preface a god native land flute that which I have write as you know learned  reader in some of my former preface of the antiquity excellency of our law of  England have produce these two question first whether historiographer do  concur with that which there so constant have be affirm second see so great  and so often rehearsal be make of the commonlaws of England what the body or  text of the commonlawe be and consequent where a man may find it to both which  in the end I yield to make answer for the first albeit the book and record  which be old age reality vestigia cite by I in the preface to the three and  six part of my commentary be of that authority that they needs not the aid of  any historian yet will I with a light touch set down out of the consent of  story some proof of the antiquity and from the censure of those person who in  respect of their profession for they be monk and clergy man may rather fall  into a jealousy of referuednes then flattery somewhat of the equity and  excellency of our law and that it do appear most plain in successive authority  in story what I have positive affirm out of record that the ground of our  commonlaws at this day be beyond the memory on register of any beginning the  same which the Norman conqueror then find within this realm of England the law  that will conqueror swear to observe be good to assent to ancient royal power  law that be the law of this kingdom be in the beginning of the conqueror reign  good approve and ancient and that the people may the better observe their duty  and the conqueror his oath he cause twelve of the most discreet and wise man  in every shire throughout all England to be swear before himself that without  swerve either and right hand or left hand that be neither to flatter  prerogative or extend privilege they shall declare the integrity of their law  without conceal add or in any sort vary from the truth and Aldred the  archbishop that have crown he and Hugh the bishop of London by the king  commandment write that which the say jurats have deliver and these as say  ingulphus by public proclamation he declare to be authentic and for ever under  grievous punishment to be inviolable observe the sum of which compose by he  into a great Charta the groundwork of all those that after follow he bless  with the seal of security wish of eternity close it up with this general and  we further command that all man keep and observe due the law of king Edward  rear up the frontispiece ofhisgratious work with his glorious style William  God agreeableness king the Angli Dux Normannorum omnibus man n'est Francis  England health to cause to stand imprimis super all One god per totum kingdom  nostrum coition One faith Christ always unhurt to watch peace  freedom from care et concurrence agreement judgment iusticiam inter the Angli  normannos the Franks briton walliae cornubiae a people of Britain the Scots  Albaniae similiter inter islander provinoias et native land who pertinent and  crown et rank a defending observation honor royal power our men  et inter all  we to throw under per whole world absolute rule royal power britain really  inviolable to watch wonder ruf that succeed his father so exceed himself in  misrule oppression that there be leave no register of his goodness in this  kind for in his time the kingdom be oppress with unjust exaction the justice  corrupt with evil usage as appear by the magnacarta of his succeed brother  king Henry the first who thereby take away all the evil custom wherewith the  kingdom of England be unjust oppress and restore the law of king Edward such  law as be in the time of the holy confessor with those amendment which his  father add by the advice of his baron what these be math parish who have  insert the charter in his story declare to be the ancient liberty and custom  which flourish in this kingdom in the time of holy king Edward and herewith  agree hoveden in these word king h the first take away all the evil custom  unjust exaction wherewith the kingdom of England be unjust oppress he settle a  assure peace in his whole kingdom and command the law of king Edward to be  observe he restore to all c the which almost in the same phrase Florentius a  monk of Worcester and live in the reign of Henry the first observe and by who  the injustice of the forgo age proceed and by who and how redress William the  monk of Malmesbury deliver in these word Henry bear in England of kingliebirth  c by his proclamation speedy send through England restrain the injustice bring  in by his brother and ranulph c and abolish the unwonted lenity of some law  give assurance by his own and all the nobility oath that they shall not be  delude c king stc that succeed his uncle confirm in his great Chartre of  liberty to the baron commons of England in these word all the liberty and good  law which h king of England my uncle grant unto they and I grant they all the  good law and good custom which they enjoy in the reign of king Edward and be  so jealous of invocation as Roger Bacon the learned friar say in his book de  impediment prudence king Stephen forbid by public edict that no man shall  retain the law of Italy former bring into England the next to this man be  Henry who in another magnacarta establish the former