is heard at large what defence he can make, and then the jury go together and consult. And after a while they come in with a verdict of guilty or not guilty, which verdict the judges do record accordingly. If any prisoner plead not guilty upon the indictment, and yet will not put himself to trial upon the jury (or stand mute), he shall be pressed. one. The judges, when many prisoners are in the gaol, do in the end before they go peruse every Those that were indicted by the grand jury, and found not guilty by the select jury, they judge to be quitted, and so deliver them out of the gaol. Those that are found guilty by both juries they judge to death, and command the sheriff to see execution done. Those that refuse trial by the country, or stand mute upon the indictment, they judge to be pressed to death: some whose offences are pilfering under twelvepence value they judge to be whipped. Those that confess their indictments, they judge to death, whipping, or otherwise, as their offence requireth. And those that are not indicted at all, but their bill of indictment returned with ignoramus by the grand jury, and all other in the gaol against whom no bills at all are preferred, they do acquit by proclamation out of the gaol. That one way or other they rid the gaol of all the prisoners in it. But because some prisoners have their books, and be burned in the hand and so delivered, it is necessary to show the reason thereof. This having their books is called their clergy, which in ancient time began thus. Book allowed scarcity of them, to be dis posed in reli. gious houses. For the scarcity of the clergy, in the to clergy for the realm of England, to be disposed in religious houses, or for priests, deacons, and clerks of parishes, there was a prerogative allowed to the clergy, that if any man that could read as a clerk were to be condemned to death, the bishop of the diocess might, if he would, claim him as a clerk, and he was to see him tried in the face of the court. Whether he could read or not, the book was prepared and brought by the bishop, and the judge was to turn to some place as he should think meet, and if the prisoner could read, then the bishop was to have him delivered over unto him to dispose of in some places of the clergy, as he should think meet. But if either the bishop would not demand him, or that the prisoner could not read, then was to be put to death. Concerning the allowing of the clergy to the prisoner. ir all offences And this clergy was allowable in the ancient times and law, for all offences Clergy allowed whatsoever they were, except treason except treason and robbing of churches, their goods and ornaments. But by many statutes by many statutes. made since, the clergy is taken away 2. In burglary, for murder, burglary, robbery, pursecutting, horse-stealing, and divers other and robbing of churches, and now taken away 1. In treason. 3 Robbery. 4. P'use-cutling. 5 Horse steal felonies particularized by the statutes to the judges; and lastly, by a statute in! h& made 18 Elizabeth, the judges them selves are appointed to allow elergy to such as can read, being not such offend. Da je ers from whom clergy is taken away by any statute, and to see them burned trim as the in the hand, and so discharge them destare be without delivering them to the bishop, out howbeit the bishop appointeth the de- b puty to attend the judges with a book to try whether they could read or not. thers is the The third commission that the judges of cir cuits have, is a commission directed to themselves only, and the clerk of assize to take assizes, by which they are called justices of assize, and the office of those justices is to do right upon writs called assizes, brought before them by such as are wrongfully thrust out of their lands. Of which number of writs there was far greater store brought before them in ancient times than now, for that men's seisins and possessions are sooner recovered by sealing leases upon the ground, and by bringing an ejectione firme, and trying their ude so, than by the long suits of assizes. 4 Ce The fourth commission is a commission to take Nisi Prius directed to none but to the judges themselves and their clerks of t assizes, by which they are called justices of Nisi Prius. These Nisi Prius happen in this sort, when a suit is be. gun for any matter in one of the three courts, the King's Bench, Common Pleas, or the Exchequer here above, and the parties in their pleadings do vary in a point of fact; as for example, if an ac tion of debt upon obligation, the defendant denies the obligation to be his debt, or in any action of trespass grown for taking away goods, the defendant denteth that he took them, or in an action of the case for slanderous words, the defendant denieth that he spake them, &c. Then the plaintiff is to maintain and prove that the obligation is the defendant's deed, that be either took the goods, or spake the words; upon which denial and affirmation the law saith, that issue is joined betwixt them, which issue of the fact is to be tried by a jury of twelve men of the county where it is supposed by the plaintiff to be done, and for that purpose the judges of the court do award a writ of venire facias in the king's name to the sheriff of that