called bannimertum which was aunelently tearmed depertatlo if it were perpetual or religatio in insulam if for a time Vincentius de Franchis Petrus de Bellug a in suo speculo fol. 125. num 4. Barbaries Oxycantha is a thornie shrub known to most men to bear a berry or frâ—â—t of a sharp taste These berries as also the leaves of the said tree be medicinable as Goard in his Herbal sheweth lib. 3. cap. 21. You find them mentioned among Drugges to be garbled Anno 1 Jacob. cap. 9. Bargain and sale as it seemeth by Westpart 1. symb lib. 2. sect 436 is properly acontract made of mannors lands renements hereditaments other things transferring the property thereof from the bargainer to the bargainee But the Author of the new terms of Law addeth that it ought to be for money saying farther that this is a good contract for Land c. and that Fee-simple passeth thereby though it be not said in the deed To have and to hold the land to him and to his heire and though there be no liverie and selfin made by the seller so it be by deed intended sealed and enrolled either in the County where the land lyeth or within one of the Kings Courts of Records at Westminster within six moneths after the date of the Deed intended an 27 H. 8. cap. 16. Barkarie Barkaria is a heath house New book of Entries titulo Assise corp poliâ— 2. Some call it a Tan-house Baron Barao is a French word and hath divers fignifications here in England First it is taken for a degree of Nobility next unto a Vicount Bracton lib. 1. cap. 8. num 4. where he saith they be called Barones quasi robur belli And in this fignification it is borrowed from other Nations with whom Baroniae be as much as Provinciae Petrus Belluga in speculo princip fol. 119. So Barones be such as have the government of Provinces as their Fee holden of the King fome having greater some lesser authority within their territories as appeareth by Vincentius de Franobis in divers of his disceisions 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 have any such Mannor or Lordship Yea I have heard by men very learned in our Antiquities that neer after the Conquest all such came to the Parliament and sate as Nobles in the upper-house But when by experience it appeared that the Parliament was too much pestered with such multitudes it grew to a custome that none should come but such as the King for their extraordinary wisedome or quality thought good to call by Writ which Writ ran hac vice tantùm After that again men feeing this estate of Nobility to be but casual and to depend meerely upon the Prineâ—s pleasure they sought a more certain hold and obtained of the King letters patents of this dignity to them and their heires male And these were called Barons by letters patents or by creation whose postority be now by inhefitance and true delcent of Nobility those Barons that be called Lords of the Barliament of which kind the King may create more at his pleasure It is thought neverthelesse that there are yet Barons by writ as well as Barons by letters patents and that they may be discerned by their titles because the Barons by writare those that to the title of Lord have their own surnames annexed as Crompton North Norice c. whereas the Barons by letters patents are named by their Barronies These Barons which were first by writ may now justly also be called Barons by prescription for that they have continued Barons in themselves and their auncestors came beyond the memory of man The original of Barons by writ Master Camden in his Britaunia Pag. 109. in meo referreth to Henry the third Barons by letters patents or creation as I have heard among our Antiquaries were first created about the days of Henry the sixth the manner of whose creation read in Master Stows Annals pag. 1121. Of all these you may also read Mast Ferns glory of Generofity pa. 125. 126. And see M. Skene de ver signif verb. Baro. with Sir Thomas Smith lib. 1. dâ—â—â—pub Anglor cap. 17. who saith that none in England is created Baron except he can dispend a thousand pound by year or a thousand markes at the least To these former Master Seager by office Norrey lib. 4. cap. 13. of Honour civill and militariy addeth a â—ird kind of baron calling them Barons by conure and those be the Bishops of the land all which by vertue of Baronies annexed to their Bishopricks have alwaies had place in the upper house of Parliament and are termed by the name of Lords Spiritual Baron in the next signification is an Officer as Barons of the Exchequer be to the King of which the principal is called Lord chief Baron capitalis Baro and the three other for so many there be are his Assistants in causes of Justice between the King and his subjects touching causes appertaining to the Exchequer The Lord chief Baron at this day is the chief Judge of the Court and in matter of Law Information and Plea answereth the Barr and giveth order for judgement thereupon He alone in the Term time doth sit upon Nist prius that come out of the Kings Remembrancers office or out of the office of the Clerk of the Pleas which cannot be dispatched in the mornings for want of time He taketh recognisancea for the Kings debts for appearances and observing of orders He taketh the presentation of all the officers in Court under himself and of the Maior of London and seeth the Kings Remembrancer to give them their oaths He taketh the declaration of certain receivers accounts of the lands of the late augmentation made before him by the Anditors of the Shires He giveth the two parcel makers places by vertue of his office The second Baron in the absence of the Lord chief Baron answereth the Barr in matters aforesaid he also taketh recognisances for the Kings debts apparences and observing of orders He giveth yearly the oath to the late Maior and Escheatour of London for the true account of the profits of his office He taketh a declaration of certain receivers accounts He also examineth the letters and sums of such Sheriffs forrain accounts as also the accounts of Escheatours and Collectours of subsidies and Fifteens as are brought unto him by the Auditors of the Court. The third Baron in the absence of the other two answereth the barr in matters aforesaid he also taketh recognisances as aforesaid He giveth yearly the oath of the late Major and Gawger of London for his true accounting He also taketh a declaration of certain receivers accounts and examineth the letters and sums of such of the former accountants as are brought unto him The fourth Baron is alwayes a
places they there have this commissary is but superfluous and most commonly doth rather vex and disturb the Country for his lucre than of conscience seek to redresse the lives of offenders And therefore the Bishop taking prestation money of his Archdeacons yearely pro exteriori jurisdictione as it is ordinarily called doth by super-onerating their circuit with a commissary not only wrong Archdeacons but the poorer sort of subjects much more as common practice daily teacheth to their great woe Commission commissio is for the most part in the understanding of the Common law as much as delegatio with the Civilians See Brook titulo Commission and is taken for the warrant or Letters Patents that all men exercising jurisdiction either ordinary or extraordinary have for their power to hear or determine any cause or action Of these see divers in the table of the Register original verbo Commissio Yet this word sometime is extended further than to matters of judgement as the Commission of Purveyers or takers anno 11 H. 4. cap. 28. But with this epitheton High it is most notoriously used for the honourable Commission Court instituted and founded upon the Statute 1 Eliz. cap. 1. for the ordering and reformation of all offences in any thing appertaining to the jurisdiction ecclesiastical but especially such as are of higher nature or at the least require greater punishment than ordinary jurisdiction can afford For the world being grown to that loosenesse as not to esteem the censure of excommunication necessity calleth for those censures of fines to the Prince and imprisonment which doe affect men more neerly Commission of rebellion commissio rebellionis is otherwise called a writ of Rebellion Breve Rebellionis and it hath use when a man after proclamation made by the Sheriff upon an order of the Chauncery or court of Statrechamber under penalty of his allegeance to present himself to the Court by a certain day appeareth not And this commission is directed by way of command to certain persons to this end that they or three two or one of them doe apprehend or cause to be apprehended the party as a rebell and contemner of the Kings lawes wheresoever they find him within the Kingdom and bring him or cause him to be brought to the court upon a day therein assigned The true copie of this commission or Writ you have in Cromptons divers jurisdictions Court de Starre-Chamber as also in West tractat touching proceedings in chancery Sectio 24. Commissioner commissionarius is he that hath commission as Letters Patents or other lawful warrant to execute any publike office as Commissioners of the office of Fines and Licenses West parte 2. symbol titulo Fines sect 106. Commissioners in Eyr anno 3 Ed. 1. cap. 26. with infinite such like Committee is he to whom the consideration or ordering of any matter is referred either by some Court or consent of parties to whom it belongeth As in Parliament a Bill being read is either consented unto and passed or denied or neither of both but referred to the consideration of some certain men appointed by the house farther to examine it who thereupon are called Committees Committee of the King West part 2. symbol titulo Chancerie sect 144. This word seemeth to be something strangely used in Kitchin fol. 160. where the widow of the Kings Tenent being dead is called the Committee of the King that is one committed by the ancient law of the land to the Kings care and protection Common bench bancus communis is used some time for the Court of Common plees anno 2 Ed. 3. cap. 11. So called as M. Cambden saith in his Britannia pag. 113. quia communia placita inter subditos ex jure nostro quod commune vocant in hoc disceptantur that is the Plees or Controversies tryed between Common persons Common fine finis communis of this Fleta hath these words Quibus expeditis speaking of the businesse finished by Justices in Eyr consueverunt Justiciarii imponere villatis juratoribus hundredis toti comitatui concelamentum omnes separatim amerciare quod videtur voluntarium cùm de per jurio concelauâ—ento non fuerint convicti sed potius dispensandum esset cum eis quod anim as in statera posuerint pro pacis conservatione lib. 1. cap. 48. § Quibus And a little following § Et provisum he hath these words Et provisum ests quòd communes misericordiae vel fines comitatuum amerciatorum in finibus ininerum Justiciariorum ante recessum ipsorum Justiciariorum per sacramenta militum aliorum proborum hominum de comitatu eodem affidentur super eos qui contribuere debent unde particulae Justiciariis liberentur ut cum aliis extractis suis ad Scaccarium liberare valeant These last words of his have relation to the statute Westminst pr. cap. 18. which read See Fine Common Plees communia placita is the Kings Court now held in Westminster Hall but in antient time moveable as appeareth by the Statute called Magna charta cap. 11. as also anno 2 Ed. 3. cap. 11. and Pupilla oculi parte 5. cap. 22. But M. Gwin in the Preface to his Readings saith that until the time that Henry the third granted the great Charter there were but two Courts in all called the Kings Courts whereof one was the Exchequer the other the Kings Bench which was then called Curia Domini regis and Aula regia because it followed the Court or King and that upon the grant of that Charter the Court of Common plees was erected and setled in one place certain viz. at Westminster And because this Court was setled at Westminster wheresoever the King lay thereupon M. Gwin ubi supra saith that after that all the Writs ran Quòd sit coram Justiciariis meis apud Westmonasterium whereas before the party was commanded by them to appear coram me vel Justiciariis meis simply without addition of place as he well observeth out of Glanvile and Bracton the one writing in Henry the seconds time before this Court was erected the other in the latter end of Henry the thirds time who erected this Court. All civil causes both real and personal are or were in former times tryed in this Court according to the strict law of the Realm and by Fortescue cap. 50. it seemeth to have been the onely Court for real causes The chief Judge thereof is called the Lord chief Justice of the Common Plees accompanied with 3 a 4 Assistants or Associates which are created by Letters Patents from the King and as it were enstalled or placed upon the Bench by the Lord Chancelor and Lord chief Justice of the Court as appeareth by Fortescue cap. 51. who expresseth all the circumstances of this admission The rest of the Officers belonging to this Court are these The Custos brevium three Protonotaries otherwise called Prenotaries Chirographer Filazers 14. Exigenters 4. Clerk of the Warrants Clerk of the Juries or Jurata
quod constituimus vos Justiciarium nostrum capitalem ad placita coram nobis terminandum durante bene-placito nostro Teste c. And Bracton in the place now recited speaking of the Common Plees saith that Sine Warranto jurisdictionem non habet which I think is to be understood of a Commission under the great Seal This Court was first called the Kings Bench because the King sat as Judge in it in his proper Person and it was moveable with the Court. See anno 9 H. 3. cap. 11. More of the jurisdiction of this Court see in Crompton ubi supra See Kings Bench. The oath of the Justices see in the Statute anno 18 Edw. 3. stat 4. See Oatb Justice of common plees Justiciarius communium placitorum is also a Lord by his Office and is called Dominus Justiciarius communium placitorum and he with his assistants originally did hear and determine all causes at the Common law that is all civil causes between common persons as well personal as real for which cause it was called the Court of Common Plees in opposition to the Plees of the Crown or the Kings Plees which are special and appertaining to him only Of this and the Jurisdiction hereof see Cromptons jurisdiction fol. 91. This Court was alwayes setled in a place as appeareth by the Statute anno 9 H. 3. cap. 11. The oath of this Justice and his Associates see anno 18 Edw. 3. Stat. 4. See Oath Justice of the Forest Justiciarius Forestae is also a Lord by his Office and hath the hearing and determining of all offences within the Kings Forest committed against Venison or Vert of these there be two whereof the one hath jurisdiction over all the Forests on this side Trent the other of all beyond The chiefest point of their Jurisdiction consisteth upon the articles of the Kings Charter called Charta de Foresta made anno 9 H. 3. which was by the Barons hardly drawn from him to the mitigation of over cruel ordinances made by his predecessors Read M. Camdens Brit. pag. 214. See Protoforestarius The Court where this Justice sitteth and determineth is called the Justice seat of the Forest held every three years once whereof you may read your fill in M. Manwoods first part of Forest lawes pag. 121. 154. pag. 76. He is sometimes called Justice in Eyre of the Forest See the reason in Justice in Eyre This is the only Justice that may appoint a Deputy per statutum anno 32 H. 8. cap. 35. Justices of Assise Justiciarii ad capiendas Assisas are such as were wont by special Commission to be sent as occasion was offered into this or that County to take Assises the ground of which polity was the ease of the Subjects For whereas these actions passe alway by Jury so many men might not without great hinderance be brought to London and therefore Justices for this purpose were by Commission particularly authorised and sent down to them And it may seem that the Justices of the Common Plees had no power to deal in this kind of businesse until the statute made anno 8 Richard 2. cap. 2. for by that they are enabled to take Assises and to deliver Gaols And the Justices of the kings Bench have by that Statute such power affirmed unto them as they had one hundred years before that Time hath taught by experience that the better sort of Lawyers being fittest both to judge and to plead may hardly be spared in term time to ride into the Countrey about such businesse and therefore of later years it is come to passe that these commissions ad capiendas Assisas are driven to these two times in the year out of term when the Justices and other may be at leasure for these Controversies also wherupon it is also fallen out that the matters wont to be heard by more general Commission of Justices in Eyr are heard all at one time with these Assises which was not so of old as appeareth by Bracton l. 3. c. 7. 