are willing that you should stand by him, but not that you should act as his counsel. Brian. My lord, he is my relative, but I wish to disprove this, &c., and I desire that it should be well with him; but he will be well advised by me to refuse his common law. And lest I should be at all suspected of strife, I will withdraw. THE JUSTICIAR. Hugh, the presentment is made to us that you carried off, &c., as is set forth; how will you acquit yourself? Hugh. My lord, I pray that I may have counsel, lest I be undone in the King's court for lack of counsel. THE JUSTICIAR. You must know that the king is a party in this case, and prosecutes ex officio; therefore the law in this case does not suffer you to have counsel against the king, who prosecutes ex officio; but if the woman should proceed against you, you might have counsel against her, but not against the king. And therefore we order on the king's behalf that all pleaders of your counsel withdraw. (These were removed.) Hugh, answer. You see the thing charged against you is a very possible thing, and a thing of your own doing; so you can well enough, without any counsel, answer whether you did it or not. Moreover, the law ought to be general, and applicable to all persons; and the law is that the king is a party ex officio, against whom one shall not have counsel; and if, in contradiction to law, we should allow you counsel, and the Jury should give a verdict in your favor (as, please God, they will do), people would say that you were acquitted by reason of the favor of the Justiciars; consequently we do not dare grant your request, nor ought you to make it. Therefore, answer. Hugh. My lord, I am a clerk, and ought not to be required to answer except unto my ordinary. THE JUSTICIAR. Are you a clerk? Hugh. Yes, my lord, for I have been rector of the church of N. Ordinary. We demand him as a clerk. Hugh. He speaks for me. THE JUSTICIAR. We say that you have forfeited your benefit of clergy, inasmuch as you are a bigamist, having married a widow; tell us whether she was a virgin when you married her; and it is as well to know the truth at once as to delay, for we can find out in a moment from a jury. Hugh. My lord, she was a virgin when I married her. THE JUSTICIAR. This should be known at once. And he asked the twelve whether Hugh, &c., who said on their oath that she was a widow when Lord Hugh married her. But note that they were not sworn anew, because they had been sworn before. THE JUSTICIAR. Therefore this court adjudges that you answer as a layman, and agree to those good men of the twelve; for we know that they will not lie to us. Hugh. My lord, I am accused by them; therefore I shall not agree to them. Besides, my lord, I am a knight, and I ought not to be tried except by my peers.1 THE JUSTICIAR. Since you are a knight, we are willing that you be judged by your peers. And knights were named; and he was asked if he wished to propound any challenges against them. Hugh. My lord, I do not agree to them; you shall take whatever inquisition you will ex officio, but I will not agree. THE JUSTICIAR. Lord Hugh, if you will agree to them, God willing, they will find for you if you will only consent to them. But if you will refuse the common law, you will incur the penalty therefor ordained, to wit, one day you shall eat, and the next day you shall drink; and on the day when you drink you shall not eat, and e contra; and you shall eat barley-bread, and not wheaten-bread, and drink water," &c. explaining many reasons why it would not be well to delay at this point, but would be better to agree to these. Hugh. I will agree to my peers, but not to the twelve by whom I am accused; wherefore hear my challenges against them. THE JUSTICIAR. Willingly; let them be read; but if you have anything to say wherefore they ought to be removed, say it with your own voice or in writing. Hugh. My lord, I pray counsel, for I cannot read. THE JUSTICIAR. No, for it is a matter touching our Lord, the King. Hugh. Do you take them and read them. THE JUSTICIAR. No, for they ought to be proposed by your own mouth. Hugh. But I cannot read them. THE JUSTICIAR. How is this, that you would have claimed your benefit of clergy, and cannot read your challenges? (Hugh stood silent in confusion.) Do not be struck dumb, now is the time to talk. (To Lord N. de Leyc.) Will you read Lord Hugh's challenges? Lord N. My lord, if I do, let me have the book which he has in his hands. (After receiving it) My lord, here are written challenges against several; shall I read them aloud? THE JUSTICIAR. No, just read them secretly to the prisoner, for they ought to be offered by his own mouth. And so it was done. And when they had been offered by his own mouth, since they were found true challenges, those against whom they were offered were removed from the inquisition. THE JUSTICIAR. We challenge Lord Hugh of rape of a certain woman, he denies it, and is asked how he will be tried; he says by a good jury; wherefore for good or ill he puts himself upon you; and so 1 Magna Charta (9 H. 3.) c. 29. No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor we will not pass upon him nor condemn him, but by lawful judgement of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right. we enjoin you by virtue of your oath, tell us whether Lord Hugh ravished the aforesaid woman or not. The Twelve. We say that she was ravished by force by Lord