Chapter XVII: Book XIV

CONCERNING CRIMINAL PLEAS WHICH BELONG TO THE CROWN.

CHAP. I.

Having thus far treated of those Civil Pleas which are discussed in Court, it remains for us to speak concerning Criminal Pleas. When, therefore, any one is charged with the King’s death, or with having promoted a sedition in the Realm or Army,[492] either a certain Accuser appears, or not. If no certain Accuser should appear, but the public voice alone accuses him,[493] then, from the first, the accused shall be safely attached, either by proper Pledges, or imprisonment.[494] The truth of the fact shall, then, be inquired into, by means of many and various inquisitions and interrogations, made in the presence of the Justices, and that, by taking into consideration the probable circumstances of the facts, and weighing each conjecture that tends in favor of the accused, or makes against him; because he must purge himself by the Ordeal,[495] or entirely absolve himself from the Crime imputed to him. But if on the trial by the Ordeal, a person is convicted of a Capital Crime, then the Judgment is of life and members which are at the King’s mercy,[496] as in other Pleas concerning Felony.

[Footnote 492: When any one, says Bracton, speaking of the crime of læse majesty, knows another to be guilty, he is instantly to apprise the king, or one of his ministers. He should not abide in one place for two nights nor two days; but disregarding every other affair, however urgent, he should hasten to the king, scarcely daring to wait to look behind him. (Bracton 118. b. See also Fleta L. 1. c. 21. 22. and Mirror c. 8. s. 1.) In the latter Author, we find the following despotically comprehensive definition.—“Treason is every mischief which a man knowingly does or procures to be done to one he is in duty bound to be a friend to.”]

[Footnote 493: This is a most singular part of the Code of the age when Glanville lived. The obligation upon a man to defend himself, when another starts forward to accuse him, seems the necessary result of men living together in a state of society, and, as coeval with society itself, is strongly enforced by the municipal Laws of every Nation. This seems to have been the object of the punishment _peine forte et dure_. That singular institution shewed a strong, but rough, hand in the Legislature, more capable of directing its laws to a good and wise _end_, than nice or happy in selecting the _means_. The proceeding was naturally abolished as the Law became more refined—more humanized. As to the passage of our Author’s text now before us, it receives some light from Bracton—a suggestion, for which I am indebted to Mr. Reeves’s valuable work. Bracton speaks of an Indictment _per famam patriæ_, which, in all probability, was the same proceeding our Author alludes to. The foundation of that proceeding was a presumption entertained by good and grave men who deserved credit, and not the flying report of common conversation. (143. a.) But the subject receives additional elucidation from the Norman Code. _In criminalibus tamen manifestis seu notoriis maliciis quos famâ publicâ seu fide dignorum testimonium nunciant culpabiles, non expectato Juris ordine debent arrestari et carceribus mancipari._ (Grand Cust. c. 4. and 68.) In Mr. Kelham’s translation of Britton’s Pleas of the Crown, (page 18. Note 15.) the Reader will find the valuable record of an Indictment on suspicion. The Reader may also be referred to Bracton 143.—LL. Hen. 1. c. 45.—Mirror c. 2. s. 22. and Fleta L. 1. c. 21.]

[Footnote 494: “At the Common Law a man accused or indicted of High Treason, or of any felony whatsoever, was bailable, upon good security: for at the Common Law the Gaol was his pledge or security that could find none.” (2 Inst. 189.) This serves to elucidate the text, which is obscure from its brevity. A similar explanation is given in the progress of the present chapter, but is qualified, with the exception of the plea of Homicide.]

[Footnote 495: _Per legem apparentem._ Alluding to the passage now before us, Sir Henry Spelman observes, “I do not think it should be understood of the Duel, but the Ordeal.” This conjecture is countenanced by the 87th Chapter of the Grand Norman Custumary, however true it may be, that the _lex apparens_ was, in the general sense of the expression, applied to the Duel. (Spelm. Gloss. ad voc. _lex_ and his Reliq. p. 80.)]

[Footnote 496: _Ex regiæ dispensationis beneficio, tam vitæ, quam membrorum suorum ejus pendet judicium_ is the original passage. I have availed myself of the Translation of the Regiam Majestatem. “And, if any man is condemned of that crime, his judgment and punishment of his life and limbs depend only upon the king’s benefit and good will, as in all other pleas of felony and sedition against the realm.” (L. 4. c. 1.)]

Should, however, a certain accuser appear in the first instance, he shall be attached by Pledges, if he can produce any such, to prosecute his Suit. But, if he is unable to adduce any Pledges, it is usual to trust to his solemn promise,[497] as in all Pleas concerning Felony. Yet is it customary in these cases to confide in a promise, least by exacting too hard a security, others might be deterred from making a similar accusation.[498] Security having been taken from the Accuser to prosecute his Plea, then, the party accused, is, as we have observed, usually attached by safe and secure Pledges; or, if he cannot produce any pledges, he shall be cast into Prison. But, in all Pleas of Felony, the Accused is generally dismissed on pledges,[499] except in a Plea of Homicide, where, for the sake of striking terror, it is otherwise enacted. The next step usually resorted to, is to appoint a day to the parties, pending which, the usual Essoins are allowed to be cast.