2. nu Habet etiam Justiciarios itinerantes de Comitatu in Comitatum quandoque adomnia placita quandoque ad quaedam specialia sicut Assisas c. et ad Gaolas deliberandas quandoque ad unicam vel duas non plures And by this means the Justices of both Benches being justly to be accounted the fittest of all others others their Assistants as also the Sergeant at law may be imployed in these affaires who as gravest in years so are they ripest in judgement and therefore likest to be void of partiality for being called to this dignity they give over practice anno 8 R. 2. cap. 3. but this alway to be remembred that neither Justice of either Bench nor any other may be Justice of Assise in his own Countrey anno 8 R. 2. cap. 2. anno 33 H. 8. cap. 24. Lastly note that in these dayes though the self same men disparch businesse of so divers natures and all at one time which were wont to be performed by divers and at severall times yet they doe it by several commissions Cromptons jurisdictions fol. 210. For those who be in one word called Justices of Circuit and twice every year passe by two and two through all England have one Commission to take Assises another to deliver Gaols another of Oyer and Terminer That Justices of Assise and Justices in Eyre did antiently differ it appeareth anno 27 Ed. 3. cap. 5. and that Justices of Assise and Justices of Gaol delivery were divers it is evident by anno 4 Ed. 3. cap. 3. The oath taken by Justices of Assise is all one with the oath taken by the Justices of the Kings Bench. Old abridgement of Statutes titulo Sacramentum Justiciariorum See Oath Justices of Oyer and Terminer Justiciarii ad audiâ—ndum Terminandum were Justices deputed upon some especial or extraordinary occasion to hear and deter mine some or more causes Fitzherbert in his natura brevium saith that the Commission a'Oyer and Terminer is directed to certain persons upon any great assembly insurrections hainous demeanure or trespasse committed And because the occasion of granting this commission should be maturely weighed is provided by the Statute anno 2 Ed. 3. cap. 2. that no such commission ought to be granted but that they shall be dispatched before the Justices of the one Bench or other or Justices errants except for horrible trespasses and that by the special favour of the King The form of this commission see in Fitzh natur brev fol. 110. Justices in Eyre Justiciarii itinerantes are so termed of the French Erre i. iter which is an old word as a grand erre i. magnis itineribus proverbially spoken the use of these in antient time was to send them with Commission into divers Counties to hear such causes especially as were termed the Plees of the Crown and therefore I must imagine they were so sent abroad for the ease of the Subjects who must else have been
used in our vulgar talk for the petit Sessions which are yearly kept for the disposing of Servants in service by the Statute anno 5 Elizabeth cap. 4. See Recognisance Statute sessions otherwise called Petit Sessions are a meeting in every Hundred of all the Shires in England where of custome they have been used unto the which the Constables do repair and others both Housholders and servants for the debating of differences between Masters and their Servants the rating of Servants wages and the bestowing of such people in Service as being fit to serve either refuse to seek or cannot get Masters anno 1 Eliz. cap. 4. Statu'o stapulae is a writ that lyeth to take his body to Prison and to seise upon his Lands and goods that hath forfeited a bond called Statute staple Regist orig fol. 151. a. Statutam de laborariis is a writ Iudicial for the apprehending of such labourers as refuse to work according to the Statute Reg. judi fol. 27. b. Statuto Mercatorio is a writ for the imprisoning of him that hath forfeited a bond called the Statute Merchant untill the debt be satisfied Regist origin fol. 146. b. and of these there is one against Lay persons ubi supra and another against Ecclesiastical 148. Stavisaker staphis agria vel herba pedicularis is a medicinable herb the kind and vertues thereof you have set forth in Gerards Herbal lib. 1. cap. 130. The seed of this is mentioned among drugs to be garbled anno 1 Jacob. ca. 19. Stenrerie is used for the same that Stannaries be in the statute anno 4 H. 8. cap. 8 See Stannaries Sterling Sterlingum is a proper epitheton for mony currant within the Realm The name groweth from this that there was a certain pure Coyn stamped first of all by the Easterlings here in England Stows Annals pag. 112. The which I rather believe because in certain old Monuments of our English and broken French I find it written Esterling so Roger Hoveden writeth it parte poster annalium fol. 377. b. M. Skene de verborum sipnific verbo Sterlingus saith thus Sterling is a kind of weight containing 32 corns or grains of wheat And in the Canon law mention is made of five shilling sterling and of a merk sterling ap 3. de arbitriss c. constituit 12. de procurator And the sterling peny is so called because it weighs so many grains as I have sundry times proved by experience and by the law of England the peny which is called the sterling round and without clipping weigheth 32 grains of wheat without tails whereof twenty make an ounce and 12 ounces a pound and eight pound make a gallon of wine and eight gallons maketh a bushell of London which is the eighth part of a quarter Hitherto M. Skene Buchanan lib. 6. saith that the common People think it so termed of Sterling a Town in Scotland Our Lyndwood saith that it is called sterling of the bird which we call a sterling which as he noteth was ingraven in one quarter of the coin so termed cap. Item quia de testamentis vaerb Cent. solides in Glos Stews are those places which were permitted in England to women of prosessed incontinency for the proffer of their bodies to all commers it is derived from the French Estuves i. thermae vaporarium Balneum because wantons are wont to prepare themselves to these venerous acts by bathing themselves And that this is not new Homer sheweth in the 8 book of his Odiss where he reckneth hot bathes among the effeminate sort of pleasures Of these stewes see the statute anno 11 Hen 6. ca. pri Steward See Seneschall and Stuward Steward of the Kings house an 25 Ed. 3. statute 5. cap. 21. Stily ard Guilda Theutonicorum anno 22 H. 8. ca. 8. et anno 32 ejusdem ca. 14. is a place in London where the fraternity of the Easterling Merchants otherwise the Merchants of Hawnse and Almain an pri Ed. 6. cap. 13. are wont have their abode See Geld. It is so called of a broad place or Court wherein Steel was much sold upon the which that house is now founded Nathan Câ—itraeus See Hawnse Stone of wool Petra lanae see Weights See Sarpler It ought to weigh 14 pounds yet in some places by custome it is more See Cromptons Justice of peace f. 83. b. Straife aliâs Stray See Estry Straits anno 18 H. 6. ca. 16. Streme works is a kind of work in the Stanaries for saith M. Camden titulo Cornwall pa. 119. Horum Stanarioâ—um five metallicorum operum duo sunt genera Alterum Lode-works alterum streme works vo cant Hoc in lecis inferioribus est cum Fossis agendis stanni venas sectantur et fluvierum alveos subinde defl ctunt illud in locis aeditiorsbus cum in montibus puteor quod Shafts vcc in t in magnam attitudinem defodiunt et cuniculos agunt These you may read mentioned an 27 H. 8. cap. 23. Stirks Strip See Estreapement SU Suard aliâs steward senescallus seemeth to be compounded of Steed and ward and is a word of many applications yet alway signifieth an officer of chief account 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 have read is next to the Kings and of that height that it might in some sort match the Ephori amongst the Lacedemonians The custom of our Common-wealth hath upon great consideration and policie brought it to passe that this high Officer is not appointed for any long time but only for the dispatch of some especiall businesse at the arraignment of some Nobleman in the case of treason or such like which once ended his Commission expireth Of the high Steward of Englands Court you may read Cromptons Jurisd f. 28. I have read in an antient Manuscript of what credit I know not that this Officer was of so great power in antient times that if any one had sought justice in the Kings Court and not found it he might upon complaint therof made unto him take those Petitions and reserving them to the next Parliament cause them there to be propounded and not only so but also in the presence of the King openly to rebuke the Chancellor or any other Judge or officer whom he found defective in yeilding Justice And if in case the judge or Officer so reprehended did allege that his defect grew from the difficultie of the case insomuch as he durst not adventure upon it then the case being shewed and so â—ound the Lord Steward together wich the Constable of England there in the presence of the King and Parliament might elect five and twenty persons or more or fewer according to their discretion and the case or cases in question some Earls some Barons some Knights some Citizens and Burgesses which upon deliberation should set down what they thought just and equal and their decree being read and allowed by Parliament did
lawyers signifying him to whose use any other man is infeoffed in any Lands or Tenements See the new book of entries verbo uses and in Replevin fol. 508. colum 3. verbo Trespas fol. 606. fol. 123. a. b. colum 3. num 7. CH Chafe wax is an Officer in Chauncery that fitteth the wax for the sealing of the Writs such other instruments as are there made to be sent out This Officer is borrowed from the French For there calefactores cerae sunt qui regiis literis in Cancellaria ceram imprimunt Corasius Chase chacea commeth of the French chasser i. sectari belluas apros cervos It signifieth two things in the Common Law First as much as actus in the Civil law that is a driving of cattel to or from any place as to chase a distress to a fortlet Old nat br fol. 45. Secondly it is used for a receit for Deer and wild beasts of a middle nature between a Forest and a Park being commonly lesse than a Forest and not endued with so many liberties as the Courts of attachment Swain mote and Justice seat and yet of a larger compas and stored with greater diversity both of keepers and wild beasts or game than a park And Crompton in his book of Jurisdictions fol. 148. saith that a Forest cannot be in the hands of a subject but it forth with loseth the name and becommeth a chase and yet fol. 197. he saith that a subject may be lord and owner of a Forest which though it seem a contrariety yet be both his sayings in some sort true For the King may give or alienate a Forest to a subject yet so as when it is once in the subject it leeseth the true property of a Forest because that the Courts called the Justice seat the Swain more and Attachment forthwith do vanish none being able to make a Lord chief Justice in Eyr of the Forest but the King as M. Manwood well sheweth parte 2. of his Forest Lawes cap. 3. 4. And yet it may be granted in so large a manner that there may be Attachment and Swainmote and a Court equivalent to a Justice seat as appeareth by him in the same chapter num 3. So that a Chase differeth from a Forest in this because it may be in the hands of a subject which a Forest in his proper true nature cannot and from a Park in that that it is not inclosed hath not onely a larger compasse and more store of game but of Keepers also and Overseers See Forest Chaleâ—ge calumnia cometh of the French chalenger i. sibâ— asserere is used in the Common law for an exception taken either against persons or things persons as in assise to the Jurors or any one or more of them or in a case of felony by the prisoner at the barre Smith de reâ— Angl. lib. 2. cap. 12. Briton cap. 52. Bracton lib. 2. tract 2. cap. 22. Against things as a declaration Old nat br fol. 76. Chalenge made to the Jurors is either made to the array or to the polles Chalenge to the array is when the whole number is excepted against as partially empaneled chalenge to or by the polle when some one or more are excepted against as not different Terms of the Law Chalenge to the Jurours is also divided into Chalenge principal and Chalenge per cause i. upon cause or reason Challenge principal otherwise by Stawnf pl. cor fol. 157. 158. called peremptorie is that which the Law alloweth without cause alleged or farther examination Lamberd Eirena lib. 4. cap. 14. as a prisoner at the barr arraigned upon felonie may peremptorily chalenge to the number of 20. one after another of the Jurie empaneled upon him alleging no cause but his own dislike and they shall be still put off and new taken in their places But in case of high treason no challenge peremptorie is allowed anno 33 H. 8. cap. 23. Fortescue saith that a prisoner in this case may challenge 35 men c. 27. but that law was abridged by anno 25 H. 8. cap. 3. I cannot here omit to note some difference that in mine opinion I observe between Chalenge principal and Chalenge peremptorie finding peremptorie to be used only in matters criminal and barely without cause alledged more than the prisoners own phantasie Stawnf pl. cor fol. 124. but principal in civil actions for the most part and with naming of some such cause of exception as being found true the law alloweth without farther scanning For example if either party say that one of the Jurors is the son brother cousin or tenent to the other or espoused his daughter this is exception good and strong enough if it be true without farther examination of the parties credit And how far this Chalenge upon children reacheth you have a notable example in Plowden casu Vernon against Manners fol. 425. Also in the plee of the death of a man and in every action real as also every action personal where the debt or dammages amount to 40 marks it is a good Chalenge to any man that he cannot dispend 40 shillings by the year of Free-hold anno 11 H. 7. cap. 21. and Terms of the Law verbo Chalenge The ground of this Chalenge you may see farther in Fleta lib. 4. cap. 8. Chalenge upon reason or cause is when the party doth allege some such exception against one or more of the Jurors as is not forthwith sufficient upon acknowledgement of the truth thereof but rather arbitrable and considerable by the rest of the Jurors as for example if the son of the Juror have married or espoused the daughter of the adverse party Terms of the Law ubi supra This Chalenge per cause seemed to be tearmed by Kitchin chalenge for favour fol. â—2 or rather Chalenge for favour is said there to be one species of Chalenge per cause where you may read what chalenges be commonly accounted principal and what not See the new book of Enteries 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. lib. 4. tract 3. cap. 6. lib. 5. cap. 6. But I doubt Priscian will never forgive him that first strook this blow at him Of Chalenge you may farther read Fleta lib. 1. cap. 32. § Ad quem diem seq Chamberdekins are Irish beggers an 1 H. 5. c. 8. Chamberer is used for a Chamber-maid an 33 H. 8. cap. 21. Chamberlain camerarius vel camberlingus cometh of the French chambellan i. cubicularius vel praefectus cubiculi It is diversly used in our Cbronicles Laws and Statutes as Lord great Chamberlain of England Lord Chamberlain of the Kings house the Kings Chamberlain anno 13 Ed. 1. cap. 41. anno 17 R. 2. cap. 6. to whose office it especially appertaineth to look to the Kings chambers and wardrope and to govern the under ministers
