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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 pro- | clamation 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

to clergy for the

scarcity of

them, to be dis

posed in reli. gious houses.

For the scarcity of the clergy, in 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.

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 churches, and and ornaments. But by many statutes

r all offences

and robbing of

now taken away

1. In treason.

by many statutes. made since, the clergy is taken away 2. In burglary. for murder, burglary, robbery, pursecutting, horse-stealing, and divers other

3. Robbery. 4. Puse-cutting.

Horse steal- felonies particularized by the statutes

vers other oflarized in seve.

fences particu

ral statutes. By Eliz. the judges allow clergy,

the stat. of 18

are appointed to

and to see them

to the judges; and lastly, by a statute ing, and in di made 18 Elizabeth, the judges 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 burned burned in the in the hand, and so discharge them discharge the without delivering them to the bishop, out delivering howbeit the bishop appointeth the de- bishop. puty to attend the judges with a book to try whether they could read or not.

hand, and to

prisoners with

them to the

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

is

to take Nisi two judges and the clerk of the Nisi Prius.

Prius, and this is directed to

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 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 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 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 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 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

to another, by these four manner of ways; 1. By Entry.

writ. But, because at his first summons their | Property in Lands is gotten and transferred by one falleth no punishment upon the four and twenty if they come not, they very seldom or never appear The manner of upon the first writ, and upon their default there is another writ* returned to the sheriff, commanding him to distrain

proceeding of

justices of cir cuits in their circuits.

judges hold in

the execution

mission concerning the taking of nisi prius.

The course the them by their lands to appear at a certheir circuit in tain day appointed by the writ, which of their com- 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 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 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.

5. Commission

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 causes come to the bar at Westminster. The fifth commission that the judges is a commission 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 occasion shall call out; if any make default, the The justices of judges may set a fine upon him at their the sheriff are to 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.

of the peace.

the peace and

attend the judges in their county.

* Distringas.

2. By Descent.

3. By Escheat.

4. Most usually by Conveyance.

Of property of

gained by entry.

All lands in

England were

the Conquerpriated to him quest of Engof him, except

upon the conland, and held 1. Religious lands. 2. The men of Kent. sea belongeth to

and church

lands of the

Land left by the

the king.

1. Property by entry is, where a man findeth a piece of land that no other lands to be 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 and approligious 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 him that hath the lands next adjoining, which was the ancient sea banks. This is to be understood of the inheritance of lands; viz. that the inheritance cannot be gained by the first entry. But an estate for another man's life by out-laws may, at this day, be gotten by entry. As a man called A. having land conveyed unto him for the life of B. dieth without making any estate of it there, whosoever first entereth into the land after the decease of A. getteth the property in the land for time of the continuance of the estate which was granted to A. for the life of B. which B. yet liveth and therefore the said land cannot revert till B. die. And to the heir of A. it cannot go, for that it is not any state of inheritance, but only an estate for another man's life; which is not descendable 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 the executors as goods and chattels should, so as in truth no man can entitle himself unto those 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 rent, perform the conditions, and do no waste. And he may by deed assign it to whom he please in his life time. But if he die before he assign it over, then it shall Y

Occupancy

go again to whomsoever first entereth and holdeth. | ther had died, or had not entered in the life of the And so all the life of B. so often as it shall happen.

father, either by such entry or conveyance, then
the youngest brother 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. That land pur-
chased 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 Descent.
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.

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. And if such person abator, or disseisor (so as the disseisor hath quiet possession five years next after the disseisin) do continue their possession, and die seised, and the land descend to his heir, they have gained the right to the possession of the land against him that hath right till he recover it by fit action real at the common law. And if 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 committed, the right owner hath lost his right by that negligence. And if a man hath divers children, and the elder, being a bastard, doth enter into the 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.

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 Customs of cerplaces; as, namely, the custom of tain places. Kent, that every male of equal degree of childhood, brotherhood, or kindred, shall inherit equally, as daughters shall, being parceners; and

tom alloweth the youngest son to inherit, and so the youngest daughter. The custom of Kent is called gavelkind. The custom of boroughs, burgh English.