[Footnote 497: _Fidei suæ religionis_—“his faithful promise is sufficient,” says the Regiam Majestatem. (L. 4. c. 1.) In the opinion of the canonists the _fidei interpositio_ was equally binding with an oath. (Lyndwood’s Provinc. 271.)]

[Footnote 498: Bracton gives the same reason. (118. b.)]

[Footnote 499: But this the Mirror terms an abuse. (c. 5.)]

At length, the Accuser should propose his charge: that he had seen, or by some other proof in Court, that he perfectly well knew, that the Accused had conspired or done something against the King’s life; or to move a sedition in the Realm or Army; or to have consented, or given Counsel, or delegated an authority, towards effecting such object; and the Accuser should allege, that he was prepared to prove his charge, according to the direction of the Court.[500]

[Footnote 500: See Bracton 119. a. Fleta L. 1. c. 21. s. 2.]

Should the accused, on the other hand, deny, in due manner[501] in Court, every thing the other had asserted, it is usual to decide the Plea by the Duel. And here it should be observed, that from the moment the Duel is waged, in Pleas of the kind we are now treating of, neither of the parties can add nor diminish any thing from the words employed in waging the Duel, or, in any other measure decline or recede from his undertaking, without being held as conquered, and liable to the penal consequences.

[Footnote 501: _Seriatim de verbo ad verbum._ (Fleta L. 1. c. 21. s. 2.) _Sufficit si communiter se defenderit dum tamen de causa_: (Ibid.) a greater strictness in pleading being required on the part of the accuser than the accused.]

Nor can the parties be afterwards reconciled to each other, by any other mode, than the King’s License, or that of his Justices. But if the Appellor be conquered, he shall be amerced to the King, the nature of which has been sufficiently explained in a former part of this work.

What penalties also and infamy he shall incur, if conquered, have been sufficiently detailed. If the Accused be conquered, the Judgment that awaits him has been mentioned just before, to which may be added, the confiscation of all his Chattels, and the perpetual Disinherison of his Heirs.[502]

[Footnote 502: So great, indeed, is the crime, says Bracton, that scarcely is it permitted to the Heirs that they should live. (118.) In speaking of Treason, Bracton warms with his subject; and the grave Lawyer starts into the animated Orator.]

Every free Man of full age is admissible as an Accuser, in a prosecution of this kind. Should, however, a Minor bring an Appeal, he shall be attached, in the manner we have before stated. A Rustic[503] is also admissible; but a Woman shall not be received to make an accusation in any plea of Felony, unless in some particular instances, concerning which we shall presently speak. But the Accuser may, in Pleas of the kind we are discussing, decline the Duel, either on account of his age, or by reason of his being adjudged to have received a Mayhem.[504]

[Footnote 503: _A Husbandman_, says Skene. (Reg. Maj.) I translate the word literally, and refer the Reader to the last passage of the present chapter. Vide Mirror c. 2. s. 28.]

[Footnote 504: _Mahemium_ is said to be derived from the old French word, _mehaigne_. (Co. Litt. 126. a. 288. a. Cowell and Spelm. Gloss.)]

But the age of the party, in such a case, ought to be sixty years or upwards. Mayhem signifies the breaking of any bone, or injuring the head, either by wounding or abrasion. In such case, the Accused is obliged to purge himself by the Ordeal, that is, by the hot Iron, if he be a free Man—by water, if he be a Rustic.[505]

[Footnote 505: The trial by _Ordeal_, the favorite offspring of Superstition, has been by Fleury, Le Brun, and others, supposed to be derived from the Ancients, because Pliny (L. 8. c. 2.) mentions a family in Tuscany, upon whom the sacred fire, made in honor of Apollo, had no effect. But M. Houard, with much more appearance of reason, imagines, that it originated from the Miracles attributed by the Christians to their Saints. (_Traités sur les coutumes Anglo-Normand. Tom. 1. p. 577._) However that may be, this mode of Trial existed here so early as the Reign of Ina; and William the first found it in use in this country, when he mounted the throne. His Normans, attached by early habit to the Trial by Duel, rejected a mode of decision, which appeared to them as a superstitious formality, though it was still suffered to be resorted to by old and maimed men, and by women. According to the Laws of Ina, the accused had _the choice_ of the Trial by fire, or that by water. If he preferred the former, an Iron was prepared that weighed three pounds at the most. No person, except the Priest, whose duty it was to preside on the occasion, entered the Temple, after the fire destined to heat the Iron was kindled. The Iron being placed upon the fire, two men posted themselves on each side of the Iron, to determine upon the degree of heat it ought to possess. As soon as they were agreed upon this point, the same number of men were introduced _ab utroque latere_, and they also placed themselves at the two extremities of the Iron. All these witnesses passed the night fasting, &c.