law in these word Henry  by the grace of God king of England duke of Normandy and Aquitaine earl of  Anjou to all earl baron and his faithful subject of France and England  greeting know you that I to the honour of God holy church for the common  amendment of my whole kingdom have grant and restore and by my charter confirm  to God and holy church and to all earl and baron and to all my subject all  grant and donation liberty and free custom which king Henry my grandfather  give and grant unto they and all those evil custom which he abolish and remit  I likewise do remit and for I and my heir do agree shall be abolish by which  word it appear that he have reference to that charter of his grandfather that  abolish the unjust exaction and usage of his brother reign and confirm the old  and excellent law under saint Edward government and no less ancient even by  the like authority will appear the custom of some of our city for of London  say fitzstephen a monk of Canterbury it be build before that of Remus and  Romulus meaning Rome wherefore even to this day they use the same ancient law  public ordinance c let we descend a little low to the time of king John the  son of Henry the he in the year of his reign make the two magnacartas the one  call great paper  not in respect of the quantity but of the weight the other  Charta de forest which be yet extant to this day of which the monk of saint  Albon faith who ex part maxima law antiquity royal power custom  to hold together that be which for the most part do contain the ancient law  and custom of this realm and soon after he say and those law and liberty which  the nobility of the realm do there seek to confirm be partly in the above say  charter of king Henry and partly take out of the ancient law of king Edward  not that king Edward the confessor do institute they but that he out of the  huge heap of the law c choose the best and reduce they into one as in the  preface to the three part of my report more at large it appear the say  magnacartas make by king John be set down in haec word in math par pa and in  effect do agree with great Charta and Charta de forest establish confirm by  the magnacarta make in h which for their excellency have since that time be  confirm command to be put in execution by the wisdom authority of several  parliament and above and these law be in the register in many writ call  liberty for there it be say accord to the tenor of the magnacarta of the  liberty of England so call of the effect because they make free and math of  par and other as it appear before style they by the same name so as the  antiquity and excellency of our commonlawes do not only appear by historian of  our own persuasion in religion but by these monastical writer the which I have  add the more at large in this point to that which I affirm in my former  preface to the end that they agree together may the better persuade both party  to agree to the truth manifest prove by many unanswerable argument in the say  preface to the three part and by the authority of sir John fortescue chief  justice in the reign of king Henry the six among other at large cite in my  preface to the part by all which it be manifest that in effect the very body  of the commonlawes before the conquest be omit out of the fragment of such act  and ordinance as be publish under the title of the law of king allure Edward  the I Edward the second ethelstan Edward Edgar Etheldred Canute Edward the  confessor or of other king of England before the Conquest and those few  chapter of law yet remain be for the most part certain act and ordinance  establish by the say several king by assent of the common council of their  kingdom as for the excellency of our municipal law I will add to that which  have be say before that the monk of Crowland call they the most just law and  math of Westmn of they say they be by the appointment of king Knute translate  out of English into Latin be by he for their equity command to be observe as  well in Denmark as in England and of this matter thus much shall suffice but  yet before I take my leave of these historian I must encounter some of they in  two main point first that the trial by jury of man which be one of the  invincible argument of the antiquity of the commonlaws be only appropriate to  they be not institute by the powerful will of a conqueror as some of they  peremptory affirm they be the that the court of common plead be not erect  after the set up of great Charta which be make in the year of king Henry the  three contrary to that which other do hold for the first I refer the learned  reader to the preface before the part of my report where he shall receive full  clear satisfaction herein and will only add the judgement of the great  ornament in his kind of this kingdom in his britain page with which I will  conclude this point but whereas polidore Virgil writ that will the conqueror  first bring in the trial by man there be nothing more true for it be most  certain and apparent by the law of Etheldred that it be in use many year  before neither have he any cause to term it a terrible judgement for free bear  and lawful man be due by order impanel call forth of the neighbourhood these  be bind by oath to pronounce and deliver up their