Hugh's THE JUSTICIAR. Was the woman unwilling or consenting? The Twelve. Consenting.1 THE JUSTICIAR. Lord Hugh, since they acquit you, we acquit you. FABIAN v. GODFREY. WILTSHIRE EYRE. 1198. [Abbreviatio Placitorum, 17.] FABIAN appealed Godfrey Spileman's son for that he and Roger his son and Humphrey his man wickedly at night burned his dwelling house; and this he offers to prove against him as of his own sight, as' the court of our lord the king shall determine, considering that he is a man over age. And Godfrey defends for himself and his fellows. The jurors being asked, said that they do not believe that Godfrey or any of his fellows did this; and that Fabian is a man who often goes out of his head.2 NORRIS v. BUTTINGHAM. STRAFFORD EYRE. 1198. [1 Rotuli Curia Regis, 205.] THE jurors say that William Norris appealed William de Buttingham and Robert his son for that in the peace of the king, wickedly and in hamsoke they robbed from him six shillings and sixpence of his chattels, and robbed from his possession twenty-four lambs, and broke the doors of his house in his possession, and [robbed from him] chattels to the value of ten shillings; and this he offers to prove by his body as the court shall consider. William and Robert defend all, word by word; and they say that Maurice held of the said William in fee; and at his death William entered into his fee, and Alexander Fitz-Philip hired of him in the fee 1 Credo quod deberet hic quod tamen post defuit.-REP. * For cases on the modern law of Arson, see Chap. XVIII. — ED. a pasture for twenty-five sheep. And afterwards this William Norris came to that fee and carried away the lambs and put them in another fee and detained them; so that the said William de Buttingham and Robert his son went to William Fitz-Gerard, serjeant of the hundred. and through him regained possession of the sheep by replevin. And the serjeant testified to this fact. And the whole county testify that men are thus appealed according to their custom. It is considered that the appeal against them is null. Judgment: William Norris is amerced for a false appeal, and William and Robert are acquitted.1 REX v. HUGH. [Abbreviatio Placitorum, 19.] ROBERT DE LUCY was robbed by Hugh Brien's brother and Nicholas Fitz-priest and Elias a relative of Brien's wife, and many others whom the jurors [are unable?] to enumerate, in time of war; and the robbers have not come to the peace of our lord the king. And Brien is outlawed. And Hugh his brother and Nicholas Fitz-priest and Elias the relative of Brien's wife are to be sought through the county; and unless they appear let them be judged by law of the county.2 LUKE DE BROCHESHEVET v. WALTER DE MAREN. [1 Rotuli Curiæ Regis, 160.] THE jurors say that Luke of Brocheshevit appealed Walter of Maren and Godfrey Trenchevent of the theft of a cow. Walter was essoined as beyond sea. And Godfrey does not come. His pledge was William of Maren; so he is in mercy. They say likewise that the said Luke appealed the said Walter for that in the peace of the king, and in felony he stole his wife Felicia and his seal and his chattels to the value of one hundred shillings; and this he offers to prove as the court shall consider. It is to await the coming of the justices." 1 For cases on the modern law of Burglary, see Chap. XVIII. — ED. HUGH OF RUPERES v. JOHN OF ASHBY. LINCOLNSHIRE EYRE. 1202. [1 Selden Soc. 14.] HUGH of Ruperes appeals John of Ashby for that he in the king's peace and wickedly came into his meadows and depastured them with his cattle, and this he offers, etc. And John comes and defends all of it. And whereas it was testified by the sheriff and the coroners, that in the first instance [Hugh] had appealed John of depasturing his meadows and of beating his men, and now wishes to pursue his appeal not as regards his men, but only as regards his meadows, and whereas an appeal for depasturing meadows does not appertain to the crown of our lord the king, it is considered that the appeal is null, and so let Hugh be in mercy and John be quit. Hugh is in custody, for he cannot find pledges. SECTION II. Misdemeanors. REX v. COOK. MIDDLESEX SESSIONS. 1696. [Reported Comberbach, 382.] UPON an indictment setting forth that Sir John Friend and Sir William Perkins being attainted and about to be executed at Tyburn for high treason, etc., the defendants, conspiring and intending (as much as in them lay) to justify, or at least to extenuate and lessen their crimes, and to induce his majesty's subjects to believe that they died rather as martyrs than as traitors, and to incite the king's subjects to commit the like treasons, they did take upon them to absolve, and did pronounce a form of absolution of them, the said Sir William Perkins and Sir John Friend, without any repentance, or any signs of repentance by them given. It was proved that the defendants asked the criminals the several questions directed by the rubrick in the office of visitation of the sick, and Mr. Cook pronounced the words of absolution of one of the traitors, Mr. Snatt and one Mr. Collier (who is not now indicted) laying their hands upon his head, and after the words pronounced saying Amen; and Mr. Collier pronounced the words as to the other traitors, they all three laying on their hands, etc. It was proved that the defendants were earnestly requested by Sir William Perkins and Sir John Friend to assist them at the place of |