anno 35. H. 8. cap. 26. and the County of Litchfield Cromptons Justice of peace fo 59. a. County is in another signification used for the Countie court which the Sheriff keepeth every month within his charge either by himself or his Deputy anno 2. Ed. 6. ca. 25. Crompt Juris f. 221. Bract. li. 3. c. 7. l. 3. tract 2. cap. 12. Of these Counties or Shires one with another there are reckoned in England 37. beside twelve in Wales The word comitatus is also used for a jurisdiction or territory among the Feudists County court curia comitatus by M. Lamberd is otherwise called conventus in his explication of Saxon words divided into two sorts one retaining the geneeal name as the County-court held every moneth by the Shiereve or his Deputy the under Sheriff wherof you may read in Crompt jurisd f. 231. the other called the Turn held twice every year which see more at large in his place and Cromptons Jurisd fol. 231. This County court had in antient times the cognition of these and other great matters as may appear by Glanvile lib. 1. cap. 2.3.4 by Bracton and Britton in divers places and by Pleta lib 2. cap. 62. But was abridged by the Statute of Magna charta cap. 17. and much more by 1 Ed. 4. cap. unico It had also and hath the determination of certain trespasses and debts under forty shillings Britton cap. 27 28. what manner of proceeding was of old used in this Court see Fleta ubi supra Coursitour See Cursetour Court curia cometh 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 divided the whole number of the Romans sometime also the Senat-house as appeareth by Tully in his Offices nihil est quod dignum nobis aut in foro aut in curta agere possumus which in his oration pro Milone he calleth Templum sanctitatis amplitudinis mentis consilii publici caput urbis c. Court with us signifieth diversly as the House where presently the King remaineth with his ordinary retinue and also the place where Justice is judicially ministred of which you find 32 several sâ—rts in M. Cromptons book of Jurisdictions well described And of them most be courts of record some be not and therefore are accounted base Courts in comparison of the rest Beside these also there are Courts Christian Smith de Repnb Anglor lib. 3. cap. 6. which are so called because they handle matters especially appertaining to Christianity and such as without good knowledg in Divinity cannot be well judged of being held heretofore by Archbishops and Bishops as from the Pope of Rome because he chalenged the superiority in all causes spiritual but sithence his ejection they hold them by the Kings authority virtute magistratus sui as the Admiral of England doth his Court Whereupon it proceedeth that they send out their precepts in their own names and not in the Kings as the Justices of the Kings Courts do And therefore as the appeal from these Courts did lye to Rome now by the statute anno 25 H. 8. cap. 19. it lieth to the King in his Chancerie Court baron curia baronis is a Court that every Lord of a manor which in ancient times were called Barons hath within his own precincts Barons in other Nations have great Territories and jurisdiction from their Soveraignes as may be proved out of Cassanaeus de gloria mundi part 5. consideratio 56. by Vincentius de Franchis descis 211. and many others Bu here in England what they be and have been heretofore see in Baron Of this Court Baron you may read your fill in Kitchin that writeth a large Book of it and of a Court Leet Sir Edward Coke in his fourth Book of Reports amongst his Copy-hold cases fol. 26. b. saith that this Court is two after a sort and therefore if a man having a mannor in a Town and do graunt the inheritance of the Copy-holders thereunto belonging unto another this grantee may keep a Court for the customarie Tenants and accept surrenders to the use of others and make both admittances and graunts the other Court is of Free-holders which is properly called the Court Baron wherein the suters that is the Free-holders be Judges whereas of the other the Lord or his Steward is Judge Court of Pypowders See Pie-powders Court of Requests curia requestarum is a Court of equity of the same nature with the Chancerie principally instituted for the help of such petitioners as in conscionable cases deal by supplication with his Majestie This Court as M. Gwin saith in the Preface to his Readings had beginning from Commission first granted by Henry the eighth to the Masters of Requests whereas before that time by his opinion they had no warrant of ordinary jurisdiction but travelled between the King and the Petitioner by direction from the Kings mouth But Sir Julius Caesar in a Tractate of his painfully and very judiciously gathered from the Records of the same Court plainly sheweth that this Court was 9 Henrici septimi though then following the King and not setled in any certain place neither swayed particularly by the Masters of Requests as now it is but more at large by others of the Kings most Honourable Councel whom he pleased to employ in this service For page 148. of the said Tractate you have the form of the oath then ministred to those that were Judges in this Court and à pag. pri usque ad pag. 46. causes of divers natures which in the said Kings dayes were there handled and adjudged This Court as that right honourable and Learned Knight in a Brief of his upon the same Court plainly proveth was and is parcel of the Kings most honoutable Councel and so alwayes called and esteemed The Judges thereof were alwayes of the Kings most Honourable Councel appointed by the King to keep his Councel board The keeping of this Court was never tyed to any place certain but onely where the Counsel sate the suters were to attend But now of late for the ease of suters it hath been kept in the White-Hall at Westminster and onely in Term time It is a Court of Record wherein Recognizances are also taken by the Kings Councel The form of proceeding in this Court was altogether according to the processe of summarie causes in the Civil Law The persons Plaintiffs and Defendants were alwayes either privileged as officers of the Court or their servants or as the Kings servants or as necessary Attendants of them or else where the Plaintiffs poverty or mean estate was not matchable with the wealth or greatnesse of the Defendant or where the cause meerly contained matter of Equity and had no proper remedie at the Common law or where it was specially recommended from the King to the Examination of his Councel or concerned Universities Colleges Hospitals
words Billa vera or disallow by writing Ignoramus such as they doe approve if they touch Life and Death are farther referred to another Jury to be considered of because the case is of such importance but others of lighter moment are upon their allowance without more work fined by the Bench except the party travers the Inditement or challenge it for insufficiency or remove the cause to a higher Court by Certiorari in which two former cases it is referred to another Jury and in the latter transmitted to the higher Lamb. Eir. li. 4. ca. 7. and presently upon the allowance of this Bill by the Grand Enquest a man is said to be indited Such as they disallow are delivered to the Bench by whom they are forthwith cancelled or torn The Petit Iury consisteth of twelve men at the least and are empaneled as well upon criminal as upon civil causes those that passe upon offences of Life and Death doe bring in their verdict either guiltie or not guilty wherupon the Prisoner if he be found guilty is said to be convicted and so afterward receiveth his judgement and condemnation or otherwise is acquitted and set Free Of this read Fortes cap. 27. Those that passe upon civil causes real are all or so many as can conveniently be had of the same Hundred where the land or tenement in question doth lie and four at the least And they upon due examination bring in their verdict either for the Demandant or Tenent Of this see Fortescue cap. 25 26. According unto which judgement passeth afterward in the Court where the cause first began and the reason hereof is because these Justices of Assise are in this case for the ease of the Country only to take the verdict of the Jury by the vertue of the writ called Nisi prius and so return it to the Court where the cause is depending See Nisi prius Joyn with this the chapter formerly cited out of the Custumary of Normandie and that of King Etheldreds laws mentioned by Master Lamberd verbo Centuria in his explication of Saxon words And by these two words you shall perceive that as well among these Normans as the Saxous the men of this Jury were Associates and Assistants to the Judges of the Court in a kind of equalitie whereas now adayes they attend them in great humility and are as it were at their command for the service of the Court the words set down by M. Lamberd are these In singulis centuriis comitia sunto atque liberae conditionis viri duodeni aetate superiores un à cum praeposito sacra tenentes juranto se aedeo virum aliquem innocentem hand condemnaturos sontemve absoluturos to this joyn also the 69. chapter of the said Custumary See Enquest See 12. Men. See Lamberds Eirenarch lib. 4. cap. 3. pag. 384. Juris utrùm is a writ that lieth for the incumbent whose predecessour hath alienated his lands or tenements the divers uses of which writ see in Fitzh nat br fol. 48. Jurisdictiou Jurisdictio is a dignity which a man hath by a power to doe Iustice in causes of Complaint made before him And there be two kinds of Jurisdictions the one that a man hath by reason of his fee and by vertue thereof doth right in all plaints concerning his fee The other is a Iurisdiction given by the Prince to a Bayliff this division I have in the Custumary of Normandie cap. 2. which is not unapt for the practice of our Commonwealth for by him whom they call a Bayliff wee may understand all that have commission from the Prince to give judgement in any cause The Civilians divide jurisdictionem generally in imperium jurisdictionem and imperium in merum et mixtum Of which you may read many especiall tractats written of them as a matter of great difficulty and importance Justes cometh of the French Joustes i. decursus and signifieth with us contentions between Martial men by speares on horsback anno 24 H. 8. cap. 13. Justice Justiciarius is a Freneh word and signifieth him that is deputed by the King to doe right by way of judgement the reason why he is called Justice and not Judex is because in ancient time the latine word for him was Justitia and not Justiciarius as appeareth by Glanv lib. 2. cap. 6. Roger Hoveden part poster suorum annalium fo l 413. a. and divers other places which appellation we have from the Normans as appeareth by the Grand Custumary cap. 3. And I doe the rather note it because men of this function should hereby consider that they are or ought to be not Justi in their judgements but in abstract ipsa justitia howbeit I hold it well if they perform their office in concreto Another reason why they are called Justiciari◠with us and not Judices is because they have their authority by deputation as Delegates to the King and not jure magistratus and therefore cannot depute others in their stead the Justice of the Forest only excepted who hath that liberty especially given him by the Statute anno 32 H. 8. cap. 35. for the Chancellor Marshal Admiral and such like are not called Justiciarii but Judices of these Justices you have divers sorts in England as you may perceive here following The manner of creating these Justices with other appurtenances read in Fortescue cap. 51. Justice of the Kings bench Justiciarius de Banco Regis is a Lord by his office and the chief of the rest wherefore he is also called Capitalis Justiciarius Angliae his office especially is to hear and determine all plees of the Crown that is such as concern offences committed against the crown dignity and peace of the King as treasons felonies mayhems and such like which you may see in Bracton lib. 3. tractat 2. per totum and in Stawnf treatise intituled The plees of the Crown from the first chapter to the fifty one of the first Book But either it was from the beginning or by time is come to passe that he with his Assistants heareth all personal actions and real also if they be incident to any personal action depending before them See Cromptons jurisd fol. 67. c. Of this Court Bracton lib. 3. ca. 7. nu 2. saith thus Placita vero civilia in rem personam in Curia domini Regis terminanda coram diversis Justiciariis terminantur Habet enim plures curias in quibus diversae actiones terminantur illarum curiarum habet unam propriam sicut aulam regiam justiciariios capitales qui proprias causos Regis terminant aliorum omnium par querelam vel per privilegium sive libertatem ut si sit aliquis qui implacitari non debeat nisi coram domino Rege This Justice as it seemeth hath no patent under the broad Seal For so Cromp. saith ubi supra He is made only by Writ which is a short one to this effect Regina Johanni Popham militi salutem Sciatis
72. the office is as Crompton saith loco allegato properly to look to the vert and to see that it be well maintained Also when any forfeiture is taken in the Forest before the Foresters or other Ministers the price thereof shall be delivered to the Verdour who is to answer for it before the Iustices in Eyr And if he die his heir is chargeable therewith Crompton ibidem The form of his oath at his admittance you may see in Manwoods first part of his Forest laws pag. 51. who there calleth him verderour alià s verdictor You shall truly serve our Soveraign Lord the King in the office of a verderor of the Forest W. you shall to the uttermost of your power and knowledge do for the profit of the King so far as it doth appertain unto you to do You shall preserve and maintain the antient rights and franchises of his Crown you shall not conceal from his Majesty any rights or privileges nor any offence either in vert or venison or any other thing You shall not withdraw nor abridge any defaults but shall indeavour your self to manifest and redresse the same and if you cannot do that of your self you shall give knowledge thereof unto the King or unto his Iustice of the Forest You shall deal indifferently with all the Kings liege people you shall execute the laws of the Forest and do equal right and justice as well unto the poor as unto the rich in that appertaineth unto your office you shall not oppress any person by colour thereof for any reward favour or malice All these things you shall to the uttermost of your power observe and keep Their Office is farther expressed eodem pag. 93. which is to sit in the Court of Attachment to see the Attachments of the Forest to receive the same of the Foresters and Woodwards that do present them and then to enter these attachments into their Roles Verdict veredictum is the answer of a Jury or Enquest made upon any cause civil or criminal committed by the Court to their consideration or tryal And this verdict is two-fold either general or especial Stawnf pl. cor lib. 3. cap. 9. A general verdict is that which is given or brought into the Court in like general terms to the general issue as in an action of disseisin the Defendant pleadeth No wrong no disseisin Then the issue is this in general whether the fact in question be a wrong or not And this committed to the Iury they upon consideration of their evidence come in and say either for the Plaintiff that it is wrong and disseisin or for the Defendant that it is no wrong no disseisin And again the prisoner at the bar pleading Not guilty the Enquest in like general terms bring in their verdict either for the King Guilty or for the prisoner Not guilty A special verdict is that whereby they say at large that such a thing and such they find to be done by the Defendant or Tenent so declaring the course of the fact as in their opinion it is proved and for the quality of the fact they pray the discretion of the Court. And this special verdict if it contain any ample declaration of the cause from the beginning to the end is also called a verdict at large Whereof read divers examples in Stawnf pl. cor lib. 3. cap. 9. and one or two in Littleton fol. 78. 79. See the new book of Entries verb. Verdict Verge virgata may seem to come from the French verger i. viridarium hortus It is used here in England for the compass about the Kings Court that boundeth the jurisdiction of the Lord Steward of the Kings houshold and of the Coroner of the Kings house and that seemeth to have been twelve miles compass anno 13 Richard 2. Stat. prim cap. 3. Fitzh nat br fol. 24. B. and Briton fol. 68. b. 69. a. and Fletae lib. 2. cap. 2. and Sir Edward Cooks Reports lib. 4. fol. 47. a. For this see the Statute anno 33 Hen. 8. cap. 12. toward the end But Fleta saith that this compass about the Court is called virgatä à virga quam Marishalus portat ut signism suae potestatis lib. 2. cap. 4. sect prim Verge hath also another signification and is used for a stick or rod whereby one is admitted Tenent and holding it in his hand sweareth fealty unto the Lord of a manor who for that cause is called Tenent by the Verge Old nat br fol. 17. Vergers virgatores be such as cary white wands before the Iustices of either bank c. Fleta lib. 2. cap. 38. otherwise called Porters of the Verge Very Lord and very Tenent verus Dominus et verus Tenens are they that be immediate Lord and Tenent one to the other Brook titulo Hariot fol. 23. In the Old nat br and in the writ Replegiari de averiis fol. 42. I find these words And know ye that in taking of Leases six things are necessary that is to say very Lord and very Tenent Service behind the day of the taking seisin of the services and within his Fee And know yee that a man is not very tenent untill he have atturned to the Lord by some services So that by Brook the very Lord and the very Tenent must be immediate and by this Book there must be an acknowledgement See anno 19 Hen. 7. cap. 15. See Tenent Vert viride is made of the French verd i. viridis and significth with us in the laws of the Forest every thing that doth grow and bear green leaf within the Forest that may cover and hide a Dâ—er Manwood in the second part of his Forest laws fol. 6. a. and fol. 33. b. with whom also Crompton agreeth fol. 170. of his Iurisd And vert as the same Author saith eodem fol. 34. is divided into Over vert and Neather vert Over vert is that which our Lawyers call Hault bois and Neather vert is that which they call South boil And of this you may read him in his second part of Forest laws cap. 6. per totum Where you shall find that he divideth vert into general and special General is as it is above defined Vert special is every tree and bush within the Forest to feed the Deer withall as Pear trees Crab-trees Hauthorns Blackbush and such like And the reason of this name is because the offence of destroying of such vert is more highly punished than of any other according to the quantity thereof codem cap. 6. num 2. fol. 35. a. Vervise otherwise called Plonkets anno 1. R. 3. cap. 8. a kind of cloath Vesses anno 1 R. 3. cap. 8. anno 14 15 H. 8. cap. 11. otherwise called Set cloaths Vesture Vestura is a French word signifying a garment but in the use of our Common law turned metaphorically to betoken a possession or an admittance to a possession So it is taken Westm. 2. cap. 25. anno 13 Ed. prim And
