meddled not in.

county courts trial of grand offences of treasons and felonies. All the counties of the realm were divided into six circuits: and two learned men, well read in the laws of the realm, were assigned by the king's commission to every circuit, and to ride twice a year through those shires allotted to that circuit, making proclamation beforehand, a convenient. time, in every county, of the time of their coming, and place of their sitting, to the end the people might attend them in every county of that court.

They were to stay three or four days in every county, and in that time all the causes of that county were brought before them by the parties grieved, and all the prisoners of every gaol in the said shire, and whatsoever controversies arising concerning life, lands, or goods.

The authority The authority of these judges in of judges in eyre is in part translated by act of pareyre, translated to justices liament to justices of assize, which be of assize. now the judges of circuits, and they to use the same course that justices in eyre did, to proclaim their coming every half year, and the place of their sitting.

Justices of as

size ins sened by the court of common pleas, erected in H. III.'s time.

The business of the justices in eyre, and of the justices of assize at this day, is much lessened, for that in H. III.'s time there was erected the court of common pleas at Westminster, in which court have been ever since, and yet are begun and handled the great suits of lands, debts, benefices, and contracts, fines for assurance of lands, and recoveries, which were wont to be either in the king's bench, or else before the justices in eyre. But the statute of Mag. Chart. cap. 11, is negative against it, namely, "Communia placita non sequantur curiam nostram, sed teneantur in aliquo loco certo;" which locus certus must be the common-pleas; yet the judges of circuits have now five commissions by which they sit.

Justices of as

size sit by five commissions.

This commission giveth them power to deal with treasons, murders, and all manner of felonies and misdemeanors, whatsoever; and this is the largest commission that they have.

Gaol-delivery The second is a commission of gaoldirected only delivery, that is only to the judges to the judges erk of themselves, and the clerk of the assize associate: and by this commission they every prisoner in the gaol, for what there, and to proceed with him of the realm, and the quality cannot by this commission ay man, but those that are e course now in use of on of gaol-delivery, is but is committed by fore he committed him

:

took his examination, and bound his accusers and witnesses to appear and prosecute at the gaol-delivery. This justice doth certify these examinations and bonds, and thereupon the accuser is called solemnly into the court, and when he appeareth, he is willed to prepare a bill of indictment against the prisoner, and go with it to the grand jury, and give evidence upon their oaths, he and the witnesses; which he doth: and then the grand jury write thereupon either "billa vera," and then the prisoner standeth indicted or else "ignoramus," and then he is not touched. The grand jury deliver these bills to the judges in their court, and so many as they find indorsed "billa vera," they send for those prisoners; then is every man's indict- The manner of ment put and read to him, and they ask the proceedings of the him, whether he be guilty or not: if he justices of cirsaith, Guilty, his confession is recorded; if he say, Not guilty, then he is asked how he will be tried; he answereth, By the country. Then the sheriff is commanded to return the of the judges names of twelve freeholders to the court, for the gaoldelivery. which freeholders be sworn to make true delivery between the king and the prisoner ; and then the indictment is again read, and the witnesses sworn to speak their knowledge concerning the fact, and the prisoner 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.

cuits.

The judges, when many prisoners are in the gaol, do in the end before they go peruse every one. 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 twelve pence 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 others 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 are 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.

ed, clergy, &c.

For the scarcity of the clergy in the realm of England, to be disposed in Books allowreligious 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 he to be put to death.

Clergy allowed anciently in all offences,

except treason

churches;

now taken away, 1. In murder. 2. In burglary.

3. Robbery.

4. Purse-cut

And this clergy was allowable, in the ancient times and law, for all offences, whatsoever they were, except treason, and robbing of and the robbing of churches of their goods and ornaments. But by many | statutes made since, the clergy is taken away for murder, burglary, robbery, purse-cutting, horse-stealing, and divers ting. 5. Horse- other felonies particularized by the stealing, and statutes to the judges; and lastly, by in divers other offences. By a statute made 18 Elizabeth, the judges the stat. of themselves are appointed to allow clergy to such as can read, being not such offenders from whom clergy is taken away by any statute, and to see them charge the pri- burned in the hand, and so discharge them, without delivering them to the bishop; howbeit, the bishop appointeth the deputy to attend the judges with at book to try whether they can read or not.

18 E. judges are to allow clergy, and to see them burned in the hand, and to dis

soners without delivering them to the bishop.

The third commission that the judges of circuits 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 title so, than by the long suits of assizes.

4. Commission to take Nisi prius, directed to two judges, and the clerk of the assize. Nisi Prius.

The fourth commission is a commission to take Nisi prius, directed to none but to the judges themselves, and their clerks of assizes, by which they are called justices of Nisi prius. These Nisi prius happen in this sort; when a suit is begun 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 in an action 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 denieth that he took them; or in 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 he 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 his 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.

Distringas. The manner of justices of of proceeding circuits. The judges hold in the taking of Nisi prius.

course the

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 the first summons there falleth no punishment upon the four and twenty if they come not, they very seldom or never appear 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 assisas capiendas venerint," etc. 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, before 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 the 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.

Postea.

And upon this verdict clearing the matter in fact, 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.

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 Westminster 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 come 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 cases, come to the bar at Westminster.

