who at any time sithence the first day of this present parlament or at any time hereafter shall depart the Realme or begin to keepe his or her house or houses or otherwise to absent him or her selfe or take sanctuarie or suffer him or her selfe willingly to be arrested for any debt or other thing not growne or due for mony deliuered wares sould or any other iust or lawful cause or good consideration or purposes or hath or will suffer him or her selfe to be outlawed or yeld him or her selfe to prison or willingly or fraudulently hath or shall procure him or her selfe to be arrested or his or her goods money or chatels to be attached or sequestred or depart from his or her dwelling house or make or cause to be made any fraudulent graūt or conueyance of his her or their lands tenements goods or chatels to the intent or whereby his her or their creditours being subiects borne as aforesaide shall or may be defeated or delayed forthe recouery of their iust and true dept or being arrested for debt shall after his other arrest lye in prison fixe monethes or more vpon that arrest or any other arrest or detention in prison for debt and lye in prison sixe monethes vpon such arrest or detention shall be accompted and adiudged a bankrupt to all intents and purposes Banishment exilium abiuratio commeth of the French bannissement and hath a signification knowne to euery man But there be two kinds of banishments in England one voluntarie and vpō oath whereof you may reade Abiuration the other vpon cōpulsion for some offence of crime as if a lay-man succor him that hauing taken sanctuarie for an offence obstinately refuseth to abiure the realme he shall loose his life and member if a Clerke do so he shall be banished Stawnf pl. cor fol. 117. This punishment is also of our moderne Civilians called bannimētum which was aunciently tearmed deportatio if it were perpetuall or relegatio in insulam if for a time Vincentius de Franchis Petrus de Belluga in suo speculo fol. 125. num 4. Barbaries Oxyeantha is a thornie shrub knowne to most men to beare a bery or fruite of a sharpe taste These beries as also the leaues of the said tree be medicinable as Gerara in his herball sheweth lib. 3. cap. 21. You find them mentioned among drugs to be garbled anno 1. Iacob cap. 19. Bard aliâs Beard See Clack Bargaine and sale as it seemeth by West part 1. symb lib. 2. sect 436. is properly a contract made of maners lands tenements hereditaments and other things transferring the propertie thereof from the bargainer to the barganee But the author of the new termes of lawe addeth that it ought to be for money saying farder that this is a good contract for land c. and that fee-simple passeth thereby though it be not said in the deed To haue and to hold the land to him and to his heyres and though there be no liuerie and seisin made by the seller so it be by deed indented sealed and enrolled either in the Countie where the land lyeth or within one of the kings courts of Records at Westminster within sixe moneths after the date of the deed indented anno 27. H. 8. cap. 16. Barkarie Barkaria is a heath house New booke of Entries titulo Assise corp polit 2. Some call it a Tanne house Baron Baro is a French word and hath diuers significations here in England First it is taken for a degree of Nobilitie next vnto a Vicount Bracton lib. 1. cap. 8. num 4. where he saith they be called Barones quasi robur belli And in this signification it is borowed from other nations with whom Baroniae be as much as Prouinciae Petrus Belluga in speculo princip fol. 119. So Barones be such as haue the gouernment of Prouinces as their fee holden of the king some hauing greater some lesser authoritie within their territories as appeareth by Vincentius de Franchis in diuers of his desceisions and others Yet it may probably be thought that of old times here in England all they were called Barons that had such Seigniories as we now call court-barons as they be at this day called Seigneurs in France that haue any such manor or lordship Yea I haue heard by men very learned in our Antiquities that neere after the conquest all such came to the Parlament and sate as Nobles in the vpper house But when by experience it appeared that the Parlament was too much pestered with such multitudes it grew to a custome that none shold come but such as the king for their extraordinarie wisedome or qualitie thought good to call by writ which writ ranne hac vice tantùm After that againe men seeing this estate of Nobilitie to be but casuall and to depend meerly vpon the Princes pleasure they sought a more certain hold and obtained of the King leters patents of this dignitie to them and their heyres male And these were called Barons by leters patents or by creation whose posterity be now by inheritance and true descent of Nobilitie those Barons that be called Lords of the Parlament of which kind the king may create more at his pleasure It is thought neuerthelesse that there are yet Barons by writ as wel as Barons by leters patents and that they may be discerned by their titles because the Barons by writ are those that to the title of Lord haue their owne surnames annexed as Compton North Norice c. whereas the Barons by leters patents are named by their Baronies These Barons which were first by writ may now iustly also be called Barons by prescription for that they haue continued Barons in themselues and their auncestors time beyond the memorie of man The originall of Barons by writ Master Camden in his Britannia pag. 109. in meo referreth to Henry the third Barons by leters patents or creation as I haue heard among our Antiquaries were first created about the dayes of Henry the sixth the maner of whose creation reade in Master Stowes Annales pag. 1121. Of all these you may also reade Master Ferui glorie of Generositie pa. 125 126. And see M. Skene de ver signif verb. Baro. with Sir Thomas Smith lib. 1. de rep Anglor cap. 17. who saith that none in England is created Baron except he can dispend a thousand pound by yeare or a thousand markes at the least To these former Master Seager by office Norrey lib. 4. cap. 13. of Honour ciuill and militarie addeth athird kind of Baron calling them barons by tenure and those be the Bishops of the land all which by vertue of baronries annexed to their bishoprickes haue alwaies had place in the vpper house of Parlament and are tearmed by the name of Lords spirituall Baron in the next significatiō is an Officer as barons of the Exchequer be to the king of which the principall is called Lord chiefe Baron capitalis Baro and the three other for so many there be are
giuen to matrimonie Fourthly at 14. yeares she is enabled to receiue her land into her owne hands and shall be out of ward if she be of this age at the death of her ancestor Fiftly at sixteene yeares she shal be out of ward though at the death of her auncestor she was within the age of fourteen yeres The reason is because then she may take a husband able to performe Knights seruice Sixtly at 21. yeares she is able to alienate her lands and tenements Instit iure com cap. 24. Touching this mater take further these notes perspicuously gathered At the age of 14. yeares a striplin is enabled to chuse his owne guardian and to claime his land holden in socage Dyer fol. 162. which Bracton limiteth at fifteene yeares li. 2. cap. 37. num 2. with whom Glanvile also agreeth lib. 7. cap. 9. And at the age of fourteene yeares a man may consent to mariage as a woman at 12. Bracton vbi supra At the age of fifteene yeres a man ought to be sworne to keepe the kings peace anno 34. Edw. 1. Stat. 3. The age of 21. yeares compelleth a man to be knight that hath twentie pounds land per annum in fee or for tearme of life anno 1. Edw. 2. stat 1. and also enableth him to contract and to deale by himself in all lawfull causes appertaining vnto his estate Which vntill that time he cannot with the security of those that deale with him This the Lombords settle at 18. yeares as appeareth by Hotomans disputations in libros feudorum l. 2. c. 53. ver decimo octauo anno which power the Romans permitted not vsque ad plenam maturitatem and that they limited at 25. yeares lib. 1. in fine Î . de maior 25. an l. fin Co. de Legit tut in principio titulo de curat in Institut The age of twelue yeares bindeth to appearance before the Sheriffe and Coroner for enquirie after roberies an 52. H. 3. cap. 24. The age of 14. yeares enableth to enter an order of religion without consent of parents c. anno 4. H. 4. cap. 17. Age prier aetatem precari or aetatis precatio is a petition made in count by one in his minoritie hauing an actioÌ„ brought against him for lands coming to him by discent that the action may rest vntill he come to his full age which the Court in most cases ought to yeeld vnto This is otherwise in the ciuill lawe which inforceth children in their minoritie to answer by their tutors or curatours Î . de minor 25. an Agenhine See Haghenhine Agist agistare seemeth to come of the French gift 1. iacet hauing gasir in the Infinitiue moode whence commeth the nowne gisme a lying in child-bed or rather of gister i. stabulari a word proper to a Deare cùm sub mensem Maium è locis abditis in quibus delituit emigrans in loco delecto stabulari incipit vnde commoda propinqua sit pabulatio Budaeus in posteriori libro philologiae Where also he saith that giste est idem quod lustrum vel cubile Or it may be probably deduced from the Saxon word Gast 1. hospes It signifieth in our common lawe to take in and feede the â—â—tell of straungers in the kings forest and to gather the money due for the same to the kings vse Charta da Foresta an 9. H. 3. cap. 9. The Officers that do this are called agistors in English Guest-takers eodem cap. 8. Cromptons iurisdic fol. 146. These are made by the kings leters patents vnder the great seale of England of whom the King hath foure in number within euery forest where he hath any pawnage called agistors or Gist-takers And their office consisteth in these foure points in agist ando recipiendo imbreviando certificando Manwood parte prima Of Forest lawes p. 336. 337. whome you may reade more at large Their function is tearmed Agistment as agistment vpon the sea banks anno 6. H. 6. cap. 5. Agreement agreamentum i. aggregatio mentium is the assent or coÌ„cord of more to one thing this by the author of the newe tearmes of lawe is either executed or executory which you may read more at large in him exempified by cases Ayde auxilium is all one in signification with the French aide and differeth in nothing but the onely pronunacitioÌ„ if we take it as it is vsed in our vulgar language But in the common lawe it is applied to divers particular significations as sometime to a subsidie anno 14. Ed. 3. stat 2. ca. 1. sometime to a prestation due from tenents to their Lords as toward the releife due to the Lord Paramount Glanvile li. 9. cap. 8. or for the making of his sonne knight or the marying of his daugnter idem eodem This the King or other Lord by the auncient lawe of England might lay vpon their tenents for the knighting of his eldest sonne at the age of 15. yeares or the mariage of his daughter at the age of seuen yeares Regist orig fol. 87. a. and that at what rate them selues listed But the Statute Westmin 1. anno 3. Edw. 1. ordained a restraint for to large a demand made by common persons being Lords in this case and tyed them to a certaine rate And the Statute made anno 25. Ed. 3. stat 5. cap. 11. prouideth that the rate set downe by the former Statute should hold in the King as well as in other Lords Of this I find mention in the Statute an 27. H. 8. ca. 10. This imposition seemeth to haue descended to vs from Normandie for in the grand custumarie cap. 35. you haue a Tractate intituled des aides chevelz 1. de auxilys capitalibus whereof the first is a faire l'aynè filz de son seigneur chevalier i. ad filium primogenitum militem faciendum the second son ainee fille marier i. ad filiam primogenitam maritandam And the third a rechapter le corps de son seigneur de prison quand il est prius per la guerre an Duc. i. ad corpus dominisui de prisona redimendum cùm captus fuerit pro bello Ducis Normandiae Also I find in Cassanaeus de coÌ„suet Burg. Quòd dominus accipit à subditis pro dotanda filia pa. 122. which seemeth to be all one with this our imposition and also in Vincentius de Franchis descis 131. where he calleth it adiutorium pro maritanda filia Whence it appeareth that this custome is within the kingdome of Naples also Touching this likewise you may reade these words in Maenochius lib. 2. de arbitrat Iud. quast centuria 2. cap. 181. Habent saepissimè feudorum possessores Domini multa in carum ditionibus privilegia multasque cum locorum incolis connentiones inter quas illa vna solet nominari vt possit Dominus collectam illis indicere pro solutione dotium suarum filiarum cura matrimonio collocantur Hoc aliquando Romae observarum à Caligulafuisse in illius vita
Bracton lib. 2. cap. 16. num 3. and Britton cap. 39. For hee pardoneth life and limme to offendours against his crowne and dignitie except such as he bindeth himself by oath not to forgiue Stawnf pl. cor lib. 2. cap. 35. And Habet omnia iura in manu sua Bracton lib. 2. cap. 24. num prim And though at his coronation he take an oath not to alter the lawes of the land Yet this oath notwithstanding hee may alter or suspend any particular lawe that seemeth hurtfull to the publike estate Blackwood in Apologia Regum c. 11. See Oath of the king Thus much in short because I haue heard some to be of opiniō that the lawes be aboue the king But the kings oath of old you may see in Bracton lib. 3. cap. 9. nu 2. for the which looke in Oath of the King The kings oath in English you may see in the old abridgement of Statutes titulo Sacram. Regis Fourthly the kings only testimonie of any thing done in his presence is of as high nature and credit as any Record Whence it cōmeth that in all writs or precepts sent out for the dispatch of Iustice he vseth none other witnesse but himselfe alwaies vsing these words vnder it Teste me ipso Lastly he hath in the right of his crowne many prerogatiues aboue any common person be he neuer so potent or honourable whereof you may reade your fill in Stawnf tractate vpon the Statute thereof made anno 17. Ed. 2. though that containe not all by a great number What the kings power is reade in Bracton lib. 2. cap. 24. nu prim 2. King of Heradls Rex Heraldorū is an officer at Armes that hath the preeminence of this Society See Herald This officer of the Romans was called Pater Patratus Kings Bench Bancus Regius is the Court or Iudgment seate where the Kinge of England was wont to sitte in his owne person and therefore was it moueable with the court or kings Houshould And called Curia domini Regis or Aula Regia as M. Gwine reporteth in the preface to his readings and that in that and the Exchequer which were the only courts of the king vntill Henry the thirds daies were handled all maters of Iustice as well Ciuill as Criminall whereas the court of common plees might not be so by the statute anno 9. H. 3. cap. 11. or rather by M. Gwins opinion was presently vpon the graunt of the great charter seuerally erected This court of the Kings bench was wont in auncient times to be especially exercised in all Criminall maters plees of the crowne leauing the handling of priuate contracts to the cownty court Glanuil lib. 1. cap. 2. 3. 