verdict touch the fact they  hear the counsel plead on both side before the bench or Tribunal and the  deposition of witness the take with they the evidence of both party they be  shut up together and keep from meat drink and fire unless peradventure some  one of they be in danger of death until they be agree of the matter in fact  which when they have pronounce before the judge he accord to law give sentence  for this manner of trial our most wise provident ancestor think the best to  find out the truth to avoid corruption to cut off all partiality affection and  for the excellency and indifferency of this kind of trial and why it be only  appropriate to the commonlawes of England read justice fortescue cap c which  be worthy to be write in letter of gold for the weight and worthiness thereof  I will not abridge any part of the same but refer the learned reader to the  fountain it self as to the second it be clear then the light at noon day that  the court of common plead be not erect after the statute of h cap common plead  shall not follow our court but shall be hold in some place certain first at  the same time and in the same magnacarta and in the next chapter save one the  court of common plead be express nam assize of darreine presentment shall  alwaics be take before the justice of the bench no man doubt but JusticiarA de  banc be justice of the common plead king Henry the first the son of the  conqueror by his charter grant to the abbot of b a charter of confirmation of  all his usage c and further grant that he shall have conusance of all manner  of plead so that the justice of the one bench or of the other or justice of  assize shall not meddle c and this charter appear in lib ass pl in the book  case of Edward fol it appear that mich in the six year of king Richard the  first a fine be levy between the abbot of S and Theoband c of the advowson of  the church of Preston before the archbishop of Canterbury the bishop of  Rochester and other justice deal bank that be of the court of common plea and  it appear in master Plowdens come in Stowels case that fine be levy before the  Conquest in the treasury there be yet remain some fragment of record and  judgement in the reign of king Richard the as well in person justice de banc  as in person king Martin de Pateshull be make justice de banc in the first  year of h which be before the statute of great Charta and in a Edward foe all  the judge of England do affirm that the chancery king bench common place and  exchequer be all the king court and have be time out of memory of man so as no  man know which of they be the most ancient but in a case so clear this shall  suffice and yet let I observe that diverse bishop and other ecclesiastical  person in ancient time do studious read over the law of England and thereby  attain to great and perfect knowledge of the same and the say Martin de  Pateshull who be as before be say chief justice of the court of common plead  in the first year of king Henry the three be also dean of Paul of who it be  say that he be a man of great wisdom and exceed well learned in the law of  this land and John Britton bish of Hereford write a excellent work in the day  of king Edward the of the commonlawes of England which remain to this day and  many nobleman have be excellent learned in the law of England as take one  example for many least this preface shall grow too large ranulfus de Meschives  the great and worthy earl of Chester and the three and last of that family  have as I author say great knowledge and understanding in the law of this land  compile a book of the same law as a witness of his great skill therein of who  Matthew par page report as a effect of his learning and knowledge in the law  of this realm but ranulph earl of Chester alone valiant resist as not Willing  to bring his country into servitude by pay of ten to the pope and will not  suffer the religious or clerk of his fee to pay the say ten although all  England and Wales Scotland and Ireland be compel to pay they and at a  partiament hold in the twenty year of king Henry the three the Act say all the  bishop desire the lord that they will consent that all such as be bear afore  matrimony shall be legitimate as well as they that be bear within matrimony as  to the succession if inheritance forasmuch as the church accept such for  legitimate and all the earl and baron with one voice answer that they will not  change the law of this realm which hitherto have be use and approve which  uniform and resolute answer of all the nobility of England nullo  to speak against do show the inward and affectionate love reverence they bear  unto the commonlawes of their deer country the certain and continual practice  of the commonlawes of England soon after the Conquest even in the time of king  Henry the first the conqueror son which almost be within the smoke of that  fiery Conquest and continue ever since do plain demonstrate that those law be  before the day of William the conqueror for it have not be possible to have  bring the law to such a perfection as they be in the reign of king Henry the  second succeed if the same have be so sudden bring in or institute by the  conqueror of which law this I will say that there be no humane law within the  circuit