or hereditaments by the act of God, and right of blood doe descend of some estate of inheritance, for Solus Deus haeredem facere potest non homo: dicuntur autem haereditas & haeres ab haerendo, quod est arctè insidendo, nam qui haeres est, haeret, vel dicitur ab haerendo quia haereditas sibi haeret, licet nonnulli haeredem dictum velint quod haeres fuit, hoc est dominus terrarum, &c. quae ad eum preveniunt.

A monster which hath not the shape of mankinde, cannot be heire or inherit any land, albeit it be brought forth within marriage, (a) but although hee hath deformitie in any part of his bodie, yet if he hath humane shape he may be heire. Hii qui contra formam humani generis converso more procreantur, ut si mulier monstrosum, vel prodigiosumenixa, inter liberos non computentur, partus tamen cui natura aliquantulem ampliaverit vel diminuerit, non tamen superabundanter (ut si sex digitos vel nisi quatuor habuerit) bene debet inter liberos connumerari. | Si inutilia natura reddidit, ut si membra tortuosa habuerit, non tamen is partus monstrosus. Another saith, Ampliatio seu diminutio membrorum non nocet. (b) A Bastard cannot be heire, for (as hath beene said before) qui ex damnato coitu nascuntur inter liberos non computentur. Everie heire is either a male, or female, or an Hemophradite, that is, both male and female. And an Hermophradite (which is also called Androgynus) shall be heire, either as male or female, according to that kinde of the sex which doth prevaile. Hermaphradita, tam masculo, quàm foeminae comparatur secundum praevalescentiam sexus incalescentis. And accordingly it ought to be baptized. See more of this matter, Sect. 35.

(c) A man seised of lands in fee hath issue an Alien that is borne out of the Kings ligeance, he cannot be heire, propter defectum subjectionis, albeit hee be borne within lawfull marriage. If made Denizen by the Kings Letters Patents, yet cannot hee inherit to his father or any other. But otherwise it is if hee be naturalized by Act of Parliament, for then hee is not accousted in Law Alienigena, but Indigena. But after one be made Denizen, the issue that hee hath afterwards shall be heire to him, but no issue that he had before. If an Alien commeth into England and hath issue two sonnes, these two sonnes are Indigenae subjects borne, because they are borne within the Realme. And yet if one of them purchase lands in fee, and dieth without issue, his brother shall not be his heire, for there was never any inheritable blood betweene the father and them, and where the sonnes by no possibilitie can be heire to the father, the one of them shall not be heire to the other. See more at large of this matter, Sect. 198.

If a man be attainted of treason, or felony, although he be borne within wedlocke, hee can be heire to no man, nor any man heire to him propter delictum, for that by his attaindor his blood is corrupted.Andthiscorruption of blood is so high, as it cannot absolutely be salved, and restored but by Act of Parliament, for albeit the person attainted obtaine his Charter of pardon, yet that doth not make any to be heire whose blood was corrupted at the time of the attainder, either downeward or upward. (d) As if a man hath issue a sonne before his attainder, and obtaineth his pardon, and after the pardon hath issue another sonne, at the time of the attainder, the blood of the eldest was corrupted, and therefore he cannot be heire. But if he dye living his father, the younger sonne shall be heire, for he was not in esse at the time of the attainder, and the pardon restored the blood as to all issues begottenafterwards. But in that case if the eldest sonne had survived the father, the younger sonne cannot be heire; because he hath an elder brother which by possibilitie might have inherited, but if the elder brother had beene an Alien, the younger sonne should be heire, for that the Alien never had any inheritable blood in him. See more plentifully of this matter, Sect. 646, 647.

If a man hath issue two sonnes, and after is attainted of treason, or felony, and one of the sons purchase lands and dieth without issue, the other brother shall be his heire, for the attainder of the father corrupteth the lineall blood only, and not the collaterall blood betweene the brethren, which was vested in them before the attainder, and each of them by possibilitie might have beene heire to the father, and so hath it beene adjudged, (*) but other wise in the case of the Alienee, as hath beene said. (e) But some have holden that if a man after he be attainted of treason or felony have issue two sonnes; that the one of them cannot be heire to the other, because they could not be heire to the father, for that they never had any inheritable blood in them.

(f) One that is borne deafe and dumbe may be heire to another, albeit it was otherwise holden in ancient time. And so if borne deafe, dumbe, and blinde, for in hoc casu, vitio parcitur naturali, but contract they cannot. Ideots, leapers, mad men, outlawes in debt, trespasses, or the like, persons excommunicated, men attainted in a praemunire, or convicted of heresie, may be heires.

(g) If a man hath a wife, and dieth, and within a verie short time after the wife marrieth againe, and within nine moneths hath a childe, so as it may be the childe of the one or of the other. Some have said, That in this case the childe may chuse his father, quia in hoc casu filiatio non potest probari, and so is the Booke to be intended, for avoyding of which question and other inconveniences, this was the Law before the Conquest, Sit omnis vidua sine marito duodecim mensibus, & si maritauerit perdat dotem.

(h) A man by the Common Law cannot be heire to goods or Chattels, for haeres dicitur ab haereditate. (i) If a man buy divers fishes, as Carps, Breames, Tenches, &c. and put them in his pond, and dyeth, in this case the heire shall have them, and not the Executors, but they shall goe with the inheritance, because they were at libertie and could not be gotten without industrie, as by nets, and other engines, otherwise it is if they were in a trunke or the like. Likewise Deere in a Parke, Coneyes in a Warren, and Doves in a Dove-house, young and old shall goe to the heire. (k) But of ancient time the heire was permitted to have an Action of debt upon a bond made to his Ancestor and his heires, but the Law is not so holden at this day. Vid. Sect. 12.

(l) It is to be noted that one cannot be heire till after the death of his Ancestor, hee is called haeres apparens, heir apparent.

| In our old Bookes and Records there is mention made of another heire, viz. haeres astrarius so called of Astre, that is, an harth of a house, because the Ancester by conveyance hath set his heire apparent, and his family in a house and living in his lifetime, of whom Bracton saith thus, (a)item esto quod haeres sit astrarius, vel quod aliquis antecessor restituat haeredi in vita sua haereditatem, & se dimiserit, videtur quod nullo tempore jacebit haereditas, & ideo quod nec relevari possit, nec debet, nec relevium dari. (b) For the benefit and safetie of right heires contra partus suppositos, the Law hath provided remedy by the Writ De ventre inspiciendo, whereof the rule in the Register is this; Nota si quis habens haereditatem duxerit aliquam in uxorem & postea moriatur ille sine haerede de corpore suo exeunte, per quod haereditas illa fratri ipsius defuncti descendere debeat, & uxor dicit se esse praegnantem de ipso defuncto cum non sit, habeat frater, & haeres breve de ventre inspiciendo. It seemeth by Bracton and Fleta which followed him, that this Writ doth lye, Ubi uxor alicujus in vita viri sui se praegnantem fecit cum non sit, vel post mortem viri sui se praegnantem fecit cum non sit ad exhaeredationem veri haeredis, &c. ad quaerelam veri haeredis per praeceptum domini regis, &c. which is to be understood according to the rule of the Register: when a man having lands in fee simple dieth, and his wife soone after marrieth againe, and faines her selfe with childe by her former husband, in this case though she be married, the Writ De ventre inspiciendo doth lye for the heire. But if a man seised of lands in fee (for example) hath issue a daughter, who is heire apparent, she in the life of her father cannot have this writ for divers causes; first, because she is not heire, but heire apparant, for as hath beene said, nemo est haeres viventis, and this Writ is given to the heire to whom the land is descended. And both Bracton and Fleta saith, that this Writ lieth Ad quaerelam veri haeredis, which cannot be in the life of his Ancestor, and herewith agreeth Britton and the Register. Secondly, the taking of a husband in the case aforesaid being her owne act, cannot barre the heire of his lawfull Action once vested in him. Thirdly, the Law doth not give the heire apparant any Writ, for it is notcertaine whether he shall be heire, solus Deus facit haeredes. Fourthly, the inconvenience were too great if heires apparent in the life of their Ancestor should have such a Writ to examine and trie a mans lawfull wife in such sort as the Writ De ventre inspiciendo doth appoint, and if she should be found to be with child, or suspect, then shee must bee removed to a Castle and there safely kept untill her deliverie, and so any mans wife might be taken from him against the Laws of God and man.

The words of the Writ De ventre inspiciendo make this evident, Rex Vic. salutem, monstravit nobis A. quod cum R. quae fuit uxor Clementis B. praegnans non sit, ipsa falsò dicit se esse praegnantem de eodem Clemente, adexhaeredationem ipsius A. desicut terra quae fuit ejusden C. ad ipsum A. jure haereditariodescendere debeat tanquam ad fratrem & haeredem ipsius se si praedict. R. prolem de eo non habuerit, &c. But this rather belongs to the Treatise of originall Writs, and therefore thus much herein shall suffice.

And it is to be observed that everie word of Littleton is worthy of observation, first (Heires) in the plurall number, for if a man give land to a man & to his heire in the singular number, he hath but an estate for life, for his heire cannot take a fee simple by descent, because he is but one, and therefore in that case his heire shall take nothing. Also observable is this conjunctive (Et), for if a man give lands to one, To have and to hold to him or his heires, hee hath but an estate for life for the uncertaintie. (Se, suis) If a man give land unto two, To have and to hold to them two & haeredibus (c) omitting suis, they have but an estate for life for the uncertaintie, whereof more hereafter in this Section. But it is said, if land be given to one man, & haeredibus, omitting suis, that notwithstanding a fee simple passeth, but it is safe to follow Littleton.

(d) “and his Assignes.”

Assignee commeth of the verbe assigno. And note there bee Assignes in Deed, and Assignes in Law, whereof see more in the Chapter of Warrantie, Sect. 733.

“these words (his Heires) which words onely make an Estate of Inheritance in all Feoffments and Grants.”

(e)Si autem facta esset donatio, ut si dicam, do tibi talem terram, ista donatio non extendit ad haeredes sed ad vitam donatoria, &c. (f ) Here Littleton treateth of purchases by naturall persons, and not of Bodies politique or corporate; (g) for if lands be given to a sole Body politique or corporate, (as to a Bishop, Parson, Vicar, Master of an Hospitall, &c.) there to give him an estate of inheritance in his politique or corporate capacitie, hee must have these words, To have and to hold to him and his successors, for without these words Successors, in these cases there passeth no inheritance, for as the heire doth inherit to the Ancestor, so the Successor doth succeed to the Predecessor, and the Executor to the Testator. (h) But it appeareth here by Littleton, that if a man at this day give lands to IS and his Successors, this createth no fee simple in him, for Littleton speaking of naturall persons saith that these words (his heires) make an estate of inheritance in all Feoffments and Grants, whereby he excludeth these words (his successors.) (i) And yet if it be an ancient grant it must be expounded as the Law was taken at the time of the grant. (k) A Chantrie Priest incorporate tooke a Lease to | him and his successors for a hundred yeares, and after tooke a release from the Leasor to him and his successors, and it was adjudged that by the release he had but an estate for life, for he had the Lease in his naturall capacitie for it could not goe in succession, and (his successors) gave him no estate of inheritance for want of these words (his heires.) (l) If the King by his Letters Patents giveth lands Decano & Capitulo, habendum sibi & haeredibus & successoribus suis, In this case albeit they be persons in their naturall capacitie to them and their heires, yet because the Grant is made to them in their politique capacitie, it shall enure to them and their successors. And so if the King doe grant lands to I. S. Habendum sibi & successoribus sive haeredibus suis, this Grant shall enure to him and his heires.

(m) B. having divers sonnes and daughters, A. giveth lands to B. & Liberis suis, et a lour heires, the father and all his children doe take a fee simple joyntly by force of these words (their heires) but if hee had no childe at the time of the feoffment, the childe borne afterward shall not take.

These words (his heires) doe not onely extend to his immediate heires, but to his heires remote, and most remote, borne and to be borne, (n)Sub quibus vocabulis (haeredibus suis) omnes haeredes propinqui comprehenduntur, & remoti, nati, & nascituri. , And haeredum appellatione veniunt haeredes haeredum in infinitum. And the reason wherefore the Law is so precise to prescribe certaine words to create an estate of inheritance, is for avoyding of uncertaintie, the mother of contention and confusion.

There be many words so appropriated, as that they cannot be legally expressed by any other word, or by any periphrasis, or circumlocution: Some to estates of lands, &c. as here and in (a) other places of our Author. In this place these words tantsolement, not solement alone, but tantsolement all onely, i. solummodo, or duntaxat are to be observed; (b) Some to Tenures; (c) Some to persons; (d) Some to offences; (e) Some to formes of originall Writs either for recoverie of right, or removing, or redresse of wrong, (f ) Some to warrantie of land. These have I touched for examples, I leave others to the studious Reader to observe, and adde, holding this for an undoubted veritie, that there is no knowledge, case, or point in Law, seeme it of never so little account, but will stand our Student in stead at one time or other, and therefore in reading, nothing to be pretermitted.

“make an Estate.”

Status dicitur à stando, because it is fixed and permanent. The Isle of Man, which is no part of the Kingdome, but a distinct Territorie of it selfe, hath beene granted by the great Seale to divers subjects and their heires. (g) It was resolved by the Lord Chancellor, the two chiefe Justices and chiefe Baron, that the same is an estate descendible according to the course of the Common Law, for whatsoever state of inheritance passe under the great Seale of England, it shall be descendible according to the rules, and course of the Common Law of England.

“in all Feoffments and Grants.”

Here hee giveth the feoffment the first place, as the ancient and most necessarie conveyance, both for that it is solemne and publike, and therefore best remembered and proved, (*) and also for that it cleareth all disseisins, abatements, intrussions, and other wrongfull or defensible estates, where the entrie of the Feoffor is lawfull, which neither Fine, Recoverie, nor Bargaine and sale by Deed indented and inrolled doth. And here is implyed a division of Fee, or Inheritance, viz. (h) into corporeall (as Lands and Tenements which lye in Liverie) comprehended in this word Feoffment, and may passe by Liverie by Deed, or without Deed, which of some is called Haereditas corporata, and incorporeall, (which lye in Grant, and cannot passe by Liverie, but by Deed, (as advowsons, Commons, &c. and of some is called Haereditas incorporata) and, by the deliverie of the Deed, the Freehold, and Inheritance of such Inheritance, as doth lye in Grant, doth passe) comprehended in this word Grant. And the Deed of incorporeate inheritances doth equall the Liverie of corporeate. And therefore Littleton saith, in all feoffments and Grants, Hereditas, alia corporalis, alia incorporalis: Corporalis est, quae tangi potest & videri, incorporalis quae tangi non potest, nec videri. ,

Feoffment is derived of the word of Art Feodum,quia est donatio feodi, for the ancient Writers of the Law called a feoffment donatio, of the verbe do or dedi, which is the aptest word of feoffment. And that word Ephron used, when he enfeoffed Abraham, saying, I give thee the field of Machpelah over against Mamre, and the Cave therein I give thee, and all the trees in the field and the borders round about, all which were made sure unto Abraham for a possession, in the presence of many witnesses.

By a feoffment the corporeate fee is conveyed, and it properly betokeneth a conveyance in fee, as our Author himselfe hereafter saith, in his Chapter of Tenant for life. And yet sometime improperly it is called a feoffment when an estate of freehold onely doth passe, Done est nosme generall plus que nest feoffment, car done est generall a touts choses moebles & nient moebles, feoffment est riens forsque del soyle. And note there is a difference inter cartam & factum, for | carta is intended a Charter which doth touch inheritance, and so is not factum unlesse it hath some other addition.

Grant, Concessio, is properly of things incorporeall, which (as hath been said) cannot passe without Deed. And here it is to be observed (that I may speake once for all) that everie period of our Author in all his three Bookes containes matter of excellent learning, necessarily to bee collected by implication, or consequence, for example hee saith here, that these words (his heires) make an estate of inheritance in all feoffments and grants, he expressing feoffments and grants, necessarily implyeth, that this rule extendeth not, first, to Last Wills and Testaments, for thereby, (i) as he himselfe after saith, an estate of inheritance may passe without these words (his heires) (k) As if a man devise 20. acres to another, and that he shall pay to his Executors for the same ten pound, and hereby the Devisee hath a Fee simple by the intent of the Devisor, albeit it be not to the value of the land. (l) So it is if a man devise lands to a man imperpetuum, or to give, and to sell, or in feodo simplici, or to him and to his Assignes for ever. In these cases a Fee simple doth passe by the intent of the Devisor, but if the devise be to a man and his Assignes without saying (for ever) the Devisee hath but an estate for life. (m) If a man devise land to one & sanguino suo, that is a Fee simple, but if it be Semini suo, it is an estate taile.

(n) Secondly, that it extendeth not to a Fine sur conusans de droit come ceo que il ad de son done, by which a fee also may passe without this word (heires) in respect of the height of that fine, and that thereby is implyed that there was a precedent gift in fee.

Thirdly, nor to certain Releases, and that three manner of wayes, (o) first when an estate of inheritance passeth and continueth, as if there be three Coparceners or Joyntenants, and one of them release to the other two, or to one of them generally without this word (heires) by Littletons owne opinion they have a Fee simple as appeareth hereafter. 2. By release (p) when an estate of inheritance passeth and continueth not, but is extinguished, as where the Lord releases to the Tenant, or the Grantee of a rent, &c. release to the Tenant of the land generally all his right, &c. hereby the Seigniorie, rent, &c. are extinguished for ever, without these words (heires.) 3. (q) when a bare right is released, as when the Disseisee release to the Disseisor all his right, he need not (saith our Author in another place) speake of his heires. But of all these, and the like cases, more shall be treated in their proper places. 4. Nor to a Recoverie, A. seised of land suffereth B. to recover the land against him by a common recoverie where the judgement is quod praedictus B. recuperet versus praed’. A. tenementa praedicta cum pertin’, yet B. recovereth a fee simple without these words (heires) for regularly everie Recoveror recovereth a fee simple. 5. Nor to a creation of Nobilitie by Writ, for when a man is called to the Upper House of Parliament by Writ, he is a Baron and hath inheritance therein without the word (heires) yet may the King limit the generall state of inheritance created by the Law and Custome of the Realme to the heires males, or generall, of his body by the Writ, as he did to Bromflete who in 27. H. 6: was called to Parliament by the name of the Lord Vescye, &c. with the limitation in the Writ to him and the heires males of his body, but if he be created by Patent, he must of necessitie have these words (his heires) or the heires males of his body, or the heires of his body, &c. otherwise he hath no inheritance. The first creation of a Baron by patent that I finde was of John Beauchampe of Holte created Baron by patent in 11. R. 2. for Barons before that time were called by Writ. And it is to be observed that of ancient times Earles, &c. were created by girding them with a sword, and nominating him Earle, &c. of such a Countie or place, and this with a calling of him to Parliament by Writ, by that name was a sufficient creation of inheritance.

But out of this rule of our Author, the Law doth make divers exceptions (Et exceptio probat regulam) for sometime by a feoffment a Fee simple shall passe without these words (his heires.) For example, first, (r) if the father enfeoffe the son, To have and to hold to him and to his heires, and the son infeoffeth the father as fully as the father infeoffed him, by this the father hath a Fee simple, quia verba relata hoc maxime operantur per referentiam ut in esse videntur. (s) Secondly, in respect of the consideration, a Fee simple had passed at the Common Law without this word (heires) and at this day an estate of inheritance in taile, as if a man had given land to a man with his Daughter in frank marriage generally, a Fee simple had passed without this word (heires) for there is no consideration so much respected in Law, as the consideration of marriage, in respect of alliance and posteritie. (t) Thirdly, if a Feoffment or Grant bee made by Deed to a Mayor and Communaltie or any other Corporation aggregate of many persons capable, they have a Fee simple without the word (Successors) because in judgement of the Law they never dye. (u) Fourthly, in case of a sole Corporation a Fee simple shall sometime passe without this word (Successors) as if a feoffment in fee be made of land to a Bishop, To have and to hold to him in libera eleemosyna, a Fee simple doth passe without this word (Successors.) (w) And so if a man give lands to the King by Deed inrolled, a Fee simple doth passe without these words (Successors or Heires) because in judgement of Law the King never dieth. Fifthly, in Grants sometimes an Inheritance shall passe without this word (heires) (x) as if partition be made between Coparceners of lands in Fee simple, and for oweltie of partition the one grant a rent to | the other generally, the Grantee shall have a Fee simple without this word (heires) because the Grantor hath a Fee simple in consideration whereof he granted the rent. Ipsae etenim leges cupiunt ut jure regantur. Sixthly, by the Forrest Law if an Assart bee granted by the King at a Justice seat (which may be done without Charter) to another Habendum & tenendum sibi imperpetuum he hath a Fee simple without this word (heires) (y) for there is a speciall Law of the Forrest, as there is a Law Marshall for wars, and a Marine Law for the Seas. (z) And this rule of our Author extendeth to the passing of estates of inheritances in exchanges, releases, or confirmations that ensure by way of enlargement of estates, warranties, bargaine and sales by Deed indented and inrolled, and the like, in which this word (heires) is also necessarie, for they doe tantamount to a feoffment or grant, or stand upon the same reason that a feoffment or grant doth, for like reason doth make like Law, Ubi eadem ratio, ibi idem jus. And this is to be observed thorowout all these three Bookes, that where other cases fall within the same reason, our Author doth put his case but for example, for so our Author himselfe in another place explaneth it, saying, Et memorandum que en totus auters cases coment que ne sont icy expressment moves & specifies si sont en semblable reason sont en semblable ley. And here our Author is to bee understood to speake of heires when they are inheritable by discent, for they are capable of land also by purchase, and then the course of descent is sometime altered, as if lands of the nature of Gavelkind be given to B and his heires having issue divers sons, all his sons after his desease shall inherit, but if a lease for life be made, the remainder to the right heires of B. and B. dieth, his eldest son onely shall inherit, for hee onely to take by purchase is right heire by the Common Law. So note a diversitie betweene a purchase and a descent, but where the remainder is limited to the right heires of B. it need not to be said, and to their heires, for being plurally limited it includeth a Fee simple, and yet it resteth but in one by purchase.

Out of that which hath beene said it is to be observed, that a man may purchase lands to him and his heires by ten manner of conveyances, (for I speake not here of Estoppels.) First, by Feoffment: Secondly, by Grant (of which two our Author here speaketh.) Thirdly, by Fine, which is a feoffment of record. Fourthly, by common Recoverie, which is a common conveyance, and is in nature of a feoffment of record. Fifthly, by Exchange, which is in nature of a Grant. Sixthly, by Release to a particular Tenant. Seventhly, by Confirmation to a particular Tenant, both which are in nature of Grants. Eighthly, by Grant of a reversion or remainder with attornment of the particular Tenant, of all which our Author speaketh hereafter. Ninethly, by bargaine and sale by Deed indented and inrolled ordained by Statute since Littleton wrote. Tenthly, by Devise by custome of some particular place, as hee sheweth hereafter, and since he wrote; by Will in writing, generally by authoritie of Parliament.

What words are apt words for a Feoffment or Grant, vide Sect. 531. Our Author speaketh of Feoffments and Grants, whereby is implyed lawfull conveyances, and therefore this rule extendeth not to Disseisins, Abatements, or Intrusions into lands or tenements, or to usurpations to Advowsons, &c. in which cases estates in Fee simple are gained by the act and wrong of the Disseisors, Abators, Intruders and Usurpers, and if a disseisin, abatement, or intrusion be made to the use of another, if cey que use agreeth thereunto in pays by this bare agreement he gaineth a Fee simple without any liverie of seissin or other ceremony.

Section 2
Fee Simple

Littleton sheweth here who shall bee heire to lands in Fee simple, for he intendeth not this case of an estate taile, for that he speaketh of an heire of the whole bloud, for that extendeth not to estates in taile as shall bee said hereafter in this Chapter, Sect. 6.

“his next cosen collaterall.”

Neither excludeth hee brethren or sisters because hee hath a speciall case concerning them in this Chapter, Sect. 5. and in his Chapter of Parceners, but this is intended | where a man purchaseth lands and dieth without issue, and having neither brother nor sister, then his next cosin collaterall shall inherit. So as here is implyed a divisson of heires, viz. lineall (who ever shall firstinherit) and collaterall, (who are to inherit for default of lineall.) For in descents it is a maxime in Law quod linea recta semper praefertur transversali. Lineall descent is conveyed downward in a right line, as from the grandfather to the father, from the father to the sonne, &c. Collaterall descent is derived from the side of the lineall, as grandfathers brother, fathers brother, et.Prochein cousin collateral enheritera doth give a certaine direction to the next cosin to the son, and therefore the fathers brother and his posteritie shall inherit before the grandfathers brother and his posteritie. Et sic de caeteris, for propinquior excludit propinquum, & propinquus remotum, & remotus remotiorem.

Upon this word (Prochein) I put this case. One hath issue two sonnes A. and B. and dieth, B. hath two sonnes C. and D. and dieth. C. the eldest son hath issue and dieth: A. purchaseth lands in Fee simple and dieth without issue, D. is his next cosin, and yet shall not inherit, but the issue of C. for hee that is inheritable is accounted in Law next of bloud. And therefore here is understood a division of next, viz. next, jure repraesentationis, and next, jure propinquitatis that is, by right of representation and by right of propinquitie. And Littleton meaneth of the right of representation, for legally in course of descents he is next of bloud inheritable. And the issue of C. doth represent the person of C. and if C. had lived he had beene legally next of bloud. And whensoever the father if he had lived, should have inherited, his lineall heire by right of representation shall inherit before any other, though another be jure propinquitatis neerer of bloud. And therefore Littleton intendeth his case of next cosin of bloud immediately inheritable. So as this produceth another division of next bloud, viz. immediately inheritable, as the issue of C. and mediately inheritable as D. if the issue of C. die without issue, for the issue of C. and all that live be they never so remote shall inherit before D. or his line, and therefore Littleton saith well de quel pluis long degree que il soit. And here ariseth a diversitie in Law betweene next of bloud inheritable by descent and next of bloud capable by purchase. And therefore in the case before mentioned if a Lease for life were made to A. the remainder to his next of bloud in fee. In this case as hath beene said D. shall take the remainder, because he is next of bloud and capable by purchase, though he be not legally next to take as heire by descent.

Section 3
Fee Simple

“yet the father is neerer of bloud,”

And therefore some doe hold upon these words of Littleton that if a Lease for life were made to the sonne the remainder to his next of bloud, that the father should take the remainder by purchase, and not the uncle, for that Littleton saith the father is next of bloud, and yet the uncle is heire. As if a man hath issue two sonnes, and the eldest sonne hath issue a sonne and die, a remainder is limited to the next of his bloud, the younger son shall take it, yet the other is his heire.

(p) “it is a maxime in Law, That inheritance may lineally descend, but not ascend.”

Maxime, i.e. a sure foundation or ground of Art, and a | conclusion of reason so called (q)quia maxima est ejus dignitas & certissima authoritas, atque quod maxime omnibus probetur, so sure and uncontrollable as that they ought not to be questioned. (r) And that which our Author here and in other places calleth a Maxime, hereafter he calleth a Principle, and it is all one with a Rule, a common ground, Postulatum or an Axiome, and it were too much curiositie to make nice distinctions betweene them. And it is well said in our Bookes, (s)nest my a disputer lancient principles del ley. I never read any opinion in any booke old or new against this Maxime, but onely in lib. rub. where it is said, (t)si quis sine liberis discesserit, pater aut mater ejus in haereditatem succedat, vel frater & soror si pater & mater desint, si nec hos habeat, soror patris vel matris & deinceps qui propinquiores in parentela fuerint haereditario succedant, & dum virilis sexus extiterit, & haereditas abinde sit, foemina non haereditat’. But all our ancient Authors and the constant opinion ever since doe affirme the maxime.

By this maxime in the conclusion of his case, onely lineall ascention in the right line is prohibited, and not in the collaterall, (u)Quaelibet haereditas naturaliter quidem ad haeredes haereditabiliter descendit, nunquam quidem naturaliter ascendit, descendit itaque jus quasi ponderosum quod cadens deorsum recta linea vel transversali, & nunquam reascendit ea via qua descendit post mortem antecessorum, à latere tamen ascendit alicui propter defectum haeredum inferius provenientium; so as the lineall ascent is prohibited by Law, and not the collaterall. And in prohibiting the lineall ascent, the Common Law is assisted with the Law of the twelve tables.

Here our Author for the confirmation of his opinion draweth a reason and a proofe (as you have perceived) from one of the maximes of the Common Law: Now that I may here observe it once for all, his proofes and arguments, in these his three bookes, may be generally divided into two parts, viz. from the Common Law and from Statutes, of both which, and of their severall branches I shall give the studious Reader some few examples, and leave the rest to his diligent observation.

For the Common Law his proofes and arguments are drawen from twentie severall fountaines or places.

(a) First, from the Maximes, Principles, Rules, Intendment and Reason of the Common Law, which indeed is the rule of the Law, as here, and in other places our Author doth use.

(b) Secondly, from the bookes, records, and other authorities of Law cited by him, Ab authoritate, & pronunciatis.

(c) Thirdly, from originall Writs in the Register, à rescriptis valet argumentum.

(d) Fourthly, from the forme of good pleading. (e) Fifthly, from the right entrie of Judgements.

(f) Sixthly, à praecedentibus approbatis & usu, from approved Precedents and Use.

(g) Seventhly, à non usu, from not use.

(h) Eighthly, ab artificialibus argumentis, consequentibus & conclusionibus, artificiall arguments, consequents and conclusions.

Ninthly, (i)à communi opinione jurisprudentium, from the common opinion of the Sages of the Law.

Tenthly, (k)ab inconvenienti, from that which is inconvenient.

Eleventhly, (l)à divisione, from a division, vel ab enumeratione partium, from the enumeration of the parts.

Twelfthly, (m)à majore ad minus, from the greater to the lesser, or (n) from the lesser to the greater, (o)à simili, (p)à pari.

13. (p)Ab impossibili, from that which is impossible.

14. (q)A fine, from the end.

15. Ab utili vel inutili, from that which is profitable or unprofitable.

16. (r)Ex absurdo, for that thereupon shall follow an absurditie, quasi à surdo prolatum, because it is repugnant to understanding and reason.

17. (s)A natura & ordine naturae, from nature or the course of nature.

| 18. (t)Ab ordine religionis, from the order of Religion.

19. (u)A communi praesumptione, from a common presumption.

20. (w)A lectionibus jurisprudentium, from the readings of learned men or Law. From Statutes his arguments and proofes are drawne.

1. (x) From the rehearsall or preamble of the Statute.

2. By the body of the Law diversly interpreted.

Sometime by other parts of the same Statute, which is benedicta expositio, & ex visceribus causae.

(y) Sometime by the reason of the Common Law. But ever the generall words are to bee intended of a lawfull Act, (z) and such interpretation must ever be made of all Statutes, that the innocent or he in whom there is no default may not be damnified.

“in Law,”

There be divers Lawes within the Realme of England. As first (a)Lex Coronae, the Law of the Crowne.

2. (b)Lex & consuetudo Parliamenti. Ista lex est ab omnibus quaerenda, à multis ignorata, à paucis cognita.

3. (c) Lex naturae, the Law of nature.

4. (d)Communis Lex Angliae, the Common Law of England sometime called Lex terrae, intended by our Author in this and the like places.

5. (e) Statute Law, Lawes established by authoritie of Parliament.

6. (f)Consuetudines, Customes reasonable.

7. (g)Jus belli, The Law of Armes, Warre, and Chivalrie, in republica maximè conservanda sunt jura belli.

8. (h) Ecclesiasticall or Canon Law in Courts in certaine Cases.

9. (i) Civill Law in certaine cases not onely in Courts Ecclesiasticall, but in the Courts of the Constable and Marshall, and of the Admiraltie, in which Court of the Admiraltie is observed, la ley Olyron, anno 5. of Richard the first, so called, because it was published in the Isle of Olyron.

10. (k)Lex forestae, forest Law.

11. (l) The Law of Marque or reprisail.

12. (m)Lex mercatoria, Merchant, &c.

13. (n) The Lawes and Customes of the Isles of Jersey, Gernesey, and Man.

14. (o) The Law and priviledge of the Stannaries.

15. (p) The Lawes of the East, West, and middle Marches, which are now abrogated.

But here of this is little taste for our Student, that he may be capable of that which hee shall read concerning these and others in Records, and in our Bookes, and orderly observe them, shall suffice.

“and his uncle enter into the Land.”

For if the Uncle in this case doth not enter into the land, then cannot the father inherit the land, for there is another maxime in Law herein implyed. (q) That a man that claimeth as heire in fee simple to any man by descent must make himselfe heire to him that was last seized of the actuall freehold and inheritance. And if the Uncle in this case doth not enter, then had he but a freehold in Law, and no actuall freehold, but the last that was seized of the actuall freehold was the sonne to whom the father cannot make himselfe heire, and therefore Littleton saith, Et son uncle enter en la terre (sicome denoit per la ley) to make the father to inherit, as heire to the uncle. (r) Note, that true it is that the uncle in this case is heire, but not absolutely heire, for if after the descent to him the father hath issue a sonne or daughter, that issue shall enter upon the Uncle. (f ) And so it is if a man hath issue a sonne and daughter, the sonne purchaseth land in fee and dieth without issue, the daughter shall inherit the land, but if the father hath afterward issue a sonne, this sonne shall enter into the Land as heire to his brother, and if he hath issue a daughter and no sonne, she shall be coparcener with her sister.

“as by Law hee ought.”

These words as a key doe open the secrets of the Law, for hereupon it is concluded, that where the Uncle cannot get an actuall possession by entrie or otherwise, there the father in this case cannot inherit. And therefore if an Advowson be granted to the sonne and his heires, and the sonne dye without issue, and this descend to the uncle, and he dye before he doth or can present to the Church, the father shall not inherit, because he should make himselfe heire to the son, which hee cannot doe. And so of a rent and the like. But if the uncle had presented to the Church, or has seisin of the rent, there the father should have inherited. For Littleton putteth his case of an entrie into land but for an example, If the sonne make a Lease for life, and die without issue, and the reversion descend to the uncle, and he die, the reversion shall not descend to the father, because in that case he must make himselfe heire to the sonne. A. infeoffe the sonnes with warrantie to him and his heires, the sonne dies, the uncle enters into the Land and dies, the father if he be impleaded shall not take advantage of this war-|-rantie, for then he must vouch A. as heire to his sonne, which hee cannot doe for albeit the warrantie descended to the uncle, yet the uncle leaveth it as he found it, and then the father by Littletons (devoit) cannot take advantage of it. For Littleton, Sect. 603. saith that warranties shall descend to him that is heire by the Common Law, and Sect. 718. hee saith that everie warrantie which descends, doth descend to him that is heire to him which made the warrantie by the Common Law, which proveth that the father shall not be bound by the warrantie made by the son, for that the father cannot be heire to the son that made the warrantie. And a warrantie shall not goe with tenements, whereunto it is annexed, to any especiall heire but alwaies to the heire at the Common Law. And therefore if the uncle be seised of certaine lands, and is disseised, the son release to the disseisor with warrantie, and die without issue, this shall bind the uncle, but if the uncle die without issue, the father may enter, for the warrantie cannot descend upon him. So if the sonne concludeth himselfe by pleading concerning the tenure and services of certaine lands, this shall bind the uncle, but if the uncle die without issue, this shall not bind the father, because he cannot be heire to the son, and consequently not to the Estoppell in that case: but if it be such an Estoppell as runneth with the land, then it is otherwise.

Section 4
Fee Simple

By this it appeareth that our Author divideth heires into heires of the part of the father; and into heires of the part of the mother. (a) And note it is an old and true Maxime in Law, that none shall inherit any lands as heire, but onely the bloud of the first Purchaser, for (*)refert à quo fiat perquisitum, As for example, Robert Coke taketh the daughter of Knightley to wife and purchaseth lands to him and to his heires, and by Knightley hath issue Edward, none of the bloud of the Knightleys though they be of the bloud of Edward shall inherit, albeit hee had no kindred but them, because they were not of the bloud of the first purchaser, viz. of Robert Coke.

(b) “they of his bloud on the fathers side.”

Here it is to be understood, that the father hath two immediate blouds in him, viz. the bloud of his father, and the bloud of his mother, both these blouds are of the part of the father. (c) And this made ancient Authors say, that if a man be seised of lands in the right of the wife, and is attainted of felony, and after hath issue, this issue should not inherit his mother, for that he could derive no bloud inheritable from the Father. And both these blouds of the part of the Father must bee spent | before the heire of the bloud of the part of the mother shall inherit, wherein ever the line of the male of the part of the father, (that is) the posteritie of such male, bee they male or female, (who ever in descents are preferred) must faile before the line of the mother shall inherit, (d) and the reason of all this is for that the bloud of the part of the father is more worthy, more neere in judgement of Law, than the bloud of the part of the mother.

“before any of the bloud on the mothers side.”

And it is to be observed, that the mother hath also two immediate blouds in her, (viz.) her fathers bloud, and her mothers bloud. Now to illustrate all this by example. Robert Fairefield Sonne of John Fairefield and Jane Sandie, take to wife Anne Boyes Daughter of John Boyes and Jane Bewpree, and hath Issue William Fairefield who purchaseth lands in fee. Here William Fairefield hath foure immediate blouds in him, two of the part of his father, viz. the bloud of the Fairefields, and the bloud of the Sandies, and two of the part of his mother; viz. the bloud of the Boyses, and the bloud of the Bewprees, and so in both cases upward in infinitum.

Now admit that William Fairefield die without issue, first the bloud of the part of his father, viz. of the Fairefields, and for want thereof the bloud of the Sandies (for both these are of the part of the father) if both these faile, then the heires of the part of the mother of William Fairefield shall inherit, viz. first the bloud of the Boyses, and for default thereof the bloud of the Bewprees.

It is necessarie to be knowne in what cases the Heire of the part of mother shall inherit, and where not. If a man be seised of lands as Heire of the part of his mother, and maketh a feoffment in fee, and taketh backe an estate to him and to his heires, this is a new purchase, and if hee dieth without issue, the heires of the part of the father shall first inherit. If a man so seised maketh a feoffment in fee upon condition, and die, the heire of the part of the father which is the heire at the Common Law shall enter for the condition broken, but the heire of part of the mother shall enter upon him, and enjoy the land. (m) A man so seised maketh a feoffment in fee reserving a rent to him and to his heires, this rent shall goe to the heires of the part of the father; but (n) if he had made a gift in taile, or a lease for life reserving a rent, the heire of the part of the mother shall have the reversion, and the rent also, as incident thereunto, shall passe with it; but the heire of the part of the mother shall not take advantage of a condition annexed to the same, because it is not incident to the reversion, nor can passe therewith. (o) If a man had been seised of a mannor as heire on the part of his mother, and before the Statute of Quia emptores terrarum, had made a feoffment in fee of parcell to hold of him by rent and service, albeit they be newly created, yet for that they are parcell of the mannor, they shall with the rest of the mannor descend to the heire of the part of the mother, quia multa transeunt cum universitate quae per se non transeunt. If a man hath a rent secke of the part of his mother, and the tenant of the land | granteth a distresse to him and his heires, and the Grantee dieth, the distresse shall goe with the rent to the heire of the part of the mother as incident or appurtenant to the rent, for now is the rent secke become a Rent charge.

(p) A man so seised as heire on the part of his mother maketh a Feoffment in Fee to the use of him and his heires, the use being a thing in trust and confidence shall insue the nature of the land, and shall descend to the heire on the part of the mother. (q) A man hath Seigniorie as heire of the part of his mother, and the Tenancie doth escheat, it shall goe to the heire of the part of the mother. If the heire of the part of the mother of land whereunto a Warrantie is annexed is impleaded and Vouche, and judgement is given against him, and for him to recover in value, and dieth before execution (r) the heire of the part of the mother shall sue execution to have in value against the Vouchee, for the effect ought to pursue the cause, and the recompence shall ensue the losse.

If a man giveth lands to a man, to have and to hold to him and his heires on the part of his mother, yet the heires of the part of the father shall inherit, for no man can institute a new kinde of inheritance not allowed by the Law, and the words (of the part of his mother) are void, as in the case that Littleton putteth this Chapter. If a man giveth lands to a man to him and his heires males, the Law rejecteth this word males, because there is no such kinde of inheritance, whereof you shall read more in his proper place.

If a man hath issue a sonne, and dieth, and the wife dieth also, lands are letten for life, the remainder to the heires of the wife, the sonne dieth without issue, the heires of the part of the father shall inherit, & not the heires of the part of the mother, because it vested in the son as a Purchaser. And the rule of Littleton holdeth as well in other kinde of Inheritances, as in Lands and Tenements. (f ) And therefore if there be Lord, feme mesne, and Tenant, and the Mesne binde her selfe and her heires by her Deed to the acquitall of the Tenant, the Mesne take husband, the Tenant by his Deed granteth to the husband and his heires, that hee or his heires shall not bee bound to acquitall, the husband & wife have issue, and die, this issue, being bound as heire to his mother, shall not take benefit of the said grant of discharge, for that extends to the heires of the part of the father, and not to the heires of the part of the mother, and therefore the heire of the part of the mother was bound to the Acquitall. And thus much for the better understanding of Littleton’s Cases concerning the heire of the part of the mother shall suffice.

“But if a man marrieth an inheretrix.”

Here there is another maxime, (t) That whensoever Lands doe descend from the part of the mother, the heires of the part of the father shall never inherit. And likewise when Lands descend from the part of the father, the heires of the part of the mother shall never inherit. Et sic paterna paternis, et è converso, materna maternis. For more manifestation hereof, and of that which hereafter shall be said touching Descents, see a Table in the end of this Chapter.

“shall have the land by Escheat”

(u) Escheat, Eschaeta is a word of art, and derived from the French word Eschear (id est) cadere, excidere or accidere, and signifieth properly when by accident the Lands fall to the Lord of whom they are holden, in which Case wee say the Fee is escheated. And therefore, of sonne, Escheats are called excadentiae, or teriae excadentiales (w)Dominus vero capitalis loco haeredis habetur quoties per defectum vel delictum extinguitur sanguis sui tenentis, loco haeredis & haberi poterit, nisi per modum donationis sit reversio cujusque tenementi. And Ockam (who wrote in the reigne of Henry the second) treating of Tenures of the King, saith, Porro eschaetae vulgo dicuntur, quae decedentibus hiis quae de Rege tenent, &c. cum non existit ratione sanguinis haeres ad fiscum relabuntur. (x) So as an Escheat doth happen two manner of wayes, aut per defectum sanguinis, i.e for default of heire, aut per delictum tenentis, i.e. for felony, and that is by judgement three manner of wayes, aut quia suspensus per collum, aut quia abjuravit regnum, aut quia utlegatus est. And therefore, they which are hanged by Martiall Law, in furore belli forfeit no Lands: and so in like Cases Escheats by the Civilians are called Caduca.

(y) The father is seised of Lands in fee holden of I.S. the son is attainted of high treason, the father dieth, the Land shall escheat to I.S. propter defectum sanguinis, for that the father dieth without heire. And the King cannot have the Land because the sonne never had any thing to forfeit. But the King shall have the Escheat of all the Lands whereof the person attainted of high treason was seised, of whomsoever they were holden.

(z) In an Appeale of Death or other felony, &c. processe is awarded against the Defendant and hanging the processe the Defendant conveyeth away the land, and after is outlawed, the conveyance is good and shall defeat the Lord of his Escheat, but if a man be indited of felony, and hanging the processe against him, hee conveyeth away the Land, and after is outlawed, the Conveyance shall not in that case prevent the Lord of his Escheat. And the reason of this diversitie is manifest: For in the case of the Appeale, the Writ containeth no time when | the felony was done, and therefore the Escheat can relate but to the Dutlawrie pronounced. But the inditement containeth the time when the felony was committed, and therefore the Escheat upon the Outlawrie shall relate to that time. Which cases I have added, to the end the Student may conceive, that the observation of writs, Inditements, Processe, Judgements, and other Entries, doth conduce much to the understanding of the right reason of the Law.

Of this word (Eschaeta) here used by our Author, commeth (a)Eschaetor, an ancient Officer so called, because his office is properly to looke to Escheats, Wardships, and other casualties belonging to the Crowne. In ancient time there were but two Escheators in England, the one on this side of Trent, and the other beyond Trent, at which time they had Subescheators. But in the reigne of Edward the second, the Offices were divided and severall Escheators made in everie Countie for life, &c. and so continued untill the reigne of Edward the third. And afterwards by the statute of 14 Edw. 3. it to enacted by authoritie of Parliament, that there should be as many Escheators assigned, as when king Edward the third came to the Crowne, and that was one in every Countie, and that no Escheator should tarrie in his office above a yeere, and by another Statute to be in office but once in three yeeres, the Lord Treasurer nameth him.

And hereof also commeth Eschaetria, which signifieth the Escheatership, or the office of the Escheater. But now let us heare what our Author will further say unto us.

“And so see the diversitie.”

This kinde of speech is often used by our Author, and doth ever import matter of excellent observation, which you may finde in the Sections noted in the margent.

And it is to be well observed, that our Author saith, Sil nad ascun heire, &c. la terre eschaetera. In which words is implyed a diversitie (as to the Escheat) between Fee simple absolute, which a naturall body hath, and Feesimple absolute which a body politique or incorporate hath. (b) For if land holden of I. S. be given to an Abbot and his Successors: In this case if the Abbot and all the Convent die, so that the body politique is dissolved, the Donor shall have againe this land, and not the Lord by Escheat. And so if land be given in Fee simple to a Deane and Chapter, or to a Major and Commonaltie, and to their Successors, and after such body politique or incorporate is dissolved, the Donor shall have againe the land, and not the Lord by Escheat. And the reason and cause of this diversitie is, for that in the case of a body politique or incorporate the Fee simple is vested in their politique or incorporate capacitie created by the policie of man, and therefore the Law doth annex a condition in Law to everie such gift and grant; That if such body politique or incorporate be dissolved, that the Donor or Grantor shall re-enter, for that the cause of the gift or grant faileth, but no such condition is annexed to the estate in Fee simple vested in any man in his naturall capacitie, but in case where the Donor or Feoffor reserveth to him a Tenure, and then the Law doth imply a Condition in Law by way of Escheat. Also (as hath been said) no Writ of Escheat lyeth but in the three cases aforesaid, and not where a body politique or incorporate is dissolved.

Section 5
Fee Simple

Now commeth our Author to the descent between brethren, which hee purposely omitted before. Discent, descensus commeth of the Latine word descendo, and, in the legall sense, it signifieth, when lands doe by right of bloud fall unto any after the death of his Ancestors: or a descent is a meanes whereby one doth derive him title to certaine lands, as heire to some of his Ancestors. And of this, and of that which hath beene spoken doth arise another division of estates in fee simple, viz. every man that hath a lawful estate in fee simple, hath it either by descent, or purchase.

| “The eldest is most worthy of bloud.”

It is a maxime in Law that the next of the worthiest bloud shall ever inherit, as the male and all descendant from him before the female, and the female of the part of the father before the male or female of the part of the mother, &c. because the female of the part of the father is of the worthiest bloud. (c) And therefore among the males the eldest brother and his posteritie shall inherit lands in Fee simple, as heire before any younger brother, or any descending from him, because (as Littleton saith) hee is pluis digne de sanke. Quod prius est dignius est, and qui prior est tempore prior est jure. Si quis plures filios habuerit, jus proprietatis primo descendit ad primogenitum, eò quòd inventus est primo in rerum naturâ. In King Alfreds time Knights fees descended to the eldest sonne, for that by division of them between males the defence of the Realme might be weakened, but in those dayes Socage fee was divided betweene the heires males, and there with agreeth Glanvill.Cùm quis haerēditatem habens moriatur, &c. si plures reliquerit filios, tunc distinguitur utrùm ille fuerit miles, sive per feodum militare tenens, aut liber Sockmannus, quia si miles fuerit aut per militiam tenens, tunc secundum jus regni Angliae primogenitus filius patri succedit in toto, &c. si verò fuerit liber Sockmannus, tunc quidem dividetur haereditas inter omnes filios, &c. But hereof more shall be said hereafter in his proper place.

Section 6
Fee Simple

No man can be heire to a Fee simple by the Common Law, (d) but hee that hath sanguinem duplicatum, the whole bloud, that is, both of the father and of the mother, so as the halfe bloud is no bloud inheritable by descent, because that hee that is but of the halfe bloud cannot be a compleat heire, for that hee hath not the whole and compleat bloud, and the Law in descents in Fee simple doth respect that which is compleat and perfect. And this maxime doth not onely hold where lands (whereof Littleton here speaketh) are claimed or demanded as heire, (e) but also in case of appeale of death: for if one brother be slaine, the other brother of the halfe bloud shall never have an appeale (albeit hee shall recover nothing therein either in the realtie or personaltie) because in the eye of the Law hee is not heire to him. Also this rule extends to a warrantie, as our Author himselfe elsewhere holdeth.

