giuen to matrimonie Fourthly at 14. yeares she is enabled to receiue her land into her owne hands and shall be out of ward if she be of this age at the death of her ancestor Fiftly at sixteene yeares she shal be out of ward though at the death of her auncestor she was within the age of fourteen yeres The reason is because then she may take a husband able to performe Knights seruice Sixtly at 21. yeares she is able to alienate her lands and tenements Instit iure com cap. 24. Touching this mater take further these notes perspicuously gathered At the age of 14. yeares a striplin is enabled to chuse his owne guardian and to claime his land holden in socage Dyer fol. 162. which Bracton limiteth at fifteene yeares li. 2. cap. 37. num 2. with whom Glanvile also agreeth lib. 7. cap. 9. And at the age of fourteene yeares a man may consent to mariage as a woman at 12. Bracton vbi supra At the age of fifteene yeres a man ought to be sworne to keepe the kings peace anno 34. Edw. 1. Stat. 3. The age of 21. yeares compelleth a man to be knight that hath twentie pounds land per annum in fee or for tearme of life anno 1. Edw. 2. stat 1. and also enableth him to contract and to deale by himself in all lawfull causes appertaining vnto his estate Which vntill that time he cannot with the security of those that deale with him This the Lombords settle at 18. yeares as appeareth by Hotomans disputations in libros feudorum l. 2. c. 53. ver decimo octauo anno which power the Romans permitted not vsque ad plenam maturitatem and that they limited at 25. yeares lib. 1. in fine Î . de maior 25. an l. fin Co. de Legit tut in principio titulo de curat in Institut The age of twelue yeares bindeth to appearance before the Sheriffe and Coroner for enquirie after roberies an 52. H. 3. cap. 24. The age of 14. yeares enableth to enter an order of religion without consent of parents c. anno 4. H. 4. cap. 17. Age prier aetatem precari or aetatis precatio is a petition made in count by one in his minoritie hauing an actioÌ„ brought against him for lands coming to him by discent that the action may rest vntill he come to his full age which the Court in most cases ought to yeeld vnto This is otherwise in the ciuill lawe which inforceth children in their minoritie to answer by their tutors or curatours Î . de minor 25. an Agenhine See Haghenhine Agist agistare seemeth to come of the French gift 1. iacet hauing gasir in the Infinitiue moode whence commeth the nowne gisme a lying in child-bed or rather of gister i. stabulari a word proper to a Deare cùm sub mensem Maium è locis abditis in quibus delituit emigrans in loco delecto stabulari incipit vnde commoda propinqua sit pabulatio Budaeus in posteriori libro philologiae Where also he saith that giste est idem quod lustrum vel cubile Or it may be probably deduced from the Saxon word Gast 1. hospes It signifieth in our common lawe to take in and feede the â—â—tell of straungers in the kings forest and to gather the money due for the same to the kings vse Charta da Foresta an 9. H. 3. cap. 9. The Officers that do this are called agistors in English Guest-takers eodem cap. 8. Cromptons iurisdic fol. 146. These are made by the kings leters patents vnder the great seale of England of whom the King hath foure in number within euery forest where he hath any pawnage called agistors or Gist-takers And their office consisteth in these foure points in agist ando recipiendo imbreviando certificando Manwood parte prima Of Forest lawes p. 336. 337. whome you may reade more at large Their function is tearmed Agistment as agistment vpon the sea banks anno 6. H. 6. cap. 5. Agreement agreamentum i. aggregatio mentium is the assent or coÌ„cord of more to one thing this by the author of the newe tearmes of lawe is either executed or executory which you may read more at large in him exempified by cases Ayde auxilium is all one in signification with the French aide and differeth in nothing but the onely pronunacitioÌ„ if we take it as it is vsed in our vulgar language But in the common lawe it is applied to divers particular significations as sometime to a subsidie anno 14. Ed. 3. stat 2. ca. 1. sometime to a prestation due from tenents to their Lords as toward the releife due to the Lord Paramount Glanvile li. 9. cap. 8. or for the making of his sonne knight or the marying of his daugnter idem eodem This the King or other Lord by the auncient lawe of England might lay vpon their tenents for the knighting of his eldest sonne at the age of 15. yeares or the mariage of his daughter at the age of seuen yeares Regist orig fol. 87. a. and that at what rate them selues listed But the Statute Westmin 1. anno 3. Edw. 1. ordained a restraint for to large a demand made by common persons being Lords in this case and tyed them to a certaine rate And the Statute made anno 25. Ed. 3. stat 5. cap. 11. prouideth that the rate set downe by the former Statute should hold in the King as well as in other Lords Of this I find mention in the Statute an 27. H. 8. ca. 10. This imposition seemeth to haue descended to vs from Normandie for in the grand custumarie cap. 35. you haue a Tractate intituled des aides chevelz 1. de auxilys capitalibus whereof the first is a faire l'aynè filz de son seigneur chevalier i. ad filium primogenitum militem faciendum the second son ainee fille marier i. ad filiam primogenitam maritandam And the third a rechapter le corps de son seigneur de prison quand il est prius per la guerre an Duc. i. ad corpus dominisui de prisona redimendum cùm captus fuerit pro bello Ducis Normandiae Also I find in Cassanaeus de coÌ„suet Burg. Quòd dominus accipit à subditis pro dotanda filia pa. 122. which seemeth to be all one with this our imposition and also in Vincentius de Franchis descis 131. where he calleth it adiutorium pro maritanda filia Whence it appeareth that this custome is within the kingdome of Naples also Touching this likewise you may reade these words in Maenochius lib. 2. de arbitrat Iud. quast centuria 2. cap. 181. Habent saepissimè feudorum possessores Domini multa in carum ditionibus privilegia multasque cum locorum incolis connentiones inter quas illa vna solet nominari vt possit Dominus collectam illis indicere pro solutione dotium suarum filiarum cura matrimonio collocantur Hoc aliquando Romae observarum à Caligulafuisse in illius vita
scribit Suetonius cap. 42. Hodiè hic vsus in subalpina regione est frequens vt scribit Iacobinus de Sancto Georgio in tractu de homagiis col 8. Etiam pro filia quae religionem ingreditur non modò pro vna filia sed pluribus filiabus non tamen pro secundis nuptijs exigitur In which place the said author maketh mention of diuers other Civilians and feudists that record this custome to be in other places Of this aide our Fleta writeth thus sicutetiam quaedam consuerudines quaeservitia non dicuntur nec concomitantia seruitiorū ficut rationobilia auxilia ad filium primogenitum militem faciendum vel ad filiam primogenitā maritandam quae quidem auxilia sunt de gratia non de iure pro necessitate indigentia dominicapitalis Et non sunt praedialia sed personalia secundùm quod perpendi poterit in breui ad hoc prouiso c. This word ayde is also particularly vsed in matter of pleading for a petition made in court for the calling in of helpe from another that hath an interest in the cause in question and is likely both to giue strength to the party that prayeth in aide of him and also to auoide a preiudice growing toward his owne right except it be preuented For example when a tenent for terme of life by courtesie tenent in taile after possibility of issue extinct for tearme of yeares at will by elegit or tenent by statute merchant being impleaded touching his estate may petere auxilium that is pray in ayde of him in the reuersion that is desire or intreate the court that he may be called in by writ to alledge what he thinketh good for the maintenance both of his right and his owne Termes of the lawe Fitzh mentioneth both prier en ayde and prier ayde de patron c. auxilium petere à patrono nat br fol. 50. d. and the new booke of entries verbo Ayde de parcener auxilium de parcionario fol. 411. columna 4. This the later practitioners in the ciuill lawe call authoris laudationem vel nominationem Emericus in pract titulo 48. This ayde prier is also vsed sometime in the kings behoofe that there be no proceeding against him vntill the kings Councell be called and heard to say what they thinke good for the auoyding of the kings preiudice or losse touching the cause in hand For example if the kings tenent holding in chiefe be demaunded a rent of a common person he may pray in ayde of the king Also a citie or borough that hath a fee ferme of the king any thing being demaunded against them which belongeth the reunto may pray in ayde of the King c. Tearms of the law of this thing you may read the statute de big amis a. 4. Ed. 1. ca. 1. 