of the whole world by infinite degree so apt and profitable for the  honourable peaceable and prosperous government of this kingdom as these  ancient and excellent law of England be ranulfus de Glanville chief justice in  the reign of king Henry the second learned and profound write of part of the  law of England who work remain extant at this day and in his preface he writ  that the king do govern this realm by the law of the kingdom and by custom  find upon reason of ancient time obtain by which word speak so many hundred  year since it appear that then there be law and custom of this kingdom ground  upon reason and of ancient time obtain which he neither can nor will have  affirm if they have be so recent and almost present before that time institute  by the conqueror and in token of my thankfulness to that worthy judge who I  cite many time in these report as I have do in my former for the fruit which I  confess my self to have reap out of the fair field of his labour I will for  the honour of he and of his name and posterity which remain to this day as I  have good cause to know impart and publish both to all future and succeed age  which I have find of great antiquity of undoubted verity the original whereof  remain with I at this day and follow in these word ranulfus de Glanville  justice England a founder to be house de Butteley in under command the head of  Suff who to lay the bottom to be year  king h son she who commands year  dom  quo year  though Becket Cantuar archbishop to be to strike down et speech  ranulfus to be born in shaggy hair de Stratford in under command the head of  Suff to have manor de benhall come toto rule ex gift speech king h et to lead  in wife a certain Bertam son domini Theobaldi de Valeymz older man dom de  Parham who Theobald per papyrus  to sew devoted to speech raa Bertae  of or belonging to a wife of oneself all earth de Brochous come reach in how  house de Butteley thirst be come other terris property in book maritagio  Pradictus true ranulfus to bring forth tres son de dictam Berta videlicet  Matildam Amabiliam Helewisam who devoted to earth to sew ante advance suum  versus earth saint Matilda prima sister to have ex gift father Himself all  shaggy hair de benhall integraliter One come advocation church five monastery  happiness mariae de Butteley to veil oneself a certain militinomine will de  Auberuille de who to go before Hugo de Auberuille de Self hugone will de  Auberuille de Self William to go before quaedam Johanna son only haeres who  to veil oneself a certain military spirit de Cancia nomin Nicholas Kyryell who  to lead in wife margaretam son dom Galfridi peche that Nich to sell dom  guidoni Ferr predict manor de benhall tum that Nich de wife to sew to produce  other dom Nich soldier in Cancia who to live ante chiefs  plague ipse autem  Guido talliavit prediction maner in cur dom king at Westminster in crastin  a rising dom year  royal power king e son e primo Himself Alianorae  of or belonging to a wife of oneself haeredib dese exeunt et si ipse Guido  without heir to go away rem Wil de S Quintino heir worthy of love sencundam  sister to have ex gift father Himself center point vill de Bawdeseia  center point vill de Fynbergh worthy of love prediction to have man nomin  Radulphum de ardern de quo to go before though de ardern thread haeres de the  radul thread haeres who feossauit earlier times convent de Butteley de  center point villae de Bawdesey de preceding radulpho to go before quidam  though ardern thread haeres Helewisa third sister to have ex gift father  Himself other center point villae de Bawdesey prediction et other center point  villae de Fynbergh prediction Helewisa prediction to have man nomin Robert son  rob de quo to go before Rad thread et haeres who feoffavit Warinum de island  de center point prediction villae de Fynbergh de Rad to go before Rob thread  haeres who feoffavit Ran brother suum de center point prediction villae de  Bawdesey et notam quoth a saying beforehand Ranulp de Glanville to be man  very bright noble birth as de famous sanguine man insuper brisk corpore who  provectiori lifetime and earth saint to make haste ibis contra enemy  cross  Christ brisk usq and death to fight to be autem Berta ex bright a stock birth  son dom Theobaldi Valeymz older man domini de Parham quorum ranulphi Bertae  kinsman many men  de who more soldier all yes gentile of noble birth this  birth Suff the dawn a resid of noble birth carnispropagine honorably  illustraba year  many men  and Henr de Bracton a Judgeofthisrealm in the reign  of king Henry the three in his first chapter of his first book Numerotertio  say I Henry de Bracton have set my mind to search out diligent the ancient  judgement of the just not without much pain and labour c so as he style the  law of England by the name of the ancient judgement of the just the author of  the book call Fleta who write in the reign of king Edward the first in his  preface to his work agree with Glanville concern the antiquity and honour of  the law of England and there show the reason wherefore he entitle his book by  the name of Fleta but this treatise which may worthy be call Fleta because it  be compile in the fleet of the law of England I have a register of our writ  original