Section 7
Fee Simple

This is put for an example to illustrate that which hath | beenesaid, and needeth no explanation. And herewith agreeth Britton.

Section 8
Fee Simple

“seised of lands in Fee simple,”

These words exclude a seisin in Fee taile, albeit he hath a Fee simple expectant. (f ) And therefore if Lands bee given to a man and his wife, and to the heires of their two bodies, the remainder to the heires of the husband, and they have issue a sonne, and the wife dyeth, and hee taketh another wife, and hath issue a sonne, the father dieth, the eldest sonne entreth, and dyeth without issue, the second brother of the halfe bloud shall inherit, because the eldest sonne by his entrie was not actually seised of the fee simple, being expectant but onely of the estate taile. And the rule is, that Possessio fratris de feodo simplici facit sororem esse haeredem, and here the eldest sonne is not possessed of the Fee simple but of the estate taile. And where Littleton speaketh onely of Lands (g) yet there shall bee Possessio fratris of an use, of a seigniorie, a rent, an advowson and of other hereditaments.

“and the eldest son enter,”

(h) These words are materially added when the father dies seised of lands in fee simple, for if the eldest sonne doth not in that case enter, then without question the youngest | son shall be heire, because as it hath beene said before regularly hee must make himselfe heire to him that was last actually seised (or to the purchaser) and that was to the father where the eldest sonne did not enter. And therefore Littleton addeth that the son is heire to the father. (i) But when the eldest sonne in this case doth enter, then cannot the youngest sonne being of the halfe bloud bee heire to the eldest, but the land shalldescend to the sister of the whole bloud. Yet in many cases albeit the sonne doth not enter into lands descended in Fee simple, the sister of the whole bloud shall inherit, & in some cases where the eldest sonne doth enter, yet the younger brother of the halfe bloud shall be heire.

(k) If the father maketh a Lease for yeares, & the Lessee entreth & dieth, the eldest son dieth during the tearme before entrie or receipt of rent, the younger sonne of the halfe bloud shall not inherit but the sister, because the possession of the Lessee for yeares, is the possession of the eldest son, so as he is actually seised of the Fee simple, and consequently the sister of the whole bloud is to bee heire. The same Law it is if the lands be holden by Knights service, and the eldest sonne is within age, and the Gardian entreth into the lands. And so it is if the Gardian in Socage enter.

But in the case aforesaid, if the father make a lease for life or a gift in taile, and dieth, and the eldest sonne dieth in the life of Tenant for life or Tenant in taile, the younger brother of the halfe bloud shall inherit, because the Tenant for life or Tenant in taile is seised of the Freehold, and the eldest sonne had nothing but reversion expectant upon that Freehold or estate taile, and therefore the youngest sonne shall inherit the land as heire to his father, who was last seised of the actuall Freehold. And albeit a rent had beene reserved upon the lease for life, and the eldest sonne had received the rent and died, yet it is holden by some that the younger brother shall inherit because the seisin of the rent is no actuall seisin of the Freehold of the land. But 35. Ass. pl. 2. seemeth to the contrarie, because the rent, issueth out of the land and is in lieu thereof, wherein the onely question is, whether such a seisin of the rent be such an actuall seisin of the land in the eldest sonne as the sister may in a Writ of right make herselfe heire of this land to her brother. But it is cleere that (l) if there be a bastard eigne, and mulier puisne, and the father maketh a Lease for life or a gift in taile be reserving a rent and dye, and the bastard receive the rent and dye, this shall barre the mulier, for the reason of that standeth upon another maxime as shall manifestly appeare in his apt place, Sect. 399.

“seised of lands,”

(m) But in this case if the eldest sonne doth enter and get an actuall possession of the Fee simple, yet if the wife of the father be indowed of the third part and the eldest sonne dyeth, the younger brother shall have the reversion of this third part notwithstanding the elder brothers entrie, because that his actuall seisin which hee got thereby was by the endowment defeated. But if the eldest sonne had made a lease for life, and the Lessee has endowed the wife of the father, and tenant in dower had died, the daughter should have had the reversion, because the reversion was changed and altered by the Lease for life, and the reversion is now expectant on a new estate for life.

“enter”

Hereupon the question groweth, whether if the father be seised of divers severall parcels of lands in one Countie, and after the death of the father the sonne entreth into one parcell generally, and before any actuall entrie into the other dieth, this generall entrie into part shall vest in him an actuall seisin in the whole, so as the sister shall inherit the whole. And this is a Quaere in 21. Hen. 7. 33. a.

| And some doe take a diversitie when an entrie shall vest, or devest an estate, that there must be severall entries into the severall parcels, but where the possession is in no man, but the Freehold in Law is in the heire that entreth, there the generall entrie into one part reduceth all into his actuall possession. And therefore if the Lord entreth into a parcell generally for a Mortmaine, or the Feoffor for a condition broken, or the Disseisee into parcell generally, the entrie shall not vest nor devest in these or like cases, but for that parcell. But when a man dies seised of divers parcels in possession, and the Freehold in Law is by a Law cast upon the heire, and the possession in no man, there the entrie into parcell generally seemeth to vest the actuall possession in him in the whole. But if his entrie in that case be speciall, viz. that he enter onely into that parcell and into no more, there it reduceth that parcell only into actuall possession.

“man is seised of lands”

What then is the Law of a Rent, Advowson, or such things that lye in grant? (g) If a Rent, or an Advowson doe descend to the eldest sonne, and hee dieth before he hath seisin of the Rent, or present to the Church, the Rent or Advowson shall descend to the youngest sonne, for that he must makehimselfe heire to his father, as hath been oftentimes said before. The like Law is of Offices, Courts, Liberties, Franchises, Commons of inheritance, and such like. (h) And this case differeth from the case of the Tenant by the Courtesie, for there if the wife dieth before the rent day, or that the Church become voyd, because there was no laches or default in him, nor possibilitie to get seisin, the Law in respect of the issue begotten by him will give him an estate by the Courtesie of England. But the case of the descent to the youngest sonne standeth upon another reason, viz. to make himselfe heire to him that was last actually seised, as hath beene said.

“in Fee simple”

(i) For halfe bloud is not respected in estates in taile, because that the issues doe claime in by descent, per formam Doni, and the issue in taile is ever of the whole bloud to the Donee.

(k) “Possessio fratris de Feodo simplici facit sororem esse haeredem.”

Hereupon foure things are to bee observed, everie word almost being operative and materiall. First, That the brother must be inactuall possession: For Possessio est quasi pedis positio. Secondly, De feodo simplici, exclude estates in taile. Thirdly, Facit sororem esse haeredem. So as (l)Soror est haeres facta, and therefore some act must be done to make her heire, and the younger sonne is haeres natus, (m) if no act be done to the contrarie. And albeit the words be Facit sororem esse haeredem, yet this doth extend to the issue of the sister, &c. who shall inherit before the younger brother. Fourthly, Of Dignities whereof no other possession can be had but such as descend (as to be a Duke, Marquesse, Earle, Viscount, or Baron) to a man and his heires, there can be no possession of the brother to make the sister to inherit, but the younger brother being heire (as Littleton saith) to the father, shall inherit the Dignitie inherent to the bloud, as heire to him that was first created noble.

And you shall understand that concerning Descents there is a Law, parcell of the Lawes of England, called Jus Coronae, and differeth in many things, from the generall Law concerning the subject. As for example, The King in any suit for any thing that pertaines to the Crowne shall not shew in certaine his cosinage as a subject shall doe, or as be himselfe shall doe for things touching his Dutchie. (n) And in the case of the King, if he hath issue a sonne, and a daughter by one venter, and a sonne by another venter, and purchaseth lands and dieth, and the eldest son enter and dieth without issue, the daughter shall not inherit these lands, not any other Fee simple lands of the Crowne, but the younger brother shall have them. Wherein note that neither possessio fratris doth hold of lands of the possessions of the Crowne, nor halfe bloud is no impediment to the descent of the lands of the Crowne, as it fell out in experience after the decease of King Edward the sixth to the Queene Marie, and from Queene Marie to Queene Elizabeth, both which here were of the halfe bloud, and yet inherited not onely the Lands which King Edward or Queene Marie purchased, but the ancient Lands parcell of the Crowne also.

A man that is King by descent of the part of his mother, purchase lands to him and his heires and dye without issue, this land shall descend to the heire of the part of the mother, but in the case of a subject, the heire of the part of the father shall have them.

So King Henry the eighth purchased lands to him and his heires, and died having issue two daughters, the Lady Mary, and the Lady Elizabeth, after the decease of King Edward, the eldest daughter Queene Mary did inherit only, all his lands in Fee simple. For the eldest daughter, or sister of a King shall inherit all his Fee simple lands. So it is if the King purchaseth Lands of the custome of Gavelkinde, and dye having issue divers sons, the eldest son shall onely inherit these lands. And the reason of all these cases is, for that the qualitie of the person doth in these andmany other like cases alter the descent, so as, all the Lands and possessions whereof the King is seised in jure Coronae, shall secundum jus Coronae, attend upon and follow the Crowne, and therefore to whomsoever the Crowne descend, those Lands and possessions descend also, for the Crowne and the Lands whereof the King is seised in jure Coronae, are concomitantia. If the | right heire of the Crowne be attained of treason, yet shall the Crowne descend to him, and eo instante (without any other reversall) the attainder is utterly avoided, as it fell out in the case of Henry the seventh. (o) And if the King purchase lands to him and his heires, he is seised thereof in jure Coronae, è fortiori, when he purchases land to him his heires and successours.

But hereof this little taste shall suffice.

Section 9
Fee Simple

“And it is to wit”

This kind of speer is used twice in this Chapter, and oftentimes by our Author in all his three Bookes, and ever teacheth us some rule of Law, or generall or sure leading point, as you shall perceive by reading, and observing of the same, which for the ease of the studious Reader I have observed.

“Quam clamat esse jus & haereditatem suam.”

(a) Here our Author declareth the right signification of this word (inheritance.) And true it is, that in the Writ of right Patent, &c. Quando Dominus remittit Curiam suam, The words of the Writ be, Quam clamat esse jus & haereditatem suam. And in the Praecipe in capite, in a Cui in vita, (b) when the Defendant claimeth by purchase, the Writ is Quam clamat esse jus & haereditatem suam. And with Littleton agreeth the Register, fol. 4. & 232. and the Booke in 49 Edw. 3. 22. against sodaine opinions 7. Hen. 4. 5. 10. Hen. 6.9. 39. Hen. 6.38. Pl. Com. Wimbethes case 47. And yet in 7. Hen. 4.5. which is the Booke of the greatest weight, Sir. William Thirning Chiefe Justice of the Common Bench (as it seemeth doubting of it) went into the Chancerie to enquire of the Chancerie men the forme of the Writ in that case, and they said that the forme was both the one way and the other, so as thereby the opinion of Littleton is confirmed, and the Booke in6. Edw.3.fol.30.is notable, for there in an Action of waste the Plaintife supposed, that the Defendant did hold de haereditate sua, and it is ruled, that albeit the Plaintife purchased the reversion, yet the Writ should serve. And there it is said, It hath beene seene, that in a Cui in vita, the Writ was, which the Demandant claimed as her right and inheritance, when it was her purchase. And so this point wherein there might seeme some contrarietie in bookes is manifestly cleared. But in the Statute of West. 2. cap. 5.de haereditate uxorum by construction of the whole Statute is taken onely for the wives inheritance by descent, and not by purchase, as appeareth in 1. Edw. 2. tit. Quare imped. 43. 35. Hen. 6. 54. F. N. B. 34.b.

There be some that have an inheritance (c) and have it neither by descent, nor properly by purchase, but by Creation, as when the King doth create any man a Duke, a Marquesse, Earle, Viscount, or Baron to him and his heires, or to the heires males of his bodie, &c. hee hath an inheritance therein by Creation. A man may have an inheritance in title of Nobilitie and Dignitie three manner of wayes, that is to say, by Creation, by Descent, and by | Prescription. By Creation two manner of ordinarie wayes (for I will not speake of a Creation by a Parliament) by Writ, and by Letters Patents. Creation by Writ is the ancienter way, and here it is to be observed; that a man shall gaine an inheritance by Writ. King Richard the second created John Beauchampe de Holte Baron of Kedermister by his Letters Patents, bearing date the 10. of October, anno regni sui II. before whom there was never any Baron created by Letters Patents, but by Writ. And it is to bee observed, that if hee bee generally called by Writ to the Parliament, he hath a Fee simple in the Barony without any words of inheritance. But if he be created by Letters Patents, the state of inheritance must be limited by apt words, or else the grant is void. If a man be called by Writ to the Parliament, and the Writ is delivered unto him, and he dieth before he commeth and sits in Parliament, whether he was a Baron or no? And it is to be answered that he was no Baron, for the direction and deliverie of the Writ to him maketh not him Noble; for the better understanding whereof it is to be knowne that the words of the Writ in that case are, Rex, &c. E. B. de D. Chivalier salutem. Quia de advisamento & assensu concilii nostri pro quibusdam arduis & urgentibus negotiis statum & defensionem regni nostri Angliae, &c. concernentibus quoddam Parliamentum nostrum apud Civitatem Westm. à 21. Octob. proxim. futuro teneri ordinavimus, & ibid. vobiscum & cum Praelatis, Magnatibus & Proceribus dicti regni nostri colloquium habere & tractatum, vobis in fide & ligeancia quibus nobis tenemini firmiter injungendo mandamus, quod consideratis dictorum negotiorum arduitate, & periculis imminentibus cessante excusatione quacunque, dictis die & loco personaliter intersitis nobiscum & cum Praelatis, Magnatibus, & Proceribus supradictis, super dictis negotiis tractatur’ vestrumque consilium impensur’, &c. , And this Writ hath no operation or effect untill hee sit in Parliament, and thereby his bloud is ennobled to him and his heires lineall, and thereupon a Baron is called a Peere of Parliament. (d) And if issue be joyned in any action, whether he be a Baron, &c. or no, it shall not be tried by Jurie, but by the Record of Parliament, which could not appeare unlesse hee were of the Parliament. Therefore a Duke, Earle, &c. of another Kingdome, are not to bee sued by those names here, for that they are not Peeres of our Parliament. And albeit the Creation by Writ is the ancienter, yet the Creation by Letters Patents is the surer, for hee may bee sufficiently created by Letters Patents, and made Noble, albeit hee never sit in Parliament.

(e) And it is to be observed that Nobilitie may bee granted for terme of life, by act in Law without any actuall Creation; as if a Duke take a wife, by the intermarriage shee is a Duchesse in Law, and so of a Marquesse, an Earle, and the rest, and in some other case. And there is a diversitie betweene a woman that is Noble by Descent, and a woman that is noble by marriage. (f) For if a woman that is Noble by Descent, marrie one that is under the degree of Nobilitie, yet remaineth Noble still; but if shee gaine it by marriage, shee loseth it, if shee marrie under the degree of Nobilitie, and so is the rule to be understood, Si mulier nobilis nupserit ignobili desinit esse nobilis. (g) But if a Dutchesse by marriage marrieth a Baron of the Realme she remaineth a Dutchesse and loseth not her name, because her husband is Noble, &c de caeteris.

And as an estate for life may be gained by marriage, so may the King create either man or woman Noble for life (h) but not for yeares, because then it might goe to Executors or Administrators. The true division of persons is, that everie man is either of Nobilitie, that is, a Lord of Parliament of the upper House, or under the degree of Nobilitie, amongst the Commons, as Knights, Esquires, Citizens and Burgesses of the lower House of Parliament, commonly called House of Commons, and he that is not of the Nobilitie is by intendment of Law among the Commons.

“as appeares by the Register”

Which booke in the Statute of West. 2. ca. 24. is called Registrumde Cancellaria, because it containeth the formes of Writs at the Common Law that issue out of the Chancerie, tanquam ex officina justiciae. There is a Register of originall Writs, and a Register of judiciall Writs, but when it is spoken generally of the Register it is meant of the Register originall. For the antiquitie and excellencie of this Booke, see in my Preface to the eighth part of my Commentaries. This excellent Booke our Author voucheth divers times in these Bookes, and so doth he divers other Authorities in Law of severall kindes, but with this observation, that he citeth no Authoritie, but when the case is rare or may seeme doubtfull, which appeareth in this, that he putteth no Case in all his three Bookes but hath warrant of good Authoritie in Law. For he knew well the rule, that perspicua vera non sunt probanda. And the like observation its made of Justice Firzherbert in his Booke of Natura Brevium, that he never citeth Authoritie, but when the Case is rare or was doubtfull to him. The Authorities which our Author hath cited in his three Bookes I have collected.

Section 10
Fee Simple

“In his Count Countant.”

In Count Countant. Count, i.e. narratio commeth of the French word Conte which in Latine is Narratio, and is vulgarly called a Declaration. The originall writ is according to his name Breve, briefe & short, but the Count which the Plaintife or Demandant make is more narrative & spacious and certaine both in matter & in circumstance of time and place, to the end the defendant may be compelled to make a more direct answer; so as the writ may be compared to Logicke and the Count to Rhetoricke, and it is that which the Civilians call a Libell. And in that ancient booke of the Mirror of Justices, Lib. 2. cap. des Loiers, Contors are Serjants skilfull in Law, so named of the Count as of the principall part, and in Wil. 2. ca.29. hee is called Serjant Counter.

“in his Plea Pleadant.”

Placitum. Here Littleton teacheth good pleading in this point, of which in his third Booke and Chapter of Confirmation, Sect. 534. hee thus saith, Et saches mon sits que est un des pluis honorables, laudables, & profitable choses en nostreley, de auer le science de bien pleader en actions reals & personels, & pur ceo, ieo toy counsaile especialment de metteraton courage, & cure de ceo apprender. And for this cause this Word Placitum is derived à placendo, quia bene placitare super omnia placet, and it is not as some have said, so called per Antiphrasin, quia non placet.

“seised.”

Seisitus commeth of the French word seisin, i. possessio, saving that in the Common Law seised, or seisin is properly applyed to Freehold, and possessed or possession properly to goods and chattels; although sometime the one is used in stead of the other.

“in his demesne as of fee, In Dominico suo ut in feodo.”

Dominicum is not onely that inheritance, wherein a man hath proper dominion or ownership, as it is distinguished from the lands which another doth hold of him in service, but that which is manually occupied, manured, and possessed, for the necessarie sustentation, maintenance and supportation of the Lord and his houshold, and savoureth de domo, of the house, either ad mensam, for his or their board and sustentation, or manually received (as Rents) for bearing and defraying of necessarie charges publike or private. Of these (saith our Author) he should plead, that he is seised in dominico suo ut de feodo, i.e. de feodo dominicali, seu terrâ dominicali, seu redditu dominicali, which is as much to say as Demeyne or Demaine, of the hand, i. manured by the hand, or received by the hand, and therefore he calleth it manuall occupation, possession or receipt. And in Domesday Demeane land is called Inland, as for example, 4. bovatas terrae de Inland, & 10. bovatas in servitio.

“in such Manuall occupation, &c.”

There is nothing in our Author but is worthy | of observation. Here is the first (&c.) and there is no (&c.) in all his three Bookes (there being as you shall perceive verie many) but it is for two purposes. First it doth imply some other necessarie matter. Secondly, that the Student may together with that which our Author hath said, inquire what authorities there be in Law that treat of that matter, which will worke three notable effects: First, it will make him understand our Author the better: Secondly, it will exceedingly adde to the Readers invention. And lastly, it will fasten the matter more surely in his memorie, for which purpose I have for his case in the beginning set downe in these Institutes, the effect of some of the principall authorities in Law, as I conceive them concerning the same. In this place the (&c.) implyeth possession or receipt, and such other matter as appeareth by my notes in this Section. As for the Authorities of Law, you shall finde the effect of them in this Section, and the like of the rest of the (&c.) which you shall finde in the Sections hereafter mentioned, omitting those (for avoyding of tediousnesse) that either are apparent, or which are explained in some other places, viz. Sect. 20. 48. 102. 108. 120. 125. 136. 137. 146. 149. 154. 164. 166. 167. 168. 177. 179. 183. 184. 194. 200. 202. 210. 211. 217. 220. 226. 233. 240. 242. 244. 245. 248. 262. 264. 269. 270. 271. 279. 320. 322. 323. 325. 326. 327. 329. 330. 335. 336. 341. 347. 348. 349. 350. 352. 355. 356. 359. 364. 365. 374. 375. 377. 381. 384. 389. 393. 395. 397. 399. 401. 402. 410. 417. 428. 433. 447. 449. 464. 470. 471. 477. 483. 489. 500. 501. 522. 532. 552. 553. 556. 558. 562. 578. 591. 592. 593. 594. 603. 613. 624. 625. 630. 632. 634. 637. 638. 648. 659. 660. 661. 669. 687. 693. 700. 718. 745. 748. 749. All which I have observed and quoted here once for all, for ease of the studious Reader.

“ut de feodo,”

Where (ut) is not by way of similitude, but to be understood positively that he is seised in fee. And so it is where one pleads a descent to one ut filio & haeredi, that is, to Io.S. that is sonne and heire, & sic de caeteris, where (ut) denotat ipsam veritatem.

“as of an Advowson”

Of an Advowson (i) wherein a man hath as absolute ownership and propertie as hee hath in Lands or Rents, yet hee shall not plead, that hee is seised in Dominico suo ut feodo, because that inheritance, favouring not de domo, cannot either serve for the sussentation of him and his houshold, nor any thing can bee received for the same for defraying of charges. And therefore hee cannot say, that hee is seised thereof in dominico suo de feodo, whereby it appeareth how the Common Law doth detest Simony, and all corrupt bargaines for presentations to any Benefice, but that (k)idonea persona for the discharge of the Cure should be presented freely without expectation of any thing; nay, so cautious is the Common Law in this point that the Pl. in a Quare impedit should recover no damages for the losse of his presentation untill the Statute of West 2.cap.5. And that is the reason that Gardian in Socage (l) shall not present to an Advowson, because hee can take nothing for it, and by consequent hee cannot account for it. And by the Law hee can meddle with nothing that hee cannot account for it. (m) And in a Writ of right of Advowson, the Patron shall not alleage the explees or taking of the profits in himselfe, but in his Incumbent. And hereby the old Bookes shall bee the better understood, viz. Bracton, lib. 4. tract.3. cap. nu. 5. Est autem dominicum quod quis habet ad mensam, & proprie, sicut sunt Boordlands Anglice. And Fleta lib. 5.ca.5. Est autem dominicum proprie terra ad mensam assignata. Dominicum etiam dicitur ad differentiam ejus quod tenetur in servitio. But of an Advowson and such like hee shall plead, that hee is seised de advocatione ut de feodo & jure.

“Advowson.”

Advocatio, signifying an advowing or taking into protection, is as much as jus patronatus. Sir William Herle in 7. Edw. 3. fol. 4. saith, that it is not long past, that a man did known what an Advowson was, but when a man would grant an Advowson hee granted, Ecclesiam the Church, and thereby the Advowson passed, Vide 45. Edw. 3. 5. But surely the word is of greater antiquitie, for in the Register there is an originall Writ de recto Advocationis, and in the originall Writ of Assise de darreine presentment the Patron is callen Advocatus. (n) Vide Wil. 2. ca.5. And so doth (o) Bracton call him. Advocatus autem dici poterit ille ad quem pertinet jus advocationis alicujus, ut ad Ecclesiam praesentet nomine proprio & non alieno. And (p) Fleta lib. 5. cap.14. agreeth herewith almost totidem verbis: Advocatus est ad quem pertinet jus advocationis alterius Ecclesiae, ut ad Ecclesiam nomine proprio non alieno possit praesentare. And (q) Britton cap. 92. The Patron is called Avow, and the Patrons are called Advocati, for that they bee either Founders, or Maintainers, or Benefactors of the Church either by building, donation, or increasing of it, in which respect they were also called Patroni, and the Advowson jus patronatus.

And it is to be understood that there is a great (r) diversitie inter advocationem medietatis Ecclesiae, &c. & medietatem advocationis Ecclesiae. And of their severall remedies for the same, For the Advowson of the moytie is when there be severall Patrons, and two severall Incumbents in one Church, the one of the one moytie thereof, and the other of the other moytie, and one | part as well of the Church as of the Towne allotted to the one, and the other part thereof to the other, and in that case each Patron if he be disturbed shall have a Quare impedit, quod permittat ipsum praesentare idoneam personam ad medietatem Ecclesiae.

But if there be two Coparceners, and they do agree to present by turne, each of them in truth hath but a moytie of the Church, but for that there is but one Incumbent, if either of them bee disturbed she shall have a Quare impedit, &c. praesentare idoneam personam ad Ecclesiam; for that there is but one Church and one Incumbent, and so of the like. But in (s) the said case of the Coparceners one of them shall have a writ of right of Advowson de medietate advocationis, for in truth she hath but a right to a moytie, but in the other case where there be two Patrons and two Incumbents in one Church, each of them shall have a writ of right of Advowson De advocatione medietatis.

And as there may (as hath beene said) be two severall Parsons in one Church, so there may be two that may make but one parson in a Church. (t) Britton saith, Si ascun Esglise soir done a divers persons per un sole avowe nul ne sepura pleadre per assise de juris utrum ne nul estre implede sauns lautre, &c. And therewith agreeth Fleta. (u)Item licet aliqua Ecclesia divisa fuerit inter duos, sive bona sua habeant communia sive separata, dum tamen unicum habeant advocatum nullus eorum sine alio agere poterit vel implacitari. And Fitzh.saith that two Prebendaries may be one Parson of a Church, who shall joyne in a Juris utrum, so as one Rectorie may be annexed to two severall Prebends, and both of them make but one Parson. But where one is Parson of the one moytie of a Church, and another of the other moytie, as hath been said, there one of them shall have a juris utrum against the other, and in the Writ shall name him persona medietatis Ecclesiae, &c. But for avoyding of suspicion of curiositie if we should proceed any further herein, we will attend what Littleton will further teach as.

Section 11
Fee Simple

This doth extend as well to Fee simples conditionall & qualified as to Fee simples pure and absolute. For our Author, speaketh here of the amplenesse and greatness of the estate, and not of the perdurableness of the same. And he that hath a Fee simple conditionall or qualified, hath as ample and great an estate as hee that hath a Fee simple absolute, so as the diversitie apeareth between the quantitie and qualitie of the estate.

From this state in Fee simple, estates in taile, and all other particular estates are derived, and therefore worthily our Author beginneth his first Book with Tenant in Fee simple, for à principalioribus seu dignioribus est inchoandum.

“cannot have a more large or greater estate.”

For this cause two (a) Fee simples absolute cannot be of one and the selfesame land. If the King make a gift in taile, and the Donee is attainted of treason, in this case the King hath not two simples in him, viz. the ancient reversion in Fee, & A Fee simple determinable upon the dying without issue of Tenant in taile, but both of them are consolidated and conjoyned together, and so it is if such a Tenant in taile both convey the land to the King his heires and successors, the King hath but one estate in Fee simple united in him, and the Kings grant of one estate is good, and so was it adjudged in the Court of Common Pleas. And yet in severall persons by act in Law, a reversion may bee in Fee simple in one, and a Fee simple determinable in another by matter Ex post facto; as if a gift in taile made to a Villeine, and the Lord enter, the Lord hath a Fee simple qualified, and the Donor a reverssion in fee, but if the Lord infeoffe the Donor, now both Fee simples are united, and he hath but one Fee simple in him: but one Fee simple cannot depend upon another by the grant of the partie, as if lands be given to A. so long as B. hath heires of his body the remainder over in fee, the remainder is voyd.

Section 12
Fee Simple

Purchase in Latine is either acquisitum, of the verb acquiro, for so I find it in the originall Register 243. In terris vel tenementis quae | viri & mulieres conjunctim acquisiverunt, &c. Bracton, calleth it perquisitum; and by (b) Glanvill it is called quaestus or perquisitum.

A purchase is alwayes intended by title, and most properly by some kinde of conveyance either for money or some other consideration, or freely of gift: for that is in Law also a purchase. But a descent, because it commeth meerely by act of Law, is not said to be a purchase, and accordingly the makers of the act of Parliament in I. Hen. 5. ca. 5 speaketh of them that have lands or tenements by purchase or descent of inheritance. And so it is of an Escheat or the like, because the inheritance is cast upon, or a title vested in the Lord by act in Law and not by his owne deed or agreement, as our Author here saith, Like Law of the state of Tenant by the Courtesie, Tenant in Dower or the like. But such as attaine to lands by meere injurie and wrong, as bydisseisin, intrusion, abatement, usurpation, &c. cannot be said to come in by purchase, no more than Robbery, Burglary, Pyracy or the like can justly be termed purchase.

If a Nobleman, Knight, Esquire, &c. be burried in a Church, and have his Coat armor and Pennions with his armes, and such other ensignes of honour as belong to his degree or order set up in the Church, or if a grave stone or tombe be laid or made, &c. for a monument of him. (c) In this case albeit the freehold of the Church be in the Parson, and that these be annexed to the freehold, yet cannot the Parson or any take them or deface them, but he is subject to an action to the heire, and his heires in the honour and memorie of whose Ancestor they were set up. And so it was holden, Mic. 10. Ja. And here with agreeth the Lawes (d) in other Countries. Note this kinde of inheritance: and some hold that the wife or Executors that first set them up may have an action in that case against those that deface them in their time. And note that in some places chattels as heire-loomes, (as the best bed, table, pot, pan, cart, and other dead chattels movable) may goe to the heire, and the heire in that case may have an action so; for them at the Common Law, and shall not sue for them in the Ecclesiasticall Court, but the heire-loome is due by Custome and not by the Common Law. And the (e) ancient jewels of the Crowne are heire-loomes and shall descend to the next Successor, and are not devisable by testament.

An heire-loome is called principalium or haereditarium.

Consuetudo hundredi de Stretford in Com’ Oxon’ est quod haeredes ten’torum infra hundredum praedictum existen’ post mortem antecessorum suorum habebunt, &c.principalium, Anglice an heire-loome, viz. De quodam genere catallor’, utensilium, &c. optimum plaustrum, optimam carucam, optimum ciphum, &c.

Our Author hath not spoken of parcencers in this Chapter, for that he hath particular Chapters of the same.

Section 21
Fee Tail, part 2

“And all these Entailes aforesaid be specified in the said Statute of W[estmister].2.”

And so it appeareth by the said statute. Auxy sont divers auters estates en le taile, &c. And herewith agreeth Carbonels Case, 33. Edw. 3. titulo Taile 5.

That the cases of the statute are set downe but for examples of estates tailes generall and speciall, and not to exclude other estates taile 3. Edw. 3. 32. 18. Ass. p. 5. 13. Edw. 3. 46. 1. Mar. Dyer 46. Pl. Com. Seignior Barkleys case, fo. 251. For, Exempla illustrant, non restringunt legem.

| “equitie.”

Is a construction made by the Judges, that cases out of the letter of a statute yet being within the same mischiefe, or cause of the making of the same, shall bee within the same remedie that the Statute provideth; And the reason hereof is for that the Law-maker could not possibly set downe all cases in expresse termes, Aequitas est convenientia rerum quae cuncta coaequiparat, & quae in paribus rationibus paria jura & judicia desiderat. And againe, Aequitas est perfecta quaedam ratio quae jus scriptum interpretatur&emendat, nullascripturâ comprehensa, sed solum in vera ratione consistens. Aequitas est quasi aequalitas.Bonus Judex secundum aequum & bonum judicat, & aequitatem stricto juri praefert. Et jus respicit aequitatem.

“As if lands be given to a man, and to (f) his heires males of his body begotten, in this case his issue male shall inherit, and the Issue female shall never inherit, &c.”

This shall be explaned afterward, Sect. 24.

Section 69
Tenant at Will, part 2

“if a house be letten to one to hold at will,”

The reason of this is evident upon that which hath beene said before.

“house.”

or Mai-|-son, called in Legall Latine Messuagium, containeth (as hath beene said) the Buildings, Curtelage, Orchard, and Garden.

Cottage, Cotagium is a little house without land to it. (a) See 31. Eliz. cap. I and Cottagers in Doomesday Booke are called Cotterelli: and in ancient Records Haga signifieth a house. If a man hath a house neer to my house, and hee suffereth his house to be so ruinous, as it is like to fall upon my house, (b) I may have a writ De domo reparanda, and compell him to repaire his house. But a Praecipe lieth not de domo, but de messuagio.

“by reasonable time”

(c) This reasonable time shall be adjudged by the discretion of the Justices, before whom the cause dependeth; and so it is of reasonable fines, customes, and services, upon the true state of the case depending before them; for reasonableness in these cases belongeth to the knowledge of the Law, and therefore to be decided by the Justices. (d)Quam longum esse debet non definitur in jure, sed pendet ex discretione Justiciariorum: And this being said of time, the like may be said of things incertaine, which ought to be reasonable; for nothing that is contrarie to reason, is consonant to Law.

(e) “As if a man seised of a mese in fee simple, fee taile,”

This is so evident as it needeth no explaination.

Section 80
Tenant by the Verge, part 3

“be many and divers customes,”

This was cautiously set downe, for in respect of the varietie of the customes in most Mannors, it is not possible to set downe any certaintie, only this incident inseparable everie custome must have, viz. that it be consonant to reason, for how long soever it hath continued, if it bee against reason, it is of no force in Law.

“against reason,”

This is not to be understood of everie unlearned mans reason, but of artificiall and legall reason warranted by authoritie of Law: Lex est summa ratio.

Section 96
Escuage, part 2

TR. 7. E. 3. &c. This is the first booke at large that our Author hath cited and it is to be observed that this point is not debated in the said booke, but onely it is there admitted, and yet is good authoritie in law, for our Author saith that it appeareth by this booke, now both by Littleton himselfe, and by the booke of 7. Edw. 3. it is apparant that albeit the tenure is that hee which holdeth by a whole knights fee ought to be with the King, &c. todoeacorporall service, yet he may finde another able man to doe it for him.

By the Statute of Magna Charta, cap. 20. it is provided, that no knight that holdeth by Castle-gard shall bee distreined to give money for the keeping of the Castle, Si ipse eam fucere voluerit in propria persona sua vel per alium probum hominem faciet si ipse eam facere non possit propter rationabilem causam.

Some have thought that hee that holds by Escuage is taken by the equitie of this statute that speaketh onely of Castle-gard, but it is holden that this statute is but an affirmance of the common law. For where that Act saith, (propter rationabilem causam) that reasonable cause is referred to the tenants owne discretion and choyce, and the cause is not materiall or issuable no more than in the case that Littleton here putteth, as hereafter appeareth. And I would advise our Student, that when he shall be enabled and armed to set upon the yeere bookes, or reports of Law, that hee be furnished with all the whole course of the Law, that when hee heareth a case vouched and applyed either in Westminster Hall, (where it is necessarie for him to be a diligent hearer, and observer of cases of Law) or at readings or other exercises of learning, hee may find | out and reade the case so vouched, for that will both fasten it in his memorie, and bee to him as good as an exposition of that case, but that must not hinder his timely and orderly reading, which (all excuses set apart) he must binde himselfe unto, for there bee two things to be avoided by him, as enemies to learning, praepostera lectio, and praepropera praxis. But let us now heare what our author will say:

“And this seemeth to be good reason.”

Here Littleton sheweth three reasons wherefore the Tenant should not be constrained to doe his service in person.

First, It may be the Tenant is sicke, so as he is neither able to goe nor ride. And ever such construction must be made in matters concerning the defence of the Realme or common good, as the same may be effected and performed. To the former disabilitie may be added where a Corporation aggregateofmany, as Deane and Chapter, Mayor and Communaltie, &c. or an Infant being a Purchaser, for these also must finde an able man. But it may be objected that in these particular Cases the Tenant might finde a man, but not when hee himselfe is able without all excuse or impediment. To this it is answered, that Sapiens incipit à fine. And the end of this service is for defence of the Realme, and so it be done by an able and sufficient man, the end is effected.

Secondly, Seeing there are so many just excuses of the Tenant, it were dangerous, and tending to the hindrance of the service, if these excuses should be issuable Multa in jure communi contra rationem disputandi pro communi utilitate introducta sunt.

Lastly, both Littleton and the Booke in the 7. Edw. 3, giveth the Tenant power, without any cause to be shewed to finde an able and sufficient man, and oftentimes Jura publica ex privato promiscue decidi non debent.

“an Abbot or other man of Religion,”

Note that if the King had given Lands to an Abbot and his Successours to hold by Knights Service, this had beene good, and the Abbot should doe homage and finde a man., &c. or pay Escuage, but there was no Wardship or Reliefe or other Incident belonging thereunto. And though the Law saith that this was a Mortmaine, that is, that they held fast their Inheritances, yet if the Abbot with the assent of his Covent, had conveyed the land to a natural man and his heires, now Wardship and Reliefe & other Incidents belonged of common right to the Tenure. And so it is, if the King give Lands to a Mayor and Communaltie, and their Successours to be holden by Knights Service. In this case the Patentees (as hath beene said) shall doe no homage, neither shall there be any Wardship or Reliefe, onely they also shall finde a man, &c. or pay Escuage. But if they convey over the lands to any naturall man and his heires, now Homage, Ward, Marriage, and Reliefe, and other Incidents belong hereunto. And yet this possibilitie was remota potentia, but the reason hereof is, Cessante ratione legis cessat ipsa lex, the reason of the immunitie was in respect of the Body politique, which by the conveyance over ceaseth, which is worthy of observation.

And it is to be observed, that everie Bishop in England hath a Barony, and that Barony is holden of the King in Capite, and yet the King can neither have Wardship or Reliefe.

If two Joyntenants be of Land holden by Knights Service, if one goeth with the King, it sufficeth for both, and both of them cannot be compelled to goe, for by their Tenure one man is onely to goe.

If the Tenant peravaile goeth, it dischargeth the Mesne, for one Tenancie shall pay but one Escuage.

“or other man of Religion,”

Here this word (Religion) is taken largely, viz. not onely for regular, or dead persons, as Abbots, Monks, or the like; But for secular persons also, as Bishops, Parsons, Vicars, and the like, for neither of them are bound to goe in proper person. For nemo militans Deo implicet’ secularibus negotiis.

“languishing,”

So it may be said of an Ideot, a mad man, a leper, a man maimed, blinde, deafe, of decrepit age, or the like.

“or a feme sole,”

Seeing that a feme sole, that cannot performe Knights Service, may serve by deputie, it may bee demanded wherefore an Heire male being within the age of 21 | yeeres may not serve also by Deputie, being not able to serve himselfe.

To this it is answered, that in cases of Minoritie, all is one to both sexes, viz. if the Heire male be at the death of the Ancestor under the age of one and twentie, or the Heire female under the age of 14. they can make no Deputie, but the Lord shall have wardship as an incident to the Tenure: therefore Littleton is here to be understood of a feme sole of full age, and seised of land holden by Knights Service either by purchase or descent.

“conveniently arrayed for the warre.”

So as here are foure things to be observed.

First, (as hath beene said) that he may finde another.

Secondly, that he that is found must be an able person.

Thirdly, he must be armed at the costs and charge of the Tenant, and herein is to be noted, Quod non definitur in jure, with what manner of Armor the Souldier shall be arrayed with, for time, place, and occasion doe alter the manner and kinde of the Armour.

Fourthly, he must have such Armour, as shall be necessarie, andsoappointed in readinesse.

Ferdwit is a Saxon word, & significat quietanciam murdri in exercitu.Worscot is an old English word and signifeth Liberum esse de oneribus armorum.

It is truly said, Quod miles haec tria curare debet, corpus ut validissimum & pernicissimum habeat, arma apta ad subita imperia, caetera Deo, & imperatori curae esse.

Sapiens non semper it uno gradu, sed una via, non se mutat sed aptat. Qui secundos optat eventus, dimicet arte non casu. In omni conflictu non tam prodest multitudo quam virtus. ,

Est optimi ducis scire & vincere, & cedere prudenter tempori. Multum potest in rebus humanis occasio, plurimum in bellicis. ,

Quid tam necessarium est quam tenere semper arma quibus tectus esse possis. , But I will take my leave of these excellent Authors of Art Militarie, and referre them to those that professe the same, and will returne to Littleton.

“muster.”

I finde this word in the Statute of 18. Hen. 6. cap. 19. and the ancient Militarie Order is worthy of observation, for before and long after that Statute, when the King was to be served with Souldiers for his warre, a Knight or Esquire of the Countrey, that had Revenues, Farmers and Tenants would covenant with the King by Indenture inrolled in the Exchequer to serve the King for such a terme for so many men (specially named in a List) in his warre, etc. an excellent institution that they should serve under him, whom they knew and honoured, and with whom they must live at their returne, these men being mustered before the Kings Commissioners, and receiving any part of their wages, and their names so recorded, if they after departed from their Captaine within the Terme, contrarie to the forme of that Statute, itwasfelony. But now that Statute is of no force, because that ancient and excellent forme of militarie course is altogether antiquated: but latter Statutes have provided for that mischiefe.

To muster is to make a shew of Souldiers well armed and trained before the Kings Commissioners in some open field. Ubi se ostendentes praeludunt proelio. In Latine it is censere, seu lustrare exercitum.

By the Law before the Conquest Musters and shewing of Armour should be Uno eodem die per universum regnum, ne aliqui possint arma familiaribus & notis accommodare, nec ipsi illa mutuo accipere, ac justitiam Domini Regis defraudare, & Dominum Regem & Regnum offendere. ,

Concerning the point in Law, demurred in judgement, in 7. Edw. 3, here mentioned by our Author: The Law accounteth the beginning of the fortie dayes after the King entreth into the forraine Nation, for then the warre beginneth, and till he come there, he and his host are said to goe towards the warre, and no militarie service is to be done, till the King and his Host come thither.

“Sir William Herle.”

A famous Lawyer constituted Chiefe Justice of the Common Pleas by Letters Patents dated, 2. die Martii anno 5. E. 3. It appeareth by Littleton, and by the Record that he was a Knight, against the conceit of those, that thinke, that the chiefe Justices of the Court of Common Pleas were not knighted till long after.

Our Student shall observe that the knowledge of the Law is like a deep Well out of which each man draweth according to the strength of his understanding. He that reacheth deepest, he seeth the amiable and admirable secrets of the Law, wherein, I assure you, the Sages of the Law in former times, (whereof Sir William Herle was a principall one) have had the deepest reach. And as the Bucket in the depth is easily drawne to the uppermost part of the water, (for Nullum elementum in suo proprio loco est grave), but take it from the water, it cannot be drawneupbutwith great difficultie.Soalbeitbeginnings of this studie seeme difficult, yet when the Professor of the Law can dive into the depth, it is delightfull, easie, and without any heavie burthen, so long as he keepe himselfe in his owne proper element.

| “Justice.”

In Glanvil hee is called Justicia in ipso abstracto, , as it were Justice it selfe, which appellation remaines still in English and French, to put them in minde of their dutie and functions. But now in legall Latine they are called Justiciarii tanquam justi in concreto, and they are called Justiciarii de Banco, &c, and never Judices de Banco, &c.

“Common Bank (place)”

Banke is a Saxon word, and signifieth a Bench or high seat, or a Tribunall, and is property applyed to the Justices of the Court of Common Pleas, because the Justices of that Court set there as in a certaine place: for all Writs returnable into that Court are Coram Justiciariis nostris apud Westmon or any other certaine place where the Court set, and Legall Records tearme them Justiciarii de Banco. But Writs returnable into the Court called the Kings Bench, are Coram nobis (i. Rege) ubicunque fuerimus in Anglia. And all judiciall Records there are stiled Coram Rege. But for distination sake it is called the Kings Bench, both because the Records of that Court are stiled (as hath beene said) Coram Rege, and because Kings in former times have often personally set there. For the antiquitie of the Court of Common Pleas they erre, that hold that before the Statute of Magna Charta there was no Court of Common Pleas, but had his Creation by, or after that Charter: for the learned know, that in the six and twentieth yeere of Edward the Third, the Abbot of B. in a Writ of Assize, brought before the Justices in Eire claimed Conusance and to have Writs of Assize, and other originall Writs out of the Kings Court by prescription, time out of minde of man, in the raignes of Saint Edmond, and Saint Edward the Confessor before the Conquest. And on the behalfe of the Abbot were shewed divers allowances thereof in former times in the Kings Courts, and that King Henry the first confirmed their usages, and that they should have Conusance of Pleas, so that the Justices of the one Bench, or the other, should not intermeddle. And the Statute of Magna Charta, erecteth no Court, but giveth direction for the proper jurisdiction thereof in there words. Communia Placita non sequantur Curiam nostram, sed teneantur in aliquo certo loco. And properly the Statute saith, non sequantur, for that the Kings Bench did in those dayes follow the King ubicunque fuerit in Anglia, and therefore enacteth that Common Pleas should be holden in a Court resident in acertaine place. In the next Chapter of Magna Charta (made at one and the same time) it is provided:Et ea quae per eosdem (s. justiciarios itinerantes) propter difficultatem aliquorum articulorum terminari non possunt, referantur ad Justiciarios nostros de Banco, & ibi terminentur. And in the next to that, Assisae de ultima praesentatione semper capiantur coram Justiciariis de Banco, & ibi terminentur. Therefore it manifestly appeareth, that at the making of the Statute of Magna Charta, there were Justiciarii de Banco, which all men confesse to be the Court of Common Pleas. And therefore that Court was not created by or after that Statute. For the Authoritie of this Court, it is evident by that which hath beene said, that it hath jurisdiction of all Common Pleas. But let us returne to Littleton.

“demurred in judgment.”

A Demurrer commeth of the Latine word Demorari, to abide, and therefore hee which demurreth in Law, is said, he that abideth in Law, Moratur, or Demoratur in lege. Whensoever the Counsell learned of the partie is of opinion, that the Court or Plea of the adverse partie is insufficient in Law, then he demurreth or abideth in Law, and referreth the same to the judgment of the Court, and therefore well saith Littleton here, demurre en judgement, the words of a Demurrer being Quia narratio, &c. materiaque in eadem contenta minus sufficiens in lege existit, &c, and so of a Plea, Quia Placitum, &c. materiaque in eodem contenta minus sufficiens in lege existit, &c. unde pro defectu sufficientis narrationis sive placiti, &c. petit judicium, &c. But if the Plea be sufficient in Law, and the matter of fact be false, then the adverse partie taketh issue thereupon, and that is tried by a Jurie, for matters in Law are decided by the Judges, and matters in fact by Juries, as elsewhere is said more at large.

Now as there is no issue upon the fact, but when it is joyned betweene the parties, so there is no Demurrer in Law, but when it is joyned, and therefore when a Demurrer is offered by the one partie as is aforesaid, the adverse partie joyneth with him, (for example) saith, Quod Placitum praedictum, &c. materiaque in eodem contenta bonum & sufficiens in lege existunt, &c. & petit judicium, and thereupon the Demurrer is said to be joyned, and then the Case is argued by Councell learned of both sides, and if the points be difficult, then it is argued openly by the Judges of that Court, and if they or the greater part concurre in opinion, accordingly judgment is given, and if the Court be equally divided, or conceive great doubt of the Case, then may they adjourne it into the Exchequer Chamber, where the Case shall be argued by all the Judges of England, where if the Judges shall be equally divided, then (if none of them change their opinion) it shall be decided at the next Parliament by a Prelate, two Earles, and two Barons which shall have power and commission of the King in that behalfe, and by advice of themselves, the Chancellor, Treasurer, the Justices of | the one Bench and the other, and other of the Kings Councell, as many and such as shall seeme convenient, shall make a good judgment, &c. And if the difficulty be so great as they cannot determine it, then it shall be determined by the Lords in the upper house of Parliament. See the statute, for it extends not onely to the case abovesaid, but also where judgements are delayed in the Chancery, Kings bench, Common bench, and the Exchequer, the Justices assigned, and other Justices of Oyer and Terminer, sometime by dificulty, sometime by divers opinions of Justices, and sometime for other causes. (a) Before which Statute, if judgements were not given by reason of difficulty, the doubt was decided at the next Parliament, (which then was to be holden once every yeere at the least)(b)Siautemtalianunquam prius evenerint, & obscurum & difficile sit eorum judicium, tunc ponatur judicium in respectum usque ad magnam curiam, ut ibi per concilium curiae terminentur. But hereof thus much shall suffice. (r) He that demurreth in Law confesseth all such matters of fact as are well and sufficiently pleaded. If there be a demurrer for part and an issue for part, the more orderly course is to give judgement upon the demurrer first, but yet it is in the discretion of the Court to try the issue first if they will. After demurrer joyned in any Court of Record, the Judges shall give judgement according as the very right of the cause and matter in Law shall appeare, without regarding any want of forme in any Writ, Returne, Plaint, Declaration, or other pleading Proces, or course of proceeding, except those only which the party demurring shall specially and particularly set downe and expresse in his demurrer. (a) Now what is substance and what is forme you shall reade in my Reports.