4. li. 10. cap. 18. Smith de Repub Anglicana lib. 2. cap. 11. and hath president of it the Lord Cheife Iustice of England with three or foure Iustices assistaunts four or fiue as Fortescu saith cap. 51. and officers thereunto belonging the clearke of the crowne a Praenatory or Protonotari and other sixe inferior ministers or Atturnies Camd Britan pag. 112. See Latitat How long this court was moueable I finde not in any wrighter But in Brittons time who wrot In K. Ed the 1. his daies it appeareth it followed the court as M. Gwin in his said preface wel obseruethout of him See Iustice of the Kings Bench. Kings siluer is properly that mony which is due to the king in the court of common plees in respect of a licence there graunted to any man for passing a fine Coke vol. 6. fo 39. a. 43. b. Kintall of woad iron c. is a certaine waight of merchandize to the valew of a hundred or something vnder or ouer according to the diuers vses of sundry nations This word is mentioned by Plowden in the case of Reniger and Fagossa Knaue is vsed for a man seruant a. 14. Ed. 3. stat 1. ca. 3. And by M. Verstigans iudgemēt in his Restitutiō of decaied intelligence ca. 10. it is borowed of the dutch cnapa cnaue or knaue which signifie all one thing and that is some kinde of officer or seruant as scild-cnapa was he that bore the weapon or shield of his superior whom the latines call armigerum and the French men escuyer Knight Miles is almost one with the Saxon Cnight i. Administer and by M. Camdens iudgment pag. 110. deriued from the same with vs it signifieth a gentleman or one that beareth Armes that for his vertue and especially Martiall prowes is by the King or one hauing the Kings authority singled as it were from the ordinary sort of gentlemen and raised to a higher accompt or steppe of dignity This among all other nations hath his name from the Horse Because they were wont in auncient time to serue in warrs one horsbacke The Romans called them Equites the Italians at these daies terme them Cauallieri The French men Cheualliers The German Reiters The Spaniard Caualleros or Varoncs a Cauallo It appeareth by the statute anno 1. Ed. 2. cap. 1. that in auncient times gentlemen hauing a full knights fee and houlding their land by knights seruice of the king or other great person might be vrged by distresse to procure himselfe to be made knight when he came to mans estate for the answerable seruice of his Lorde in the Kings warres To which point you may also reade M. Camden in his Britannia pag. 111 But these customes be not nowe much vrged this dignity in these dayes being rather of fauour bestowed by the Prince vpon the worthier sort of gentlemen then vrged by constraint The maner of making knights for the dignitie is not hereditarie M. Camden in his Britan. pag. 111. shortly expresseth in these words Nostris verò temporibus qui Equestrem dignitatem suscipit flexis genibus educto gladio leuiter in humero percutitur Princeps his verbis Gallicè affatur Sus vel sois Cheualier au nom de Dieu id est Surge aut Sis Eques in nomine Dei The solemnitie of making Knights among the Saxons M. Stow mentioneth in his Annals pag. 159. See the priuiledges belonging to a knight in Fernes Glorie of Generositie pag. 116. Of these knights there be two sorts one spirituall another temporall Cassanaeus in gloria mundi parte 9. Considerat 2. of both those sorts and of many subdiuisions reade him in that whole part The temporall or second sort of knights M. Ferne in his Glorie of generositie pag. 103. maketh threefold here with vs. Knights of the sword Knights of the Bath and Knights of the soueraigne Order that is of the Garter of all which you may reade what he saith I must remember that mine intent is but to explain the termes especially of our common lawe Wherefore such as I find mentioned in Statutes I will define as I can M Skene de verb. significat verbo Milites saith that in the auncient lawes of Scotland Freeholders were called Milites Which may seem to haue bene a custome with vs
anno 1. Iac. cap. 33. conteineth 12. dozen of hides or skins Latitat is the name of a writ whereby all men in personall actions are called originally to the Kings bench Fitz. nat br fo 78. M. And it hath the name from this because in respect of their beter expedition a man is supposed to lurke and therefore being serued with this writ he must put in securitie for his appearance at the day for latitare est se malitiosè occultare animo fraudandi creditores suos agere volentes l. Fulcinius § Quid sit latitare 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Quibus ex causis in possessionem eatur But to vnderstand the true original of this writ it is to be knowne that in auncient time whilest the kings bench was moueable and followed the court of the King the custome was when any man was to be siewed to send forth a writ to the Shyreeue of the county where the Court lay for the calling him in and if the Shyreeue returned non est inventus in baliva nostra c. then was there a second writ procured foorth that had these words testatum est eum latitare c. and thereby the Shyreeue willed to attach him in any other place where he might be found Now when the tribunall of the Kings bench came to be setled at Westminster the former course of writ was kept for a long time first sending to the Shyreeue of Midlesex to summon the party and if he could not be found there then next to apprehend him wheresoeuer But this seeming too troublesome for the subiect it was at last deuised to put both these writs into one and so originally to attache the party complained of vpon a supposall or fiction that he was not within the county of Middlesex but lurking else where and that therefore he was to be apprehended in any place else where he was presumed to lye hidden by a writ directed to the Shyreeue of the county where he is suspected to be and by this writ a man being brought in is committed to the Marshall of that court in whose custodie when he is then by reason he is in the same countie where the Kings bench is he may be siewed vpon an action in that court whereas the original cause of apprehending him must be a pretence of some deceit or contempt committed which most properly of old belonged to the cognizance of that court I haue bene enformed that the bringing of these actions of trespas so ordinarily to the kings bench was an inuention of Councelers that because onely Sergeants may come to the common plees barre found a meanes to set themselues on worke in that court The forme of this writ is such Iacobus Dei gratia Angliae Francis Scotiae Hiberniae Rex fidei defensor c. Vicecomiti Cantabrigiae salutem Cum Vicecomitinostro Midlesexiae nuper praeceperimus quod caperet Thomam T. Wilielmum W. si inuenti fuissent in balliua sua eos saluo custodiret ita quòd haberet corpora eorum coram nobis apud Westminster die veneris proximo post octavas Sanctae Trinitatis ad respondendum Roberto R. de placito trangressionis cumque vicecomes noster Midlesexiae ad diem illum nobis returnauerit quod praedicti Thomas T. Wilielmus W. non sunt inuenti in balliua sua super quo ex part praedicti Roberti in curia nostra coram nobis sufficienter testatum est quòd praedicti Thomas Wilielmus latitant discurrunt in comitatu tuo Idcirco tibipraecipimus quòd capias eos si inveÌ„tifuerint in balliua tua eos salvo custodias it a quod habeas corpora eorum coram nobis apud Westminster die Martis proximo post tres septimanas eodem Trinitatis ad respondendum praefato Roberto deplacito praedicto habeas ibi tunc hoc breve Teste Iohanne Pâ—pham apud Westminster Roper Launcegay anno 7. Rich. secundi cap. 13. Law lex cometh of the Saxon lah the generall significatioÌ„ is plaine only this I thought to note that the law of this land hath beene variable For first Dunwallo Mulmutius otherwise Molincius a Brittaine that being Duke of Cornwall reduced the whole land formerly seuered by ciuile wars into the state of a Monarchy made certaine wholsome lawes which long after were called Mulmutius lawes and by Gyldas translated out of the Bryttish tongue into latine Stow in his Annals pag. 16. Of these there remaine yet certaine heads recorded by our historiographers as followeth 1. vt Deorum templa ciuitates hominum consequantur tantam dignitatem ne quis illò confugiens extrahipossit antequà m ab eo quem laeserat veniam impetraverit 2. vt huiusmods privilegium immunitatis habeant etiam ipsae viae quae ducunt ad templa ad vrbes 3. Imo iumenta quoque illa quae res rusticae subueniunt 4. Denique colonorum aratra ipsa tali praerogativa libertatis perfruantur 5. Hoc amplius vt ne quaterra vacaret culturâ neve populus inopia reifrumentariae premeretur aut ea minueretur si pecora sola occuparent agros qui ab hominibus coli dobent 6. Constituit quot aratra quaelibet dioece sis haberet ac poenam statuit iis per quos ille numerus aratrorum foret diminutus 7. Item vetuit bovem aratorâ—m pro debito pecuniae assignari debitoribus si alia bonae debitoris essent Ita fore ne compendii causa homines pecuarii agros incultos redderent sic etiam fore ne quid carum rerum quas natura praebet hominibus vsquam deesse posset Rich. Vitus historiarum Britanniae li. 3. nu 1. And of these lawes we finde no obscure remanets in our lawes now in vse See Magna charta ca. 1 câ— 14. See Sanctuary See Peace Then was there a lawe called Merchenlage whereby the Mercians were gouerned being a kingdome in the heart of the land conteining those countries that be nowe called Northampton shire Leycester shire Rutland shire Lincolne shire Nottingham shire and Derby shire Camd. Britan. pag. 94. whose power was great in the Heptarchy of the Saxons vntill at the last they were conquered by the west Saxons and made subiect to them Polydor. in Angl. Hist lib. 5. But whereas the name of these lawes sauoureth of the Saxons time it is reported by others that Martia a very learned Queene and wife to Quintelinus a Britton king was the author of them long before the Saxons set foote in England Rich. Vitus histo Britan. li. 3. nu 14. who also saith that Alphred the Saxon King translated both these and also those of Mulmutius into the English or Saxon tongue Thirdly there was the lawe of the west Saxons called west Saxenlage and the lawe of the Danes when they set foote into the Realme called Denelage And of these lawes Edward made one lawe as some write whereby he ruled his kingdome But M. Camd. vbi supra speaking nothing of
Princes especially purposed But of this reade Sir Thomas Smith lib. 3. de Rep. Angl. cap. 9. Some later statutes doe cast this punishment vpon other offenders as namely the statute anno 1. El. cap. primo vpon him that denieth the Kings supremacie the second time c. and the statue anno 13. El. ca. 2. vpon him that affirmeth the authoritie of the Pope or that refuseth to take the oathe of supremacie and the statute anno 13. El. cap. 1. fuch as be seditious talkers of the inheritance of the Crowne or affirme the Queenes Maiestie to be an heritique And the word is applied most commonly to the punishment first ordeined by the statutes before mentioned for such as transgressed them but in later times imposed vpon other offences for that where it is saide that any man for an offence committed shall incurre a premunire it is meant that he shall incurre the same punishment which is inflicted against those that trangresse the statute made anno 16. R. 2. ca. 5. which is commonly called the statute of premunire which kinde of reference is not vnusuall in our statutes Cor example I shew onely the statute anno 5. El. ca. 5. where it is inacted that if any man preach or teach by wrighting that the cōmon Counsell of the Realme doe by that statute forbid flesh to be eaten as of necessitie for the sauing of mans soule that he shall for such preaching c. be punished as they be which be spredders of false newes hauing reference thereby to those statutes which conteine the punishment of such offenders Now touching the Etymologie of this word Praemunire some thinke it proceedeth from the strength giuen to the Crown by the former statutes against the vsurpation of forein and vnnaturall power which opinion may receiue some ground from the statute anno 25. Ed. 3. stat 6. cap. pri But other thinke it to grow from the verb Praemonere being barbarously turned into Praemunire which corruption is taken from the rude Interpreters of the Ciuile and Canon lawes who indeede doe vse the effect Praemunire many times for the efficient cause Praemonere according to our prouerb He that is well warned is halfe armed And of this I gather reason from the forme of the writ which is thus conceiued in the old nat br fol. 143. Praemunire facias praefatum praepositum I. R. procuratorem c. quod tune sint coram nobis c. for these words can be referred to none but parties charged with the offence Praepositus villae is vsed sometime for the Constable of a town or petit Constable Cromptons Iurisdict fol. 205. how be it the same author fol. 194. seemeth to apply it otherwise for there quatuor homines praepositi be those 4. men that for euery towne must appeare before the Iustices of the Forest in their Circuit It is vsed sometime for a Reeve See Reeve Praerogatiue of the King praeregatiua regis is that especiall power preeminence or priuiledge that the King hath in any kinde ouer and aboue other persons and aboue the ordinarie course of the common lawe in the right of his crowne And this word Praerogatiua is vsed by the Ciuilians in the same sense l. Rescriptum 6. § 4. Π. de hono muner But that priviledge that the Roman Emperour had aboue common persons they for the most part comprised sub iurefisci Π. de iure fisct per totum tit Co. li. 10. tit 1. Among the Feudists this is termed ius regalium ius regaliorum vel a nonnullis ius regaliarum But as the Feudists sub iure regalium soe our lawyers sub praerogatiua regis doe comprise also all that absolute heighth of power that the Ciuilians call maiestatem vel potestatem vel ius imperii subiect only to god which regalia the Feudists diuide into two sorts maiora sc minora regalia for to vse their owne words Quaedam regalia dignitatem praerogatiuam imperii praeemmentiam spectant quaedam verò ad vtilitatem commodum pecuniarium immediatè attinent haec proprièfiscalia sunt ad ius fisci pertinent Peregri de iure fisci li. pri cap. 1. nu 9. See also Arnoldus Clapmarius de arcanis Imperii lib. pri cap. 11. seqq who seemeth to make difference betwene maiestatem ius regaliorū Others also make those maiora regalia that appertaine to the dignitie of the prince and those minora which inrich his cofers Regnerus Sixtinus de iure rega cap. 2. By this it appeareth that the statute of the Kings prerogatue made an 17. Ed. 2. conteineth not the summe of the Kings whole prerogatiue but onely so much thereof as concernes the profit of his cofers growing by vertue of his regall power and crowne for it is more then manifest that his prerogatiue reacheth much farder yea euen in the maters of his profit which that statute especially consisteth of For example it is the kings prerogatiue to graunt protection vnto his debtours against other creditours vntill himselfe be satisfied Fitzh nat br fol. 28. B. to distreine for the whole rent vpon one tenent that hath not the whole land Idem fol. 235. A. to require the auncesters debt of the heire though not especially bound Brit. cap. 28. fo 65. b. to seise vpon money paid by his deptour into a court for the satisfaction of an executor Plowden fol. 322. a. to permit his deptours to siew for their debts by a Quo minus in the exchequer Perkins Grawnts 5. to be first paid by one that oweth money both to him and others Dyer fol. 67. nu 20. to take the lands of accountants into his hands for his own satisfaction Plowd casu Almes fol. 321. 322. to take his action of accoumpt against executors eodem fol. 320. not to be tied to the demaund of his rent Coke li. 4. fo 73. a. Now for those regalities which are of the higher nature all being within the compas of his prerogatiue and iustly to be comprised vnder that title there is not one that belonged to the most absolute prince in the world which doth not also belong to our king except the custome of the nations so differ as indeede they doe that one thing be in the one accompted a regalitie that in another is none Onely by the custome of this kingdome he maketh no lawes without the consent of the 3. estates though he may quash any lawe concluded of by them And whether his power of making lawes be restreined de necessitate or of a godly and commendable policy not to be altered without great perill I leaue to the iudgement of wisermen But I hold it incontrowlable that the king of England is an absolute king And all learned politicians doe range the power of making lawes inter insignia summae absolutae potestatis Maiora autem regalia sunt haec clausula plenitudinis potestatis ex ea aliquid statuere leges condere ac eas omnibus singulis
