[491] In quitting this Book, which treats so largely of Assises, I shall make no apology to the Reader for extracting the following observations from Mr. Reeves’s highly valuable work. “It must be observed of these Assises (for so they are sometimes called by Glanville, but more commonly Recognitions) that they are not all of the same kind; that de morte antecessoris being evidently an original proceeding, independent of any other; the rest (not excepting that de ultimâ presentatione, and that utrum laicum feodum vel ecclesiasticum) being merely for the decision of facts which arose in some original action or proceeding. Thus the writs for summoning Recognitions of the latter kind were simple writs of Summons: they mentioned that a Plea was depending in Court by the king’s writ; and they were granted at the prayer of either party: so that they seemed to be resorted to, by the assent of parties for settling an incidental question, on which they put the dispute between them. On the other hand, the writ de morte antecessoris has all the appearance of an original commencement of a suit. It issued only upon condition the Demandant gave security to prosecute it, Si G. filius T. fecerit te securum de clamore suo prosequendo, tunc summone, and made no mention of a plea depending. Of the same kind was the writ de novâ desseisinâ.” (Reeves’s Hist. Eng. Law, 188.)
[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.”
[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.
[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.
[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.)
[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.)
[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.)
[498] Bracton gives the same reason. (118. b.)
[499] But this the Mirror terms an abuse. (c. 5.)
[500] See Bracton 119. a. Fleta L. 1. c. 21. s. 2.