And in some cases a man shall alleage special matter, and conclude with a Demurrer, (b) as in an action of trespasse brought by I.S. for the taking of his horse, the defendant pleads that he himselfe was possessed of the horse until he was by one I. S. dispossessed, who gave him to the plaintife, &c. the plaintife saith that I. S. named in the barre, and I. S. the plaintife were all one person, and not divers; and to the plea pleaded by the defendant in the manner, he demurred in Law and the Court did hold the plea and demurred good, for without the matter alleaged he could not demurre. Now as there may be a demurrer upon counts and pleas, so there may be of Aid prier, Voucher, Receipt, waging of Law, and the like. (c) By that which hath beene said it appeareth, that there is a general demurrer, that is, shewing no cause, and a speciall demurrer which sheweth the cause of his demurrer. Also by that which hath beene said, there is a demurrer upon pleading, &c. and there is also a demurrer upon evidence. (d) As if the plaintife in evidence shew any matter of Record, or Deeds, or Writings, or any sentence in the Ecclesiasticall Court, or other matter of evidence by testimony of witnesses, or otherwise, whereupon doubt in Law ariseth, and the defendant offer to demurre in Law thereupon, the plaintife cannot refuse to joyne in demurrer no more than in a demurrer upon a count, replication, &c. and so E converso, may the plaintiff demurre in Law upon the evidence of the defendant.

But if evidence for the King in an Information or any other suit be given, and the Defendant offer to demurre in Law upon the Evidence, the Kings counsell shall not be inforced to joyne in Demurrer: but in that case, the Court may direct the Jury to finde the speciall matter.

“in judgment.”

For the signification of this word, Vide Sect. 366.

Section 108
Knight’s Service, part 6

“the Statute of Magna Charta,”

Though it be in forme of a | Charter, yet being granted by assent and authoritie of Parliament, Littleton here saith it is a Statute.

This Parliamentarie Charter hath divers appellations in law. Here it is called Magna Charta, not for the length or largenesse of it (for it is but short in respect of the Charters granted of private things to private persons now adayes being (Elephantinae Chartae) but it is called the great Charter in respect of the great weightinesse and weightie greatnesse of the matter contained in it in few words, being the fountaine of all the fundamentall lawes of the Realme, and therefore it may truly be said of it, that it is magnum in parvo. It is in our Bookes called Charta libertatum,et Communis libertas Angliae, or Libertates Angliae. Charta de liberratibus, Magna Charta, &c. And well may the Lawes of England be called Liberrates, quia liberos faciunt.Magna fuit quondam magnae reverentia Chartae.

This Statute of Magna Charta, is but a confirmation or restitution of the Common Law, as in the Statute called Confirmatio chartarum,Anno 25. Edw. 1. it appeareth by the opinion of all the Justices; and in 5. Hen. 3. tit. Mord. 53. Magna Charta is there vouched, for there it appeareth, that King John had granted the like Charter of renovation of the ancient Lawes

This Statute of Magna Charta hath beene confirmed above thirty times and commanded to bee put in execution, By the Statute of 25. Edw. 1. c. 2 judgements given against any points of the Charters of Magna Charta or Charta de Forests are adjudged void. And by the Statute of 42. Edw. 3. cap. 3. If any Statute bee made against either of these Charters it shall be voyd.

“considering the Statute of Magna Charta, Upon which, this Statute of Merton upon this point, is founded. Quod haeredes maritentur absque disparagatione,” “founded,”

So as Magna Charta is the foundation of other Acts of Parliament. This Act extendeth as well to females as to males.

“no action can be brought upon this Statute, insomuch as it was never seene or heard . . . &c. And if any action might have been brought for this matter, it shall bee intended that at some time it would have been put in ure.”

Hereby it appeareth how safe it is to be guided by judiciall presidents the rule being good,Periculosum existimo quod benorum virorum non comprobatur exemplo. And as usage is a good Interpreter of Lawes, so non usage where there is no example is a great intendment, that the Law will not beare it; for saith Littleton, If any Action might have beene grounded upon such matter, it shall be intended that sometime it should have beene put in ure. Not that an Act of Parliament by non User can be antiquated or lose his force, but that it may be expounded or declared how the Act is to be understood.

“Si parentes conquerantur,”

Of this sufficient hath beene said before.

“if the Cousins”

Here Littleton expoundeth Parents to be his Cousins, under which name of Cousins Littleton includeth Uncles and other Cousins, who when the Father is dead are in loco parentum.

“have cause to make lamentation,”

Note if they have cause to make, lamentation on, it sufficeth, though they complaine.

“for the shame done to their Cousin.”

For when their Cousin is disparaged in his marriage, it is not onely a shame and infamie to the heire, but in him to all his bloud and kindred.

“then may the next Cousin to whom the inheritance cannot descend, enter and ouste the Gardein in Chivalrie.”

This is worthy the observation, for the words of the Statute are generall, Secundum dispositionem parentum, and the construction thereof shall be according to the reason of the Common Law, for the next Cousin, to whom the inheritance cannot descend, shall enter and ouste the Gardian, and shall be in place of a Gardian, as it is in case of a Gardian in socage.

“And if he will not, another cousin of the Infant may doe this.”

Still pursuing the reason of the Common Law in case of Gardian in Socage.

“and take the issues & profits to the use of the Infant, &c.”

This is so evident as it needeth no explaination.

“or otherwise the Infant within age may enter himselfe & ouste the Gardein.”

If none of the Cousins aforesaid will enter, then the heire himself may enter. In all which the reason of the Common Law is pursued. But what if the heire be disparaged, and the next of kin doth enter, and when the heire commeth to 14 hee agreeth to the marriage; yet shall not this give any advantage to the Lord, for that he had lost the Wardship before.

Section 138
Frankalmoin, part 5

“which would be inconvenient.”

An argument drawne from an inconvenience, is forcible in Law, as hath been obser-|-ved before, and shall be often hereafter. Nihil quod est inconveniens, est licitum. , And the law that is the perfection of reason, cannot suffer any thing that is inconvenient.

It is better, saith the laws, to suffer a mischiefe (that is pecultar to one) than an inconventence that may prejudice many: See more of this after in this Chapter.

Note, the reason of this diversity, betweene Frankalmoigne and Frankmarriage, standeth upon a maine maxime of Law, that there is no land, that is not holden by some service spirituall or temporall, and therefore the donee in Frankmarriage shall doe realty, for otherwise he should doe to his Lord no service at all, and yet it is Frankmarriage, because the Law createth the service of Fealty for necessity of reason, and avoiding of an inconvenience. But tenant in Frankalmoigne both spirituall and divine service, which is within the said Maxime and therefore the Law will not cohort him to doe any temporall service. See the next session.

“and against reason,”

And this is another strong argument in Law, Nihil quod est contra rationem est licitum. For reason is the life of the Law, nay the common Law it selfe is nothing else but reason, which is to be understood of an artificiall perfection of reason, gotten by long study, observation, and experience, and not of every mans naturall reason, for, Nemo nascitur artifex. This legall reason, est summa ratio. And therefore if all the reason that is dispersed into so many severall heads were united into one, yet could he not make such a Law as the Law of England is, because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience growne to such a perfection, for the government of this Realme, as the old rule may be justly verified of it, Neminem oportet esse sapientiorem legibus: No man (out of his owne private reason) ought to be wiser than the Law, which is the perfection of reason.

Section 170
Tenure in Burgage, part 9

“prescription,”

Prescription is a title taking his substance of use and time allowed by the Law; Prescriptio est titulus ex usu & tempore substantiam | capiens ab authoritate Legis. In the Common Law a prescription which is personall is for the most part applied to persons, being made in the name of a certaine person and of his Ancestors, or those whose estate he hath, or in bodies politique or corporate, & their Predecessors, for as a naturall body is said to have Ancestors, so a body politique or corporate is said to have Predecessors. And a custome which is locall is alleaged in no person, but laid within some Mannor or other place. As taking one example for many, J. S. seised of the mannor of D. in fee prescribeth thus: That J. S. his Ancestors, and all those whose estate he hath in the said Mannor, have time out of minde of man had and used to have Common of pasture, &c. in such a place, &c. being the land of some other, &c. as pertaining to the said Mannor. This properly we call a prescription. A custome is in this manner: A Coppyholder of the Mannor of D. doth plead, that within the same Mannor, there is and hath been such a custome time out of mind of man used, that all the Coppyholders of the said Mannor have had and used to have Common of pasture, &c. in such a wast of the Lord, parcell of the said Mannor, &c. where the person neither doth or canprescribe, but alleageth the custome within the Mannor. But both to customes and Prescriptions, these two things are incident inseparable, viz. Possession, or usage; and Time. Possession must have three qualities, it must be long, continuall, and peaceable, Longa, continua, & pacifica: For it is said,Transferuntur dominia sine titulo & traditione, per usucaptionem s. per longam, continuam, & pacificam possessionem. Longa, i.e. per spatium temporis per legem definitum, of which hereafter shall bee spoken, Continua dico ita quod non sit legitime interrupta. | Pacificam dico, quia si contentiosa fuerit, idem erit quod prius, si contentio fuerit justa. Ut si verus Dominus statim cum intrusor vel disseisor ingressus fuerit seisinam, nitatur tales viribus repellere, & expellere, licet id quod inceperit perducere non possit ad effectum, dum tamen cum defecerit diligens sit ad impetrandum & prosequendum. Longus usus nec per vim, nec clam, nec precario, &c. ,

If a man prescribeth to have a rent, and like-wise to take a Distresse for the same, it cannot be avoided by pleading, that the rent hath beene alwayes paid by cohersion, albeit it began by wrong.

“a title of prescription.”

Seeing that prescription maketh a title, it is to be seene, first to what things a man may make a title by prescription without charter. And secondly, how it may be lost by interruption.

For the first, as to such franchises and Liberties as cannot bee seised or forfeited, before the cause of forfeiture appeare of Record, no man can make a title by prescription because that prescription being but an usage in pais, it cannot (*) extend to such things as cannot bee seised nor had without matter of Record: as to the goods and chattels of Traitors, Felons, Felons of themselves, Fugitives, of those that be put in exigent, Deodands, Conusance of Pleas, to make a Corporation, to have a Sanctuarie, to make a Coro-|-ner, &c. to make Conservators of the peace, &c.

(c) But to Treasure Trove, Waifes, Estraies, Wrecke of sea, to hold Pleas, Courts of Leets, Hundreds, &c. Infange thiefe, Outfange thiefe, to have a Parke, Warren, Royall fishes, as Whales, Sturgions, &c. Faires, Markets, Franke foldage, the keeping of a Goale, Toll, a Corporation by prescription, and the like, a man may make a Title by usage and prescription only without any matter of Record, (*) Vide Sect. 310. where a man shall make a Title to lands by prescription.

But is to be observed (f ) that although a man cannot as is aforesaid prescribe in the said Franchise to have Bona & catalla proditorum, felonum, &c. yet may they and the like be had obliquely or by a meane by prescription; for a Countie Palatine may be claimed by prescription, and by reason thereof to have Bona & catalla proditorum, felonum, &c.

As to the second, by what meanes a Title by prescription or custome, may be lost by interruption; It is to be knowne that the title being once gained by prescription or custome, cannot be lost by interruption of the possession for 10. or 20. yeeres, but by interruption in the right, as if a man have had a Rent or Common by prescription, unity of possession of as high and perdurable estate is an interruption in the right.

In a Writ of Mesne the Plaintife made his title by prescription, that the Defendant and his Ancestors had acquited the Plaintife & his Ancestors, and the Terre tennant time out of minde, &c. the Defendant tooke issue, that the Defendant & his Ancestors had not acquited the Plaintife & his Ancestors & the Terre tenant, and the Jurie gave a speciall verdict, that the Grandfather of the Plaintife was enfeoffed by one Agnes and that Agnes and her Ancestors were acquited by the Ancestors of the Defendant time out of minde before that time, since which time no acquitall had been, and it was adjudged and affirmed in a Writ of error, that the Plaintife should recover his Acquitall, for that there was once a title by prescription vested, which cannot be taken away by a wrongfull Cesser to acquite of late time, and albeit the verdict had found against the letter of the issue, yet for that the substance of the issue was found, viz. a sufficient title by prescription, it was adjudged both by the Court of Common Pleas, and in the Writ of error by the Court of Kings Bench for the plaintife, which is worthy of observation. So a Modus decimandi was alleaged by prescription time out of minde for tithes of lambs, and thereupon issue joyned, and the Jurie found that before 20 yeeres then last past there was such a prescription, and that for these 20 yeeres, he had paid tithe lambe in Specie, and it was objected, first, That the issue was found against the Plaintife, for that the prescription was generall for all the time of prescription, and 20 yeeres faile thereof. 2. That the partie by payment of tithes in Specie had waived the prescription or custome. But it was adjudged for the Plaintife in the prohibition, for albeit the Modus decimandi had not beene paid by the space of 20 yeeres, yet the prescription being found, the substance of the issue is found for the Plaintife. And if a man hath a Common by prescription, and taketh a lease of the land for 20 yeeres, whereby the Common is suspended, after the yeeres ended, he may claime the Common generally by prescription, for that the suspension was but the possession, and not to the right, and the inheritance of the Common did alwayes remaine, and when a prescription or custome doth make a title of inheritance (as Littleton speaketh) the partie cannot alter or waive be the same in pais.

“time out of minde, &c. and of title of prescription, which is all one in the Law,”

So as the time prescribed or defined by Law is, time, whereof there is no memorie of man to the contrary. (c)Omnis quaerela, &omnis actio injuriarum limitata intra certa tempora.

“time of limitation.”

Limitation as it is taken in Law is a certaine time prescribed by Statute, within the which the Demandant in the action must prove himselfe or some of his Ancestors to be seised.

“in a Writ of right,”

In (f ) ancient time the limitation in a Writ of Right was from the time of Henry the first whereof it was said, à tempore Regis Henrici senioris. After that by the Statute of (g) Merton the limitation was from the time of Henry the Second and by the Statute (h) of West. I. the limitation was from the time of Richard the First. And this is that limitation that Littleton here speaketh of, whereof in the Mirror in reprose of the Law it is thus said, (i)Abusion est de counter cy longe temps dount nul ne poet testmoigner de vieu & de oyer que ne dure my generalment ouster 40. ans.

| Time of limitation is twofold, First, in Writs, and that is by divers Acts of Parliament. Secondly, To make a title to any Inheritance, and that (as Littleton here saith) is by the Common Law.

Limitation of times in Writs are provided by the said Statute of Merton, and after by the said Statute of West. I. which Littleton here citeth, and which was in force when he wrote, but is since altered by a profitable and necessary Statute (k) made Anno 32. Hen. 8. and by that Act, the former limitation of time in a Writ of Right is changed and reduced to threescore yeeres next before the Teste of the Writ, and so of other actions, as by the statute at large appeareth. But it is to be observed that this Act of 32. Hen. 8. extendeth (l) not to a Formedon, in the Discender, nor tothe Services of Escuage, Homage, and Fealtie, for a man may live above the time limited by the Act: neither doth it extend to any other service, which by common possibility may not happen or become due within sixty yeeres; as to cover the hall of the Lord, or to attend on his Lord when he goeth to warre, or the like, nor where the seisin is not traversable or issuable, neither doth it extend to a Rent created by Deed, nor to a Rent reserved upon any particular estate, for (m) in the one case the Deed is the title, and in the other the reservation, nor to any writ of Right of advowson, Quare impedit, or Assise of Darreine presentment (for there was a Parson of one of my Churches that had been Incumbent there above fifty yeeres, and died but lately) or any Writ of Right of Ward, or ravishment of Ward, &c. but they are left as they were before the Statute of 32. Hen. 8. But hereof thus much for the better understanding of Littleton shall suffice.

“from the time of King Richard the first.”

And that was intended from the first day of his reigne, for (from the time) being indefinitely, doth include the whole time of his reigne, which is to be observed.

“a Writ of right,”

Breve de recto, As writ of Right, so called, for that the words in the Writ of Right are, Quod fine dilatione plenum rectum teneas.

“title of prescription that was at the Common Law, . . . from time whereof the memory of men runneth not to the contrary.”

Docere oportet longum tempus, & longum usum illum, viz. qui excedit memoriam hominum, tale enim tempus sufficit pro jure.

“any proofe of the contrary,”

For if there bee any sufficient proofe of Record or writing to the contrarie, albeit it exceed the memorie, or proper knowledge of any man living, yet is it within the memorie of man: for memorie or knowledge is twofold First, By knowledge by proofe, as by Record or sufficient matter of writing. Secondly, by his owne proper knowledge. A Record or sufficient matter in writing are good memorialls, for Litera scripta manet. And therefore it is said, when we will by any record or writing commit the memory of any thing to Posterity, it is said tradere memoriae. And this is the reason that regularly a man cannot prescribe or alleage a Custome against a Statute, because that is matter of Record, and is the highest proofe and matter of Record in Law. But yet a man may prescribe against an Act of Parliament, when his Prescription or Custome in saved or preserved by another Act of Parliament.

There is also a diversity betweene an Act of Parliament in the negative and in the affirmative, for an affirmative Act doth not take away a custome as the Statutes of Wills of 32 and 34. Hen. 8. doe not take away a Custome to devise Lands, as it hath beene often adjudged. Moreover, there is a diversitre betweene Statutes that be in the negative, for if a Statute in the negative be declarative of the ancient Law, that is in affirmance of the Common Law, there as well as a man may prescribe or alleage a Custome against the Common Law, so a man may doe against such a Statute, for as our Author saith, Consuetudo, &c. privat communem legem. As the Statute of Magna Charta provideth, that no Leet shall be holden but twice in the yeere, yet a man may prescribe to hold it oftener, and at other times, for that the Statute (n) was but in affirmance of the Common Law.

So the Statute (o) of 34. Edw. 1. provideth that none shall cut downe any trees of his owne within a Forrest without the view of the Forrester: but inasmuch as this Act is in affirmance of the Common Law, a man may prescribe to cut downe woods within a Forrest without the view of the Forrester. And so was it adjudged in 16. Eliz. in the Exchequer by Sir Edward Sanders Chiefe Baron, and other the Barons of the Exchequer, as Sir John Popham Chiefe Justice of the Kings Bench reported to me.

In the Eire of the Forrest of Pickering before Willoughby, Hungerford and Hanbury, Justices Itinerants there, Anno 8. Edw. 3. I read (p) a claime made by Henry de Percy, Lord of the Manor of Semor within the said Forrest, the Forresters, Verderours, and Regarders found his claime to be true, viz. Quod praedictus Henricus de Percy, & omnes antecessores sui tenentes | maneriū praedictum à tempore quo non extat memoria & sine interruptione aliquali tenuerunt praedictū manerium cum pertinentiis extra regardum Forestae, & habuerunt Woodwardū portantem arcū & sagittas ad praesentandū praesentanda de venatione tantum, &c. & habuerunt in boscis suis de Semere forgeas, & mineras, & amputârunt, dederunt, & vendiderunt boscum suum infra manerium praedictum sine visu forestariorum pro voluntate sua, & fugarunt & ceperunt Vulpes, Lepores, Capriolos, &c. sicut idē Henricus Percy superius clamat. Which claime by prescription, and found as is aforesaid the Justices doubted onely of two points. The first forasmuch as the said Mannor was within the limits of the Forrest, it should not onely be Contra assisam Forestae, (o) for his Woodward to beare Bow and Arrowes, where by Law he ought to beare but an Hatchet and no Bow nor Arrowes within the Forrest, but also de facili cedere possit in destructionem ferarum, &c. and therefore doubted whether it might be claimed by prescription. Their second doubt was concerning fugationem, & captionem Capriolorum in boscis suis praedictis, eo quod est bestia venationis Forestae, & transgressores inde convicti finem facerent ut pro transgressione venationis, & for that difficultie the claime was adjourned into the Kings Bench. But of the other parts of the Prescription no doubt at all was made: and the like had beene allowed in the same Eire, as in the case of Thomas Lord Wake at Lydell, and of Gilbert of Acton, in the same Eire, Rot. 37. and of others.

“this is proved by the pleading.”

Note one of the best arguments or proofes in Law is drawne from the right entries or course of pleading, for the Law it selfe speaketh by good pleading, and therefore Littleton here saith, It is proved by the pleading, &c. as is pleading were ipsius legis viva vox.

“insomuch that such title of prescription was at the common law, &c.”

Note all the prescriptions that were limited from a certaine time were by Act of Parliament, as from the time of Henry the First which was the first time of limitation set downe by any Act of Parliament, and so from the reigne of Richard the First &c. But this prescription of time out of memory of man was (as Littleton here saith) at the Common Law, and limited to no time. Also here is implyed a maxime of the Law, viz. That whatsoever was at the Common Law, and is not ousted or taken away by any Statute, remaineth still.

“common law.”

The Law of England in divided, as hath beene said before, into three parts, the Common Law, which is the most generall and ancient Law of the Realms; of part whereof Littleton wrote; 2. Statutes or Acts of Parliament; and 3. particular Customes (whereof Littleton also maketh some mention) I say particular, for if it be the generall Custome of the Realme, it is part of the Common Law.

The Common Law hath no controller in any part of it, but the high Court of Parliament, and if it be not abrogated or altered by Parliament, it remaines still, as Littleton here saith, The Common Law appeareth in the Statute of Magna Charta and other ancient Statutes (which for the most part are affirmations of the Common Law) in the originall writs, in judiciall Records, and in our bookes of termes and yeers. Acts of Parliament appeare in the Rols of Parliament, and for the most part are in print. Particular customes are to be proved.

Section 199
Villenage, part 18

“Praemunire.”

Some hold an opinion that the writ is called a Praemunire, because it doth fortifie Jurisdictionem jurium regiorum Coronae suae of the Kingly Lawes of the Crown against foreine jurisdiction, and against the usurpers upon them, as by divers Acts of Parliaments appeare. But in truth it is so called of a word in the Writ; for the words of the Writ be, Praemunire facias praefatum A.B. &c. quod tunc sit coram nobis, &c. where Praemunire is used for praemonere, and so do divers interpreters of the Civill and Canon Law use it, for they are praemunit that are praemoniti. By the Statutes before quoted in the margent you shall perceive what statutes were made before Littleton wrote, and what have beene ordained since to make offences in danger of a Praemunire.

“out of the King’s protection,”

The judgement in a Praemunire is that the Defendant shall be from thenceforth out of the king’s protection, and his Lands and Tenements, goods and chattels | forfeited to the king, & that his body shall remaine in prison at the Kings pleasure. So odious was this offence of Praemunire, that a man that was attained of the same, might have beene slaine by any man without danger of Law, because (k) it was provided by Law, that a man might do to him as to the Kings enemy, and any man may lawfully kill an enemy. But Queene Elizabeth and her Parliament, liking not the extreme and inhumane rigor of the Law in that point, did provide that it should not be lawfull for any person to slay any person in any manner attainted in or upon any Praemunire, &c. Tenant in taile is attainted in a Praemunire, he shall forfeit the land but during his life, for albeit the Stature of 16. R.2. ca.5. enacteth that in that case their lands and tenements, goods and chattels, shall be forfeit to the King, that must be understood of such an estate as he may lawfully forfeit, and that is during his own life. And these generall words doe not take away the force of the Statute De donis conditionalibus, but he shall forfeit all his Fee simple lands, states for life, goods and chattels, and so was it resolved in Trudgins case.

“for the Law and the King’s writs.”

There bee three things as here it appeareth whereby every subject is protected, viz. Rex, Lex, & Rescripta Regis, the King, the Law, and the Kings Writs. The Law is the rule, but it is mute; The King judgeth by his Judges, and they are the speaking Law, Lex loquens. The processe and the execution which is the life of the Law consisteth in the Kings Writs. So as he that is out of the protection of the King cannot be aided or protected by the Kings Law, or the Kings Writ, Rex tuetur legem, & lex tuetur jus. (1) Besides, men attainted in a Praemunire every person that is attained of high treason, petit treason or felony,Protection: Generall, Particular. is disabled to bring any action, for he is (*)Extra legem positus, and is accounted in Law Civiliter mortuus.

It is to be understood that there is a generall protection of the King whereof Littleton here speaketh, and this extends generally to all the Kings loyall Subjects, Denizens and Aliens within the Realme, whose offences have not made them uncapable of it, as before it appeareth. And there is a particularprotection by Writ, which is one of the Kings Writs that Littleton here speaketh of. This particular protection is of two sorts, one, to give a man an immunitie or freedome from actions or suits, the second, for the safety of his person, servants and goods, lands and tenements whereof he is lawfully possessed from violence, unlawfull molestation or wrong. The first is of right, and by Law; the second are all of grace, (saving one) for the generall protection implyeth as much. Of the first sort some are Cum clausula (volumus), so called because the Writ hath this word (volumus) in it, viz. Volumus quod interim sit quietus de omnibus placitis & querelis, &c. And the other a protection Cum clausula, (nolumus) so called for the like reason. Of protections Cum clausula (volumus) for staying of pleas and suites there be foure kinds, viz. Quia profecturus (so called by reason they are part of the words of the Writ) 2. Quia moraturus (so named for distinction for the like cause) 3. Quia indebitatus nobis existit of the matter. 4. When any sent into the Kings service in warre is imprisoned beyond Sea. The former are for staying of actions and suits in generall. The third is for staying of suits of the subject for debts and duties due by the Kings debtor to them. Of the fourth you shall reade hereafter in this place. For the former two these nine things are to be observed. First, for what cause they are to be granted. 2. For what persons they are allowable. 3. A threefold time is to be considered, viz. the time of the purchase of them, the time of the continuance of them, and the time when they shall be cast. 4. In what place the service is to be performed. 5. Inwhat actionstheseprotectionsareallowable. 6. Under what seale and to whom they are directed. 7. Who is to allow, or disallow of them. 8. By whom they are to be cast and in what manner. 9. How upon just cause they may be repealed or disallowed. I must but point at these matters, to make the studious reader capable of them, and referre him to the Books and other Authorities at large being excellent points of learning.

As to the first, it is of two natures, the one concerns services of war, as the Kings souldier, &c. the other wisdome and counsell, as the Kings Ambassador or Messenger Pro negotiis regni, both these being for the publique good of the Realme, private mens actions and suits must be suspended for a convenient time; for Jura publica anteferenda privatis; and againe, Jura publica ex privatis promiscue decidi non debent, (a) And the cause of granting of the protection must be expressed in the protection, to the end it may appeare to the Court that it is granted Pro negotiis regni & pro bono publico, (b) or as some others say, pur le common profit del realme. And Britton saith, Nostre service, sicome estre en nostre force, & le defence de nous & de nostre. people, &c. , A man in execution in salva custodia shall not be delivered by a Protection.

(c) To the second these protections are not allowable onely for men of full age, but for men within age, and for women, as necessarie attendants upon the Camp, and that in three cases, Quia lotrix, seu nutrix, seu obstetrix.

(d) Corporations aggregate of many are not capable of these two protections, either Profecturae, or Moraturae, because the Corporation itselfe is invisible, and resteth onely in | consideration of Law. (c) Protection for the Husband shall serve also for the Wife.

(f ) Albeit the Vouchee, Tenant by resceit, Preier in aid, or Garnishee bee no parties to the Writ, yet before they appeare, a Protection may be cast for them, because when the Demandant grants the Vouchor or receitinjudgement of Law they are made privie, but if the Demandant counterplead the Vouchor or receit, then untill it be adjudged for them, and so they privie in Law, a Protection cannot be cast for them. And so it is of the Garnishee, a Protection may be cast for him at the day of the returne of the Scire facias. (g) No Protection can be cast for the Demandant or Plaintife because the Tenant or Defendant cannot sue a Resommons, or a Re-attachment, but the Plaintife onely that sued out the sommons or attachment, &c. must sue also the re-sommons or re-attachment. And so it is of an Actor in nature of a Plaintife, &c. and the Garnishee after appearance, and an avowant, and the like. (h) An Officer of the Kings receit, or any other Officer in any Court of Record, whose attendance is necessary for the Kings service, or administration of Justice being sued, cannot have a Protection cast for him.

(i) In every action or plea, reall or mixt, against two (where a Protection doth lie) a Protection cast for the one doth put the plea without day for all. So it is in debt, detinue, and account. But in trespasse, or in any action in nature of trespasse, which is in Law severall, where every one may answer without the other, there a Protection cast for the one shall serve for him onely, unlesse they joyne in pleading, or if they plead severall pleas, and one Venire facias is awarded against all, there a Protection cast for one, shall put the plea without day for all, and therefore in former times the Plaintife used to sue out severall Venire facias in those cases for feare of a Protection, &c.

(k) As to the threefold time, First, a Protection profecturae, regularly must not be purchased hanging the plea, but this faileth when he goeth in the Kings service in a Voyage royall; and that is twofold, either touching warre, and that onely is when the King himselfe or his Lieutenant, that is prorex goeth, or when any goeth in the Kings ambassage, Pro negotio regni, or for the marriage of the Kings daughter or the like, this also is called a Voyage royall. But a Protection Moraturae may be purchased, and cast pendente placito.

(l) Regularly a Protection cannot be cast, but when the partie hath a day in Court, and when if he made default, it should save his default: therefore when execution is to be granted against body, lands, or goods, no Protection can be cast; because the Defendant hath no day in Court. If a protection be cast at the Nisi prius for one, if before the day in banke it be repealed by Innotescimus, yet because it was once well cast, it shall save his default, but if the Protection be disallowed, either for variance, or that it lay not in the Action, or the like, there it shall turne to a default.

(m) If a man hath a Protection, notwithstanding plead a plea, yet at another day of continuance after that a Protection may be cast, so at a day after an Exigent, but after appearance he cannot cast a Protection in that Terme untill a new continuance be taken.

(n) Thirdly, no Protection, either Profecturae or Moraturae, shall indure longer than a yeer and a day next after the teste or date of it. And so it is of an Essoigne de service le Roy. If a Protection beare teste 7. die Januarii, and have allowance pro uno anno, the resommons, re-attachment or regarnishment may be sued 8. Januarii the next yeere, and yet that is the last day of the yeere.

And where Britton treating of an Essoigne beyond the Graecian Sea in a Pilgrimage, &c. saith thus, (o)Ascun gent nequident se purchasent nos letters de protection patents durable a un an, on a 2.ou a. 3. ans, & jalameyns font attorneys generals, ausi per nos letters patents: & ceux font bien & sagement, car nul grand Seignior ne chivalier de nostre realme ne doit prender chemyn sauns nostre conge, car issent poet le realme remainer disgarny de fort gente.

Three things are hereupon to be observed, First, that this was a protection of grace, whereof more shall be said hereafter. Secondly, that it was for the safetie of the great men of the realme, and that they should make general Attorneyes, so as no actions, or suits should be, thereby stayed. Thirdly, (by the way) that great men could not passe out of the Realme without the Kings licence. (p) A Protection granted to one, &c. untill he be returned from Scotland, was disallowed for the incertaintie of the time.

(q) To the fourth, the Protection as well Moraturae as Profecturae must be regularly to some place out of the Realme of England, and that must be to some certaine place, as super salva custodia Caliciae, &c. and not to Carlisle or Wales, which are within the Realme, or the like. But it may be to Ireland or Scotland, because they are distinct Kingdomes; or to Calice, Aquitaine, or the like. But a Protection, Quia moratur super altum mare, will not serve, not only because (as some thinke) that mare non moratur, but for the incertaintie of the place, and for that a great part of the sea is within the Realme of England.

(r) To the fifth. In some actions, Protections shall not be allowed by the Common Law, & in some actions they are ousted by Act of Parliament, Actions at the Common Law, as all Actions that touch the Crowne, as Appeales of Felony, and Appeales of Mayhem. (f) So | where the King is sole partie no Protection is to be allowed, in like manner in a Decies tantum, where the King and the Subject are Plaintifes, but in late Acts of Parliament, Protections in personall actions are expressly ousted. A Protection may be cast against the Queene the Consort of the King.

(t) In a writ of Dower unde nihil habet, no protection is allowable, because the Demandant hath nothing to live upon. Otherwise it is in a writ of right of Dower. Likewise in a Quare impedit, or Assise of Darreine presentment a protection lieth not, for the eminent danger of the laps. Neither lieth a Protection in an Assise of Novel disseisin, because it is festinum remedium, to restore the Dissesee to his freehold, whereof he is wrongfully and without judgement disseised. (u) In a Quare non admisit; a Protection is not allowable, because it is grounded upon the Quare impedit, and the like in a Certificate upon Assise for the like reason, and sic de similibus. Aprotection, Quia profecturus is not allowable (as hath beene said) in any Action commenced before the date of the Protection, unlesse it bee in a Voyage Royall. (w) An Infant is vouched, and at the Pluries venire facias, a Protection was cast for the Infant, and disallowed, because his age must be adjudged by the inspection of the Court.

(x) By act of Parliament no Protection shall be allowed in an attaint. (But at the Common Law a Protection for one of the Petite Jurie had put the plea without day for all) nor in an Action against a Gaoler for an escape, nor for victuals taken or bought upon the voyage or service, nor in pleas of Trespasse, or other contract made or perpetrated after the date of the same Protection.

(y) In a writ of Error brought by an Infant upon a fine levied, the Plaintife sued a Scire facias against the Conusee, for whom a Protection was cast, and the Court examined the age of the Plaintife, and by inspection adjudged him within age, and recorded the same, and then allowed the Protection, and this can be no mischiefe to the Plaintife, whereupon it followeth, that albeit the Plaintife dieth afterwards before the fine reversed, yet after his age adjudged and recorded, his heirs shall in that case reverse the fine for the nonage of his Ancestor. (a) And so it was resolved in the case of Kekewiche in a writ of Error brought by him by the opinion of the whole Court of the Kings Bench, otherwise it is, if the Plaintife dieth before his age inspected.

(b) Note in judiciall Writs, which are in nature of Actions, where the partie hath day to appeare and plead, there Protection doth lie, as in Writs of Scire facias upon Recoveries, Fines, Judgements, &c. albeit by the Statute of W.2. Essoignes and other delayes be ousted in writs of Scire facias, yet a Protection doth lie in the same. So it is in a Quid Juris clamat, and the like. But in Writs of Execution, as Habere facias seisinam, Eleit, Execution upon a Statute, Capias ad satisfaciendum, Fieri facias, and the like, there no Protection can be cast for the Defendant, because he hath no day in Court, and the Protection extendeth only ad placita & querelas, and must be allowed by the Court, which cannot bee but upon a day of appearance.

(c) In a writ of Disceit brought against him that obtained and cast a Protection upon an untrue surmise in delay of the plaintife, that protection is allowable. In an Action brought upon the Statute of Labourers a Protection doth lye, & sic de similibus.

(d) To the sixth, no Writ of Protection can be allowed unlesse it be under the great Seale, (*) and it is directed generally.

(e) To the seventh, the Courts of Justice where the Protection is cast, are to allow, or disallow of the same, be they Courts of Record, or not of Record, and not the Sherife, or any other Officer or Minister.

(f ) To the eighth, the Protection may be cast either by any stranger, or by the partie himselfe, an Infant, Feme Covert, a Monke, or any other may cast a Protection for the Tenant or Defendant, and this difference there is when a stranger casteth it, and when the Tenant or Defendant casteth it himselfe. (g) For the Defendant or Tenant casting it, he must shew cause wherefore he ought to take advantage of the Protection, but an estranger need not shew any cause, but that the Tenant or Defendant is here by Protection.

(h) As to the ninth, A protection may be avoided three manner of waies: First, upon the casting of it before it be allowed. Secondly, by repeale thereof after it be allowed: by disallowing of it many wayes, as for that it lyeth not in that Action, or that he hath no day to cast it, or for materiall variance between the Protection and the Record, or that it is not under the great Seale, or the like. (i) Thirdly, After it be allowed by Innotescimus, as if any tarrie in the Countrey without going to the service for which he was retained, over a convenient time after that he had any Protection, or repairs from the same service, upon information thereof to the Lord Chancellor, he shall repeale the Protection in that case by an Innotescimus. But a Protection shallnotbeavoided by an Averment of the partie of that case, because the Record of the Protection must be avoided by matter of as high nature.

| (k) There is a clause in the Protection to this effect, Praesentibus minime valituris, si contingat ipsum, &c. a custodia castri praedicti recedere. Or si contingat iter illud non arripere, vel infra illum terminum à partibus transmarinis redire. Whereupon there be two conclusions to be observed.

First, That though the protection be allowed by the Court for a yeere, yet if it be repealed by an Innotescimus that the Resommons or Re-attachment shall be granted upon the Repeale within the yeare, for the Protection that was allowed had the said clause in it. And of that opinion be our later Bookes, and the Repeale by Innotescimus should serve for little purpose, if the Law should not be taken so.

Secondly, That albeit he that had the Protection either Moraturae or Profecturae, returne into England, and haply be arrested and in prison, yet if he came over to provide Munition, Habiliments of warre, victuals, or other necessaries, it is no breach of the said conditionall clause, nor against the Act of 13. Richard 2. cap. 16. for that in judgement of Law comming for such things are of necessitie for the maintenance of the warre, moratur, according to the intention of the Protection and Statute aforesaid. And thus much of the two first Protections, Cum clausula volumus, Protecturae and Moraturae.

(l) As to the third Protection, Cum clausula volumus, the King by his Prerogative regularly is to be preferred in payment of his dutie of debt by his Debtor before any Subject, although the Kings debt or dutie be the latter, & the reason hereof is, for that Thesaurus Regis est fundamentum belli, & firmamentum pacis. And thereupon the Law gave the King remedy by Writ of Protection to protect his Debtor, that he should not be sued or attached untill hee paid the Kings debt, but hereof grew some inconvenience, for to delay other men of their suits, the Kings debts were the more slowly paid. And for remedie thereof (m) it is enacted by the Statute of 25.E.3. that the other Creditors may have their actions against the Kings Debtor and to proceed to Judgement, but not to Execution unlesse he will take upon him to pay the Kings debt, and then he shall have Execution against the Kings Debtor for both the two debts.

This kinde of Protection hath (as it appeareth) no certaine time limited in it. But in some cases the subject shall be satisfied before the King (n) for regularly whensoever the King is intitled to any fine or duty by the suit of the partie, the party shall be first satisfied, as in a Decies tantum, And so if in Action of Debt the Defendant deny his Deed, and it is found against him he shall pay a fine to the King, but the Plaintife shall be first satisfied, and so in all other like cases. And so it is in Bills preferred by subjects in the Starchamber, their costs and damages (if any be) shall be answered before the Kings fine, as it is daily in experience.

The fourth protection, Cum clausula volumus, is when a man sent into the Kings Service beyond Sea is imprisoned there, so as neither Protection, Profecturae or Moraturae, will serve him, and this hath no certaine time limited in it, (o) whereof you shall read at large in the Register, and F.N.B.

(p) Now are we at length come to Protections, Cum clausula nolumus, All which saving one, are of grace, and as hath beene said are implyed under the generall protection, for as Fitzherbert saith, every loyall subject is in the Kings Protection. Of these Protections of grace, you shall not read much in our yeere Books, because they stayed no Actions or Suits; (q) Of the divers formes, of these you shall read at large in the Register, and F.N.B. which were too long and needlesse to be here recited.

The Protection Cum clausula nolumus, that is, of right, is, that every spirituall person may sue a Protection for him and his goods, and for the fermors of their lands and their goods, that they shall not be taken by the Kings Purveyor, not their carriages or chattels taken by other Ministers of the King, which Writ both recite the Statute of 14.E.3.

Of these Protections I cannot say any thing of mine owne experience, for albeit Queene Elizabeth maintained many warres, yet she granted few or no Protections, and her reason was, that he was no fit subject to be imployed in her service, that was subject to other mens actions, lest she might be thought to delay Justice.

Section 342
Conditional Estates, part 17

Here is good counsell and advice given, to set downe in Conveyances every thing in certainty and particularity, for Certainty is the mother of Quietness and Repose, and Incertainty the cause of variance and contentions: and for obtaining of the one, and avoiding of the other, the best meane is, in all assurances to take counsell of learned and well experienced men, and not to trust only without advice, to a Precedent. For as the rule is concerning the state of a mans body, Nullum medicamentum est idem omnibus, so in the state and assurance of a mans Lands, Nullum exemplum est idem omnibus.

“at the Tombe of Saint Erkenwald,”

This Erkenwald was a younger sonne of Anna King of the East Saxons, and was first Abbot of Chersey in Surry which hee had founded, and after Bishop of London, a holy and devout man, and lyeth buryed in the South Ile, above the Quire in Saint Pauls Church, where the Tombe yet remaineth that Littleton speaketh of in this place: he flourished about the yeere of our Lord, 680.

The residue of this Section, and the (&c.) are evident.

Section 366
Conditional Estates, part 41

“verdict of 12. men.”

Veredictum quasi dictum veritatis, as judicium est quasi juris dictum. ,Et sicut ad quaestionem juris, non respondent juratores, sed judices: sic ad quaestionem facti non respondent judices sed juratores. For Jurors are to try the fact, and the Judges ought to judge according to the Law that riseth upon the | fact, for Ex facto jus oritur.

“taken at large.”

There bee two kinds of verdicts, viz. one generall and another at large or especiall. As in an Assise of Novel disseisin brought by A. against B. the Plaintife makes his plaint, Quod B. disseisivit cum de 20. acris terrae cum pertinentiis, the Tenant pleads, Quod ipse nullam injuriam seu disseisinam praefato A. inde fecit, &c. the Recognitors of the Assise doe finde Quod praedict. A. injuste & sine judicio disseisivit praedict. B. de praedict. 20. acris terrae cum pertinent’ &c. This is a generall verdict. The like Law it is if they finde it negatively. And Littleton here putteth a case of a Verdict at large or a speciall Verdict, and it is therefore called a speciall Verdict or a Verdict at large, because they finde the speciall matter at large, and leave the judgment of Law therupon to the Court, of which kinde of Verdict it is said, (l)Omnis conclusio boni & veri judicii sequitur ex bonis & veris praemissis & dictis Juratorum.

And though Littleton here putteth his case of a Verdict at large upon a generall issue (which in the case hee puts it was necessary for the Tenant to plead, yet when Issue is joyned upon some speciall point, the Jury, as shall bee said hereafter in this Section, may finde the speciall matter, ifitbedoubtfull in Law, for as much as doubt may arise upon one point upon the generall issue as upon the generall issue. And as a speciall verdict may be found in Common | Pleas, so may it also bee found in Pleas of the Crowne, orcriminall causes that concerne life or member.

A Verdict finding matter incertainely or ambiguously is insufficient, and no judgement shall be given thereupon, as if an Executor plead Pleinment administre, and issue is joyned thereupon, and the Jury finde, that the Defendant have goods within his hands to bee administered, but finde not to what value, this is uncertaine, and therefore insufficient.

A Verdict that finds part of the issue, and finding nothing for the residue, this is insufficient for the whole, because they have not tryed the whole issue wherewith they are charged. As if an information or intrusion bee brought against one for intruding into a mesuage, and 100. acres of land, upon the generall issue the Jury finde against the Defendant for the land, but saith nothing for the house, this is insufficient for the whole, & so was it twice adjudged. (m) But if the Jury give a verdict of the whole issue, and of more, &c. that which is more is surplusage, and shall not (a) stay judgement, for Utile per inutile non vitiatur, but necessary incidents required by law, the Jury may find.

If the matter and substance of the issue bee found, it is sufficient as Littleton himself sayeth hereafter.

Estoppells which bind the interest of the Land, as the taking of a Lease of a mans owne Land by Deed indented, and the like, being specially found by the Jury, the Court ought to judge according to the speciall matter, for albeit Estoppels regularly must be pleaded and relied upon by an apt conclusion, and the Jury is sworne ad veritatem dicendam, yet when they finde veritatem facti, they pursue well their oath, and the Court ought to adjudge according to Law. (b) So may the Jury finde a warranty being given in evidence, though it be not pleaded, because it bindeth the right, unlesse it be in a Writ of Right, when the Mise in joyned upon the meere right.

| (c) After the verdict recorded, the Jury cannot vary from it, but before it be recorded they may vary from the first offer of their verdict, and that verdict which is recorded shall stand: also they may vary from a privy Verdict.

An issue found by Verdict shall alwaise be intended true untill it be reversed by attaint, and thereupon upon the attaint no Supersedeas is grantable by Law.

If the Jury after their evidence given unto them at the Barre, doe at their owne charges eat or drink either before or after they be agreed on their Verdict, it in finable, but it shall not avoyd the Verdict: but if before they be agreed on their Verdict, they eat or drink at the charge of the Plaintife, if the Verdict bee given for him, it shall avoyd the Verdict: but if it be given for the Defendant, it shal not avoyd it, & sic è converso. (d) But if after they be agreed on their Verdict, they eat or drinke at the charge of him for whom they doe passe, it shall not avoyd the Verdict.

(e) If the Plaintife after evidence given and the Jury departed from the Barre, or any for him, doe deliver any Letter from the Plaintife to any of the Jury concerning the matter in Issue, or any Evidence, or any escrowle touching the matter in issue, which was not given in Evidence, it shall avoyd the Verdict, if it be found for the Plaintife, but not if it be found for the Defendant, & sic è converso. But if the Jury carry away any writing unsealed, which was given in evidence in open Court, this shall not avoyd their Verdict, albeit they should not have carryed it with them.

By the Law of England a Jury after their Evidence given upon the Issue, ought to bee kept together in some convenient place, without meat ordrinke, fire or candle, which some Bookes (f) call an imprisonment, and without speech with any, unlesse it be the Bailife, and with him onely if they be agreed. After they be agreed, they may in causes between party and party give a Verdict, and if the Court be risen, give a privy Verdict before any of the Judges of the Court, and then they may eat and drinke, and the next morning in open Court they may either affirme or alter their privy Verdict, and that which is given in Court shall stand. But in criminall cases of life or member, the Jury can give no privy Verdict, but they must give it openly in Court. And hereby appeareth another division of Verdicts, viz a publique Verdict openly given in Court, and a privy Verdict, given out of the Court before any of the Judges, as is aforesaid.

A Jury sworne and charged in case of life or member, cannot be discharged by the Court or any other, but they ought to give a Verdict. And the King cannot be Non-suit, for he is in Judgement of Law ever present in Court: but a common person may be non-suit.

“in an assise of Novel disseisin or in any other action. ”

Here it is to be observed, That a speciall Verdict, or at large may be given in any Action, and upon any issue, be the Issue generall or speciall: and albeit there be some contrary opinions in our Bookes, yet the Law is now settled in this poynt.

“by which the lessor entereth.”

Here it appeareth that the condition is executed by re-entry, and yet the Lessor after his re-entry shall not by the opinion of Littleton, plead the Condition without shewing the Deed, because he was party and privy to the condition: for the parties must shew forth the Deed, unlesse it be by the act and wrong of his adversary, as hath been said, (m) but an estranger which is not privy to the condition, nor claymeth under the same, as in the cases abovesayd appeareth, shal not after the condition is executed in pleading, be inforced to shew forth the Deed: and by this diversity all the bookes and authorities in law which seeme to bee at variance are reconciled. See also for this matter the Section next following.

“the Recognitors of the Assise may say.”

Here it appeareth that the Jurors may find the fact, albeit the Deed bee not shewed in evidence, and the rather, for that the Condition upon the Livery (as hath been said) is good albeit there be no Deed at all.

“and prayed the discretion of the Justices.”

That is to say, They, (having declared the speciall matter) pray the discretion of the Justices, which is as much to say, as, That they would discerne what the Law adjudgeth thereupon, whether for the Demandant or for the Tenant: for as by the authority of Littleton, Discretio est discernere per legem, quid sit justum, that is, to discerne by the right line of law, and not by the crooked cord of private opinion, which the vulgar call Discretion: Si à jure discedas, vagus eris, & erunt omnia omnibus incerta: and therefore Commissions that authorise any to proceed,secundum sanas discretiones vestras, is as much to say, as, Secundum Legem & consuetudinem Angliae.

“For as well as the jurors may have conusance.”