2. 3. anno 14. Ed. 3. stat 1. ca. 14. The civile law in suites begunne betweene two alloweth a third to come in pro interesse and he that commeth in for his interrest commeth either assistendo or opponendo c. The former is like to this ayde prier the other to that which our common lawyers call Receyte Looke Receyte Aile avo commeth of the French aieul i. avus signifieth a writ that lieth where the grādfather or great grandfather called of our common lawyers besayle but in true French bisaieul was seised in his demaines as of fee of any land or tenement in fee simple the day that he died and a stranger abateth or entreth the same day and dispossesseth the heire Fitzh nat br fo 221. Alderman aldermannus is borrowed from the saxon Ealderman signifying as much as Senator in latine Lamb. in his explica of Saxon words verbo senator See Roger Hoveden parte poster suorum annal fo 346. b. Aler sans iour is verbatim to goe without day the meaning whereof is to be finally dismissed the courte because there is no day of farder appearāce assigned Kitchin fo 140. Ale-tastor is an officer appointed in every court leete and sworne to looke to the assise and the goodnes of bread and ale or beere within the precincts of that Lordship Kitchin fo 46. where you may see the forme of his oath Alias v. Capias alias Alien alienare commeth of the French aliener and signifieth as much as to transferre the propertie of any thing vnto another man To alien in mortmaine is to make over lands or tenements to a religious companie or other body politike Stawnf praero fo 48. looke Mortmayn To alien in fee isto sel the fee simple of any land or tenement or of any incorporeall right West 2. ca. 25. anno 13. Ed. 1. Alien alias alion alienigena commeth of the latine alienus and signifieth one borne in a straunge country It is ordinarily taken for the contrarie to Denizen or a naturall subiect that is one borne in a straunge country and neuer heere infranchised Broke Denizen 4. c. And in this case a man born out of the land so it be within the limits of the Kings obedience beyond the sease or of English parents out of the Kings obedience so the parents at the time of the birth be of the Kings allegiance is no alien in account but a subiect to the King Statute 2. a. 25. Ed. 3. ca. vnico commonly called the Statute De natis vltra mare Also if one borne out of the kings allegiance come and dwell in England his children if he beget any heere be not aliens but denizens Termes of the lawe See Denizen Allaye Allaia is vsed for the temper and mixture of siluer and gold anno 9. H. 5. Stat. 2. cap. 4. Stat. 1. eiusdem anni cap. 11. The reason of which allay is with a baser mettall to augment the waight of the siluer or gold so much as may counteruaile the Princes charge in the coining Antonius Faber de nummariorum debitorum solutionibus cap. 1. Allocatione facienda is a writ directed to the Lord Treasurer and Barons of the Exchequer vpō complaint of some accountant commaunding them to allow the accountant such sums as he hath by vertue of his office lawfully and reasonably expended Register orig fol. 206. b. Alluminor seemeth to be made of the French allumer i. accendere incendere inflammare it is vsed for one that by his trade coloureth or painteth vpon paper or parchment And the reason is because he giueth grace light and ornament by his colours to the leters or other figures coloured You shall find the word an 1. R. 3. ca. 9. Almaine riuets be a certaine light kind of armor for the body of a man with sleeues of maile or plates of iron for the defence of his armes The former of which words seemeth to shewe the countrie where it was first invented the other whether it may come from the French verb revestir 〈◊〉 superinduere to put on vpon another garment I leaue to farther consideration Almner elecmosinarius is an officer of the
graunted by the Chaunceler of England vpon veiwe of the exception suggested to the Iustices of the common banke or of the Kings benche willing them to graunt summons to the Shyrecue of the countie where the creditour is for his appearance at a certain day before them See more in owld nat br fo 66. and Fitzh nat br fo 102. Auditour auditor commeth of the French auditeur and in our lawe signifieth an officer of the king or some other great personage which yearely by examining the accounts of all vnder officers accountable maketh vp a generall booke that sheweth the difference betweene their receipts or burden and their allowances commonly called allocations as namely the auditours of the exchequer take the accounts of those receiuers which receiue the revenewes of the augmentation as also of the Shyrceues escheatours collectours and customers and set them downe and perfect them Him that will read more of this I referre to the Statut. anno 33. H. 8. c. 33. Auditours of the Prests are also officers in the exchequer that doe take and make vp the great accounts of Ireland Berwick the mint of any mony imprested to any man Auditour of the receipts is an officer of the exchequer that fileth the Tellers bils and maketh an entrie of them and giueth to the Lord Treasurer a certificate of the mony receiued the weeke before He maketh also Debenturs to euery Teller before they pay any mony taketh their accounts He keepeth the blacke booke of the receipts and the Treasurers key of the treasurie and seeth euery Tellers monies locked vp in the new treasury Auenture is a mischance causing the death of a man without felony as when he is sodenly drowned or burnt by any soden disease falling into the water or fire Britton ca. 7. where you may see what it differeth from Misadventure See Misadventure Average averagium by M. Skenes opinion verbo arage de verborum significatione commeth of the word averia i. a beast and so consequently signifieth service which the tenent oweth to to the Lord by horse or cariage of horse I haue heard others probably deriue it from the French euvrage or euvre i. opus It seemeth with vs to haue two diuers significations for the first Rastall titulo Exposition of words maketh mention of the Kings averages which I take to be the kings cariages by horse or cart Then anno 32. H. 8. ca. 14. and anno 1. Iacobi ca. 32. it is vsed for a certaine contribution that merchants and others doe every man proportionably make toward their losses who haue their goods cast into the sea for the safegard of the shippe or of the goods and liues of them in the shippe in time of a tempest And this contribution seemeth to be so called because it is proportioned after the rate of euery mans average or goods caried Averijs captis in withernam is a writ for the taking of catell to his vse that hath his catell taken vnlawfully by another and driuen out of the countie where they weretaken that they cannot be repleuied Register originall fo 82. a. b. See Withernam Averment verificatio cōmeth from the French averer i. testari as averer quelque meschācete i. extrahere scelus aliquod in lucem ex occultis tenebris It signifieth according to the author of the termes of lawe an offer of the defendant to make good or to iustifie and exception pleaded in abatement or barre of the plaintifs actiō But me thinketh it should rather signifie the act thē the offer of iustifying the exception by diuers places where I finde it vsed For example an 34. Ed. 1 stat 2. And the demaundant will offer to averre by the assise or Iurie where to offer to averre and to averre must needes differ and againe in the same staint and the demaundaunt will offer to averre by the countrie c. thirdly in the english nat br fo 57. These errours shall be tried by averment c. Averpennie quasi Averago pennie is mony contributed toward the Kings averages Rastall exposition of words See Average Augmentation augmentatio was the name of a court erected the 