At day-break, the Priest, after sprinkling them with the holy-water, and making them drink, presented them with the Book of the Evangelists to kiss, and then crossed them. The Mass then began. From that moment, the fire was no more increased: but the Iron was left on the embers, until the last Collect. That finished, the Iron was raised, and the most profound silence was observed, in praying the Deity to manifest the truth. At this instant, the accused took the Iron into his hand, and carried it to the distance of nine feet, _juxta mensuram pedum ejus_. The Trial being ended, the hand of the accused was bound up, and the bandage sealed; and, three days after, the hand was examined, to ascertain whether it was or not _impure_, which M. Houard, thus explains: _ce qui doit, je crois, faire entendre que l’on n’étoit pas coupable, quand la main conservoit des marques de brûlure mais seulement lorsque la brûlure tomboit en supuration_. (_ubi supra._) But, if the accused elected the Trial by Water, then, the Water was placed in a Vessel, and heated to the highest degree. For inferior Crimes, the accused plunged his arm up to the wrist: for crimes of deeper dye, he plunged it up to the Elbow. In every other part of the ceremony, the two species of Trial by water and fire agreed. (LL. Inæ c. 77.) The Mirror coincides with the text of Glanville, (c. 3. s. 23.) and Lord Hale informs us, “that in all the time of King John the purgation _per ignem et aquam_, or the Trial by _Ordeal_, continued, as appears by frequent Entries upon the Rolls; but, it seems to have ended with this king, for I do not find it in use in any time after.” (Hist. Com. Law. 152.)]

CHAP. II.

A plea, concerning the fraudulent concealment of Treasure Trove, is usually managed, in the manner and order above stated, where a certain Accuser appears.[506] But, if a Man is accused of this crime by the public voice only, it is not usual, according to the Law of the Land, for him to purge himself by the Ordeal,[507] although by the Assise a different course may be resorted to, unless he has been first convicted, or has confessed in Court, that he has found and taken some kind of Metal in the place in question.[508] But, if upon this fact the party be convicted, the presumption being against him, he shall be obliged to purge himself by the Ordeal, that he had not found or taken any more from the place in question. In other respects, the proceedings are as before stated.

[Footnote 506: Vide Bracton 119. b. Britton c. 17. s. 1. Dial. de Scacc. L. 2. s. 10. The modern French Code gives the treasure to the person who finds it, if the owner of the Estate: if not, half to him, and the other half to the owner of the Estate. (Code Napoleon.)]

[Footnote 507: Yet see LL. Hen. 1. c. 63. Ed. Wilkins.]

[Footnote 508: At the time of Bracton, a probable presumption of a man’s having possessed himself of treasure-trove, arising from his sudden dressing or living in a higher style than he had been accustomed to, was held a sufficient ground to commit the party to Gaol. (120. a.)]

CHAP. III.

When any one is accused of Homicide,[509] the Judgment is regulated by, and proceeds on, the distinction before laid down. It should, however, be observed, that it is not usual to dismiss upon pledges a person accused of this Crime, unless in compliance with the King’s pleasure. But there are two species of Homicide. The first is called Murder which is secretly perpetrated—no one seeing—no one knowing of it,[510] save the person committing it, and his Accomplices, so that Hue and Cry[511] cannot be presently made after the Offenders, as ordained by the Statute[512] upon this subject.

[Footnote 509: Vide Fleta L. 1. c. 23. Bracton 120. b. 134. a.]

[Footnote 510: “The name of murder (as a crime) was anciently applied to the secret killing of another which the word _moerda_ signifies in the Teutonic Language.” (4 Bl. Comm. 194.) In support of this position, the learned Judge cites the present passage of our author’s text. Other authorities may be added. _Murtre, est quant home est tue de nuit ou de repos dehors ou dedans vill._ (Assises de Jerusalem, c. 85.) _Porro murdrum propriè dicatur, mors alicujus occulta cujus interfector ignoratur._ (Dialog. de Scacc. L. 1. s. 10. See also Bracton 121. Fleta 34. s. 6. Britton c. 6. s. 1. and c. 23.—Regiam Majestatem L. 4. c. 5.)]

[Footnote 511: _Clamor popularis_ is the expression, which, on the authority of Lord Coke, I have rendered Hue and Cry. Lord Coke informs us, it was known before the conquest. (2 Inst. 171. 172.) It does not appear to have been peculiar to this country, as a similar institution seems anciently to have existed in some parts of France. (Beaumanoir c. 67.)]

[Footnote 512: “This Statute is not now extant,” says Lord Coke. (2 Inst. 171.)]

To prosecute an accusation of this kind no one is admissible, unless he be of the blood of the deceased, and under such restrictions is this rule adhered to, that the nearer Heir shall exclude the more remote from the Appeal.[513]

[Footnote 513: _De multro (murder) vel Homicidio propinquior in genere sequelam faciendi retinet potestatem: Si autem propinquior in non ætate fuerit vel ætatem transegerit, alius propinquior interesse poterit in sequela, vel alius de genere in quem consenserit omnis parentela._ (Le Grand Custum. de Norm. c. 69. See also Britton c. 1. s. 11.)]