The fifth commission that the judges 5. Commisin 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 occasion shall fall out; if any make default, the judges may set a fine upon him at their pleasure and discretions. Also the sheriff in every shire through the circui is

Descent.

should inherit the land that the father had, although it were a child by the second wife, before any daughter by the first. The third rule about descents: The land purchased so by the party himself that dieth, is to be inherited; first, by the heirs of the father's side; then, if he have none of that part, by the heirs of the mother's side. But lands descended to him from his father or mother, are to go to that side only from which they came, and not to the other side.

Customs of certain places.

Those rules of descent mentioned before are to be understood of fee-simples, and not of entailed lands; and those rules are restrained by some particular customs of some particular places as namely, the customs of Kent, that every male of equal degree of childhood, brotherhood, or kindred, shall inherit equally, as daughters shall, being parceners; and in many borough towns of England, the custom alloweth the youngest son to inherit, and so the youngest daughter. The custom of Kent is called, Gavelkind. The custom of boroughs, Burgh-English.

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 BurghEnglish, 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,

Every heir

having land is bound by the binding acts of his ances

tors, if he be named.

Dyer, 114.

Plowd.

:

sentire debet et incommodum sive onus." As for example, if a man bind himself 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, covenant, 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 against the heir, whilst the land or other inheritance resteth in him unaliened away for if the ancestor die, and the heir, before an action be brought against him upon those bonds, covenants, or warranties, do alien away the land, then the heir is clean discharged of the burden; except the land was by fraud conveyed away of purpose to prevent the suit intended against him. Thirdly, that no heir is farther to be charged Plowd. than the value of the land descended unto him from the same ancestor that made the instrument of charge, and that land Day and also, not to be sold out-right for the Pepp's case. debt, but to be kept in extent, and at a yearly value, until the debt or damage be run out. Nevertheless, if an heir that is sued upon such a

Dyer, 149.

come not in immediately, and by way for his false of confession set down the true quan- plea. tity 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 be now charged by his false plea of his own lands, goods, and body, to pay the hundred pound, although the ten acres be not worth ten pound.

Property of lands by escheat. Two causes of es

III. 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 cheat. 1. Bastardy. 2. Atheir, is said to escheat to the lord of tainder of whom it is holden. This lack of heir treason, felony. happeneth principally in two cases: First, where the land's owner is a bastard. Secondly, where he is 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.

Upon attainder of treason the king is to have the land, although he be not the lord of whom it is held, because it

Attainder of

treason enti

tleth the king, though lands be not holden wise in attainder of felony, &c. for there the king shall num, diem et

of him: other

have but an

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.

vastum.

In escheats, I.

The tenure.

2. The mantainder.

ner of the at

In these escheats two things are especially to be observed; the one is, the tenure of the lands, because it directeth the person to whom the escheat belongeth, namely, the lord of the manor of whom the land is holden. 2. The manner of such attainder which draweth with it the escheat. Concerning the tenure 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 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

The Con

queror got all the realm into

the lands of

his hands, and reserved

rents and

services. Knight's ser

vice in capite tuted.

first insti

retribution of rents, or services, or both, to him and to his heirs; which reservation is that which is called the tenure of land.

The reservation in

knight's service.

the wards. 2. Horse for service. 3. Homage and Jealty. 4. Primer seisin.

The policy of the Conquer

or in the reservation of services.

In which reservation he had four institutions, exceeding politic and suitable to the state of a conqueror.

First, Seeing his people to be part 1. Marriage of 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 ordained, 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 implied, and doth at this day in every tenure called knight's service.

Reservation that his tenant should keep a horse of service, and serve upon him

the king went to war.

The second was, to the end that his 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 himself when 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.

3. Institution of the Conqueror was, that his tenants by knight's service vow,

1. Homage.

*The third institution was, that upon every gift of land the king reserved a vow and an oath to bind the party to his faith and loyalty that vow was called homage, the oath fealty. Homage is to be done kneeling, holding 2. Fealty. 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.

Aid money to make the king's eldest son a knight, or to marry 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 20s, and from every tenant in socage, if his land be worth twenty pound per annum, 20s.

Escuage was likewise due unto the king from his tenant

King's service

incapie vie tenure de perTenants by grand serjeanty were to pay relief at the

sona regis.

full age of every heir,

year's value

which was one of the lands so held ultra repriss. Grand serieanty. Petty serjeanty.

These before mentioned be the rights of the tenure, called knight's service in capite, which is as much to say, as tenure de persona regis; and caput being the chiefest part of the person, it is called a tenure in capite, or in chief. And it is also to be noted, that as this tenure in capite by knight's service generally was a great safety to the crown, so also 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 be 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 tenant may hire another to do, or provide for his money. And this tenure is called a tenure by socage in capite, the word soca signifying the plough; howbeit in this latter time, the service of ploughing the land, and of harvest works, is turned into money-rent, for that the kings do not keep their demesne in their own hands, as they were wont to do; yet what lands were de antiquo dominio coronæ, it well appeareth in the records of the exchequer called the book of Doomsday. And the tenants in 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.

The institu

tion of socage in capite, and turned into

that it is now

money-rent.

These tenures in capite, as well that by socage as the others by knight's service, have this property; that the tenants cannot alien their lands without licence of the king; if they 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, 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 parlia ment, to be paid unto his Majesty; which assessment is called escuage.