Hereby it appeareth, That they that have Conusance of any thing, are to have Conusance also all Incidents and Dependants thereupon, for an Incident is a thing necessarily depending upon another.

| If a Deed bee made and dated in a forraine Kingdome, of lands within England, yet if Livery and Seisin be made secundum formam cartae, the land shall passe, for it passeth by the Livery.

Section 372
Conditional Estates, part 47

Here Littleton sets downe three formes of deeds indented in the first person, Brevis via per exempla, longa per praecepta. It is requisite for every Student to get Precidents and approved formes, not onely of deeds according to the example of Littleton, but of Fines, and other Conveyances, and Assurances, and especially of good and perfect pleading, and of the right entries, and formes of Judgements, which will stand him in great stead, both while he studies, and after when he shall give counsell. It is safe thing to follow approved precidents, for Nihil simul inventum est, & perfectum.

Section 412
Descents, part 27

“by occupation in time of Warre,”

First it is necessary to bee knowne, what shall bee said, Time of peace, Tempus pacis: and what shall bee said, Tempus belli, sive guerrae, time of warre. Tempus pacis est quan-|-do Cancellaria & aliae Curiae Regis sunt apertae, quibus lex fiebat cuicunque prout fieri consuevit. , And so it was adjudged in the case of Roger Mortimer, and of Thomas Earle of Lancaster. Utrum terra sit guerrina necne, naturaliter debet judicari per recorda Regis, et eorum, qui curias Regis per legem terrae custodiunt, & gubernant, sed non alio modo. ,

And therefore when the Courts of Justce be open, and the Judges and Minsters of the same may by Law protect men from wrong and violence, and distribute Justice to all, it is said to be time of peace. So, when by invasion, Insurrection, Rebellions, or such like, the peaceable course of Justice is disturbed and stopped, so as the Courts of Justice bee as it were shut up, Et silent leges inter arma, then it is said to be time of war. And the tryall hereof is by the Records, and Judges of the Court of Justice, for by them it will appeare, whether Justice had her equall course of proceeding at that time or no, and this shall not be tried by Jury.

If a man be disseised in time of peace, and discent is cast in time of warre, this shall not take away the entry of the disseisee.

Item tempore pacis, quod dicitur ad differentiam eorum quae fuerunt tempore belli, quod idem est, quod tempore guerrino, quod nihil differt a tempore juris, & injuriae, est enim tempus injuriae, cum fuerunt oppressiones violentae quibus resisti non potest, & disseisinae injustae. ,

So as hereby it also appeareth, that time of peace is the time of law and right, and time of warre is the time of violent oppression, which cannot be resisted by the equall course of Law. And therefore in all reall actions, the expleas, or taking of the profits are laid Tempore pacis, for if they were taken Tempore belli, they are not accounted of in Law.

“by occupation.”

Occupation is a word of Art, and signifieth a putting out of a mans Freehold in time of warre, and it is all one with a disseisin in time of peace, saving that it is not so dangerous, as it appeareth have by Littleton, and therefore the Law gave a writ in that case of Occupavit, so called, by reason of that word in the Writ, in stead of disseisivit, in the Assise of Novel dissesin, if the dessesin had beene done in time of peace, whereby it appeareth, how aptly both in this, and in all other places, Littleton thorow his whole Booke speaketh. But albeit Occupatio whereof Littleton here speaketh, is used only in the said Writ, and in none other, (that I can finde or remember) yet hath it been used commonly in Conveyances and Leases, to limit or make certaine precedent words ad tunc in tenura & occupatione. But occupaitio is applyed to the possession, be it lawfull or on unlawfull; It hath also crept into some Acts of parliament, as 4 H. 7.cap. 19. 39. Eliz. cap. 1 and others, and occupare, is sometime taken to conquer.

“and of this a man see in a Plea upon a Writ of Aiel, [year] 7.E.2.”

Hereby it appeareth, that ancient termes or yeares, after the example of Littleton, are to bee cited and vouched, for confirmation of the Law, albeit they were never printed, and that of those yeares, those especially of E. 1. H. 3. &c. are worthy of the reading and observation, a great number of which I have sene and observed, which in mine opinion doe give a great light, not onely to the understanding and reason of the Common Law, (which Fitzherbert either saw not, or were by him omitted) but also to the true exposition of the ancient Statutes, made in those times, yet mine advice is, that they be read in their time: for after our Student is enabled and armed to set on our yeere Bookes, or reports of the Law, let him reade first the latter reports, for two causes: First, for that for the most part the latter Judgements and Resolutions are the surest, and therefore it is the best to season him with them in the beginning, both for the settling of his judgement, and for the retaining of them in memory. Secondly, for that the latter are more facile and easier to be understood, than the more ancient: but after the reading of them, then to read these others before mentioned, and all the ancient Authors that have written of our Law; for I would wish our Student to be a compleat Lawyer. But now to returne. As it is in case of discent, so it is in case of presentation, for no usurpation in time of warre putteth the right Patron out of possession, albeit the incumbent come in by institution and induction: And time of war doth not only give priviledge to them that be in warre, but to all others within the Kingdome, and although the admission and institution be in time of peace, yet if the presentment were in time of warre, it putteth not the right Patron out of possission.

Section 464
Releases, part 20

By the Statute of 2. Hen. 5. cap. 3. Statute. 2. it is enacted, That in three cases, he that passeth in an Enquest, ought to have Lands and Tenements to the value of fortie shillings, viz. First, Upon tryall of the death of a man. Secondly, in Plea reall betweene party and party. And thirdly, In Plea personall, where the debt, or the dammages in the Declaration amount unto fortie Markes. And it is worth the noting, That the Judges that were at the making of that Statute did construe it by equity: for where the Stature speakes in the disjunctive debt or dammages, they adjudged that where the debt and dammages amounted to forty Markes, that it was within the Statute. Fortescue (f ) saith, Ubi damna vel debitum in personalibus Actionibus non excedunt quadraginta Marcas monetae Anglicanae, hinc non requiritur, quod Juratores in Actionibus hujusmodi tantum expendere possint: habebunt tamen terram vel redditum, ad valorem competentem, juxta discretionem justiciariorum, &c. And forasmuch as the time of the making of this Statute, the greater part of the Lands in England in those troublesome and dangerous times (when that unhappy controversie betweene the Houses of Yorke and Lancaster was begun) were in use. And the Statute was made to remedy | a mischiefe, that the Sheriffe use to return simple men of small or no understanding, and therefore the Statute provided, That hee should returne sufficient men, and albeit in Law the Land was the Feofees, yet for that they had it but upon trust, and Cesty que use, tooke the whole profits, as our Authour here saith, and in equity and conscience the Land was his, therefore the Judges for advancement and expedition of justice, extended the Statute (against the Letter) to Cesty que use, & not to the Feoffees.

(n) But note if a man hath a Freehold pur terme dauter vie, or is seised in his Wifes right, and is returned on a Jury, yet if after he be returned, Cesty que vie, or his wife die, he may be challenged, and so it is if after the returne the Lands be evicted.

“And this is by the Common Law . . .”

Here three things are to be observed. First, That the surest construction of a State is by the rule and reason of the common Law. Secondly, That uses were at the Common Law. Thirdly, That now seeing the Statute (g) of 27.H. 8.ca. 10. which hath been in enacted since Littleton wrote, hath transferred the possession to the use, this case holdeth not at this day, but this latter opinion before that Statute was good Law, as Littleton here taketh it.

“the same Law giveth a privity . . .”

Hereof it followeth, That when the Law gives to any man any estate or possession, the Law giveth also a privity & other necessaries of the same and Littleton concludeth it with an Illative, Ergo, mesme la Ley dont privitie, which is very observable for a conclusion in other cases.

And the (Quaere) here made in the end of this Section is not in the Originall, but added by some other, and therefore to be rejected.

Also since Littleton wrote, the said Statute of 2. H. 5. is altered: for where that Statute limited forty shillings, now a later Statute hath raised it to foure pounds, and so it ought to be contained in the Venire facias.

Nota, an Use is a Trust or Confidence reposed in some other, which is not issuing out of the Land, but as thing collaterall, annexed in privity to the estate of the Land, & to the person touching the Land, scilicet, that Cesty que use shall take the profit, and that the Terre-tenant shall make an estate according to his direction. So as Cesty que use had neither Jus in re, nor Jus ad rem, but for breach of trust his remedy was only by Sub poena, in Chancery: and yet the Judges for the cause aforesaid, made the said construction upon the said Statute.

Now how Jurors shall bee returned both in Common Plees, and also in Plees of the Crowne, and in what manner evidence shall be given to them, and how they shall be kept untill they give their verdict, you may read in Fortescue, & therefore need not to be here inserted.

Section 481
Releases, part 37

“I have often heard the reading of the statute of West[minster]. 2.”

Here it is to bee observed, of what authority ancient Lectures or Readings upon Statutes were, for that they had five excellent qualities: First, They declared what the Common | Law was before the making of the Statute, as here it appeareth. Secondly, they opened the true sense & meaning of the Statute. Thirdly, their cases were briefe, having at the most one poynt at the Common Law, and another upon the Statute. Fourthly Plaine and Perspicuous, for then the honour of the Reader was to excell others in authorities, arguments, and reasons for proofe of his opinion & for confutation of the objections against it. Fifthly, they read, to suppresse subtill inventions to creepe out of the Statute. But now readings having lost the said former qualities, have lost also their former authorities, for now the cases are long, obscure, and intricate, full of new conceits, liker rather to Riddles than Lectures, which when they are opened they vanish away in the smoke, and the Readers are like to Lapwings, who seeme to be nearest their nests when they are farthest from them, and all their study is to finde nice evasions out of the Statute. By the authority of Littleton ancient Readings may be cited for proofe of the Law, but new Readings have not that honour, for that they are so obscure and darke.

“the statute of West[minster]. 2.”

Which is the third chapter.

“the remainder over in fee,”

Here is to be observed, that although the Statute speaketh of a Reversion, (a) yet by the authority of Littleton a remainder is within the Statute.

See the Statute of 14. Eliz. cap. 8. which provideth fully for him in the remainder.

“feigned Action.”

Feint is a Participle of the French word Feindre, which is to feign or falsly pretend, so as a feint Action is a false Action.

“had no remedie before the Statute,”

(b) Here it appeareth by Littleton, That if a man maketh a Lease for life the remainder in fee, and tenant for life suffereth a recovery by default, that he in the remainder should not have a Formedon by the common law: for Littleton saith, That he had not any remedy before the Statute. Neither is there any such writ in that case in the Register, albeit in some Bookes mention is made of such a Writ.

Section 723
Warranty, part 30

Here it is to bee observed, that part of the condition that prohibiteth the alienation made by tenant in taile is good in Law, with such distinction as hath beene before said in the Chapter of Conditions. And the consequent of the Condition, viz. that the lands should remaine to another, &c. is void in Law, and by the opinion of Littleton the Donor may re-enter for the Condition broken, for utile per inutile non vitiatur: Which being in case of a Condition for the defeating of an estate, is worthy of observation.

And it is to bee noted, that after the death of the Donor, the Condition descendeth to the eldest sonne, and consequently his alienation doth extinguish the same for ever, wherein the weaknesse of this invention appeareth, and therefore Littleton here saith, that it seemeth that the Donor may re-enter, and speaketh nothing of his Heires. A man hath issue two sonnes, and maketh a Gift in taile to the eldest, the Remainder in fee to the puisne, upon condition, that the eldest shall not make any Discontinuance with Warranty to barre him in the Remainder, and if he doth, that then the puisne son and his heires shall re-enter, the eldest make a Feoffment in Fee with Warranty, the father dieth, the eldest sonne dieth without issue, the puisne may enter, but if the Discontinuance had beene after the death of the father, the puisne could not have entred. In this case foure points are to be observed. First, as Littleton here saith, the Entrie for the breach of the Condition is given to the father, and not to the puisne sonne. Secondly, | that by the death of the Father the condition descends to the elder Sonne, and is but suspended, and is revived by the death of the eldest Sonne without issue, and descendeth to the youngest Sonne. Thirdly, That the feoffment made in the life of the Father cannot give away a condition that is Collaterall, as it may doe a right. Fourthly, That a Warrantie cannot binde a title of Entrie for a condition broken, (as hath beene said) but if the discontinuance had been made after the death of the Father, it had extinct the condition: Which case is put to open the reason of our authors opinion.

In these last three Sections our Author hath taught us an excellent point of Learning, That when any innovation or new invention starts up, to trie it with the Rules of the common Law, (as our Author here hath done) for these be true Touchstones to sever the pure gold from the drosse and sophistications of novelties and new inventions. And by this example you may perceive, That the rule of the old common Law being soundly (as our Author hath done) applied to such novelties, it doth utterly crushthemandbringthemtonothing, and commonly a new invention doth offend against many rules and reasons (as here it appeareth) of the common Law, and the antient Judges and Sages of the Law have ever (as it appeareth in our Bookes ) suppressed innovations and novelties in the beginning, as soone as they have offered to creepe up, lest the quiet of the common Law might be disturbed: and so have Acts of Parliament done the like, whereof by the authorities quoted in the margent, you may in stead of many others, upon this occasion take a little taste. But our excellent Author, in all his three Bookes, hath said nothing but Ex veterum sapientium ore, et more.

Section 728
fee Warranty, part 35

“whereof no fine is levied in the Kings Court, &c.”

Here are three things worthy of observation concerning the construction of Statutes. First, that (a) it is the most naturall and genuine exposition of a Statute to construe one part of the Statute by another part of the same Statute, for that best expresseth the meaning of the makers. As here the question upon the generall words of the Statute is, whether a fine levied onely by a husband seised in the right of his wife with Warranty shall bar the heire without Assets. And it is well expounded by the former part of the act, whereby it is enacted, that alienation made by Tenant by the curtesie with warranty shall not bar the heire, unlesse assets des-|-cend. And therefore it should be inconvenient to intend the statute in such manner, as that he that hath nothing but in the right of his wife should by his fine levied with warrantie barre the heire without assets. And this exposition is ex visceribus actus.

Secondly, the words of an act of Parliament must bee taken in a lawfull and rightfull sense, as here the words being (whereof no fine is levied in the Kings Court) are to be understood, whereof no fine is lawfully or rightfully levied in the Kings Court. And therefore (b) a fine levied by the husband alone is not within the meaning of the Statute, for that fine should worke a wrong to the wife, but a fine levied by the husband and wife is intended by the Statute, for that fine is lawfull and worketh no wrong. (c) So the Statute of W.2.c.5. saith (Ita quod Episcopus Ecclesiam conferat) is construed, Ita quod Episcopus Ecclesiam legitimeè conferat, and the like in a number of other Cases in our Bookes. And generally the rule is, Quod non praestat impedimentum quod de jure non sortitur effectum.

Thirdly, that construction must bee made of a statute in suppression of the mischiefe, and in advancement of the remedie, as by this case it appeareth. For a fine levied by the husband only, is within the letter of the Law, but the mischiefe was, the heire was barred of the Inheritance of his mother, by the warranty of his father without Assets, and this act intended to apply a remedy, viz. that it should not barre unless there were assets, and therefore, them is chiefe is to be suppressed, and the remedie advanced, Et qui haeret in littera, haeret in cortice, as often before hath beene said.

Epilogue

“I will not presume,”

Here observe the great modestie and mildness of our Author, which is worthy of imitation; for Nulla virtus, nulla scientia locum suum & dignitatem conservare potest sine modestia. And herein our Author followed the example of Moses, who was a Judge, and the first Writer of Law, for he was Mitissimus omnium hominum qui fuit in terris, as the holy History testifieth of him.

“the Arguments and the reasons of the Law,”

Ratio est anima Legis; for then are we said to know the Law, when we apprehend the reason of the Law, that is, when we bring the reason of the Law so to our owne reason, that wee perfectly understand it as our owne, and then and never before, we have such an excellent and inseperable propertie and ownership therin, as wee can neither lose it, nor any man take it from us, and will direct us (the learning of the Law is so chained together) in many other Cases. But if by your studie and industrie you make not the reason of the Law your owne, it is not possible for you | long to retaine it in your memorie. And well doth our author couple arguments and reasons together, Quia argumenta ignota & obscura ad lucem rationis proferunt & reddunt splendida: and therefore argumentari & ratiocinari are many times taken for one. And that our author may not speake any thing without authority (which in these Institutes we have as we take it manifested) his opinion herein also agreeth with that of the learned and reverend Chiefe Justice of the Court of Common pleas. Sir Richard Hankford, (y)Home ne scavera de quel mettal un campane est, si ne soit bien bate, ne le ley bien conus sans disputation. And another saith, (*)Jeo aye dispute cest matter pur la apprender la ley. So as our author hath made a most excellent Epilogue or Conclusion with a grave advice and counsell, together with the reason thereof, which all students are toknowandfollow, and with Scire and sequi, I will conclude our authors Epilogue.

This is the fourth time that our author hath cited verses.

When I had finished this worke of the first part of the Institutes, and looked backe and considered the multitude of the conclusions in Law, the manifold diversities between cases & points of learning, the varietie almost infinite of authorities ancient, Constant & Moderne, & withall their amiable & admirable consent in so many successions of ages, the manychanges&alterations of the Common Law, & additions to the same, even since our author wrote, by many acts of Parliament, & that the like worke of Institutes had not been attempted by any of our profession whom I might imitate, I thought it safe for me to follow the grave & prudent example of our worthy Author, not to take upon me, or presume that the reader should thinke, that all that I have said herein to be Law: yet this I may safely affirme, that there is nothing herein, but may either open some windowes of the Law, to let in more light to the Student by diligent search to see the secrets of the Law, or to move him to doubt, and withall to enable him to inquire and learne of the Sages, what the Law together with the true reason thereof in these cases is: Or lastly upon consideration had of our old Bookes, Lawes, and Records, (which are full of venerable Dignitie and antiquity) to find out where any alteration hath beane upon what ground the Law hath beene since changed, knowing for certaine, that the Law is unknowne to him that knoweth not the reason thereof, and that the knowne certainty of the Law is the safety of all. I had once intended for the ease of our student to have made a Table to these institutes, but when I considered that Tables and abridegments are most profitable to them that make them, I have left that worke to every Studious Reader. And for a farewell to our Jurisprudent I wish unto him the gladsome light of Jurispidence, the lovelinesse of Temperance, the stabilitie of Fortitude, and the soliditie of Justice.

FINIS

Deo, Patriae, Tibi.

A Proeme to the second Part of the Institutes.

In the first Part of the Institutes, following Littleton our Guide, we have treated of such parts of the Common Laws, Statutes, and Customes, as he in his three Books hath left unto us. We are in this second Part of the Institutes to speak of Magna Charta, and many ancient and other Statutes, as in the Table precedent doe appeare.

It is called Magna Charta, not that it is great in quantity, for there be many voluminous Charters commonly passed, specially in these later times, longer then this is; nor comparatively in respect that it is greater then Charta de Foresta, but in respect of the great importance, and weightinesse of the matter, as hereafter shall appeare: And likewise for the same cause Charta de Foresta, is called, Magna Charta de Foresta, and both of them are called Magnae Chartae libertatum Angliae.

King Alexander was called Alexander Magnus, not in respect of the largenesse of his body, for he was a little man, but in respect of the greatnesse of his heroicall spirit, of whom it might be truly said,

So as of this Great Charter it may be truly said, that it is Magnum in parvo. And it is also called Charta libertatum Regni; and upon great reason it is so called of the effect, Quia liberos facit: Sometime for the same cause, Communis libertas, and le Chartre des franchises.

The Ends. Sapiens incipit a fine.There be four ends of this Great Charter, mentioned in the Preface, viz. 1. The honour of Almighty God, &c. 2. The safety of the Kings Soule; 3. The advancement of holy Church; and 4. The amendment of the Realme: foure most excellent ends, whereof more shall be said hereafter.

By Charter bearing date the 11. day of February, in the 9. yeare of King Henry the third and secondly, by that Charter established by Authority of Parliament then sitting,By what Authority, and when. and so entered into the Parliament Roll; the Witnesses to the said Charter were 31. Lords Spirituall, viz. Stephen Langton Archbishop of Canterbury, E. Bishop of London, I. B. of Bath, P. of Winchester, H. of Lincoln, Robert of Salisbury, W. of Rochester, W. of Worcester, I. of Ely, H. of Hereford, R. of Chicester, William of Exeter, Bishops. The Abbot of S. Edes, the Abbot of S. Albons, the Abbot of Battaile, the Abbot of S. Augustines in Canterbury, the Abbot of Evesham, the Abbot of Westminster, the Abbot of Burghe S. Peter, the Abbot of Reading, the Abbot of Abindon, the Abbot of Malmesbury, the Abbot of Winchcombe, the Abbot of Hyde, the Abbot of Certefey, the Abbot of Shernborn, the Abbot of Cerne, the Abbot of Abbotebury, the Abbot of Middleton, the Abbot of Selbie, the Abbot of Cirencester; And 33. of the Nobility, viz. Hubert de Burgo Chiefe Justice of England, and 32. Earles and Barons, viz. Randall Earle of Chester and Lincoln, William Earle of Salisbury, William Earle Warren, Gilbert of Clare Earle of Glocester and Hertford, William de Ferrars Earle of Derby, William Mandevile Earle of Essex, H. de Bigod Earle of Norffolk, William Earle of Albemarle, H. Earle of Hereford, John Constable of Chester, Robert de Ros, R. Fitzwalter, Robert de Vipount, William de Bruer, R. de Mountfitchet, P. Fitzherbert, William de Aubeine, Robert Gresly, Reignald de Brehus, John de Movenne, J. Fitz-Alen, Hugh de Mortimer, Walter de Beauchamp, William de S. John, Peter de Mololacu, Brian de Lisle, T. de Multon, Richard de Argentein, Jeffrey de Nevill, William Maudint, John de Baalim, and others.

There were many of the great Charters, and Charta de Foresta, put under the Great Seale, and sent to Archbishops, Bishops, and other men of the Clergie,The great providence and policy for preservation of it. to be safely kept, whereof one of them remain at this day at Lambeth, with the Archbishop of Canterbury.

Also the same was entred of Record in a Parliament Roll.

And after King Edward the first by Act of Parliament did ordain that both the said Charters should be sent under the Great Seale, as well to the Justices of the Forest, as to others, and to all Sheriffes, and to all other the Kings Officers, and to all the Cities through the Realme, and that the same Charters should be sent to all the Cathedrall Churches, and that they should be read and published in every County four times in the yeare in full County,viz. the next County day after the feast of S. Michael, and the next County day after Christmas, and the next County day after Easter, and the next County day after the Feast of S. John.

It was for the most part declaratory of the principall grounds of the fundamentall Laws of England,The quality. and for the residue it is additionall to supply some defects of the Common Law; and it was no new declaration: for King John in the 17. yeare of his raigne had granted the like, which also was called Magna Charta, as appeareth by a Record before this Great Charter made by King Hen. 3.

Home ne suer’ Mordanc’ apud Westmonasterium des terres in auter Countie, car ceo ser encont’ Lestatut de Magna Charta sinon que illaassisasemelinterminata fuit coram Justic’. ,

Also by the said Act of 25. E. I (called Confirm’ Chartar’ ) it is adjudged in Parliament that the Great Charter, and the Charter of the Forest should be taken as the Common Law.

How, and upon what grounds it hath been impugned.Soon after the making of this Great Charter, the young King by evill Counsell fell into great mislike with it, which Hubert de Burgo summus Justiciarius Anglia perceiving (who in former times had been a great lover, and well deserving Patriot of his Country, and learned in the Laws (for Rot. claus. II. Hen. 3. membr. 44. I finde that he, and many others were Justices Itinerant in 5 Hen. 3. and I have seen a fine levied before him, and sixe other Judges, between Stephen de Wamcesle, and the Abbot of Hales) yet meaning to make this a step to his ambition (which ever rideth without reines) perswaded and humored the King that he might avoid the Charter of his Father King John by duresse, and his own great Charter, and Charta de Foresta also, for that he was within age when he granted the same, whereupon the King in the 11. yeare of his raign, being then of full age, got one of the great Charters, and of the Forest into his hands, and by the counsell principally of this Hubert his Chiefe Justice, at a Councell holden at Oxford, unjustly cancelled both the said Charters, (notwithstanding the said Hubert de Burgo was the primier Witnesse of all the temporall Lords to both the said Charters) whereupon he became in high favour with the King, insomuch as he was soon after (viz. the 10. of December, in the 13. yeare of that King, created to the highest dignity that in those times any Subject had) to be an Earle, viz. of Kent. But soon after (for flatterers and humorists have no sure foundation) he fell into the Kings heavy indignation, and after many fearfull and miserable troubles, he was justly, and according to Law sentenced by his Peeres in open Parliament, and justly degraded of that dignity which he unjustly had obtained by his counsell for cancelling of Magna Charta, and Charta de Foresta. And the King by his Charter granted, Quod nos firmiter & integre tenebimus judicium de Huberto de Burgo per Barones dictum; he was buried in the Frier predicants where Whitehall is now built, so as no Monument remains of him at this day.

In this advice Hubert de Burgo either dissembled his opinion, or grosly erred (as ever ambitious flattery bedazles the eye, even of them, that be learned) first, for that a King cannot avoid his Charter, albeit he make it when he is within age, for in respect of his royall and politique capacity as King, the Law adjudgeth him of full age. Secondly, it being done by Authority of Parliament, and enrolled of Record, it was strange that any man should think that the King could avoid them in respect he was within age. Thirdly, it was to no end to cancell one where there were so many, or to have cancelled all, when they were of Record in the Parliament Roll, or to have cancelled Roll and all, when they were, for the most part, but declaratories of the ancient Common Laws of England, to the observation, and keeping whereof, the Kingwasbound and sworn. What successe those potent and opulent Subjects, Hugh Spencer the Father, and Son had, for giving rash and evill counsell to King Edward the second enconter la forme de la grand Chartre, I had rather you should read then I should declare.Exilium turgonis la Spencer patris & filii.

After the making of Magna Charta, and Charta de Foresta, divers learned men in the Laws, that I may use the words of the Record, kept Schooles of the Law in the City of London, and taught such as resorted to them, the Laws of the Realme, taking their foundation of Magna Charta, and Chartade Foresta, which as you have heard, the King by ill advice sought to impeach.

The King in the 19 year of his raign, by his Writ, commanded the Maior and Sheriffes of London, Quod per totam Civitatem London clamari faciant & firmiter prohiberi, ne aliquis scholas tenens de legibus in eadem Civitate de caetero ibidem leges doceat, & si aliquis ibidem fuerit hujusmodi scholas tenens, ipsum sine dilatione cessare fac’; Teste Rege, &c. 11. die Decembris, Anno Regni sui decimo nono. But this Writ took no better effect then it deserved, for evill counsell being removed from the King, he in the next yeare, viz. in the 20. yeare of his raigne compleat, and in the one and twentieth yeare current, did by his Charter under his great Seale confirme both Magna Charta, and Charta de Foresta, he being then 29. years old. And after in the 52. yeare of his raigne established and confirmed both the same by Act of Parliament, with the clause, Quod contravenientes per Dominum Regem, cum convicti fuerint, graviter puniantur. Hereby shall some opinions and resolutions in our Books be the better understood, which speak of alienations without license before or after 20 Hen. 3. which yeare was named for that the King then confirmed the said great Charter, and in like manner did King Edward the first by Act of Parliament in the 25. year of his raign: and the said two Charters have been confirmed, established, and commanded to be put in execution by 32. severall Acts of Parliament in all.

This appeareth partly by that which hath been said, for that it hath so often been confirmed by the wise providence of so many Acts of Parliament.Of what high estimation it hath been.

And albeit judgements in the Kings Courts are of high regard in Law, and Judicia are accounted as Juris dicta, yet it is provided by Act of Parliament, that if any judgement be given contrary to any of the points of the great Charter, or Charta de Foresta, by the Justices, or by any other of the Kings Ministers, &c. it shall be undone, and holden for nought.

And that both the said Charters shall be sent under the great Seale to all Cathedrall Churches throughout the Realm there to remain, and shall be read to the people twice every yeare.

The highest and most binding Laws are the Statutes which are established by Parliament; and by Authority of that highest Court it is enacted (onely to shew their tender care of Magna Charta, and Charta de Foresta) That if any Statute be made contrary to the great Charter, or the Charter of the Forest, that shall be holden for none: By which words all former Statutes made againsteither of those Charters are now repealed; And the Nobles and great Officers were to be sworn to the observation of Magna Charta, and Charta de Foresta.

We in this second Part of the Institutes, treating of the ancient and other Statutes have been inforced almost of necessity to cite our ancient Authors, Bracton, Britton, the Mirror, Fleta, and many Records, never before published in print, to the end the prudent Reader may discerne what the Common Law was before the making of every of those Statutes, which we handle in this work, and thereby know whether the Statute be introductory of a new Law, or declaratory of the old, which will conduce much to the true understanding of the Text it selfe. We have also sometime in this and other Parts of the Institutes, cited the Grand Custumier de Normandy, where it agreeth with the Laws of England, and sometime where they disagree, ex diametro, being a Book compounded as well of the Laws of England, which King Edward the Confessor gave them, as he that Commenteth upon that Book testifieth (as elswhere we have noted) as of divers Customes of the Duchie of Normandie, which book was composed in the raign of King Henry the third viz. about 40. yeares after the Coronation of King Richard the first, 3. Septembris, Anno 1. of his raign, Anno Dom. 1189. about 138. yeares after the Conquest. See that Book cap. 22. fo. 29. a. and the Comment upon the same, & cap. 112. In which Custumier a great number of the Courts of Justice, of the originall Writs, and of many other of the titles of the Laws of England, are not so much as named or mentioned. And seeing we have in these, and other parts of our Institutes, cited the Laws and Statutes of divers Kings before the Conquest, and in the Conquerors time, we have thought good for the ease of the Reader, to set down the times wherein those Kings lived, and deceased. Inas began to raign Anno Dom. 689. and deceased 726. Aluredus, alias Alfredus, alias Elfredus, began to raign Anno Dom. 872. and deceased 901. Of this Alured it is thus written,Aluredus acerrimi ingenii princeps per Grimbaldum & Johannem doctissimos Monachos tantum instructus est, ut in brevi librorum omnium notitiam haberet, totumque novum & vetus Testamentum in eulogiam Anglicae gentis transmutaret (cujus translationis pars nobis feliciter accidit.) This learned King in advancement of Divine and humane knowledge, by the perswasion of those two Monks founded the famous University of Cambridge. Edwardus, sonofthesaid Alured, began to raign Anno Dom. 901. and deceased 924.^aa Fortis, sapiens, & fortunatus: Danos expuli: & Angliam in Monarchiam reduxit.Ethelstanus, alias, Adelstane eldest son of the said Edward began to raign Anno Dom. 924. and deceased 940.^bEdmundus began to raign Anno Dom. 940. and deceased 946.^cEdgarus began to raign Anno Dom. 959. and deceased 975.^dEtheldredus began to raign Anno Dom. 979. and deceased 1016.^eCanutus began to raign Anno Dom. 1016.b Martir apud Hoxon̄ olim Hegilsdon. and deceased 1035.^fEdwardus began to raign Anno Dom. 1042. and deceased 1066.^gc Pacificus, Rex excellentissimus.Willielmus Bastardus began to raign Anno Dom. 1066. and deceased 1087.d Named in Domesday. Glouc’ Ecclesia de Evesham. Adelredus.

Some fragments of the Statutes in the raigns of the abovesaid Kings doe yet remain, but not onely many of the Statutes, and Acts of Parliament, but also the Books and Treatises of the Common Laws both in these and other Kings times,e In Domesday he is ever written Cnut’ Rex. and specially in the times of the ancient Brittons (an inestimable losse) are not to be found.f He is ever called in Domesd. Episcopus S. Edw. Cestr: Rex Edwardus dedit Regi Griffino terram quae jaccbat trans aquam quae De vocatur.

It is to be observed that in Domesday Haroldus, who usurped the Crown of England, after the decease of King Edward the Confessor, is never named per nomen Regis, sed per nomen Comitis Haroldi, seu Heraldi; And therefore we have omitted him.

In citing of the abovesaid Laws originally written in the Saxon tongue, we have referred you to M. Lambard,g He is in Domes. written Willielmus Rex, vel Willielmus, vel W. Rex. who accurately and faithfully translated the same into Latin, one page containing the Saxon, and the next the Latin, and is in print (for our manner is not to cite anything, but so to referre the Reader, as he may easily finde it;) Sed ut unicuique suus tribuatur honos, all those Statutes in the raigns of all the abovesaid Kings were of ancient time plainly and truly translated into Latin, (whereof we have a very ancient, if not the first Manuscript) which no doubt did not a little abbreviate M. Lambards pains.

Upon the Text of the Civill Law, there be so many glosses and interpretations, and again upon those so many Commentaries, and all these written by Doctors of equall degree and authority, and therein so many diversities of opinions, as they do rather increase then resolve doubts, and incertainties, and the professors of that noble Science say, That it is like a Sea full of waves. The difference then between those glosses and Commentaries, and this which we publish, is, that their glosses and Commentaries are written by Doctors, which be Advocates, and so in a manner private interpretations: And our Expositions or Commentaries upon Magna Charta, and other Statutes, are the resolutions of Judges in Courts of Justice in judiciall courses of proceeding, either related and reported in our Books, or extant in judiciall Records, or in both, and therefore being collected together, shall (as we conceive) produce certainty, the Mother and Nurse of repose and quietnesse, and are not like to the waves of the Sea,Regula. but Statio bene fida peritis: for Judicia sunt tanquam Juris dicta.

Finis Proemii.

But now let us peruse the Texit selfe.

Magna Charta,

Anno nono

“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.

“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. 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, 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.

Chapter 1

“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.

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.

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; 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, and King John, and all the Kings after him, Nos.

“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 nostris 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, 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 libera here, is taken for liberata, 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, but moriuntur Ecclesiastici, 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 sua prove plainly, that no new rights were given unto them, but such as they had before, hereby are confirmed; 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.

“Liberties inviolable.”

Libertates are here taken in two senses. 1. For the Laws of England so called, because liberos faciunt, as hath been said. 2. They are here taken for priviledges held by Parliament, Charter or prescription more then ordinary; and in this sense it is taken in the Writ De libertatibus allocandis, and in another Writ De libertatibus exigendis in itinere, but it is but libertates suas, such as of right they had before; Jura Ecclesiae publicis aequiparantur.Regula.

Every Archbishoprick and Bishoprick in England are of the Kings foundation, and holden of the King per Baroniam, 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; And in other Records it is said,Ecclesia 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.

They are discharged of purveyance for their own proper goods.

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: 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, 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., 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.

| By this writ it appeareth that this was the ancient common Law, and custome of England and had a sure foundation,Nemo militans Deo, implicet se negotiis secularibus, ut ei placeat cui se probavit. 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.Rex, &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.

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. ,

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.

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.

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’ 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.

* In an action brought against a person (wherein a Capias lieth) for example, an account, the Sheriffe returns quod clericus est beneficiatus, nullum habens laicum feodum, 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, 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: and Ecclesiasticall persons are not bound to appeare at Tournes or viewes of Frankpledge. ,

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.”

These words (omnibus liberis hominibus regni ) 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.

* “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 (subscriptas ) which restraineth libertates to the 38. Chapters of this great Charter.

* Note that courts of justice are also called libertates, because in them the Lawes of the Realm que liberos faciunt, are administred.

| “Heirs.”

At this time Haeredes were taken for Successores and Successors for Haeredes.

“of Us.”

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.

Chapter 2

“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.

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.

“Earls.”

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.

“Barons.”

Sunt & alii potentes sub Rege qui dicuntur Barones, hoc est, robur belli: , 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.Galfridus Cornwall tenet manerium de Burford de Rege, per servitium Baroniae, But it is to be understood, that if the King give Land to one and his heirs, Tenend de rege per servitium Baroniae, 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. 2. Ad defendendum Regem & Patriam tempore belli. And prudent Antiquity hath given unto them two ensignes to resemble, and to put them in minde of their duties; 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. 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, 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. 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. ,

“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. Therefore this Chapter beginneth, Si quis Comitum, vel Baronum; 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, 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. 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’* & 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.

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, 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.

“full age.”

See the first part of the Institutes, Sect. 104.

“the old Relief; that is to say, &c.”

Concerning the word Relevium, 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, and this Act had just cause to say, Per Antiquum relevium, for in the raign of Hen. 2. Grandfather to Hen. 3. the King exacted an incertain reliefe, for so Glanvill saith, 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. 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;Haeredes successoresq; sui cuique liberi, & nullū Testamentum: si liberi non sunt, proximus gradus in possessione, fratres, patrui, avunculi, &c. 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 Successores were Synoyma with haeredes. But in this ancient Statute it is pertinently said, haeres, 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. And they are seised in Jure Episcopatus Monasterii, &c. de Comitatu integro & de Baronia integra. 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) 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.^a 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,^b a Knights living was esteemed at 20.l. per ann. (which in those dayes was sufficient to maintain the dignity of a Knight) his ancient^c 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. 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.

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 Angliae 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 *Regis Edw. vobis reddo cum illis emendationibus, quibus Pater meus emendavit consilio Baronum suorum.

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) 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, 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.

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.

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.

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.

In K. Canutus time, Relevatio Comitis fuit 8. equi, 4. sellati, 4. insellati, & galeae 4. & lorice. 4. cum 8. lanceis, & totidem scutis, et gladii.4. etCC. mancae auri.

Postea *thani Regis, qui ei proximus sit, 4. equi, 2. sellati, 2. non sellati. 2. gladii. 4. lancee, et totidem scuta, et galea cum lorica sua, et 50. mancae auri.

Et: mediocris thani equus cum apparatu suo et arma sua et halstang in Westsexa, &c.

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, 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.

| 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; so if upon the creation of the Earle the King did grant any Mannors, Lands, or Annuity per Comitatum, & nomine Comitis, or sub nomine & honore Comitis, or the like, he should pay, C. li. for reliefe, and so of the Baron, mutatis mutandis 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, or, ad sustinendum nomen et onus, 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, 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, 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.

“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,dicitur autem rationabile relevium alicujus juxta consuetudinem regni de feodo unius militis per centum solidos, so as the fee of a Knight at that time was certaine, viz. the fourth part of his living per annum, 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.

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.

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,viz. De feodo militis integro per centum solidos & qui minus habuerit, but a tenure by Cornage hath no such quantities, nec suscipit majus & minus, 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.Et 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.

Bracton li. 2. fo. 84. cap. 36. nu. 2.Et imprimis de feodo militari quale sit rationabile relevium antiquum de feodo militari distinguitur in Carta libertatum, cap.2.&c. 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.

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, 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, 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.

Chapter 3

“Heir.”

This Statute is onely to be intended of an heire male, whereof haeres 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.

“before that he hath taken of him Homage.”

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, but homagium generally; and, say they, if the Lord should receive homage of the heire, he should not be in Ward at all.

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 by^a our old Books that wrote some after this Statute, and contemporanea expositio est fortissima in lege, 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;^b To warrant the Land to the heir and to that end the heir might have a Writ, De homagio capiendo; 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 do^c as the law was then holden) if the Lord accepted homage de droit of his tenant, (in such sort as the Lord is, if he receiveth homage auncestrel at this day) but otherwise it is of homage in fait; ,Homagium 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. , 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.^f 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.^g 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.

^h 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, 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.

ⁱ 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; 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.

^k 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. 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, Knights service, 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, be made, proveth that Knighthood ought to be by creation making, and cannot be by descent.

^m 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.”

This word (remaneat ) 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 remanere or residue, but of that thing that had his essence or beeing.

Chapter 4

“Keeper.”

A Keeper, some derive the word à cura & sto, quia custos est is cui cura rei stat custodiend’; 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.

“reasonable Issues.”

Exitus is derived ab exeundo, 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, rationabiles is added, for that nothing that is unreasonable is allowed by Law.

“reasonable Customs.”

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’) and the divers significations thereof see hereafter cap.30.

“reasonable Services.”

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, 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; , 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.”

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 commiserimus 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, and there the king remain Gardien.

“We will take of him amends and recompence therefore.”

And this may be upon an office found, or by Writ directed to the Sheriffe to this effect, Quia datum est nobis intelligi, &c.

“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,Si 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. King H. 7. graunted a Ward to the Dutches of Buckingham quamdiu in manibus suis fore contigerit; 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, or, durante minore aetate & quamdiu in manibus nostris, &c.

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? 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. 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, 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.”

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.

(*) 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,Solent tutores Idiotarum & stultorum cum corporibus eorum perpetuo, quod lictium fuit & provisum, eo quod se ipsos regere non noverint,*nam 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.

But then it is demanded, when was this prerogative given to the King? Certain it is, that the King had it before the statute of 17. E. 2. de praerogativa Regis, 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.

And it is as cleare, that when Bracton wrote (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.

Chapter 5

| That this was the Common Law appeareth by Glanvile, who saith,Restituere autem tenentur custodes haereditates ipsis haeredibus inslauratas & debitis acquietatas juxta exigentiam temporis custodiae & quantitatis haereditatis.

“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: for as the spiritualties belonged during that time to the Deane and Chapter, de communi jure, 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, 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.

Regula.But as, In omni re nascitur res quae ipsam rem exterminat, 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, and profunda nequitia, 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, 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,Quia 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. 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.”

Fleta, ubi supra, saith,vendi non debent nec legari: Yet the King may commit the temporalties of them during the vacation, as by the statute of 14. Ed. 3. appeareth.

Chapter 6

This is an ancient maxime of the Common Law: see more hereof in the first part of the Institutes sect. 107. 108. 109.

Chapter 7

It appeareth by Bracton of ancient time, 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.

Also it appeareth by the same Author,quod si mulier dotem habens pro voluntate sua alicui nuberet, praeter assensum Warranti sui de dote, olim ex tali causa dotem amitteret, nunc tamen non amittet.

Item cum semel legitime maritatae fuerint, & postea viduae, iterum non custodientur sub custodia Dominorum, licet teneantur assensum eorum requirere maritandi se, &c. And herewith agreeth Glanvile, who wrote before this statute.

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.”

And this is called her Quarentine, and if the Widow be witholden from her Quarentine, she shall have her Writ, De quarentena habenda 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. , | 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.

“within which days her Dower shall be assigned her.”

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.

“or that the house be a Castle.”

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.Kernellare, or cernellare, by some is derived from the French word kerner, or cerner, to fortifie, inviron, or inclose round about: And by others, from karnean, or carnean, a battlement of a wall; or from karnele, or carnele, 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,Si le chief mees foit chief del Countee, ou del Barony, ou Castle, &c. So as it appeareth by him that she is not to have her Quarentine of that, which is Caput Comitatus, seu Baroniae, and with him, agreeth Fleta, but Bracton only speaketh de Castro. 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,”

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:”

Britton saith,Que eux eient des issues del intier de les terres lour covenable sustenance, &c.

Fleta saith,Ubi inveniantur ei necessaria honeste de haereditate communi, donec rationabilis dos fuerit ei assignata.

So as estoverium here is taken for sustenance: There is an opinion in our Books, that the Widow cannot kill any of the Oxen of the husbands, whiles she remain in the house; But the register saith,Quod interim habeant rationabilia estoveria de bonis eorundem maritorum, which seemeth to be an exposition of this Branch.

In the Statute intituled, De catallis felonum, it is said, Cum ibidem captus coram Justiciariis nostris fuerit convictus de felonia, tunc resid’ catallorum ultra estoverium suum secundum Regni consuetudinem nobis remaneant; , 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.Trover estovers in viver & vesture, that is, things that concern the nourishment, or maintenance of man in victu & vestitu, wherein is contained meat, | drink, garments, and habitation. Alimentorum appellatione venit victus, vestitus & habitatio.

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. ”

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 the reason of this Law is yeelded wherefore they should not marry without the Kings license,Ne forte capitalibus inimicis Domini Regis maritentur.

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,Que el ne marier sans license, & pur ceo si el fait encont son serement el ferra fine.

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 Capite 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. ,

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. 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. ”

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; and this exposition is approved by constant and continuall use and experience, Et optimus interpres legum consuetudo.

Chapter 8

| “We.”

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.”

In this place the Sheriffe and his underbailiffes are intended and meant, and to this day the Sheriffe useth this in his Returns, Infra balivam meam, for Infra comitatum, &c.

“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,”

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.

“Rent.”

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.4. 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’.

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. 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.

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.

“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 possit 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 reddere so as de non apparentibus, & non existentibus eadem est lex, and in that case plegii de debito respondeant, 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. cap. 11.

“and if they will they shall have the Lands and Rents of the Debtor, &c.”

^a Upon these words some have said that the writ de plegiis acquietandis 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;^b 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, and set downe the^c 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, 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.

Chapter 9

^d 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; And this interpretation agreeth with divers of our later Books.

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. See more in particular concerning London, in the fourth part of the Institutes, Cap. of the Courts of the City of London.

Chapter 10

That this was the auncient Law of England, appeareth by Glanvill, and also that the Writ of Ne injuste vexes 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: 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.

And another ancient Author which wrote of the ancient Laws long before this Statute, maketh mention of the Writ of Ne injuste vexes.

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.

The words of the Statute be, nullus distringatur, 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, 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 servitium 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. 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, nor other remedy, he shall have an action upon this Statute; for this Statute intendeth to relieve those, which had no remedy by the Common Law.

Chapter 11

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, and followed the Kings Court, and removable at the Kings will, the Retourns were Ubicunque fuerimus, &c. whereupon | many discontinuances ensued, and great trouble of jurors, charges of parties, and delay of Justice, for these causes this Statute was made.

“Common Pleas.”

Here it is to be understood, a division of Pleas, for Placita are divided in Placita Coronae, and Communia placita:Placita Coronae are otherwise, and aptly called criminalia, or mortalia, and placita communia are aptly called civilia:Placita Coronae are divided into high Treason, misprision of Treason, petit Treason, Felony, &c. and to their accessories, so called, because they are contra coronam & dignitatem; 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 Coronae shall have the suite, 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, 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,Placitorum aliud est criminale, aliud civile; where Placitum criminale, is Placitum Coronae; and Placitum civile,placitum commune, named in this Statute.

And Bracton that lived when this Statute was made, saith,Sciendum 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.

Fleta saith,Personalium injuriarum quaedam sunt criminales, & quaedam civiles; criminalium quaedam sententialiter mortem inducunt, quaedam vero minime.

Britton calleth them pleas de la Corone, & Common pleas, and the Court taketh his name of the Common pleas.

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,Placita in superioribus, &c. sicut & alia quaelibet placita civilia, &c. solet autem id fieri corã Justiciariis Domini Regisin Banco residentibus, &c. And in another place, Coram Justic’ in Banco sedentibus.

Bracton in divers places cals the Justices of the Court of Common pleas, as Glanvill did, Justiciarii in Banco residentes, so called for that the Retourns in the Kings Bench, are Coram Rege ubicunque fuerimus in Anglia, 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. are retournable before the Judges of the Common Pleas, and all Write retournable, Coram nobis ubicunque tunc fuerimus in Anglia, are retournable into the Kings Bench.

Britton speaking of the Court of Common Pleas, saith,Ouster ceo voilloms que Justices demurgent continualment à Westm. ou ailours, ou nous voudrous ordinaire a pleader Common pleas &c.

Fleta saith,Habet & (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.

It is manifest that this Court began not after the making of this Act, as some have thought, for in the next Chapter, and divers others of this very great Charter mention is made De Justiciariis nostris de Banco, 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. 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.

That there was a Court of Common pleas in anno. 1. H. 3. which was before this Act; Martinus de Pateshull, 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, 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.

“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.

2. If any man be in custodia Mareschalli 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, 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, forcible entry, and the like.

4. And a replevin may be removed into the Kings Bench, because the King is to have a fine, and so it is in an assise brought in the County where the Kings Bench is.

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.

6. In a redisseisin or the like.

“our Court.”

Are words collective, and not onley extend to the Kings Bench, but into the Court of Eschequer, Vide Artic. super Cart. Cap. 4.

When judgement is given before the Sheriffe, and the Tenant hath nogoods, &c. in that County, he may have a Certiorare to remove the Record into the Kings Bench, and there have execution, for that is not Placitum. See more hereof in the fourth part of the Institutes, Cap. Of the Court of Eschequer.

Chapter 12

Before the making of this Statute, the Writs of assise of Novel disseisin, and Mordanc’ were retournable, either coram Rege, or into the Court of Common Pleas, and to be taken there, and this appeareth by Glanvill,Coram me, vel coram Justiciariis meis. But since this Statute, these Writs are retournable, Coram Justiciariis nostris ad assisas, cum in partes illas venerint; 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’.

“but in the Shires.”

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 remedium 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.

And where Bracton saith,Succurritur 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. 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.