Bartolus in his Tractate De insigniis armis vseth these very wordes prioritas and posterioritas concerning two that beare one coate armor Prisage seemeth to be that custome or share that belongeth to the King out of such merchandize as are taken at sea by way of lawfull prize anno 31 Eliz. cap. 5. Prisage of Wines anno I. H. 8. cap. 5. is a word almost out of vse now called Butlerage it is a custome wherby the prince chalengeth out of euery barke loaden with wine containing lesse then forty tunne two tunne of wine at his price Prise prisa commeth of the French prendre i. capere it signifieth in our Statutes the things taken by pourveyours of the Kings subiects As anno 3. Ed. 1. cap. 7. anno 28. eiusdem stat 3. cap. 2. It signifieth also a custome due to the King anno 25. eiusdem cap. 5. Regist origin fol. 117. b. Prisoner priso commeth of the French prisonnier and signifieth a man restrained of his libertie vpon any action ciuill or criminall or vpon commaundement And a man may be prisoner vpon matter of Record or mater of fact prisonervpon mater of Record is he which being present in court is by the court committed to prison only vpon an arrest be it of the Shyrecue Censtable or other Stawnf pl. cor lib. prim cap. 32. fol. 34. 35. Prinie commeth of the French priuè i. familiaris and significth in our common lawe him that is partaker or hath an interest in any action or thing as priuies of bloud old nat br fol. 117. be those that be linked in consanguinitie Eucry heire in tayle is priuy to recouer the land intayled eodem fol. 137. No priuitie was betweene me and the tenent Litleton fol. 106. If I deliuer goods to a man to be caried to such a place and he after he hath brought them thither doth steale them it is felenie because the priuitie of deliuerie is determined as soone as they are brought thither Stawn pl. cor lib. prim cap. 15. fol. 25. Merchants priuie be opposite to merchant straungers anno 2. Ed. tertii cap. 9. cap. 14. ann eiusdem stat 2. cap. 3. The newe Expositour of lawe termes maketh diuers sorts of priuics as priuies in estate priuies in deed priuics in lawe priuies in right and priuies in bloud And see the examples he giueth of euery of them See Perkins Conditions 831. 832. 833. and Sir Edward Cooke lib. 3. Walkers case fol. 23. a. lib. 4. fol. 123. b. 124. a. where he maketh foure kindes of priuies viz. priuies in bloud as the heire to his fathes c. priuies in representation as executours or administratours to the deceased priuies in estate as he in the reuersion and he in the remainder when land is giueÌ„ to one for life and to another in see the rcason is giuen by the Expositour of lawe termes for that their estates are created both at one time The fourth sort of priuies are priuies in tenure as the Lord by escheate that is when the land escheateth to the Lord for want of heires c. Priuie seale priuatum sigillum is a scale that the King vseth some time for a warrant whereby things passed the priuy signet and brought to it are sent farder to be confirmed by the great seale of England sometime for the strength or credit of other things written vpon occasions more transitory and of lesse continuance then those be that passe the great seale Priuiledge priuilegium is defined by Cicero in his oration pro domo sua to be lex priuata homini â—â—ogata Frerotus in paratitlis ad titulum decretalium de priuilegiis thus defineth it priuilegium est ius singulare hoc est priuata lex quae vni homini vel loco vel Collegio similibus aliis concedit ur cap. priuilegia distinct 3. priua enim veteres dixere que nos singula dicimus Insit Agellius lib. 10. ca. 20. Ideoque priuilegia modò beneficia modò personales constitutiones dicuntur c. It is vsed so likewise in our common law and sometime for the place that hath any speciall immunity Kitchin fol. 118. in the words where depters make sained gifts and feofements of their land and goods to their freinds and others and betake themselues to priuiledges c. Priuiledge is either personall or reall a personall priuiledge is that which is graunted to any person either against or beside the course of the common law as for example a person called to be one of the Parlament may not be arrcsted either himselfe or any of his attendance during the time of the Parlament A priuiledge reall is that which is graunted to a place as to the Vniuersities that none of either may be called to Westm hall vpon any contract made within their owne precincts And one toward the court of Chauncery cannot originally be called to any court but to the Chauncery certaine cases excepted If he be he will remoue it by a writ of Priuiledge grounded vpon the statute anno 18. Ed. 3. See the new booke of Entries verbo Priuilege Probat of testaments probatio testamentorum is the producting and insinuating of dead mens wils before the ecclesiasticall Iudge Ordinary of the place where the party dyeth And the ordinary in this case is knowne by the quantity of the goods that the party deceased hath out of the Dioces where he departed For if all his goods be in the same Dioces then the Bishop of the Dioces or the Archdeacon according as their composition or prescription is hath the probate of the Testament if the goods be dispersed in diuers Dioces so that there be any summe of note as fiue pounds ordinarily out of the Dioces where the party let his life then is the Archbishop of Canterbury the ordinary in this case by his prerogatiue For whereas in ould time the will was to be proued in cuery Dioces wherein the party diceased had any goods it was thought conuenient both to the subiect and to the Archiepiscopall See to make one proofe for all before him who was and is of all the generall Ordinary of his prouince But there may be aunciently some composition betweene the Archebishop and an inferiour ordinary whereby the summe that maketh the prerogatiue is abouc fiue pound See praerogatiue of the Archbishop This probate is made in two sorts either in common forme or pertestes The proofe in common forme is onely by the oath of the exceutour or party exhibiting the will who sweareth vpon his credulity that the will by him exhibited is the last will and testament of the party deceised The proofe per testes is when ouer and beside his oath he also produceth witnesses or maketh other proofe to confirme the same and that in the presence of such as may pretend any interest in the goods of the deceased or at the least in their absence after they haue beene lawfully summoned to see such a will proued
high way ouerflowne with water for default of scowring a ditch which he and they whose estate he hath in certain land there haue vsed to scower and cleanse A. may trauerse either the mater viz. that there is no high way there or that the ditch is sufficiently scowred or otherwise he may trauers the cause viz. that he hath not the land c. or that he and they whose estate c. haue not vsed to scoure the ditch Lamb. Eirenarcha lib. 4. cap. 13. pag. 521 522. Of Trauers see a whole chapter in Kitchin fol. 240. See the new booke of Entries verbo Trauers Treason traditio vel proditio commeth of the French trahison i. proditio and signifieth an offence committed against the amplitude and maiestie of the commonwealth West parte 2. symbol titulo Inditements sect 63. by whom it is there diuided into High treason which other call altam proditionem and petit treason High treason he defineth to be an offence done against the securitie of the common wealth or of the Kings most excellent Maiestie whether it be by imagination word or deed as to compasse or imagine treason or the death of the Prince or the Queene his wife or his sonne and heyre apparent or to deflowre the Kings wife or his eldest daughter vnmaried or his eldest sonnes wife or leuie war against the King in his Realme or to adhere to his enemies ayding them or to counterfeit the Kings great Seale priuie Seale or money or wittingly to bring false money into this Realme counterfeited like vnto the money of England and vtter the same or to kill the Kings Chaunceler Treasurer Iustice of the one bench or of the other Iustices in Eyre Iustices of Assise Iustices of oyer and terminer being in his place doing of his office anno 25. Ed. prim ca. 2. or forging of the Kings seale manuell or priuy signet priuy seale or forrein coine current within the Realme anno 2. Mar. cap. 6. or diminishing or impairing of money current an 5. Elizab. ca. 11. anno 14. El. ca. 3. 18. Elizab. ca. pri and many other actions which you may read there and in other places particularly expressed And in case of this treason a man forfeiteth his lands and goods to the King onely And it is also called treason Paramount anno 25. Ed. 3. cap. 2. The forme of Iudgement giuen vpon a man conuicted of high treason is this The Kings Sergeant after the verdict deliuered craueth Iudgement against the prisoner in the behalfe of the King Then the Lord Steward if the traitour haue bene noble or other Iudge if he be vnder a peere saith thus N. Earle of P. For so much as thou before this time hast bene of these treasons indited and this day arraigned for thee same and put thy selfe vpon God and thy peeres and the Lords thy peeres haue foūd thee guilty my Iudgement is that thou shalt from hence be conueied vnto the Tower of London whence thou camest and from thence drawne through the middest of London to Tiburne and there hanged and liuing thou shalt be cut downe thy bowels to be cut out and burnt before thy face thy head cut off and thy body to be diuided in foure quarters and disposed at the Kings Maiesties pleasure and God haue mercy vpon thee Petit treason is rather described by examples then any where logically defined as when a seruant killeth his master or a wife her husband or when a secular or religious man killeth his prelate to whom he oweth faith and obedience And in how many other cases petit treason is committed See Cromptons Iustice of peace And this maner of treason giueth forfeiture of Escheats to euery Lord within his owne fee anno 25. Ed. 3. cap. 2. Of treason see Bracton lib. 3. tract 2. cap. 3. nu pri 2. Treason compriseth both high and petit treason anno 25. Ed. 3. stat 3. cap. 4. Treasure troue The saurus inuentus is as much as in true French Tresor trouuè i. treasure found and signifieth in our common law as it doth in the Ciuile law idest veterem depositionem pecuniae cuius non extat memoria vt iam dominum non habeat l. 31 § prim Π. de acquir rerum Dom. Neere vnto which definition commeth Bracton lib. 3. tract 2. cap. 3. num 4. And this treasure found though the ciuill lawe do giue it to the finder according to the lawe of nature yet the lawe of England giueth it to the King by his prerogatiue as appeareth by Bracton vbi supra And therefore as he also saith in the sixth chapter it is the Coroners office to enquire therof by the countrie to the Kings vse And Stawn pl. cor lib. pr. cap. 42. saith that in auncient times it was doubtfull whether the concealing of treasure found were felonie yea or not and that Bracton calleth it grauem praesumptionem quasi crimen furti But the punishment of it at these dayes as he proueth out of Fitzh Abridgment pag. 187. is imprisonment and fine and not life and member And if the owner may any way be knowne then doth it not belong to the kings prerogatiue Of this you may reade Britton also cap. 17. who saith that it is euery subiects part as soone as he hath found any treasure in the earth to make it knowne to the Coroner of the countrie or to the Bayliffes c. See Kitchin also fol. 40. Treasurer thesaurarius commeth of the French tresorier i. quaestor praefectus fisci and signifieth an Officer to whom the treasure of another or others is committed to be kept and truly disposed of The chiefest of these with vs is the Treasurer of England who is a Lord by his office and one of the greatest men of the land vnder whose charge and gouernment is all the Princes wealth contained in the Exchequer as also the checke of all Officers any way employed in the collecting of the Imposts tributes or other reuenewes belonging to the Crowne Smith de Repub. Anglor lib. 2. cap. 14. more belonging to his office see ann 20 Ed. 3. cap. 6. anno 31. H. 6. cap. 5. anno 4. Ed. 4. cap. pri anno 17. eiusdom cap. 5. anno prim R. 2. cap. 8. anno 21. H. 8. cap. 20. anno prim Ed. 6. cap. 13. Ockams Lucubrations affirme that the Lord chiefe Iustice had this authoritie in times past and of him hath these words Iste excellens Sessor omnibus quae in inferrore vel superiore scacchio sunt prospicit Ad nutum ipsius quaelibet officia subiecta disponuntur sic tamen vt ad Domini Regis vtilitatem iuste perueniant Hic tamen inter caetera videtur excellens quod potest his sub testimonio suo breve Domini Regis facere fieri vt de thesauro quaelibet summa liberetur vel vt computetur quod sibi ex Domini Regis mandato praenouerit computandum vel si maluerit breve suum