27 yeare of H. 8. as appeareth by the 27. chapter of that yeares parlament And the end thereof was that the king might be iustly delt with touching the profits of such religious howses and their lands as weare giuen vnto him by an act of parlament the same yeare not printed For the dissolving of which courte there was authoritie giuen to Queene Mary by the parlament held the first yeare of her raigne ses 2. ca. 10. which shee afterward put in execution by her leters patents The name of the courte grewe from this that the revenewes of the crowne were augmented so much by the suppression of the said houses as the king reserved vnto the crowne and neither gaue nor sold away to others Aulne of Renish wine a. 1. Ed. 6. ca. 13. aliàs Awme of Renish wine 1. laco ca. 33. is a vessell that conteineth 40. gallons Aulnegeowr See Alneger Avo is the name of a writ for the which see Ayle Awncell weight as I haue beene informed is a kinde of weight with scoles hanging or hookes fastened at each end of a staffe which a man lifteth vp vpon his forefinger or hand and so discerneth the equalitie or difference betweene the weight and the thing weied In which because there may and was wont to be great deceipt it was forbidden anno 25. Ed. 3. stat 5. ca. 9. anno 34. eiusdem ca. 5. and the euen ballance onely commanded yet a man of good credit once certified me that it is still vsed in leaden hall at London among butchers c. In the deriuation of this word I dare not be ouer confident But it may probably be thought to be called awnsell weight quasi hand sale weight because it was and is performed by the hand as the otheris by the beame And if I should draw it from the greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. cubitus the parte of the arme from the elbowe to the fingers ends I might chalenge a good warrand of this from the Romaines whoe thence derived their ancile i. the luckie shield that was saide to be sent from heauen in a tempest to Numa Pompilius together with a voice that the citie of Rome stould be the mightiest of all others soe long as that shield remained in it Auncient d 〈…〉 antiquum dominicum is called more at large anncient demeasn of the king or of the crowne Fazb nat brifo 14. d. It cōmeth of 2. French words auncien 1. veter vetus veteranus antiquus and of demaine alias domaire i. publicum vectigal It signifieth in our common lawe a certaine tenure whereby all the maners belonging to the crowne in the daies of Saint Edward the Saxon king or of William the conquerour did hold The number names of which maners as all other belonging to common persons he caused to be written
the king as of the person of the king and yet houldeth not in caepite but as he held before So that by this booke tenuere houlding of the person of the king and tenure in capite are two diuers tenures To take away this difficulty I thinke M. Kitchin is in that place to be taken as if he saide not in capite by Knights seruice but by socage folowing the vsuall speech because most commonly where we talke of tenure in capite we meane tenure by Knights seruice Carno Cromptons iurisd fol. 191. is an imunity Carke seemeth to be a quantititie of wolle whereof thirtie make a Sarpler anno 27. H. 6. ca. 2. See Sarpler Carrack aliàs Carrick seemeth to be a shippe of burden so called of this Italian carrico or carco a burden or charge or of the spanish cargo you haue this word anno 2. R. 2. ca. 4. anno 1. Iaco. ca. 33. Carroway seedes aliàs Carruway seedes semen cari vel carei is a seed springing of the herbe so called of whose operation you may read in Gerards herball li. 2. ca. 396. It is reckoned among the merchandize that ought to be garbled anno i. Iaco. ca. 19. Carue of land carucata terrae commeth of the French charue i. aratrum and with vs is a certaine quantitie of land by the which the subiects haue some time bene taxed wherevpon the tribute soe leuied is called Carvage Caruagium Bracton li. 2. ca. 16. nu 8. It is all one with that which the same author lib. 2. ca. 17. calleth carucatam terrae For Litleton ca Tenure in socage saith that haec soca socae idem est quod caruca sc one sok or one plow land Yet one place I finde in Stowes annals that maketh me doubt pag. 271. where he hath these words The same time king Henry tooke carvage that is to say two merks of siluer of euery knights fee toward the mariage of his sister Izabell to the Emperor where caryage cannot be taken for a plow land except there were some other farder division whereby to raise of euery plowe land so much and so consequently of euery Knights fee that is of euery 680. acres two merkes of siluer Rastall in his Exposition of words saith that caruage is to be quite if the lord the King shall taxe all the land by carues that is a priuiledge whereby a man is exempted frō carvage Skene de verb. signif ver Carucata terrae deriueth it from the French charon i. a plough and saith that it containes as great a portion of land as may be tilled and laboured in a yere and day with one plough which also is called hilda or hida terrae a word vsed in the old Britaine lawes M. Lamberd among his precedents in the end of his Eirenarcha translateth carucatū terrae a plough land Caruage caruagium see Carue Cassia Fistula is a tree that beareth certaine blacke round and long cods wherein is contained a pulpe soft pleasantly sweet seruing for many vses in Phisick This tree with her vertues you may find described in Gerards Herball lib. 3. cap. 77. The fruite is mentioned in the statute anno 1. Iacob cap. 19. among drugges and spices that be to be garbled Cassia lignea is a sweet wood not vnlike to Cynamom and sometime vsed in steede of Cynamom Whereof you may read in Gerards Herball lib 1. ca. 141. This is called Cassia lignum in the Statute anno 1. Iacob cap. 19 and is comprised among merchandize that are to be garbled Castellain castellanus is a keeper or a Captaine sometime called a Constable of a castell Bracton lib. 5. tractat 2. cap. 16. lib. 2. cap. 32. num 2. īn like maner is it vsed anno 3. Ed. 1. cap. 7. In the bookes de feudis you shall find guastaldus to be almost of the same signification but something more large because it is also extended to those that haue the custodie of the Kings mansion houses called of the Lumbards curtes in England Courts though they be not places of defence or strength M. Manwood part 1. of his Forest lawes pag. 113. saith that there is an officer of the Forest called Castellanus Castelward castelgardum vel wardum castri is an imposition laide vpon such of the kings subiects as dwell within a certaine compasse of any castell toward the maintenance of such as doe watch and ward the castell Magna charta cap. 20. anno 32. H. 8. cap. 48. It is vsed sometime for the very circuit it selfe which is inhabited by such as are subiect to this seruice as in Stowes annals pag. 632. Casu consimili is a writ of entrie graunted where the tenent by courtesie or tenent for terme of life or for the life of another doth alien in fee or in tayle or for tearme of anothers life And it hath the name of this for that the Clerkes of the Chauncerie did by their common consent frame it to the likenesse of the writ called In casu prouiso according to their authoritie giuen them by the Statute Westm 2. cap. 24. which as often as there chanceth any new case in Chancerie something like to a former case and yet not especially fitted by any writ licenceth them to lay their heads together and to frame a new forme aunswerable to the new case and as like some former case as they may And this writ is graunted to him in the reuersion against the party to whom the said tenent so alienateth to his preiudice and in the life time of the said tenent The forme and effect whereof reade more at large in Fitz. nat br fol. 206. Casu proviso is a writ of entry giuen by the Statute of Glocecester cap. 7. in case where a tenent in dower alieneth in fee or for tearme of life or in taile and lyeth for him in reuersion against the alienee Whereof reade F 〈…〉 cat br more at large fol. 205. Catals catalla aliâs chatels cōmeth of the Normans For in the 87. chapter of the grand Custumarie you shal find that al moueable goods with them are called chatels the contrary whereof is fief ibid. which we do call fee. But as it is vsed in our common law it comprehendeth all goods moueable and immoueable but such as are in the nature of free hould or parcell thereof as may be gathered out of Sawnf praero ca. 16. and anno Eliza. 1. ca. 2. How be it Kitchin in the chapter catalla fo 32. saith that ready mony is not accompted any goods or catels nor haukes nor houndes The reason why hawks and hounds be not he giueth because they be ferae naturae why money is not though he set not downe the cause yet it may be gathered to be for that money of it selfe is not of worth but as by cōsent of men for their easier traficke or permutation of things necessary for common life it is reckoned a thing rather consisting in imagination then in deede Catals be either personall
