De republica Anglorum The maner of gouernement or policie of the realme of England, compiled by the honorable man Thomas Smyth, Doctor of the ciuil lawes, knight, and principall secretarie vnto the two most worthie princes, King Edwarde the sixt, and Queene Elizabeth. Seene and allowed.

VVhat remedie is, if the sentence be thought vniustly giuen. CHAP. 2.

IN causes ciuil there is another order: for if after the matter be pleaded to the issue, and the xij men there∣upon impaneled, the euidence brought and pleaded before them on both the parties, the xij séeme to be parciall, and to haue giuen sentence contrarie to the euidence shewed vnto them: the partie gréeued may bring against them, and the partie for whome the sen∣tence is giuen, a writ of attaint: and where as before vpon the first quest commonly they all be yeomen, now vppon this attaint must go xxiiij gentlemen dwelling within the shire, and xij at the least of the hundreth where the lande lyeth. The matter is pleaded againe before the same Iudges. The partie defendant is not onely nowe he, who claimeth the lande, but also all

and euery of the yeomen, who by their verdict did giue it him. There must in the attaint no more euidence be brought in, but onely that which was brought in, and alledged before the first enquest. And if this se∣conde enquest of xxiiij gentlemen do adiudge as the first did, the plaintife shall not onely lose the land, but also paie a fine to the Prince and damages to the par∣tie. If this seconde enquest do finde that the first en∣quest hath gone parcially, and against the euidence brought in before them, the first enquest is called at∣tainted, and accounted as periured and infamed. The Prince had before the waste of all their lands and pos∣sessions with other punishments, which at this present by a lawe made by parliament in the time of king Henrie the eight is abolished, and nowe by that law or act of parliament, beside other punishment, eche of the quest attainted payeth vnto the Prince and partie v. li. if it be vnder fourtie poundes: and if aboue, then xx. li. Attaints be verie seldome put in vse, partly because the gentlemen will not méete to slaunder and deface the honest yeomen their neighbours: so that of a long time, they had rather paie a mean fine than to appeare and make the enquest. And in the meane time they will intreat so much as in them lyeth the parties to come to some composition and agréement among them selues, as lightly they do, except either the corruption of the enquest be too euident, or the one partie is too ob∣stinate and headstrong. And if the gentlemen do ap∣peare, gladlyer they will confirme the first sentence, for the causes which I haue saide, than go against it. But if the corruption be too much euident, they will not sticke to attaint the first enquest: yet after the gentle∣men haue attainted the yeomen, if before the sentence be giuen by the Iudge (which ordinarily for a time is differred) the parties be agréed, or one of them be dead, the attaint ceaseth.

If at anie time before the sentence be giuen or put in execution, there be found some such errour in the writ, in the proces, or forme (as our lawyers be verie precise and curious of their formes) that it may be re∣uocable, it is brought afresh to the disputation by a writ of errour, and all that is doone reuersed. But that is common to all other countries, where the ciuill law is vsed, which they call de nullitate processus, and serueth both in Englande and in other places aswell in causes criminall, as ciuill. Other kinde of appellation to re∣uoke processes, and to make them of short, long, of long, infinite, which is vsed by the ciuill lawe, we haue not in our common lawe of Englande. By supplicati∣on to the Prince and complaint to the Chauncellor vp∣on supposall of losse or lacke of euidence, or too much fa∣uour in the countrey, and power of the aduersarie, there is in our countrey as well as theirs both stop∣ping and prolongation of Iustice. For what will not busie heades and louers of trouble neuer being satisfied inuent in any countrey to haue their desire, which is to vex their neighbours, and to liue alwaies in disqui∣et? Men euen permitted of God like flies, and lise, and other vermine to disquiet them, who would imploie themselues vpon better businesse and more necessarie for the common wealth: these men are hated, and feared of their neighbours, loued and aided of them which gaine by proces, and waxe fatte by the expence & trouble of other. But as these men ordinarily spende their owne thrift, and make others against their wils to spende theirs: so sometime being throughly knowen, they do not onely liue by the losse like euill husbandes, but beside rebuke & shame, by the equitie of the Prince and courtes soueraigne, they come to be extraordina∣rily punished, both corporally, & by their purse, which thing in my minde is as royall and princely an act, and so beneficiall to the commonwealth, as in so small a

matter a King or a Quéene can doe, for the repose and good education of their subiectes.

Notes

• No more eui∣dence on the behalfe of the plaintife, but of the defen∣dant there may.
• The statute of 23. Henrie 8. doth not abo∣lish com∣mon lawe, but giueth a more profitable for the plaintife.