villein yet that there is a two fold tenure called villenage one wherin both the persō the tenure is bound and in all respects at the disposition of the Lord and another which in respect of the tenure is after a sort seruile though the person be not bond This is well proued by Bracton li. 2. ca. 8. nu 3. in these words Item tenementum non mutat statum liberi non magis quam serut Poterit enim liber homo tenere purum villenagium faciendo quicquid ad villanum pertinebit nihilo-minus liber erit cum hoc faciat ratione villenagii non personae suae ideo poterit quando volucrit villenagium deserere liber discedere nisi illaque atus sit per vxorem natiuam ad hoc faciendum ad quam ingressus fuit in villenagium quae praestare poterit impedimentum c. So that a man may hould in pure villenage and yet be a free man in respect of his person But what is pure villenage Bracton aunswereth in the words there next following Purum villenagium est à quo praestatur seruitium incertum indeterminatum vbi scirinon poterit vespere quale seruitium fieri debet mane viz vbi quis facere tenetur quicquid ei praeceptum fuerit The other sort of villenage which is not pure is there called of Bracton villanum soccagium which differeth from the other in this because it is onely tyed to the performrnce of certaine seruices agreed vpon betweene the Lord and the Tenent Whereof see Bracton also in the same place by whom you may perceiue that a man may hould per villanum soccagium and yet haue liberum tenementum if he haue it to himselfe and his heires This villanous soccage is to cary the Lords dung into his feilds to plow his ground at certaine daies sow and reape his corne plash his hedges c. See Soccage Villenous iudgement Villanum iudicium is that which casteth the reproch of villeny and shame vpon him against whom it is giuen as a Conspiratour c. Stawnf pl cor lib. 3. 12. f. 175. This M. Lamb. in his Eirenarcha lib. 1. ca. 13. pag. 63. calleth villenous punishment and saith that it may well be called infamous because the iudgement in such a case shal be like the auncient iudgement in Attaint as it is said anno 4. H. 5. Fitzh Iudgement 220. and is in 27. lib. Assis pl. 59. set downe to be that their oathes shall not be of any credit afterward nor lawfull for them in person to aproch the Kings Courts and that their lands and goods be seised into the Kings hands their trees rooted vp and their bodies imprisoned c. And at this day the punishmēt apointed for periury hauing somwhat more in it then corporall or pecuniary paine stretching to the discrediting of the testimony of the offender from euer after may be partaker of this name Thus farre M. Lamberd Virgata terrae Register orig fol. 167. a. See yard land Viridario eligendo is a writ that lyeth for the choice of a verdour in the forest Register orig fol. 177. Visitation of maners Visitatio morum was wont to be the name of the Regarders office in auncient time Manwood parte pri of his forest lawes pag. 195. See Regarder Visne Vicinetum signifieth a neihgbour place or a place neere at hand anno 16. R. 2. ca. 6. Vtsu Franciplegū is a writ to exempt him from comming to the view of Frankpledge that is not within the Hundred resident For men are bound vnto this view by reason of their habitation and not of lands held where they dwell not Register orig fol. 175. Vitteller victualarius commeth of the French victuailes i. commeatus and signifieth with vs him that selleth victuals For these there is a writ in Fitz. nat br fol. 172. if they exercise their trade bearing a magistracie in any towne corporate Vmple anno 3. Edvard 4. cap. 5. Vncore prist is a plee for the Defendant being siewed for a debt due at a day past to saue the forfeiture of his bond saying that he tendered the dept at the time and place and that there was none to receiue it and that he is now also readie to pay the same 7. Ed. 6. 83. Dyer See Vnquest prist Vncuth is a Saxon word signifying as much as incognitus It is vsed in the auncient Saxon lawes for him that commeth to an Inne guest wise and lyeth there for two nights at the most In which case his host was not bound to answer for any offence that he committed whereof he was guiltlesse himselfe But if he laid there the third night then he was called guest hospes and thē must the host answer for him as for one of his owne familie And if he taried any longer then was he called Agen hine that is to say familiaris Whom if he offend against the Kings peace his hoste was to see foorth-comming or if he could not bring him out within a moneth and a day he must satisfie for his offence Lamberd Archaiono fol. 133. num 7. Of this Bracton lib. 3. cap. 10. num 2. writeth thus Item secundum antiquam consuetudinem dici paterit de familia alicuius qui hospitatus fuerit cum alio per tres noctes quia primâ nocte poterit dici Vncuth secunda verò Gust tertiâ nocte Hoghenhine c. This law was made for the better preseruation of the Kings peace and to shew in what pledge euery man was to be accompted that trauelled by the way See Tuainnithes gest Vnde nihil habet is a writ See Dote vnde nihil habet Vnder-chamberlaine of the Exchequer is an Officer there that cleaueth the taileys written by the Clerke of the Taileys and readeth the same that the Clerke of the Pel and the controllers thereof may see their entrie be true He also maketh searches for all Roords in the Treasurie There be two Officers there of this name Vnderescheateur Subescheatour anno 5. Ed. 3. cap. 4. See Escheatour Vndershyreeue Subvicecomes See Shyreeue Vndersitter is an Inmate See Inmate Vndertakers be such as are employed by Pourueyours of the King as their deputies anno 2. 3. Phil. Mar. cap. 6. and such as vndertake any great worke as drying of Fennes c. anno 43. Eliz. cap. 11. Vnder-treasurer of England viccthesaurarius Angliae anno 39. El. cap. 7. anno 43. eiusdem Subsidie of the Clergie This Officer as some Exchequer men thinke was first created in the time of king H. the seuenth to chest vp the Kings Treasure at the end of euery Terme and to note the content of money in each chest and to see it caried to the Kings Treasurie in the Tower for the ease of the Lord Treasurer as being a thing too meane for him to be troubled with and yet meete to be performed by a man of great secrecie and trust He in the vacancie of the Lord Treasurers office doth all things
and in euery action reall as also euery action personall where the debt or dammages amount to 40. merks it is a good chalenge to any man that he cannot dispend 40. shillings by the yeare of Free-hold anno 11. H. 7. cap. 21. and Termes of the lawe verbo Chalenge The ground of this chalenge you may see farder in Fleta lib. 4. cap. 8. Chalenge vpon reason or cause is when the partie doth alledge some such exception against one or more of the Iurors as is not forthwith sufficient vpon acknowledgement of the truth thereof but rather arbitrable and considerable by the rest of the Iurors as for example if the sonne of the Iuror haue maried or espoused the daughter of the aduerse partie Termes of lawe vbi supra This chalenge per cause seemeth to be tearmed by Kitchin chalenge for fauour fol. 92. or rather Chalenge for fauour is said there to be one species of chalenge per cause where you may read what chalenges be commonly accounted principall and what not See the new booke of Entries verbo Chalenge and the old nat br fol. 158. 159. That this word chalenge is long sithence latined by the word calumnia appeareth by Bracton lib. 3. tract 2. cap. 18. li. 4. tract 3. cap. 6. lib. 5. cap. 6. But I doubt Priscian will neuer forgiue him that first strooke this blowe at him Of chalenge you may farder read Fleta lib. 1. cap. 32. § Ad quem diem seqq Chamberdekins are Irish beggers anno 1. H. 5. cap. 8. Chamberer is vsed for a chamber maide anno 33. H. 8. cap. 21. Chamberlaine camerarius vel camberlingus commeth of the French chambellan i. cubicularius vel praefectus cubiculi It is diversly vsed in our Chronicles Lawes and Statutes as Lord great Chamberlaine of England Lord Chamberlain of the kings house the kings Chamberlaine anno 13. Ed. 1. cap. 41. anno 17. R. 2. cap. 6. to whose office it especially appertaineth to looke to the kings chambers and wardrobe and to gouerne the vnder ministers belonging vnto the same Fleta lib. 2. cap. 6. 7. Chamberlaine of any of the kings courts anno 7. Ed. 6. cap. 1. Chamberlaine of the Exchequer anno 51. H. 3. stat 5. anno 10. Ed. 3. cap. 11. anno 14. eiusdem cap. 14. anno 26. H. 8. cap. 2. Chamberlaine of north Wales Stow. pag. 641. Chamberlaine of Chester Cromptons iurisd fol. 7. This Officer is commonly the receiuer of all rents and reuenues belonging to that person or citie whereunto he is chamberlaine v. Fletam li. 2. cap. 70. § Si autem The Latine word seemeth to expresse the function of this officer For camerarius dicitur à camera i. testudine sive fornice quia custodit pecunias quae in cameris praecipuè reservantur Onyphrius de interpret vooum ecclesiasticarum It seemeth to be borowed from the Feudists who define the word camera thus Camera est locus in quem the saurus recolligitur vel conclave in quo pecunia reservatur Zasius de feudis part 4. num 7. and Peregrinus de iure fisci lib. 6. tit 3. saith that camerarius vel camberlingus quē quaestorem antiqui appellârunt in rebus fisci primum locum tenet quia thesauraruis custos est publicae pecuniae Sane officium hoc primipilatus fuisse nonnulli senserunt There be two officers of this name in the kings Exchequer who were wont to keepe a controlment of the pels of receipt and exitus kept certaine keyes of the treasure cofers which is not now in vse They keepe the keyes of the Treasurie where the leagues of the Kings predecessors and diuers auncient bookes doe remaine There is mention of this officer in the Statute anno 34. 35. H. 8. cap. 16. There be also vnder-chamberlaines of the Exchequer which see in Vnder-chamberlaine Champartie cambipartita aliàs champertie seemeth to come from the french champart 1. vectigal and signifieth in our common lawe a maintenance of any man in his suit depending vpon condition to haue part of the thing be it lands or goods when it is recouered Fitzh nat br fo 171. and champertours be they that moue plees or suites or cause to be moued either by their owne procurement or by other and persyew at their proper costs for to haue part of the land in variance or part of the gaines anno 33. Ed. 1. stat 2. in fine Whereunto adde the third statut made the same yeare This seemeth to haue bene an auncient fault in our realme For notwithstanding these former statutes and a forme of writ framed vnto them yet anno 4. Ed. 3. ca. 11. it was againe inacted that whereas the former statute prouided redresse for this in the kings bench onely which in those dayes folowed the court from thence forth it should be lawfull for Iustices of the common plees likewise and Iustices of assises in their circuits to inquire heare and determine this and such like cases as well at the suite of the king as of the party How farre this writ extendeth and the diuers formes therof applied to seuerall cases see Fitzh nat br fo 171. and the Register orig fo 183. and the new booke of entrise verbo Champertie Euery champertie employeth maintenance Cromptons iurisd fo 39. See also his Iustice of peace fo 155. b. c. These with the Romans were called redemptores litium qui sc quotidianas lites mercantur aut quipartem litis paciscuntur l. si remunerandi § Maurus Π. Mandati l. si contra l. per diuersas Co. eodem 13. Champion campio is thus defined by Hotoman in verbis feudalibus Campio est certator pro alio datus in duello a campo dictus qui circus erat decertantibus definitus In our common lawe it is taken no lesse for him that trieth the combat in his owne case then for him that fighteth in the place or quarell of another Bracton li. 3. tracta 2. ca. 21. nu 4. who also seemeth to vse this word for such as hould by sergeanty or some service of another as cāpiones faciunt homagium domino suo li. 2. ca. 35. Of this reade more in Battell and Combat 30. Chanceler cancellarius commeth of the french chaneelier Vincentius Lupanus de magistratibus Francorum saith that cancellarius is no latine word how be it he citeth diuers latine writers that doe vse it With him agreeth that excellent man Petrus Pithaeus libro 2. aduersariorum ca. 12. and whereas Lupanus would deriue it from the verb cancello Pithaeus confesseth he hath good colour for his opinion though he thinke it not sound and therefore rather deduceth it a cancellis Cancellare is literas vel scriptum linea per medium ducta damnare and seemeth of it selfe likewise to be deriued a cancellis which signifie all one with 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in greeke which we in our tong call a letis that is a thing made of woode or iron
from the French the other from the Saxons both conteining a circuit or portion of the realme into the which the whole land is diuided for the beter gouernment thereof and the more easie administration of iustice So that there is no part of the kingdome that lieth not within some countie and euery county is gouerned by a yerely officer whom we cal a Shyreeue which among other duties belonging to his office putteth in execution all the commandements iudgments of the kings courts that are to be executed within that compasse Fortescue cap. 24. Of these counties there be foure of especiall marke which therefore are tearmed countie Palatines as the county Palatine of Lancaster of Chester of Durham of Ely ann 5. Eliz. 1. c. 23. I read also of the county Palatine of Hexam an 33 H. 8. ca. 10. Vnde quaere And this county Palatine is a Iurisdiction of so high a nature that whereas all plees touching the life or mayhem of man called plees of the crowne be ordinarily held sped in the kings name cannot passe in the name of any other the chiefe gouerners of these by especiall charter from the king did heretofore send out all writs in their owne name and did all things touching iustice as absolutely as the Prince himself in other counties only acknowledging him their superiour and Soueraigne But by the statute anno 27. H. 8. c. 25. this power is much a bridged vnto the which I refer the reader as also to Crom. Iuris fo 137. for the whole course of this court Besides these counties of both sorts there be likewise counties corporate as appeareth by the statute anno 3. Ed. 4. 5. and these be certaine cities or auncient boroughs of the land vpon which the Princes of our nation haue thought good to bestow such extraordinary liberties Of these the famous city of London is one and the principall Yorke another an 32. H. 8. cap. 13. the city of Chester a third an 42. Eliz. cap. 15. Canterburie a fourth Lamb. Eiren. l. 1. cap. 9. And to these may be added many moe but I haue onely obserued out of the statutes other writers the county of the towne of Kingston vpon Hull anno 32. H. 8. cap. 13. the county of the towne of Havorford West anno 35. H. 8. cap. 26. and the county of Litchfield Cromptons Iustice of peace fo 59. a. County is in another significatiō vsed for the County court which the Shyreeue keepeth euery moneth within his charge either by himselfe or his deputie anno 2. Ed. 6 ca. 25. Cromptons Iuris fo 221. Bract. li. 3. c. 7. li. 3. tract 2. cap. 12. Of these counties or shires one with another there are reckoned in England 37. beside twelue in Walet 〈…〉 The word comitatus is also vsed for a iurisdiction or territorie among the Feudists Countie court curia comitatus by M. Lamberd is otherwise called conuentus in his explication of Saxon words and diuided into two sorts one retaining the generall name as the county court held euery moneth by the Shyreeue or his deputie the vnder-shyreeue whereof you may reade in Cromptons iurisd fol. 231. the other called the Turne held twice euery yeare which see more at large in his place and Cromptons Iurisd fol. 231. This countie court had in auncient times the cognition of these and other great maters as may appeare by Glanvile lib. 1. cap. 2 3. 4. by Bracton and Britton in diuers places and by Fleta li. 2. cap. 62. But that was abridged by the statute of Magna charta cap. 17. and much more by 1. Ed. 4. cap. vnico It had also and hath the determination of certaine trespasses and debts vnder forty shillings Britton cap 27. 28. what maner of proceeding was of old vsed in this court see Fleta vbi supra Coursitour See Cursetour Court curia commeth of the French court which signifieth the kings palace or mansion as curtis doth among the Lombards All these spring of the Latine curia which signifieth one of thirty parts into which Romulus diuided the whole number of the Romaines sometime also the Senate house as appeareth by Tully in his Offices nihil est quod dignum nobis aut in foro aut in curia agere possumus which in his oration pro Milone he calleth Templum sanctitatis amplitudinis mentis consilii publici caput vrbis c. Court with vs signifieth diuersly as the house where presently the king remaineth with his ordinarie retinue and also the place where iustice is iudicially ministred of which you finde 32. seueral sorts in M. Cromptons booke of Iurisdictions well described And of them most be courts of record some be not and therefore are accompted base courts in comparison of the rest Beside these also there are courts Christian Smith de repub Anglor lib. 3. cap. 9. which are so called because they handle maters especially appertaining to Christianitie and such as without good knowledge in diuinity cannot be well iudged of being held heretofore by Archb. and Bishops as from the Pope of Rome because he chalenged the superioritie in all causes spirituall but sithence his eiection they hold them by the kings authoritie virtue magistratus sui as the Admirall of England doth his court Whereupon it proceedeth that they send out their precepts in their owne names and not in the kings as the Iustices of the kings courts doe And therefore as the appeale from these courts did lie to Rome now by the statute an 25. H. 8. cap. 19. it lyeth to the king in his Chauncerie Court baron curia baronis is a court that euery lord of a maner which in auncient times were called barons hath within his owne precincts Barons in other nations haue great territories and iurisdiction from their Soueraignes as may be proued out of Cassanaeus de gloria mundi parte 5. consideratio 56. by Vincentius de Franchis descis 211. and many others But here in England what they be and haue bene heretofore see in Baron Of this court Baron you may reade your fill in Kitchin that writeth a large booke of it and of a court leete S. Edward Coke in his fourth booke of Reports amongst his copyhold cases fol. 26. b. saith that this court is two after a sort and therefore if a man hauing a maner in a towne and do graunt the inheritance or the copyholders thereunto belonging vnto another this grantee may keep a court for the custumarie tenents and accept surrenders to the vse of others and make both admittances and graunts the other court is of Freeholders which is properly called the court baron wherein the suyters that is the Freeholders be Iudges whereas of the other the Lord or his steward is Iudge Court christian curia christiana See Court Court of Pypowders See Pypowders Court of Requests curia requestarum is a court of equitie of the same nature with the Chancerie principally instituted for the helpe of such