write in the reign of k h in who time Glanville write contain the  original writ which be long before the Conquest as in the say preface to the  three part appear and yet also remain in force such except as have be  institute or alter by act of parliament since that time which be the most  ancient book yet extant of the commonlaw and so ancient as the beginning  whereof can be show to the question I do affirm that the statute of great  Charta Charta de forest Merton marlebridge Westminster I de bigamist Gloc  Westminster articuli super papyrus  articuli allotment of land  to cause to stand Eboraic tribe which voted first king and some few other that  be ancient among which the statute of e be not to be omit touch treason which  for the most part be but declaration of the commonlaw together with the  original writ contain in the register concern common plead and the exact true  from of indictment judgement thereupon in criminal cause be the very body as  it be the very text of the commonlawes of England and our yearbook and record  yet extant for above these year be but commentary and exposition of those law  original writ indictment and judgement by two case the one of jebu web the  other call blackamoor case now among other publish resolve in this bless  flourish spring time of his majesty justice special among many other it appear  that our book case and record be also right commentary and true exposition of  statute and act of parliament and for a example of a original writ among many  other I refer the studious reader especial to Calyes case in Pasc of the reign  of the late queen Elizabeth of ever bless memory now publish whereby it more  clear appear how judicious the opinion of justice Fitzherbert be in his  preface to his n b where he say that original writ be the foundation whereupon  the law depend how true he call the the principle of the law fortify also the  opinion of Bracton livre foe where he faith that Breue to shape be and  similitud maxim justice which case I have report in that from to this end that  student see the singular use of original writ will in the beginning of their  study learn they or at least the principal of they without book whereby they  shall attain unto thing of no small moment to the right understanding of their  book to the true sense judgement of law last to the exquisite from manner of  pleding and the case of barratry stand for a example of a indictment the  neglect of assize real action have produce inconvenience in the common wealth  a be if it be not step on already like to ensue the multitude of suit in  personal action wherein the realty of freehold inheritance be try to the  intolerable charge and vexation of the subject multiplicity of suit in one and  the same case wherein oftentimes there be diverse verdict on the one side and  diverse on other and yet the psalm or def can come to no finite end nor can  hold the possession in quiet though it be often try adjudge for either party  and this grow for that the right institution of the law be not observe to the  unjust slander of the commonlaw to the intolerable hindrance of the common  wealth in personal action concern debt good chattel a recovery or bar in one  action be a bar in another and there be a end of the controversy in real  action for freehold inheritance be of a high worthy nature stand upon great  variety of title difficulty in law there can not be above trial or at the most  that very rare and in the mean time after one recovery the possession rest  quiet the discontinuance of real action will produce in the end dangerous  effect videlicet want of true judgement in the professor of the law gross  ignorance in clerk of the right entry proceed in those case we see that work  of nature be best preserve from their own beginning frame of policy be best  strengthen from the same ground they be first find justice be ever best  administer when law be execute accord to their true and genuine institution  and therefore to the end the ancient excellent institution of the commonlaw  may be recontinued for the good of the common wealth for it be convenient for  the commonwealth that there be a end of controversy I have therefore report  case of assize for that the writ of assize in case where it lie be optimum  maxim hasty remedy and the case of Buckmere Syms of writ of formedon in  remainder Edward Altuams case of a writ of dower and we that be judge of the  realm have resolve to cut off all superfluous unjust delay as much as we can  all feign dilatory curious plead the admittance whereof of late time have be a  great cause why real action special writ of assize have not be so frequent as  they have be and though in real action as the weight of the cause require  there be long time give in the proceed then in personal action as appear in  justice Fortescues book can where it appear that those time be neither  overlong nor without just cause for many time in deliberation judgement grow  to ripeness but in over hasty processenever yet shall the demandant come to a  timely final end by these real action which he shall never do by prosecution  of personal action for the trial of freehold or inheritance and they that well  observe the three part of the report in the reign of king e shall find few