of a fine For if a fine duly levied of lands tenements be not impugned within fiue yeres it excludeth all claime for euer And if a man omit his continuall claime for a yeere and a day then the tenent in possession prescribeth an immunity against the entrie of the demandant and his heyre Fitzh nat br fo 79. Terms of the law verbo Continuall clayme Out of our statutes you may haue greater diuersitie which see collected in mine Institutes titulo de Vsucapio longi tempo praescript So that Brissonius in his 14. de verbo fignif seemeth to say truly that prescription is an exception founded vpon so long time runne and past as the lawe limiteth for the pursuite of any action An example may be taken from those statutes anno 1. H. 8. ca. 4. which inacteth that in all actions populer information shall be made within three yeares after the offence committed or els be of no force Of like nature is the statute anno 7. H. 8. ca. 3. which in some cases maketh one yeeres prescription sufficient against informations Custome is also vsed for the tribute or tolle that merchans pay to the king for carying in and out merchandise anno 14. Ed. 3. stat 1. ca. 21. in which signification it is latined custuma Register orig fo 138. a. 129. a. and lastly for such seruices as tenents of a maner owe vnto their lord New booke of entries verbo Custome Customary tenents tenentes per consuetudmem are such tenents as hould by the custome of the maner as their especiall euidence See Copihoulds Custos breuium is the principall clerk belonging to the court of common plees whose office is to receiue and keepe all the writs and put them vpon files euery returne by it selfe and at the end of euery terme to receiue of the protonotaries all the records of Nisiprius called the postea For they are first brought in by the clerk of assise of euery circuit to the protonotarie that entred the issue in that mater for the entring of the iudgement And then doe the protonotaries get of the court peremptory day for euery party to speake what he hath to alleage in arrest of iudgement which day being past he entreth the verdict and iudgement thereupon into the rols of the court and that done he doth in the end of the tearme deliuer ouer to the custos breuium all the records of Nisi prius which came to his hand that terme which receiued he bindeth into a bundle and bestoweth them The custos breuium also maketh entry of the writs of couenant and the concord vpon euery fine and maketh forth exemplifications and copies of all writs and records in his office and of all fines leuied The fines after they be ingrossed the parts therof are diuided betwen the custos breuium and the chirogropher whereof the chirogropher keepeth alwaies with him the writ of couenant and the note the custos breuium keepeth the concord and the foote of the fine vpon the which foote the chirographer doth cause the proclamations to be indorsed when they be all proclaymed This office is in the princes gift Custos placitorum coronae Bracton li. 2. ca. 5. This seemeth to be all one with him whome we nowe call custos rotulorum of this officer I finde mention in the writ odio atia Register original fo 133. b. Custos rotulorum is he that hath the custodie of the rols or records of the sessions of peace and as some thinke of the commission of the peace it selfe Lamb. Eirenarch li. 4. ca. pa. 3. 373. He is alway a Iustice of Peace and Quorum in the countie where he hath his office Idem eodem and by his office he is rather termed an officer or minister then a iudge because the commission of the peace layethe by expresse words this especiall charge vpon him quòd ad dies locapraedicta breuia praecepta processus indictamenta praedicta coramte dictis sociis tuis venire facias Idem eodem where read a competent tract of other things belonging to this office Custos of the spiritualties custos spiritualitatis vel spiritualium is he that exerciseth the spirituall or ecclesiasticall iurisdiction of any dioces during the vacancie of the See the appointment of whome by the canon lawe apperteineth to the deane and chapter ca. ad abolendam Extra Ne sede vacante aliquid innovetur but with vs in England to the Archbishop of the province by prescription How be it divers deanes and chapters if M. Gwin say truly in the preface to his readings doe chalenge this by awncient charters from the kings of this land Cutter of the talyes is an officer in the exchequer that provideth wood for the talyes and cutteth the summe paid vpon them and then casteth the same into the Court to be written vpon DA DAmmage commeth of the french dam or domage signifiing generally any hurt or hinderance that a man taketh in his estate But in the common lawe it particularly signifieth a part of that the Iurours be to inquire of passing for the plaintiffe or demandant in a ciuile action be it personall or reall For after verdict giuen of the principall cause they are likewise asked their consciences touching costs which be the charges of suite called of the Civilians expensae litis and dammages which conteine the hindrance that the plaintiffe or demandant hath suffered by meanes of the wrong done to him by the defendant or tenent Dane guilt Danegold or Danegelt Danegeldum is compounded of Dane and gelt i. pecunia and was a tribute laide vpon our ancesters of 12. pence for euerie hide of land through the realme by the Danes that once got the masterie of vs in regard as they pretended of clearing the sease of pyrates which greatly annoyed our land in those daies Cambd. Brittan 83. with whome agree the lawes of Edward set out by M. Lamberd ca. 11. Stowe in his annals pa. 118. saith that this tribute came to 40000. pownds by the yeare and that it was released by Edw. the confessour The author of the newe Terms of law saith that this tribute began in the time of king Etheldred who being sore distressed by the continuall inuasion of the Dane to procure his peace was compelled to charge his people with importable payments For first he gaue them at fiue severall paiments 113000. poundes and afterward graunted them 48000. poundes yeerely See Roger Houeden parte poster suorum annalium in Henrico secundo fo 344. a. Dareyn continuance See Continuance Darein is a corrupt word of the French dernier i. vltimu◠Darrein presentment vltima praesentatio See Assise or darreyn presentment Dates dactyli is the plumme or fruite of the tree in latine called palma in english the Date tree well knowne to most men by sight And he that will farder vnderstand the nature or diuersities of this fruite may repaire to Gerards herball li. 3. ca. 131. They be numbred among