guardeyn of the spiritualties may be either Guardeyn in lawe or Iure Magistratus as the Archbishop is of any Dioces within his prouince or guardian by delegation as he whom the Archbishop or Vicar generall doth for the time depute Gardeyn of the peace Custos pacis See Conservatour of the peace Gardeyn of the Cinque ports Gardianus quinque portuum is a Magistrate that hath the iurisdiction of those hauens in the east part of England which are commonly called the Cinque ports that is the fiue hauens who there hath all that iurisdiction that the Admirall of England hath in places not exempt The reason why one Magistrate should be assigned to these few hauens seemeth to be because they in respect of their situation aunciently required a more vigilant care then other hauens being in greater daunger of invasion by our enemies by reason that the sea is narrower there then in any other place M. Camden in his Britannia pag. 238. saith that the Romaines after they had setled themselues and their Empire here in England appointed a Magistrate or gouernour ouer those East partes whom they tearmed Comitem littoris Saxonici per Britanniam hauing another that did beare the same title on the opposite part of the sea whose office was to strengthen the sea coasts with munition against the outrages and robberies of the Barbarians And farder signifieth his opinion that this Warden of the Cinque ports was first erected amongst vs in imitation of that Romaine policie See Cinque ports Gare anno 31. Fd. 3. cap. 8. is a course wooll full of staring haires as such as groweth about the pesill or shankes of the sheepe Garnishment commeth of the French Garnir i. instruere It signifieth in our common lawe a warning giuen to one for his appearance and that for the beter furnishing of the cause and court For example one is siewed for the detinew of certaine euidences or charters and saith that the euidences were deliuered vnto him not onely by the plaintiffe but by another also and therefore prayeth that that other may be warned to pleade with the plaintiffe whether the said conditions bee performed yea or no. And in this petition he is said to pray garnishment New booke of Entries fol. 211. colum 3. Termes of the lawe Cromptons Iurisd fol. 211. which may be interpreted either warning of that other or else furnishing of the court with parties sufficient throughly to determine the cause because vntill he appeare and ioyne the defendant as Fitzh saith is as it were out of the court nat br fol. 106. G. and the court is not prouided of all parties to the action I am the bolder thus to interpret it because I find Britton in the same mind cap. 28. where he saith that contracts be some naked and sans garnment and some furnished or to vse the literall signification of his word appareled but a naked obligation giueth no action but by common assent And therefore it is necessarie or needfull that euery obligation be appareled And an obligation ought to be appareled with these fiue sortes of garnements c. Howbeit I reade it generally vsed for a warning in many places and namely in Kitchin fol. 6. Garnisher le court is to warne the court And reasonable garnishment in the same place is nothing but reasonable warning and againe fol. 283. and many other authours also But this may be well thought a Metonymie of the effect because by the warning of parties to the court the court is furnished and adorned Garrantie See Warrantie Garter Garterium commeth of the french Iartiere or Iartier i. periscelis fascia poplitaria It signifieth with vs both in diuers statutes and otherwise one especiall garter being the ensigne of a great and noble societie of knights called knights of the garter And this is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Poeta among the Graecians was Homer among the Romanes Virgill because they were of all others the most excellent This high order as appeareth by M. Camden pag. 211 and many others was first instituted by that famous king Edward the third vpon good successe in a skirmish wherein the kings garter I know not vpon what occasion was vsed for a token I know that Polidore Virgill casteth in an other suspition of the originall but his groundes by his owne confession grew from the vulgar opinion yet as it is I will mention it as I haue read it Edward the third king of England after he had obtained many great victories King Iohn of Fraunce King Iames of Scotland being both prisoners in the tower of London at one time and king Henry of Castile the bastard expulsed and Don Pedro restored by the prince of Wales did vpon no weighty occasion first erect this order in anno 1350. viz. He dauncing with the Queene and other ladies of the court tooke vp a garter that happened to fall from one of them whereat some of the lords smiling the king said vnto them that eare it were long he would make that garter to be of high reputation shortly after instituted this order of the blew garter which euery one of the order is boūd daily to weare being richly decked with gold and pretious stones and hauing these words written or wrought vpon it Honi soit qui mal y pence which is thus commonly interpreted euill come to him that euill thinketh but I thinke it might be better thus Shame take him that thinketh euill See knights of the garter M. Fearne in his glory of generosity agreeth with M. Camden and expressier setteth downe the victories whence this order was occasioned whatsoeuer cause of beginning it had theorder is inferiorto none in the world consisting of 26. martiall and heroicall nobles whereof the king of England is the cheif and the rest be either nobles of the realme or princes of other countries friends and confederates with this realme the honour being such as Emperours and Kings of other nations haue desired and thankfully accepted it He that will reade more of this let him repaire to M. Camden and Polidore and M. Fern. fol. 120. vbi supra The Ceremonies of the chapter proceeding to election of the inuestures and robes of his installation of his vowe with all such other obseruances see in M. Segars new booke intituled Honour militarie and ciuile li. 2. ca. 9. fo 65. Garter also signifieth the principall king at armes among our English Heralds created by king Henry the 5. Stow. pa. 584. Garthman anno 13. R. 2. stat 1. ca. 19. anno 17. eiusd cap. 9. Gavelet is a speciall and auncient kinde of Cessauit vsed in Kent where the custome of Gavill kind continueth whereby the tenent shall forfeit his lands and tenements to the Lord of whome he holdeth if he withdraw from him his due rents and seruices The new Expounder of lawe Termes whom reade more at large I reade this word anno 10. Ed. 2. cap. vnico where it appeareth to be a writ vsed
in the Hustings at London And I find by Fleta that it is vsed in other liberties as the Hustings of Winchester Lincolne Yorke and the Cinque ports lib. 2. cap. 55. in principio Gavelkind is by M. Lamberd in his Exposition of Saxon words verbo Terra ex scripto compounded of three Saxon words gyfe cal cin omnibus cognatione proximis data But M. Verstegan in his restitution of decayed intelligence cap. 3. calleth it Gavelkind quasi giue all kind that is giue to each child his part It signifieth in our common lawe a custome whereby the lands of the father is equally diuided at his death amongst all his sons or the lād of the brother equally diuided among the brethren if he haue no issue of his owne Kit. fol. 102. This custome is said to be of force in diuers places of England but especially in Kent as the said Authour reporteth shewing also the cause why Kentish men rather vse this custome then any other province viz. because it was a composition made betweene the Conquerour and them after all England beside was conquered that they should enioy their auncient customes whereof this was one For M. Camden in his Britannia pag. 239. saith in expresse words thus Cantiani eâ lege Gulielmo Normano se dediderunt vt patrias consuetudines illaesas retinerent illamque inprimis quam Gavelkind nominant Hac terrae quae eo nomine censentur liberis masculis ex aequis portionibus dividuntur vel foeminis si masculi non fuerint adding more worth the noting viz. Hanc haereditatem cùm quintum decimum annum attigerint adeunt sine Domini consensu cuilibet vel dando vel vendendo alienare licet Hac filii parentibus furti damnatis in id genus fundis succedunt c. This custome in diuers gentlemens lands was altered at their owne petition by Act of Parlament anno 31. H. 8. cap. 3. But it appeareth by 18. H. 6. cap. pri that in those daies there were not aboue thirty or forty persons in Kent that held by any other tenure See the new Termes Gavelet and Gavelkinde Gawgeour gaugeator seemeth to come of the French Gawehir i. in gyrum torquere It signifieth with vs an Officer of the Kings appointed to examin all tunnes hogsheades pipes barels and tercians of wine oile hony butter and to giue them a marke of allowance before they bee sold in any place And because this marke is a circle made with an iron instrument for that purpose it seemeth that from thence he taketh his name Of this office you may find many statutes the first whereof is anno 27. Ed. 3. commonly called the statute of prouision or Purveyours cap. 8. Geld signifieth with the Saxons pecunia vel tributum See Gyld Genets aliâs Ienets See Furre Gentleman generosus seemeth to be made of two words the one French gentil i. honestus vel honesto loco natus the other Saxon Mon as if you would say a man well borne The Italian followeth the very word calling those gentil homini whom we call Gentlemen The Spaniard keepeth the meaning calling him Hidalgo or Hyod'algo that is the son of some man or of a man of reckoning The Frenchmen call him also gentil houme so that gentlemen bee those whom their bloud and race doth make noble and knowne 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Greeke in Latine Nobiles Smith de Repub. Anglor lib. 1. cap. 20. vnder this name are all comprised that are aboue Yeomen so that Noblemen be truly called gentlemen But by the course and custome of England Nobilitie is either maior or minor the greater containes all titles and degrees from Knights vpward the lesser all from Barons downward Smith vbi supra cap. 21. The reason of the name as I take it groweth from this that they obserue gentilitatem suam that is the race propagation of their blood by giuing of armes which the cōmon sort neither doth nor may doe For by the coate that a gentleman giueth he is knowne to be or not to be descended from those of his name that liued many hundred yeares since Howbeit that this is neglected where substance faileth to maintaine the countenance For many of great birth fall to pouerty whose posteritie liuing and labouring in want haue small encouragement to looke after the titles of their auncesters and so in time slippe into the number of the ignoble sort yet if they by their vertue or fortune can againe aduaunce themselues to sufficient abilitie the Herald out of his obseruations can restore them to the coat of their progenitors and now and then helpe them to one that their auncestors neuer ware Gentiles homines see in Tiraquel de Nobilitate cap. 2. pag. 53. Tully in his Topickes thus saith of this mater Gentiles sunt qui inter se eodem sunt nomine ab ingenuis oriundi quorum maiorum nemo servitutem servivit qui capite non sunt diminuti And in the first booke of his Tusc questions hee calleth Tullum Hostilium one of the kings of Rome gentilem suum Generall Issue vid. Issue Gestu fama is a writ Lamb. Eirenarcha lib. 4. ca. 14. pag. 531. Gygge milles were for the fulling of woollin cloth and forbidden anno 5. Edward 6. cap. 22. Gild alias Geld Gildare commeth from the Saxon word Gildan i. soluere Lamb. in his explica of Saxon words saith verb. Contubernalis It is vsed as a verb and as a substantiue also and as it is a substantiue it is latined Gilda and signifieth a tribute or sometime an amercement or thirdly a fraternity or company combined together by orders and lawes made among themselues by the princes licence M. Camden citeth many antiquities by which it appearreth to signifie a tribute or taxe as pa. 135. 139. 159. 168. 178. M. Crompton in his iurisdictions fol. 191. sheweth it to be an amercement as footgeld and fol. 197. he interpreteth it to be a prestation within the forest in these words To be quit of all manner of Gelds is to be discharged of all manner of prestations to be made for gathering of sheues of corne of lambe and of wolle to the vse of Foresters Againe M. Camden pag. 349. diuiding Suffolke into three parts calleth the first Gildable because tribute is thence gathered the second libertatem S. Edmundi The third libertatem S. Etheldredae And the statutes anno 27. Ed. 3. stat 2. ca. 13. anno 11. H. 7. ca. 9. vse Gildable in the same sense and so doth the statute anno 27. H. 8. ca. 26. From this M. Lamberd vbi supra is likewise perswaded that the common word Gild or Gildhall doth proceede being a fraternity or communalty of men gathered into one combination supporting their common charge by a mutuall contribution And in the register originall fol. 219. b. I reade Gildam mercatoriam that is the Gilde merchaunt which I haue heard to be a certaine liberty or priuiledge belonging to Merchants whereby they are