There is also another species of Homicide, as appears from the general Term, which is called simple Homicide.

In this suit also no one is admissible to prove the Accusation, unless he be allied in blood to the deceased,[514] or be connected with him by the tie of Homage, or Dominion, so that he can speak of the death upon the testimony of his own sight. It should also be added, that a Woman[515] is heard in this suit, accusing any one of her Husband’s death,[516] if she speak as being an Eye-witness[517] to the fact, because Husband and Wife are one flesh. And a Woman is generally admitted to be heard, accusing any one of having committed an injury upon her person, as will be presently shewn. It is at the election of the accused either to abide by the Woman’s proof, or to purge himself by the Ordeal, from the crime imputed to him. A person accused of Homicide is sometimes compelled to undergo the legal Purgation, if he was taken in flight by a Crowd pursuing him, and this be regularly proved in Court by a Jury of the County.

[Footnote 514: Vide Co. Litt. 25. a.]

[Footnote 515: “And yet not of all the wives, but of her only who lieth between his arms, which is as much as to say, in whose seisin he was murdered; for if he had many wives, and all were alive at the time of his murder, nevertheless she only is admitted to bring the appeal of all the rest, whom he last took to wife; and the reason thereof is, because it belongeth not to the Temporal Court to try who was his wife of right, and which, in fact, and the appeals of all others are to be suspended, pendant the same appeal brought” (Mirror c. 2. s. 7. See also Bracton 125. a. Fleta L. 1. c. 35. and 2 Inst. 316.)]

[Footnote 516: Lord Coke, in two instances, cites the present chapter of Glanville as one of the authorities on which he founds his assertion, that previously to the Great Charter a woman, as well as a man, might have had an appeal of the death _of any of her Ancestors_. (Co. Litt. 25. b. and 2 Inst. 68.) It is impossible to conceive how Glanville corroborates this bold position. He is a very strong authority for the contrary doctrine, and excludes expressly in this chapter and by relation in the first chapter of the present Book, a woman’s right of appeal in every instance, except that of the death of her Husband, and that of a personal injury. _Bracton_ also in the most decided language confines a woman’s right of appeal to these two instances. (fo. 125, and 148.) Great as Lord Coke is, his deductions and citations from the more ancient writers are not by any means implicitly to be relied upon. His name has thrown a lustre over many an error. Nothing would be more easy than to adduce innumerable instances in support of the truth of this assertion.]

[Footnote 517: For it was a good ground of defence, that the Plaintiff was not present at the time when the mortal blow was given. (Vide 2 Inst. 316.)]

CHAP. IV.

The Crime of Burning[518] is proceeded upon, discussed and terminated, under the form and order we have described.

[Footnote 518: “Burners are those,” says the Mirror, “who burn a City, Town, House, Men, Beasts, or other Chattels, feloniously in time of peace for hatred or revenge.” (Mirror c. 1. s. 8. See also Britton chap. 19.)]

CHAP. V.

The Crime of Robbery[519] may also be passed over, as the suit has nothing to distinguish it from the others.

[Footnote 519: _Roberia_, so called, says Lord Coke, because the goods are taken as it were _de la robe_, from the Robe, that is from the person. (Co. Litt. 288. a. and 3. Inst. 67.) Cowell deduces the term from the French _robbe_, _vestis_, and Spelman from _raubas_, meaning the same thing. The Saxons used their term _reaferar_ in a similar sense, _reaf_ signifying, _vestis_. For Travellers had in former times rarely any thing but their dress of which they could be robbed. (See Cowell and Spelm. Gloss.) Under the Laws of Ina the punishment of Robbery was to restore the thing purloined, and to pay a fine of 60 shillings. (LL. Inæ. c. 10.)]

CHAP. VI.[520]

[Footnote 520: For obvious reasons I have translated the present Chapter in a general manner.]

The Crime of Rape[521] is that with which a Woman charges a Man when she alleges, that he committed a violence on her person, whilst in the King’s peace.[522] A Woman, having suffered any such violence, is bound immediately, whilst the crime is recent, to go to the nearest village, and there state the injury to respectable Men, and shew the external marks of violence.[523] She should, in the next place, do the same thing to the Chief Officer of the Hundred; and, lastly, she should publicly complain of her injury in the next County Court. An accusation of this kind being made, the Judgment is as before laid down. A Woman, accusing any one of such a Crime, is heard in the same manner, as is usual concerning any other personal injury which has been offered her. But it should be understood, that it is at the Election of the Accused in such a Case, either to submit to the burthen of making Purgation, or to sustain the woman’s proof against him. It should likewise be remarked, that if any one be convicted in a suit of this kind, the Judgment will be similar to that in the foregoing suits. Nor will it suffice, after Judgment, if the Malefactor wish to take the Woman he has injured to Wife. For thus it would frequently happen, that Men of servile condition would, by reason of one pollution, bring perpetual disgrace upon Women of noble birth, or that Men of high rank would be disgraced by inferior Women, and thus dishonor their fair lineage. But, previously to Judgment, it is customary for the Woman and the accused to be reconciled, by means of a marriage between them; but this step is authorised by the License of the Prince, or that of his Justices, and the consent of the Parents.