common consent in the Courts called birlaw courts In the which cognition is taken of complaints betwixt neighbour neighbour which menso chosen are Judges and Arbitratours to the effect aforesaid and are called birlaw men For bawr or bawrsman in Dutch is rusticus so birlaw or burlaw leges rusticorum Hitherto M. Skene Bilinguis though it signifie in the generality a double tongued man yet in our Common law it is used for that Jury that passeth between an English man and an alien Whereof part must be Englishmen and part strangers an 28 Ed. 3. cap. 13. Bille billa is diversly used among our Common lawyers First as West saith pa. 1. symb lib. 2. sect 146. it is all one with an obligation saving that when it is in English it is commonty called a bill and when it is in Latin an obligation But I hear other good Lawyers say that a bill though it be obligatory yet is without condition or forfeiture for non payment and that the obligation hath both Bill secondly is a declaration in writing that expresseth either the grief and the wrong that the complainant hath suffered by the party complained of or else some fault that the party complained of hath committed against some law or statute of the Common-wealth This bill is sometime offered up to Justices errants in the general assises sometime and most of all to the Lord Chancellor of England especially for unconscionable wrongs done sometime to others having jurisdiction accordingly as the law where upon they are grounded doth direct It containeth the fact complained of the dammages thereby suffered and petition of processe against the defendant for redresse West parte 2. Symbol titulo supplications sect 52. whom you may reade at large touching this matter Billa vera is as it were a word of art in our Common law For the grand enquest empaneled and sworn before the Justices in Eyre c. indorsing a bill whereby any crime punishable in that Court is presented unto them with these two words do signifie thereby that the present or hath furnished his presentment or denunciation with probable evidence and worthy of farther consideration And thereupon the party presented by the same bill is said to stand indicted of the crime and so tyed to make answer unto it either by confessing or traversing the indictment And if the crime touch the sife of the person indicted it is yet referred to another enquest called the enquest of life and death who if they find him guilty then he standeth convicted of the crime and is by the Judge to be condemned to death See Ignoramus see Indictment Billets of gold commeth of the French billot i. massa auri anno 27 Edw. 3. stat 2. ca. 14. Bynny peper anno 1 Jaco ca. 19. BL Black maile is half English half French For in French maille signifieth a small piece of money which we call a half peny It signifieth in the Counties of Cumberland Northumberland Westmerland and the Bishoprick of Duresme a certain rate of money corn cattel or other consideration paid unto some inhabiting upon or near the borders being men of name and power allied with certain known to be great robbers and spoil-takers within the said Counties to the end thereby to be by them fteed protected and kept in safetie from the danger of such as doe usually robbe and steal in those parts anno 43. Eliz. cap. 13. Blacke rodde is the huissier belonging to the order of the Garter so called of his black rodd that he carrieth in his hand He is of the Kings chamber and also huissier of the parliament Blancks commeth of the French blanc i. candidus albus It signifieth a kind of coin that was coine in the parts of France by King H. the fifth that were subject to England the value whereof was eight pence Stowes annals pag. 586. These were forbidden to be current within this Realm an 2 H. 6. cap. 9. The reason why they were called blanks may be because at the time these were coined in France there was also a piece of gold coyned which was called a Salus of the value of twenty-two shillings from which this silver was in name distinguished by the colour Bloudy hand See Backberend Blomary is one of the forges belonging to an iron mill which also seemeth otherwise to be termed a Finary The use whereof if you will understand you must know that first there is a furnace wherein the mine-stones are melted and cast into a raw iron fashioned into long wedges three square that be called sows Then be there two forges like unto Smiths forges but much bigger the one whereof is called the blomary or as it seemeth the finary into the which being maintained with a charcole fire blown with bellowes made to goe by water are cast the said sowes of raw iron and melted again and by a workman called the finary man are wound and wrought round and afterward beaten by a hammer into â—ittle wedges about a yard long which are called bloomes Then is there another forge called the Hammer into which these bloomes are cast and by a workman called the Hammer man again chafed and made soft in a charcole fire blown likewise with bellowes caused to goe by water and after carried by the said Hammerman and put under the great Hammer also driven by the water And so the said bloomes are drawn fashioned and made into such barts of iron of divers sorts and forms as we see commonly sold Of this you may read in the Statute an 27 Elizab. ca. 19. See Baye Bloudwit blodwita is compounded of two Saxon words blout i. sanguis and wit for the which we have the word wite still in the West parts of England signifying a charging of one with a fault or an upbraiding And Speight in his expositions upon Chawcer saith that to twit is as much as to blame To twit in some other places of this land signifie has much as to hitt in the teeth or to upbraid This bloudwit is a word used in charters of liberties antiently graunted and signifieth an amercement for shedding of bloud So that whosoever had it given him in his Charter had the penaltie due for shedding of bloud granted unto him Rastal in his exposition of words Skene de verbo signif writeth it bludveit and saith that veit in English is injuria vel misericordia and that bludveit is an amercement or unlawe as the Scottishmen call it for wrong or injury as bloudshed is For he that is infest with bludveit hath free liberty to take all amercements of Courts for effusion of bloud Fleta saith quod significat quietantiam misericordiae pro effusione sanguinis li. 1. ca. 47. BO Bockland See Charterland See Copie-hold and Free-hold Bonis arrestandis is a writ for the which See Arrestandis bonis Bonis non amovendis is a writ to the Shyreevs of London c. to charge them that one condemned by judgement in an action and prosecuting a
are called Ancient Demain and all others be called Frank-fee Kitchin fol. 98. And the Tenents which hold any of those Lands be called Tenents in Ancient Demain the others Tenents in Frank-fee Kitchin ubi supra And also Tenents of the Common law West parte 2. Symbol titulo Fines Sect. 25. The reason is because Tenents in ancient Demain cannot be sued out of the Lords Court Terms of the Law Verbo ancient Demain And the Tenents in Ancient Demain though they hold all by the verge and have none other evidence but copy of Court rol yet they are said to have Free-hold Kitchin fol. 81. See Ancient Demain Demain cart of an Abbot seemeth to be that Cart which the Abbot useth upon his own Demain Anno 6 H. 3. cap. 21. Demurrer demorare cometh of the French demeurer i. manere in aliquo loco vel morari It signifieth in our Common law a kind of pawse upon a point of difficulty in any action and is used substantively For in every action the controversie consisteth either in the fact or in the law If in the fact that is tried by the Jury if in law then is the case plain to the Judge or so hard and rare as it breedeth just doubt I call that plain to the Judge wherein he is assured of the law though perhaps the party and his councel yeeld not unto it And in such the Judge with his Associats proceedeth to Judgement without farther work but when it is doubtful to him and his Associates then is there stay made and a time taken either for the Court to think farther upon it and to agree if they can or else for all the Justices to meet together in the Chequer chamber and upon hearing of that which the Sergeants shall say of both parts to advise and set down what is law And whatsoever they conclude standeth firm without farther remedie Smith de Repub. Anglo lib. 2. cap. 13. West calleth it a Demurrer in Chancery likewise when there is question made whether a parties answer to a Bill of Complaint c. be defective or not and thereof reference made to any of the Bench for the examination thereof and report to be made to the Court parte 2. symb tit Chancery Sect. 29. Denariataterrae See Farding-deal of land Denizen cometh of the French donaison i. donatio And signifieth in our Common law an Alien that is infranchised here in England by the Princes Charter and inabled almost in all respects to do as the Kings native subjects do namely to purchase and to possesse lands to be capable of any office or dignity Yet it is said to be short of naturalization because a stranger naturalized may inherit lands by descent which a man made onely a Denizen cannot And again in the Charter whereby a man is made Denizen there is commonly conteined some one clause or other that abridgeth him of all that full benefit which natural subjects do enjoy And when a man is thus infranchised he is said to be under the Kings protection or Esse ad fidem Regis Angliae before which time he can injoy nothing in Englād Bracton l. 5. tract 5. c. 25. nu 3. Nay he his goods might be seised to the Kings use Horn in his mirrour of Justices lib. 1. c. de la Venue de frane plege Deodand deodandum is a thing given or forfeited as it were to God for the pacification of his wrath in a case of misadventure whereby any Christian soul cometh to a violent end without the fault of any reasonable Creature For example if a Horse should strike his Keeper and so kill him If a man in driving a Cart and seeking to redresse any thing about it should so fall as the Cart wheel runing over him should presse him to death If one should be felling of a Tree and giving warning to company by when the Tree were neer falling to look to themselves and any of them should be slain neverthelesse by the fall of the Tree In the first of these cases the Horse in the second the Cart-wheel Cart and Horses and in the third the Tree is to be given to God that is to be sold distributed to the poor for an expiation of this dreadful event though effected by unreasonable yea senlesse and dead creatures Stawnf pl. cor lib. 1. cap. 2. whereof also read Bracton lib. 3. tract 2. cap. 5. and Britton cap. 7. and West parte 2. symbolaeog titulo Indictments Sect. 49. And though this be given to God yet is it forfeited to the King by law as sustaining Gods person and an executioner in this case to see the price of these distributed to the Poor for the appeasing of God stirred up even against the earth and place by the shedding of innocent blood thereupon Fleta saith that this is sold and the price distributed to the Poor for the soul of the King his Ancestors and all faithful people departed this life l. 1. c. 25. verbo De submersis And it seemeth that this Law hath an imitation of that in Exo dus cap. 21. Si cornu petierit bos virum vel mulierem ita ut moriatur lapidabitur bos neque comedetur caro ejus ac dominus ejus erit innocens De Deoner anda pro rata portionis is a Writ that lieth where one is distrained for a rent that ought to be paid by others proportionally with him For example a man holdeth ten Oxegangs of land by fealty and ten shillings rent of the King and alienateth one Oxegang thereof to one another to another in fee. Afterward the Sheriff or other officer cometh and distraineth onely one of them for the rent he that is distrained may have this writ for his help Fitzh nat br fol. 234. Departer is a word properly used of him that first pleading one thing in barre of an action and being replyed thereunto doth in his rejoynder shew another matter contrary to his first Plea Plowden in Reniger and Fogassa fol. 7. 8. And of this see divers examples in Broke titulo Departer de son plee c. Departers of Gold and Silver See Finours De quibus sur disseisin is a Writ of entry See Fitzh nat br fol. 191. C. Dereyn disrationare vel dirationare may seem to come of the French disarroyer i. confundere turbare to confound or turn out of order or desranger i. to set out of order of lastly of the Norman word desrene for with the Normans desrene is nothing else but a proof of the denial of mans own fact For Rubigineus in his grand custumarie cap. 122 123. maketh mention of lex probabilis and lex deraisnia legem probabilem or probationem he defineth to be a proof of a mans own fact which he saith he hath done and his adversary denieth His example in this A. sueth R. for a Hog saying thou shouldest deliver me a Hog for two shillings six pence which money F. paid thee wherefore I demand my