Realme the land was quieted the king gained greate riches toward the supporting of his wars Inquire farder of the name Baston is thougt by some to be the beame of a paire of Scoales or waights and this is in this place metaphorically applied to the iuste peising of recompence for offences committed My poore opinioÌ„ is that the etymology of this title or addition groweth from the French treilles i. cancelli barres or letises of what thing soeuer a grate with crosse bars or of the singuler treille i. pargula an house arbour a raile or forme such as vines runne vpon and Baston a staffe or pole noting thereby that the Iustices emploied in this commission had authoritie to proceede without any solemne iudgement seate in any place either compassed in with railes or made booth or tent-wise set vp with staues or poales without more worke wheresoeuer they could apprehend the malefactors they sought for See lib. Assisarum fol. 141. 57. Iustices of peace Iusticiarii ad pacem are they that are appointed by the kinges commission with others to attend the peace in the County where they dwell of whom some vpon speciall respect are made of the Quorum because some busines of importance may not be dealt in without the presence or asseÌ„t of them or one of them Of these it is but folly to write more because they haue so many thinges perteining to their office as cannot in fewe words be comprehended And againe Iustice Fitzherberd some time sithence as also M. Lamberd and M. Crompton of late haue written bookes of it to their great commendatioÌ„ and fruitfull benefit of the whole Realme See also Sir Thomas Smith de repub Angl lib 2. cap. 19. They were called Gardians of the peace vntill the 36. yeare of King Edward the third cap. 12. where they be called Iustices Lamb. Eirenarcha lib. 4. cap. 19 pag. 578. There oathe see also in Lambard lib. i. ca. 10. Iustices of peace c. within liberties Iusticiarii ad pacem infra libertates be such in cities and other corporate townes as those others be of any countie and their authoritie or power is all one within their seueral precincts anno 27. H. 8. ca. 25. Iusticies is a writ directed to the Shyreeue for the dispatch of iustice in some especiall cause wherewith of his owne authoritie he cannot deale in his Countie Courte lib. 12. cap. 18. wherevpon the writ de excommunicato deliberando is called a Iusticies in the old nat bre fol. 35. Also the writ de homine replegiando eodem fol. 41. Thirdly the writ de secunda superoneratione pasturae eodem fol. 73. Kitchin fol. 74. saith that by this writ called Iusticies the Shyreeue may hold plee of a greate summe whereas of his ordinary authoritie he cannot hold plees but of summes vnder 40. shillings Crompt on fo 231. agreeth with him It is called a Iusticies because it is a commission to the Shyreeue ad Iusticiandum aliquem to â—doe aman right and requireth noe returne of any certificat of what he hath done Bracton lib. 4. tracta 6. cap. 13. nu 2. maketh mention of a Iusticies to the Shyreeue of London in a case of Dower See the newe booke of Entries Iusticies Iustification Iustificatio is an vpholding or shewing a good reason in courte why he did such a thing as he is called to answere as to iustifie in a cause of Repleuin Broke titulo Repleuin K E KEeper of the great Seale Custos Magni Sigills is a L. by his office and called Lord Keeper of the great Seale of England c. is of the Kings priuy Councell vnder whose hands passe al charters Commissions and graunts of the King strengthened by the great or broad Seale Without the which Seale all such Instruments by Lawe are of no force for the King is in interpretation and intendment of Law a Corporation and therefore passeth nothing firmely but vnder the said Seale This Lord Keeper by the statute anno 5. Elizabethae Cap. 18. hath the same and the like place authority preeminence Iurisdiction execution of Lawes and all other Customes CoÌ„modities and Aduantages as hath the Lord Chaunceler of England for the time being Keeper of the priuy Seale Custos priuati Sigilli is a Lord by his office vnder whose hands passe all Charters signed by the Prince before they come to the broad or great Seale of England He is also of the Kings priuy Councell He seemeth to be called Clerke of the priuy Seale anno 12. R 2. Cap. 11. But of late daies I haue knowne none to beare this office by reason the Prince thinketh good rather to keepe this Seale in his owne hands and by priuate trust to commit it to his principall Secretary or some such one of his Councell as he thinketh fit for that function Keeper of the Touch. anno 2. H. 6. cap. 14. seemeth to be that officer in the kings mint which at this day is termed the master of the assay See Mint Keeper of the Forest Custos Forestae is also called cheife Warden of the Forest Manwood part pri of his Forest Lawes pag. 156. c. hath the principall gouernmeÌ„t of all things belonging thereunto as also the check of all officers belonging to the Forest And the Lord Cheife Iustice in Eyre of the Forest when it pleaseth him to keepe his Iustice Seate doth 40. daies before send out his generall Summons to him for the warning of all vnder-officers to appeare before him at a day assigned in the Summons This See in Manwood Vbi Supra King Rex is thought by M. Camden in his Britan. pag. 105. to be contracted of the Saxon word Cyninge signifing him that hath the highest power absolute rule ouer our whole Land and thereupon the King is in intendment of Lawe cleared of those defects that common persons be subiect vnto For he is alwaies supposed to be of full age though he be in yeares neuer so young Cromptons Iurisdictions fol. 134. Kitchin fol. i. He is taken as not subiect to death but is a Corporation in himselfe that liueth euer Crompton ibidem Thirdly he is aboue the Law by his absolute power Bracton lib. pri cap. 8. Kitchin fol. 1. and though for the beter and equall course in making Lawes he doe admitte the 3. estates that is Lords Spirituall Lords temporall and the Commons vnto Councell yet this in diuers learned mens opinions is not of constreinte but of his owne benignitie or by reason of his promise made vpon oath at the time of his coronation For otherwise were he a subiect after a sort and subordinate which may not bee thought without breach of duty and loyaltie For then must we deny him to be aboue the lawe and to haue no power of dispensing with any positiue lawe or of graunting especiall priuiledges and charters vnto any which is his onely and cleare right as Sir Thomas Smith well expresseth lib. 2. cap. 3. de Repub. Anglican and
anno 1. Iac. cap. 33. conteineth 12. dozen of hides or skins Latitat is the name of a writ whereby all men in personall actions are called originally to the Kings bench Fitz. nat br fo 78. M. And it hath the name from this because in respect of their beter expedition a man is supposed to lurke and therefore being serued with this writ he must put in securitie for his appearance at the day for latitare est se malitiosè occultare animo fraudandi creditores suos agere volentes l. Fulcinius § Quid sit latitare 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Quibus ex causis in possessionem eatur But to vnderstand the true original of this writ it is to be knowne that in auncient time whilest the kings bench was moueable and followed the court of the King the custome was when any man was to be siewed to send forth a writ to the Shyreeue of the county where the Court lay for the calling him in and if the Shyreeue returned non est inventus in baliva nostra c. then was there a second writ procured foorth that had these words testatum est eum latitare c. and thereby the Shyreeue willed to attach him in any other place where he might be found Now when the tribunall of the Kings bench came to be setled at Westminster the former course of writ was kept for a long time first sending to the Shyreeue of Midlesex to summon the party and if he could not be found there then next to apprehend him wheresoeuer But this seeming too troublesome for the subiect it was at last deuised to put both these writs into one and so originally to attache the party complained of vpon a supposall or fiction that he was not within the county of Middlesex but lurking else where and that therefore he was to be apprehended in any place else where he was presumed to lye hidden by a writ directed to the Shyreeue of the county where he is suspected to be and by this writ a man being brought in is committed to the Marshall of that court in whose custodie when he is then by reason he is in the same countie where the Kings bench is he may be siewed vpon an action in that court whereas the original cause of apprehending him must be a pretence of some deceit or contempt committed which most properly of old belonged to the cognizance of that court I haue bene enformed that the bringing of these actions of trespas so ordinarily to the kings bench was an inuention of Councelers that because onely Sergeants may come to the common plees barre found a meanes to set themselues on worke in that court The forme of this writ is such Iacobus Dei gratia Angliae Francis Scotiae Hiberniae Rex fidei defensor c. Vicecomiti Cantabrigiae salutem Cum Vicecomitinostro Midlesexiae nuper praeceperimus quod caperet Thomam T. Wilielmum W. si inuenti fuissent in balliua sua eos saluo custodiret ita quòd haberet corpora eorum coram nobis apud Westminster die veneris