Books allowed, clergy, &c.

offences, except treason and robbing of

churches; now

In murder. 2.

Robbery. 4.

Purse-cutting.

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.

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 diocese 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 And this clergy was allowable, in the ancient anciently in all times and law, for all offences, whatsoever they were, except treason, and the robbing of churches of their goods and ornaments. But by many sta taken away, 1. tutes made since, the clergy is taken away for murIn burglary. 3. der, burglary, robbery, purse-cutting, horse-stealing, and divers other felonies, particularized by the sta5. Horse-steal- tutes to the judges; and lastly, by a statute made 18 Elizabeth, the judges themselves are appointed fences. By the to allow clergy to such as can read, being not such stat. of 18 E. offenders from whom clergy is taken away by any allow clergy, statute, and to see them burned in the hand, and so and to see them discharge them, without delivering them to the hand, and to bishop; howbeit, the bishop appointeth the deputy discharge the to attend the judges with a book, to try whether out delivering they can read or not.

ing, and in

divers other of

judges are to

burned in the

prisoners with

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 mens 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.

prius, directed

the assize.

The fourth commission is a commission to take Nisi 4. Commission prius, directed to none but to the judges themselves, to take Nisi and their clerks of assizes, by which they are called to two judges, justices of Nisi prius. These Nisi prius happen in and the clerk of this sort; when a suit is begun for any matter in one Nisi prius. 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, etc. 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.

proceeding of

cuits. The

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 *Distringas. Writ* returned to the sheriff, commanding him to The manner of distrain them by their lands to appear at a certain justices of cir- day appointed by the writ, which is the next term after, Nisi prius justiciarii nostri ad assisas capijudges hold in endas venerint, etc. of which words the writ is called the taking of Nisi prius. 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.

is a commission

the peace and

judges in their

The fifth commission that the judges in their cir-5. Commission cuits do sit by, is the commission of the peace in of the peace. every county of their circuit. And all the justices The justices of of the peace, having no lawful impediment, are the sheriff are bound to be present at the assizes to attend the to attend the judges, as occasion shall fall out: if any make de-county. fault, the judges may set a fine upon him at their pleasure and discretions. Also the sheriff in every shire through the circuit is to attend in person, or by a sufficient deputy allowed by the judges, all that time they be within the county, and the judges may fine him if he fail, or for negligence or misbehaviour in his office before them; and the judges above may also fine the sheriff, for not returning, or not sufficient returning of writs before them.

Property in lands, how gotten or transferred.
I. By entry.

II. By descent. III. By escheat.

IV. Most usually by conveyance.

gained by en

I. PROPERTY by entry is, where a man findeth of the property a piece of land that no other possesseth, or hath title of lands to be unto, and he that so findeth it doth enter, this entry try. gaineth a property. This law seemeth to be derived from this text, Terram 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 inan 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 All lands in the conquest all the land of this nation was in the England were Conqueror's hands, and appropriated unto him; ex-queror's, and cept religious and church lands, and the lands in held of him, Kent, which by composition were left to the former ligious and owners, as the Conqueror found them; so that none The lands of but the bishopricks, churches, and the men of Kent, the men of can at this day make any greater title than from the conquest, to any lands in England. And lands pos

the Con

except, 1. Re

church-lands.2.

Kent.

eth to the King.

sessed without any such title, are in the crown, and not in him that first entereth; as it is in land left Lands left by by the sea; this land belongeth to the King, and the sea belong-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, namely, that the inheritance cannot be gained by the first entry. But an estate for another man's life by occupancy, 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 estate 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, namely, 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 intitle himself unto those lands; and therefore the law preferreth him that first entreth, 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 go again to whomsoever first entreth and holdeth; and so all the life of B. so often as it shall happen.

Occupancy.

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