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.

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, was invented in England since the Conquest, & were called Brevia de assisa novæ disseisinæ; 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, and the tenant pleade, and after the assise is discontinued by the non venu 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: And herewith agreeth Britton, 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.

And Bracton saith,Et 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.

An assise is brought in the Kings bench, 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, and a Nisi prius 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. And therefore if a man be disseised of a Commote or Lordship Marcher in Wales, holden of the King in Capite, 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, 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,Quamvis prohibetur quod communia placita non sequantur curiam nostram, non sequitur propter hoc, quin aliqua placita singularia sequantur Dominum Regem, 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.

“of Mortdauncestor.”

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 Justitiarius (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. This is he that | is constituted by letters patents when the King is out of the Kingdome, to be custos sive gardianus Regni, keeper of the Kingdome, and locum tenens Regis, and for his time is Prorex, 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. John Duke of Bedford 5. H. 5. Richard Duke of Warwick 3. E. 4. and many others: before whom as keepers of the Kingdome, Parliaments have been holden, and as hath been said, the teste 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, and therefore it was enacted that the Parliament should proceed, and not be dissolved by the Kings returne. 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. 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: and this exposition is made ex verbis & visceribus Actus. But then it is demanded, whether this locum tenens Regis, seu custos Regni, 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, where Capitalis Justitiarius is taken for Custos Regni.

It is to be observed, that before the raigne of King Ed. 1. the Kings Chiefe Justice was some time called summus Justitiarius, sometime praesidens Justitiarius, and sometimes Capitalis Justitiarius. In anno primo E. 1. his chiefe Justice was called Capitalis Justitiarius ad placita coram Rege tenenda, 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.

In Glanviles time, and before, the Kings Justices were called Justiciae, the returnes of Writs being coram Justiciis meis, so as the Kings Justices were antiently called Justitiae, for that they ought not to be only Justi in the concrete, but ipsa Justitia, in the abstract. Since that time, as by this great Charter in many places it appeareth, they are called Justitiarii à Justitia. The honourable manner of the creation of these Justices you may read in Fortescue.

“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: for constant allowance in many cases doth make Law.

a The Statute speaking only of an adjournment in Assise of novell disseisin, &c. and yet a certificate of an Assise is within this Statute.

b Regula.b Sed rerum progressus ostendunt multa, quae initio praevideri non possunt.

c 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, and not upon demurrer, doubtfull plea, Estoppel, &c.* 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.

Chapter 13

It appeareth by Glanvil, that before this Statute the Writ of Darrein presentment was retornable coram me vel Justic. meis. And the reason of this Act was for expedition, for doubt of the laps.

By the Statute of W. 2. it is provided, that justices of Nisi prius may give judgement in an assise of Darrein presentment, and Quare impedit.

Chapter 14

“A Freeman.”

A free man hath here a speciall understanding, and is taken for him, qui tenet libere, for a free-holder, as it is taken in the venire fac. Where duodecim liberos, &c.homines are taken for free-holders, and this appeareth by this Act which saith, salvo contenemento suo, 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.

“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. 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.

It appeareth by Glanvile that this Act was made in affirmance of the com-|mon Law, as hereafter shall appeare, but yet the Writ de moderatamisericordia, 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,Est autem misericordia Domini Regis, qua quis per juramentum legalium hominum de viceneto eatenus amerciandus est, ne quid de suo honorabili contenemento amittet.

And Bracton. Salvo contenemento suo. ,

Fleta, continentia. ,

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. 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.”

Here Villanus is taken for one that is a bondman, nativus de sanguine or servus.

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, but yet the Lord may take it at his pleasure.

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. ,

“Earls and Barons shall not be amerced but by their peers, &c.”

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, 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,Comites 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.

“Man of the Church.”

For Ecclesiasticall persons, and their diversities, and degrees, see the first part of the Institutes, ubi sup.

“Benefice.”

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.

Chapter 15

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.

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.

| “Banks.”

Is here taken for Ripa, which is extrema & eminentior terrae ora, quam fluvius utrinque alluit.

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.

Chapter 16

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.

This Statute, saith the Mirror, is out of use, Car plusors riverssont ore appropries & engarnies, & mise in defence, que soilount estre commons a pisher & user en temps le Roy Henry 2.

Chapter 17

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,Nullus alius, praeter regem, possit Episcopo demandare, &c. And therewith agreeth our other old, and later Books, 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.

“Sheriff,”

See for his name, office, and antiquity in the first part of the Institutes. sect. 234.

“Constable.”

Is here taken for Castellanus, a Castellein, or Constable of a Castle, for so doth the Mirror interpret it. And Castellanus est qui custodit castellum, aut est Dominus castelli; And so doth Bracton; Debet, &c. ostendere castellano, sicut constabulario turris, &c. And therewith agreeth Fleta,Item nullae prisae capiantur de aliquo per aliquem constabularium, castellanum, praeterquam de villa, in qua situm est castrum.

And the Statute of W. 1. agreeth herewith, Des prises, des constables, ou castelleins, faits des autres, &c.

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.

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.

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, for inconvenience, these franchises within Mannors are antiquated and gone.

“Coroner,”

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.

For his antiquity, see the Mirror, 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, (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,Purceo 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.

And a Common Merchant being chosen a Coroner, was removed, for that he was Communis Mercator. ,

* By the auncient Law, he ought to be a Knight, honest, loyall, and sage, Et qui melius sciat, & possit officio illi intendere. 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? 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; 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. 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.

And for the further authority of the Coroner in case of high treason, see the Book of 19. Hen. 6. fol. 47. 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.

Chapter 18

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, and not praeceptum; 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, 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.

* 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.

Here also it appeareth, that in this Chapter Constabularius is taken for Castellanus: , 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,Ceo 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. 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. 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.

Chapter 20

Here Constabularius is taken in the former sense: see the first parte of the Institutes Sect. 96.

See this Act in Fleta: 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. 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.

Chapter 21

| 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, and this is explained by divers other Statutes, and by our Books.

The hire or allowance is certainly expressed, as aunciently due, Reddat liberationem antiquitus statutam; 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.

And this liberatio antiquitus statuta, is, (as it appeareth by this Act) per diem, by the day.

Aver-penny, and averagium, are words common in auncient Charters, and signifie to be free from the Kings carriages, cum averiis, and this is meant where it is said, Aver-penny, hoc est, quietum esse de diversis denariispro * averagiis Domini Regis.

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.

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, 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. 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. 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. It is called in Fleta,maeremium.

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.

And see the Statute of Marlebridge. Anno 52. H. 3. Magna Charta in singulis teneatur, tam in hiis, quae ad regem pertinent, quam ad alios, 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.

Chapter 22

This appeareth by Glanvill, 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.

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,Sed 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,quod 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.

And Britton treating of this very matter, saith,Lour 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.

Fleta saith,Si 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.

The Mirror speaking of this Chapter saith,Le 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. 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, 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, 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. 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.

“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.

“be convict.”

Here Convicti in a large sense is taken for Attincti, for the nature, and true sense of both these words, see the first part of the Institutes, and likewise for this word felony there.

| “of Felony.”

Must be understood of all manner of Felonies punished by death, and not of petit larceny, which notwithstanding is felony.

Chapter 23

Rex, &c. 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’.

“Wears”

Kidels is a proper word for open weares whereby fish are caught.

It was specially given in charge by the Justices in Eire, that all Juries should enquire, De hiis qui piscantur cum Kidellis & Skarkellis. ,

And it appeareth by Glanvill, 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, and every publique River or streame, is alta Regia via, 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.

Chapter 24

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, 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.

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.

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. , 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. 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; 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.

“Writ.”

Dicitur ideo breve, quia rem de qua agitur, & intentionem petentis paucis verbis breviter enarrat, sicut facit regula Juris, quae rem, quae est, breviter enarrat. ,

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.

And Fleta defines a Writ,totidem verbis, as Bracton hath done.

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.

And with Bracton agreeth Fleta.

Actio nihil aliud est, quam jus prosequendi in judicio quod alicui debetur, & quod nascitur ex maleficio, vel quod provenit ex delicto, vel injuria.

And the Mirror saith,Action nest aut’ chose que loiall demand de son droit. Actors sont queux suont lour droit per pleint, &c.

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, 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.

Of Criminall, some be in personam, 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. 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.

Of Originall Writs, some be brevia formata, and some ex cursu, some magistralia, & saepius variantur. ,

Regularly the Kings Writs are, ex debito Justitiae, to be granted to the subject, which cannot be denied, and some be ex gratia, as superseded^a speciall liberties, and ^b 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, De ventre inspiciendo.^dDe viis & venellis mundandis, Regist. 267. Of the surety of the good behaviour, or of the peace. ^eDe odio & atia. Association, of de admittendo in socium, of Si non omnes, and the like. Writs of Justicies.

Of Writs of Praecipe, some be, quod reddat, as Writs of right &c. debt, &c. Some be quod permittat, as Writs De quod permittat. Some be quod faciat, as de consuetudinibus & servitiis. De domo reparanda. 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. Regist. 295. Of Conge de eslier, licence to choose a Bishop. Regist. 294. b.De regio assensu. Regist. ibid. To call one to be Chiefe Justice of England. To call apprentices of Law to be servants. De brevibus & Rot. deliberandis. Regist. 295.De restitutione spiritualium. Regist. 294. b. 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.

Of Writs, some are for furtherance of Justice, and for outting of delayes, and to proceed. As the Writ De procedendo ad judicium, 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 ^a if the Judges of themselves delay judgement, there lyeth also a procedendo ad judicium. Againe, there is a procedendo in loquela, & ad judicium after Aid of the King. A Writ de executione judicii.

Some for advancement of Justice not to proceed.

^c 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. To others, as to Judges Temporall, Ecclesiasticall, and Civill. To Serjeants at Armes. To the ^d party that hath the custody of an idiot. To the ^e Major, and Bayliffes, &c. ad amovendum eos ab officio, quousq; inquisitio foret de eorum gestu. ,^fLiberate thesaurario, & camerariis, thesaurario & baronibus.

Note of Writs of right (whereof the praecipe in Capite 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: 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.

Chapter 25

This Act concerning measures and weights, that there should be one measure and one weight through England, is grounded upon the Law of God.Non 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. 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:In 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.

“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. 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.

Chapter 26

“a Writ of Inquisition.”

That is the Writ de odio & atia, anciently called Breve de bono & malo, 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,quod 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, 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. , 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, 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, directed to the Sherife, whereby he was commanded,quod 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.

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, that he shall have it gratis, without fee, and without delay, or deniall, of which the Mirror saith thus,Le 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.

| But this writ was taken away by a later Statute, viz.in 28. Edw. 3. 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 balium 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: 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.

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. 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. 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.

Breve Regis De bono & malo 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;Quod 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. 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.

Chapter 27

“by Fee-ferm.”

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,Fee farmes font terrestenus in fee, a rendre pur eux per annle veray value. ou plus, ou meins, 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.”

*Tenere per firmam Albam est tenere libere in socagio. Vide in libro nigro Scaccarii, capite De officio clericorum de firma blanca. It is commonly called blanch Farme. Lucubrat̄ Ockham, firma blanca, & vide ibi antiquum verbum [dealbari.]

“Burgage.”

See the Custumier de Normandie cap.32. and the Commentariesuponthesame.

“by Knights Service,”

See le Custumier de Norman. cap. 33. De gard de Orphelines, 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, and constantly in use to this day, and needeth no further explanation.

Chapter 28

The Mirror treating of this Chapter saith,Le 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.

By this it appeareth, that under this word balivus, in this Act is comprehended every Justice, Minister of the King, Steward and Bayliffe.

“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.

It appeareth by Glanvill, 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,Ideo consideratum est per Curiam, quod defendens se duodecima manu venit cum lege.

Every wager of Law doth counterbaile a Jury, for the defendant shall make his Law, de duodecima manu, 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.

How much, and for what cause the Law respecteth the number of 12. see the first part of the Institutes.

The party himselfe, when he maketh his Law, shall be sworne de fidelitate, that is, directly or absolutely, and the others de credulitate, that is, that they beleeve that he saith true.

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.

Chapter 29

“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.

“No Freeman.”

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.

| 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, that is, by the Common Law, Statute Law, or Custome of England; 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, 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) 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, (and so are the words, Nec super eum ibimus, to be understood) nor before any other Commissioner, or Judge whatsoever, and so are the words, Nec super eum mittemus, 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,* 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. Acts of Parliament, &c. quoted in the margent.

2. No man shall be desseised, &c.

b. 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. 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, that the cloth should be forfeit: 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.

Note to this word utlagetur, these words, Nisi per legem terrae, do refer.

“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; 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: 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.

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.

“free Customs.”

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: 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:* 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: 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. 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, 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, 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.

The Mirror writing of the auncient Laws of England, saith,Soloient 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.

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, 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. (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). 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: And it is the worst oppression, that is done by colour of Justice.

It is to be noted, that to this Verb destruatur, are added aliquo modo, 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.

“by . . . judgement of his Peers.”

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. , 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; 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, and he shall be Outlawed per judicium Coronatorum, but he shall be tried per judicium parium suorum, when he appeares and pleads to issue.

“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; 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.

And it is here called Judicium parium, and not veredictum, 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 puisne Lord, and so ascending upward.

| And though of ancient time the Lords, and Peeres of the Realme used in Parliament to give judgement, 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, 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, but he lived in prison all the daies of his life. 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. 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, as Queene Anne, the Wife of King Henry the eight was Termino Pasch. anno 28. Hen. 8. 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. 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.

“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; 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.

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, and hereupon all Commissions are grounded, wherein is this clause, facturi quod ad justitiam pertinet secundum legem, & consuetudinem Angliae, &c. And it is not said, legem & consuetudinem Regis Angliae, lest it might be thought to bind the King only, nor populi Angliae, 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.

And aptly it is said in this Act, per legem terrae, that is, by the Law of England: 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 terrae 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.

Against this ancient, and fundamentall Law, and in the face thereof, I finde an Act of Parliament made, 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. 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: 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.

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.

^a 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.

^b 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.

^c 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.

A felony is done, and one is pursued upon Hue and Cry, that is not of ill fame, suspicious, unknown, nor indicted; 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.

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.

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.

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.

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 Mittimus 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.

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.

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. ,

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, 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.

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. 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,Sine ratione mihi videtur, mittere vinctum in carcerem, & causas ejus non significare. 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, 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: 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. 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; , which you may reade in the Register at large. Ubisupra. Andthisis lexterrae, 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.

If a Souldier after wages received, or prest money taken, both absenthimself, or depart from the Kings service; 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. And this is lex terrae, by processe of Law, pro defensione Regis, & Regni, 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.

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, , whereby he was | commanded in these words; Praecipimus tibi quod praefatum, &c. Sine dilatione arrestes, & praefat̃ Abbat̃, &c. liberes secundum regulam ordinis sui castigand’; And this was Lex terrae, by Processe of Law, in honerem religionis.

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,De vi laica amovenda, by which the Sheriffe is commanded in these words;Pracipimus 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. and this is lex terrae, by Processe of Law, pro pace Ecclesiae.

Also a Writ of Ne exeas Regnum 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;Quia 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. 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; 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, so called, because he hath a skin like to an Elephant, there may be a Writ directed to the Sheriffe,Quia 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. 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.

King Edw. 6. did incorporate the Town of S. Albons, and granted to them to make ordinances, &c. 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.

All Commissions that are consonant to this Act, are, as hath been said, Secundum legem, & consuetudinem Angliae. ,

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.

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,

• Gnosius hic Radamanthus habet durissima regna,
• Castigatque auditque dolos, subigitque fateri. ,

And in another place,

• —— leges fixit precio atque refixit.

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, did to S. Paul: For the text saith, Centurio apprehendi Paulum jussit, & se catenis ligari & tunc interrogabat, quis fuisset, & quid fecisset: but good Judges and Justices abhorre these courses.

Now it may be demanded, if a man be taken, or committed to prison contra legem terrae 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. 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.^a He may have an habeas corpus 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.

5.^b He may have a Writ de homine replegiando.

Vide Marlebridge Cap. 8.

6.^c He might by the Common law have had a Writ De odio, & atia, 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 in^d 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: and by the said Act of 42. Edw. 3. all Statutes made against Magna Charta are repealed.

“We will sell to no man, &c.”

^e This is spoken in the person of the King, who in judgement of Law, in all his Courts of Justice is present, and repeating these words, Nulli vendemus &c.

And therefore, every Subject of this Realme, for injury done to him in bonis, terris, vel persona, 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; and then it is both Justice and Right.

“We will not deny or defer, &c.”

These words have beene excellently expounded by latter Acts of Parliament, 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.Judicium redditum per defaltum affirmatur, non obstante breve Regis de progatione judicii.

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, and sub clypeo legis nemo decipitur: but the King may stay his owne suite, as a capias pro fine, for the King may respit his fine and the like.

All protections that are not legall, which appeare not in the Register, nor warranted by our books, are expresly against this branch, nulli differemus: 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 itper praerogativam nostram, quam nolumus esse arguendam; yetsuchprotectionshave beene argued by the Judges, according to their oath and duty, and adjudged to be void: As Mich. 11. Hen. 7. Rot. 124. 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. such a Protection disallowed, and the Sherife amerced for not executing the Writ. Mich. 13. & 14. Eliz. in Hitchcocks case, and many other of latter time: and there is a notable* Record of aucient time in 22. Edw. 1. John de Mershalls case, non pertinet ad vicecomitem de protectione Regis judicare, imo ad curiam.

“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.

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, of goale delivery, of the peace &c. have this clause, Facturi quod ad justitiam pertinet, secundum legem, and consuetudenem Angliae, 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. The law is called rectum, 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 jus against right: recta linea est index sui, & obliqui, 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. 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. ,

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, 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.

Chapter 30

“All Merchants.”

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)defendu fuit que nul merchant Alien ne hantast Angleterre forsque aux 4 foires, ne que nul demurrast in a terre ouster 40. jours.Mercatorũ 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. ,

2. It is to be seene what this Statute hath provided.

1. That before this statute, merchant strangers might be publiquely prohibited, Publice prohibeantur. 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. ,

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.

a 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.

“evil tolls.”

b 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.

c They are called mala tolneta, 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, 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; which is a part of the Common law.

This word consuetudo, hath in Law divers significations. 1. For the Common law, as consuetudo Angliae. 2. For Statute law, as contra consuetudinem communi consilio regni edit. 3. For particular customes, as Gavelkind, Borough English, and the like. 4. For rents services, &c. due to the Lord, as consuetudines & servitia. 5. For customes, tributes, or impositions, as de novis consuetudinibus levatis in regno, sive in terra, sive in aqua. 6. Subsidies, or customes graunted by common consent, that is, by authority of Parliament, pro bono publico, and these be antiquae, & rectae consuetudines, intended by this Act, this agreeth with that, which hath been said before in the end of the exposition upon the eight Chapter.

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, but privatively also, sine omnibus malis tolnetis, 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.

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, 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,Cum 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. 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, 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. 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, for in 48 Hen. 3. Proclamation was made, Contra suggerentes, &c. Regem velle exigere tallagia inconsueta, & introducere extraneos.

And herewith agreeth the Act of Parliament commonly called confirmationes cartarum, , (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: 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; 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, , (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; 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.

See Cap. itineris de novis consuetudinibus levatis in regno, sive in terra, sive in aqua, &c. where consuetudines are taken for customes.

Upon grant to Merchant Strangers of divers priviledges, liberties, and immunities they graunted to the King and his heires,De 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. 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.

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. 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. by the Kings Butler, and is | called Certa prisa, 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: , 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. 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. 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: 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, and there doth excuse himselfe.

Note here is the word impositiones, first used, imposed by any King, in any Record that I have observed, and doe remember.

Anno 14. Edw. 3. cap. 21. 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.

No charge shall be levied of the people, if it mere not graunted in Parliament.

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.

By the Statute of 27. Edw. 3. cap. 4. in print, 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. 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; 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. 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.

| Rot. Parliam 45. Edw. 3. No imposition or charge, &c shall be set without assent of Parliament.

50. Edw. 3. 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. 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 first the black Prince of Waleshaving Aquitaine granted to him, did lay an imposition of fuage or focage, à foco, 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.

And in 3. Hen. 5. 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.

Non potest Rex subditum renitentem onerare impositionibus. ,

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. 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.

And where imposts, or impositions, be generally named in divers Acts of Parliament, 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, 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; 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. 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. 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. 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 obstante 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: 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. 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.

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, 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.

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.

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. ,

For the well intreating and ordering of Merchant strangers and denizens, and for * 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.

Chapter 31

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.

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. 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.”

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.

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.

By this Chapter it appeareth, that a subject may have an honour.

Chapter 32

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.

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.

^a 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: ^b and in 18. Edw. 1. the King answered to a petition in Parliament, Rex non vult aliquem medium, &c. and this question remained after this Statute, about the space of 133. years, viz. till the ^c 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, ^d began in the raign of Hen. 3. which was by this Act, and therefore he beginneth with Henry the third his great Grandfather.

^e 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. 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 Serjantie aliened without licence.

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, 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. 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.

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.

1 First this Statute of 18. Edw. 1. doth begin with a de caetero liceat 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.

| 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, that the King cannot charge the feoffee of part with the entire Rent, but there lieth a Writ De onerando pro rata portione; 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, as to the avoydance of the state of the feoffee by the heire, is taken away, as hath been said, but not simpliciter, 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,Que deformes de tielz terres & tenements alien soit reasonable fine prise in le Chauncery, and though it saith (desormes) 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, 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, but yet in a Quid juris clamat, 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.

Chapter 33

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. 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.

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.

Chapter 34

For this word, Appeale, see the first of the Institutes. 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, for the Statute saith, Propter appellum foeminae. Vide more of this in the first part of the Institutes.

* Fleta saith, Foemina autem de morte viri sui inter brachia sua interfecti, & non aliter poterit appellare; And therewith agreeth the Mirror, Britton, and Bracton.

By inter brachia 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, 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, 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.

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, for not withstanding the attainder he was vir suus, 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.

Chapter 35

“County Court. ”

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.

Curia Comitatus, in Saxon, δcẏpeƷemoτe, i. Comitatus conventus.Ejus duo sunt genera, quorum alterum hodie le Countie Court, alterum le Tourne del Viscount, olim Folkmote, vulgo nuncupatur; , So as many times Turn’ Vicecomitis 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.De generalibus placitis Comitatus it is thus contained, viz.

Sicut antiqua fuerat institutione formatum, salutari Regis imperio vera est recor-|-datione firmatum, generalia *Comitatuum 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. ,

And truly did Hen. 1. say, Sicut antiqua fuerat institutione formatum: 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.Statutum 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.

By the Lawes of King Edward, before the Conquest the first, which succeeded King Alured, it is thus enacted:

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.

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.

Celeberrimus ex omni Satrapia bis quotannis conventus agitor, cui quidemillius Dioecesis Episcopus, & Senator intersunto, quorum alter jura Divina, alter humana populum edoceto; 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.) it was called Tour, or Tourn, which signifieth a circuit, or perambulation.

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.

“County Court.”

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. 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. The Statute of 31. Edw. 3. 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.

“but in due place . . . accustomed.”

This remaineth to this day.

“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 Resiants 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, towards the charge of obtaining the graunt of the said Leet.

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 placita 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.Regula.

The style of the Tourn is Curia franc. plegii Domini Regis tent̄ apud L. coram Vicecomite in Turno suo tali die &c. , 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. , 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.

But for want of the knowledge of antiquity it was obiter, in 18 Hen. 6. 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, abridged by Fitzh. a presenter ceux, que ne sont mises in le decennarie.

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.

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’; 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,

Quodque vera institutio istius curiae evanuit, & velut umbra ejusdem ad huc remanet; habemus quidem Senatus consultum, sed in tabulis repositum, & tanquam gladium in vagina reconditum. ,

But now let us return to our Magna Charta.

“And the View of Frankpledge shall be likewise at the Feast of Saint Michael, &c.”

It is to be observed that the precedent branch is, That Vicecomes non faciat Turnum per Hundredum nisi bis in anno, as hath been said, viz. Semel post Pasch’ & iterum post festum Sancti Michaelis; , 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; and the next words to this clause bee, Ita scilicet quod quilibet habeat libertates suas, quas habuit, &c. 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; So as it must be Visus suus, 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.

For the first, that the Kings peace might be kept; the right institution of the view of Franke pledge, 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, 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; 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, 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. 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, 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. ,

Hereby it appeareth, that the precinct of this frank pledge was called decenna, 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.Ordeine 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. ,

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. ,

“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, which there you may read at large, the sense hereof is, quod Trithinga, sive Theothinga. i. Decemvirale collegium teneatr integrum. 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. ,

What persons shall come to the Tourne and Leete &c., and who be exempted, see the Statute of Marlebridge, and the auncient authors.

“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.”

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 * 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.

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.

“and that he be content with . . . the Sheriff was wont to have, &c.”

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, 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.

Chapter 36

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, 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.

For the word Mortmain, see the first part of the Institutes.

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. Vide Bracton, libro 1. fol. 13. 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) 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 quicunque (i. other whatsoever of like quality of being, a body politique, or corporate, Ecclesiastical, or Lay, sole, or aggregate of many,)terras aut tenementa aliqua emere, vel vendere sub colore donationis aut termini; 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*arte vel ingenio sibi appropriare praesumat, sub forisfactura eorundem.

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. and therefore they gave over them; And they pretending a title to the land (that they meant to get) brought a Praecipe qod reddar, 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.

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, 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. 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.

Chapter 37

“Escuage.”

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.

Chapter 38

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. 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; 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.

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’ 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.

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 ipso in this manner, In cujus rei testimonium has literas nostras fieri fecimus patentes:Teste 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.

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.

Now upon this occasion to treat how these clauses, Datum per manum nostram, per manum Cancellarii nostri, per ipsum Custodem, & Concilium, &c. entred in, and went out: when these clauses, De gratia speciali, and Ex certa scientia, & mero motu 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. 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.

| Statute of Merton

Editum Anno

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.

“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. And where some copies have Coram Cantuar’ Archiepiscopo, & Coepiscopis & suffraganeis; 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, as all Bishops doe, and many Abbots and Priors, as hath beene said, did, in respect whereof they were Lords of Parliament.

“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.

Cap. IX.

“Against the common Order of the Church.”

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.

Of this Canon, or constitution Glanvill writeth thus,Orta 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.

And herewith doe agree not onely other auncient Authors, 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, 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.

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.

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.Thom’ 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.intravit 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 Mortdanc 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.”

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, 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.

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, 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, 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 matrimonium 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,Ad 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: (and there the inconveniences are set down) praecipae cum praemissa cederent manifeste in exheredationem Juris coronae RegisAngliae & regiae dignitatis, ac subversionem status ejusdem Regni notoriam, necnon in praejudicium libertatum, consuetudinum & legum paternarum, 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: so as the law of England is proprium quarto modo 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: 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 saithRogarunt Regem & magnates: Et omnes comites & barones una voce responderunt, Nolumus leges Angliae mutare &c; 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.

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.

Now for that this point was resolved in Parliament, it is here in a large sense called a Statute.

Cap. X.

“Oweth Suit.”

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, 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.

“Trything.”

Here it signifieth a Court which consisteth on three or foure Hundreds, and doth not here signifie a Leet or view of frankpledge.

“Wapentake.”

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. 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.

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.

“Freeman.”

This doth extend to Free-holders in ancient demesne but not to Copieholders.

“Make his Attorney.”

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: 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.

What such an Attorney may doe, and who cannot be Attorney, seé the Statute of West. 1.

“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.

Cap. XI

“Vivariis.”

Is a word of large extent, and ex vi termini 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.

“Proper Imprisonment.”

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, 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. 3. That they should not be imprisoned in the common gaole. All which Dominus Rex contradixit.

Statute of Marlebridge,

EditumAnno gratiae

“Marlebridge”

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.

This Towne in our Books is called a Citie, and the Fréemen thereof Citizens.

“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.

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, and that is twofold; 1. Ad meliorationem regni Angliae.2. Ad exhibitionem justitiae (prout regalis officii exposcit utilicas) pleniorem.

Of what members this parliament consisted, Convocatis discretioribus ejusdem regni, tam majoribus, quàm minoribus.

3. What was the cause of calling this Parliament, Cum regni Angliae multis tribulationibus & dissentionum incommodis nuper esset depressum. 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.

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”

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: 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 fuit ) 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.

| “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.

“on the Monday of Easter Utas,”

That is, in crastino clausi Paschae, or in crastino octabis Paschae, 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. Now the eighth day, accounting the feast day for one, is clausum festi that is the closing up of the feast for many purposes.

“The Third Year of his Reign.”

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. 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, Anno regni sui 3. de voluntate sua, & Consiliarioorm suorum consilio, & communitatis regni sui ibidem convocat’ consensu, ad honorem Dei, &c. ordinavit & statuit quod &c.

Rex Edw. tenuit primum generale parliamentum suum post coronationemsuam in crastino octabis Paschae, Anno 3. regni sui. ,

“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. 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: 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.

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.

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: Which Maxime hath been repeated and affirmed by authority of Parliament.

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. Affirmed also in Parliament.

5. Offendors seldome punished, Et impunitas continuum affectum tribuit delinquendi; 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.

Here shall you see the effects of the Writs of Parliament, as they be at this day: First, the Writ is, Nos de advisamento Concilii nostri; and this Act saith, Le roy per son councel.

2. The Writ is, Pro quibusdam arduis & urgentibus negotiis nos, statum & defensionem regaeni nostri Angli concernentibus: 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.

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 Ministers 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.

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.

“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.

This Chapter concerning Liberties and Franchises, and the Quo warranto, (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, 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, and there is another Statute made | in 18 Edw.1. called Statutum de quo warranto novum, 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: two excellent ends of a Parliament, Regni melioratio, that is for the common good of the Kingdome, the Parliament being Commune concilium, and exhibitio Justiciae plenior, for nothing is more glorious, and necessary, then full execution of Justice.

And it is added, Prout Regalis officii exposcit utilitas; and accordingly at this Parliament many profitable and just Laws were made, as one speaking of this Parliament saith truly,In quo quaedam de Regni statu decreta sunt, quae nunc ut jura, & aequitate plena maxime usurpantur. 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 wars 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. whereupon many that had long continued in quiet possession, were taken into the Kings hands, Eo quod nula tabella constarent: 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?

The good King understanding hereof, and finding himselfe abused by ill counsell, and considering the Statute of Magna Charta, 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’ ”

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”

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 ”

See the Register 162, 163. De libertatibus allocandis, & F.N.B. 229, 230.

“Usque ad adventum nostrum per Comitatum praedictum, vel usque proximum adventum Justiciariorum Itinerantium, &c.”

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, but by Charter: And yet all these at the first were derived from the Crowne.

Secondly, Judicis officium est, ut res, ita tempora rerum Quaerere; 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.

| 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. , 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 constat of the Roll may be shewed forth, &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. which I have observed in divers Records of those Eyres, agreeable to that old Rule, Optimus interpres rerum usus.

“Habeant praemunitionem per 40 dies.”

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.

“Et si forte exceperint quod non tenentur sine brevi.” ,

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; and that the 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.”

By this is appeareth that a descent of Franchises doth put the King to his Writ of Quo warranto, 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 jure for the King serveth for any other title then that which was adjudged; and therefore William de Penbrogge the Kings Attorney, for prosecuting of a Quo warranto against the Abbot of Fischamp for Franches within the Mannour of Steynings sine praecepto, was committed to the Gavle.

“Et si non venerint, &c. praecipiatur vicecom’ quod faciat eos venire, &c. fiat sicut in Itinere Justiciariorum.” ,

If before the Justice in Eyre the party come not, the Franchise should be seised into the Kings hands nomine distruction, 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, (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; for this | opinion is against the authority of our Books, and the continuall practice before the Justices in Eyre.

See the Statutes of 18 E.1. De quo warranto novum, and De tallagio non concedendo.

“De querimoniis factiset faciendis de ballivis regis & aliorum fiat secondum ordinationem prius inde factam.”

That is, according to the Articles of the Justices in Eyrecalled Capitula Itineris 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’ ”

The French saith, Solonque les articles que le roy lour ad livere. 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.

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 Anno

In the Parliament Roll it is intituled, Statutum Regis de terris vendendis & emendis.

| 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. In respect whereof, and of the excellencie of it, this Parliament being holden at Westminster, is called Westm. 3.

Deo, Patriae, Tibi.

A Proeme to the third Part of the Institutes.

In the second part of the Institutes we have spoken onely of Acts of Parliament, (viz.) of Magna Carta, and many ancient and other Acts of Parliament, which we have explained, and therein observed which of them are declaratory of the ancient Lawes of this Realme, which are introductory of new, and which mixt: All of them (excepting a very few) concerning Common Pleas, and these two great Pronouns, Meum and Tuum.

In this Third part of the Institutes, we are to treat De malo, viz. of High Treason, and other Pleas of the Crowne, and Criminall Causes, most of them by Act of Parliament, and some by the Common Law: in which Cases the Law of all other is most necessary to be knowne, because it concerneth the safety of his Majestie, the quiet of the Common-wealth, and the life, honour, fame, liberty, blood, wife, and posteritie of the party accused, besides the forfeiture of his lands, goods, and all that the hath: for it is truly said of these Laws, Reliquae leges privatorum hominum commodis prospiciunt, hae regieae majestati, subditorum vitae, ac publicae tranquillitati consulunt. And that in these Cases the ancient Maxime of the Law principally holdeth, Misera servitus est, ubi jus est vagum; aut incognitum. , And where some doth object against the lawes of England, that they are darke and hard to be understood, we have specially in these and other parts of the Institutes opened such windowes, and made them so lightsome, and easie to be understood, as he that hath but the light of nature, (which Solomon calleth the candle of Almighty God, Prov. 20. 27.) adding industrie and diligence thereunto, may easily discerne the same. And that may be verified of these Lawes, that Lex est lux, Prov. 6. 23. the Law it selfe is a light. See Rom. 2. 14. And when we consider how many acts of Parliament (published in print) that have made new treasons and other capitall offences, are either repeated by generall or expresse words, or expired: How many Indictments, attainders of treasons, felonies, and other crimes, which are not warrantable by law at this day: And how few Book-cases there have been published of treasons, (though a subject of greatest importance) & those very slenderly reported: We in respect of the places which we have holden, and of our own observation, and by often conferences with the Sages of the law in former times concerning criminall causes or Pleas of the Crowne, have thought good to publish this Third part of the Institutes, wherein we follow that old and sure rule, Quod judicandum est legibus, et non exemplis. A worke ardous, and full of such difficultie, as none can either feele or beleeve, but he onely which maketh tryall of it. And albeit it did often terrifie me, yet could it not in the end make me desist from my purpose; (especially in this worke) so farre hath the love and honour of my country, to passe through all labours, doubts and difficulties, prevailed with me.

This, as other parts of the Institutes, wee have set forth in our Englishtongue, not onely for the reasons in the Preface to the first Part of the Institutes alledged, which wee presume may satisfie any indifferent and prudent reader: but specially this Treatise of the Pleas of the Crowne, because, as it appeareth by that which hath been said, it concerneth all the subjects of the realme more neerly by many degrees, then any of the other. Hereunto you may adde that which Robert Holcoth an English man surnamed Theologus magnus, , upon the second Chapter of the book of Wisdome, in or about the 20. yeare of King E.3. wrote to this effect. Narrant historia quod cum Willielmus dux Normannorum regnum Angliae conquisivisset, deliberavit quomodo linguam Saxonicam possit destruere, & Angliam, & Normanniam in idiomate accordavi., & ideoordinavit, quod nullus in curia regia placitaret nisi in Gallico, & iterum quod puer quilibet ponendus ad literas addisceret Gallicu, & per Gallicam Latinum, quae duo usque hodie ob servantur. Haec ille. But the statute of 35 E.3. cap.15. made not long after Holcoth wrote, hath taken these edicts of a Conqueror away, and given due honour to our English language, which is as copious and significant, and as able to expresse any thing in as few and apt words, as any other native language, that is spoken at this day. And (to speake what we think) we would derive from the Conqueror as little as we could.

When Henry the first died, all the issue male of the Conqueror, and of his sonnes were dead without issue male.

The wife of King H. 1. was Mawde daughter of Malcolme King of Scotland surnamed Canmor, and of Margaret his wife, who was the granchild of Edmond Ironside King of England. viz. The said King Edmond had issue Edward surnamed the Outlaw, because he lived a long time beyond sea with Salamon King of Hungary out of the extent of the lawes of this Realme. Edward had issue the said Margaret his eldest daughter, famous for her piety and vertue; she had issue Mawde wife of King H. 1. who by her had issue Mawde, of whose English blood by Geffery Plantagenet Earle of Anjou all the Kings of England are lineally descended.

We have in this Third part of the Institutes cited our ancient Authors, and bookes of Law, viz. Bracton, Britton, the Mirror of Justices, Fleta, and many ancient records, never (that we know) before published, to this end, that seeing the Pleas of the Crown are for the most part grounded upon, or declared by statute Lawes, the studious Reader may be instructed what the Common Law was before the making of those statutes, whereby he shall know, whether the statutes were introductory of a new law, declaratory of the old, or mixt, and thereby perceive what was the reason and cause of the making of the same, which will greatly conduce to the true understanding thereof.

We shal first treat of the highest, and most hainous crime of High Treason, Crimen laesae Majestatis; and of the rest in order, as they are greater and more odious then others.

Cap. I.
Of High Treason.

By the statute of 25 E.3.de proditionibus is declared in certaine particular cases, what offences shall be taken to be treason, with this restriction, that if any other case supposed to be treason should happen before any justices, the justices should tarry without going to judgment of the treason, till the case be shewed before the king and his parliament, whether it ought to be adjudged treason or other felony: therefore we will lay our foundation upon, and begin with that act of parliament, the letter whereof in proprio idiomate ensueth.

Also, whereas divers opinions have been before this time, in what case treason shall be said, and in what not; the king at the request of the lords and of the commons, hath made a declaration in the manner as hereafter followeth: that is to say, when a man doth compasse or imagine the death of our lord the king, of my lady his queene, or of their eldest sonne and heire: or if a man doe violate the kings compagnion, or the kings eldest daughter unmarried, or the wife of the kings eldest sonne and heire: or if a man doe levie warre against our lord the king in his realme, or be adherent to the kings enemies in his realme, giving to them aide and comfort in the realme or elsewhere, and thereof be provably attainted of open deed by people of their condition. And if a man counterfeit the kings great or privie seale, or his money: and if a man bring false money into this realme counterfeit to the money of England, as the money called Lusheburgh, or other like to the said money of England, knowing the money to be false, to merchandize or make payment, in deceipt of our said lord the king and of his people. And if a man slay the chancellor, treasurer, or the kings justices of the one bench or the other, justices in eire, or justices of assize, and all other justices assigned to heare and determine, being in their place doing their offices. And it is to be understood, that in the cases above rehearsed, it ought to be judged treason, which extend to our lord the king and his royall majestie; and of such treason the forfeiture of the escheates pertaineth to our lord the king, as well of the lands and tenements holden of others, as of himself.

And albeit nothing can concerne the king, his crowne, and dignity, more then crimen laesae majestatis, high treason: yet at the request of his lords and commons, the blessed king by authority of parliament made the declaration, as is above-said: and therefore, and for other excellent lawes made at this parliament, this was called benedictum parliamentum, as it well deserved. For except it be Magna Charta, no other act of parliament hath had more honour given unto it by the king, lords spirituall and temporall, and the commons of the realme for the time being in full parliament, then this act concerning treason hath had. For by the statute of 1 H.4. cap. 10. reciting that where at a parliament holden 21 R.2. divers paynes of treason were ordained by statute, in as much as there was no man did know how to behave himselfe, to doe, speak, or say, for doubt of such paines: It is enacted by the king, the lords and commons, that in no time to come any treason be judged otherwise, then it was ordained by this statute of 25 E.3. The like honour is given to it by the statute of 1 E.6. cap. 12. and by the statute of 1 Ma. cap. 1. sess. 1. different times, but all agreeing in the magnifying and extolling of this blessed act of 25 E.3. Of this act of 1 Mariae, we shall speak more hereafter. But to proceed to give a light touch how other acts of parliament have been called. The parliament holden at Oxford, an. 42. H.3. was called insanum parliamentum. 12 E. 2. the parliament of whitebands, albarum fibularum or metellarum, 5 E.3. parliamentum bonum, 10 R.2. parliamentum quod fecit mirabile, that wrought wonders. 21 R.2. magnū parliamentū. 6 H.4. parliamentū indoctū, lack-learning parliament. 4 H.6. parliamentū fustiū, the parliament of bats. The session of parliament in an. 14. H.8. called the black parliament. The act of 1 E.6. was called parliamentū pium, the pious parliament. And the said act of 1 Mar. parliamentū propitium, the merciful parliament. The parliaments of queen Elizabeth stiled pia, justa, et provida. The parliament holden anno 21 of king James, called foelix parliamentum, the happy parliament. And the parliament holden in the third yeare of our soveraigne lord king Charles, benedictum parliamentum, the blessed parliament. The severall reasons of these former appellations appeare of record and in history, and the latter are yet fresh in memory. At the making of the statute of 25 E.3. the high courts of justice were furnished with excellent men, viz. Sir William Shardshillknight (shortly written in bookes Shard) lord chiefe justice of the kings bench, and his compagnions justices of that court; Sir John Stonor knight, commonly written in books Stone, lord chief justice of the court of common pleas, and his compagnions justices of that court; and Gervasius de Wilford, lord chiefe baron of the exchequer, men famous in their profession, and excellent in the knowledge of the lawes. At the making of the statute of 1 H.4. were Sir Walter Clopton knight, lord chiefe justice of the kings bench, and his compagnions justices of that court; and Sir William Thirning knight, lord chief justice of the court of common pleas, and his compagnions justices of that court; and Sir John Caffie knight, lord chiefe baron of the exchequer; men equall to any of their predecessors in the knowledge of the lawes. At the making of the statute of 1 E.6. were Sir Richard Lister knight, lord chiefe justice of the kings bench, and his compagnions justices of that court; and Sir Edward Montague knight, lord chiefe justice of the court of common pleas, and his compagnions justices of that court; and Sir Roger Cholmeley knight, lord chiefe baron of the exchequer; men of that excellency, as they were worthy of the name of The worthies of the law, At the making of the statute of 1 Mar. were Sir Thomas Bromley knight, lord chiefe justice of the kings bench, and his compagnions justices of that court; and Sir Richard Morgan, knight, lord chiefe justice of the court of common pleas, and his compagnions justices of that court; and Sir D. Brook knight, lord chiefe baron of the exchequer, men renouned for their great knowledge and judgement in their profession. All these we have named in the honour of them, and of their families and posterities, for that they in their severall times were great furtherers of these excellent lawes concerning treason. In memoria aeterna erit justus. And all this was done in severall ages, that the faire lillies and roses of the crowne might flourish, and not be stained by severe and sanguinary statutes. But let us come to the act it selfe, and for the better understanding thereof, and of the book-cafes, and other records grounded upon the same: let us divide this act concerning high treason into severall classes or heads, and then prosecute the same in order.

So as treason is membrum divisum, and these severall classes or heads are

membra dividentia. And if the offence be not within one of these classes or heads, it is no treason.

(1) [Treason] is derived from [trahir] which is treacherously to betray. Trahue, betrayed, and trahison, per contractionen, treason, is the betraying it selfe.

Inter leges Canuti, fo 1. 118. ca. 61. Proditiones (hlaford swice) numerabantur inter scelera jure humano inexpiabilia. Treason is divided into two parts, viz. high treason, alta proditio, and into petit treason, proditio parva. The Latin word used in law is proditio (à prodere) and thereof cometh proditioniè, which of necessity must be used in every indictment of treason, and cannot be expressed by any other word, peripharsis, or circumlocution.

(2) [Ad fait declarisement.] This law is for the most part declaratory of the ancient law, and therefore this word (declarisement) is used. Butyetthestudious reader shall observe, that in divers clauses it addeth to the former law, where-unto this word (declarisement) will sufficiently extend.

[When a man]

This extendeth to both Sexes, Homo including both Man and Woman. This Act is generall, and therefore extendeth to persons which claimed a priviledge to be exempted from Secular Jurisdiction. (For example,) Adam, de Orleton Bishop of Hereford was indicted of High Treason for aiding the Mortimers.

&c. with Men, and Armour against King E.2, &c. Whereupon he was arraigned, and alledged Se absque ofsensa Dei, & Sanctxae Ecelesiae, & absque licential Domini summi Pontificis non posse nec debere respondere in hac parte. And thereupon the Archbishop of Canterbury, York, and Dublin, and their Suffragans came to the Barre, claimed his priviledge, and took him away, and he was so far from punishment, as he was after translated to Worcester, and after to Winchester. But this Statute (to cleare all doubts) extendeth to all persons, * as well Ecclestasticall as Temporall, and so hath it ever since been put in execution, as hereafter in divers Cases it appeareth. See hereafter Cap. Murdre & Larceny.

A Man that is non compos mentis, as shall be said more fully hereafter in the next Section, or an Infant within the age of discretion is not (un home) within this Statute; for the principall end of punishment is, That others by his example may feare to offend, De poena ad paucòs, metus ad omnes perveniar: But such punishment can be no example to Mad-men, or Infants that are not of the age of Discretion. And God forbid that in Cases so penall, the Law should not be certaine; and if it be certaine in case of Murder and Felony, à fortiori, it ought to be certaine in case of Treason.

If a man commit Treason or Felony and confesseth the same, or be thereof otherwise convict, if afterward he become De non sane memorie (qui patitur exilium mentis) he shall not be called to answer: Or if after judgement he become De non sane memorie, he shall not be executed, for it cannot be an example to others.

And all Aliens that are within the Realme of England, and whose Sove-|-raignes are in amity with the King of England, are within the protection of the King, and doe owe a locall obedience to the King, (are homes within this Act) and if they commit High Treason against the King, they shall be punished as Traytors, but otherwise it is of an Enemy, whereof you may reade at large Lib. 7. Calvins Case. fol. 6. &c 17, &c.

[Doth compasse.]

Let us see first what the compassing or imagining the beath of a Subiect was before, and at the time of the making of this Statute, ^a when Voluntas reputabatur pro facto. And ^b Bracton saith, that Spectatur voluntas & non exitus, & nihil interest utrum quis occidat, aut causam mortis praebeat. So as when the Law was so holden, he must causam mortis praebere, that is, declare the same by some open deed tending to the execution of his intent, or which might be cause of death, as Justice

^c Spigurnel reporteth a Case adiudged; That a man’s wife went away her Avowterer, and they ^d Compassed the Death of the Husband, & as he was riding towards the Sessions of Oier and Terminer and Gaole-delivery, they assaulted him and stroke him with weapons, that he fell downe as dead, whereupon they fled; the Husband recovered and made Hue and Cry, and came to the Sessions and shewed all this matter to the Justices, and upon the Warrant of the Justices, they were taken, indicted, and arraigned; and all this speciall matter was found by Verdict; anditwasadjudged that the man should be hanged, and the woman burnt. And Sir William

Beresford Chiefe Justice of the Common Pleas said, That before him and his Companions Justices of Dier and Terminer and Gaole-delivery, a Youth was arraigned, for that he would have stolen the goods of his Master, and came to his Masters bed, where he lay asleepe, and with a knife attempted with all his force to have cut his throat; and thinking that he had indeed cut it, he fled, whereupon the Master cried out, and his Neighbours apprehended the youth; and all this matter being found by speciall Verdict, in the end he was adjudged to be hanged, &c. Quia *voluntas reputabitur pro facto. So as it was not a bare compassing or plotting of the death of a man, either by word, or writing, but such an overt deed, as is aforesaid, to manifest the same. So as if a man had compassed the death of another, and had uttered the same by words or writing, yet he should not have died for it, for there wanted an overt deed tending to the execution of his compassing. ^eBut if a man had imagined to murder, or rob another, and to that intent had become Insidiator viarum, and assaulted him, though he killed him not, nor took any thing from him, yet was it felony, for there was an overt deed. But in those dayes, in the Case of the King, if a man had compassed, or imagined the death of the King (who is the Head of the Common-wealth) and had declared his compassing, or imagination by words or writing, this had been High Treason, and a sufficient overture by the ancient Law. And herewith agree all ourancient Books. Glanvil saith, Cum quis de morte Regis, &c. infamatur, &c.