[Footnote 521: Vide Mirror c. 1. s. 12. and Bracton 147. a.]

[Footnote 522: Vide LL. Gul. Conq. c. 19. and 2. Inst. 180. 181.]

[Footnote 523: _Visio autem virginis defloratæ per septem mulieres viduas vel maritatas fide dignas debet fieri, per quas, si necesse fuerit, de defloratione veritas recordetur._ (Grand Custum. de Norm. c. 67. See also Britton c. 1. s. 30. &c.)]

CHAP. VII.

The crime of Falsifying,[524] in a general sense, comprises under it many particular species. As, for example, false Charters—false Measures—false Money—and others of a similar description, which contain such a falsifying, on which a person ought to be accused, and, if convicted, condemned. The manner and order of prosecuting these different species of the crime may be sufficiently collected, from what has gone before. One thing, however, should be observed, that if a person be convicted of falsifying a charter, it becomes necessary to distinguish, whether it be a royal[525] or a private charter; because in the former case, the party, when convicted of this offence, shall be condemned, as in the crime of læse majesty. But, if the charter be a private one, then, the person convicted is to be dealt with in a milder manner, as in other inferior crimes of Falsifying, which are punished by the loss of members only, according to the will and beneficence of the princely disposition, as we formerly observed.

[Footnote 524: See Britton c. 4. Bracton 119. b. and Fleta L. 1. c. 22.]

[Footnote 525: Of the king’s Charters, says Bracton, neither the Justices nor private Individuals can dispute, nor interpret them, if a doubt arise; but recourse must be had to the king himself; and if the Charters be defective, through rasure, or from a false seal being attached to them, it is better and safer to decide the matter in the king’s presence. (Bracton fo. 34. a.)]

CHAP. VIII.

As to Thefts and other Pleas which fall within the Jurisdiction of the Sheriff,[526] as they are conducted and decided according to the various customs of different Counties, they fall not within the scope of my present plan, which is solely confined to the subject of the Chief Court.

[Footnote 526: Having already observed, that this part of the Sheriff’s Jurisdiction was taken away by Magna Carta, I shall conclude these Notes with extracting a passage from the Norman Code, from which we may collect most of the various branches of the Sheriff’s Jurisdiction and his duty, in the opinion of the Lawyers of Normandy. _Officium autem Vicecomitis est placita tenere: vias antiquas et semitas et limites aperire: aquas vero transmotas ad cursum debitum reducere, et de malefactoribus et seditiosis mulieribus et arsionibus et deflorationibus virginum violentis et ceteris actibus criminosis diligenter et secretè inquirere._ (Le Grand Custum. de Norm. c. 4.)]

The Book of the Laws of England is finished.

INDEX.

Abbots cannot without King’s consent alien, 123

—— of Canons Regular may appear for their Order, 229

Absence of Lords, 65

—— of Parties, 30

—— of Summoners, 26

—— of Tenant, 27

—— of Demandant, 28

Accusations, 278

Accuser, certain or uncertain, 278, 279

Admeasurement of Dower—Writ of, 112

Administration, who entitled to, 137

_Advocatio_ (Note 1.), 69

Advowsons—general doctrine of, begins at, 69

_Æsnecia_ (Note 1.), 127

Afforciament (Note 1.), 53

Age, Writ to ascertain, 261

Aids (Note 1.), 190

_Aisiamenta_ (Note 1.), 239

Allegiance, 177, 178

Amercements, 202

—— in County Courts belong to Sheriff, 193

Appeal of Felony, 141

_Appellans_ (Note 3.), 275

Appeals, who may prosecute, 282

_Arbelastarius_ (Note 1.), 232

_Arrha_ (Note 4.), 216

_Assisa_ (Note 1.), 36

Assise Grand (see Grand Assise), 44

Assises, general doctrine of, begins at, 246

Assise of _darrein presentment_, 263

—— _mort d’auncestor_, 246

—— _novel disseisin_, 270

—— when it lies not for burgage tenure, 255

Attachment (Note 1.), 66

_Attornato faciendo_—Writ _de_, 226

Attornies—general doctrine concerning, begins at, 223

Attorney may cast Essoins for himself, 226

—— may be removed, 228

_Avunculus_ (Note 1.), 125

B.

Bailiff cannot, as such, appear as Attorney, 225

_Ballivus_ (Note 1.), 225

_Banco, Justicii in_ (Note 2.), 41

_Baro_ (Note 3.), 173

Bastards cannot inherit, 147

—— formerly inherited in Wales (Note 1.), 148

—— who succeed to, 150

Bastardy, when bar to an Assise, 254

—— Writ to inquire concerning, 148

Bishops cannot without King’s consent alien, 123

—— do not when consecrated perform Homage, 180

—— do when consecrated perform Fealty, 180

_Bladum_ (Note 2.), 33

_Boscus_ (Note 2.), 239

_Breve_ (Note 4.), 4

Burgage Tenure—not entitles King to Custody, 142

—— when it bars an Assise, 255

C.