councell held at Vienna in Fraunce he suppressed for their many and great offences as he pretended These Hospitallers be now the knights of Saint Iohn of Malta Cassan gloria mundi parte 9. considerat 5. This constitution was also obeyed in Ed. the 2. time here in England and confirmed by Parlament Tho. Walsing ham in historia Ed. 2. Stawes annals ibidem These are mentioned anno 13. Ed. 1. ca. 43. anno 9. H. 3. ca. 37. Hostelers Hostellarius commeth of the french Hosteler i. Hospes and signifieth with vs those that otherwise we call Inkeepers an 9. Ed. 3. stat 2. c. 11. Hotchepot in partem positio is a word that commeth out of the lowecountries where Hutspot signifieth flesh cut into pretie peeces and sodden with herbs or roots not vnlike that which the Romans called farraginem Festus Litleton saith that literally it signifieth a pudding mixed of diuers ingredients but metaphorically a commxtion or putting together of lands for the equall diuision of them being so put together Examples you haue diuers in him fo 55. and see Briton fol 119. There is in the Ciuile law collatio bonorum answerable vnto it whereby if a child aduaunced by the father in his life time doe after his father decease chalenge a childs part with the rest he must cast in all that formerly he had receiued and then take out an equall share with the others De collatio bonorum Î . lib 37. titulo 6. Housebote is compounded of House and Bote. i. compensatio It signifieth estovers out of the Lords woâ—de to vphould a tenement or house Houserobbing is the robbing of a man in some part of his house or his booth or teÌ„t in any faire or market and the owner or his wife children or seruants being within the same for this is felonie by anno 23. H 8. cap. i. and. anno 3. Ed. 6. cap 9. yea now it is felonie thoughe none be within the house anno 39. Eliz ca. 15. See Burglarie see West part 2. sym tit InditemeÌ„ts sect 67. Hudegeld significat quiet antiam transgressionis illatae in seruum transgredientem Fleta lib. i. ca 47. Quare whether it should not be Hindegeld Hue and Crie Hutesium Clamor come of 2. french words Huier and Crier both signifiing to shoute or cry a loude M. Manwood parte 2. of his forest lawes ca 19. nu 11. saith that Hew is latine meaning belike the Interiection but vnder reformation I think he is deceiued this signifieth a pursuite of one hauing committed felonie by the high way for if the party robbed or any in the companie of one murdered or robbed come to the Constable of the next towne and will him to raise Hiew and Crie or to make pursuite after the offeÌ„dour describing the partie and shewing as neere as he can which way he is gone the Constable ought forthwith to call vpon the parishe for aide in seeking the felon and if he be not found theare then to giue the next Constable warning and he the next vntill the offender be apprehended or at the least vntill he be thus persued to the sea side Of this reade Bracton lib 3. tracta 2. ca. 5. Smith de Repub Anglo lib 2. cap 20. and the statute anno 13. Ed. 1. statute of Winchest c. 3. a. 28. Ed 3. c 11. anno 27. El c 13. The Normans had such a persuite with a Crie after offenders as this is which they called Haro whereof you may reade the Grand Custumarie cap. 54. Some call it Harol the reason whereof they giue to be this that there was a Duke of Normandy called Rol a man of great iustice and seruerity against grieuous offenders and that thereupon when they follow any in this persuite they crie Ha-Rol as if they should say Ah Rol where art thou that wert wont to redresse this or what wouldst thou doe against these wretches if thou now wert liuing But in truth I thinke it commeth from Harier 〈◊〉 flagitare inquiet are vrgere Hue is vsed alone anno 4. Ed. pri Stat. 2. This the Scots call Huesium and M. Skene de verbo signif verb. Huesium saith that it commeth of the french Oyeâ— i. Audite making one etymologie of this and the crie vsed before a proclamation The maner of their hue and cry as he there describeth it is that if a robberie be done a horne is blowne and an out crie made after which if the partie flie away and not yeeld himselfe to the Kings Bayliffe he may be lawfully slaine and hanged vp vpon the next gallowes Of this Hue and crie see Cromptons Iustice of peace fol. 160. b. Huissers See Vshers Hundred Hundredum is a part of a shire so called originally because it conteined ten tithings called in latine Decennas These were first ordeined by king Alfred the 29. king of the West Saxons Stowes Annals pag. 105. of these thus speaketh M. Lamb. in his explica of Saxon words verbo Centuriaâ— Aluredus rex vbi cum Guthruno Daca foedus inierat prudentissimum illud â—lim a Ietrâ—â— Moysi datum secutus consilium Angliamprimus in satrapias Centurias Decurias partitus est Satrapiam shire a shyran quod partiâ— significat nominavit Centuriam Hundred DecuriaÌ„ Toothing siue Tienmantale i. Decemvirale collegium appellavit atque iisdem nominibus vel hodie vocantur c. And againe afterward Decrevit tum porro Aluredus liberae vt condicionis quisque in Centuriam ascriberitur aliquam atque in Decemviralt aliquod coniiceretur collegium De minoribus negotiis Decurionet vt tudicarent ac siâ—quae esset reâ— difficilior ad Centuriam deferrent diffiâ—illimas denique maximi moâ—â—enti lites Senator praepositus in frequenti illo ex omni satrapia conventu componerent Modus autem iudicandi quis fuerit Ethelredus Rex legum quas frequenti apud Vanatingum senatu sancivit capite 4. hiis fere verbis exponit In singulis centuriis comitia sunto atque liberae condicionis viri duodeni aetate superiores vnà cum praeposito sacra tenentes iur anto se adeo virum aliquem innocent em haud damnaturos sortemve absoluturos This forme of diuiding counties into Hundreds for beter gouernment howsoeuer it is attributed to King Alfred here with vs yet he had it from Germanie whence he and his came hither For there centa or centena is a iurisdiction ouer a hundred townes and conteineth the punishment of capitall crimes Andraeas Kitchin in his tractate de sublimi regio territorii iure ca. 4. pa. 123. where he also sheweth out of Tacitus de situ moribus Germa that this diuiuision was vsuall amongst the Germans before his daies By this you vnderstand the original and old vse of Hundreds which hold still in name and remaine in some sort of combination for their seuerall seruices in diuers respects but their iurisdiction is abolished and growne to the countie court some few excepted which haue beene by priuiledge annexed
Realme the land was quieted the king gained greate riches toward the supporting of his wars Inquire farder of the name Baston is thougt by some to be the beame of a paire of Scoales or waights and this is in this place metaphorically applied to the iuste peising of recompence for offences committed My poore opinioÌ„ is that the etymology of this title or addition groweth from the French treilles i. cancelli barres or letises of what thing soeuer a grate with crosse bars or of the singuler treille i. pargula an house arbour a raile or forme such as vines runne vpon and Baston a staffe or pole noting thereby that the Iustices emploied in this commission had authoritie to proceede without any solemne iudgement seate in any place either compassed in with railes or made booth or tent-wise set vp with staues or poales without more worke wheresoeuer they could apprehend the malefactors they sought for See lib. Assisarum fol. 141. 57. Iustices of peace Iusticiarii ad pacem are they that are appointed by the kinges commission with others to attend the peace in the County where they dwell of whom some vpon speciall respect are made of the Quorum because some busines of importance may not be dealt in without the presence or asseÌ„t of them or one of them Of these it is but folly to write more because they haue so many thinges perteining to their office as cannot in fewe words be comprehended And againe Iustice Fitzherberd some time sithence as also M. Lamberd and M. Crompton of late haue written bookes of it to their great commendatioÌ„ and fruitfull benefit of the whole Realme See also Sir Thomas Smith de repub Angl lib 2. cap. 19. They were called Gardians of the peace vntill the 36. yeare of King Edward the third cap. 12. where they be called Iustices Lamb. Eirenarcha lib. 4. cap. 19 pag. 578. There oathe see also in Lambard lib. i. ca. 10. Iustices of peace c. within liberties Iusticiarii ad pacem infra libertates be such in cities and other corporate townes as those others be of any countie and their authoritie or power is all one within their seueral precincts anno 27. H. 8. ca. 25. Iusticies is a writ directed to the Shyreeue for the dispatch of iustice in some especiall cause wherewith of his owne authoritie he cannot deale in his Countie Courte lib. 12. cap. 18. wherevpon the writ de excommunicato deliberando is called a Iusticies in the old nat bre fol. 35. Also the writ de homine replegiando eodem fol. 41. Thirdly the writ de secunda superoneratione pasturae eodem fol. 73. Kitchin fol. 74. saith that by this writ called Iusticies the Shyreeue may hold plee of a greate summe whereas of his ordinary authoritie he cannot hold plees but of summes vnder 40. shillings Crompt on fo 231. agreeth with him It is called a Iusticies because it is a commission to the Shyreeue ad Iusticiandum aliquem to â—doe aman right and requireth noe returne of any certificat of what he hath done Bracton lib. 4. tracta 6. cap. 13. nu 2. maketh mention of a Iusticies to the Shyreeue of London in a case of Dower See the newe booke of Entries Iusticies Iustification Iustificatio is an vpholding or shewing a good reason in courte why he did such a thing as he is called to answere as to iustifie in a cause of Repleuin Broke titulo Repleuin K E KEeper of the great Seale Custos Magni Sigills is a L. by his office and called Lord Keeper of the great Seale of England c. is of the Kings priuy Councell vnder whose hands passe al charters Commissions and graunts of the King strengthened by the great or broad Seale Without the which Seale all such Instruments by Lawe are of no force for the King is in interpretation and intendment of Law a Corporation and therefore passeth nothing firmely but vnder the said Seale This Lord Keeper by the statute anno 5. Elizabethae Cap. 18. hath the same and the like place authority preeminence Iurisdiction execution of Lawes and all other Customes CoÌ„modities and Aduantages as hath the Lord Chaunceler of England for the time being Keeper of the priuy Seale Custos priuati Sigilli is a Lord by his office vnder whose hands passe all Charters signed by the Prince before they come to the broad or great Seale of England He is also of the Kings priuy Councell He seemeth to be called Clerke of the priuy Seale anno 12. R 2. Cap. 11. But of late daies I haue knowne none to beare this office by reason the Prince thinketh good rather to keepe this Seale in his owne hands and by priuate trust to commit it to his principall Secretary or some such one of his Councell as he thinketh fit for that function Keeper of the Touch. anno 2. H. 6. cap. 14. seemeth to be that officer in the kings mint which at this day is termed the master of the assay See Mint Keeper of the Forest Custos Forestae is also called cheife Warden of the Forest Manwood part pri of his Forest Lawes pag. 156. c. hath the principall gouernmeÌ„t of all things belonging thereunto as also the check of all officers belonging to the Forest And the Lord Cheife Iustice in Eyre of the Forest when it pleaseth him to keepe his Iustice Seate doth 40. daies before send out his generall Summons to him for the warning of all vnder-officers to appeare before him at a day assigned in the Summons This See in Manwood Vbi Supra King Rex is thought by M. Camden in his Britan. pag. 105. to be contracted of the Saxon word Cyninge signifing him that hath the highest power absolute rule ouer our whole Land and thereupon the King is in intendment of Lawe cleared of those defects that common persons be subiect vnto For he is alwaies supposed to be of full age though he be in yeares neuer so young Cromptons Iurisdictions fol. 134. Kitchin fol. i. He is taken as not subiect to death but is a Corporation in himselfe that liueth euer Crompton ibidem Thirdly he is aboue the Law by his absolute power Bracton lib. pri cap. 8. Kitchin fol. 1. and though for the beter and equall course in making Lawes he doe admitte the 3. estates that is Lords Spirituall Lords temporall and the Commons vnto Councell yet this in diuers learned mens opinions is not of constreinte but of his owne benignitie or by reason of his promise made vpon oath at the time of his coronation For otherwise were he a subiect after a sort and subordinate which may not bee thought without breach of duty and loyaltie For then must we deny him to be aboue the lawe and to haue no power of dispensing with any positiue lawe or of graunting especiall priuiledges and charters vnto any which is his onely and cleare right as Sir Thomas Smith well expresseth lib. 2. cap. 3. de Repub. Anglican and
to be very tenent to that Lord of whom he immediately holdeth So that if there be lord aboue lord mesn and tenent the lord aboue is not very lord to the tenent nor the tenent very tenent to the lord aboue Lord in grosse Fitz. nat br fol. 3. is he that is lord hauing noe maner as the king in respect of his crown idem f. 5. F. See him also fol. 8. A. B. where I finde a case wherein a priuate man is lord in grosse viz. a man maketh a gift in tayle of all the land hee hath to hold of him and dyeth his heire hath but a Seignorie in grosse Lorimers anno 1. R. 3. cap. 12. is one of the companies in London tha makeht bits for bridles of horses and such like The name seemeth to be taken from the latine lorum and is else where writen Lorinors Lotherwit aliâs Leyerwit is a libertie or priueledge to take amends of him that defileth your bondwoman without licence Rastall exposition of words It is an amends for lying with abondwoman Saxon in his description of England cap. 11. Some thinke it should be rather writen Legerwit For Leger is the Saxon word for a bedde or Logherwit of the old word Logher being of the same signification See Bloodwit and Lyerwit Lusernes See Furre Lushoborow is a base coine vsed in the daies of King Ed. the 3. coined beyōd Seas to the likenes of English money and brought in to deceiue the King and his subiects To auoide the which it was made treason for any man wittingly to bring in any such an 25. Ed. 3. stat 4. cap. secundo M MAcegriefs aliâs Macegrefs be such as willingly buie and sell stolen slesh Britton cap. 29. fo 71. b. Cromptons Iustice of peace fo 193. a. Magna assisa eligenda is a writ directed to the Shyreeue to summon foure lawful knights before the Iustices of Assise there vpon their oathes to chuse 12. knights of the vicenage c. to passe vpon the great assise betweene A. plaintife and B. defendant c. Register originall fol. 8. a. Magna Charta called in English the great charter is a charter conteining a number of lawes ordained the ninth yeare of Henry the third and confirmed by Edward the first The reason why it was tearmed Magna charta was either for that it conteined the summe of all the writen lawes in England or else that there was another Charter called the Charter of the Forest established with it which in quantitie was the lesser of the two I reade in Holinshed that King Iohn to appease his Barons yelded to lawes or articles of gouernment much like to this great Charter but wee nowe haue noe auncienter writen lawe then this which was thought to be so beneficall to the sublect and a lawe of so great equitie in comparison of those which were formerly in vse that K. Henry the third was thought but hardly to yeld vnto it and that to haue the fifteenth peny of all the moueable goods both of the spiritualtie and temporaltie throughout his realme Holinshed in Henry the third And though this Charter consist not of aboue 37. chapters or lawes yet is it of such extent as all the lawe wee haue is thought in some sort to depend of it Polydorus and Holinshed vbi supra Mahim Mahemium commeth of the old French Mehaigne as M. Skene saith de verbo signif verbo Machanium and signifieth a corporal hurt whereby a man looseth the vse of any member that is or might bee any defence vnto him in batel The Canonists call it membrimatilationem as the eye the hand the foote the scalpe of the head his foretooth or as some say of any finger of his hand Glanuile lib. 14. ca. 7. See Bracton at large lib. 3. tracta 2. cap. 24. nu 3. and Britton cap. 25. and Stawnf pl. cor lib. pri ca. 41. and the newe exposition of law Termes and the Mirrour of Iustices cap. d'homicid The grand Custumarie of Normandie cap. 6. calleth it Mahaignium and defineth it to be enormem laesionem All agree that it is the losse of a member or the vse thereof And membrum as Cassan de consuetu Burgund pag. 168. defineth it out of Baldus est pars corporis habens destinatam operationem in corpore where you may reade more of this point But if you will see it largely discussed look Vgolinus de irregularitatibus ca. 4. § 3. 