proximo post octavas Sanctae Trinitatis ad respondendum Roberto R. de placito trangressionis cumque vicecomes noster Midlesexiae ad diem illum nobis returnauerit quod praedicti Thomas T. Wilielmus W. non sunt inuenti in balliua sua super quo ex part praedicti Roberti in curia nostra coram nobis sufficienter testatum est quòd praedicti Thomas Wilielmus latitant discurrunt in comitatu tuo Idcirco tibipraecipimus quòd capias eos si inveÌ„tifuerint in balliua tua eos salvo custodias it a quod habeas corpora eorum coram nobis apud Westminster die Martis proximo post tres septimanas eodem Trinitatis ad respondendum praefato Roberto deplacito praedicto habeas ibi tunc hoc breve Teste Iohanne Pâ—pham apud Westminster Roper Launcegay anno 7. Rich. secundi cap. 13. Law lex cometh of the Saxon lah the generall significatioÌ„ is plaine only this I thought to note that the law of this land hath beene variable For first Dunwallo Mulmutius otherwise Molincius a Brittaine that being Duke of Cornwall reduced the whole land formerly seuered by ciuile wars into the state of a Monarchy made certaine wholsome lawes which long after were called Mulmutius lawes and by Gyldas translated out of the Bryttish tongue into latine Stow in his Annals pag. 16. Of these there remaine yet certaine heads recorded by our historiographers as followeth 1. vt Deorum templa ciuitates hominum consequantur tantam dignitatem ne quis illò confugiens extrahipossit antequà m ab eo quem laeserat veniam impetraverit 2. vt huiusmods privilegium immunitatis habeant etiam ipsae viae quae ducunt ad templa ad vrbes 3. Imo iumenta quoque illa quae res rusticae subueniunt 4. Denique colonorum aratra ipsa tali praerogativa libertatis perfruantur 5. Hoc amplius vt ne quaterra vacaret culturâ neve populus inopia reifrumentariae premeretur aut ea minueretur si pecora sola occuparent agros qui ab hominibus coli dobent 6. Constituit quot aratra quaelibet dioece sis haberet ac poenam statuit iis per quos ille numerus aratrorum foret diminutus 7. Item vetuit bovem aratorâ—m pro debito pecuniae assignari debitoribus si alia bonae debitoris essent Ita fore ne compendii causa homines pecuarii agros incultos redderent sic etiam fore ne quid carum rerum quas natura praebet hominibus vsquam deesse posset Rich. Vitus historiarum Britanniae li. 3. nu 1. And of these lawes we finde no obscure remanets in our lawes now in vse See Magna charta ca. 1 câ— 14. See Sanctuary See Peace Then was there a lawe called Merchenlage whereby the Mercians were gouerned being a kingdome in the heart of the land conteining those countries that be nowe called Northampton shire Leycester shire Rutland shire Lincolne shire Nottingham shire and Derby shire Camd. Britan. pag. 94. whose power was great in the Heptarchy of the Saxons vntill at the last they were conquered by the west Saxons and made subiect to them Polydor. in Angl. Hist lib. 5. But whereas the name of these lawes sauoureth of the Saxons time it is reported by others that Martia a very learned Queene and wife to Quintelinus a Britton king was the author of them long before the Saxons set foote in England Rich. Vitus histo Britan. li. 3. nu 14. who also saith that Alphred the Saxon King translated both these and also those of Mulmutius into the English or Saxon tongue Thirdly there was the lawe of the west Saxons called west Saxenlage and the lawe of the Danes when they set foote into the Realme called Denelage And of these lawes Edward made one lawe as some write whereby he ruled his kingdome But M. Camd. vbi supra speaking nothing of
Mulmutius lawes saith out of Geruasius Tilburiensis that of the other three William the Conquerour chose the best and to them adding of the Norman lawes such as he thought good he ordeined lawes for our kingdome which we haue at this present or the most of them Lawe hath an especiall signification also wherein it is taken for that which is lawfull with vs and not els where As tenent by the courtesie of England anno 13. Ed. 1. cap. 3. and againe to wage lawe vadiare legem and to make lawe facere legem Bracton lib. 3. tract 2. cap. 37. is to chalenge a speciall benefite that the lawe of this Realme affordeth in certaine cases whereof the first sc vadiarâ— legem is to put in securitie that he will make lawe at a day assigned Glanuile lib. 1. cap. 9. and to make law is to take an oath that he oweth not the debt chalenged at his hand and also to bring with him so many men as the court shall assigne to avowe vpon their oath that in there conscieÌ„ces he hath sworne truly And this lawe is vsed in actions of debt without specialty as also where a man comming to the court after such time as his tenements for default be seised into the Kings hands will denie himselfe to haue beene summoned Glanuile lib. 1. cap. 9. 12. and See Bracton vbi supra nu 1. v. Kitchin fol. 164. See the newe exposition of lawe Termes verbo Ley this is borrowed from Normandie as appeareth by the grand Custumarie cap. 8y But Sir Edward Cooke saith it springeth originally from the iudiciall lawe of god li. 4. of his reports Slades case fol. 95. b. alleaging the 22. cap. of Exodus versu 7. Whether so or not the like custome is among the Feudists by whome they that come to purge the defendant are called Sacramentales libro feud 1. tit 4. § 3. titulo 10. titulo 26. Lawe of armes ius militare is a law that giueth precepts rules how rightly to proclaime warre to make and obserue leagues truce to set vpon the enemie to retire to punish offendours in the campe to appoint souldiers their pay to giue euery one dignitie to his desert to diuide spoiles in proportion and such like for farder knowledge wherof reade those that write de iure bells Lawe day signifieth a leete Cromptons Iurisdict fol. 160. and the county court anno 1. Ed. 4. cap. 2. Lawles man is he qui est extra legem Bracton lib. 3. tract 2. cap. 11. nu 1. See Outlawe Lawe of Marque See Retrisalles This word is vsed anno 27. Ed. 3. stat 2. ca. 17. and groweth from the German word March i. limes a bound or limite And the reason of this appellation is because they that are driuen to this lawe of reprisall do take the goods of that people of whome they haue receiued wrong and cannot get ordinary iustice when they can catch them within their owne territories or precincts Lawe Merchant is a priuiledge or speciall lawe differing from the common lawe of England and proper to merchants and summary in proceeding anno 27. Ed. 3. stat 8. 9. 19. 20. anno 13. Ed. 1. stat tertio Lawing of dogs expeditatio canum See Expeditate Mastifs must be lawed euery three yeare Cromptons Iurisd fol. 163. Lease lessa commeth of the French laysser i linquere relinquere omittere permittere It signifieth in our common lawe a dimise or letting of lands or tenements or right of common or of a rent or any hereditament vnto another for terme of yeares or of life for a rent reserued And a lease is either written called a lease by Indenture or made by word of mouth called a lease paroll See the newe Termes of the lawe The party that letteth this lease is called the leassour and the partie to whom it is let the leassee And a lease hath in it sixe points viz. words importing a dimise a leassee named a commencement from a day certaine a term of yeares a determination a reseruation of a rent Coke vol. 6. Knights case fol. 55. a. Leete leta is otherwise called a lawe day Smith de Republ. Anglor lib. 2. cap. 18. the word seemeth to haue growne from the Saxon Lethe which as appeateth by the lawes of king Edward set out by M. Lamberd num 34. was a court or iurisdiction aboue the Wapentake or Hundred comprehending three or foure of them otherwise called Thryhing and contained the third patt of a Prouince or Shire These iurisdictions one and other be now abolished and swallowed vp in the Countie court except they be held by prescription Kitchin fol. 6. or charter in the nature of a franchise as I haue said in Hundred The libertie of Hundreds is rare but many Lordes together with their courts Baron haue likewise Leetes adioyned and thereby do enquire of such transgressions as are subiect to the enquirie and correction of this Court whereof you may read your fill in Kitchin from the beginning of his booke to the fifth chapter and Briton cap. 28. But this court in whose maner soeuer it be kept is accompted the kings court because the authoritie thereof is originally belonging to the Crowne and thence deriued to inferiour persons Kitchin fol. 6. Iustice Dyer saith that this Leete was first deriued from the Shyreeues Turn fol. 64. And it enquireth of all offences vnder high treason committed against the Crowne and dignitie of the king though it cannot punish many but must certifie them to the Iustices or Assise per Statut. anno 1. Ed. 3. cap. vlt. Kitchin fol. 8. but what things bee onely inquirable and what punishable see Kitchu in the charge of a court Leet fol. