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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.
And this clergy was allowable in the ancient times and law, for all offences except treason, and robbing 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 other felonies particularized by the statutes to the judges; and lastly, by a statute made 18 Eliz., the judges themselves are appointed to allow the clergy to such as can read, being no offenders from whom clergy is taken away by any statute, and to see them 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 a book to try whether they can read or not.
The third commission that judges of circuits have, is a commission, directed to themselves only [and the clerk of assize]1 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 the number was much greater in ancient times than now; the rather for that men's seisins and possessions are sooner recovered by sealing leases upon the ground and bringing an ejectione firmæ, than by the long suit of assize.
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
1 Omitted in Sloane MS.
this sort; when a suit is begun for any matter in one of the three courts of King's Bench, Common Pleas, or Exchequer, here above, and the parties in their pleadings do vary upon a point of fact; as for example, if in an action of debt upon obligation the defendant denies the obligation to be his deed; or in any action of trespass grown for taking away goods the defendant denieth 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, or that he took the plaintiff's goods, or spake those slanderous words upon which denial and affirmation the law saith that issue is joined between 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 in the King's name a writ to the sheriff of that county called a venire facias, commanding him to cause to come before them four and twenty 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 spared upon challenge of 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 appointed according to the writ. But because at this first summons there falleth no punishment upon these four and twenty if they come not, they seldom or never appear upon the writ; and upon their default there is another writ 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 in comitatu venerint, &c. of which words the writ is called a Nisi Prius. And the judges of the circuit which in truth do ride the circuit in that county in that vacation and mean time, before the day of appearance appointed for the jury above, have, by their commission of Nisi Prius, 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 ready in the court, which return is called a postea. And upon this verdict, clearing the fact one way or other, the judges above give judgment for that party for whom the verdict is found, and for such damages and costs as the jury do assess.
By the trials called Nisi Prius the juries and parties are eased of much charge which they should be put to by coming to London with their evidences and witnesses, and the courts at Westminster are eased of great trouble that they should have, if all juries for trials should appear and try the causes in those courts: for the courts above have little ease or leisure now, although 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 here and the juries do at this day in such cases come to the bar at Westminster.
The fifth commission that the justices in the circuits do sit by is the commission of the peace in every county of their circuit.
And all 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 and if any make default, the judges may set a fine upon them at their pleasure and discretions. Also the sheriff in every shire through the circuit is to attend in person, or by sufficient deputy allowed by the judges, all the time that they be within the county; and the judges may fine him if he fail; and so they may fine him 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.
Property in Lands is gotten and transferred: 1, By entry; 2, by descent; 3, by escheat; 4, [and most usually] by conveyance.
I. Property by entry is where a man findeth a piece of land that no other possesseth nor hath title unto, and he that so findeth it doth enter upon it; this entry gaineth the property. This law seemeth to be derived from the text Terram dedit filiis hominum, which is to be understood, to those that will till and manure, 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 in use in England; for that by the conquest all lands in this nation were appropriated to the Conqueror, except religious and church-lands, and the lands of Kent, which by composition were left
1 Omitted in Sloane MS.
to the former owners, as the Conqueror found them; so that no man but the bishops, churches, and men of Kent can at this day make any higher title than from the conquest to any lands in England; and lands possessed without such title are in the crown, and not in him that first entereth. As it is with land left by the sea, that was part of the sea: this land belongeth to the crown, and not to him that hath the land next adjoining, which was the ancient sea-bank.
This is to be understood of the inheritance of lands; viz. that the inheritance cannot be gained by first entry. Yet an estate for another man's life may, by our laws, at this day, be gotten by first entry. As if a. man called A. having land conveyed unto him for the life of B., dieth without making any estate of it; there, whosoever first and next entereth into the land after the decease of A. getteth property in the land for the time of the continuance of that estate which was granted to A. viz. for the life of B. The reason whereof is, because no man can make title of this land for the first grantor hath let it out to A. for the life of B., which B. yet liveth, and therefore the land cannot revert to him till B. die; and to the heir of A. it cannot go, for it is not any estate of inheritance, but only an estate for another man's life, which is not descendible to the heir, except he be specially named in the grant: viz. to him and his heirs as for the executors of A. they cannot have it; for it is not an estate testamentary, that it should go to executors as goods and chattels. So as in truth no man can entitle himself unto the lands; and therefore the law preferreth him that first entereth, and he is called occupans, and shall hold it during the life of B. but must pay the