Bracton in the title De criminibus laesae majestatis.Ipseaccusatuspraeloquutus fuit mortem regis. And Britton. fol. 16. Grand treason est a compasser nostre mort, and fo. 39.b. Cyface lenensor son appeale &c. que il oya mesme céi

John pur parler tiel mort, ou tiel treason &c. And Fleta saith in his title De crimine laesae majestatis, Si quis mortem regis ausu temerario machinatus fuerit, &c. quamvis voluntatem non perduxit ad effectum. And the Mirrorsaith, Crime de majestic est un peche horrible fait al roy &c. p. ceux q occirent le roy, ou compassant a faire. And it will delight you (in respect of reverend antiquity) to heare a president of an appeale (which then and after was in use) of high treason, en pleine pliam &c. en temps roy Edmond en cestes parolx. Rocelyn icy dit vers Waligrot illonq q a tiel iour tiel anne del raigne de tiel roy, en tiel lieu vient celuy Waligrot a céi Rocelyn, et luy trova destre en company, et en aide ensemblement ove Atheling, Thurkild, Ballard, et autres de faire prisoner, ou en tache pur occire nré seignior le roy Edmond, ou en auter manner p. coupe feloniousment, et a ceo faire fuer’ entreinres a ceo counsel celer, et a ceo felony issint fornir solong lour poier. By all which it is manifest, that compassing, machinating, counselling, &c. | to kill the King, though it hath no other declaration thereof but by words, was High-treasonby the Commonlaw.Andseehereafter, verb. per overt fait, et de ceo provablement, &c.

[doth compasse or imagine.]

So as there must be a comapassing or imagination, for an Act done per infortunium, without compassing, intent, or imagination: is not within this Act, as it appeareth by the expresse words thereof. Et actus non facit reum, nisi mens fit rea.Regula. And if it be not within the words of this Act, then by force of a clause hereafter, viz. Et pur ceo que plusors auters, &c. It cannot be adjuged treason, untill it be declared treason by Parliament, which is the remedic in that case, which the makers of the law provided in that case. This compassing, intent, or imagination, though secret, is to be tryed by the peers, and to be discovered by circumstances precedent, concomitant, and subsequent, with all endeavour evermore for the safety of the King. This was the case of Sr. Walter Tirrel a French Knight, who the first day of August Ann. 13 Williel. 2. Ann. dom. 1100 being a hunting with the King in the new forest, was commanded by the King to shoot at a Hart,Exiit ergo telum volatile, et obstante arbore in obliquum reflexum faciens, per medium cordis regem sauciavit, qui subito mortuus corruit.

It appeareth also by the Custumer of Normandy treating of treason, and the exposition of the same, that this act was not treason. To calculate or seek to know by setting of a figure or witchcraft, how long the King shall raigne or live, is no treason, for it is no compassing, or imagination of the death of the King, within this statute of 25 E.3. And this appeareth by the judgement of the Parliament in 23. Eliz. whereby this offence was made felony during the life of Queen Eliz. which before was punishable by fine and imprisonment.

The ancient law was, that if a mad man had killed or offered to kill the King, it was holden for treason; and so it appeareth by King Alfreds law before the Conquest, and in lib. 4. in Beverlyes case. But now by this statute and by force of these words, Fait compasser ou imaginer la mort, he that is non compos mentis and totally deprived of all compassings, and imaginations, cannot commit High Treason by compassing or imagining the death of the King: for furiosus solo ferore punitur: but it must be an absolute madnesse and a totall deprivation of memorie. And this appeareth by the statute of 39. H. 8. for thereby it is provided that if a man being Compos mentis commit High Treason, and after accusation, &c. fall to madnesse, that he might be tryed in his absence, &c. and suffer death, as if he were of perfect memory, for by this statute of 25 E.3. a mad man could not commit High Treason. It was further provided by the said Act of 33 H.8. that if a man attainted of treason became mad, that notwithstanding he should be executed; * which cruell and inhumane law lived not long, but was repealed, for in that point also it was against the common law, because by intendment of law the execution of the offender is for example, ut poena ad paucos metus ad omnes perveniat, as before is said: but so it is not when a mad man is executed, but should be a miserable spectacle, both against law, and of extreame inhumanity and cruelty; and can be no example to others.

[Death.]

^a He that declareth by overt act to depose the King, is a sufficient overt act to prove, that be compasseth and imagineth the death of the King. And so it is to ^b imprison the King, or to take the King into his power, and manifest the same by some overt act, this is also a sufficient overt act for the intent aforesaid. But peruse advisedly the statutes of 13 Eliz: cap. 1. 2. & 14 Eliz. cap. 1.

[Of our Lord the King.]

There words extend to all his successors, as it hath been alwayes taken.

[The King.]

Is to be understood of a King regnant, and not of one that hath but the name of a King, or a nominative King, as it was resolved in the case | of King Philip, who married Queen Mary, and was but a nominative King, for Queen Mary had the office and dignity of a king, so as she wanted within this Act of 25 E. 3. And hee that had the name, and not the office and dignity of the King was not within it. And therefore an Act was made, that to compasse or imagine the death of King Philip, &c. during his marriage with the Queen, was treason. A Queen regnant is within these words, (nré seignior le Roy ) for she hath the office of a King.

This Act is to be understood of a King in possession of the Crowne, and Kingdome: for if there be a King regnant in possession, although he be Rex de facto, et non de jure, yet is he seignior le Roy within the Purview of this statute. And the other that hath right, and is out of possession, is not within this Act. Nay if treason be committed against a King De facto, et non de jure, and after the King de jure commeth to the Crowne, he shall punish the treason done to the King de facto: And a pardon granted by a King de jure, that is not also de facto, is voyde.

If the Crown descend to the rightfull heire, he is Rex before Coronation: for by the Law of England there is no interregnum: and Coronation is but an ornament or solemnity of honour. And so it was resolved by al the Judges Hil. 1. Ja. in the case of Watson and Clarke Seminary priests: for by the law there is alwayes a King, in whose name the lawes are to be maintained, and executed, otherwise Justice should faile. Divers Kings before the Conquest voluntarily renounced their Kingly office: And so did King H.2. in the 16. yeare of his reigne, and Henry his sonne was created and crowned.

It appeareth by Britton, that to compasse the death of the father of the King, is treason, and so was the law holden long after that: for after King E.2. had dismissed himselfe of his kingly office, and duty, and his sonne by the name of E. 3. was crowned, and king regnant, those cursed Caitifs Thomas Gourny, and William Ocle, and others were attainted of High Treason for murthering the Kings father, who had been King by the name of E.2. and had judgement to be drawne, hanged, and quartered.

* The like judgement was given against Sir John Matrevers knight, and others, as being guilty of the death of the Kings uncle, Edmond Earl of Kent, which at that time (being so neer of the bloud royall) was by some holden also treason. But now this Act of 25 E.3. hath restrained High treason in case of death (al nré seignior le Roy, sa compaigne, et al eigne fitz, et heire le Roy.

Nicholas de Segrave was charged in open parliament in praesentia dn̄i. Reg. comitum, baronum, et aliorum de consilio Regis tunc ibi existent, , that the King in the warre of Scotland being amongst his enemies, Nicholas Segrave his liege man, and holding of the King by homage, and fealty, served him for his aid in that warre, did maliciously move contention and discord without cause, with John de Crombewell, charging him with many enormious crimes, and offered to prove it upon his body. To whom the said John answered, that he would answer him in the Kings Court, as the Court should consider, &c. and thereupon gave him his faith. After Nich. withdrew himselfe from the Kings Host, and from the Kings aid, leaving the King amongst his enemies, in periculo hostium suorum, and adjourned the said John to defend himself in the court of the King of France, and prefixed him a certaine day, Et sic quantum in eo fuit, subjiciens, et submittens dominium regis, et regni subiectioni dn̄i. regis Franciae, ad hoc faciendum, iter suum arripuit usque Dovoriam, ad transfrerandum, &c. All which the said Nich. confessed, et voluntari dn̄i. regis de alto et basto inde se submisit. Et super hoc dn̄s Rex volens habere avisamentum Comitum, Baronum, Magnatum, et aliorum de consilio suo, injunxit eisdem in homagio, fidelitate, & ligeantia quibus ei tenentur, quod ipsum fideliter consulerent, qualis poena pro tali facto sic cognito fuerit infligenda: qui omnes, habito super hoc diligenti tractaru, & avisamento, consideratis, & intellectis omnibus in praedicto facto contenus, &c. dicuut quod hujusmodi factum meretur amissionem vitae & membrorum, &c. So as this offence was then solemnely in parliament adjudged High treason. But this is | taken away by this Act of 25 E.3. being not under any of the classes, or heads specified in this act.

So piracy by any of the Kings subjects upon another, was taken to be treason before this Act, for so is the book to be intended, because a pirat is Hostis humani generis. But by this Act it is not now to be judged treason. See hereafter in the chapter of Piracy.

One doth marie a Queen regnant, if the husband compasse the death of the Queene, and declare the same by over act, he is guilty of treason, and punishable by this act, for to this and many other purposes, she is a distinct person by the common law. And so if a Queene wife of a King regnant, compasse the death of the King, and declare the same by overt act, she is guilty of treason, and punishable by this act. So as (that we may speak it once for all) by these and many others that might be cited, (some whereof shall hereafter be touched) the preamble of this act appeareth to be true, that divers opinions had been before the making of this act, what offences should be adjudged High treason, and what not.

This statute having restrained the compassing, &c. of death to the King, Queen, & Prince, it came to passe after the making of this act, that in 3 R.2. two Citizens of London, John Kerby Mercer, and John Algore Grocer conceiving malice against John Imperiall Janevois of S. Mary in Genoa that came as Ambassador from the state of Genoa to the King (under the Kings Letters of safe conduct, for alliance to be had betweene the King and the Duke and Comminalty of Genoa aforesaid) for that the said John Imperiall had obtained a monopolie to furnish this land (keeping his staple at Southampton of all such wares as came from the Levant, so plentifully as was to be had in all the west parts of Christendome, the said John Imperiall was killed by them, as more at large appears by the record. And albeit the said John Imperiall was an Ambassadour under the Kings safe conduct, and the killing of him was justi belli causa, yet the killing of him was no treason, because it was not under any of the said classes or heads, until it was at that time declared by parliament in these words, Quel case examine & dispute inter les seigniors, & commons, & puis mŕe al Roy en pleine parliament, estoit illonques devant nŕe seignior le Roy declares, determinus & assentus, que tiel fait, & coupe est treason, & crime de royall majestie blemye, en quel case il ne doir allower a nulluy priviledge del clergie, and accordingly the said Kerby and Algore were attainted of High treason in the Kings bench, Hill. 3 R.2. ubi supra: but this declaration is taken away by the statute of 1 Mariae, as hereafter shall be said, and yet of this declaration we shall make much use hereafter.

In the 22 yeare of E.3. which was about 3 yeares before the making of this act, one John at Hill had murdered A. de Walton the Kings Ambassadour,nuncium dn̄i regis miss. ad mandatum regis exequendum: this was adjudged High treason, for which he was drawne, hanged, and beheaded, &c. For true it is, quod legatus ejus vice fungitur, a quo destinatur, & honorandus est sicut ille cujus vicem gerit, & legatos violare contra jus gentium est. But by this Act of 25 E.3. it is restrained to the death de nŕe seignior le Roy, and therefore, prorex, is not within this statute.

[Of my Lady [his queene].]

This word compaigne, (which is all one with consort or wife) was used, that compassing, &c. must be during the marriage with the King, for after the Kings death she is not sa compaigne, and therefore it extendeth not to a Queene dowager, and for this cause this word compaigne, was used in this Act.

[Their eldest sonne and heire.]

The eldest sonne and heire of a Queen Regnant is within this Law. Before this Statute some did hold, that to compasse the death of any of the Kings children, was Treason. But by this Act it is restrained to the Prince, the Kings Sonne, being heire apparant to the Crowne for the time being: and he need not be the first begotten sonne, for the second after the decease of the first begotten without issue, is Fitz eigne within | this statute, & sic de caeteris. If the heire apparent to the Crowne be a collaterall heire apparent, he is not within this statute, untill it be declared by Parliament, as it was in the Duke of Yorks case.

Roger Mottimer Earle of March was in Anno Domini 1487 (11 R.2.) proclaimed heire apparent. Anno 39 H.6. Richard Duke of York was likewise proclaimed heire apparent. And so was John de la Poole Earle of Lincolne, by R.3. And Henry Marquise of Exeter, by King Henry the eighth. But none of these or of the like, are within the Purvieu of this statute. And now that we have handled compassings and imaginations, let us proceed to the residue which concerne Acts and Deeds.

Heire is here taken for heire apparant, for he cannot be heire in the life of the Father.

[If a man doe violate the kings compagnion.]

The Mirror saith,Crime de Majestie vers le Roy p ceux Avowterors q̄ spergissent la feme le Roy. Whereby it appeareth that this was High Treason by the common Law.

Violare is here taken for carnaliter cognoscere; , and it is no treason, unlesse it be done during the marriage with the King, and extendeth not to a Queen Dowager, as hath been said. And if the wife of the King doth yeeld and consent to him that committeth this treason, it is treason in her.

[The wife of the kings eldest sonne and heire.]

This also extendeth to the wife of the Prince during the coverture betweene them, and not to a Dowager, and if the wife yeeld and consent to him that commits this treason, it is treason in her.

[Heire.]

Here is taken ut supra, for heire apparant.

[or the kings eldest daughter unmarried.]

(That is,) eldest Daughter not married at the time of the Violation, albeit there had been an elder daughter then she, who is dead without issue. The Mirror. Avowterors q́ spergissent la file le Roy eignes legittime, avant ceo q el soit marie.

And the reason that the eldest only is here mentioned, is, for that for default of issue Male, she only is inheritable to the Crowne.

[Or if a man doe levie warre against our lord the king.]

^a This was High Treason by the Common Law, for no subiect can levie warre within the Realme without authority from the King, for to him it only belongeth. See F.N.B. 113.a. Le Roy de droit saver & defender son realme vers enemies, &c.

^b A compassing or conspiracy to levie war, is no Treason, for there must be a levying of war in facto. But if many conspire to levie war, and some of them do levie the same according to the conspiracy, this is High Treason in all, for in Treason all be principals, and war is levied.

If any levie war to expulse strangers, to deliver men out of prisons, to remove Counsellors, or against any statute, or to any other end, pretending Reformation of their own heads, without warrant; this is levying of war against the King: because they take upon them Royall Authority, which is against the King. There is a diversity betweene levying of war and committing of a great Riot, a Rout, or an unlawfull assembly. ^c For example, as if three, or foure, or more, doe rise to burne, or put downe an inclosure in Dale, which the Lord of the Manor of Dale hath made there in that particular place; this or the like is a Riot, a Rout, or an unlawfull Assembly, and no Treason. But if they had risen of purpose to alter Religion established within the Realme, or Laws, or to go from Town to Town generally, and to cast downe Inclosures, this is a levying of war (though there be no great number of the Conspirators) within the Purvien of this Statute because the pretence is publick and generall, and not | private in particular. And so it was resolved in the Case of Richard Bradshaw Miller, Robert Burton Major, and others of Oxfordshire, whose Case was. That they conspired and agreed to assemble themselves with so many as they could procure at Enslowe-Mill in the said County, and there to rise, and from thence to go from Gentlemans house to Gentlemans house, and to cast downe Inclosures, as well for enlargement of High-wayes as of errable Lands. And they agreed to get Armour and Artillery at the Lord Norrys his house, and to weare them in going from Gentlemans house to Gentlemans house for the purpose aforesaid, and to that purpose they persuaded divers others: and all this was confessed by the offenders. And it was resolved, That this was a compassing and intention to levie war against the Queen, because the pretence was publick within the statute of 13 Eliz. ca.1. (the Letter whereof herein shortly followeth,) and the Offenders were attainted and executed at Enslowe Mill.

And this diversity is proved by a latter Branch of this Act.

Et si per case ascun home de cest realme chimancha arme discovert secretment ove gents armes, contre ascun autre, pur luy tuer, ou disrober, ou pur luy prender, ou retayner tanq il face fine, ou ransome pur sa deliverance, nest lentention le Roy & de son counsell, q en tiel case soit adjudge treason, mes soit adjudge felony, ou trespasse, solonq le ley del tŕe auncienement use. Whereby it appeareth, that bearing of armes in warlike manners, for a private revenge or end, is no levying of war against the king within this statute. So that every gathering of force is not High Treason. And so it was resolved in Parliament in 5 H.4 Rot. Parliam. nu 11. & 12. the Earle of Northumberlands Case.

By the said Statute of 13 Eliz. cap.1. it is enacted, declared, andestablished. “That during the naturall life of Queene Elizabeth, if any within the Realme or without, should compasse, imagine, invent, devise, or intend to levie war against her Majesty, within this Realme, or without, and the same declare by writing or word, &c. that it should be High Treason:” So during the life of the Queen a conspiracy to levie war was High Treason, though no war were levied; and upon that law, Bradshaw, Burton and others, were attainted of High Treason, for conspiracy only to levie war. But it was resolved by all the Justices, that it was no treason within the statute of 25 E.3. as hath been said. The words in this law are [levie guerre] An actual Rebellion or Insurrection is a levying of war within this Act, and by the name of levying war is to be expressed in the Indictment. If any with strength and weapons invasive and defensive, doth hold and defend a Castle or Fort against the King and his power, this is levying of war against the King within this Statute of 25 E.3.

[Or be adherent to the kings enemies in his Realme, giving to them aide and comfort in the realme or elsewhere.]

It was resolved by all the Judges of England in the reigne of King H.8. that an Insurrection against the Statute of Labourers, for the inhansing of salaries and wages, was a levying of war against the King, because it was generally against the Kings Law, and the offenders took upon them the reformation thereof, which subiects by gathering of power ought not to do. It was specially found, that divers of the Kings subjects did minister and yeeld victuals to Sir John Oldcastle Knight, and others, being in open war against the King, and that they were in company with them in open war; but all this was found to be pro timore mortis, & quod recefierunt, quam cito procuerunt; and it was adiudged to be no Treason, because it was for feare of death. Et actus non facit reum, nisi mens fit rea. And therefore this in them was no leying of war against the King within this Act.

[Adherent.]

^a This is here explained, viz. in giving aide and comfort to the Kings enemies within the Realme or without: Delivery or surrender of the Kings Castles or Forts by the Kings Captaine thereof to the Kings enemie within the realme or without for reward, &c. is an adhering to the Kingsenemy, and consequently treason declared by this Act. 6. A. is out of | the Realme at the time of a Rebellion within England, and one of the Rebels flye out of the Realme, whom A. knowing his treason doth aide or succour, this is no treason in A. by this branch of 25 E.3. because the traytor is no enemy, as hereafter shall be said; and this statute is taken strictly.

[Enemies.]

Inimicus in legall understanding is hostis, for ^c the subjects of the King, though they be in open war or rebellion against the King, yet are they are not the Kings enemies, but traytors; for enemies be those that be out of the allegiance of the King. If a Subject jouyne with a foraine Enemy and come into England with him, he shall not be taken prisoner here and ransomed, or proceeded with as an enemy shall, but he shall be taken as a traytor to the King.

^d An Enemy comming in open hostility into England, and taken, shall be either executed by Marshall-Law, or ransomed; for he cannot be indicted of treason, for that he never was within the protection or ligeance of the King, and the Indictment of Treason saith, Contra ligeantiam suam debitam.

^e David Prince of Wales levied war against E.1.This was Treason, for that he was within the homage and ligeance of the King, and had judgement given against him as a Traytor, and not as an enemy. And albeit in many presidents of Indictments, Subiects that be Rebels, and Traytors, &c. be called proditores & inimici; yet within this statute they are not inimici.

^f In the Duke of Northfolks Case the question was, a league being between the Queene of England and the King of Scots, whether the Lord Herise and other Scots in aperto praelio burning and wasting divers Townes in England without the assent of the King, were enemies in law within this statute, and resolved that they were. ^g See more hereafter in this third part of the Institutes. cap.49. of Piracy, &c. upon the statute of 28. H.8. cap.15.

[Or elsewhere.]

That is to say, out of the Realme of England. But then it may be demanded, how should at this time this foraine treason be tried? And some ^h of our Books doe answer, that the offender shall be indicted and tried in this Realme where his land lyeth, and so it was adjudged in 2 H.4 But now by the statute of 35 H.8. cap.2. (which yet remains in force) All offences made or declared, or hereafter made or declared treasons, misprisions of treason, and concealements of treason, committed out of the Realme of England, shall be inquired of, heard, and determined, either in the Kings Bench or before commissioners in such Shire as shall be assigned by the King. If it be before Commissioners, it hath been commonly used, that the King doth write his name in the upper part of the Comminssion. But in the Case of Patrick O Cullen an Irishman, the Queene did put her Signature to the Warrant to the Lord Keeper, and not to the commission: * and it was holden by the Justices that the one way and the other was a sufficient assignement by the King within the statute of 35 H.8.

ⁱ It was resolved by all the Judges of England, that for a treason done in Ireland the offender may be tryed by the statute of 35 H.8. in England, because the words of the statute be, “All Treasons committed out of the Realme of England, and Ireland is out of the Realme of England.” And so it was resolved in Sir John Parrots Case. And our word here [per ailors elsewhere] is as much as out of the Realme of England. See Pasch. 2 H.4. coram Rege Rot. 8. Salop. Treason in Wales.

^k All treasons done upon the Sea shall be inquired, heard, and determined in such shires and places of the Realme as shall be limited by the Kings Commission, in like forme and condition, as if the same had been done upon the land, &c. after the common course of the lawes of this land. And by the preamble it appeareth, that it could not be tryed by the Common law, but by the Civill law before the Lord Admirall. See hereafter in the exposition of the statute of 28 H.8. cap. 15. & infra, cap. 49.

| [And thereof be provably attained of open deed by people of their condition.]

In this branch 4 things are to be observed. ^g First this word [provablement ] probably, that is, upon direct and manifest proof, not upon coniectural or presumptions, or inferences, or straines of wit, but upon good and sufficient proofe. And herein the adverb [provablement ] probably, hath a great force, and signifieth a direct and plain proof, which word the King, the Lords, and Commons in Parliament did use, for that the offence was so hainous, and was so heavily, and severely punished, as none other the like, and therefore the offender must probably be attainted, which words are as forcible, as upon direct and manifest proof. Note, the word is not [probably] for then commune argumentum might have served, but the word is [provably,] be attainted.

2 This word [attaint ] necessarily implyeth that he be proceeded with, and attainted according to the due course, and proceedings of law, and not by absolute power, or by other meanes, * as in former times had been used. ^h And therefore if a man doth adhere to the enemies of the King, or be slaine in open warre against the King, or otherwise die before the attainder oftreason, he forfeiteth nothing, because (as this Act saith) he is not attainted: wherein this Act hath altered that, which before this Act, in case of treason, was taken for law. And the statute of 34 E.3. cap.12. saves nothing to the King, but that which was in esse, and pertaining to the King of the making of that Act. And this appeareth by a judgement in parliament in Anno 29 H.6. cap.1. That * Jack Cade being slaine in open rebellion could no way be punished, or forfeit any thing, and therefore was attainted by that act of High treason.

[Of open deed.]

per apertum factum, , This doth also strengthen the former exposition of the word (provablement,) that it must be provably, by an open act, which must be manifestly proved. As if divers doe conspire the death of the King, and the manner how, and thereupon provide weapons, powder, * poison, assay harness, send letters, &c. or the like, for execution of the conspiracy. Also preparation by some overt act, to depose the King, or take the King by force, and strong hand, and to imprison him, untill he hath yeelded to certaine demands, this is a sufficient overt to prove the compassing and imagination of the death of the King: for this upon the matter is to make the King a subiect, and so dispoyle him of his kingly office of royall government. And so it was resolved by all the Judges of England. Hill 1 Jac. regis, in the case of the Lo. Cobham, Lord Gray, and Watson and Clarke Seminary priests: And so had it been resolved by the Justices, Hill.43. Eliz. in the case of the Earles of E. and of S. who intended to goe to the court where the Queen was, and to have taken her into their power, and to have removed divers of her Counsell, and for that end did assemble a multitude of people; this being raised to end aforesaid was a sufficient overt act for compassing the death of the Queen. And so by woful experience in former times it hath fallen out, in the cases of King E.2. R.2. H.6. and E.5 that were taken, & imprisoned by their subjects. And this is made more plain by the legall forme of an inditement of treason: For first it is alledged according to this act, Quodproditorìè compassavit, & imaginatus fuit mortem & destructionem dn̄i regis, & ipsum dom, regem intersicere, &c. In the second part of the inditement is alledged the overt act, et ad illam nephandam, & proditoriam comapassationem, imaginationem, & propositum suum perficiend’ & perimplend’ and then certainly to set downe the overt fact for preparation to take, and imprison the King, or any other sufficient overt act, which of necessity must be set downe in the Inditement. Hereby it appeareth how insufficeint many inditements were of High treason, wherein it was generally alledged, that per apertum factum compassavit, & imaginatus fuit mortem dom. regis, &c. * For example Term̄o Mic. anno 5 E.6. Edward Duke of Somerset was indited before Commissioners of Oyer and terminer in London, quod ipse deum prae oculis suis non habens, sed instigatione diabo-|-lica seductus, apud Holborne in parochia Sancti Andreae infra civitatem London, viz. 20 die Aprilis anno regni domini Regis Edw. sexti quinto, & diversis diebus & vicibus antea & postea falso, maliciose, & proditorie *per aperium factum circumivit, compassavit, & imaginavit cum diversis aliis personis praedictum dominū Regem de statu suo regali deponere & deprivare, &c. Which Indictment, and all others of like forme were against law, as hath been said, and of the matter of this Indictment that noble Duke was by his Peers found not guilty. But then it may be demanded, for what offence he had judgement of death, and 2. what law made it an offence. The offence appeareth in his Indictment, for the former part thereof contained High Treason, whereof he was acquited, & the latter part contained one only offence of felony (whereof he was found guilty) in these words, Et ulterius Juratores praed. praesentant, quod praesatus Edwardus dux Somerset Deũ prae oculis suis non habens,sed instigatione diabolica seductus 20 Maii An. regni dicti Dom. Regis Edwardi sexti quinto supradicto, ac diversis aliis diebus & vicibus antea & postea apud Holborn in praed. paroch. Sancti Andreae in civitate London, & apud diversa alia loca infra civitatem London praed. felonice ut selo dicti Dom. Regis per aperta verba & facta procuravit, movit, & instigavit complurimos subditos ipsius domini Regis ad insurgendum, & apertam rebellionem & insurrectionem infra hoc regnum Angliae movend’ contra ipsum dominum Regem, & ad tunc & ibid. felonice ad capiendum & imprisonandum prae nobilem Johannem comitem Warwick de privato consilio domini Regis ad tunc existen’, contra pacem dicti domini Regis coronam & dignitatem suam, & contra formam statuti in hujusmodi casu editi & provisi. The statute whereupon this Indictment was intended to be grounded, was the branch of the statute of 3 & 4 E.6. by which it is provided, [That if any person or persons by ringing of any Bel, &c. or by malicious speaking or uttering of any words, or making any Dutery, &c. or by any other deed or act shall raise or cause to be raised or assembled any persons to the number of 12 or above, to the intent that the same persons should do, commit, and put in use any of the acts or things above mentioned (whereof to take and imprison any of the Kings most honorable Privie Counsell was one) and the persons to the number of 12 or above so raised and assembled after request and commandement (in such sort as in that Act is prescribed) shall make their above and continue together, as is aforesaid, (in the Act) or unlawfully perpetrate, doe, commit, or put in use any of the acts or things abovesaid, that then all and singular persons by whose speaking, deed, act, or any other the meanes above specified any persons to the number of 12 or above, shall be raised or assembled for the doing, committing, or putting in use any of the acts or things above mentioned, shall be adiudged for his so speaking or doing a felon, and suffer execution of death as in case of felony, and shall lose his benefit of Sanctuary and Clergy.] Hereby it doth manifestly appeare, that the truth concerning this Noblemans attainder, and execution in divers things, is contrary to the vulgar opinion, and some of our Chronicles, and in some points contrary to law. First, that for the felony made by the said branch of the said Act he could not have had his Clergie, for Clergie in that Case is expressly ousted by the said Act. 2. That he was not indicted for going about, &c. the death of the Earle of Warwick then of the Kings Privie Counsell, but only for his taking or imprisonment, and therefore could not be indicted upon the statute of 3 H.7. as some have imagined. 3. That the Indictment is altogether insufficient, for it pursueth not the words or matter of the said branch of the said Act, as by comparing of them it manifestly appeareth;which (we being desirous that truth may appeare in all things) we have thought good upon this occasion to adde for advancement of truth. 4. That being but attained of felony, he could not by law be beheaded, as elsewhere we have shewed. And this Act that created the felony saith, that such a felon shall suffer execution of death, as in case of felony. 5. Lastly, this whole Act was justly holden to be a doubtfull and dangerous statute, and therefore was deservedly repealed. And after the fall of this Duke, see the preamble of the statute of Subsidie of 7 E.6.

| And now to returne to Cases of High Treason. If a man be arraigned upon an Indictment of High Treason, and stand mute, he shall have suchjudgement, and incurre such forfeiture, as if he had been convicted by Verdict, or if he had confessed it. For this standeth well wit hthis word provablement, for fatetur facinus, qui judicium fugit: but otherwise it is in case of Petit Treason, Murder, or other Felony.

If a subiect conspire with a foraine Prince beyond the seas to invade the Realme by open hostility, and prepare for the same by some overt act, this is a sufficient overt act for the death of the King, for by this Act of Parliament in that Case there must be an overt act.Qui capiti, aut saluti Regis persidiose sive solus, sive servis aut sicariis mercede conductis itipatus insidiabitur, vita & fortunis ejus omnibus privator. So as thereby an overt act was required.

The composition and connexion of the words are to be observed, viz. [thereof be attained by overt deed.] * This relateth to the severall and distinct treasons before expressed, (and specially to the compassing and imagination of the death of the King, &c. for that it is secret in the heart) and therefore one of them cannot be an overt act for another. As for example: a conspiracy is had to levie warre, this (as hath been said, and so resolved) is no treason by this Act untill it be levied, therefore it is no overt act or manifest proofe of the compassing of the death of the King within this Act: for the words be (de ceo. &c. ) that is, of the compassing ofthe death. For this were to confound the severall Classes, or membra dividentia, & sic de caeteris, &c.

Divers latter Acts of Parliament have ordained, that compassing by bare words or sayings should be High Treason; but all they are either repealed or expired. And it is commonly said, that bare words may make an Heretick, but not a Traytor without an overt act. And the wisdome of the makers of this law would not make words only to be Treason, seeing such variety amongst the witnesses are about the same, as few of them agree together. But if the same be set downe in writing by the Delinquent himselfe, this is a sufficient overt act within this statute.

Cardinall Poole, albeit he was a subject to H.8. and of the Kings blood, (being descended from George Duke of Clarence, Brother to King E.4.) yet he in his Booke of the Supremacy of the Pope, written about 27 H.8. incited Charles the Emperour, then preparing against the Turke, to bend his force against his naturall Sovereigne Lord and Countrey; the writing of which Booke was a sufficient overt act within this statute: and to move the Emperour the rather in that Book, he made H.8. almost as ill as the Turk, in these words, in Anglia sparsum nune est hoc semen, ut vix a Turcico internosci queat, idque authoritate unius coaluit.

That is, per pares, or their equals, whereof we have spoken before in the exposition of the ^e 29 Chapter of Magna Carta, Verb. per judicium parium suorum, and more shall be and said hereafter. This Branch (p gents de jour condition ) extendeth only to a conviction by Verdict, whereof the statute particularly speaketh; but yet where the party indicted confesseth the offence or standeth mute, he shall have judgement as in case of High Treason. For this branch being affirmative, is taken comulativè | and not privativè. And therefore seeing upon confession, or standing mute, the judgement in case of high treason was given at the common law, this Act being, as it hath been said, affirmative, taketh not away the same: And (to say once for al) the clause hereafter of restraint of like cases, &c. extends onely to offences, and not to tryalls, judgements, or executions.

[And if a man counterfeit the Kings great Seale.]

All our ancient Authors agree that this was High treason by the common law; and for this offence his judgement was to be drawn, hanged, and quartered, at the common law, as in other cases of High treason, (the counterfeiting of the Kings mony excepted.) See The second part of the Institutes, W. 1 cap. 5.

In ancient time every treason was comprehended under the name of felony, but not é contra: And therefore a pardon of all felonies was sometime allowed in case of High treason. But the law is, and of long time hath been otherwise holden: and if the inditement were felonicè, and not proditoriè, (for the King may lessen the offence, if it please him) then the pardon of felonies is good at this day, for no Inditement can be of High treason without this word (proditoriè:) and in qualiber prodicione implicatur felonia, quia in quolibt brevi de exigendo super quolibet indictamento de proditione proclamator facit sic, I. B. An exigent on thy head of treason and felony.

A Compassing, intent, or going about to counterfeit the great seale is no treason, but there must be an actuall counterfeiting, also it must be to the likenesse of the Kings great seale, the words be, Counterface le grand seale le Roy.

Now it is to be seen what shall be said a forging or counterfeiting of the great seale. If the Lord Chancellor, or Lord Keeper put the great seale to a Charter &c. without warrant, this is no treason, because the great seale is not counterfeited. But it seemeth by Briton fo. 10. b. that it was treason at the common law, and of that opinion is Fleta fo. 29.a. but it is not treason now (without question) by the negative clause of this Act.

If a man take wax lawfully imprinted with the great scale from the patent, and fix it to a writing purporting a grant from the King, there have been divers opinions in this case what the offence is, which we will rehearse.

In 40. E.3. which was about 15. years after the making of this Act, it was not holden High treason, but a great misprision, for that it is no counterfeiting of a new, but an abuse of the true great seale.

In 42 E.3. the Abbot of Bruer caused Rob. Rigge his Commsiogne to rase a Charter of R.1. and put out the manner of Fisfetruda, and in place thereof put in Efleghe. And this offence was heard, and sentenced before the King and his Counsell in the Star-Chamber, as a great offence and misprision: for if it had been High treason, it should have had another tryall, and yet this was a great abuse of the great seal.

2 H.4. The taking of Great Seal from one Patent, and fixing it to a Commission to gather mony, &c. was adjudged to be such an offence, as the offender had judgement to be drawne, and hanged. The record of which case we have perused, and the effect thereof is this. The partie is indited generally for counterfeiting of the great seal, whereunto he pleaded not guilty, and the Jury found him not guilty of the counterfeiting of the great seale, as was supposed by the inditement, and found further specially, that he tooke the great seale from one patent, and put it to the commission, and that the party put the same in execution, and there judgement was given, that he should be drawne and hanged: which (whatsoever the offence was) ought not to have been given upon this verdict, the Jury finding him not guilty of the offence alledged in the inditement: And besides the judgement is such, as is given in case of Petit treason, and not of high treason. Hereby it appeareth how dangerous it is for any to report a case by the ear, specially concerning treason, unlesse he had advisedly read the Record: for (as I take it) the misreport of this case hath hatched errors, and he mistooke the judgment, if it had been High treason, for then it should have been drawne, hanged, and quartered.

| 37. H.8. Br. tit. Treason. A Chaplain had fixed such a great Seale to a Patent of dispensation with non-residence, and this was holden a misprision, and not High treason, for it was an abuse of the great seale, and no counterfeiting of it. Stanford saith that it was adjudged in his time according to the book of 2 H.4. Et sic ex errore sequitor error. ,

G. Leak a clark of the Chancery joyned two cleane parchments fit for letters patents so close together with mouth glew, as they were taken for one, the uppermost being very thinne, and did put one labell through then both, then upon the uttermost he writ a true patent, and got the great seale put to the labell, so the labell and the seale were annexed to both the parchments, the own written, and the other blanck: he cut off the glewed skirts round about, and tooke off the uppermost thinne parchment (which was written, and was a true and perfect patent) from the labell, which with the great seale did still hang to the parchment, then he wrote another patent on the blancke parchment, and did publish it as a good patent. Hereupon two questions were moved. 1. Whether this offence be High treason or no. 2. If it be High treason, then whether he may be indited generally for the counterfeiting of the great seale, or els the speciall fact must be expressed. And upon conference had between the Judges, upon great advisement and consideration it was in the end, concerning the first point, resolved by the Justices (saving a very few) upon the authorities aforesaid, and for that it was no counterfeiting of the great seale within this statute, that this offence was neither High treason, nor Petit treason, because it is not within either of the branches of this statute, but it is a very great misprision, and the party delinquent liveth at this day. As to the 2. point it was resolved, that if the speciall matter had amounted to counterfeiting of the great seale in law within this act, then he might have been generally indited of High treason for counterfeiting the great seale. As if a man in an affray kill a Constable that comes to keep the Kings peace without any expresse malice prepensed, this is murder in law, and yet the delinquent may bee generally indited of murder by malice prepensed.

And ^a Fleta who wrote before this act telleth us, that Crimen falsi dicitur, cū quis illicitus (cui non fuerit ad hoc data authoritas) de sigillo regis rapto vel invento, & brevia cartasque consignaverit. But whatsoever offence it was before the making of this statute, it is after this statute no High treason, because it is no counterfeiture of the great seale, but a misusor thereof.

Qui^bconvictus fuerit pro falsatione sigilli dom. regis, quòd tradatur Episcopo Sarum, qui eum petiit ut clericum suum sub poena & in forma qua decet, quia videtor concilio quod in tali casu non admittenda est purgatio, &c. Hereby it should appeare that in those dayes a man might have had his Clergie for this offence, and therefore as some hold, it was not then holden to be High treason, & herein also is the preamble of this act, concerning divers opinions in case of treason, verified.

This statute naming the great seale and privie seale, the forging and the counterfeiting of the privie signet, or of the signe manuell was not within this statute. But by the ^c statute of 1 Mar. it is made High treason in both cases. Alteit that in this act there is no mention made of ^d ayders and consentors to this counterfeiting, yet they are within the purvien of this statute, for there be no accessaries in High treason.

[Or his money.] ,

^e This was treason by the common law, as it appeareth by all the said ancient authors, ubi supra (verbo, Si home counterface le grand seale) and therefore the opinion in 3 H.7. is holden for no law, that it was but felony before this act. ^f The forging of the Kings coine, is High treason, without utterance of it, for by this act the counterfeiting is made High treason. See the second part of the Institutes. W. 1. cap. 15. ^g See Thom. Walsingham. Hypodigme Neustrie. An. Dom. 1278. Judei protonsura monetae in magna multitudine ubique per Angliam suspenduntur, &c.

^hSi ipse qui facit monetam authoritate regis, &c. illam facit minus in pondere | vel allaiata, viz. Alcumino vel alio falso metallo contra ordinationem, &c. This is there holden to be High Treason, and by that Book taken for a counterfeiter of the Kings money within the Purvien of this statute. ^a And herewith agreeth Britton, who saith, Des sauceres q. ount nostre monye counterfet ou pluis de allaye mise in nostre monye, q. nuster, ne serroit solonq le forme & usage de nostre Realme.

^bOrdeine fuit q. nul roy de cest realme ne puit changer sa money, ne impairer, ne amender, ne auter monye faire q̄ de ore & argent, sans lassent de couts les Counties. It was ordained, that no king of this Realme might not change his money, nor impaire, nor amend the same, nor other money make then of Gold or Silver, without assent of Parliament.

^c Clipping, washing, and filing of the money of this Realme, was no counterfeiting of it within this Act. And therefore being a like Case, it was declared by Parliament in Anno 3 H.5. cap. 6. to be High Treason; but that Act being repealed by 1 Mariae the statute of 5 Eliz. cap. 11. hath ^d declared that clipping, washing, rounding, or filing, for wicked lucre and gaine, &c. to be High Treason. And by the statute of ^e 18 Eliz. it is declared, That if any person for wicked lucre or gaines-sake, shall by any art, wayes, or meanes whatsoever, impaire, diminish, falsifie, scale, or lighten the Kings money, &c. it is High Treason, for being a like case, it was to be declared by Parliament.

Forging ^f or counterfeiting of foraine money, which is not currant within the Realme, is misprision of Treason, and the offender shall forfeit, as for concealement of High Treason.

[His money.]

^g This extendeth only so the Kings money coyned within this Realme; and therefore after this statute, if a man had counterfeited the money of another kingdome, though it were currant within this Realme, it was no treason, untill it was so declared by Parliament ^h in An. 1 Mariae, and in An. 1 & 2 Ph.& M. and the said Acts of 5 Eliz. & 18 Eliz. do extend to forrain coyne currant within this Realme. And it is holden, that at the making of this statute of 25 Edw. 3. there was no money currant within this Realme, but the Kings own coyne. ⁱ See the statute called Statutum de moneta magnum. & statutum de moneta parvum. And it is to be knowne, that if any doe counterfeit the Kings coyne contrary to this statute of 25 Edw. 3. ^k He shall have the punishment of his body, but as in case of Petit Treason, that is, to be drawne and hanged till he be dead, but the forfeiture of his lands is as in other cases of High Treason, for this statute is but a declaration of the Common law, and the reason of his corporall punishment is, for that in this case he was only drawne and hanged at the Common law, but a woman in that case was to be burnt.

^l The Abbot of Missenden in the County of Buckingham for counterfeiting and resection of the Kings money, was adjudged to be drawne and hanged, and not quartered. The want of observation of the said distinction hath made some to erre in their judgement. Nota. This Act of 25. E. 3. maketh no expression of the judgement, therefore such judgement as was at the Common law either in case of High Treason or Petit Treason must be given.

But if one be attainted for diminishing of the Kings mony upon any of the statutes made in Queen Maries time, or in the time of Queen Elizabeth, because it is High Treason newly made, the offender shall have judgement as in case of High Treason, which judgement you may see in the first part of the Institutes. Sect. 747.

^m And when a woman commits High Treason and is quick with childe, she cannot upon her arraignment plead it, but she must either pleade not guilty, or confesse it: and if upon her plea she be found guilty, or confesse it, the cannot alleage it in arrest of judgement, but judgement shall be given against her: and if it be found by an inquest of Matrons that she is quick with childe, (for priviment enfent will not serve) it shall arrest, and respite execution till she be delivered, but she shall have the benefit of that but once, though she be againe quick | with childe: so as this respite of execution for this cause is not to be granted, only in case of felony, whereof Justice Stanford speaketh, but in case of High Treason, and Petit Treason also.

[If a man bring false money into this realme counterfeit to the money of England, knowing the money to be false, etc.]

By this branch six things are to be observed. First, that the bringing in of counterfeit money, and not the counterfeiting is expressed in this word [apport.] Secondly, that it must be brought from a foraine Nation, and not from Ireland, or other place belonging to or being a member of the Crowne of England, and so it hath been resolved, so wary are Judges to expound this statute concerning Treason, and that in most benigne sense: For albeit Ireland be a distinct Kingdome, and out of the Realme of England to some purposes, as to Protections and fines levied, &c, as hath been said: yet to some intent it is accounted as a member of or belonging to the Crowne of this Realme. And therefore a Writ of Error is maintainable here in the Kings Beach of a judgement given in the Kings Bench in Ireland, so as the Judges did construe this statute not to extend to false money brought out of Ireland. Thirdly, it must be to the similitude of the money of England. Fourthly, that the bringer of it into this Realme, must know it to be counterfeit. Fiftly, uttering of false money in England, though he know it to be false and counterfeit to the likenesse of the coyne of England, is no treason within this statute, unlesse he brought it from a foraine Nation, for the words be, si home apport faux money en cest realme. But if money false or clipped be found in the hands of any that is suspicious, he may be imprisoned untill he hath found his warrant, per statutum de moneta magn’ vet. Mag. Cart. fo. 38. 2 parte. Lastly, he must merchandize therewith, or make payment thereof, expressed in these words, Pur merchandizer, on paiment faire in deceipt nostre seignior le roy & son people. See more, De moneta regis, and of the derivation thereof in The second part of the Institutes, in Artic’ super cartas, cap. 10.

[If a man slay the Chancellor, Treasurer, or the Kings Justices of one Bench or the other Justices in Eire, or Justices in Assize, and all other Justices assigned to hear and determine, being in their place doing their offices.]

In this case albeit one intend to kill any of these here named in their place, and doing their office, and thereupon strike or wound any of them, this is no treason: For our statute saith, Si home tuast Chancelor, &c. If a man kill the Chancellour, &c. For if it be treason, death must ensue. And the reason wherefore it is treason in these cases is, because fitting judicially in their places, (that is, in the Kings Courts) and doing their office in administration of justice, they represent the Kings person, who by his Oath is bound that the same be done. And this Act extends only to the persons here particularly named, and to no other: and therefore extendeth not to the Court of the Lord Steward, or of the Constable and Marshall, nor to the Court of the Admiralty, or any other, nor to any Ecclesiasticall Court. Nay, it extends not to the High Court of Parliament, if any Member of the Lords House, or House of Commons be slaine in his place, and doing his office, because it is casus omissus, and not mentioned in this Act. But in all those Cases it is wilfull murder, for the Law implyeth malice.

[And it is understood, that in the cases above rehearsed, it ought to be judged Treason, which extend to the Lord our King and his Royall Majestie: And such treason is the forfeiture of the escheates pertaineth to our Lord the King, as well as the lands and tenements holden of others, as of himself.]

This is an affirmance of the Common Law, and the reason there of is, for that the offence is committed against the soveraigne Lord the King, who is the light and the life of the Common-wealth: and therefore the Law | doth give to the King in satisfaction of his offence, all the Lands, &c. which the offender hath, and that no subject should be partaker of any part of the forfeiture for this offence.

And where the words be [Lands and Tenements holden, &c.] yet the forfeiture extends to * rents charges, rents seck, Commons, Corrodies, and other hereditaments which are not holden, for in case of High Treason the tenure is not materiall.

This clause hath 7. limitations. First, this Act extends not ^b to lands in tayle, (saving only for the life of tenant in tayle) but the forfeiture of escheats is to be understood of such Lands and Tenements, as he might lawfully forfeit. And these generall words take not away the statute of donis conditional’^c but latter statutes give the forfeiture of estates in tail. 2. Nor doth this Act extend to uses, but * latter statutes doe name uses. 3. ^d For to rights of actions, where the entrie is taken away, and so is the law cleerly holden at this day. 4. Nor to any conditions, but by a ^e latter statute conditions, unlesse they be inseparably knit to the person, be given to the King. 5. Nor to rights of entry, where any was in the lands ^f by title before the treason committed, but such a right of entry is since given by latter statutes. 6. For to Lands or Tenements, or Rights ^gin auter droit, as in the right of the Church, nor to lands in the right of a wife, but only during the coverture, and it extendeth to land which the offender hath ^h for life, for the forfeiture of the profits during his life. 7. It extendeth not to * a foundership of an house of religion in Free almoign, for that is annexed to the bloud of the Founder. Here goods and chattels be not named, but the forfeiture of them is implyed in the judgement.

ⁱNota Lector, the said Acts of 26 H.8. 33 H.8. 33 H.8. 5. and 6 E.6. doe yet remain in force, notwithstanding the said statute of 1 Mar. as it hath been often adjudged and resolved, and namely Mich. 21. Ja. in the Exchequer Chamber in a writ of error, upon a judgement given in the Exchequer, between Ratcliffe, and the Lord Sheffeild, by all the Judges of England, and is agreeable to common experience.

See more of High Treason in the next Chapter following, cap. 2. verbo. Et pur ceo que plusors auters cases, &c.

Cap. II.
Of Petit Treason.

It was called High or Grand treason in respect of the royall Majesty against whom it is committed, and comparatively it is called Petit Treason (whereof now this statute speaketh) in respect it is committed against subjects and inferiour persons, whereof this Act doth enumerate three kinds.

[When a servant slayeth his Master.]

This was Petit Treason by the Common Law, for so it appeareth by the ^a book of 12. Ass. that a woman servant killed her Mistris, wherefore she had judgement to be burnt, which is the judgement at this day of a woman for Petit treason. And herewith agreeth 21 E.3. where the reader must know, that in stead of Mere in that case you must read Maister.

^b And upon this Act, if the servant kill the wife of his Master, it is Petit treason, for he is servant both to the husband and wife.

^c If the child commit Parricide in killing of his father or mother (which the Law-makers never imagined any childe would doe) this case is out of this statute, unlesse the childe served the father or mother for wages, or meat, drink or apparell, for that it is none of these three kinds specified in this Law. And yet the offence is far more hainous and impious in a child then in a servant, for Pecata contra naturam sunt gravissima: but the Judges are restrained by this Act, to interpret this Act, à simili or à minore ad majus, as hereafter shall be said. And * some say that Parricide was petit treason by the Common Law.

^d A servant of malice intended to kill his Master, and lay in wait to doe it whilest he was his servant, but did it not till a year after he was out of service, and it was adjudged Petit treason within this Act.