Every heir havbound by the

his ancestors

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 Property of lands by descent is, burgh English, is chargeable so far forth as the where a man hath lands of inherit- | value thereof extendeth with the binding acts of ance, and dieth, not disposing of them, the ancestors from whom the inheritance debut leaving it to go (as the law casteth it) upon scendeth; and these acts are collateral encumthe heir. This is called a descent of law, and | brances, and the reason of this charge is, qui sentit upon whom the descent is to light, is the ques- | commodum, sentire debet et incommodum sive onus. tion. For which purpose the law of inheritance | As for example, if a man bind himself preferreth the first child before all others, and and his heirs in an obligation, or do ing land is amongst children the male before the female, and covenant by writing for him and his binding acts of amongst males the first born. If there be no heirs, or do grant an annuity for him if he be named. children, then the brother; if no brothers, then and his heirs, or do make a warranty of land, sisters; if neither brothers nor sisters, then uncles; binding him and his heirs to warranty, in all and for lack of uncles, aunts; if none of them, these cases the law chargeth the heir, after the then cousins in the nearest degree of consangui- death of the ancestor, with this obligation, covenity, with these three rules of diversi- nant, annuity, and warranty, yet with these three three rules. ties. 1. That the eldest male shall cautions: first, that the party must by special solely inherit; but if it come to females, then they, name bind himself and his heirs, or covenant, being all in an equal degree of nearness, shall in- grant, and warrant for himself and his heirs, herit altogether, and are called parceners, and all otherwise the heir is not to be touched. Secondthey make but one heir to the ancestor. 2. That ly, that some action must be brought Dyer, 114. Brother or sis no brother nor sister of the half-blood against the heir whilst the land or other ter of the half shall inherit to his brother or sister, but inheritance resteth in him unaliened away: for if 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, coveby 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 Dyer, 149. blood to him, but the uncle of the eldest brother than the value of the land descended Plowd. or sister of the whole blood; yet if the eldest bro- unto him from the same ancestor that made the

Of descent,

blood shall not inherit to his brother or sister, but only as a child to his parents.

Plowd.

Day & Pepp's

case.

instrument of charge, and that land also not to be sold outright for the 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 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.

Heir charged for his false plea.

Property of lands by escheat.

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 2. Attainder of is a bastard. Secondly, where he is treason, felony. 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.

Two causes of escheat.

1. Bastardy.

Attainder of treason entitleth the king, though lands be not holden of him, otherwise in attainder of felony, &c. for there the king shall have but anrum diem et vestum.

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.

In escheat two

things are to be The tenure. 2.

observed. 1.

The manner of the attainder. All lands are holden of the crown immediately or mediately by mesne lords, the reason.

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, viz. the lord of the manor of whom the land is holden. 2. The manner of such attainder which drawConcerning the eth with it the escheat. Concerning tenure of lands. 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 conthe lands of the have a reserved re Knight's sex

quest, got all

realm into his hands, and as ho

rents

and service vice in capite

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 first instituted. 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.

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

.

The reserva

tions in knight's

service tenure. was four.

1. Marriage of

and female.

2.

service.

fealty.

seisin.

the wards, male Horse for 3. Homage and 4. Primer The policy of the reservaconstituted in was to have the wards both

in

tion of services

four particulars marriage of his

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.

male and fe male.

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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 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.

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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

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tenants by

vow unto loy

alty which he him oath of his

called homage, and make unto

faith, which

was called feal.

ty.

1. Homage.

2. Fealty.

The institution of soccage in cat pite, and what it is now turned

into money rents.

and an oath to bind the party to his | by soccage in capite, the word socagium knight's service faith and loyalty:* that vow was signifying the plough; howbeit, in this called homage, the oath fealty. Ho- latter time, the service of ploughing the mage is to be done kneeling, holding | land is turned into money rent, and so his hands between the knees of the of harvest works, for that the kings do not keep lord, saying, in the French tongue, I their demesne in their own hands as they were become your man of life and limb, and wont to do; yet what lands were de antiquo domiof earthly honour. Fealty is to take an oath, upon nico coronæ, it well appeareth in the records of the a book, that he will be a faithful tenant to the Exchequer, called the Book of Doomsday. And king, and do his service, and pay his rents accord- the tenants by ancient demesne have many immuing to his tenure. nities 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.

4. Institution

nizon of the

to be paid by

the death of his

is one year's profit of the lands called

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, primer seisin. 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

age of every

one year's value

held, ultra Re-
priss.
Grand ser-

Petty serjeanty.

These beforementioned be the rights of the tenure called knight's service in capite, vice in capite is 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 of the lands so 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 arry 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.

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.

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 office of aliena 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 digested, is easy and of course.

tion.

A license of third part of one

alienation is the year's value of

the land mode. rately rated.

portion of the

There is an office called the office of alienation, where any man may have a license at Aid a sum of a reasonable rate, that is, at the third money rateably part of one year's value of the land mo- ing to the proderately rated. A tenant in cap. by lands. 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.

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