thing enjoyned nor appear at the day assigned he himself will without farther delay proceed to perform the Justice required And this seemeth to be tearmed a double quarrel because it is most commonly made against both the Judge and him at whose Petition Justice is delayed Dower dos cometh of the French dovaire and signifieth in our Common law two things first that which the VVife bringeth to her Husband in marriage otherwise called maritagium marriage good next and more commonly that which she hath of her Husband after the marriage determined if she out-live him Glanvile lib. 7. cap. 1. Bracton lib. 2. cap. 38. Britton cap. 101. in princ And in Scotland dos signifieth just as much Skene de verb. signif verbo Dos The former is in French called dot the other dovayre by them latined doarium I like wise once thought it not unreasonable to call the former a Dowrie and the other a Dower but I finde them confounded For example Smith de rep Anglo pa. 105. calleth the latter a dowry and dower is sometime used for the former as in Britton ubi supra Yet were it not inconvenient to distinguish them being so divers The Civilians cal the former dotem the latter donationem propter nuptias Of the former the Common law-books speak very little This onely is to be noted that whereas by the Civil Law instruments are made before marriage which contain the quantity of the wives dowrie or substance brought to her husband that he having the use of it during marriage may after certain deductions restore it again to his Wives Heirs or Friends after the marriage dissolved the Common law of England whatsoever chattels moveable or immoveable or ready money she bringeth doth make them forthwith her Husbands own to be disposed of as he will leaving her at his courtesie to bestow any thing or nothing of her at his death The reason whereof is said to be the holding of the Wife in obedience to her Husband Onely if she be an inheretrice her Husband holdeth the Land but during her life except he have issue by her but then he holdeth it by the courtesie of England during his own life See Courtesie And again if he have any Land in Fee whereof he was possessed during the marriage she is to have a third thereof during her life though she bring nothing to him except she do by fine release her right during the marriage So that here is no great matter to be spoken of but touching dower in the latter signification You must know therefore that upon speech of marriage between two the Parents of both sides are commonly more careful in providing each for his child than the parties themselves And that by their means there be divers bargains made sometime for the conveiance of Lands c. to them and their issue And this is said to be given in Frank mariage sometime to her during her life and that before or at the marriage If before marriage then it is called a Joynture For a Joynture is a Covenant whereby the Husband or some for him is tyed ratione juncturae in consideration of the marriage that the wife surviving him shall have during her life this or that Tenement or Lands or thus much Rent yeerly payable out of such Land c. with clause of distresse and this may be more or lesse as they do accord Britton cap. 110. whom read also cap. 102 103 104. for conventio vincit legem Bracton lib. 5. tractat 4. cap. 9. The diversity of these Joyntures you may see in West parte prima symbol l. 2. sect 128 129 130 131 132 133. But if none of these former bargains passe before marriage then must the Wife stick to her Dower and that is sometime given at the Church door or the Chapel door if the marriage be by License but not the Chamber door and may be what the Husband will so it exceed not a third part of this Lands Glanvile lib. 6. cap. pri Or the half as some say Fitz. nat br fol. 150. N.P. And this Dower is either certainly set down and named or not named but onely in generality as the law requireth if it be not named then it is by law the third part and called dos legitima Bracton lib. 4. tract 6. cap. 6. num 6. 10. Magna Charta c. 7. or the half by the custome of some Countries as in Gavelkind Fitzh nat br fol. 150. O. And though it be named it seemeth that it cannot be above half the lands of the Husband Fitzh nat br fol. 150. P. And the Woman that will challenge this Dower must make 3 things good viz. that she was married to her Husband that he was in his life time seised of the Land whereof she demandeth Dower and that he is dead Cokes reports lib. 2. Binghames case fol. 93. a. Of these things see Glanvile l. 6. c. 1 2 3. Bract. l. 2. c. 38 39 l. 4. tract 6. cap. 1. 6. and Britton cap. 101 102 103 104. and Fitzherb nat br fol. 147 148 149 150. And this custumary Dower seemeth to be observed in other nations as well as in ours Hotoman verbo Dotalitium in verbis feudal Cassan de consuetud Burg. pag. 580. 676. 677. de conventional pa. 720. And to these joyn the grand Custumarie of Normandy cap. 102. where you shall perceive that in a manner all our law in this point is taken from the Normans See Endowment Of Dower read Fleta likewise who writeth largely thereof and hath many things worth the learning lib. 5. cap. 23. seq Dozenno See Decennitr DR Drags anno 6 H. 6. cap. 5. seem to be wood or timber so joyned together as swimming or floting upon the water they may bear a burden or load of other wares down the River Draw latches anno 5 Edw. 3. cap. 14. anno 7. Rich. 2. cap. 5. Master Lamberd in his Eirenarch lib. 2. cap. 6. calleth them Miching thieves as Wasters and Roberdjemen mighty thieves saying that the words be grown out of use Dreit Dreit signifieth a double right that is jus possessionis jus Domini Bracton lib. 4. cap. 27. lib. 4. tract 4. cap. 4. lib. 5. tract 3. cap. 5. Dry exchange anno 3 H. 7. cap. 5. Cambium siccum seemeth to be a cleanly tearm invehred for the disguising of foul usury in the which something is pretended to passe of both sides wheras in truth nothing passeth but on the one fide in which respect it may well be called dry Of this Ludovicus Lopes tracbat de contract negotiatio lib. 2. cap. pri § Deinde postquam writeth thus Cambium est reale vel siccn̄ Cambium reale dicitur quod consistentiam veri Cambit realem habet et Cambium per or ans et Cambium minutum Cambium autem siccum est Cambium non habens existentiam Cambii sed apparentiam ad instar arboris exsiccatae quae humorae vitali jam
the least in law unto the Cognizee so that he needeth no writ of Habere facias seisinam for the execution of the same but may enter of which sort is a fine sur cognizance de droit come ceo que il ad de son done that is upon acknowledgement that the thing mentioned in the concord be jus ipsius cognizati ut illa quae idem habet de dono Cognitoris West Sect. 51. K. and the reason of this seemeth to be because this fine passeth by way of release of that thing which the cognizee hath already at the least by supposition by vertue of a former gift of the Cognizor Cokes Reports lib. 3. the case of sines fol. 89. b. which is in very deed the surest fine of all Fines executorie be such as of their own force do not execute the possession in the Cognizees as fines sur cognizance de droit tantùm fines sur done grant release confirmation or render For if such fines be not levied or such render made unto them that be in possession at the time of the fines levied the cognizees must needs sue Writs of Habere facias seisinam according to their several cases for the obtaining of their possessions except at the levying of such executory fines the parties unto whom the estate is by them limited be in possession of the lan is passed thereby for in this case such fines do inure by way of extinguishment of right nor altering the estate of possession of the Cognizee but perchance bettering it West ubi supra sect 20. Touching the form of these Fines it is to be considered upon what Writ or Action the concord is to be made and that is most commonly upon a Writ of Covenant and then first there must passe a payr of Indentures between the Cognizour and Cognizee whereby the Cognizour covenanteth with the Cognizee to passe a Fine unto him of such or such things by a day set down And these Indentures as they are first in this proceeding so are they said to lead the Fine upon this Covenant the Writ of Covenant is brought by the Cognizee against the Cognizour who thereupon yeeldeth to passe the Fine before the Judge and so the acknowledgement being recorded the Cognizour and his Heirs are presently concluded and all strangers not excepted after five years once passed If the Writ whereupon the Fine is grounded be not a Writ of Covenant but of Warrantia chartae or a Writ of right or a Writ of mesn or a Writ of Custome and Services for all these Fines may also be founded West ubi supra sect 23. then this form is observed the Writ is served upon the party that is to acknowledge the Fine and then he appearing doth accordingly See Dyer fol. 179. num 46. This word Fine sometime signifieth a sum of money payd for an In-come to Lands or Tenements let by Lease sometime an amends pecuniary punishment or recompense upon an offence committed against the King and his Laws or a Lord of a Mannor In which case a man is said facere finem de transgressione cum Rege c. Register Jud. fol. 25. a. and of the diversity of these Fines with other maâ—ter worth the learning see Cromptons Justice of peace fol. 141. b. 143.144 and Lamberds Eirenarcha libr. 4. cap. 16. pag. 555. But in all these diversity of uses it hath but one signification and that is a final conclusion or end of differences between parties And in this last sense wherein it is used for the ending and remission of an offence Bracton hath it lib. 2. cap. 15. num 8. speaking of a Common fine that the County payeth to the King for false judgements or other trespasses which is to be assessed by the Justices in Eyr before their departure by the oath of Knights and other good men upon such as ought to pay it with whom agreeth the Statute anno 3 Ed. pri cap. 18. There is also a Common fine in Leets See Kitchin fol. 13. a. v. Common Fine See Fleta lib. 1. cap. 48. Fines pro licentia concordandi anno 21 H. 8. cap. 1. See Fine Fine force seemeth to come of the French Adjective fin and the substantive force i. vis The adjective fin signifieth sometime as much as crafty wily or subtil sometime as much as artificial curious singular exact or perfect as Rien contrefaâ—ct fin i. nihil simulatum aut ad imitationem alterius expressum potest esse exactum vel ita absolutum quin reprehensionem vel offensionem incurrat as it is set down in that work truly regal intituled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pag. 115. so that this fine force with us seemeth to signifie an absolute necessity or constraint not avoidable and in this sense it is used Old nat br fol. 78. and in the statute anno 35 H. 8. cap. 12. in Perkins Dower fol. 321. and Plowden fol. 94. Coke vol. 6. fol. 111. a. Fine adnullando levato de tenemento quod fuit de antiquo dominico is a Writ to Justices for the disanulling of a fine levied of lands holden in ancient demesn to the prejudice of the Lord Regist orig fol. 15. b. Fine capiendo pro terris c. is a Writ lying for one that upon conviction by a Jury having his lands and goods taken into the Kings hand and his body committed to prison obtaineth favour for a sum of money c. to be remitted his imprisonment and his lands and goods to be re-delivered unto him Reg. orig fol. 142. a. Fine levando de tenementis tentis de Rege in capite c. is a Writ directed to the Justices of the common plees whereby to license them to admit of a fine for the sale land holding in capite Reg. orig fol. 167. a. Fine non capiendo pro pulchre placitando is a Writ to inhibit officers of Courts to take fines for fair pleading Reg. orig fol. 179. See pleder Fine pro redisseisina capienda c. is a Writ that lieth for the release of one laid in prison for a re-disseisin upon a reasonable fine Reg. original fol. 222. Finarie See Blomarie Finours of gold and silver be those that purifie and part those Merals from other coarâ—er by fire and water anno 4 H. 7. cap. 2. They be also called Patters in the same place sometime Departers Fire-bote for the composition look Hay-boot It signifieth allowance or Estovers of Woods to maintain competent fire for the use of the Tenent First fruits primitiae are the profits of every Spiritual living for one year given in ancient time to the Pope throughout all Christendom but by the statute an 26 H. 8. cap. 3. translated to the Prince for the ordering whereof there was a Court erected anno 32 H. 8. cap. 45. but this Court was dissolved anno pri Mar. sess 2. cap. 10. and sithence that time though those profits be reduced again to the Crown by the Statute anno 1 Eliz. cap. 4. yet
see the usual form hereof particularly set down whereunto joyn the new Exposition of Law terms Lieutenant see Lieftenant Lieutenant of the Tower seemeth to have been an Officer under the Constable an H. 4. cap. 15. LO Locus partitus signifieth a division made between two Towns or Countries to make trial in whether the Land or place in question lieth Fleta lib. 4. cap. 15. nu 1. Locall localis signifieth in our Common law as much as tyed or annexed to a place certain Example the thing is local and annexed to the freehold Kitchin folio 180. And again in the same place An action of trespass for battery c. is transitory not local that is not needfull that the place of the battery should be set down as material in the Declaration or if it be set down that the Defendant should traverse the place set down by saying he did not commit the battery in the place mentioned in the Declaration and so avoid the Action And again fol. 230. the place is not local that is not material to be set down in certainty And the gard of the person and of the lands differeth in this because the person being transitory the Lord may have his Ravishment de Gard before he be seised of him but not of the Land because it is local Perkins Grants 30. Lobbe is great kind of North sea fish an 31 Ed. 3. stat 3. ca. 2. Lodemanage is the hire of a Pslot for conducting of a ship from one place to another Loich fish as Lob Ling Cod an 31 Ed. 3. stat 3. cap. 2. Lodeworks is one of the works belonging to the stanneries in Cornwall for the which read M. Cambdens Britan. in his title of Cornwall pag. 119. See Stremework Lollards Lollardi were in account and reputation of those times Heretiques that abounded here in England in the daies of Edward the third and Henry the fifth an 2 H. 5. cap. 7. whereof Weekliefe was the chief as Stow saith in his Annals pa. 425. who by this report went bare footed and basely cloathed to wit in base russet garments down to the Heels they preached and especially against Monks and other religious men Of these read more in him and others that writ of those times The name Lindwood derià Lolio quia sicut lolium inficit segetes sic Lollardi multociens inficinnt fideles simplices inter quos conversantur in ca. finali de Haereticis verbo Lollardiae But Tritemius in his Chronicle deduceth the name from one Gualter Lolhard a German as the first Author of that Sect living about the year of our Redemption 1315. Lord Dominus by Master Cambdens opinion is a contract of Lafford which is the Danish word for dominus It is a word of honor with us and is used diversly Sometime being attributed to a man that is noble by birth or creation which sort are otherwise called Lords of the Parliament Sometime to those that be so called by the courtesie of England as all the Sons of a Duke or the eldest son of an Earl Sometime to men honorable by office as Lord Chief Justice c. And sometime to a mean man that hath fee and so consequently the homage of Tenents within his Manour for by his Tenents he is called Lord and by none other and in some places for distinction sake he is called Land-lord It is used nevertheless by the Writers of the Common law most usually in this signification and so is it divided into Lord above and Lord measn Lord Measn is he that is owner of a Mannour and by vertue thereof hath Tenants holding of him in fee and by copy of Court-roll and yet holdeth himself over a Superiour Lord who is called Lord above or Lord paramount Old nat br fol. 79. Although I think none simply to be accounted Lord paramount but the Prince because all other hold mediately or immediately of him and he of none In this signification I like wise read Very Lord and very Tenent eodem fo 42. and Brook titulo Heriot n. 1. where I think very Lord is he which is immediate Lord to his Tenent and him to be Very Tenent to that Lord of whom he immediately holdeth So that if there be Lord above Lord measn and Tenant the Lord above is not very Lord to the Tenent nor the tenent very tenent to the Lord above Lord in grosse Fitzh nat brev fol. 3. is he that is Lord having no manour as the King in respect of his Crown idem fol. 5. f. See him also fo 8. a b. where I find a Case wherin a private man is Lord in gross viz. a man make a gift in tayl of all the land he hath to hold of him and dieth his heir hath but a Seignory in gross Lorimersy an 1 Richard 2. cap. 12 is one of the Companies of London that maketh Bits or Briddles of Horses and such like the name seemeth to be taken from the Latin Lorum and is elsewhere written Lorinors Lotherwit aliâs Leyerwit is a liberty or privilege to take amends of him that defileth your Bond-woman without licence Rastals expositinn of words It is an amends for lying with a Bond-woman Saxon in his description of England cap. 11. Some think it should be rather written Legerwit for Leger is the Saxon word for a Bed or Logherwit of the old word Logher being of the same signification See Bloodwit and Lyerwit LU Lusernes see Furre Lushoborow is a base coyn used in the daies of King Edward the third coyned beyond Seas to the likeness of English mony and brought in to deceive the King and his subjects To avoid the which it was made Treason for any man wittingly to bring in any such anno 25 Edward the third stat 4. cap. secundo MA MAcegriefs aliâs Macegrefs be such as willingly buy and sell stollen flesh Briton cap. 29. fol. 71. b. Cromptons Justice of Peace fol. 193. a. Magna assisa eligenda is a Writ directed to the Sheriff to summon four lawfull Knights before the Justices of Assise there upon their Oaths to chuse twelve Knights of the vicenage c. to pass upon the great Assise between A. Plaintiff and B. Defendant c. Regist orignal fol. 8. a. Magna Charta called in English the great Charter is a Charter containing a number of Laws ordained the ninth year of Henry the third and confirmed by Edward the first The reason why it was tearmed Magna Charta was either for that it contained the sum of all the written laws of England or else that there was another Charter called the Charter of the Forest established with it which in quantity was the lesser of the two I read in Holinshed that K. John to appease his Barons yielded to Laws or Articles of Government much like to this great Charter but we now have no ancienter written law than this which was thought to be so beneficial to the Subject and a Law of so great equity in comparison of