_Campio_ (Note 2.), 36

Capital Messuage not allotted in Dower, 108

_Cellarii_ (Note 1.), 229

Champion, when hired, inadmissible, 38

—— if formerly a Villein, objectionable, 89

—— when conquered how punished, 39

—— collusively vouched (Note 2.), 219

Charters, proof of, 214

—— falsifying, 290

Chattels when forfeited, 152, 156

—— of Intestate, 151

—— of Usurer, 151

—— not distrained for non-appearance, 199

Chief Manor not allotted in Dower, 109

Chirograph, 168

_Clamat_ (Note 1.), 5

_Clamor popularis_, 286

Coin false, 290

_Commodatum_ (Note 2.), 214

Concord, why called Final, 166

—— breach of, how punished, 167

Concords, general doctrine of,—begins at, 161

Conditions, 206

_Conductum_ (Note 1.), 221

Confiscation, 282

Consanguinity in questions of freedom, 85

—— in questions of Intestacy, 137

—— bar to Assise of _mort d’auncestor_, 255

Constitution (Note 1.), 49

_Consuetudines_ (Note 4.), 165

_Consuetudinibus et servitiis_—Writ _de_, 192

Contempt of Court, 30, 66, &c.

_Contemptus Brevium_ (Note 4.), 4

Contenement (Note 3.), 190

Contracts private, 221

Counts, when they vary from Writ, effect of, 244

Courts inferior—when allowed Records, 170, 173

——, County—differ in their Customs, 244

—— of Lords—differ in their Customs, 234

_Crimen falsi_ (Note 2.), 2, 290

_Croftum_ (Note 3.), 164

Curtesy of England (Note 1.), 158

Custody of Heirs, 139

—— discharges Relief—when, 184

Customs, 128, 133

_Custum_ (Note 1.), 29

D.

_Darrien presentment_—Writ of, 263

Debt—Writ of, 198

Debts—Pleas concerning, 198

—— how proved, 213

Default, how punished, 16

Deposit, 199

Descents, general Canons of, 124

—— amongst Grecians, Normans, Lombardi, &c. (Note 2.), 125

_Desponsatio_ (Note 1.), 94

Disseisins, 270

Distresses, 103, 179, 191, 199, 228, &c.

_Divisa_ (Note 1.), 133

Divorce for Incontinence bars Dower, 110

—— for Relationship bars Dower, 110

_Dominium_ (Note 1.), 123

Dower, general doctrine of, begins at, 93

—— in what senses used, 93

—— _ad Ostium Ecclesiæ_, 94

—— _Ex assensu Patris_, 111

—— admeasurement of, 95

—— how demanded, 101

—— not of land already in Dower, 109

—— its assignment not postponed for Heir’s Infancy, 109

—— barred by Divorce for Incontinence or Relationship, 110

—— Writ of Right of, 99

Duel, Trial by, 33

—— its rise and decline (Note 1.), 34

—— reason of (Note 1.), 35

—— not allowed in questions of Villenage, 88

—— not waged by Villein-born though Knighted, 89

—— Courts not bound to defend their Records by, 171

—— Courts bound to defend their Judgments by, 171

—— in Criminal matters, 282

—— when only compromised by License, 282

_Duodecimâ Manu_ (Note 2.), 8

E.

Earnest, 216

Ecclesiastical Court—holds not plea of Debt—when, 212

—— when it has Jurisdiction generally, 245

Election of Knights on Grand Assise, 48

Enfranchisement—modes of effecting, 88

—— under Saxons (Note 1.), 88

_Escambium_ (Note 1.), 61

—— when Bracton wrote (Note 1.), 61

Escheat for want of Heir, 154

—— for incontinence of female Heir, 154

—— for felony, 154

—— for conviction of Theft, 156

—— for Outlawry, 155

Essoins, principal kinds of (Note 1.), 6

—— general doctrine of—begins at, 6

—— not allowed by one of full age against Minor, 256

—— nor in Novel Disseisins, 251

—— may be cast by Attorney for himself, 226

Essoiners may appoint Essoiners, 18

—— Writ to take as Defaulters, 13

_Essonium_ (Note 1.), 6

Exceptions to Jurors, 50

Exchequer, 142

Executors—who, 136

F.

Failure of Justice in Lord’s Court, 234

_Faldæ_ (Note 2.), 165

_Faldæ secta_ (Note 2.), 165

Falsifying Judgments, 172

False-claim, punishable, 30

_Famâ publicâ_ (Note 2.), 278

Fealty, 129, 157

Fee, how lost, 179

Felony—appeal of, 141

—— forfeits Land, 154

Females, Custody of, 143

Feme sole may make a Testament, 134

—— covert cannot without Husband’s consent, 134

_Feodum_ (Note 2.), 103

_Fidei interpositio_ (Note 2.), 280

Final Concord—forms of, 162, 163

Fine—bar to Assise of _mort d’auncestor_, 254

Fines—general doctrine of—begins at, 161

Forfeitures, 154, 155, 156, 179, 282, &c., &c.