[Or a wife her husband.]

^c This was petit treason by the Common Law, as it appeareth in our books. If the wife procure one to murder her husband, and he doth it accordingly, in this case the wife being absent is but accessory, and shall be hanged and not burnt, because the accessory cannot be guilty of Petit treason, where the principall is not guilty but of murder: and the * accessory must follow the nature of the principall: but if he that did the murder had been a servant of the husband, it had been treason in them both, and the wife should have been burnt. And so it is in the case before of a servant and in the case hereafter of a Clerk.

If the wife and a stranger kill the husband, it is Petit treason in the wife, and murder in the stranger, and so it is in the case of the servant next before, and of the Clerk next after.

Before this statute it was Petit treason, si quis falsaverit sigillum domini sui de cujus familia fuit. Britton agreeth herewith. But these are taken away by this Act, and all other saving these, that are here expressed.

[Or when a man secular or religious slayeth his Prelate to whom he oweth faith and obedience.]

This clause is understood only of an Ecclesiasticall person, be he secular, or regular, if he kill his Prelate, or Superiour, to whom he oweth faith, and obedience, it is Petit Treason: and so it was at the Common Law. And Petit Treason both presuppose a trust and obedience in the offender, either Civill, as in the wife and servant, or Ecclesiasticall, as in the Ecclesiasticall person.

Aidors, abettors, & procurers of any of these Petit Treasons, are within this Law.

If the servant kill his Mistris, viz. his Masters wife, this is treason (as hath been said) not by equity, for that is denied as well in Petit Treason, as High Treason, but it is within the letter of this statute, for she is a Master.

In High Treason there is no accessories, but all be principalls, and there-|-fore whatsoever act or consent will make a man accessory to a felony, before the act done, the same will make him a principall in case of High Treason. But in case of Petit Treason, there may be accessories, either before, or after the act done, as in case of Murder or Homicide.

Here it appeareth that Acts of Parliament may bind men of the Church, Secular, or Regular, & no benefit of Clergy allowed unto them in case of treason: but * hereof you shall read at large in the Exposition of the 15. chapter of Articuli cleri.

[And of such treason the Escheats ought to pertain to every Lord of his own fee, &c.]

See hereof hereafter in the chapter of Forfeiture. ^b If a man seised in fee of a Fair, Market, Common, rent, charge, rent seck, Warren, Corrody, or any other inheritance, that is not holden, and is attainted of felony, the King shall have the profits of them during his life: but after his decease, seeing the blood is corrupted, they cannot descend to the heir, * nor can they escheat because they be not holden, they perish and are extinct by Act in law: For in Escheats for Petit Treason or felony, a tenure is requisite, as well in the case of the King, as of the subject.

An Approver in case of felony, refusing the combate with the Appellee, shall have like judgement that is for Petit Treason, Probator recusans duellum adjudicatur suspendi, & trahi in odium falsae accusationis: but yet it is not Petit Treason, because it is none of the three specified in this Act.

The case which Shard reciteth in 40 Ass. that a Norman being Leader of an English ship, who had English men with him, and robbed divers upon the sea, and were taken and found guilty: and as to the Norman it was but felony (because Normandy was lost by King John, and was out of the ligeance of E.3.) and as to the English it was adjudged treason, and the offenders drawn and hanged, which was the judgement of Petit Treason: but this case must be intended to fall out before this statute of 25 E.3. for it is none of the Petit Treasons mentioned in this Act.

And , because that many other like cases of treason may happen in time to come, which a man cannot think nor declare at this present time: It is accorded, that if any other case supposed treason, which is not above specified, doth happen before any Justice, the Justice shall tarry without going to judgement of the treason, till the cause be shewed and declared before the King and his Parliament, whether it ought to be judged treason or other felony.

[Like cases of treason.]

In this case, the Judges shall not judge à simili, or by equity, argument, or inference of any treason, High or Petit, for no like case shall be adjudged treason, &c. And note this branch extendeth (as hath been said) to the offence, viz. treason, and not to tryall, judgement, or execution.

[Any other case supposed treason.]

No other case, though of as high or higher nature, &c. shall be adjudged treason High or Petit, as before it appeareth in the case of Paricide, Anno 1 Mariae, ubi supra.

[Treason.]

Either High Treason, or Petit Treason, so as this branch extendeth as hath been said to the offence of treason only.

| [Which is not above specified.]

This word [specifie] is to be specially observed, for it is as much to say, as particularized, or set downe particularly: so as nothing is left to the construction of the Judge, if it be not specified and particularized before by this Act. A happy sanctuary or place of refuge for Judges to flye unto, that no mans blood and ruine of his family do lie upon their consciences against law. And if that the construction by arguments à simili, or à minori ad majus had been left to Judges, the mischiefe before this statute would have remained, viz. diversity of opinions, what ought to be adjudged treason, whichthisstatute hath taken away by expresse words: and the statute of 1 Mar. doth repeate all treasons, &c. but only such as be declared and expressed in this Act of 25 E.3. wherein this word [expressed] is to be observed.

In the Parliament holden Anno 5 H.4. the Earle of Northumberland came before the King and Lords in Parliament, and by his Petition to the King, acknowledged to have done against his allegiance: and namely, for gathering of Power and giving of Liveries, whereof he prayeth pardon: and the rather, that upon the Kings Letters he yeelded himselfe, and came to the King unto Yorke, where he might have kept himselfe away. The which Petition the King delivered to the Justices by them to be considered. Whereupon the Lords made protestation, that the order thereof belonged to them, as Peers of the Parliament, to whom such judgement belonged in weighing of this statute of 25 E.3, &c. and they judged the same to be no treason, nor felony, but only trespasse finable at the Kings will. And the opinion in 27 Ass. is denied, that if one of the Indicters discover the counsell of the King, that it should be treason; because it is not specified before in this Act, and therefore neither High Treason, nor Petit Treason.

[Till the cause be shewed and declared before the King and his Parliament.]

By this it is apparent, that any like or other case ought to be declared by the whole Parliament, (and not by the King and Lords of the Upper-House only, or by the King and the Commons, or by the Lords and Commons.) And so was it done by the whole Court of Parliament in 3 R.2. ubi supra. 5 Eliz. 18 Eliz. ubi supra, and many other Acts of Parliament.

John Duke of Gwyen and of Lancaster, Steward of England, and Thomas Duke of Glocester, Constable of England, the Kings Uncles, complained to the King, that Thomas Talbot Knight, with other his adherents, conspired the death of the said Dukes in divers parts of Cheshire, as the same was confessed and well knowne, and prayed that the Parliament might judge of the fault (which Petition was just, and according to this branch of the statute of 25 E.3.) but the Record saith further: whereupon the King and Lords in the Parliament adjudged the same fact to be open and High Treason: which judgement wanting the assent of the Commons, was no declaration within this Act of 25 E.3. because it was not by the King and his Parliament according to this Act, but by the King and Lords only.

[Whether it ought to be judged treason or other felony.]

This Declaration may be absolute, or sub modo, for a time.

By this which hath been said it manifestly appeareth, what damnable opinions those were concerning High Treason, of Tresilian Chiefe Justice of the Kings Bench, Sir Robert Belknap Chiefe Justice of the Common Bench, Sir John Holt, Sir Roger Fulthorp, and Sir William Burghe, Knights, fellowes of the said Sir Robert Belknap, and of John Lockton one of the Kings Serjeants, that were given to King R. the 2. at Nottingham, in the Eleventh yeare of his reigne. But more detestable were the opinions of the Justices in 21 R.2. and of Hanckford and Brinchley the Kings Serjeants, (and the rather, because they took no example by the punishment of the former) which affirmed the said opinions to be good and lawfull, saving Sir William Thirning | Chiefe Justice of the Common Bench gave this answer: That declaration of treason not declared belongeth to the Parliament; but to please, he said, that if he had been a Lord or a Peer of Parliament, if it had been demanded of him, he would have made the like answers. These Justices and Serjeants being called in question in the Parliament holden Anno 1 H.4. for their said opinions, answered (as divers Lords Spirituall and Temporall did) that they durst no otherwise do, for feare of death. It was thereupon enacted, that the Lords Spirituall and Temporall, or Justices, be not from thenceforth received to say, that they durst not feare of death to say the truth. Which opinions being so manifestly against our said Act of 25 E.3. afterwards in the Parliament holden 1 H.4. it is affirmed by authority of Parliament, that in the said Parliament of 21 R.2. divers Statutes, Judgements, Ordinances, and Stablishments were made, ordained, and given, erroniously and dolefully in great disherison and finall destruction and undoing of many honourable Lords, and other liege people of this Realme, and of their heires forever. And therefore not only that Parliament of 21 R.2. and the circumstances and dependances thereupon, are wholly reversed, revoked, voided, undone, repealed, and annulled for ever, but also the Parliament holden in 11 R.2. by authority of which Parliament: Tresilian, Belknap, and the rest of those false Justices and Serjeants aforesaid were attainted, is confirmed, for that it was (as there the Parliament affirmeth) for the great honour and common profit of the Realme.

[And if percase any man of this Realme ride armed, &c.]

For exposition hereof, see the Chapter hereafter against riding or going armed.

For the better instruction of the Reader to discerne what offences be High Treason or Petit Treason at this day, it shall be necessary to adde hereunto the statute of 1 Mar. whereby it is enacted, [That no Act, Deed, or Offence, being by Act of Parliament or Statute made treason, petittreason, ormisprision of treason, by words, writing, ciphering, deeds, or otherwise whatsoever, shall be taken, had, deemed, or adiudged to be High Treason, Petit Treason, or misprision of treason, but only such as be declared and expressed to be treason, petit treason, or misprision of treason, in or by the Act of Parliament or Statute made in the 25 yeare of the raigne of the most noble King of famous memory, King Edward the third, touching or concerning treason, or the declaration of treason, and none other, &c. Any Actor Acts of Parliament, Statute, or Statutes, had or made at any time heretofore or after the said 25 year of King E.3. or any other declaration or matter to the contrary in any wise notwithstanding.]

Before this Act so many treasons had been made and declared by Act of Parliament since this Act of 25 E.3. some in particular, and some in generall, and in such sort penned, as not only the ignorant and unlearned people, but also learned and expert men were many times trapped and snared: and sometimes treasons made or declared in one Kings time, were abrogated in another Kings time, either by speciall or generall words: so as the mischief before 25 E.3. of the uncertainty what was treason, and what not, became to be so frequent and dangerous, as the safest and surest remedy was, by this excellent Act of 1 Mar. to abrogate and repeale all, but only such as are specified and expressed in this statute of 25 E.3. By which law, the safety both of the King and of the subject, and the preservation of the Common-weale is wisely and sufficiently provided for, in such certainty, as Nihil relictum estarbitrio Judicis. And certainly the two Rules recited in the Preamble of the said Act of 1 Mariae, are assuredly true. The first, [That the state of a King standeth and consisteth more assured by the love and favour of the subject toward their Soveraigne then in the dread and fear of lawes made with rigorous pains and extreme punishment for not obeying their Soveraigne.] And the other, [That lawes justly made for the preservation of the Common-weale without extreme punishment or penalty, are more often, and for the most part better obeyed and kept, then lawes and statutes made | with great and extreme punishment.] Mitiùs imperanti melius paretur. ,

In which Act five notable things are to be observed. First, it extendeth (without exception) to all High Treasons made by any Act of Parliament since the said Act of 25 E.3. Secondly, to all declarations of High Treasons by any Act of Parliament since the said Act of 25 E.3. (as of the said Declaration in 3 R.2. of killing an Ambassadour and the like.) Thirdly, to all Petit Treasons made or declared by any Act of Parliament since the said Act of 25 E.3. Fourthly, albeit misprision of treason is not mentioned in the Act of 25. E.3. yet every misprision of any treason made or declared since that Act by any Act of Parliament, is abrogated. Fifthly, no offence to be treason, petit treason, or misprision of treason, but only such as he declared and expressed to be treason, petit treason, or misprision of treason by the said Act of 25 E.3. Here three things are to be observed: first, that this word [expressed] excludeth all implications or inferences whatsoever, Secondly, here misprision of treason is taken for concealement of high treason or petit treason, and only of high treason or petit treason specified and expressed in the Act of 25 E.3. Thirdly, that no former judgement, attainder, president, resolution, or opinion of Judges or Justices of high treason, petit treason, or misprision of treason, other then such as are specified and expressed in the said Act of 25 E.3. are to be followed or drawne to example: for the words be direct and plaine, [That from henceforth no Act, Deed, or offence, &c. shall be taken, had, deemed, or adiudged to be treason, petit treason, or ^a misprision of treason, but only such as be declared and expressed in the said Act of 25 E.3. &c. any Act of Parliament or Statute after 25 E.3. or any other declaration or matter to the contrary notwithstanding.] So as there is no high treason, petit treason, or misprision of any treason made or declared by any Act of Parliament or otherwise since the Act of 25 E.3. but only such as have been made since the said Act of 1 Mariae, and of those, only such as were made ^b perpetuall, and not during the life of Queen Mary or of Queen Elizabeth, whereof there be divers which now are expired, which you may reade being all in print. But there wanted nothing to the perfection of the Statute of 25 E.3. but a limitation of some certaine time wherein the offender should be accused. ^cPost intervallum temporis accusator non erit audiendus, nisi docere potest se faisse justis rationibus impeditum.

[Or the declaration of treason, &c.]

^d Declarations made during the naturall life of Queen Elizabeth ceased by her death: for Declarations may have limitations as well as Statutes introductory of new lawes.

There is another excellent branch of a Statute made ^c in 1 & 2 Ph. & Mar. in these words. [And be it further enacted by the authority aforesaid, that all trials hereafter to be had, awarded, or made for any treason, shall be had and used only according to the due order and course of the Common Law.]

All trials.

^f Upon these words many things have been observed by others. First, that the Letter of this Act extendeth only to triall of high treasons, or petit treasons, and not to misprision. Secondly, Foraine treasons are to be tried by the statute

^g of 35 H.8. cap. 2. and so it was resolved by all the Justices of England in Orurks Case, and had been so resolved before. But for trials of treasons to be had in Wales, or where the Kings Writ runneth not, in such Shires as the King shall assigne by his Commission by the * statute of 32 H.8. ca. 5. are abrogated by this Act, because they are triable by the law. ^h It hath been holden, that upon the triall of misprision of treason there must be two lawfull witnesses, as well upon the triall, as upon the indictment, as it was resolved by the Justices in the Lord Lumleyes Case, Hil. 14. Eliz. reported by the Lord Dier, under his own hand, which we have seen, but left out of the print, which for other purposes is cited hereafter. Thirdly, it hath beene holden, that this Act extendeth not to the Indictment of any treason, but to the triall by Peers, if the offender be noble: or by Freeholders, if the offender be under the degree of nobility: & therefore upon the indictment which is in manner of an | accusation, by the statutes of 1. E.6. and 5 E.6. two lawfull witnesses are requisite: the words of the statute of 1 E.6. in the last branch be, [That none shall be indicted, arraigned, condemned, or convicted for any treason, Petit Treason, misprision of treason, or for any words before specified to be spoken, after the said first day of February, for which the same offender or speaker that in any wise suffer pains of death, imprisonment, losse or forfeiture of his goods, chatels, lands, or tenements, he be accused by two sufficient and lawfull witnesses, or shall willingly without violence confesse the same.]

Nota that [before specified] doe refer to the words mentioned before in the Act. 1. It is manifest by the connexion of the words, viz. [for any words before specified to be spoken, &c.] 2. The treasons in 25 E.3. were mentioned before. 3. The first words be [for any treason, Petit treason, misprision of treason, &c.]

And by 5 E.6. ca.11. it is provided by the last clause save one. [That none shall be indicted, arraigned, condemned, convicted, or attainted for any of the treasons or offencess aforesaid, or for * other treasons that now be, or hereafter shall be, which shall hereafter be perpetrated, committed, or done, unlesse the same offender be thereof accused by two lawfull accusers, &c. unlesse the said party arraigned shall willingly, without violence confesse the same.] Here two things are to be observed. 1. The particular penning of both these Acts, viz. indicted, arraigned, convicted, &c. and the words of 1 & 2 of Ph & Mar. extend to tryals only, & not to the indictment. 2. Two lawfull accusers in the Act of 5 E. 6 are taken for two lawfull witnesses, for by two lawfull accusers, and accused by two lawfull witnesse (as it is said 1 E.6) is all one: which word (accusers) was used, because two witnesses ought directly to accuse, that is, charge the prisoner, for other accusers have we none in the Common Law: and therefore lawfull accusers must be such accusers as Law allow. And so was it resolved in the Lo. Lumleys case by the Justices: for if accusers should not be so taken, then there must be two accusers, by 5 E.6. and two witnesses by 1 E.6. And the strange conceit in 2 Mar. that one may be an accuser by hearsay, was utterly denied by the Justices in the Lo. Lumleys case. And this word [awarded] in the statute of 1 & 2. Ph. & Mar. extendeth to the tryall upon the arraignment, and not to the indictment, for that is not said to be awarded.

And it was resolved by all the Justices in ^a Rolstons case upon the rebellion in the North, that these words [shall willingly without violence confesse the same] are to be understood where the party accused upon his examination before his arraignment, willingly confessed the same without violence; that is, willingly without any torture: and is not meant of a confession before the Judge, for he is never present at any torture, neither upon his arraignment was ever any torture offered. And here commeth another ^b statute made in 1 & 2 Mar. to be considered, by which it is provided, that treason for the counterfeiting and unpairing of the coin currant in this Realm, &c. the offender therein, &c. shall be indicted, arraigned, tried, convicted, or attainted by such like evidence, and in such manner and form, as hath been used and accustomed within this Realm, at any time before the first year of King E.6. &c. Wherein the speciall penning of this Act is to be observed, which in case of treason concerning the counterfeiting or impairing of coin, &c. hath by particular words restored the evidence requisite by the Common Law, before the statute of 1 E.6. as well upon the indictment as the triall. But the Act of 1 & 2 Ph & Mar.cap. 10. extends to trialls only in other cases of High Treason, and therefore that Act extendeth not to the indictment of other High treasons. Also it is most necessary (as many doe hold) that there should be two lawfull accusers, that is, two lawfull witnesses at the time of the indictment, for that it is commonly found in the absence of the party accused, and it may be when the party suspected is beyond sea, or in remote parts, and may be obtained thereupon; and therefore seeing the indictment is the foundation of all, it is most necessary to have substantiall proof in a cause so criminall, where probationes oportent esse luce clariores. | Lastly, if the indictment were part of the tryall, then ought he that is noble, and a Lord of Parliament be indicted of High Treason, &c. by his Peers: for the tryall of him (without question) must be by his Peers: but the indictment of Peers of the Realm is always by Freeholders, and not by their Peers, as hereafter shall appear. We have been the longer herein in respect of some variety of opinion (for want of due and intire consideration had of all and every part of that which hath been said) upon serious study touching this point, without respect of a common wandring opinion.

And it seemeth that by the ancient Common law one accuser, or witnesse was not sufficient to convict any person of High Treason: ^a For in that case, where is but one accuser, it shall be tried before the Constable and Marshall by Combat, as by many records appeareth. ^b But the Constable and Marshall have no jurisdiction to hold plea of any thing, which may be determined or discussed by the Common Law. And that two witnesses be required, appeareth by our ^c books, and I remember no authority in our books to the contrary: and the Common law herein is grounded upon the law of God expressed both in the old and new Testament: ^dIn ore duorum aut trium testium peribit qui interficietur: Nemo occidatur uno contra se dicente testimonium.

And this seemeth to be the more clear in the triall by the Peers, or Nobles of the Realm, because they come not de aliquo vicineto, whereby they might take notice of the fact in respect of vicinitie, as other Jurors may doe.

Having now rehearsed what others have said and holden, we upon due consideration had of the whole matter will set down our own opinion, and reasons, in these Four points following. First, that the statute of ^e 5 E.6. cap. 11. is a generall law, and extends to all High treasons, as well by the Common Law declared by the statute of 25 E.3. as to any other statute made or to be made, the negative words of which statute be: [No person shall be ^f indicted, arraigned, convicted, condemned, or attainted for any treason, that now is, or hereafter shall be, &c.] Which words without all question are generall, and so to be taken. The words of that statute be further, [Unlesse the same offender be accused by two lawfull accusers,] These two lawfull accusers are injudgment of law taken for two lawfull witnesses, and that for two causes: First, they must be lawfull, that is, allowed by the Laws of the Realm: and by the law, upon the arraignment of the Prisoner upon the indictment of treason, no other accuser can be heard, but witnesses only. Secondly, the words of the statute are [Which said accusers at the time of the arraignment of the party accused, if they be then living, shall be brought in person before the party so accused, and avow, and maintain that which they have to say to prove him guilty of the treason., unlesse the party arraigned shall willingly without violence confesse the same,] as by that Act it appeareth. Now to avow and maintain that which they have to say, to prove him guilty of the treason, is the proper office and duty of witnesses, and so it is said in the statute of ^g 1 E.6. c.12. in the last clause (by two lawfull witnesses.) See the statute of 5 El. c.1. where it is said [accused by good and sufficient testmony:] to the same intent, the statute of 1 & 2 Ph.& Mariae ca.11. for the word [accused.] ⁱPuniantor accusatores penes dominum regem, quòd amodò Rex eis de facili non credat: et talis poena fiat eis, qualis debeat fieri illis, qui injuste fideles dn̄i regis exhaeredari & desturi fecerunt, &c.

2. That this Act of 5 E.6. extend as well to Petit Treason, as High Treason, for the words be [any treason] and so doth the statute of 1 E.6. ca.12.

3. That the statute of 1 & 2 Ph. & Mar. cap.10. doth not abrogate the said Act of 1 E.6. or of 5 E.6. For that Act of 1 & 2 Ph. & Mar. extends only to trialls by the verdict of twelve men de vicineto, of the place where the offence is alleadged, and ^k the indictment is no part of the triall, but an information or declaration for the King, and the evidence of witnesses to the Jury is no part of the triall, for by law the tryall in that case is not by witnesses, but by the ver-|-dict of twelve men, and so a manifest diversity between the evidence to a Jury, and a tryall by Jury. And the word [awarded] in that statute doth prove that that Act extended only to the venire facias for trial, for neither the indictment nor the evidence can be said to be awarded: Veritas quae minime defensator, opprimitur, & qui non improbat, approbat. Et sic liberè animam meam liberavi.

^a The tryal against an Aliennee, that lived here under the protection of the King, and amity being between both Kings, for High treason, shall by force of this Act of 1 & 2 Ph. & Mar. be tried according to the due course of the Common Law, and therefore in that case he shall not be tried per medieratem linguae, as he shall be in case of Petit Treason, murder, and felony, if he prayeth it.

4. ^b That a tryall in a forein county upon examination before three of the Councell, &c. by the statute of 33 H.8. ca.23. is abrogated by this Act of 1 & 2 Ph. & Mar. being a tryall contrary to the due course of the Common Law, which is to have it tryed by Jurours of the proper County, ^c but the indictment being found in the proper County, it may be by speciall commission heard and determined before Commissioners in any forein county, but the tryall must be by Jurours of the proper county; and this is warranted by the course of the Common Law. And albeit when the Term begins, all Conmisssions of Oier and Terminer in the county where the Kings Bench sit, be suspended during the Term, yet if an Indictment be found before such Commissioners before the tearm, there may be a speciall commission made to commissioners in the same county, sitting the Kings Bench in that county, to hear and determine the same during the tearm: for the Kings Bench hath no power to proceed thereupon, till the indictment be before them. And it is the better, if the speciall commission bear Teste after the beginning of the tearm. Note a diversity between generall commissioners of Oier and Teminer, and such a speciall commission; and the Court of Kings Bench may be adjourned, and in the mean time the Commissioners may sit there.

^d And where it is provided by the statute of 33 H.8. cap. 23. that peremptory challenge should not from thenceforth be admitted or allowed in cases of High Treason, or misprision of treason: ^e This branch is abrogated by the said Act of 1 Mar. For the end of challenge is to have an indifferent tryall, and which is required by law; and to bar the party indicted of his lawfull challenge, is to bar him of a principall matter concerning his tryall: and all Acts of Parliament concerning incidents to tryalls contrary to the course of the Common law, are abrogated by the said words, [and that all trialls hereafter, &c.] but all this is to be understood of persons under the degree of Nobility; For in case of a triall of a Noble man, Lord of Parliament, he cannot challenge at all any of his Peers.

^f Henry Garnet Superiour of the Jesuites in England uponhisarraignment for the Powder Treason, did challenge Burrrell a Citizen of London peremptorily, and it was allowed unto him by the resolution of all the Judges, ^g So as in case of High Treason, or misprision of High Treason, a man maychallenge 35. peremptorily, which is under three Juries, but more he cannot.

Lastly, all statutes made before the said Act of 1 & 2 Ph. & Mar. for tryall of High Treason, Petit Treason, or misprision of Treason, contrary to the due course of the common law, are abogated by the said Act of 1 & 2 Ph. & Mar. and tryalls by the due course of the common law, with challenges incidents in those cases are restored.

^h If a man be indicted of High Treason, he may at this day plead a forein plea, as he might doe by the common law, and shall be tryed in the forein county: but otherwise it is in cases of Petit Treason, murder, or felony, for there it shall be tryed in the county where the indictment is taken.

And forasmuch as the proceeding against a noble Peer of the Realm, being a Lord of Parliament in some points agrees, and in other points differeth from the proceeding against a subject under the degree of Nobility: It shall be necessary to shew wherein they agree, and wherein they differ.

| 1. The Noble Peer of the Realme must be indicted before Commissioners of Oier and Teminer or in the Kings Bench, if the treason, misprision of treason, felony or misprision thereof be committed in that County where the Kings Bench sit, as it was resolved in the case of Tho. D. of N. in An. 13. Eliz. And this is common to both degrees to be indicted by Jurors of that County where the offence was committed.

2. When he is indicted, then the King by his Commission under the Great Seale constitutes some Peer of the Realme, to be hac Vice, Steward of England: For his stile in the Commission, is, (Seneschallus Angliae) who is Judge in this case of the treason or felony, or of the misprision of the same committed by any Peer of the Realm. This commission reciteth the Indictment generally as it is found: and power given to the Lord Steward to receive the Indictment, &c. and to proceed, Secundum legem & consuetudinem Angliae. And a commandement is given thereby to the Peers of the Realme, to be attendant and obedient to him: and a commandement to the Lieutenant of the Tower to bring the prisoner before him.

3. A Certiorari is awarded out of the Chancery to remove the indictment it selfe before the Steward of England indialté, which may either beare date the same day of the Stewards Commission, or any day after.

4. The Steward directs his precept under his seale to the Commissioners, &c. to certifie the indictment such a day and place.

5. Another Writ goeth out of the Chancery directed to the Licutenant of the Tower to bring the body of the prisoner before the Steward at such day and place as he shall appoint.

6. The Lord Steward maketh a precept under his seale to the Lieutenant of the Tower &c. and therein expresseth a day and place when he shall bring the prisoner before him.

7. The Steward maketh another precept under his seale to a Serjeant at Armes, to summon Tot & tales dominos, magnates, & proceres hujusregni Angliae praedicti R. Comitis E. pares, per quos rei veritas melius sciri poterit, quòd ipsi personaliter compareant coram praedicto Seneschallo apud Westm. tali die & hora, ad faciend, ea quae ex parte domini Regis forent facienda, &c. Wherein Four things are to be observed. First, that all these precepts most commonly beare date all in one day. Secondly, that no number of Peers are named in the precept, and yet there must be Twelve or above. Thirdly, that the precept is awarded for the returne of the Peers before any arraignment or plea pleaded by the prisoner. Fourthly, that in this case the Lords are not de Vicineto, andtherefore the sitting and triall may be in any County of England. And herein are great differences between the case of a Peer of the Realme, and of one under the degree of nobility.

8. At the day, the Steward with six Serjeants at Armes before him takes his place under a Cloth of State, and then the Clerk of the Crown delivereth unto him his Commission, who redelivereth the same unto him. And the Clerk of the Crown causeth a Serjeant at armes to make three Oyes and commandement given in the name of the Lord High Steward of England to keep silence: and then is the Commission read. And then the Usher delivereth to the Steward a white rod, who re-delivereth the same to him againe, who holdeth it before the Steward. Then another Oyes is made, a commandement given in the name of the High Steward of England, to all Justices and Commissioners to certifie all Indictments and Records, &c. Which being delivered into Court, the Clerk of the Crown readeth the return. Another Oyes is made, that the Lieutenant of the Tower, &c. returne his Writ and Precept, and to bring the prisoner to the Bar: which being done, the Clerk reads the retorne. Another Oyes is made, that the Serjeant at armes return his precept with names of the Barons and Peers by him summoned, and the return of that is also read. Another Oyes is made, that all Earles, Barons and Peers (which by the commandement of the High Steward be summoned) answer to their names, and then they take their | places and sit down, and their names are recorded: and the entry of the Record is, that they appear, Ad faciendum ea quae ex parte Domini Regis eis injungentur. And when they be all in their places, and the prisoner at the Bar, the High Steward declares to the prisoner the cause of their assembly, and perswades him to answer without feare, that he shall be heard with patience, and that justice should be done. Then the Clerk of the Crown reades the Indictment, and proceeds to the arraignment of the prisoner, and if he plead not guilty, the entry is, Et de hoc de bono & malo ponit se super Pares suos &c. Then the High Steward giveth a charge to the Peers, exhorting them to try the prisoner indifferently according to their evidence.

9. The Peers are not sworn, but are charged, Super fidelitatibus, & ligeantiis Domino Regi debitis: for so the Record speaketh.

10. Then the Kings learned Councell give evidence, and produce their proofes for the King against the prisoner.

11. But the prisoner, when he pleadeth not guilty, whereby he denieth the fact, he needs have no advice of Councell to that plea. But if he hath any matter of law to plead, as Humfrey Stafford in 1 H.7. had, viz. The priviledge of Sanctuary, he shall have Councell assigned to him to plead the same, or any other matter in law: as to plead the generall pardon, or a particular pardon, or the like. And after the plea of not guilty, the prisoner can have no Councell learned assigned to him to answer the Kings Councell learned, nor to defend him. And the reason thereof is, not because it concerneth matter of fact, for Ex facto jus oricur: but the true reasons of the law in this case are: First, that the testimonies and the proofs of the offence ought to be so clear and manifest, as there can be no defence of it. * Secondly, the Court ought to be in dread of councell for the prisoner, to see that nothing be urged against him contrary to law and right: nay, any learned man that is present may informe the Court for the benefit of the prisoner, of any thing that may make the proceedings erroneous. And herein there is no diversity between the Peer and another Subject. And to the end that the triall may be the more indifferent, seeing that the safety of the prisoner consisteth in the indifferency of the Court, the Judges ought not to deliver their opinions before-hand of any criminall case, that may come before them judicially. And we reade, that in the case of Humfrey Stafford that arch-traytor, Hussey, Chiefe Justice, besought King Henry the Seventh, that he would not desire to know their opinions before-hand for Humfrey Stafford, for they thought it should come before them in the Kings Bench judicially, and then they would do that which of right they ought: and the King accepted of it. And therefore the Judges ought not to deliver their opinions beforehand upon a case put, and proofs urged of one side in absence of the party accused: especially in cases of high nature; and which deserve so fatall and extreme punishment. For how can they be indifferent, who have delivered their opinions before-hand without hearing of the party, when a small addition, or substraction may alter the case? And how doth it stand with their Oath, who are sworn, That they should well and lawfully serve our Lord the King and his people in the office of a Justice? and they should do equall law, and execution of right to all his subjects, &c. See more of this matter in the 13 Section here following.

12. There be alwayes either all, or some of the Judges ever attendant upon the High Steward, and sit at the feet of the Peers, or about a Table in the middest, or in some other convenient place.

13. After all the evidence given for the King, and the prisoners answers, and proofs at large, and with patience heard: then is the prisoner withdrawn from the Bar to some private place under the custody of the Lieutenant, &c. And after that he is withdrawn, the Lords that are tryers of the prisoner go to some place to consider of their evidence: and if upon debate thereof, they shall doubt of any matter, and thereupon send to the High Steward to have conference with the Judges, or with the High Steward, they ought to have no conference, either with the Judges or the High Steward, but openly in Court, and in the pre-|-sence, and hearing of the Prisoner; as it was resolved by all the Justices of England in the reign of King H.8. in the case of the Lord Dacres of the North. And this was a just resolution: for when the Lords should put a case, and ask advice thereupon, the prisoner ought by law to be present, to see that the case or question be rightly put: and therefore that nothing be done in his absence, untill they be agreed on their verdict. Hereupon it followeth, that if the Peers of the Realm, who are intended to be indifferent, can have no conference with the Judges, or with the High Steward in open Court in theabsence of the prisoner: à fortiori, the Kings learned Counsell should not in the absence of the party accused, upon any case put, or matter shewed by them, privately participate the opinion of the Judges: and upon so just a resolution the case succeeded well, for the Peers found the Lord Dacres not guilty.

14. A Noble man cannot waive his triall by his Peers, and put himselfe upon the triall of the Country, that is, of twelve Freeholders: for the statute of Magna Carta is, that he must be tried per Pares. And so it was resolved in the Lord Dacres case, Ubi supra.

15.* The Peers ought to continue together (as Juries in case of other Subjects ought to do) untill they be agreed of their Verdict: & when they are agreed, they all come again into the Court, and take their places, and then the Lord High Steward publickly in open Court, beginning with the puisne Lord, (who in the case of the Lord Dacre was the Lord Mordant,) said unto him: By Lord Mordant, Is William Lord Dacre guilty of the treasons, whereof he hath been indicted or arraigned, or of any of them. And the Lord standing up said, Not guilty: and so upward of all the other Lords seriatim: who all gave the same Verdict: In which case the entry is, Super quo W. Comes E. & caeteri anredicti Pares instanter super fidelitatibus & ligeantiis dicto Domino Regi dibitis, per praefatum Senescallum ab inferiori Pare usq; ad supremum separatim publice examinati dicunt, quòd W. Dominus Dacre non est culp. &c.

16. The Peers give their Verdict in the absence of the prisoner, and then is the prisoner brought to the Bar again: and then doth the Lord Steward acquaint the prisoner with the verdict of his Peers, and give judgement accordingly, either of condemnation or acquitall. But it is not so in the case of another subject: for there the verdict is given in his presence.

17. Every Lord of Parliament, and that hath voice in Parliament, and called thereunto by the Kings Writ, shall not be tried by his Peers, but only such as sit there Ratione Nobilitatis, as Dukes, Marquisses, Countes, Viscounts or Barons, and not such as are Lords of Parliament, ratione Baroniarum, quas tenent in jure Ecclesiae, by reason of their Baronies which they hold in the right of the Church, as Arch-Bishops, and Bishops, and in time past some Abbots and Priors, but they shall be tried by the country, that is, by Freeholders, for that they are not of the degree of Nobility.

18. ^a No Noble man shall be tried by his Peers, but only at the suit of the King upon an indictment of high treason, or misprision of the same, petit treason, murder, or other felony, or misprision of the same. But in case of a Premunire or the like, though it be at the suit of the King, he shall not be tried by his Peers, but by Freeholders. And so in an Appeale at the suit of the party for petit treason, murder, robbery, or other felony, he shall be tryed by Freeholders. See more hereof in the second part of the Institutes, Magna Carta, cap. 29.

19. ^b And albeit a man be Noble, and yet no Lord of the Parliament of this Realm, (as if he be a Nobleman of Scotland, or of Ireland, of France, &c.) he shall be tried by Knights, Esquires, or others of the Commons. And so it is of the sonne of a Duke, Marquise, Earle, &c. he is Noble, and called Lord: and yet because he is no Lord of Parliament, he shall be tried as one under the degree of a Peer, and Lord of Parliament.

20. No Peer of the Realme, or any other subject shall be convicted by Verdict but the said offences must be found by above Four & twenty, viz. by twelve, or above, at his indictment, or by twelve Peers, or above, if he be Noble, and by | twelve, and not above, if he be under the degree of Nobility.

21. A Peer of the Realme being indicted of treason, or felony, or of misprision, as is aforesaid, and duly transmitted to the Lords, may be arraigned thereof in the upper House of Parliament, as frequently in Parliament Rolls it doth appeare: but then there must be appointed a Steward of England, who shall put him to answer: and if he plead not guilty, he shall be tried per Pares suos, and then the Lords Spirituall must withdraw, and make their proxies: but no Appeal of treason can be in Parliament, ^a but is ousted by the statute of 1 H.4. cap. 14.

22. ^b And as the beginning (viz. the finding of the indictment by Freeholders) is equall to them both: so the most extreme and heavie judgement, if they be found guilty, is equall to both, &c. which you may reade in the first part of the Institutes, Sect. 147.

23. ^c And though the Commission of the Lord Steward be only in these latter times hac vice, yet may the same be adjourned, as other Commissions hac vice may. And so it was holden in the Lord Dacres case. And so it was done by the Steward of England in the case of R. Earle of S. and of F. his wife, who adjourned his Commission until the next day.

24. If execution be not done according to the judgement, then the High Steward in the case of a Peer of the Realm, or the Court of Commissioners in case of another subject, may by their precepts under their seales command execution to be done according to the judgement: but in case of High Treason, if all the rest of the judgement (saving the beheading, which is part of the judgement) be pardoned, this ought to be under the Great Seale of England.

25. And when the service is performed, then is an Oyes made for the dissolving of the Commission; and then is the White Rod, which hath been borne and holden before the Steward, by him taken in both his hands, and broken over his head.

Lastly, the Indictments together with the Record of the arraignment, triall, and judgement, shall be delivered into the Kings Bench, there to be kept and inrolled.

Hitherto we have spoken when a Noble man doth appear, and plead not guilty, and put himself upon his Peers: Now let us see what shall be had against him when he is indicted, and appears not, and cannot be taken: and generally he shall be outlawed, per judicium Coronatorum. But how doth that stand with Magna Charta,Nec super eum ibimus, nec. super eum mitremus, nisi per legale judicium parium suorum? That is to be intended, when he appears and pleads not guilty, and puts himself upon his Peers: but when he absents himself, and will not yeild himself to the due tryall of his Peers, then he shall be outlained per judicium Coronatorum, or else be should take advantage of his own contumacy, and flying from judgement. ^d For process to be awarded upon the indictment or appeal of treason, felony or trespas either against a Nobleman or any other, see the statute of 6 H.6. and 8 H.6. and if the process & order prescribedly those statutes be not pursued, the outlawry may be reversed by writ of error, which writ ought to be granted to him ex merito Justitiae, as it was adjudged in Ninian Menvils case: and those statutes doe extend as well to the Kings Bench, as to other courts having by commission power to hear and determine the same, and very few outlawries of treason or felony, are of force and validity in law, for that these Acts are not pursued.

And these Acts are well expounded by our * books, and therefore they shall not need to be recited at large. This is necessary to be added, that the opinion of Stanf. Pl. Cor. 182. l. upon the statute of 33 H.8. c.10 is, where the attainder is not erroneous, but lawfull by the course of the law: and so it was resolved, Tr. 28 Eliz. and thereupon ^e the statute of 28 Eliz. ca.2. was made, that no attainder that then was for any High Treason should be reversed for error where the party was executed. But that Act extendeth only to attainders before that Act, and where the party attainted suffered pains of death, as hath been said.

| But admitting the proces be awarded according to these statutes, & the truth is; that the party indicted of High Treasons (be he noble or other) at the time of the outlawry pronounced, is out of the realm, &c. whether may he avoid the same by writ of error? The answer is, that he might have avoided the same by writ of error at the common law: but now in case of High Treason he is barred of his writ of error by the statutes of 26 H.8. and 5 E.6. which statutes are expounded to extend generally to all treasons, but those statutes extend not to any other offence then high treason only, and therefore all other offences remain as they did at the common law for that point.

Now for that all indictments for any offence whatsoever, as well of Noblemen, as of any under the degree of Nobility, ought by the common law of the Realm to be by persons duly returned, and by * lawfull liege people, indifferent as they stand unsworn and without any denomination of any: a good and profitable law * was made in that behalf at the Parliament holden in 11 H.4. in these words. Item because that now of late ^a Inquests were taken at Westm’ of persons named to the ^b Justices, without due return of the Sherif, of which persons some were ^coutlawed before the said Justices of record, and some fled to Sanctuary for treason, and some for felony, there to have refuge; by whom as well many offenders were indicted, as other lawfull liege people of our Lord the King, not guilty by conspiracy, abetment, and false imagination of other persons for their speciall advantage and singular lucre, against the course of the common law used and accustomed before this time. Our said Lord the King for the greater ease and quietnesse of his people, will and granteth, that the same indictment so made, with all the dependance thereof be ^d revoked, adnulled, void, and holden for none for ever. And that from henceforth no indictment be made by any such persons, but by enquests of the Kings lawfull ^e liege people, in the manner, as was used in the time of his Noble Progenitors, returned by the Sherifs, or baylifs of franchises, without any ^f denomination to the Sherifs, or baylifs of franchises before made by any person of the names, which by him should be impanelled, except it be by the officers of the said Sherifs or baylifs of franchises sworn and known to make the same, ^g and other officers to whom it pertaineth to make the same according to the law of England. And if any indictment be madehereafter in any point to the contrary, that the same indictment be also void, revoked, and for ever holden for none.

The body of this Act consisteth upon two distinct Purviens or Branches, the one to remedy a mischief past, the other to provide for the time to come. The first branch consisteth of a preamble, and a purvien: and the preamble containeth these eight parts. First, it sheweth divers inquests had been taken at Westminster by persons named to the Justices. Secondly, without duereturn of the Sherif. Thirdly, of which some were outlined before the said Justices of record. Fourthly, some fled to Sanctuary for treason, and some for felony. Fifthly, by whom many offenders were indicted. Sixthly, some not guilty, Seventhly, by conspiracy, &c. Eighthly, that all this was against the course of the common law. By the body of the Act, it is enacted that the same indictment, with all the dependence thereof, be revoked, and made void. Then followeth the second branch or purvien for the time to come, and this purvien consisteth of divers parts: First, in describing by what persons indictments ought to be found, and therein 1. privatè, that is, not by any such persons, having reference to the preamble, which persons we have before particularly distinguished. 2. Positivè, that all indictments must be found by persons of these qualities. 1. They must be the Kings lawfull liege people. 2. Returned by the sherifs, or baylifs of franchises, and other officers to whom it pertaineth. 3. Without any denomination to the sherifs, baylifs, or other officers: and this purvien is in affirmance, and declaratory of the Common law.

The second part of the purvien is introductory of a new law, viz. that if any Indictment be made hereafter in any point to the contrary, that the same indictment be void, revoked, and holden for none. Wherein these two things are to | be observed: 1. That this is a generall law, and extendeth to all indictments for any crime, default, of offence whatsoever: for the words be [if any indictment] generally without naming of any Court, or before whom. 2. If the indictment be found by any persons that are outlawed or not the Kings lawfully liege people, or not lawfully returned, or denominated by any, viz. by all are any of these, that then the indictment is void, for the words be, [if any indictment be made hereafter in any point to the contrary, &c.] Upon this statute in the case of Robert Scarlet before the Justices of Assise at Bury in the County of Suffolk, in Sommer Vacation, 10 Ja. R. these points were resolved and adjudged: First, where at the Sections of the Peace holden at Woodbridge in the said County of Suffolk, Robert Scarlet by confederacy between him and the Clerk, that was to read the pannell of the grand Jury returned by the Shirif, (whereof he was none, albeit he laboured the Sherif to have returned him) that the Clerk should read him as one of the pannell, which was done accordingly, and he sworn. It was resolved and adjudged that this case was within this statute, for that he was not returned by the Sherif. Secondly, that where the rest of the great inquest giving faith to him indicted seventeen honest and good men upon divers penall statutes, which was done by the said Robert Scarlet maliciously: It was resolved and adjudged, that albeit he * alone was sworn without the return of the Sherif, and all the rest duly returned, yet that this case was within this statute, and all the indictments found by him and the rest were void by this statute: for hereby it appeared what mischief such a one might doe. Thirdly, that Robert Scarlet upon this case had offended against the said Act, and might be indicted thereupon: and accordingly he was upon sufficient proof of the fact, as is aforesaid, indicted upon the said Act, and pleaded not guilty, and was found guilty. Fourthly, that this Act extended not only to indictments of treason and felony, but of all other offences and defaults whatsoever, according to the generality of the words. Fifthly, consideration was had of the Act of 3 H.8. cap.12. andresolved clearly that this statute had not altered the Act of 11 H.4 in. any thing concerning the offence of Scarlet, as upon that, which shall be said of the Act of 3 H.8. shall appear. And upon hearing of Councell learned what they could say in arrest of judgement, at last judgement was given, that he should be fined and imprisoned, and ordered by the Court that no process should goe out upon the said indictments found by the said great inquest, whereof Scarlet was one.

But not withstanding this good law, through the subtilty, & untrue demeanor of Sherifs, and their Ministers, great extortions and oppressions be and have been committed and done to many of the Kings subjects by means of returning at Sections holden within counties and shires for the body of the shire, the names of such persons as for the singular advantage, &c. of the said Sherifs and their Ministers, will be wilfully forsworn and perjured by the sinister labour of the said Sherifs and their Ministers, by reason whereof many substantiall persons, the Kings true subjects have been wrongfully indicted of murders, felonies, and misdemeanors: and sometime by labour of the said Sherifs and their Ministers, divers great felonies and murders have been concealed, &c. For remedy of which mischiefs it is enacted by the said statute of 3 H.8. cap.12. That the Justices of Gaol Delivery, or Justices of Peace, whereof one to be of the Quorum, in their open Sessions may reform the panell returned by the Sherif to inquire for the King, by putting to and taking out the names of the persons so impanelled by the discretion of the said Justices, &c. and that the Sherif shall return the panells so reformed. This Act extends only to Justices of Gaol Delivery, and of the Peace: The body of the Act for offences is generall and evident. Vide 11 H.7. cap.24.

Nota Lector, that the aforesaid Parliament of 11 H.4. begun in Quindena Hilarii, Anno 11 H.4. and the same tearm, viz. Hill 11 H.4. fo.41. it was according to the said Act of 11 H.4. resolved by Gascoign Chief Justice, and all the rest of the Justices, that an indictment of felony found by an inquest before 3 H.9. whereof one was outlawed of felony, and another was acquited by the | general pardon, so as they were not probi et legales homines to enquire as the law willeth, and after the party had pleaded not guilty to the felony, it was awarded, that all the indictments by them found, were adnulled and made void. Herewith agreeth Stanford in his Pleas of the Crown, fo. 87. & 88. Vide F. tit. Indictment 25. & Coron. 89. and Brook tit. indictment. 2. Note the Act saith, that they were outlawed before themselves, so as the Court may take knowledge thereof of themselves, or of any other, as amicus curiae: but the safest way for the party indicted is to plead, upon his arraignment, the speciall matter given unto him by the statute of 11 H.4. for the overthrow of the indictment, with such averments, as by law are required, (agreeable to the opinion of the Lord Brook. Ubi supra.) and to plead over to the felony, and to require councell learned for the pleading thereof, which ought to be granted, and also to require a copy of so much of the indictment, as shall be necessary for the framing of his plea, which also ought to be granted. And these Laws made for indifferency of Indicters, ought to be construed favourably, for that the indictment is commonly found in the absence of the party, and yet it is the foundation of all the rest of the proceeding.