abate rents or prices of victuals anno pri Mar. 12. anno 1 Eliz. cap. 17. See West parte 2. symb titulo Inditem Sect. 65. And Cromptons Justice of peace fol. 41. b. Rebutter commeth of the French Bouter i. pellere impellert propellere intrudere and signifyeth in our Common law the same thing For example a man giveth land to him and the issue of his body to another in fee with warranty And the Donee leaseth out his Land to a third for years The heir of the Donour impleadeth the Tenant alleging that the Land was in tayl to him The Donee commeth in and by vertue of the warranty made by the Donor repelleth the Heir because though the land were intailed to him yet he is beiâ— to the warrantee likewise and this is called a Rehutter See Brook titulo barre num 23. And again if I grant to my Tenent to hold sine impetitione vasti and afterward I implead him for waste made he may debar me of this action by shewing my grant And this is likewise a Rebutter idem eodem num 25. See the new book of Entries verbo Rebutter Renant an 32 H. 8. ca. 2. Recaption recaptio signifieth a second distresse of one formerly distreined for the self same cause and also during the plea grounded upon the former distresse It likewise signifieth a writ lying for the party thus distreâ—ned the form and further use whereof you may see in Fitz. nat br fol. 71. and the Regist. orig fo 86. and the Register Judicial fo 69. and the new book of Entries verb. Recaption Receyver receptor or receptator generally and indefinitely used is as with the Civilians so also with us used commonly in the evil part for â—uch as receive stollen goods from theeves and conceal them li. 1. Ï€ de receptatoribus But annexed to other words as the receiver of rents c. it signifieth many times an officer of great account belonging to the King or other great personage Cromptons Jurisdict fol. 18. There is also an officer called the Receiver of Fines who receiveth the mony of all such as compound with the King in the office of the Finances for the buying of any lands or tenements holden in Capite West parte 2. symb titulo Fines sect 106. Receiver of all offices accountable an 1 Ed. 4. cap. 1. Receiver general of the Dutchy of Lancaster is an office belonging to the Dutchy Court that gathereth in all the revenues and fines of the lands of the said Dutchy and of all forfeitures and assessements or what else is thence to be received Receiver general of the Court of Wardt and liveries is an officer belonging to that Court that is to receive all rents revenues fines of the lands belonging to his Majesties Wards as also the fines for licences to the Kings widows to mary of custer le maine sued out and for ideots and lunaticks land and finally all other profits whatsoever in mony arising to his Majesty out of or by reason of the Court of Wards and liveries Receiver general of the Muster Rolls anno 35 Eliz. ca. 4. Receiver general of the Dutchy of Lancaster of the Wards and liveries anno 39 Elizab. cap. 7. Receyt See Resceit Recluse Reclusus is he that by reason of his order in religion may not stir out of his house or cloyster Littleton fol. 92. Recognisance Recoguitio commeth of the French Recogneisance i. agnitio recognitio and in our Common law is thus defined A Recognisance is a bond of Record testifyng the recognizour to owe unto the recognizee a certain sum of mony and is knowledged in some court of Record or before some Iudge or other officer of such Court having authority to take the same as the Masters of the Chancery the Judges of either Bench Barons of the Exchequer Justices of peace c. And those that be meer Recognisances are not sealed but inrolled And execution by force thereof is of all the recognisors goods and chatells except the draught beasts and implements of husbandry and of the moyety of his Lands West parte pri symb li. 2. titulo Recognisances sect 149. And of these you may see there great diversity of Presidents Note farther that a Recognisance though in the special signification it do but acknowledge a certain debt and is executed upon all the goods and half the lands of the recognisour yet by extention it is drawn also to the Bonds commonly called Statute Merchant and Statute of the Staple as appeareth by the Register orginal fol. 146 151 252. and by West ubi supra and others See Statute Merchant and Statute Staple Recognisance hath yet another signification as appeareth by these words in the Statute West 1. cap. 36. anno 3 Ed. 1. It is provided also and agreed that if any man be attainted of disseisin done in the time of our King that now is with robbery of any manner of goods or moveables by recognisance of Assise of novel disseisin the judgement shall c. In which place it is used for the verdict of the twelve men impaneled upon an Assise which twelve are also called recognitors of the Assise Littleion fol. 72. So also Bracton called them lib. 5. tractat 2. cap. 9. nu 2. in these words In essonio verâ— reddendo exigentur omnes illi quos causa tetigerit sicut particeâ—â— Warrantus alii ut supra Recognitores in assisis Juratores in Juratis Inquisitores inquisitionibus c. And again lib. 3 tract 1. cap. 11. num 16. See the Statute anno 20 Ed. prim stat 4. See the new book of Entries ver Recognisance Recognitione adnullanda per vim duritiem facta is a writ to the Iustices of the Common Bench for the sending of a Record touching a recognisance which the recognisour suggesteth to be acknowledged by force and hard dealing that if it so appear it may be disannulled Register original folio 183. a. b. Recognitors recognitores is a word used for the Iury empaneled upon an assise The reason why they be so called may be because they acknowledge a disseisin by their verdict See Bracton lib. 5. tract 2. cap. 9. nu 2. lib. 3. tract prim cap. 11. num 16. Record recordum commeth of the Latine recordari The word is both French and English and in both tongues signifieth an authentical or uncontroulable testimony in writing Briton cap. 27. and Lamb. Eirenarch lib. 1. cap. 13. In the grand Custumary of Normandy there are several Chapters of divers Records expressing whose presence in each of the Courts is sufficient to make that which is enacted to be a record viz. the 102. Chapter where you have words to this effect The record of the Kings Court is a record of things done before the King All things done before the King so he have one other witness This record may he and other make if he himself will not make it it may be made by three others And his person may not
be impeached or excepted against either in this or any other thing The next chapter viz. the 103. sheweth how many persons suffice to make a Record in the Exchequer The next how many in an assise c. I find not that we in our Courts especially the Kings Courts stand much upon the numbers of Recorders or witnesses for the strength of the testimony which the Record worketh but that we take it sufficient which is registred in each Court Glanvile lib. 8. cap. 8. Bracton lib. 3. tract 2. cap. 37. num 4. Bretton in the Proeme of his book saith that the Iustices of the Kings Bench have a Record the Coroner Vicounr Iustices of the Exchequer Iustices of the Gaol delivery the Steward of England Iustices of Ireland Iustices of Chester Iustices assigned by the Kings letters patents in those causes they have Commission to take knowledge of All which as I take it must be understood with that caveat of Brook titulo Record num 20. 22. that an act committed to writing in any of the Kings Courts during the term wherein it is written is alterable and no record but that term once ended and the said act duly enrolled it is a record and of that credit that admitteth no alteration or proof to the contrary Yet see Sir Edward Cooks Reports lib. 4. Rawlius case fol. 52. b. anno 12 Ed. 2. cap. 4. It is said that two Iustices of either Bench have power to record Non-sutes and defaults in the Country It appeareth by Bracton lib. 5. tract 2. cap. 1. et 11. that quatuor milites habent recordum being sent to view a party essoined de malo lecti and lib. 5. tract 1. cap. 4. nu 2. that Serviens Hundredi habet recordum in testimonio proborum hominum And in the Statute of Carleil made anno 15 Ed 2. it is said that one Iustice of either Bench with an Abbot or Prior or a Knight or a man of good fame or credence hath a record in the view of one that is said by reason of sickness to be unable to appear personally for the passing of a fine And anno 13 H. 4. cap. 7. et anno 2 H. 5. cap. 3. that two Iustices of peace with the◠Shyreeve or Under-shyreeve have power to record what they find done by any in a ryot or rout c. That which is before mentioned out of Briton touching the Shyreeve seemeth to be limited by Fitzh nat br fol. 81. D. Who alloweth him a record in such matters only as he is commanded to execute by the Kings Writ in respect of his office And thence it commeth that Kitchin fol. 177. saith that the Escheator and Shyreeve be not Iustices of record but officers of record In which words he signifieth that their testimony is authentical only in some certain things that are expresly injoyned them by vertue of their Commission as Ministers to the King in his higher Courts whereas Iustices of record have in generality a record for all things within their cognisance done before them as Iudges though not expresly or particularly commanded Fitzh in his Nat. br fol. 82. in principio something explaineth this point writing to this effect Every act that the shyreeve doth by vertue of his commission ought to be taken as matter of Record no lesse than the Justices of peace His reasons be two the former because his patent is of record the other because he is a conservatour of the peace And then he addeth that the plees held before him in his County be not of record Yet is the County called a Court of record Westm 2. cao 3. anno 13 Ed 1. But it seemeth by Briton cap. 27. that it is only in these causes whereof the shyreeve holdeth plee by especial writ and not those that he holdeth of course or custome And in that case also it may be gathered out of the same Author that he hath a record but with the testimony of those annexed that be suters to the Court. Which seemeth to agree with Bractons words above specified Scrviens Hundredi habet recordum in testimonio proborum hominum And to this purpose read Glanvile l. 8. c. 8 9 et 10. One Iustice upon view of forcible detinue of land may record the same by statute anno 15 R. 2. cap. 2. the Maior and Constables of the staple have power to record recognisances of debt taken before them anno 10 H. ◠ca. 1. Brook titulo Record seemeth to say that no Court ecclesiastical is of record how truly it is to be inquired For Bishops certifying bastardy bigamy excommunication the vacancy or plenarty of a Church a mariage a divorse a spiritual intrusion or whether a man be professed in any religion with other such like are credited without farther enquiry or controlment See Brook titulo Bastardy See Fleta lib 6. cap. 39 40 41 42. Lamb. Eirenarcha lib. pri cap. 13. Glanvile lib. 7. cap. 14 et 15. the Register original fol. 5. b. Bracton lib. 5. tractat 5. cap. 20. nu 5. Briton cap. 92 94 106 107 109. Doct. and Stud. lib. 2. cap. 5 but especially Cosius apology parte pri cap. 2. And a testament shewed under the seal of the Ordinary is not traversable 36 H. 6.31 Perkins Testament 491. Fulb. paral fol. 61. b. But it may be that this opinion groweth from a difference between that law whereby the court Christian is most ordered and the Common law of this Land For by the Civil or Canon law no instrument or record is held so firm but that it may be checked by witnesses able to depose it to be untrue Co. plus valere quod agitur quà m quod simulate concipitur ca. cum Johannes 10. extra de fide instrumentorum Whereas in our Common law against a record of the Kings court after the term wherein it is made no witnesse can prevail Briton cap. 109. Coke lib. 4. Hinds case fol. 71. lib. assisarum fol 227. nota 21. This reconciliation may be justified by Brook himself titulo Testaments num 4.8 14. and by Glanvile lib. 8. cap. 8. The King may make a Court of record by his grant Glanvile lib. 8. cap. 8. Briton cap. 121. as for example Queen Elizabeth of worthy memory by her Charter dated 26 Aprilis anno 3. regni sui made the Consistoty court of the University of Cambridge a court of record There are reckoned among our common Lawyers three sorts of Records viz. A record judicial as attainder c. A record ministerial upon oath as an office found A record made by conveyance by consent as a fine deed inrolled or such like Coke lib. 4. Andrew Ognels case fol. 54. b. Recordare facias or recordari facias is a writ directed to the Shyreeve to remove a cause depending in an inferiour court to the Kings bench or common plees as out of a court of antient Demeasn Hundred or County Fitz. nat br fol. 71. B. out of the county court idem fol.
Remembrancers of the Exchequer Rememoratores be three Officers or Clerks one called the Kings Remembrancer anno 35 El. cap. 5. The other the Lord Treasurers Remembrancer upon whose charge it seemeth to lye that they put all Justices of that Court as the Lord Treasurer and the rest in remembrance of such things as are to be called on and dealt in for the Princes behoof The third is called the Remembrancer of the first-fruits Of these you may read something anno quinto Rich. 2. stat pri cap. 14. 15. to the effect above specified These anno 37 Ed. 3. cap. 4. be called Clerks of the Remembrance It seemeth that the name of this Officer is borrowed from the Civilians who have their Memorales qui sunt notarii Cancellâ—riae in regnò subjecti officio Quaestoris Lucas de penna C. lib. 10. tit 12. nu 7. The Kings Remembrancer entreth in his Office all recognisances taken before the Barons for any the Kings Debts for apparences or for observing of Orders He takes all bonds for any of the Kings debts or for appearance or for observing of Orders and maketh Proces upon them for the breach of them He writeth Proces against the Collectors of customs and subsidies and fifteenths for their accounts All informations upon penal Statutes are entred in his Office And all matters upon English-Bills in the Exchequer-chamber are remaining in his Office He maketh the Bills of compositions upon penal Laws taketh the stallments of debts maketh a Record of a Certificate delivered unto him by the Clerk of the Star-chamber of the fines there set and sendeth them to the Pipe He hath delivered unto his Office all manner of indentures fines and other evidences whatsoever that concern the assuring of any lands to the Crown He yearly in crastino animarum readeth in open Court the Statute for the election of Shyreeves and giveth those that chuse them their oath he readeth in open Court the Oath of all the Officers of the Court when they are admitted The Treasurers remembrancer maketh process against all Shyreeves Escheators Receivers and Bayliffs for their accompts He maketh process of Fierifacias and Extent for any debts due to the King either in the Pipe or with the Auditors He maketh process for all such Revenew as is due to the King by reason of his Tenures He maketh Record whereby it appeareth whether Shyreeves and other accountants pay their profers due at Easter and Michaelmas He maketh another Record whereby it appeareth whether Shyreeves and other Accountants keep their daies of prefixion All Extreats of Fines Issues and Amerciaments set in any Courts of Westminster or at the Assises or Sessions are certified into his Office and are by him delivered to the Clerk of Extreats to write Proces upon them He hath also brought into his Office all the accompts of Customers Controllers and other accomptants to make thereof an entry of Record The Remembrancer of the first fruits taketh all compositions for first Fruits and Tenths and maketh Process against such as pay not the same Remitter commeth of the French remettre i. restituere reponere and signifieth in our Common law a restitution of one that hath two Titles to Lands or Tenements and is seised of them by his latter Title unto his Title that is more antient in case where the latter is defective Fitzherberâ— natura brev fol. 149. F. Dyer folio 68. num 22. This in what Case it may be granted to any man see in Brook titulo Remitter and the Terms of Law The Doctor and Student of this matter hath these words If land descend to him that hath right to that Land before he shall be remitted to his better Title if he will Ca. nono fo 19. b. See the new Book of Entries verbo Remitter Render commeth of the French Rendre i. reddere retribuere restituere and signifieth in our Common law the self-same thing For example this word is used in levying of a fine For a Fine is either single by which nothing is granted or rendred back again by the Cognizee to the Cognizour or double which containeth a grant or render back again of some Rent common or other thing out of the Land it self to the Cognisor c. West parte 2. Symbol titulo Fines Sect. 21 30. F. Also there be certain things in a Manor that lie in Prender that is which may be taken by the Lord or his Officer when they chance without any offer made by the Tenant as the Ward of the body of the Heir and of the Land Escheats c. and certain that lye in Render that is must be delivered or answered by the Tenant as Rents Reliefs Heriots and other services Idem codem Sect. 126. C. Also some service consisteth in seisance some in Render Perkins Reservations 696. Rent reditus commeth of the French Rent i. vectigal pensitatio annua and signifieth with us a sum of mony or other consideration issuing yearly out of Land or Tenements Plowden casu Browning fol. 132. b. fol. 138. a. 141. b. There be three sorts of Rents observed by our Common Lawyers that is Rent service Rent charge and Rent seck Rent service is where a man holdeth his Land of his Lord by Fealty and certain Rent or by Fealty Service and certain Rents Littleton lib. 2. cap. 12. fol. 44. or that which a man making a Lease to another for term of years reserveth yearly to be paid him for the same Terms of Law verbo Rents who giveth this Reason thereof because it is in his liberty whether he will distrein or bring an action of Debt A Rent charge is that which a man making over an estate of his Land or Tenements to another by deed indented either in fee or fee tail or lease for term of life reserveth to himself by the said Indenture a sum of Mony yearly to be paid unto him with clause of distress or to him and his heirs See Littleton ubi supra A Rent seck otherwise a dry Rent is that which a man making over an Estate of his Land or Tenement by Deed indented reserveth yearly to be paid him without clause of Distresse mentioned in the Indenture Littleton ubi supra And Terms of the Law verbo Rents See the new Expositor of Law Terms See Plowden casu Browning fol. 132. b. See the differences between a Rent and an Annuity Doctor and Student cap. 30. Dialog primo Reparatione facienda is a writ which lyeth in divers cases whereof one is where three be Tenants in Common or Joynt tenents or pro indiviso of a Mill or house which is fallen into decay and the one being willing to repair it the other two will not In this Case the party willing shall have this writ against the other two Fitz. nat br fol. 127. where read at large the form and many uses of this writ as also in the Regi orig fol. 153. b. Repeal commeth of the French Rappel i. Revocatio and