or  no action of trespass or personal action bring concern any land or tenement  but either where no title of freehold or inheritance come in question or where  the plaintiff can not have any real action and therefore among many other it  appear in a action of trespass quare enclosed space to break in pieces bring  by the b of Coventry Lichfield in Edward foe b exception be take to the  replication of the b for that he plead in the realty for always in those day  real case be determine in real action which make the judge in those time to  merit that honourable testimony which Thirning chief justice attribute to they  in the year of the reign of king Henry the four that they be the great sage  that ever be that in the reign of king Edward the three the law be of the  great perfection that ever it be that pleding the great honour ornament of the  law grow in the reign of that king to that excellency as that the plead in  former time have regard to the plead in the reign of king e be hold by  Thirning to be but feeble I have report the great case of the duchy of  Cornwall for diverse cause although this very case have be long since as shall  appear in this report judicial adjudge yet have the same of late be call in  question again partly for that the say judgement remain private among the rest  of the king record unknown but to a few partly for that the reason cause of  the judgement be accord to law not express in the record it self give no full  clear satisfaction but principal for that there be no report make publish of  the true cause reason of those resolution judgement to the end that such as  have not any part thereof may hereby be instruct of the true state of the  possession of this duchy by this mean be admonish how they deal with any that  have buy or purchase any of these possession that such as have acquire or get  any of they know that the judgement be give in this case both upon many direct  authority in the point upon plain demonstrative reason the main cause of true  satisfaction may therewith rest satisfy the last but not the least be for that  the most noble excellent prince who be omen nomin numinemagnus the great that  ever be before he have in his first Cause in hoc of the market to say  noble birth get victory I have for some respect report the same in Latin  wherein I have be content potiA to scratch particularly how Latin for that the  word of be which will bear no translation be herein so many so frequent I have  add the report thereof in the vulgar language that the reader may use either  of they at his pleasure there be certain other case now publish by I concern  some of the most abstruse dark difficult point in the law yet very necessary  to be know as in Arthur blackamoor case concern amendment Beechers case of a  retraxit departure in despite of the court of fine and amercement Greisleyes  case of affearing of amercement some other and I have of purpose do these as  plain and clear and therewith as brief as I can for the law be not like to  those thing of nature which shine much bright through crystal or amber then if  they be behold naked nor like to picture that ever delight most when they be  garnish adorn with fresh and lively colour and be much set out grace by  artificial shadow and whether it be in respect of the matter or my year grow  fast on be now in the year of I age or for what other respect soever it be  sure I be I have feel this eight work much more painful then any of the other  have be unto I and yet have almighty God of his great goodness amid my public  employment enable I hereunto and as the naturalist say that there be no kind  of bird or fowl of the wood or of the plain that do not bring somewhat to the  building garnish of the eagle nest some cinnamon and other thing of price and  some juniper and such like of lesser valve every one accord to their quality  power and ability so ought every man accord to his power place and capacity to  bring somewhat not only to the profit and adorn of our deer Conntrey our great  eagle nest but therein also as much as such mean instrument can to express  their inward intention desire to honour the peaceable day of his majesty happy  bless government to all posterity and for that I have be call to this place of  judicature by his majesty exceed grace favour I hold it my duty have observe  many thing concern my profession to publish among other certain case that have  be adjudge andresolved since his majesty reign in his high court of ordinary  justice in this calm and flourish spring time of his majesty justice amount  with those of my former edition in all to and if it shall please God I intend  hereafter to set out a other work whereof I have only collect the material but  not reduce they to such a from as I intend leave if I shall leave it as it be  it may after my death be publish as have be do in the like case before it be  perfect your extraordinary allowance of my former work together with your  continual and earnest desire of other edition have much encourage I to  undertake these pain and if you shall reap in your study such profit thereby  as I from my heart desire and as you from your desire of knowledge do expect  then shall my labour seem light unto I for my expectation shall be satisfy be  vale