4. 5. also read M. Skene vbi supra Mainour aliâs Manour aliâs Meinoure seemeth to come of the French Manier i. manu tractare attrectare or els of Ameuer i. abducere It signifieth in our common lawe the thing that a theefe taketh away or stealeth as to be taken with the mainor pl. cor fol. 179. is to be taken with the thing stolen about him and againe fol. 194. It was presented that a theefe was deliuered to the Vicount together with the Mainor thirdly fol. 186. If a man be indited that he feloniously stole the goods of another where in truth they bee his owne goods and the goods bee brought into the court as the manour and it be demaunded of him what hee saith to the goods and he disclaime them though he be quitted of the felonie he shall loose the goods and againe fol. 149. if the defendant were taken with the manour and the manour bee caried to the court they in auncient times would arraine him vpon the manour without any appeale or inditement I find this word vsed in the old nat br fol. 110. in this sort where a man maketh a thing by mainour or leuying or estopping in such case he shall haue Assise where it signifieth handie labour and is but an abbreviation of Mainovrey Mainovre see Minouerye Mainprise Manucaptio is compounded of two French words Main i. manus prins i. captus which is a participle of the verbe prendre i. capere excipere captare It signifieth in our common lawe the taking or receiuing a man into friendly custody that otherwise is or might bee committed to the mercie of the prison vpon securitie giuen for his forth comming at a day assigned as to let one to mainprise old nat br fol. 42. is to commit him to them that vndertake his apparence at the time appointed And they that do thus vndertake for any are called Mainpernouns because they do receiue him into their hands pl. cor fol. 178. Of this sort is the word Mainpernable which signifieth him that hath committed such an offence as by law he may be thus bayled For in many cases a man is not mainpernable whereof see Broke titulo Mainprise per totum and Fitz. nat br fol. 249. seqq M. Manwood in the first part of his Forest lawes pag. 167. maketh a great difference betweene Bayle and Mainprise For he that is mainprised quoth he is alwayes said to be at large and to goe at his owne libertie out of ward after the day is set to mainprise vntill the
Mearc which signifieth a peece of mony worth thirty siluer pence Lamb. explicat of Saxon words verbo Mancusa what it now signifieth in our coyne euery man knoweth But in auncient times I find a merke of gold which was the quantitie of eight ounces Stowes annals pag. 32. and againe pag. 691. 12. merkes of golde Troy weight the which was 200. pounds of English mony after which rate euery merke valued 16. pounds 13. shillings 4. pence M. Skene de verbor signific verbo Merke saith that in tractatu de ponderibus mensuris a Mercke signifieth an ounce weight or halfe a pound wherof the dramme is the eighth part like as the ounce is the eighth part of a marcke citing Cassanaeus de consuet Burgund Rub. prim § 7. verbo Solz Turnoys hiis verbis Solidus inquit in iure capitur pro auro quorum 72. faciunt libram auri duodecim vncia faciunt libram octo vnciae mercaÌ„ Market mercatus commeth of the French marche i. emporium forum nundinarium it signifieth with vs the same thing and also the liberty or priuiledge whereby a towne is enabled to keepe a market Old nat br fol. 149. So doth Bracton vse it lib. 2. cap. 24. num 6. lib. 4. cap. 46. where he sheweth that one market ought to bee distant from another sex lencas dimidiam tertiam partem dimidiae The reason thereof both he and Fleta giueth in these wordes Quia omnes rationabiles dietae constant ex 20. milliaribus Diuidatur ergo dieta in tres partes prima auteÌ„ matutina detur euntibus versus mercatum secunda detur ad emendum vendendum quae quidem sufficere debet omnibus nisi sint forte mercatores statarii qui merces deposuerint exposuerint venales quibus necessaria erit prolixior mora in mercatu tertia pars relinquitur redeuntibus de mercatu ad propria Et quaequidem omnia necesse erit facere de die non de nocte propter infidias incursum latronum vt omnia sint in tuto c. lib. 4. cap. 28. § Item refert Marle is a kind of stone or â—halke which men in diuers countries of this Realme cast vpon their land to make it the more fertile It is some where called Malin anno 17. Edvard 4. cap. 4. Marque seemeth to bee a French word signifying notam vel signum or else to come from the German march i. limes it signifieth in the auncieÌ„t statutes of our land as much as reprisals as anno 4. H. 5. cap. 7. Marques and Reprisals are vsed as synonyma And leters of Marque are found in the same signification in the same chapter The reason may be because â—â—e griefes wherevpon these leâ—â—rs are sought and graunted are commonly giuen about the â—ounds and limits of euery contrey or at least the remedie for the same is likest there to bee had by some sodaine inrode happing of such recompence of the iniurie receiued as may most conueniently be lighted vpon See Reprisals See Marches Marquis Marchio by the opinion of Hotom verbo Marchio in verbis feudalibus commeth of the German March i. limes signifiing originally as much as Custos limitis or Comes praefectus limitis of these Zasius thus writeth de Marchione nihil compertuÌ„ est nisi quod Gothicum vocabulum putamus And afterward thus Huiusmodi Marchionum siue vt nos appellamus Margraphiorum origo in limitaneos praepositos siue duces referenda Margraphis dicti quòd limitibus quos vulgò marken appellamus graphii id est praepositi fuerunt c. For in those teritories that haue naturally noe bounds of great strength or defence there is neede of wise and stout men toward their borders for the keeping out of neighbour enemies But here in England though we haue a Lord warden of the marches northward and a warden of the cinque ports toward the south east and were wont to haue Lo. Marchers between vs and Wales that serued this turne yet those which we call Marquises are lords of more dignity without any such charge and are in honour and accompt next vnto Dukes At this day I know but one in England and that is the Marquis of Winchester being of that noble familie of the Powlets See Cassanaeus de consuetud Burg. pag. 15. Marrow was a lawyer of great accompt that liued in Henry the seuenth his daies whose learned readings are extant but not in print Lamb. Eiren. li. pri cap. 1. Marterns see Furre Master of the Rols Magister rotulorum is an AssistaÌ„t vnto the Lord Chauncelour of England in the high court of Chauncery and in his absence heareth causes there and giueth orders Crompt Iurisd fol. 41. His title in his patent as I haue heard is Clericus paruae bagae custos rotulorum domus conuersorum This domus conuersorum is the place where the rols are kept so called because the Iewes in auncient times as they were any of them brought to christianity were bestowed in that house separatly from the rest of their nation But his office seemeth originally to haue sprong from the safe keeping of the Roules or records of inditements passed in the kings courts and many other things He is called clerke of the rols anno 12. R. 2. ca. 2. and in Fortescue his booke cap. 24. and no where master of the rols vntil anno 11. Hen. 7. cap. 20. and yet anno 11. einsdem cap. 25. he is also called clerk In which respect Sir Thomas Smith li. 2. ca. 10. de Repnb Angl. well saith that he might not vnfitly be called Custos Archiuorum He seemeth to haue the bestowing of the offices of the sixe clerks anno 14. 15. Hen. 8. cap. 8. Master of the mint anno 2. Hen. 6. cap. 14. he is now called the Warden of the mint whose office see in Mint Master of the court of Wards and Liueries is the cheife and principall officer of the court of wards and liueries named and assigned by the king to whose custodie the seale of the court is committed He at the entring vpon his office taketh an oath before the Lord Chauncelour of England well and truly to serue the King in his office to minister equal iustice to rich poore to the best of his cunning witte and power diligently to procure all things which may honestly and iustly be to the kings aduaÌ„tage and profit and to the augmentation of the rights and prerogatiue of the crowne truly to vse the kings seale appointed to his office to end eauour to the vttermost of his power to see th 〈…〉 king iustly aunswered of all suc 〈…〉 profits rents reuenewes a 〈…〉 issues as shall yearely rise grow or be due to the king in his office from time to time to deliuer with speed such as haue to do before him not to take or receiue of any person any gift or reward in any case or mater depending before him or wherein the king shall be party
to them and their successours See Appropriation Prorata portionis See Onerando pro rata portionis Protection protectio hath a generall and a speciall signification In the generall it is vsed for that benefite and safetie that euery subiect or Denizen or alien specially secured hath by the Kings lawes And thus it is vsed anno 25. Ed. tertii capite 32. Protection in the speciall signification is vsed for an exemption or an immunitie giuen by the King to a person against suites in lawe or other vexations vpon reasonable causes him thereunto moouing which I take to be a braunch of his prerogatiue And of this protection Fitzh maketh two sortes in his nat br fol. 28. The first forme or sort he calleth a protectiō cum clausula volumus wherof he mentioneth foure particulars A protection quia profecturus for him that is to passe ouer sea in the kings seruice A protection quia moratur for him that is abroad in the Kings seruice vpon the sea or in the marches anno 7. H. 7. cap. 2. A protection for the Kings debter that he be not siewed or attached vntill the King be payed his debt See anno 15. Ed. 3. This some Ciuilians call moratoriam which see In singularibus Marantae verb. Princeps pag. 79. col 2. And a protection in the kings seruice beyond the seas or on the marches of Scotland whereof you may reade something anno 1. R. 2. cap. 8. See the Regist orig fol. 23. and Britton cap. 123. The second forme of protection is tearmed cum clausula Nolu 〈…〉 which is graunted most commonly to a spirituall company for their immunitic from taking of their catell by the Kings ministers But it may be graunted also to one man spirituall or temporall Of these things reade the same authour and the formes of these writs See also in the Register originall fol. 22. 23. And see the new Expositour of lawe termes to what action the kings protection doth not extend See also the new booke of Entries verbo Protection Protonotarie protonotarius See Preignetarie Protestation protestatio is as Iustice Walsh defineth it a defence or safegard to the partie which maketh it from being cōcluded by the act he is about to doe that issue cannot be ioyned vpon it Plowden fol. 276. b. whereof see the Register original fol. 306. b. And see Protest Protest protestari hath two diuers applications one is by way of cautell to call witnesse as it were or openly to affirm that he doth either not at all or but after a sort yeeld his consent to any act as vnto a proceeding of a Iudge in a court wherein his iurisdiction is doubtfull or to answer vpon his oath farder then he by lawe is bounde See Plowden casu Gresbroke fol. 276. b. and the Register orig fol. 306. b. Another is by way of complaint to protest a mans bill For example if I giue mony to a Merchant in Fraunce taking his bill of exchange to be repayed in England by one to whome he assigneth me if at my comming I find not my selfe satisfied to my contentment but either delayed or denyed then I goe into the Burse or some open concurse of Merchants and protest that I am deceiued by him And thereupon if he haue any goods remaining in any mans hands within the Realme the lawe of Merchants is that I be paid out of them Prouuer Probator See Approuuer anno 5. H. 4. ca. 2. See Approuours Prouince Prouincia was vsed among the Romans for a Country without the compasse of Italie gained to their subiection by the sword wherevpon the part of Fraunce next the Alpes was soe called of them when it was in their dominion and of that carieth the same name at this present But with vs a province is most vsually taken for the circuit of an Archebishops Iurisdiction as the Province of Canterbury and the province of Yorke anno 32. H. 8. cap. 23. anno 33. eiusdem cap. 31. yet it is vsed diuers times in our statutes for seuerall parts of the Realme Provinciall Prouincialis is a cheife gouernour of an order of Friers anno quar Henr. quar cap. 17. Protoforestarius was he whom the auncient kings of this Realme made chiefe of Winsour forest to heare all causes of death or mayhem or of slaughter or of the Kings deare within the Forest Camd. Britan. pag. 213. See Iustice of the Forest Prove See Profe Prouision Provisio is vsed with vs as it is vsed in the Canon lawe for the providing of a Bishop or any other person of an ecclesiasticall liuing by the Pope before the Incumbent be dead It is also called gratia expectatiua or Mandatum de providendo The great abuse whereof in the Pope through all Christendome heretofore you may read not only in Duarenus de sacris ecclesiae ministoriis beneficiis lib. 3. cap. 2. but also for England particularly in diuers statuts of the Realme viz. anno 25. Ed. 3. cap. 22 sttat 4. statu 5. commonly called the statute de prouiscribus anno 27. eiusdem cap. i. anno 38. eiusdem stat 2. cap. 1. 2. 3. 4. anno 38. eiusdem anno 2. Rich. 2. cap. 7. anno 3. eiusdem cap. 3. anno 7. eiusdem cap. 12. anno 12. eiusdem cap. 15. anno 13. eiusdem stat 2. cap. 2. 3. anno 16. eiusdem cap. 5. anno 2. H. 4. cap. 3. 4. anno 5. eiusdem cap. pri anno 7. eiusdem cap. 6. 8. anno 9. eiusdem cap. 8. anno 3. H. 5. cap. 4. See Praemunire Provisour Provisor is he that sieweth to the court of Rome for a prouision old nat br fol. 143. See Provision Proviso is a condition inserted into any deede vpon the obseruance wherof the validitie of the deede consisteth which forme of condition seemeth to be borrowed from Fraunce for Pourve u Gallicum semper conditionem inducit Tiraquel tomo 3. pag. 216. Our common lawyers say that it sometime signifieth but a couenant whereof you haue a large disdispute in the 2. booke of Sir Ed. Cokes reports in the Lord Cromwels case It hath also another signification in maters Iudiciall as if the plaintife or demaundant desist in prosecuting an action by bringing it to a triall the defendant or tenent may take out the venire facias to the Shyreeue which hath in it these words Prouiso quòd c. to this ende that if the plaintife take out any writ to that purpose the shyreeue shall summon but one Iurie vpon them both See old natura breuium in the writ Nisi prius fol. 159. Purchas See pourchas Purfles of a womans growne anno 33. H. 8. cap. 5. Purgation Purgatio is a cleering of a mans selfe from a crime whereof he is probably and publiquely suspected and thereof denounced to a Iudge Of this there was great vse in England touching maters of felonie imputed to Clerks in former time as appeareth by Stawnf pl.