these Sheriffs in Henry the sixth his daies see in Fortescue cap. 24. fol. 53. b. The name Vicecomes commeth from the Normans as Shyreeve commeth from the Saxons For in the fifth Chapter of the Grand Custumary you have Viconte which the Latine Interpreter turneth Vicecomitem whose Office you shall find in that Chapter to be very like unto ours The form of the Shyreeves oath see in the Register original fol. 331. b. Of this read Master Skene de verborum significat verbo Shyreeve where he largely describeth the Office of the Shyreeve in Scotland in a discourse worth the reading Shyreeveweke of Winchester and of Essex anno 21 R. 2. ca. 10 et 11. Sbire Clerk seemeth to be the Under-shyreeve anno 11 H. 7. cap. 15. It is used sometime for a Clerk in the County-Court Deputy to the Undershyreeve See Sir Edward Cooks 4 books of Reports in Mittons case Shire mote See Turn Shorling and Morling seem to be words to distinguish Fells of sheep as if Shorling should signifie the Fels after the Fleeces be shorn off the sheeps back and Morling the Fels flean off after they be killed or die alone Anno 3 Edward quart cap. prim et anno 4 ejusdem capit tertio et anno 12 ejusdem cap. 5. et anno 14 ejusdem cap. 3. Shot commeth of the Saxon word sceate signifying pecuniam aut vectigal Lamberds explication of Saxon words verbo Primitiae Shr of metal SI Siout aliâs is a Writ sent out in the second place whereas the first sped not Cook libro quarto folio 55. b. It is so called of these word expressed in it For example lacobus Dci gratiâ— c. Vicecomiti Kant salutem Praeciâ—imus tibi sicut alt sâ—praecepimuâ— quod non omiâ—tas propter aliquam libâ—rtatem in Bâ—llivaâ—na quin caming rediaris et Capias A.B.d. C. in Comitatu â—uo Labourer c. as in the first Capias Lamb. in his tractate of Processes in the end of his Eirenarcht Sidemen aliâs Questmen be those that are yearly chosen according to the custome of every Parish to assist the Church-warddens in the inquiry and presenting such offenders to the Ordinary as are punishable in the Court Christian Significavit is a writ de ex communicato sapiendo which issueth out of the Chancery upon a Certificate given by an Ordinary of a man that standeth obstinately excommunicate by the space of forty daies for the laying him up in Prison without Bayl or Mainprise untill he submit himself to the authority of the Church And it is so called because of the word significavit mentioned in the Writ De excommunicate capiendo which have relation to the Certificate sent into the Chancery by the Ecclesiastical Judge There is also another writ within the Regist. orig of this name fol. 7. a. directed to the Justice of the Bench willing them to stay any sute depending between such and such by reason of any excommunication alleged against the Plaintiff because the sentence of the Ordinary that did excommunicate him is appealed from and the Appeal vet hangeth undecided Which see and see Fitzher nat br De excommunicato capiendo fol. 62. N. but especially 66. A. where you may find writs of this name in other cases Sine assensu capituli is a writ that lyeth in case where a Dean Bishop Prebendary Abbot Prior or Master of Hospital alieneth the Land held in the right of his house without the consent of the Chapter Covent or Fraternity For in this case his successor shall have this Writ Fitz. nat br fol. 195. Si non omnes is a writ of association whereby if all in commission cannot meet at the day assigned it is permitted that two or more of them may finish the business See Association And Fitz. nat brev fol. 185. 111. C. and Register origin fol. 202 206. 124. Sirecognescant is a writ that lyeth for a Creditor against his Debtor for mony numbred that hath before the Shyreeve in County Court acknowledged himself to owe unto his Creditour such a sum received of him in numer at is pecuniis The form of the writ is this Rex Vicecomiti salutem Praec tibi quodsi A. recognoscaâ— se debere R. 40. solid sine ulteriori dilatione tunc ipsum distâ—ing as ad praedictum debitum eidem R. sine disatione reddendum Teste c. Old nat brev fol. 68. SK Skawe anno 4 Ed. 4. cap. 1. Skyvinagâ— anno 27 H. 6. cap. 2. a proper name signifying the precincts of Caleis SL Sluse exclusa is a frame to keep or let water out of a ground SO Soc soca is word signifying a power or liberty of Jurisdiction as appeareth by these words out of Bracton Sunt quidam Barones alii libertatem habentes sc soc sac Tol Thian Infangthefe Vtfangthefe isti possunt judicare in Curia sua eum qui inventus fueris insra libertatem suam seisitus de aliquo latrocinio manifesto et li. 3. Tractat. 2. cap. 8. In the laws of King Edward set out by M. Lamberd fol. 132. you have these words Socha est quod fi aliquis querit aliquid in terra sua etiam furtum sua est Justicia si inventum fuerit an non Saxon in the Description of Britany cap. 11. saith that Sock is a sute of Court and that thereof cometh Soken But the signification of the word as I have been credibly informed is as much as Inquisitio which we in modern English term seeking Of this Sok Skene de verborum signifie speaketh to this effect Sok is an old word used in Charters and feoffments which in sundry old Books containing the municipal Law of this Realm is called Secta de hominibus suis in curia secundum consuetudinem Regni So after my opinion he that is inscoffed with Sok which now we call Soit but we in England Sute hath power to hold Courts within his own Barony in which hemines sui should give Soit Thus far M. Skene Of this Fleta hath these words In hujusmodi vero maneriis speaking of the Kings Manors erant olim liberi homines libere tenentes quorum quidam cum per potentiores è tenemintis suis ejecti fuerant eadem postmodum in villenagium tenenda resumpserunt quia hujusmodi tenentes cultores Regis esse dinoscuntur eis provisa fuit quies nesectas facerent ad Comitatus vel Hundredos vel ad aliquas inquisitiones Assisas vel Juratas nisi in Manerio tantùm aum tamen proterra quorum congregationem tunc socam appellarunt hinc est quèd Socmanni hodie dicuntur esse A soco enim derivantur quorum tenementa sunt villenagium domini privilegiatum ideo dicuntur glebae aserlptitii eo quod ab hujusmedi glebis amovers non deberent quamdiu solverent debitas pensiones nec compelli poterunt ad hujusmodi tenementa tenenda contra suas voluntates eò quòdcorpora jua sunt libera Nec obstabit
stand as a Law for ever furthermore if the Chancellor or other Iudge or Officer could not well approve that the delay of Iustice complained of grew from just difficultie by reason that the case in question was formerly determined by Law or statute then might the Steward on the Kings behalf 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 Parliament was wont to remove him and assign another of better hope to the place Lastly if the King had about him any such evill Councellor as advised him to this unjust or unanswerable to his Majesty as tending either to the disherison of the Crown publick hurt or destruction of the Subject The office of the Steward was taking to him the Constable and other great men with some of the Commons and giving notice to the King of their intention to send to that Counsellor 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 hee neglected to perform then they might send to the King and with him to remove him and if the King refused then they might take him as a publick enemy to the King and Realm seise on his goods and possessions and commit his body to safe custody untill the next Parliament there to be judged by the whole Kingdome Examples are brought of Godwin Earl of Kent in the time of King Edward next before the Conquerour of Hubert Burgh Earl of the same County in the reign of Henry the third and of Peter Gaveston in Edward the seconds dayes But experience as I said hath found this Officer more dangerous then profitable and therefore hath time taught though not wholy to suppresse him yet to limit him to particular occasion and to restrain his power Then is there the Steward of the Kings most honourable houshold anno 24 Hen. 8. cap. 13. whose name is changed to the name of great Master anno 32. ejusdem 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 revived where you may at large read divers things touching his Office As also in Fitz. nat br f. 241. B. Of this Officers antient power read Fleta lib. 2. cap. 3. There is also a Steward of the Marshalsea pl. cor fol. 52. anno 33 Hen. 8. cap. 12. To be short this word is of so great diversity that there is not a Corporation of any accompt or house of any honour almost through the Realm but it hath an Officer toward it of this name A Steward of a manor 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. alienate It signifieth in our Language generally a man born out of the Land or unknown but in the Law it hath an especiall signification for him that is not privie or a party to an act as a Stanger to a judgement old nat brev fol. 128. is he to whom a ludgement doth not belong and in this signification it is directly contrary to partie or privie See Privie Submarshall submarescallus is an Officer in the Marshal-sea that is Deputy to the chief Marshall of the Kings house commonly called the Knight Marshal and hath the custody of the prisoners there Crompt Jurisd fol. 104. He is otherwise called Vnder-marshall Subpoena is a writ that lyeth to call a man into the Chancery upon such case only as the Common law faileth in and hath not provided for so as the partie who in equity hath wrong can have none ordinary remedy by the rules and course of the Common-law West part 2. symbol titulo Proceedings in Chancery Sect. 18. where you may read many examples of such cases as Sub poena lyeth in There is also a Sub poena ad testificandum which lyeth for the calling in of witnesses to testifie in a cause as well in Chancery as in other Courts And the name of both these proceed from words in the writ which charge the party called to appear at the day and place assigned Sub poena centum librarum c. I find mention of a common Sub poena in Cromptons Jurisd fol. 33. which signifieth nothing else but such a Sub poena as every common person is called by into the Chancery whereas any Lord of Parliament is called by the Lord Chancelors letters giving him notice of the sute intended against him and requiring him to appear Crompton cedem Subsidie Subsidium commeth of the French Subside signifying a tax or tribute assessed by Parlament and granted by the Commons to be levied of every subject according to the value of his Land or Goods after the rate of four Shillings in the pound for Land and two Shillings eight pence for Goods as it is most commonly used at this day Some hold opinion that this Subsidy is granted by the Subject to the Prince in recompence or consideration that whereas the Prince of his absolute power might make Laws of himself he doth of favour admit the consent of his Subjects therein that all thing in their own confession may be done with the greatest indifferency The manner of assessing every mans Lands or Goods is this First there issueth a Commission out of the Chancery to some man of honour or worship in every County by vertue thereof to call unto them the Head constables or Bailiff of every Hundred and by them the Constable and three or four of the substantiallest housholders in every Town within their Hundred at a day certain which men so called or so many of them as the commissioners think good to use do rate the Inhabitants of their own Town in such reasonable manner as they find meet yet by the discretion of the said Commissioners And then every man after his value set down must at his time pay to the Collector appointed after the rate aforesaid yet in antient time these subsidies seem to have been granted both for other causes as in respect of the Kings great travail and expences in wars or his great favours towards his subjects as also in other manner than now they be as every ninth Lambe every ninth Fleece and every ninth Sheaf anno 14 E. 3. stat pri cap. 20. And of these you may see great variety in Rastals Abridgement tit Taxes Tenths Fifteenths Subsidies c. whence you may gather that there is no certain rate but even as the two houses shall think good to conclude Subsidy is in the statute of the Land sometime confounded with custome anno 11 H. 4. cap. 7. See Benevolence Surety of peace securit as pacis is an acknowledging of a Bond to the Prince taken by a competent Iudge of Record for the keeping of the peace Lamberds Eirenarcha lib. 2. cap. 2. pag. 77. This