county, commanding him to cause four and twenty discreet freeholders of this county, at a certain day, to try this issue so joined, out of which four and twenty only twelve are chosen to serve. And that double number is returned, because some may make default, and some be challenged upon kindred, alliance, or partial dealing. These four and twenty the sheriff doth name and certify to the court, and withal that he hath warned them to come at the day according to their writ. But, because at his first summons their | Property in Lands is gotten and transferred by one faileth no punishment upon the four and twenty if they come not, they very seldom or never appear T upon the first writ, and upon their default there is another writ* returned to the sheriff, commanding him to distrain them by their lands to appear at a certain day appointed by the writ, which is the next term after, Nisi Prius justiciarii nostri ad assizas capiendas venerint, &c. of which words the writ is called a nisi prius, and the judges of the circuit of that county in that vacation and mean time b.fore the day of appearance appointed for the jury above, here by their commission of Nisi Prius have authority to take the appearance of the jury in the county before them, and there to hear the witnesses and proofs on both sides concerning the issue of fact, and to take the verdict of the jury, and against the day they should have appeared above, to return the verdict read in the court above, which return is called a postea. And upon this verdict clearing the matter in fart, one way or other, the judges above give judgment for the party for whom the verdict is found, and for such damages and costs as the jury do assess. to another, by these four manner of ways; 1. By Entry. 2. By Descent. 3. By Escheat. Of property of se 4. Most usually by Conveyance. 1. Property by entry is, where a man findeth a piece of land that no other possesseth or hath title unto, and he that so findeth it doth enter, this entry gaineth a property; this law seemeth to be derived from this text, terra dedit filiis hominum, which is to be understood, to those that will till and manure it, and so make it yield fruit; and that is he that entereth into it, where no man had it before. But this manner of gaining lands was in the first days, and is not now of use in England, for that by the conquest all the land of this nation was in the Conqueror's hands, and appropriated unto him, except re-or's ligious and church lands, and the lands in Kent, which by composition were left to the former owners, as the Conqueror found them, so that no man but the bishopricks, churches, and the men of Kent, can at this day make any greater title than from the conquest to any lands in England; and lands possessed without any such title are in the crown, and not in him that first entereth; as it is by land left by the sea, this land belongeth to the king, and not to All lands in and were and aro upon the con hard heid Religious the Conquer priated to bim quest of Eng. of him, except and church la 2. the lards of the By those trials called Nisi Prius, the juries and the parties are eased much of the charge they should be put to, by coming to London with their evidences and witnesses, and the courts of West-him that hath the lands next adjoining, which minster are eased of much trouble they should have if all the juries for trials should appear and try their causes in those courts; for those courts above have little leisure now; though the juries eone not up, yet in matters of great weight, or where the title is intricate or difficult, the judges above upon information to them, do retain those causes to be tried there, and the juries do at this day in such causes come to the bar at Westminster. The fifth commission that the judges in their circuits do sit by, is the commission of the peace in every county of their circuit. And all the justices of the peace, having no lawful impediment, are bound to be present at the assizes to attend the judges, as ocrasion shall call out; if any make default, the The of judges may set a fine upon him at their pleasure and discretions. Also the sheriff in every shire through the circuit is to attend in person, or by a sufficient deputy allowed by the judges, all that time they be within the county, and the judges may fine him if he fail, or for negligence or misbehaviour in his office before them; and the judges above may also fine the sheriff for not returning or not sufficient returning of writs before them. • Distringas. was the ancient sea banks. This is to be under- Occupancy go again to whomsoever first entereth and holdeth. And so all the life of B. so often as it shall happen. ther had died, or had not entered in the life of the Likewise if any man doth wrongfully enter into another man's possession, and put the right owner of the freehold and inheritance from it, he thereby getteth the freehold and inheritance by disseisin, and may hold it against all men, but him that hath right, and his heirs, and is called a disseisor. Or if any one die seised of lands, and before his heir doth enter, one that hath no right doth enter into the lands, and holdeth them from the right heir, he is called an abator, and is lawful owner against all men but the