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. See also the Statute anno 18. Ed. 2. The Iurisdiction of Bayliffes in the Dutchy of Normandie within the compasse of their Prouinces seemeth to be the same or very neare the â—ame with the power of our Leete cap. 4. of the grand Custumarie Legacie legatum is a particular thing giuen by last will and testament For if a man dispose or transferre his whole right or estate vpon another that is called Haereditas by the Ciuilians and he to whome it is so transferred is tearmed haeres Howbeit our common Lawyers call him Heire to whom all a mans lands and hereditaments doe descend by right of bloud See Heire See Hereditaments Leproso amouendo is a writ that lyeth for a Parish to remoue a Leper or Lazar that thrusteth himselfe into the company of his neighbours either in church or other publike meeting and communeth with them to their annoyance or disturbance Regi orig fol. 267. Fitz. nat br fol. 234. Lestage aliâs lastage lastagium proceedeth from the Saxon word last i. onus and is a custome chalenged in Faires markets for carying of things Rastals Exposition of words or a custome chalenged in cheapings or Faires Saxon in the description of England
to be very tenent to that Lord of whom he immediately holdeth So that if there be lord aboue lord mesn and tenent the lord aboue is not very lord to the tenent nor the tenent very tenent to the lord aboue Lord in grosse Fitz. nat br fol. 3. is he that is lord hauing noe maner as the king in respect of his crown idem f. 5. F. See him also fol. 8. A. B. where I finde a case wherein a priuate man is lord in grosse viz. a man maketh a gift in tayle of all the land hee hath to hold of him and dyeth his heire hath but a Seignorie in grosse Lorimers anno 1. R. 3. cap. 12. is one of the companies in London tha makeht bits for bridles of horses and such like The name seemeth to be taken from the latine lorum and is else where writen Lorinors Lotherwit aliâs Leyerwit is a libertie or priueledge to take amends of him that defileth your bondwoman without licence Rastall exposition of words It is an amends for lying with abondwoman Saxon in his description of England cap. 11. Some thinke it should be rather writen Legerwit For Leger is the Saxon word for a bedde or Logherwit of the old word Logher being of the same signification See Bloodwit and Lyerwit Lusernes See Furre Lushoborow is a base coine vsed in the daies of King Ed. the 3. coined beyōd Seas to the likenes of English money and brought in to deceiue the King and his subiects To auoide the which it was made treason for any man wittingly to bring in any such an 25. Ed. 3. stat 4. cap. secundo M MAcegriefs aliâs Macegrefs be such as willingly buie and sell stolen slesh Britton cap. 29. fo 71. b. Cromptons Iustice of peace fo 193. a. Magna assisa eligenda is a writ directed to the Shyreeue to summon foure lawful knights before the Iustices of Assise there vpon their oathes to chuse 12. knights of the vicenage c. to passe vpon the great assise betweene A. plaintife and B. defendant c. Register originall fol. 8. a. Magna Charta called in English the great charter is a charter conteining a number of lawes ordained the ninth yeare of Henry the third and confirmed by Edward the first The reason why it was tearmed Magna charta was either for that it conteined the summe of all the writen lawes in England or else that there was another Charter called the Charter of the Forest established with it which in quantitie was the lesser of the two I reade in Holinshed that King Iohn to appease his Barons yelded to lawes or articles of gouernment much like to this great Charter but wee nowe haue noe auncienter writen lawe then this which was thought to be so beneficall to the sublect and a lawe of so great equitie in comparison of those which were formerly in vse that K. Henry the third was thought but hardly to yeld vnto it and that to haue the fifteenth peny of all the moueable goods both of the spiritualtie and temporaltie throughout his realme Holinshed in Henry the third And though this Charter consist not of aboue 37. chapters or lawes yet is it of such extent as all the lawe wee haue is thought in some sort to depend of it Polydorus and Holinshed vbi supra Mahim Mahemium commeth of the old French Mehaigne as M. Skene saith de verbo signif verbo Machanium and signifieth a corporal hurt whereby a man looseth the vse of any member that is or might bee any defence vnto him in batel The Canonists call it membrimatilationem as the eye the hand the foote the scalpe of the head his foretooth or as some say of any finger of his hand Glanuile lib. 14. ca. 7. See Bracton at large lib. 3. tracta 2. cap. 24. nu 3. and Britton cap. 25. and Stawnf pl. cor lib. pri ca. 41. and the newe exposition of law Termes and the Mirrour of Iustices cap. d'homicid The grand Custumarie of Normandie cap. 6. calleth it Mahaignium and defineth it to be enormem laesionem All agree that it is the losse of a member or the vse thereof And membrum as Cassan de consuetu Burgund pag. 168. defineth it out of Baldus est pars corporis habens destinatam operationem in corpore where you may reade more of this point But if you will see it largely discussed look Vgolinus de irregularitatibus ca. 4. § 3. 4. 5. also read M. Skene vbi supra Mainour aliâs Manour aliâs Meinoure seemeth to come of the French Manier i. manu tractare attrectare or els of Ameuer i. abducere It signifieth in our common lawe the thing that a theefe taketh away or stealeth as to be taken with the mainor pl. cor fol. 179. is to be taken with the thing stolen about him and againe fol. 194. It was presented that a theefe was deliuered to the Vicount together with the Mainor thirdly fol. 186. If a man be indited that he feloniously stole the goods of another where in truth they bee his owne goods and the goods bee brought into the court as the manour and it be demaunded of him what hee saith to the goods and he disclaime them though he be quitted of the felonie he shall loose the goods and againe fol. 149. if the defendant were taken with the manour and the manour bee caried to the court they in auncient times would arraine him vpon the manour without any appeale or inditement I find this word vsed in the old nat br fol. 110. in this sort where a man maketh a thing by mainour or leuying or estopping in such case he shall haue Assise where it signifieth handie labour and is but an abbreviation of Mainovrey Mainovre see Minouerye Mainprise Manucaptio is compounded of two French words Main i. manus prins i. captus which is a participle of the verbe prendre i. capere excipere captare It signifieth in our common lawe the taking or receiuing a man into friendly custody that otherwise is or might bee committed to the mercie of the prison vpon securitie giuen for his forth comming at a day assigned as to let one to mainprise old nat br fol. 42. is to commit him to them that vndertake his apparence at the time appointed And they that do thus vndertake for any are called Mainpernouns because they do receiue him into their hands pl. cor fol. 178. Of this sort is the word Mainpernable which signifieth him that hath committed such an offence as by law he may be thus bayled For in many cases a man is not mainpernable whereof see Broke titulo Mainprise per totum and Fitz. nat br fol. 249. seqq M. Manwood in the first part of his Forest lawes pag. 167. maketh a great difference betweene Bayle and Mainprise For he that is mainprised quoth he is alwayes said to be at large and to goe at his owne libertie out of ward after the day is set to mainprise vntill the