To draw to an end concerning Tryals: It is regularly true, that by the Common law the tryall shall be in the County, where the indictment is taken: and by the aforesaid Act of 35 H.8. treasons and misprisions of treasons committed or done out of the Realm, &c. shall be enquired of, heard, and determined before the Justices of the Kings Bench, &c. Now the case fel out upon this statute to be thus: * One was indicted before the Justices of the Kings Bench, at the Tearm holden at Hertford, by a Jury of the County Hertford, for divers high treasons committed out of this Realm and after the tearm was adjourned to Westm. in the County of Midd. The question was, by which of the Counties the party indicted should be tried: And it was resolved, that he should be tried by men of that County where the indictment was taken. But otherwise it is upon the statute of 5 El. ca.1. the case being, that Horn Bishop of Winch. tendred to Edmond Bonner late Bishop of London, in the County of Surrey, within his Dioces the oath of Supremacy according to the Act of 1 Eliz. which Bonner refused, and this was certified by the Bishop of Winch. into the Kings Bench, then sitting at Westminister in the County of Midd. Now by the statute of 5 El. he that refuseth the oath is to be indicted of a Premunire by a Jury of Midd. as a Jury of that County might doe for any offence done in that County, and extendeth only to the indictment, where the words of the Act of 35. H.8. be, [shal be enquired of, heard, and determined,] the question upon the statute of 5 Eliz. was, if Bonner should appear and plead not guilty, by what County he should be tried, whether by a Jury of Midd. where the indictment was, or by a Jury of Surrey, where the offence was committed; and resolved that he should be tried by a Jury of Surrey: for the statute of 5 El. extendeth to the indictment only, and leaveth the triall to the Common law, which appointeth tryall to be, where the offence is committed, and so a manifest diversity between the two cases: for regularly by the Common Law in all Pleas of the Crown, Debet quis juri sabjacere, ubi deliquit. ,

It is now necessary to be known, how Prisoners (to speak once for all) committed for treason, or any other offence ought to be demeaned in prison. Bracton saith, Solent praesides in carcere continendos damńare, ut in vincalis contineantur, sed hujusmodi interdicta sunt à lege, quia carcer ad continendos, non ad puniendos haberi debeat: And in another place he saith, Cum autem taliter captus coram Justic. est producendus, produci non debet ligatis manibus, (quamvis interdum gestans compedes proptere vasionis pericu’um,) et hoc ideo, ne videatur coactus ad aliquam purgationem suscipiendam.

^a If felons come in judgement to answer, &c. they shall be out of Irons, and all manner of bonds, so that their pain shall not take away any manner of reason, nor them constrain to answer, but at their free will. ^b And in another place he saith, and of prisoners we will that none shall be put in Irons, but those | which shall be taken for felony, or trespas in Parks or Vivaries or which be found in arerages upon account, and we defend that otherwise they shall not be punished nor tormented. ^cOmnes autem attachiabiles licet vicocomiti in prisona custodire, &c. nos tamen ad puniend’, sed ad custioniend’ &c.^d It is an abuse that prisoners be charged with Irons, or put to any pain before they be attainted.

^eQuidam facerdos arraniatus de felonia posuit se super patriam, &c stetit ad barram in ferris, sed per praeceptum Justic. liberator à ferris. And there is no difference in law, as to a Priest and a Lay man, as to Irons.

^fPresentat quod ubi quidam Roberrus Bayhons de Tanesby captus fuit, &c in prisona castri Lincoln detentus pro quodam debito Statut. mercatorii incustodia Tho. Boteler Constabularii castri de Lincoln ibi praed. Tho. le Botelet posuitipsum Robertum in profundo Gaole inter lenones in vili prisona contra *formam Statut.&c. & eodem profoundo detinuit, quousque idem Robertus fecit finem cum eo de 40 s. quos ei solvit per extorsionem.

So as hereby it appeareth, that where the law requireth that a prisonershould be kept in salva & arcta custodia, yet that that must be without pain or torment to the prisoner.

Hereupon two questions do arise, when and by whom and Rack or Brake in the Tower was brought in.

To the first, John Holland Earle of Huntingdon, was by King H.6 created Duke of Exeter, and Anno 26 H.6. the King granted to him the office of the Constableship of the Tower: He and William De la Poole Duke of Suffolk, and others, intended to have brought in the Civill Lawes. For a beginning whereof, the Duke of Exeter being Constable of the Tower first brought into the Tower the Rack or Brake allowed in many cases by the Civill Law; and thereupon the Rack is called the Duke of Exeters Daughter, because he first brought it thither.

To the second upon this occasion, Sir John Fortescue Chiefe Justice of England, wrote his Book in commendation of the lawes of England; and therein preferreth the same for the government of this countrey before the Civill Law; and particularly that all tortures and torments of parties accused were directly against the Common Lawes of England, and showeth the inconvenience thereof by fearfull example, to whom I refer you being worthy your reading. So as there is no law to warrant tortures in this land, nor can they be justified by any prescription being so lately brought in.

And the Poet in describing the iniquity of Radamanthus, that cruell Judge of Hell, saith,

Castigatque, auditque dolos, subigitque fateri.

First, he punished before he heard, and when he had heard his deniall, he compelled the party accused by torture to confesse it. But far otherwise doth Almighty God proceed postquá reus diffamatus est. 1. Vocat. 2. Interrogat. 3. Judicat. , To conclude this point, it is against Magna Carta, cap. 29. Nullus liber homo, &c. aliquo modo destruatur, nec super cum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, aut per legem terrae. And accordingly all the said ancient Authors are against any paine, or torment to be put or inflicted upon the prisoner before attainder, nor after attainder, but according to the judgement. And there is no one opinion in our Books, or judiciall Record (that we have seen and remember) for the maintenance of tortures or torments, &c.

And now, to conclude this Chapter of Treason. It appeareth in the holy Scripture, that traytors never prospered, what good soever they pretended, but were most severely and exemplarily punished: As ^a Corah, Dathan and Abiram, by miracle: Dirupta est terra sub pedibas eorum, & aperiens os suum de voravit illos, &c.^b Athalia the daughter of Amri, interfecta est gladio.^c Bagatha and Thara against Assuerus, Apponsus est uterq; corum in patibula.^d Absolon against David. Suspensus in arbore, & Joab infixit tres Lanceas in corde ejus.^e Achitophel with Absolon against David. Suspendio interiit, he hanged | himselfe. ^f Abiathar the traiterous High Priest against Solomon. Abiathar Sacerdoti dixit Rex, &c. Et quidem vir mortis es, sed hodiè te non interficiam, &c. Ejecit ergo Solomon Abiathar, ut non esset Sacerdos.^g Shimei against David, gladio interfectus,^h Zimri against Ela, who burnt himselfe. ⁱTheudas (qui occisus est, & circiter 400 qui credebant ei, dispersi sunt & redacti ad nihilum) and Judas Galilaeus, ipse periit, & omnes quotquot consenserunt ei, dispersi sunt. Lastly, ^k Judas Iscariot, secundum nomen ejus vir occisionis, the traytor of traytors. Et hic quidem possedit agrum de mercede iniquitatis suae, & suspensus crepuit medius, & diffusa sunt omnia viscera ejus.

Peruse over all our Books, Records, and Histories, and you shall finde a principle in law, a rule in reason, and a trial in experience, That treason doth ever produce fatall & finall destruction to the offender, and never attaineth to the desired end, (two incidents inseparable thereunto.) * And therefore let all men abandon it, as the most poisonous bait of the Devill of hell, and follow the precept in holy Scripture, Feare God, honour the King, and have no company with the Sedicious.

See more of Treason in the next Chapter of Misprision, &c. and in Principall and Accessory, in the title of Judgement and Execution: and in the Chapter of Monomachia, single combate, &c. the residus of this Act of 25 E.3.

Cap. III.
Of Misprision of Treason.

Misprisio commeth of the French word Mespris, which properly signifieth neglect or contempt: for [mes ] in composition in the French signifieth mal, as mis doth in the English tongue: as mischance, for an ill-chance, and so mesprise is ill apprehended or known. In legall understanding it signifieth, when one knoweth of any treason or felony, and concealeth it, this is misprision, so called, because the knowledge of it is an ill knowledge to him, in respect of the severe punishment for not revealing of it: For in case of misprision of High Treason, he is to be imprisoned during his life, to forfeit all his goods, debts, and duties for ever, and the profits of his lands during his life: and in case of felony, to be fined and imprisoned. And in this sense both the said statute of 1 & 2 Ph. & Mar. speak, when it saith, Be it declared, and enacted, by the Authority aforesaid, that concealement or keeping secret of any High Treason be deemed and taken only misprison of treason, and the offenders therein to forfeit and suffer, as in cases of misprision of treason, and the offenders therein to forfeit and suffer, as in cases of misprision of treason hath heretofore been used. * But by the Common law concealement of High Treason was treason, as it appeareth in the case of the Lord Scrope, An. 3 H.5. and by Bracton, lib.3. fo.118.b. & 119a.

^a It is Misprision of High Treason, for forging of money, which neither is the money of this Realme of England, nor currant within the same.

^b Misprision of High Treason in concealing of a Bull, &c. See the statute.

^c It is said in 2 R.3. that every treason or felony includeth in it a misprision of treason or felony. Therefore if any man knoweth of any High Treason, he ought with as much speed as conveniently he may to reveale the same to the King, or some of his Privie Councell, or any other Magistrate. And misprision in a large sense is taken for many great offences which are neither treason nor felony, whereof we shall speak more hereafter, being in this place restrained to misprision of treason.

See John Coniers Case Dier 296. That the receiving of one that hath counterfeited the Kings Coine, and comforting of him knowing him to have counterfeited the Kings coine, is but misprision.

See more of misprision of treason in the Chapters of High Treason, and of Principall and Accessory.

| Cap. IV. Felony by compassing or conspiring to kill the King, or any Lord or other, of the Kings Counsell.

Next hereunto we have thought good to speak of the Statute of 3 H.7. the letter of which law ensueth.

| This Act divideth it self into Two generall parts, viz. the Preamble, And the body of the Act. In the preamble Three things are to be observed.

1. That by quarrels made to such, as are in great Authority, office, and of Counsell with the Kings of the Realm, have ensued the destruction of the Kings, and the undoing of the Realm, as in the Records of Parliament, and Histories of King E.2. R.2. King H.6. &c. you may read. And as King William Rufus was slain in the new Forest by the glance of an arrow, so the overthrow of the king, &c. hath followed by glances, and consequents, when the bow of destruction hath been aimed at the overthrow of those, who were in great Authority neer about, and dear to the King, not daring in direct manner to aim at the King himself. Therefore, the first conclusion is, that when the compassing of the death of such, as were of the Kings true subjects was had, the destruction of the Prince was imagined thereby.

2. That for the most part, it hath grown by envy and malice by the Kings own houshold servants: and the reason thereof is, for that they being of the Kings houshold, have greater and readier means either by night, or by day to destroy such as be of great Authority, and neer about the King: and such an attempt and conspiracy was before this Parliament made by some of this Kings houshold servants, and great mischief was like thereupon to have ensued, which was the cause of the making of this Act.

3. The conclusion of the Preamble is, that by the law of the land, if actuall deeds be not had, there is no remedy for such false compassings, &c. This is a true declaration: For the bare conspiracy of the death of any Lord or other of the Kings Councell, or of the Steward, Treasurer, or Comptroller, unlesse they had been slain indeed, was no felony before this Act, and so resolved upon the contempt and conspiracy aforesaid.

In the body of this Act, Six things are enacted. First, that the offender must have three qualities. 1. He must be the Kings servant sworn. 2. His name must be put in the Cheque Roll of the Kings houshold. 3. He must be under the state of a Lord: and if he conspire with any other, that is not of the Kings, houshold, yet is the conspiracy within this Act, but he of the Kings houshold is only the felon within the purvien of this statute, as it appeareth by the words of the statute.

Secondly, Against what persons the offence made felony by this Act is to be committed: and in number they be Four. 1. To destroy or murder the King. By this Act it expresly appeareth by the judgement of the whole Parliament, that besides the confederacy, compassing, conspiracy, or imagination, there must be some other overt act or deed tending thereunto, to make it treason within the statute of 25 E.3. And therefore the bare confederacy, compassing, conspiracy, or imaginations by words only, is made felony by this Act. But if the Conspirators doe provide any weapon, or other thing, to accomplish their devilish intent, this and the like is an overt act to make it treason. 2. Any Lord of this Realme being sworn of the Kings Councell: for by the Purvien of this Act, he must be also of the Kings Councell: this is understood of the Kings Privy Councell, and so throughout the Act. 3. Any other of the Kings Councell (that is, the Kings Privy Councell) being under the degree of a Lord. 4. The Steward, Treasurer, and Comptroller of the Kings houshold, being great officers, though they be not of the Kings Councell.

Thirdly, The third generall part expresseth the persons to whom power is given to enquire & determine this felony. The Steward, Treasurer, and Comptroller, or any one of them may enquire. And they or two of them have power by this Act to hear and determine the same: and though the words be for the Inquiry, that they three, or any of them, &c. yet an Indictment taken before two of them is good, because it is for advancement of Justice. And this Act is in nature of a Commission to them, for other Commission they need not to have: and this you may see in divers other Acts of Parliament of like nature. If any the houshold servants conspire the death of the Steward, Treasurer, and Comptroller, yet by force of this Act they are Judges of the cause, and none other can be, and in that case, | they will assist themselves for their direction, with some grave and learned men in the laws. But if the death of any one of them be compassed, then it is more convenient that it be heard and determined before the other two.

Fourthly, the fourth part setteth forth, first, how the Inquiry, & after the triall shall be made, that is, that the Inquiry must be made by twelve sad men and discrect persons of the Cheque Roll of the Kings houshold: and when the offender hath pleaded not guilty, the tryall shall be by the like persons. And here though this Act limiteth the inquiry to be by twelve, yet if it be Inquired of by more then twelve, the presentment is good, but the tryall must be by twelve only.

Fifthly, no challenge shall be made, but for malice.

Sixthly, by the consert of the whole Act, the conspiracy, that is to be heard and determined by this Act, must be plotted to be done within the Kings houshold.

The offender against this statute shall have the benefit of his Clergy: for whensoever Felony is made by any statute, and the benefit of Clergy is not expresly taken away, the offender shall have his Clergy.

See the statute of 3 & 4 E.6. whereby amongst other things in some case it was High treason, and in some case felony, to intend, or goe about to kill, or imprison any of the Kings Privy Councell, &c. from which felony, the benefit of Sanctuary, and Clergy was taken away:butthesetreasonsandfelonies are repealed by the statute of 1 Mar.

Cap. V.
Of Heresie.

Concerning Heresie five things fall into consideration. First, who be the Judges of Heresie. Secondly, what shall be adjudged Heresie. Thirdly, what is the judgement upon a man convicted of Heresie. Fourthly, what the law alloweth him to save his life. Fifthly, what he shall forfeit by judgement against him.

Touching the First, an Heretique may be convicted ^a before the Archbishop and other Bishops, and other the Clergy at a generall Synod, or Convocation, as it appeareth both by our books, and by history. See the statute of 25 H.8. cap.19. revived by 1. El.cap.I.

^b And the Bishop of every Dioces may convict any for Heresie, and so might he have done before the statute of 2 H.4. ca.15. as it appeareth by the Preamble of that Act in these words.

Whereas the Diocesans of the said Realme cannot by their jurisdiction spirituall, without aid of the said royall Majesty, sufficiently correct the said false and perverse people, (i. Heretiques, named before) because the said false and perverse people doe goe from Dioces to Dioces, and will not appear before the said Diocesans, but the same Diocesans and their Iurisdiction spirituall, and the keys of the Church with the censures of the same, doe utterly contemn and despise.

Now that statute doth provide, that the Diocesan of the same place, such person or persons, &c. may cause to be arrested, and under safe custody in his prisons to be detained. From this Act and other Acts and Authoritiesquoted in the margent, these Two conclusions are to be gathered. First, that the Dio-|-cesan hath jurisdiction of Heresy, and so it hath been put in use in all Queen Elizabeths reign: and accordingly it was resolved by Flemming Chief Justice, Tanfield chief Baron, Williams, and Crook Justices, Hil. 9. Ja. R. in the case of Legate the Heretique, and that upon a conviction before the Ordinary of Heresy, the writ of De haeretico comburenedo doth lie. Secondly, that without the aid of that Act of 2 H.4. the Diocesan could imprison no person accused of Heresy, but was to proceed against him by the censures of the Church. And now seeing, that not only the said Act of 2 H.4. but 25 H.8. c.14. are repealed, the Diocesan cannot imprison any person accused of Heresy, but must proceed against him, as he might have done before those statutes, by the censures of the Church, as it appeareth by the said Act of 2 H.4. c.15. Likewise the supposed statute of 5 R.2. c.5. and the statutes of 2 H.5. c.7. 25 H.8. c.14. 1 & 2 Ph. & Mar. c.6. are all repealed, so as no statute made against Heretiques standeth now in force: and at this day no person can be indicted, or impeached for Heresy before any temporall Judge, or other, that hath temporall jurisdiction, as upon perusall of the said statutes appeareth.

Every Archbishop of this Realm may cite any person dwellinginany Bishops Dioces within his province for causes of Heresy, if the Bishop, or other Ordinary immediate thereunto consent, or if that the same Bishop, or other immediate Ordinary, or Judge doe not his duty in punishment of the same.

2. Touching the second point, if any person be charged with Heresy before the High Commissioners, they have no authority to adjudge any matter or cause to be heresy, but only such, as hath been so adjudged by the authority of the Canonicall, Scripture, or by the first four generall Councells, or by any other generall Councell, wherein the same was declared heresie by the expresse and plain words of the Canonicall, Scripture, or such as shall hereafter he determined to be heresy by Parliament, with the assent of the Convocation: for so it is expresly provided by the said Act of 1 El. And albeit this Proviso extendeth only to the said high Commissioners, yet seeing in the high Commission, there be so many Bishops, and other Divines, and Learned men, it may serve for a good direction to others, especially to the Diocesan, being a sole Judge in so weighty a cause.

No manner of Order, Act, or Determination for any matter of Religion, or cause Ecclesiasticall, had or made by the Authority of the Parliament in Anno 1 El. shall be accepted, deamed, interpreted, or adjudged Heresy, Schism, or Schismaticall opinion, any order, decree, sentence, constitution, or law (whatsoever the same be) notwithstanding.

There was a statute supposed to be made in 5 R.2. that Commissionsshould be by the Lord Chancellor made, & directed to Sherifs, and others, to arrest such as should be certified into the Chancery by the Bishops, and Prelates, * Masters of Divinity, to be preachers of heresies, and notorious errors, their fautors, maintainers, and abetters, and to hold them in strong prison, until they will justifie themselves to the law of holy Church. By colour of this supposed Act, ^a certain persons, that held, that images were not to be worshipped, &c. were holden in strong prison, until they (to redeem their vexation) miserably yeelded before these Masters of Divinity to take an oath, and did swear to worship images, ^b which was against the morall and eternall law of Almighty God. We have said (by colour of the said supposed statute, &c.) not only in respect of the said opinion, but in respect also, that the said supposed Act, was in truth never any Act of Parliament, though it was entred in the Rolls of the Parliament, for that the Commons never gave their consent thereunto. And therefore in the ^c next Parliament, the Commons preferred a bill reciting the said supposed Act, and constantly affirmed, that they never assented thereunto, and therefore desired that the said supposed statute might be aniented, and declared to be void: for they protested, that it was never their intent to be justified, and to bind themselves and their successors to the Prelates, more then their Ancestors had done in times past: and hereunto the King gave his royall assent in these words, y pleist au | Roy. And mark well the manner of the penning the Act: for seeing the Commons did not assent thereunto, the words of the Act be, It is ordained and astented in this present Parliament, that, &c. And so it was, being but by the King and the Lords.

It is to be known, that of ancient time, when any Acts of Parliament were made, to the end the same might be published, and understood, especially before the use of printing came into England, the Acts of Parliament were ingrossed into parchment, and bundled up together with a writ in the Kings name, under the great seal to the Sherif of every County, sometime in Latin, and sometime in French, to command the Sherif to proclaim the said statutes within his bayliwick, as well within liberties, as without. And this was the course of Parliamentary procedings, before printing came in use in England, and yet it continued after we had the print, till the reign of H.7.

Now at the Parliament holden in 5 R.2. John Braibrook Bishop of London being Lord Chancellor of England, caused the said Ordinance of the King and Lords to be inserted into the Parliamentary writ of Proclamation to be proclaimed amongst the Acts of Parliament: which writ I have seen, the purclose of which writ, after the recitall of the Acts directed to the Sherif of N. is in these words. Nos volentes dictas concordias, sive ordinationes in omnibus et singulis suis Articulis inviolabiliter observari, tibi praecipimus quòd praedictas concordias, sive ordinationes in locis infra balivam tuam, ubi melius expedire volueris, tam infra libertates, quam extra, publicé proclamari, et teneri faciasjuxta formam praenotatam. Teste Rege apud Westm. 26 May, Anno regni Regis R.2.5. But in the Parliamentary proclamation of the Acts passed in Anno 6 R.2. the said Act of 6 R.2. whereby the said supposed Act of 5 R.2. was declared to be void, is omitted: and afterwards the said supposed Act of 5. R.2.wascontinually printed, and the said Act of 6 R.2. hath by the Prelates been ever from time to time kept from the print.

Certain men called Lollards were indicted for heresy, upon the said statute of 2 H.4. for these opinions, viz. Quod non est meritorium ad Sanctum Thomam, nec ad Sanctam Mariam de Walsingham peregrinari. 2. Nec imagines Crucifixi et aliorum sanctorum adorare. 3. Nulli sacerdoti confiteri nisi soli deo, &c. Which opinions were so far from heresy, as the makers of the statute of 1 Eliz. had great cause to limit what heresy was.

And afterwards they thought not good to contain these opinions in any indictment, but indicted them in general words, one of which indictments as to Lollardy and heresy followeth.Jurati dicunt super eorum Sacramentum, quod A. R. E. D. Lollardi & falsi haeretici die Jovis post hebdornadam Paschae, Anno regni Regis H.6. post conquestum Nono, apud Abendon in Com’ Berks infra virg. falso et proditioriè ut communes proditores, et insurrectores conspiraverunt, imaginati fuerut, et ad invicero consoederaverunt cum quamplurimis proditoribus illis associatis, & felonibus de eorum comitiva, et eorum falsa malitia praecogitata, ut communes Infidiatores altaram viaram,ad fidem catholicam destruendam et ibidem falso et proditorie ut communes proditores, et felones dictidñi Regis secerunt, et scripserunt diversas falsas billas, & scripturas seditiosas, & nonnulla fidei & doctrinae Christianae contraria continentes, & eas populo domini regis publicandas & credendas falsò, damnabiliter in diversis locis, viz. in civitatibus London, Sarum, & villis de Coventria & Marleburgh, nequiter posuerunt, fixerunt, & projecerunt, ae indies sic scribere, affigere & projicere & ponere non cessant, nec formidant, in gravissimam majestatis, & coronae dignitatis Regis nostri offensam, & Christianae fidei ludibrium, & pacis dicti domini regis perturbationem & omnium Christi fidelium injuriam & contemptum, Which generall indictment, and all other of like form were utterly insufficient in law: For albeit the words of the statute be generall, yet the indictment must contain certainty, whereunto the party indicted may have an answer. Also where the parties are indicted, ut communes inidiatores viarum, that also is insufficient, as it appeareth by the statute of 4 H.4. ca.2.

| John Keyser was excommunicated by the greater excommunication before Thomas Archbishop of Canterbury, and Legate of the Apostolique See, at the suit of another, for a reasonable part of goods, and so remained eight months: The said Keyser openly affirmed that the said sentence was not to be feared; neither did he fear it. And albeit the Archbishop, or his Commissary hath excommunicated me, yet before God I am not excommunicated: and he said that he speak nothing but the truth, and it so appeared; for that he the last harvest standing so excommunicate, had as great plenty of wheat, and other grain, as any of his neighbours, saying to them in scorn (as was urged against him) that a man excommunicate should not have such plenty of wheat. The Archbishop denying these words to be within the said Act of 2 H.4. did by his warrant in writing comprehending the said cause, by pretext of the said Act commit the body of the said Keyser to the Gaol at Maidstone, for that (saith he) in respect of the publishing of the said words, dictum Johannem non immerito habemus de haeresi suspectum. By reason whereof the said John Keyser was imprisoned in Maidstone Gaol and in prison detained under the custody of the Keeper there, untill by his counsell he moved Sir John Markham then Chief Justice of England, and other the Judges of the Kings Bench, to have an Habeas corpus, and thereupon (as it ought) an Habeas corpus was granted: Upon which writ the Gaoler returned the said cause, and speciall matter, and withall, according to the writ, had his body there. The Court upon mature deliberation perusing the said statute, (and upon conference with Divines) resolved, that upon the said words Keyser was not to be suspect of Heresy within the said statute, as the Archbishop took it. And therefore the Court first bayled him, and after he was delivered: for that the Archbishop had no power by the said Act for those words to commit him to prison.

Hillary Warner being an Inhabitant within the parish of S. Dunstans in the West, held opinion, published there, & in divers other places, quòd non tenebatur solvere aliquas decimàs Curatori, sive Ecclesiae parochiali ubi inhabitabat. Whereupon Richard Bishop of London commanded Edward Vaughan and others to arrest the said Hillary Warner: by force whereof they did arrest him, and detained him in prison a day and a night, and then he escaped. Hillary Warner brought his Action of false imprisonment against Edward Vaughan and others: In bar whereof the Defendants pleaded the statute of 2 H.4. and that the Plaintif held and published the opinion aforesaid; which opinion was, Contra fidem Catholicam, seu Determinationem Sanctae Ecclisiae, and that the Defendants, as servants to the said Bishop, and by his commandment did arrest the Plaintiff, and justified the imprisonment; whereupon Hillary Warner the Plaintif demanded in law, and after long and mature delieration it was by Brian Chief Justice, and the whole Court of Common Pleas adjudged, that the said opinion was not within the said statute of 2 H.4. for that it was an error, but no Heresy. Which I have the rather reported, for that the Reporter of this case did not only misreport the time of the bringing of the Action, but the statute, which was the ground of the matter in law, and leaveth out the judgement. The record it self is worthy the reading.

Upon that which hath been said touching the said statute of 2 H.4. Four conclusions doe necessary follow. First, that seeing, that many opinions were by the Bishops taken to be heresy, which in troth had no shadow of heresy, and so mistaken, and unjustly extended by the Bishops further then the Purvien, and true intention thereof, as by that which hath been, and might be said, appeared, the makers of the said Act of Parliament of 1 El. had great reason to limit (as hath been said) what opinions should be judged Heresy by authority of that commission grounded upon that Act. Secondly, that if any Ecclesiasticall Judge or Commissioner shall by pretext of any statute, or other cause, commit any man to prison, upon motion in Court on the behalf of the party imprisoned, the Judges of the Common Law ought to grant an Habeas corpus for him: upon the reforn of which writ, if it shall appear to the Judges, that the imprisonment is well | warranted by law, the party shall be remanded: and if the imprisonment be without warrant of law, then the party ought to be delivered. Thirdly, if the imprisonment be not warranted by law, the party imprisoned may have his action of false imprisonment, and recover his damages. Fourthly, that when an Act of Parliament is made concerning matter meerly sprituall, as Heresie, &c. yet that Act being part of the lawes of the Realm, the same shall be construed and interpreted by the Judges of the Common Lawes, who usually confer with those that are learned in that profession. But let us now descend to the third point.

3. To the third. ^a It appeareth by Bracton, Britton, Fleta, Stanford, and all our Books, that he that is duly convict of Heresie, shall be burnt to death.

4. To the fourth, ^b The Ecclesiasticall Judge at this day cannot commit the person that is convict of heresie to the Sheriffe, albeit he be present, to be burnt; but must have the Kings Writ De haeretico comburendo, according to the Common Law: for now all Acts of Parliament (as hath been said before) against Hereticks are repealed. And the reason wherefore Heresie is so extremely and fearfully punished, is, for that Gravius est aternam, quam temporalem laedere majestatem: and Haeresis est lepra animae.^c The party duly convicted of Heresie, may recall, and abjure his opinion, and thereby save his life, but a Relapse is fatall: For as in case of a disease of the body, after recovery, recidivation is extremely dangerous: So in case of Heresie (a disease of the soule) a relapse is irrecoverable. And as he that is a Leper of his body, is to be removed from the society of men, lest he should infect them, by the kings Writ De leproso amovendo: So he that hath lepram animae, that is, to be convicted of Heresie, shall be cut off, lest he should poyson others, by the Kings Writ De haeretico comburendo. But if the Heretick will not after comviction abjure, he may by force of the said Writ ^dDe haeretico comburendo be burnt without abjuration.

5. As to the fifth. ^e The statute made in the 2 year of H.5. cap.7. whereby the forfeiture of lands in fee-simple, and goods, and chattels was given in case of Heresie, standeth repealed by the Act of 1 Eliz. cap.1. The Books that speak of this forfeiture are grounded upon the said Act of 2. H.5. which then stood in force, saving 5 R.2. which was before that statute: for there, though Belknap swore, Per ma foy si home soit miscreant, sa terre est forfeitable, & le seigniour avera ceo p. voy descheate; yet was his opinion never holden for law: for neither lands, nor goods ^f before the making of that statute of 2 H.5. were forfeited by the conviction of heresie, because the proceeding therein is meerely spitituall, pro salute animae, and in a Court that is no Court of Record. And therefore the conviction of heresie worketh no forfeiture of any thing that is temporall, viz. of lands or goods. ^g For what cause the said hereticks were called Lollards you may reade in Caudries case, and Linwood thereto agreeth. * And it is to be observed, that in proceeding against Lollards, the Prelates, besides their opinions, did charge them with hainous offences: As conspirary with multitudes of people, insurrection, rebellion, or some other treason, or great crimes.

We have spoken thus much of this argument, because there be divers wandring opinions concerning some of these points, that are not agreeable to the law, as it standeth at this day. See the fourth part of the Institutes, cap. Chancery, in the Articles against Cardinall Woolsey. Artic. 44.

| Cap. VI.
Of Felony by Conjuration, Witchcraft, Sorcery, or Inchantment.

The first Act of Parliament that made any of these offences felony, was the statute ^a of 33 H.8. which was repealed by the statutes of 1 E.6. cap.12. and 1 Mariae. But ^b before the Conquest it was severely punished: sometimes by death, sometimes by exile, &c. ^c And after, it was made felony by the statute of 5 Eliz. and againe by 1 Jac. which repealeth 5 Eliz.

A Conjurer is he that by the holy and powerfull names of Almighty God invokes and conjures the Devill to consult with him, or to do some act.

A Witch is a person that hath conference with the Devill, to consult with him or to do some act.

An Inchanter, Incantator, is he, or she qui carminibus, aut cantiunculis Daemonem adjurat. They were of ancient time called Carmina, because in those dayes their Charmes were in verse,

• Carminibus Circe socios mutavit Ulyssis,
• By Charmes in Rhyme (O cruell Fates!)
• Circe transform’d Ulysses mates.

And again.

• Carmina de Coelo possunt detrudere Lunam,
• By Rhymes they can pul down full soon,
• From lofty sky the wandring Moon.

*A sorcerer, sortilegus, quia utitur fortibus in cantationibus daemonis. Thou shalt not suffer a witch to live.Non est augurium in Jacob, nec divinatio in Israel. And the Holy Ghost hath compared the great offence of rebellion to the sinne of witchcraft.

And here it justly may be demanded, what punishment was against these devilish and wicked offenders before these statutes, which were made of very late time.

And it appeareth by our ancient ^d books that these horrible and devilish offenders, which left the everliving God, and sacrificed to the devill, and thereby committed idolatry, in seeking advice and aide of him, were punished by death. * The Mirror saith, Que sorcery et devinal sont members de heresie. And there he describeth heresie. Heresie est un maeuvase et faux creance surdant de error en la droit foy Christien: and after saith, Le judgment de heresie est de arse in cendre. And herewith agreeth Britton: Sorcerers, sorceresses, &c. et miscreants soient arses. And Fleta: Christiani autem apostatae, fortilegi, et hujusmodi detractari debent, et comburi. And burning then was, and yet is the punishment for hereticks. So as the conusance of these offences, if they be branches of heresie, (as the law was then taken) belonged (as to this day heresie doth) to ecclesiasticall judges. In which case when they have given sentence, there lieth a writ de haeretico comburendo.

I have seen a report of a case in an ancient Register, that in October anno 20 H.6. Margery Gurdeman of Eye, in the county of Suffolk, wasforwitchcraft and consultation with the devill, after sentence and a relapse, burnt by the king’s writ de haeretico comburendo.^e And this agreeth with antiquity, for witches, &c. by the laws before the conquest were burnt to death.

A man was taken in Southwark with a head and a face of a dead man, and with a book of sorcery in his male, and was brought into the king’s bench before Sir John Knevett then chief justice: but seeing no indictmentwasagainst him, the clerks did swear him, that from thenceforth * he should not be a sorcerer, and was delivered out of prison, and the head of the dead man and the book of sorcery were burnt at Tuthill at the costs of the prisoner. So as the head and his book of sorcery had the same punishment, that the sorcerer should have had by the ancient law, if he had by his sorcery praied in aid of the devill.

The holy history hath a most remarkable place concerning the reprobation and death of king Saul.Mortuus est ergo Saul propter iniquitates suas, eò quòd praevaricatus sit mandatum Domini, et non custodierit illud,*sed insuper Pythonissam consuluerit, nec speraverit in Domino, propter quod interfecit eum, et transtulit regnum ejus ad David filium Isai. So Saul died for his transgression which he committed against the Lord, even against the word of the Lord which he kept not: And also for asking counsell of one that had a familiar spirit, to enquire of it, and enquired not of the Lord; therefore he flew him, and turned the kingdome unto David the sonne of Isai.

Therefore it had been a great defect in government, if so great an abomination had passed with impunity. And this is the cause, that we have proved how and in what manner conjuration, witchcraft, &c. were punishedby death, &c. before the making of the said late statutes.

But now let us peruse the statute made in the first year of king James, which only standeth in force, and divideth itself into five severall branches.

¶ 1. If any person or persons shall use, practice, or exercise any Invocation or Conjuration of any evill and wicked Spirit.

Here the Devill by the holy, and powerfull names of Almighty God is invoked (as hath been said): and this invocation, or conjuration, of a wicked Spirit is felony without any other act or thing, save only the apparition of the spirit. See W.1. cap 1. in the Oath of the Champion, &c.

¶ 2. Or shall consult, covenant with, entertaine, employ, feed, or reward, any evill or wicked Spirit, to, or for any intent or purpose.

By this branch, if any consult, &c. (howsoever the wicked spirit appeareth and commeth) these actions (here mentioned) with or to that wicked spirit, to or for any intent or purpose, is felony without any other act or thing.

¶ 3. Or take up any dead man, woman, or childe, out of his, her, or their grave, or any other place where the dead body resteth, or the skin, bone, or any part of a dead person, to be imployed or used in any manner of Witchcraft, Sorcery, Charme, or Inchantment.

Albeit the offender that commits these barbarous, and inhumane dealingswith the bodies of the dead, do not actually imploy or use them in witchcraft, sorcery, charme, or inchantment: yet if he did them of purpose to use therein, it is felony, for the words of this branch be, [to be imployed or used in any matter of witchcraft, &c.]

¶ 4. Or shall use, practice, or exercise any Witchcraft, Inchantment, Charme or Sorcery, whereby any person shall be killed, destroyed, wasted, consumed, pined, or lamed, in his, or her bodie, or any part thereof.

By this branch, no other witchcraft, inchantment, charme, or sorcery (then is before specified) is felony, unlesse by means thereof some person be killed, destroied, wasted, consumed, pined, or lamed, &c. Which words have reference only to this last generall clause.

¶ 5. That then every such offender or offenders, their aiders, abetters, and counsellors, being of any the said offences duly and lawfully convicted, and attainted, shall suffer paines of death, as a felon, or felons, and shall lose the priviledge, and benefit of Clergie and sanctuary.

Albeit accessories before be here specially named, yet accessories after may be of this felony, as afterwards is said upon the statute of 3 H.7. for taking away of women, and upon the statute of 8 H.6 for stealing of Records.

The second part of this Act concerneth Felony in a second degree; and the branches thereof are also in number Five.

| ¶ 1. If any person, or persons take upon him or them by Witchcraft Inchantment, Charme, or Sorcery, to tell or declare, in what place any treasure of gold or silver should or might be found, or had in the earth, or other secret places.

The mischiefs before this part of this Act was: That divers Impostors, Men and Women would take upon them to tell, or do, these Five things here specified, in great deceipt of the people, and cheating and cousening them of their money, or other goods. Therefore was this part of the Act made, wherein these words [take upon him or them] are very remarkable. For if they take upon them, &c. though in truth they do it not, nor can do it, yet are they in danger of this first branch.

¶ 2. Or where goods, or other things lost, or stolen should be found or become.

Herein they become offenders, if they take upon them as aforesaid. And note, the taking upon them, to tell and declare, governe both these branches.

¶ 3. Or to the intent to provoke any person to unlawfull love.

Herein also they become offenders, by taking upon them, as is aforesaid. Here is the change of a new Verbe, viz. [to provoke] So as the sense is, If any person or persons shall take upon him or them by witchcraft, inchantment, charms or sorcery, to the intent, to provoke any person to unlawfull love.

¶ 4. Or whereby any cattell or goods of any person shall be destroyed.

The Letter of this branch is this: If any person shall take upon him by witchcraft, inchantment, charm, or sorcery, whereby any cattell or goods of any person should be destroyed. Although this be not sententious, yet the meaning thereof is to be taken, by supplying these words after sorcery [any thing] and not to turn [destroyed] into the Infinitive Mood, as the rest be, for then it satisfieth not the meaning of the makers: for a taking upon them to destroy cattell, &c. if they be not destroyed, is not within the danger of this Act, and therefore must be supplyed as is aforesaid.

¶ 5. Or to hurt or destroy any person in his or her body, although the same be not effected or done.

As in the case of cattell or goods, the destruction must be (as is aforesaid) effected and done: so in case of the person of man, woman, or childe, though the hurt be not effected, or done; yet is the taking upon him, &c. to hurt or destroy any person. &c. within this branch.

¶ Being therefore lawfully convicted.

Here [convicted] is taken in a large sense for attainted, and the rather, for that after in this Act the words be [Lawfully convicted and attainted, as isaforesaid.]

¶ Shall for the said offence, &c.

Here are expressed the punishments inflicted upon these Impostors, Mountebanks, and cheating Quacksalvers, viz. 1. To suffer imprisonment by the space of a whole year without bail or mainprize. 2. Once every quarter of the year these Mountebanks are to mount the Pillory, and to stand thereupon in some Market Towne six houres, and there to confesse his or her error, and offence.

¶ And if any person being once convicted of the same offences, &c.

Here is also [convicted] taken for attainted, for he shall not be drawn in question for the second offence, to make it felony, till judgement be given against him for the first; for the Indictment of felony recites the former attainder, and the second offence must be committed after the judgement. And so it is in the case of Forgery upon the statute of 5 Eliz. and in case of conveighing of Sheep alive out of this Realme, and some others.

¶ Saving to the wife of such person as shall offend in any thing contrary to this Act, her title of dower, and also to the heire and suc-|-cessor of every person, his or their titles of inheritance, succession, and other rights, as though no such attainder of the Ancestor or Predecessor had been made.

The judgement against a felon is, that he be hanged by the neck untill he be dead: and albeit nothing else is expressed in the judgement, yet by the Common law many things are therein implied; as the losse of his wives Dower, the losse of his inheritance, corruption of his blood, forfeiture of his goods, &c. Now a saving will serve for any thing, that is implied in the judgement, as in this case for the wives Dower, and also for the heirs inheritance, and for all the rest of the things implied in the judgement. But a saving will not serve against the expresse judgement in case of felony, for that should be repugnant; as saving the life of the offender should be void, because it is repugnant to the expresse judgement, viz. that he be hanged by the neck untill he be dead. Also where the saving is to the heir, it is well saved by the name of the heir, because notwithstanding the forfeiture implied in the judgement, his inheritance is saved, and by consequent the blood not corrupted, for if the blood were corrupted, he could not inherit as heir, but notwithstanding this saving the lands are forfeited during his life.

The statute at 5 Eliz. for preservation of the wives Dower, and the heirs inheritance, in case of forgery, is penned in this form. Provided alway, that such attainder of felony shall not in any wise extend to take away the Dower of the wife of any such person attaint: nor to the corruption of blood, or disherison of any heir or heirs of any such person attaint.

The words of the statute of 8 Eliz. be, Provided always that this Act shall not extend to corruption of blood, or be prejudiciall or hurtfull to any woman claiming Dower by or from any such offender, &c. Wherein it is to be observed, that by the avoidance of corruption of blood, the inheritance is impliedly saved. See the manner of the penning of the Act of 31 Eliz. concerning this matter and divers others.

And surely it is very convenient that when new felonies be made by Act of Parliament, that such savings or provisions be made both for the wives Dower, and the heirs inheritance, as were had and made in these presidents.

| Cap. LXII.
Of Indictments.

Concerning Indictments we have spoken somewhat in the First part of the Institutes. Sect. 194. 208. And you may read in my Reports many resolutions concerning Indictments, viz. Lib. 4. fo. 40, 41, 42. &c. lib. 5. fo. 120, 121, 122, 123. li.7. fo. 5. 6. 10. li.8. fo. 57. 36. 37. li.9. fo. 62, 63. 116. 118.

We will add one point adjudged in the case between Burgh and Holcroft before mentioned in the Chapter of Appeals, which was, that where it is provided by the statute de Artic. super Cartas cap.3. En case de mort del home (deins le verge) on office del Coroner appent as views, & enquests de ceo faire, soit maunde al Coroner del pais que emsemblement ove le Coroner del hostel Roy face loffice que appent, &c. And in that case one man was Coroner both of the Kings house, and of the County, & the Indictment of manslaughter was taken before him as Coroner both of the Kings house, and of the County. And it was adjudged that the Indictment was good, because the mischief expressed in the statute was remedied, as well when both offices was in one person, as when they were in divers: and therefore in this case the rule did hold, Quando duo jura concurrunt in una persona, aequum est, ac si esset in diversis.

| Richard Weston Yeoman, late servant of Sir Gervase Elwys, Lieutenant of the Tower, and under the Lieutenant, Keeper of Sir Thomas Overbury then prisoner in the Tower, was indicted: For that he the said Richard the 9 day of May An. 11 Ja. Regis, in the Tower of London, gave to the said Sir Tho. Overbury poyson called Roseacre in broth, which he the said Sir Thomas received. Et ut idé Rich. Weston praesatum Tho. Overbury magis celeriter interficeret & murdraret, 1 Junii Anno 11 Ja. Regis supradict, gave to him another poyson called White Arsenick, &c. & that 10 Julii An. 11. suprad. gave to him a poyson called Mercury Sublimat’ in Tarts, ut praedict’ Tho. Overbury magis celeriter interficeret & murdraret: and that a person unknown in the presence of the said Richard Welson, and by his commandment and procurement, the 14 of Septemb. anno 11. supradict. gave to the said Sir Thomas a glyster mixt with poyson called Mercury sublimat, ut praedictum Thomam magis celeriter interficeret & murdraret. Et praedictus Thomas Overbury de seperalibus venenis praedictis et operationibus. inde, à praedictis separalibus temporibus, &c. graviter languebat usque ad 15 diem Septemb. Anno 11. supradicto, quo die dictus Thomas de praedictis seperalibus venenis obiit venenatus, &c. And albeit it did notappear of which of the said poysons he died, yet it was resolved by all the Judges of the Kings Bench, that the indictment was good; for the substance of the indictment was, whether he was poysoned or no. And upon the evidence it appeared, that Weston within the time aforesaid had given unto Sir Thomas Overbury divers other poysons, as namely the powder of Diamonds, Cantharides, Lapis Causticus, and powder of Spiders, and Aqua fortis in a glyster. And it was resolved by all the said Judges, that albeit these said poysons were not contained in the Indictment, yet the evidence of giving of them was sufficient to maintain the Indictment: for the substance of the Indictment was (as before is said) whether he were poysoned or no. But when the cause of the murder is laid in the Indictment to be by poyson, no evidence can be given of another cause, as by weapon, burning, drowning, or other cause, because they be distinct & several causes: but if the murder be laid by one kind of weapon, as by a Sword; either Dagger, Styletto, or other like weapon is sufficient evidence, because they be al under one Classis or cause. And afterwards, Ann Turner, Sir Gervase Helwys, and Richard Franklyn a Physitian, (purveyor of the poysons) were indicted as accessories before the fact done: And it was resolved by all the said Judges, that either the proofs of the poysons contained in the Indictment, or of any other poyson were sufficient to prove them accessories: for the substance of the Indictment of them as accessories was, whether they did procure Weston to poyson Sir Thomas Overbury: and because that not only Anne Turner, and Richard Franklyn, but some of the degree of Nobility were indicted as accessories in another County, viz. in the County of Midd. divers notable points were resolved upon the statute of 2 E.6. First, if the Accessory be in the County of Midd. where the Kings Bench is, and the principall did the felony, &c. in another County, that the Court of the Kings Bench is within the words of that Act, viz. (and that the Justices of Gaol Delivery, or Oier and Terminer, or two of them, &c.) for the causes and reasons given in the Lord Zanchers case Lib.9. fo.117, 118, &c. Secondly, if the Indictment be taken in the Kings Bench, then the Justices shall not write in their own names, quia placita sunt coram rege. Thirdly, divers presidents were shewed where the Accessory was in the County of Midd. where the Kings Bench sat, and the principall was attainted in another County, that the Justices of the Kings Bench have removed the Record of the attainder of the principall before them by Certiorari, & so it was done in the Lord Zanchers case, ubi supra. The like president was shewed in a case where the principall was attainted in the County of Dorn. and the Accessory was in Midd. and the Kings Bench sitting there, the Justices of the same Court removed the attainder before them by Certiorari. Fourthly, it was resolved, that the Lord Steward of England, who is a Judge in case of High Treason, or felony committed by any of the Peers of the Realm, is within these words, Justices of Gaol-de-|-livery, or Oier and Terminer, because he is a Justice of Oier and Terminer, for his authority is by Commission, and the words of his Commission be after divers recitals, Et superinde, audiend, examinand, & respondere compellend, & sine debit’ terminand: so as he hath power to heare and determine. And where the words be [or any two of them] that is to be intended, where there be two or more Justices, And yet where there is but one, it extendeth to him. As the Statute of Merton cap. 3. power being given to the Sheriffe in case of Redisseisin, the words be, Assumptis recum Coronatoribus placitorum Coronae, &c. in the Plurall number. And yet where there is but one Coroner in the County the Statute extends thereunto, and the Sheriffe shall take that one. Also the words of the statute are further, That then the Justices of Gaole delivery or of Oier and Terminer, or other there authorized: within which words, [or other there authorized] the Lord Steward is included. Fifthly, if the Record of the attainder were by Writ of Certiorari removed out of London into the Kings Bench, then there arose another doubt upon the said Statute, if afterward any proceeding should be had against any Peer, for that the words, of the Statute be, The Justices, &c. shall write to the Custos Rotulorum or Keeper of the Record where such principall shall hereafter be attainted; and the attainder in this case was in London, and the Kings Bench was in Middlesex: so as if the Record should be removed into the Kings Bench in Middlesex, the Record should not be where the attainder was had; and consequently the Lord Steward could not write to the Kings Bench. And therefore to prevent all questions, it was resolved, That in this case of the Lord Steward, no Certiorari should be granted, but a speciall Writ should be directed according to the words of the said Act to the Commissioners of Oier and Terminer in London, to certifie whether the principall was convict or acquitted: and they made a particular Certificat accordingly, so as the Record of the attainder of the principall, did notwithstanding that Certificat, remain with the Commissioners of Oier and Terminer in London: so as if any further proceeding should be had, the Lord Steward might write to them, as after he did in the case of R. Earl of S. and F. his Wife.

And it is to be observed, that the ancient wall of London (a mentionwhereof doth yet remain) extendeth through the Tower of London; and all that which is on the West part of the Wall, is within the City of London, viz. in the Parish of All-Saints Barking, in the Ward of the Tower of London: and all that is on the East part of the Wall is in the County of Middlesex; and the Chamber of Sir Thomas Overbury was within the Tower on the West part of the said Wall, and therefore Weston was tried within the City of London.

And where it is often said in many ^aActs of Parliament, ^bRecords, and ^cBook cases, that the King cannot put any man to answer, but he must be apprised by Indictment, Presentment, or other matter of Record. True it is, in Pleas of the Crown or other common offences, Nusances, &c. principally concerning others, or the publick, there the King by law must be apprised by Indictment, Presentment, or other matter of Record; but the King may have an Action for such wrong as is done to himselfe, and whereof none other can have any Action but the King, without being apprised by Indictment, Presentment, or other matter of Record, as a ^dQuare impedit.^eQuare incumbravit, a Writ of ^fAttaint, ^gof Debt, ^hDetinue of Ward, ⁱEscheat, ^kScire fac. pur repealer patent, &c.

Deo, Patriae, Tibi.

Proaemium.

In the two former parts of the Institutes we have principally treated De communibus placitis, and of those two great Pronouns [Meum & Tuum.] In the Third we have handled Placita Coronae and Criminall causes. But because Rerum ordo confunditur,Regula.si unicuique jurisdictio non servetur, We in this Fourth and last part of the Institutes are to speak of the Jurisdiction of the Courts of Justice within this Realm.

Jurisdictio est authoritas judicandi sive jus dicendi int’ parte