writ and not those that he houldeth of course or custome And in that case also it may be gathered out of the same authour that he hath a record but with the testimony of those annexed that be suiters to the Court. Which seemeth to agree with Bractons words aboue specified Seruiens Hundredi habet recordum in testimonio proborum hominum And to this purpose read Glanuile lib. 8. cap. 8. 9. 10. One Iustice vpon view of forcible detinew of land may record the same by statute anno 15. R. 2. cap. 2. the Maior and Constables of the Staple haue power to record recognisances of debt taken before them anno 10. H. 6. ca. 1. Brooke titulo Record seemeth to say that no court ecclesiasticall is of record how truly it is to be inquired For Bishops certifiing bastardy bigamy excommunication the vacancy or plenarty of a Church a mariage a diuorce a spirituall intrusion or whether a man be professed in any religion with other such like are credited without farder enquiry or controlment See Brooke titulo Bastardy See Fleta lib 6. ca. 39. 40. 41. 42. Lamb. cirenarcha lib pri cap. 13. Glanuile li. 7. ca. 14. 15. the Register originall fol. 5. b. Bracton lib. 5. tracta 5. ca. 20. nu 5. Britton ca. 92. 94. 106. 107. 109. Doct. and Stud. li. 2. ca. 5. but especially Cosius apologie parte pri ca. 2. And a testament shewed vnder the seale of the Ordinary is not trauersable 36. H. 6. 31. Perkins Testament 491. Fulb. paral fol. 61. b. But it may be that this opinion groweth from a difference betweene that law whereby the court Christian is most ordered and the common law of this land For by the ciuile or canon law no instrument or record is held so firme but that it may be checked by witnesses able to depose it to be vntrue Co. plu◠valere quod agitur quà m quod simulate concipitur ca. cùm Iohannes 10. extra de fide instrumentorum Whereas in our common law against a record of the Kings Court after the terme wherein it is made no witnes can preuaile Britton ca. 109. Coke lib. 4. Hindes case fol. 71. lib. assisarum fol. 227. nota 21. This reconciliation may be iustified by Brooke himselfe titulo Testaments num 4. 8. 14. and by Glanuile lib. 8. cap. 8. The King may make a court of record by his graunt Glanuil li. 8. ca. 8. Britton cap. 121. as for example Queene Elizabeth of worthy memory by her Charter dated 26. Aprilis anno 3. regni sui made the Consistory Court of the Vniuersity of Cambridge a Court of record There are reckoned among our common lawyers three sorts of records viz A record iudiciall as attainder c. A record ministeriall vpon oath as an office found A record made by conueyance by consent as a fine deede enrolled or such like Coke li. 4. Andrew Ognels case fo 54. b. Recordare facias or recordari facias is a writ directed to the Shyreeue to remoue a cause depending in an inferiour court to the Kings bench or common plees as out of a court of auncient Demesn Hundred or Countie Fitz. nat br fol. 71. B. out of the countie Court idem fo 46. B. or other courts of record idem fol. 71. C. 119. K. Howbeit if you will learne more exactly where and in what cases this writ lyeth reade Brooke in his Abridgm titulo Recordare pone It seemeth to be called a recordare because the forme is such that it commaundeth the Shyreeue to whom it is directed to make a record of the proceeding by himselfe and others and then to send vp the cause See the Register verbo Recordare in the Table of the originall Writs See Certiorart See Accedas ad Curiam Recorder recordator commeth of the French recordeur i. talis persona quae in Ducis Curia â iudicio faciendo non debet amoueri Grand Custumarie of Norm cap. 107. 121. Whereby it appeareth that those which were necessarie Iudges in the Duke of Normandies Courts were called Recorders and who they were is shewed in the ninth chapter of the said booke And that they or the greater part of them had power to make a record it is euident in the chapter 107. Here in England a Recorder is he whome the Maior or other Magistrate of any citie or towne corporate hauing Iurisdiction or a Court of record within their precincts by the Kings graunt doth associate vnto him for his beter direction in maters of Iustice and proceedings according vnto lawe And he is for the most part a man well seene in the common lawe Recordo processis mittendis is a writ to call a Record together with the whole proceeding in the cause out of one court into the Kings Court Which see in the Table of the Register orig how diuersly it is vsed Recordo vtlagariae mittendo is a writ Iudiciall which see in the Register iudicial fol. 32. Recouerie Recuperatio cōmeth of the French Recouvrer i. Recuperare It signifieth in our commō lawe an obteining of any thing by Iudgement or triall of lawe as evictio doth among the Ciuilians But you must vnderstand that there is a true recouerie and a feigned A true Recouerie is an actuall or reall recouerie of any thing or the value thereof by Iudgement as if a man siewed for any land or other thing moueable or immoueable and haue a verdict and Iudgement for him A feigned recouerie is as the Ciuilians call it quaedam fictio iuris a certaine forme or course set downe by lawe to be obserued for the beter assuring of lands or tenements vnto vs. And for the beter vnderstanding of this reade West parte 2. symbol titulo Recoveries sect pri who saith that the end and effect of a Recouerie is to discontinue and destroy estates Tayles Remainders and Reuersions and to barre the former owners thereof And in this formality there be required 3. parties viz. the Demaundant the Tenent and the Vowchee The Demaundant is he that bringeth the writ of Entrie and may be termed the Recouerer The Tenent is he against whom the writ is brought and may be termed the Recoveree The Vowchee is he whom the tenēt vowcheth or calleth to wartantie for the land in demaund West vbi supra In whom you may reade more touching this mater But for example to explane this point a man that is desirous to cut of an estate tayle in lands or tenements to the end to sell giue or bequeath it as him self seeth good vseth his frend to bring a writ vpon him for this land He appearing to the writ saith for him selfe that the land in question came to him or his auncesters from such a man or his auncester who in the conueiance thereof bound him selfe and his heires to make good the title vnto him or them to whome it was conueied And so he is allowed by the court to call in this third man to
Kings house anno 25. Ed. 3. statute 5. ca. 21. Stillyard Guilda Theutonicorum anno 22. H. 8. ca. 8. anno 32. eiusdem ca. 14. is a place in London where the fraternity of the Easterling Merchants otherwise the Merchants of Hawnse and Almaine anno pri Ed. 6. cap. 13. Are wont to haue their aboade see Geld. It is so called of a broad place or courte wherein steele was much sould vpon the which that house is now founded Nathan Chitraens See Hawnse Stone of woll Petra lanae see weights See Sarpler It ought to weigh fourteene pounds yet in some places by custome it is more See Cromptons Iustice of peace fol. 83. b. Straife alias Stray See Estrae Straites anno 18. H. 6. ca. 16. Streme workes is a kinde of worke in the Stannaries for saith M. Camden titulo Cornwall pag. 119. Horum Stannariorum siue metallicorum operum duo sunt genera Alterum Lode-works alterum streme-works vocant Hoc in locis inferioribus est cùm Fossis agendis stanni venas sectantur fluuiorum alueos subinde deflectunt illud in locis aeditioribus cùm in montibus puteos quos Shafts vocant in magnam altitudinem defodiunt cuniculos agunt These you may read mentioned anno 27. H. 8. ca. 23. Stirks Strip See Estreapement Stuard alias steward senescallus seemeth to be compounded of Steede and ward and is a word of many applications yet alway signifieth an officer of cheife accoumpte within the place of his sway The greatest of these is the Lord high Steward of England whose power if those antiquities be true which I haue read is next to the kings and of that heighth that it might in some sort match the Ephori amongst the Lacedemonians The custome of our commonwealth hath vppon great consideration and policie brought it to passe that this high Officer is not appointed for any long time but onely for the dispatch of some especiall businesse at the arraignment of some Noble man in the case of treason or such like which once ended his commission expireth Of the high Steward of Englands Court you may reade Cromptons Iurisdiction fol. 82. I haue reade in an auncient manuscript of what credit I know not that this officer was of so great power in auncient times that if any one had sought iustice in the Kings court and not found it he might vpon complaint thereof made vnto him take those petitions and reseruing them to the next Parlament cause them there to bee propounded and not onely so but also in the presence of the King openly to rebuke the Chaunceler or any other Iudge or officer whom he found defectiue in yeelding iustice And if in case the Iudge or officer so reprehended did alledge that his defect grew from the difficultie of the case insomuch as he durst not aduenture vpon it then the case being shewed and so found the Lord steward together with the Constable of England there in the presence of the King and Parlament might elect 25. persons or more or fewer according to their discretion and the case or cases in question some Earles some Barons some Knights some Citizens and Burgesses which vpon deliberation should set downe what they thought iust and equal and their decree being read and allowed by Parlament did stand as a law for euer fardermore if the Chaunceler or other Iudge or officer could not well approue that the delay of iustice complained of grew from iust difficultie by reason that the case in question was formerly determined by lawe or statute then might the steward on the Kings behalfe admonish him of his negligence and will him to be more carefull and studious Or if there appeared malice or corruption then the King and Parlament was wont to remoue him and assigne another of better hope to the place Lastly if the king had about him any such euill Counceller as aduised him to things vniust or vnanswerable to his Maiestie as tending either to the disherifon of the Crowne publike hurt or destruction of the subiect The office of the Steward was taking to him the Constable and other great men with some of the Commons and giuing notice to the King of their intention to send to that Counseler and will him to desist from misleading the king yea if need so required to charge him to stay no longer about him but to depart from the Court which if he neglected to performe then they might send to the King and will him to remoue him and if the king refused then they might take him as a publike enemie to the King and Realme seise on his goods and possessions and commit his body to safe custody vntill the next Parlament there to be Iudged by the whole kingdome examples are brought of Godwin Earle of Kent in the time of King Edward next before the Conquerour of Hubert Burgh Earle of the same County in the reigne of Henry the third and of Peter Gaueston in Edward the seconds daies But experience as I said hath found this officer more daungerous then profitable and therefore hath time taught though not wholly to suppresse him yet to limite him to particular occasion and to restraine his power Then is there the Steward of the Kings most honourable houshould anno 24. H. 8. cap. 13. whose name is changed to the name of great Master anno 32. eiusdem cap. 39 But this statute was repealed by anno prim Mar. 2. Parlam cap. 4 and the office of the Lord Steward of the Kings houshold reuiued where you may at large reade diuers things touching his office As also in Fitzh nat br fol. 241. B. Of this Officers auncient power reade Fleta lib. 2. cap. 3. There is also a Steward of the Marshalsea pl. cor fol. 52. anno 33. H. 8. cap. 12. To be short this word is of so great diuersitie that there is not a corporation of any accompt or house of any honour almost through the realme but it hath an officer toward it of this name A steward of a maner or of a houshold what he is or ought to be Fleta fully describeth lib. 2. cap. 71. 72. Straunger commeth of the French estranger i. alienare It signifieth in our Language generally a man borne out of the land or vnknowne but in the lawe it hath an especiall signification for him that is not priuie or a party to an act as a Straunger to a iudgement oldna br fol. 128. is he to whome a iudgement doth not belong And in this signification it is directly contrarie to partie or priuie See Priuie Submarshall submarescallus is an officer in the Marshal sea that is deputie to the chiefe Marshall of the Kings house commonly called the Knight Marshall and hath the custody of the prisoners there Cromptons Iurisdict fol. 104. He is otherwise called Vnder-marshall Subpoena is a writ that lyeth to call a man into the Chauncerie vpon such case onely as the common lawe faileth in and hath not prouided