Forgeries, 290

_Forinseca_ (Note 1.), 165

_Forisfacio_ (Note 2.), 146

_Forisfamiliatus_ (Note 1.), 131

_Fossatum_ (Note 4.), 272

Frankalmoigne, 114

Freedom, how proved, 85

—— not to be purchased with Villein’s own money, 89

—— means of acquiring, 88

_Frussetum_ (Note 2.), 164

G.

Gifts of Land—how far allowed, 114

—— —— defective without seisin, 114

Grand Assise, 44

—— —— bars to, 42

—— —— the Essoins it allows, 49

—— —— concerning what things, 51

_Gyldam_ (Note 4.), 90

H.

Heirs—how far bound by Ancestors’ Gifts, 124

—— how divided, 124

—— when disinherited (see Forfeiture, Escheat, &c.)

—— in right line preferred to transverse line, 124, 129

_Heres remotior_ (Note 4.), 117

—— _Ultimus_, a Man’s Lord, 153

Hiring, 221

Homage, difference between and Fealty (Note 1.), 128

—— performed by Husband of Eldest Daughter, 128

—— general doctrine of, begins at, 175

—— must be received by Lord, when, 177

—— performed to several Lords for different Fees, 177

—— liege, when due, 177

—— form of, 177

—— effect of, 178

—— not performed by Women, 176

—— not by consecrated Bishops, 180

—— for what due, 181

—— to whom, 182

Homicide, its species, 285

—— properly so called, 286

—— not bailable, 281, 285

Hue and Cry, 286

Husbands—their power over their Wives’ Inheritance, 129

—— perform Homage for Wives’ Land, 177

I.

_Impetitio_ (Note 1.), 262

Imprisonment, 279, 281

Incendiaries, 288

Incontinence in female Heirs how punished, 146

—— divorce for, bar to dower, 110

Infamy, 56

Institution (Note 1.), 49

Interrogations in Pleas of Crown, 279

Intestacy, 136, 151

J.

Judgments inferior Courts bound to defend by Duel, 171

—— falsifying, 172

—— in Capital Offences, 280

_Judicium Dei_, 282

_Jurata_, 46, 194

_Juris Utrum_ (Note 1.), 266

Jurors, 50, 194

Justices Itinerant (Note 2.), 151

_Justicia_ (Note 3.), 141

_Justiciare_ (Note 1.), 192

_Justicii in Banco_ (Note 2.), 41

K.

King’s Death, crime of, 2, 278

—— Peace, 3, 27, 30, &c.

—— Writ of Warranty, 8

—— Charters falsifying, 290

Knight’s Heir in custody of Lord, 140

Knights summoned as Jurors on Grand Assise, 48

Knight’s Fee, relief of, 185

Knight, if formerly Villein, objectionable as Champion, 90

L.

_Languor_ (Note 2.), 15

Law, loss of, 39

Læse Majesty, 2, 278

Legacy, 137

_Lex Apparens_ (Note 2.), 279

_Libertate probanda_, writ _de_, 84

Limitation of _mort d’auncestor_, 247

—— of _Novel Disseisin_, 272

Loans, 199

_Locatum_ (Note 1.), 221

Lords may distrain their Tenants, 179

M.

_Magna Assisa Eligenda_, writ of, 48

_Mahemium_ (Note 3.), 282

Manor chief not to be allotted in Dower, 109

_Maritagium_ (Note 1.), 113

Marriage of female Heirs—Lords consulted on, 144

Marriage-hood, free or not, 156

Mayhem protects from duel, 282

—— what, 282

Measures false, 290

_Medletum_ or _Melletum_ (Note 1.), 3

Messuage capital, 109, 127

Metal discovering, 284

Minor when bound to answer generally, 260

—— must answer Minor in his custody, 140

—— no Essoin against, by one of full age, 256

Minority of Heir of a Knight, 139

—— —— of a Sockman, 139

—— —— of a Burgess, 139

_Misericordia_ (Note 1.), 28

_Mort d’Auncestor_, Assise of, 257

—— —— bars to, 254

—— —— writ of, 247, &c.

Mortgage, 284

—— when usurious, 209

_Mulier_ (Note 1.), 97

_Mulieratus filius_ (Note 2.), 116

_Mutuum_ (Note 1.), 204

Murder, 285

—— not bailable, 2, 285

N.

_Nativus_ (Note 2.), 83

_Ne injuste vexes_, writ of, 237

_Nihil habet_, writ of, 106

Non-plevin (Note 1.), 14

_Novel-Disseisin_, assise of, 270

—— —— meaning of Term (Note 1.), 270

—— —— allows no Essoin, 250, 274

—— —— allows of vouching warrantor, 275

Nuisances, 194, 273, 274

O.

Ordeal (Note 1.), 283

Outlawry, 154

Oxland (Note 2.), 162

P.