right heir. Those rules of descent mentioned before are to And if such person abator, or disseisor (so as be understood of fee simples, and not of entailed the disseisor hath quiet possession five years next lands, and those rules are restrained by some after the disseisin) do continue their possession, particular customs of some particular cut of and die seised, and the land descend to his heir, places; as, namely, the custom of in paces they have gained the right to the possession of Kent, that every male of equal degree of childthe land against him that hath right till he recover hood, brotherhood, or kindred, shall inherit it by fit action real at the common law. And if equally, as daughters shall, being parceners; and it be not sued for at the common law within three-in many borough towns of England, and the cusscore years after the disseisin, or abatement com- tom alloweth the youngest son to inherit, and so mitted, the right owner hath lost his right by that the youngest daughter. The custom of Kent 18 negligence. And if a man hath divers children, called gavelkind. The custom of boroughs, burgh... and the elder, being a bastard, doth enter into the | English. land and enjoyeth it quietly during his life, and dieth thereof so seised, his heirs shall hold the land against all the lawful children and their issues. Property of scent. Property of lands by descent is, lands by de- where a man hath lands of inheritance, and dieth, not disposing of them, but leaving it to go (as the law casteth it) upon the heir. This is called a descent of law, and upon whom the descent is to light, is the question. For which purpose the law of inheritance preferreth the first child before all others, and amongst children the male before the female, and amongst males the first born. If there be no children, then the brother; if no brothers, then sisters; if neither brothers nor sisters, then uncles; and for lack of uncles, aunts; if none of them, then cousins in the nearest degree of consanguinity, with these three rules of diversities. 1. That the eldest male shall solely inherit; but if it come to females, then they, being all in an equal degree of nearness, shall inherit altogether, and are called parceners, and all they make but one heir to the ancestor. 2. That no brother nor sister of the half-blood ter of the half shall inherit to his brother or sister, but And there is another note to be observed in feesimple inheritance, and that is, that every heir having fee-simple land or inheritance, be it by common law or by custom of either gavelkind or burgh English, is chargeable so far forth as the value thereof extendeth with the binding acts of the ancestors from whom the inheritance descendeth; and these acts are collateral encumbrances, and the reason of this charge is, qui sentit commodum, sentire debet et incommodum sive onus. As for example, if a man bind himself Every bit ha and his heirs in an obligation, or do covenant by writing for him and his heirs, or do grant an annuity for him and his heirs, or do make a warranty of land, binding him and his heirs to warranty, in all these cases the law chargeth the heir, after the death of the ancestor, with this obligation, cove nant, annuity, and warranty, yet with these three cautions: first, that the party must by special name bind himself and his heirs, or covenant, grant, and warrant for himself and his heirs, otherwise the heir is not to be touched. Secondly, that some action must be brought pr, 136 against the heir whilst the land or other Flowd. inheritance resteth in him unaliened away: for if brother or sister, as a child to his parents, as for ex- the ancestor die, and the heir, before an action ample: If a man have two wives, and be brought against him upon those bonds, cove, by either wife a son, the eldest son nants or warranties, do alien away the land, then overliving his father is to be preferred to the in- the heir is clean discharged of the burden, except heritance of the father, being fee-simple; but if the land was by fraud conveyed away of purpose he entereth and dieth without a child, the brother to prevent the suit intended against him. Thirdshall not be his heir, because he is of the half-ly, that no heir is further to be charged Dyr, ta blood to him, but the uncle of the eldest brother than the value of the land descended Fiel or sister of the whole blood; yet if the eldest bro- unto him from the same ancestor that made the Of descent, three rules Brother or blood shall not inherit to his but caly as a child to his pa rents. instrument of charge, and that land also not to be Day & Pepp's sold outright for the debt, but to be kept in extent, and at a yearly value, until the debt or damage be run out. Neverthe less if an heir that is sued upon such a debt of his ancestor do not deal clearly with the court when he is sued, that is, if he come not in immediately, and by way of confession set down the true quantity of his inheritance descended, and so submit himself therefore, as the law requireth, then that heir that otherwise demeaneth himself shall be charged of his own lands or goods, and of his money, for this deed of his ancestor. As for example; if a man bind himself and his heirs in an obligation of one hundred pounds, and