tenth part of the fruits by the moral Law of God Yet the better and more Theologicall opinion is that they are all deceived and that from their errour hath sprung much wrong to Almighty God and great mischief to his Church and that by the Law of God and nature no contrary custome ought to last any longer than the Paâ—â—on and Parisnioner shall both think well of it Wherefore those customs of paying a half penny for a Lamb or a penny for a Calf by such as have under seven in one year how long soever it hath indured is but very unreasonable in these dayes when both Lambs and Calves are grown four time dearer and more than they were when this price was first accepted And therefore no man dischargech well his conscience in this point that payeth not duly the tenth of every Lamb every Calf and and every other thing titheable For by this course the Minister fareth well or evill in a proportion with his Parishioner as it pleaseth God to give increase whereas by any other order the one or the other shall find want of indifference as the prices of things shall rise or fall Tithing Tithingum is the Saxon word Teothung for the which see Tithe It signifieth as M Lamberd saith in his Dutie of Constables the number or company of ten men with their families cast or knit together in a society all of them being bound to the King for the peaceable and good behaviour of each of their society Of these Companies was there own chief or principal person who of his office was called Teothung man at this day in the West parts Tithingman but now he is nothing but a Constable For that old discipline of Tithings is left long sithence It signifieth also a Court Anno 23 Ed. 3. cap. 4. et an 9 H. 3. cap. 35. See Chief pledge and Frank Pledge and Decennier Tithing is used for a Court Magna charta cap. 25. and Merton cap. 10. TO Todde of wooll is a quantity containing 28. pound in weight or two Stone Tost Tostum is a place wherein a mesuage hath stood West parte 2. symbol titulo Fines Sect. 26. Toile commeth of the French Toile i. tela and signifieth with us a net or cord to compasse or take Deer To lange and to bred See Bred Toll Tollere as it is a verb signifieth to defeat or take away anno 8 Hen. 9. cap. 9. Toll alià s Thol Tolnetum alià s Theolonium is a Saxon word and hath in our Common law two significations first it is used for a liberty to buy and sell within the precincts of a Manor Lamb. Archainom fol. 132. which seemeth to import so much as a Fair or Market The words be these Thol quod nos dicimus Tholonium est scilicet quod habeat libertatem vendendiet emendi in terra sua In the second signification it is used for a tribute or custom paid for passage c. as in Bracton Si cui concedatur talis libertas quòd quietus sit de Theolonio consuetudinibus dandis per totum Regnum Angliae in terra et mari et quod Theolonium et consuetudines capiat infra libertatem suam de ementibus et vendentibus c. lib. 2. cap. 24. num 3. But even there in the end of the second number he hath this word Toll as it seemeth in the former signification also which by these words above written following a little after he interpreteth to be a liberty as well to take as to be free from Tolle The made Latin word Theolonium Cassanaeus in consuet Burgund pag. 118. deriveth a Tollendo but I rather think it commeth from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. vectigalium redemptio vel etiam vectigalium exactio Fleta hath these words of it Tol significat acquiet antiam Theolonii ubique in Regno lib. pri cap. 47. M. Skene de verb. signif verbo Toll saith it is a custome and that it commeth from the Greek word of the same signification 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and that he who is enfeoffed with Toll is custom free and payeth no custom which is manifest by sundry old books wherein it is written Toll hoc est quod vos et homines vestri de toto homagio vestro sint quieti de omnibus mercatis et de Tolneto de omnibus rebus empiis et venditis Thus farre he Kitchin fol. 104. maketh mention of toll through and toll traverse his words be to this effect Custom or prescription to have toll through in the High way is not good for it is against the common right But to have prescription of toll traverse is good In which place the difference between the one and the other the new expositour of Law Terms saith to be that toll traverse is that money which is taken for passing over a private mans ground But this Author seemeth to differ from Kitchin touching the lawfulnesse of toll through saying that by reason of a Bridge provided at the cost and charge of the town for the ease of Travellers he thinketh it reasonable that toll through be enacted toward the maintenance thereof which VVriter also maketh mention of toll Turn and that he defineth to be toll paid for beasts driven to be sold though they be not sold indeed Where I think he must mean a toll paid in the return homeward from the Fair or Market whither they were driven to be sold Plowden casu Willion fol. 236. agreeth in this definition of toll traverse And this the Fendists call Parangariam defining it to be Sumptus labores ferendi referendive alicujus causa à principe impositi cùm non per viam sed aliò versùm iter suscipitur l. 2. Cod. de Episc cleri à graeco 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. transitus per viam transversam Gothofred ad l. 4. sect 1. Ï€. de vetera I find in Andrew Horns mirour of Justices lib. 1 cap. des articles c. that by the antient law of this land the buyers of corn or cattel in Fairs or Markets ought to pay toll to the Lord of the Market in testimony of their contract there lawfully made in open market for that privy contracts were held unlawfull Toloneum or Breve de essendi quietum de Telonen is a writ that lyeth in case where the Citizens of any City or Burgesses of any Town be quit from toll by the grant of the Kings Predecessors or prescription which you have at large in Fitzh nat br fol. 226 See Telonium Tolt Tolta is a writ whereby a cause depending in a Court Baron is removed into the County court Old nat br fol. 2. The reason of the appellation seemeth to come from the verb Tollo v. Coke lib. 3. in praefatione ad lectorem Tonne See Tunne Tonnage is a custome or impost due for merchandise brought or carried in Tuns and such like Vessels from or to other nations after a certain race
defined as when a servant killeth his Master or a VVife 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 manner of treason giveth forfeiture of Escheats to every Lord within his own fee anno 25 Edw. 3. cap. 2. Of treason see Bracton lib. 3. tract 2. cap. 3. nu pri et 2. Treason compriseth both high and petit treason anno 25 Ed 3. stat 3. ca. 4. Treasure trove Thesaurus inventus is as much as in true French Tresor trouve i. treasure found and signifieth in our Common law as it doth in the Civil law id est veterom depositionem pecuniae cujus non extat mâ—mâ—â—ia ut jam dominum non habcat l. 31. sect prim de acquir rerum Dom. Neer unto which definition commeth Braction lib. 3. tract 2. cap. 3. num 4. And this treaâ—ure â—ound though the Civil law do give it to the finder according to the law of nature yet the law of England giveth it to the King by his Prerogative aâ— appeareth by Bracton ubi supra And therefore as he also saith in the 6 Chapter it is the Coroners office to enquire thereof by the Country to the Kings use And Stawnford pl. cor lib. prim cap. 42. saith that in antient times it was doubtfull whether the concealing of treasure found were felony yea or not and that Bracton calleth it gravem praesumptionem et quasi crimen furti But the punishment of it at these daies as he proveth out of Fitzh Abridgement pag. 187. is imprisonment and fine and not life and member And if the owner may any waies be known then doth it not belong to the Kings Prerogative Of this you may read Brâ—ton also cap. 17. who saith that it is every Subjects part as soon as he hath found any treasure in the Earth to make it known to the Coroners of the County or to the Bailiff c. See Kitchin also fol. 40. Treasurer thesaurarius commeth of the French treserier 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 us is the Treasurer of England who is a Lord by his Office and one of the greatest men of the Land under whose charge and government is all the Princes wealth contained in the Exchequer as also the check of all Officers any way imployed in the collecting of the Imposts Tributes or other Revenues belonging to the Crown Smith de Repub. Anglor lib. 2. cap. 14. more belonging to his Office see anno 20 Edw. 3. cap. 6. et anno 31 Henr. 6. cap. 5. et anno 4 Edw. 4. cap. prim et anno 17 ejusdem cap. 5. et anno prim R. 2. cap. 8. et anno 21 Henr. 8. cap. 20. et anno pri Ed. 6. cap. 13. Ockams Lucubrations affirm that the Lord chief Iustice had this authority in times past and of him hath these words Iste excellens Sessor omnibus quae in inferiore vel superiore schaccio sunt prospicio Adnutum ipsius quaelibet officia subjects disponuntur sic tamen ut ad Domini Regis utilitatem justo perveniant Hic tameninter caterae videtur excellens quod potest his sub testimonio suo breve domini Regis fâ—cere fieri ut de thesauor quaelibet summa libixetur ved us computetur quod sibi ex Domini Regis mandato pranoverit computandum vel si maluerit breve suum sub aliarum testimonio faciet de his rebus This high Officer hath by varetie of his Office at this day the nomination of the Eschetors yearly throughout England and giveth the places of all Customers Controllers and Searchers in all the Ports of the Realm He sitteth in the Chequer Chamber and with therest of the Court ordereth things to the Kings best benefit He with the Barons may by Statute stall debts of three hundred pounds and under And by Commission from his Majesty he with others joyned with him letteth leases for lives or years of the lands that came to the Crown by the dissolution of Abbies He by his Office giveth warrant to certain men to have their wine without impost He taketh declaration of all the mony paid into the Receipt of the Exchequer and of all Receivers accompts Then is there a Treasurer of the King houshold who is also of the Privy Councel in the absence of the Steward of the Kings Houshold hath power with the Controller and the Steward of the Marshalsea without commission to hear and determine treasons misprisions of treasons murder homicide and blood shed committed within the Kings Pallace Stawnfopl cor l. 3. c. 5. In the statute an 28 R. 2. c. 18. et 11 H. 7. ca. 16. mention is made of the Treasurer of Calis In Westm. 2. cap. 8. of the Treasurer of the Exchequer et anno 27 Edw. 3. stat 2. cap. 18. et anno 35 Eliz. cap. 4. of the Treasurer of the Navy or Treasurer of the wars or garrisons of the Navy anno 39 El. 7. Treasurer of the Kings Chamber anno 26 H. 8. cap. 3. et anno 33 ejusdem cap. 39. Treasurer of the wars anno 7 Henr. 3. cap. prim anno 3. Honr. 8. cap. 5. Treasurer for the Chancery West parte 2. symbol titulo Fines sect 152. Treasurer of the Kings Wardrope anno 15 Edw. 3. stat prim cap. 3. et anno 25 ejusdem stat 5. cap. 21. whose office you have well set out in Fleta lib. 2. cap. 14. Treasurer of the County for poor Souldiers anno 35 Eliz. cap. 4. And most Corporations through the Kingdom have an Officer of this name that receiveth their rents and disburseth their common expences Treat commeth of the French traire i. emulgere and signifieth in the Common law as much as taken out or withdrawn As a Iurour was challenged for that he might not dispend forty pounds and for that cause he was treat by the Statute Old nat br fol. 159. that is removed or discharged Bread of treat anno 51 H. 3. Statute of Bread c. what it signifieth I cannot learn Trespasse Transgressio is a French word signifying a much as Mors obitus excessus The reason whereof I take to be because in interpretation it is a passage from one place or estate to another for in Britton cap. 29. I find trespassants for passengers In our Common law and language it is used for any gransgression of the law under treason felony or misprission of treason or of feâ—ony or may be gathered out of Stawnf pl. cor fol. 38. where he saith that for a Lord of the Parliament to depart from the Parliament without the Kings license is neither treason nor felony but trespals And again fol. 31. saying that where it was wont before the Statute made anno prim Edw. a
peace may a Iustice of peace command either as a Minister when he is willed so to do by a higher authority or as aludge when he doth it of this own power derived from his Commission Of both these see Lamberds Eirenarcha lib. 2. cap. 2. pa. 77. See Peace See Supplicavit Suffragan Suffraganeus is a titular Bishop ordained and assisted to aid the Bishop of the Diocesse in his spiritual function c. Suffraganeus Extra de electione For the Etymologie Suffraganei dicuntur quia eorum suffragiis causae Ecclesiasticae judicantur Joach Stephanus de jurisdict lib. 4. cap. 16. num 14. It was enacted anno 26 H. 8. cap. 14. that it should be lawfull to every Diocesan at his pleasure to elect two sufficient men within his Diocesse and to present them to the King that he might give the one of them such Title Stile Name and Dignity of sease in the said Statute specified as he should think convenient Suyte Secta commeth of the French Suite i. affectatio consecutio sequela comitatus It signifieth in our Common law a following of another but in divers senses the first is a sute in Law and is divided into sute real and personal Kitchin fol. 74. which is all one with action real and personal Then is there sute of Court or sute service that is an attendance which a Tenent oweth at the Court of his Lord. Fitz. nat brev in Indice verbo Suite suyte service and suyte real anno 7. H. 7. cap. 2. The new Expositour of Law terms maketh mention of four sorts of sutes in this signification Sute covenant sute custome sute real and sute service Sute covenant he defineth to be when your Ancestor hath covenant with mine Ancestor to sue to the Court of mine Ancestors Sute custome when I and my Ancestors have been seised of your own and your Ancestors sute time out of mind c. Sutereal when men come to the Sheriff Turn or Leet to which Court all men are compelled to come to know the Laws so that they may not be ignorant of things declared there how they ought to be governed And it is called real because of their allegiance And this appeareth by common experience when one is sworn his oath is that he shall be a loyal and faithfull man to the King And this sute is not for the Land that he holdeth within the County but by reason of his person and his abode there and ought to be done twice a year for default whereof he shall be amerced and not distrained I think this should be called ratherregal or royal because it is performed to the King for royal The French word in the usual pronuntiation commeth near to real the letter o being almost suppressed See Leet Suyte service is to sue to the Sheriff Turn or Leet or to the Lords Court from three weeks to three weeks by the whole year And for default thereof a man shall be distrained and not amerced And this sute service is by reason of the tenure of a mans Land Then doth sute signifie the following of one in chase as fresh sute West 1. cap. 46. a. 3 Edw. 1. Lastly it signifieth a Petition made to the Prince or great personage Suyte of the Kings peace secta pacis Regis anno 6 R. 2. stat 2. cap. pri anno 21 ejnsdem cap. 15. anno 5 Hen. 4. ca. 15. is the persuing of a man for breach of the Kings peace by treasons insurrections rebellions or trespasses Summoneas is a Writ Judicial of great diversity according to the divers cases wherein it is used which see in the Table of the Register Judicial Summoner summonitor signifieth one used to call or cite a man to any Court. These by the Common law ought to be boni that is by Fleta his Iudgement liberi homines ideo boni quia terras tenentes qued sint coram talibus Justiciarits ad certos diem â—locum secundum mandatum Justiciariorum Vicecomiti directum parati inde facere recognitionem lib. 4. cap. 5. § Et cum Summons summonitio see Summons Common Summons Marlb cap. 18. anno 52 Hen. 3. it l. Summons in terra petita Kitch fol. 286. is that Summons which is made upon the Land which the party at whose sute the summons is sent forth seeketh to have Summons ad warrantizandum Dyer fol. 69. nu 3â— Sumage Sumagium seemeth to be toll for carriage on horse-back Crompton Jurisd fol. 191. For where the Charter of the Forest cap. 14. hath these words for a horse that beareth loads every half year a half penny the Book called Pupilla oculi useth these words pro uno equo portante summagium per dimidium annum obolum It is otherwise called a Seam And a Seam in the Western parts is a Horse-load Superoneratione pasturae is a writ Iudicial that lyeth against him who is impleaded in the County for the over-burthening of a Common with his cattell in case where he is formerly impleaded for it in the County and the cause is removed into the Kings Court at Westm Supersedeas is a writ which lyeth in divers and sundry cases as appeareth by the Table of the Register original and the Iudicial also and by Fitzh nat bre fol. 226. and many other places noted in the Index of his Book verbo Snpersedeas But it signifieth in them all a command or request to stay or forbear the doing of that which in apparence of Law were to be done were it not for the cause whereupon the Writ is granted For example a man regularly is to have surety of peace against him of whom he will sweat that he is asraid and the Iustice required hereunto cannot deny him Yet if the party be formerly bound to the peace either in Chancery or elsewhere this writ lyeth to stay the lustice from doing that which otherwise he might not deny Super statutum Edward 3. vers servants and labourers is a writ that lyeth against him who keepeth my servants departed out of my service against Law Fitz. nat fol. 167. Super statuto de York quo nul sera viteller c. is a writ lying against him that occupyeth vittelling either in grosse or by retail in a City or Borough Town during the time he is Major c. Fitz. nat brev fol. 172. Super statuto anno pri Ed. 3. cap. 12 13. is a writ that lyeth against the Kings Tenent holding in chief which alienateth the Kings Land without the Kings license Fitzh nat brev fol. 175. Super statuto facto pour Seneshall Marshall de Roy c. is a writ lying against the Steward or Marshall for holding plee in his Court of Freehold or for trespasse contracts not made within the Kings houshold Fitzherbert nat brev fol. 241. Super statuto de Articulis Cleri cap. 6. is a writ against the Sheriff or other Officer that distraineth in the Kings high-way or in the glebe Land antiently given to Rectories Fitz. nat brev