Parage (Note 3.), 181

_Parentela_ (Note 3.), 110

_Pares_ (Note 1.), 180

Pasture, admeasurement of, 238

—— disseisin of, 274

Perjury, 55

_Persona_ (Note 2.), 69

Pleas, how divided, 1

—— criminal appertaining to Crown, 2, 278

—— criminal appertaining to Sheriff, 3

—— civil discussed in King’s Court, 3

—— civil discussed in Sheriff’s Court, 4, 236

Pledges 27, 200

—— in criminal cases, 6, 7, 279

—— of Essoiners, writ to summon, 13

_Pone_, writ of, 100

Possession, writs to deliver, 14, 40, &c.

_Præcipe quod reddat_, writ of, 5

_Precariæ_ (Note 3.), 165

Presentation, when devolving on Tenant in Dower, 109

_Proclamo_ (Note 1.), 86

Prohibition, writs of, 46, 82, &c.

Purchase, 216

Purgation by ordeal, 283

Purpresture, or Propresture, 193

_Putagium_ (Note 3.), 147

Q.

_Quæstus_, or _Questus_ (Note 3.), 95

Quit-claim, 254

R.

Rape, 2, 289

_Rationabili parte Bonorum_, writ of, 137, 240

_Rationabilibus divisis_, writ of, 197, 239

_Recognitiones_ (Note 2.), 4

Recognitions, general doctrine of, 246

Record, courts of, 170

Records, of inferior courts not conclusive, 170

—— when allowed to inferior courts, 170

—— no court bound to defend by Duel, 171

_Recreantisa_ (Note 3.), 39

_Rectatus_ (Note 2.), 27

Reliefs, 184

Relief of Knight’s Fee, 185

—— of Socage Lands, 185

—— of Baronies, 185

—— once paid not again due, 184

—— when not due (Note 2.), 184

_Replegiare_ (Note 1.), 73

_Replegiare de averiis_, writ of, 238

_Reseantisâ_ (Note 1.), 10

_Respectus_ (Note 1.), 22

_Responsalis_ (Note 1.), 223

Right, writs of, 231, 233, &c.

Robbery, 288

_Roberia_ (Note 2.), 288

Rustic may bring an Appeal, 282

—— tried by water-ordeal, 283

S.

Sale, 216

Seals, 213

Sedition, 2, 278

_Seisina_ (Note 2.), 7

_Seneschallus_ (Note 2.), 225

_Sequela_ (Note 1.), 238

Serjeanties, 186

_Servientes_ (Note 1.), 20

—— _Domini Regis_ (Note 1.), 20

_Sextarii_ (Note 1.), 47

Sheriffs, their jurisdiction, 2, 4, 236, &c.

—— entitled to Amercements in county courts, 193

_Socagium_ (Note 3.), 118

Socage Lands, how descendible, 126

—— —— how long partible (Note 2.), 126

—— —— Relief of, 185

Sockman’s Heir in whose custody, 142

_Stagnum_ (Note 1.), 273

Steward cannot, as such, act as Attorney, 225

_Stika_, or _Stica_ (Note 2.), 47

Succession, Rules of, 124

Suits, how removed from Lord’s to County Court, 235

Summons, doctrine of, begins at, 5

—— writs of, 5, 48, &c.

Suretyship, 201

T.

_Tales_, 52

_Terminus_ (Note 2.), 22

Testaments, 134

Theft, 2, 156, &c.

—— cognisable by Sheriffs, 2

Toft (Note 3.), 162

Treasure Trove, 2, 284

Treason, 2, 278, &c.

_Turbaria_ (Note 4.), 164

U.

_Ultima presentatio_, Assise of, 262

_Ultimus Heres_, a Man’s Lord, 153

_Utlagatus_ (Note 3.), 154

Usury, when Mortgage amounts to, 209

—— punishment of, 151

Usurers, not convicted whilst living, 151

V.

Vassal, 178

_Vicinetum_ (Note 1.), 32

View, 31

—— writ directing, 32

_Villa privilegiata_ (Note 3.), 90

Villeins-born, 91

Villenage, general doctrine of, begins at, 83

—— plea of, not held by Sheriff, 84

—— when bar to an Assise, 254

_Villenagium_ (Note 1.), 83

W.

Wardship, 139, 258, &c.

_Warrantia Dici_, writ of, 8

Warrantor, writ to compel him to appear, 62

_Warrantus_ (Note 2.), 59

Warranty, general doctrine of, begins at, 59

—— writ of, 62, 102

—— vendors bound in, 218

Waste of Felon’s Lands, 155

Widows must ask Lord’s consent to marry, 145

—— not liable to custody, 147

—— do not forfeit for Incontinence, 147

Wife cannot, in Husband’s life, sell her dower, 97

—— her husband may sell her Dower, 97

—— may appoint Husband her Attorney, 227

Will of Lands not allowed, 115, 136

—— of personal, how far allowed, 134

—— —— —— witnesses to, 136

—— —— —— under Ecclesiastical cognizance, 137

Women can do no Homage, 176

—— in what cases they can prosecute Appeals, 286, 287

Writs, Errors in the effect of, 244

—— forms of, 5, 8, 12, 13, 14, 15, 25, 32, 40, &c., &c.

FINIS.