dieth, leaving but ten acres of land to his heir, if his heir be sued upon the bond, and cometh in, and denieth that he hath any lands by descent, and it is found against him by the verdict that he hath ten acres, this heir shall now be charged by his false plea of his own lands, goods, and body, to pay the hundred pounds, although the ten acres be not worth ten pounds. Property of Property of lands by escheat is where the owner died seised of the lands in possession without child or other heir, thereby the land, for lack of other heir, is said to escheat to the lord of whom it is holden. This lack of heir happeneth principally in two cases: first where the lands' owner Abacate of is a bastard. Secondly, where he is treaca, friony. attainted of felony or treason. For neither can a bastard have any heir, except it be his own child, nor a man attainted of treason, although it be his own child. ader of Upon attainder of treason the king is to have the land, although he be not the lord of whom it is held, because it is a royal escheat. But for felony it is not so, for there the king is not to have the escheat, except the land be holden of him: and yet where the land is not holden of him, the king is to have the land for a year and a day next ensuing the judgment of the attainder, with a liberty to commit all manner of waste all that year in houses, gardens, ponds, lands, and woods. 1 The was we of In these escheats two things are espeIs chest tw ecially to be observed; the one is the The tenure of the lands, because it directeth the person to whom the escheat beJongeth, viz. the lord of the manor of whom the land is holden. 2. The manner of such attainder which drawCo the eth with it the escheat. Concerning the tenures of lands, it is to be understood, that all lands are holden of the crown, either mediately or immediately, and that the escheat appertaineth to the immediate lord, and not to the mediate. The reason why all land is holden of the crown immediately, or by mesne lords, is this. The Conqueror by right of con quest, got all lands of the realm into his hands, and as he gave it, he still and service The Conqueror got, by right of conquest, all the land of the realm into his own hands, in demesne, taking from every man all estate, tenure, property, and liberty of the same, (except religious and church lands, and the land in Kent,) and still as he gave any of it out of his own hand, he reserved some retribution of rents or services, or both, to him and to his heirs, which reservation is that which is called the tenure of land. reserved rents night's ser first instituted. vice in capife tions in knight's In which reservation he had four in- The reserva. stitutions, exceeding politic and suitable to the state of a conqueror. service tenure. was four. 1. Marriage of and female. service. the wards, male 2 Horse for 3 Homage and 4 Primer The policy of in the reserva seisin. the Conqueror, tion of services constituted in four particular was to have the marriage of hus 1. Seeing his people to be part Normans, and part Saxons, the Normans he brought with him, the Saxons he found here, he bent himself to conjoin them by marriages in amity, and for that purpose ordains, that if those of his nobles, knights, and gentlemen to whom he gave great rewards of lands should die, leaving their heir within age, a male within twenty-one, and a female within fourteen years, and unmarried, then the king should have the bestowing of such heirs in marriage, in such a family,* and to such persons as he should think meet; which interest of marriage went still employed, and doth at this day in every tenure called knight's service. The second was to the end that his Reservation people should still be conserved in warlike exercises, and able for his defence. When therefore he gave any good portion of lands, that might make the party of abilities or strength, he withal reserved this service: that that party and his heirs having such lands, should keep a horse of service continually, and serve upon him himself when the king went to wars, or else, having impediment to excuse his own person, should find another to serve in his place; which service of horse and man is a part of that tenure called knight's service at this day. But if the tenant himself be an infant, the king is to hold this land himself until he come to full age, finding him meat, drink, apparel, and other necessaries, and finding a horse and a man with the overplus to serve in the wars as the tenant himself should do if he were at full age. But if this inheritance descend upon a woman, that cannot serve by her sex, then the king is not to have the lands, she being of fourteen years of age, because she is then able to have a husband that may do the service in person. The third institution, that upon every 3. Institution of gift of land the king reserved a vow the Co was, has Interest of marriage goeth employed in every tenure Ly knight's service. tenants by Vow unto loy. called homage, and make unto faith, which was called feal. ty. and an oath to bind the party to his knight's service faith and loyalty:* that vow was alty, which he called homage, the oath fealty. Hotam oath of his mage is to be done kneeling, holding his hands between the knees of the lord, saying, in the French tongue, I become your man of life and limb, and of earthly honour. Fealty is to take an oath, upon a book, that he will be a faithful tenant to the king, and do his service, and pay his rents according to his tenure. 1. Homage. 2. Fealty. 4. Institution nizon the to be paid by the death of his is one year's profit of the lands called primer scisin. The fourth institution was, that for Was for recog- recognizont of the king's bounty by king's bounty, every heir succeeding his ancestor in every heir upon those knight's service lands, the king ancestor, which should have primer seisin of the lands, which is one year's profit of the lands, and until this be paid the king is to have possession of the land, and then to restore it to the heir; which continueth at this day in use, and is the very cause of suing livery, and that as well where the heir hath been in ward as otherwise. Knight's ser a tenure de persona Regis. Tenants by were to pay re age of every one year's value held, ultra Repriss. Grand ser Petty serjeanty. These beforementioned be the rights of the tenure called knight's service in capite, which is as much to say, as tenure de persona regis, and capite being the grand serjeanty chiefest part of the person, it is called lief at the full a tenure in capite, or in chief. And it heir, which was is also to be noted, that as this tenure odland in capite by knight's service generally was a great safety to the crown, so also jeanty. the conqueror instituted other tenures in capite necessary to his estate; as, namely, he gave divers lands to be holden of him by some special service about his person, or by bearing some special office in his house, or in the field, which have knight's service and more in them, and these he called tenures by grand serjeanty. Also he provided, upon the first gift of lands, to have revenues by continual service of ploughing his land, repairing his houses, parks, pales, castles, and the like. And sometimes to a yearly provision of gloves, spurs, hawks, horses, hounds, and the like; which kind of reservations are called also tenures in chief, or in capite of the king, but they are not by knight's service, because they required no personal service, but such things as the tenants may hire another to do, or provide for his money. And this tenure is called a tenure Aid money to make the king's eldest son a knight, or to carry his eldest daughter, is likewise due to his majesty from every one of his tenants in knight's service, that hold by a whole fee, twenty shillings, and from every tenant in soccage if his land be worth twenty pounds per annum, twenty shillings, vide N. 3. fol. 82. 1 Escuage was likewise due unto the king from his tenant by knight's service; when his majesty made a voyage royal to war against another nation, those of his tenants that did not attend him there for forty days, with horse and furniture fit for service, were to be assessed in a certain sum by act of parliament, to be paid unto his majesty; which assessment is cailed escuage. pate by soccage in capite, the word socagium Thendra signifying the plough; howbeit, in this latter time, the service of ploughing the red land is turned into money rent, and so of harvest works, for that the kings do not keep their demesne in their own hands as they were wont to do; yet what lands were de antique dominico coronæ, it well appeareth in the records of the Exchequer, called the Book of Doomsday. And the tenants by ancient demesne have many immunities and privileges at this day, that in ancient times were granted unto those tenants by the crown, the particulars whereof are too long to set down. These tenures in capite, as well that by soccage as the others by knight's service, have this property, that the tenants cannot, alien their lands without licence of the king; if he do, the king is to have a fine for the contempt, and may seize the land, and retain it until the fine be paid. And the reason is, because the king would have a liberty in the choice of his tenant, so er of sma that no man should presume to enter into those lands, and hold them (for which the king was to have those special services done him) without the king's leave. This license and fine, as it is now di- med gested, is easy and of course. A ferme of There is an office called the office of alienation, where any man may have a license at a reasonable rate, that is, at the third part of one year's value of the land moderately rated. A tenant in cap. by knight's service or grand serjeanty, was restrained by ancient statute, that he should not give nor alien away more of his lands, than that with the rest he might be able to do the service due to the king; and this is now out of use. And to this tenure by knight's ser- Elly vice in chief was incident, that the king should have a certain sum of money, called aid, due to be rateably levied amongst all those tenants proportion- da ably to his lands, to make his eldest son a knignt, or to marry his eldest daughter. And it is to be noted, that all those that hold lands by the tenure of soccage in capite (although not by knight's service) cannot alien without t license; and they are to sue livery, and pay primer seisin, but not to be in ward for body or land. 4 |