Librata terrae Oyer and Terminer audiendo terminando in true French Ovir terminer is in the intendment of our lawe a commission especially graunted to certaine men for the hearing and determining of one or more causes This was wont to be in vse vpon some sodaine outrage or insurrection in any place Cromptons Iurisd fol. 131. 132. See The Statute of Westm 2. cap. 29 anno 13. Ed. 1. who might graunt this commission And see Fitzh nat br fol. 100. for the forme and occasion of the writ as also to whom it is to bee graunted and whom not See Broke titulo Oyer determiner Oyer de Record Audire Recordum is a petition made in court that the Iudges for beter proofes sake will be pleased to heare or looke vpon any Record P PAcking whites anno 1. R. 3. cap. 8. Pain fort dure poena fortis dura is in true French peine fort dure It signifieth in our common lawe an especiall punishment for those that being arraigned of felonie refuse to put themselues vpon the ordinarie triall of God and the cuntrey and thereby are mute or as mute in interpretation of law This as Stawnf thinketh pl. cor lib. 2. cap. 60. is founded vpon the Statute of Westm prim cap 12. anno 3. Ed. prim His reason is because Bracton who writ before that Parlament maketh no mention of it and Britton writing after that time toucheth it in his 4. chapter fol. 11. viz. in words to this effect If they will not acquite themselues let them be put to their penance vntill such time as they do desire triall and let the penance bee such viz. Let them be bare legged without girdle and without hatte or cappe in their coate onely and lye in prison vpon the naked earth day and night And let them eate no bread but of barley and branne nor drink any other then water and that vpon that day when they eate not And let them be chained Stawnford in his said 60. chapter of his second booke expoundeth it more plainely and particularly in this sort And note that this strong and hard paine shall be such sc He shall be sent backe to the prison whence he came and layed in some lowe darke house where he shall lye naked vpon the earth without any litter rushes or other clothing and without any raiment about him but onely something to couer his priuie members And he shall lye vpon his backe with his head couered and his feete And one arme shall bee drawne to one quarter of the house with a cord and the other arme to another quarter and in the same maner let it be done with his legges and let there be layed vpon his body iron and stone so much as he may beare or more and the next day following he shall haue three morsels of barley bread without drinke and the second day he shall haue drinke three times and as much at each time as he can drinke of the water next vnto the prison doore except it be running water without any bread And this shall be his diet vntill he dye Palatine See County Palatine See Cassan de consuetud Burg. pag. 14. Palingman anno 11. Henr. 7. cap. 22. Panell panellum commeth of the French panne i. pellis or paneau a peece or pane as wee call it in English It signifieth in our common lawe a shedule or rolle containing the names of such Iurours as the Shyreeue prouideth to passe vpon any triall Register orig fol. 223. a. Kitthin fol. 266. See Broke hoc titulo And thereupon the empaneling of a Iurie is nothing but the entring of them into the Shyreeues rolle or booke Pannage pannagium is a tolle or contribution Fitz. nat br fol. 227. D. See Pawnage Paramounte aliâs peremounte commeth of these two French words par i. per and Monter i. ascendere It signifieth in our law the highest Lord of the fee for there may be a Tenent to a Lord that houldeth ouer of another Lord. And the former of those is called Lord Mesn the second Lord paramount And a Lord paramount as it seemeth by Kitchin fol. 209 consisteth only in comparison as one man may be great being compared with a lesser and litle being compared with a greater and as Genus among the Logicians may be in diuers respects both genus and species Fitzh nat br fol. 135. M. So that none seemeth simply to be Lord paramount but only the King as Genus summum is simply Genus For the King is patron paramount to all the benefices in England Doctor and student ca. 36. See Parauaile Maner and Fee Parauaile aliâs Perauaile is compounded of two French words par i. per and aualler i. dimittere demittere It signifieth in our common law the lowest tenent or him that is tenent to one who houldeth his fee ouer of another So is it vsed pl. cor fol. 197. and Fitzh nat br fol. 135. M. See Paramounte See Mesn Parcell makers are two officers in the eschequer that make the parcels of the escheators accoumpts wherein they charge them with euery thing they haue leuyed for the kings vse within the time of their office deliuer the same to one of the auditors of the court to make an accompt for the escheatour thereof Parceners See Coparceners Parcinarie participatio commeth of the French partir i. diuiduum facere It signifieth in our common law a houlding or occupying of land by more pro indiviso or by ioynt tenents otherwise called Coparceners of the French parsonnier i. partiarius particeps For if they refuse to diuide their common inheritance and chuse rather to hold it ioyntly they are said to hold in parcinarie Litleton fol. 56. 57. This by the Feudists and Lombards is termed adaequatio vel paragium And among the auncient Romanes particulones sic enim authore Nonio a veteribus cohaeredes inter se dicebantur quòd partes invicem facerent Spigelius Pardon Perdouatio is a French word signifiing as much as pax venia gratia It is vsed most notoriously in our common lawe for the remitting or forgiuing of a felonious or other offence committed against the king This pardon is two-fold one ex gratia Regis the other per cours del ley by course of law Stawns pl. cor fol. 47. Pardon ex gratia Regis is that which the king in some speciall regard of the person or other circumstance sheweth or affoordeth vpon his absolute prerogatiue or power Pardon by course of lawe is that which the lawe in equitie affoordeth for a light offence as homicide casuall when one killeth a man hauing no such meaning West parte 2. symbol titulo Inditements sect 46. Of this see the new booke of Entries verbo Perdon Pardoners anno 22. H. 8. c. 12. were certaine fellowes that caried about the Popes Indulgences and sold them to such as would buy them against whom Luther by Sleydans report in censed the people of Germany in his
time exhorting them ne merces tam viles tanti emerent Parke parcus commeth of the French parquer i. vallo vel fossa circundare It signifieth with vs a peece of grounde inclosed and stored with wild beastes of chase Which a man may haue by prescription or the kings graunt Cromptons Iurisd fol. 148. M. Manwood parte pri of his Forest lawes pag. 148. defineth it thus A parke is a place of priuiledge for wilde beastes of venerie and also for other wild beasts that are beasts of the Forest and of the chase tam syluestres quam campestres And all those wild beastes are to haue a firme peace and protectioÌ„ there So that no man may hurt or chase them within the park without licence of the owner of the same Who also fol. 149. saith thus A parke is of another nature then either a chase or a warren is For a parke must bee inclosed and may not lye ope for if it doe that is a good cause of seisure of the same into the hands of the king as a thing forfeited as a free chase is if it be enclosed And moreouer the owner cannot haue action against such as hunt in his park if it lye open See Forest See Chase See Warren This word Parke Baldwinus deriueth a paradiso eumque locum esse dicit in quo varia animalia ad vsum voluptatis aut venationis includuntur possidentur adempta naturali libertate Ad tit de rerum divis in Institutionib Parco fracto is a writ which lyeth against him that violently breaketh a pound and taketh out beasts thence which for some trespas done vpon another mans ground are lawfully impounded Register originall fol. 166. Fitzh nat br fol. 100. Parish parochia commeth of the greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. Accolarum conuentus accolatus sacra vicinia it is vsed in the Cannon law some time for a Bishoprick But in our common law it signifieth the particular charge of a secular priest For euery church is either Cathedrall Couentuall or Parochiall Cathedrall is that where there is a Bishop seated so called a Cathedra Conuentuall consisteth of Regular clerks professing some order of religion or of Deane and chapter or other colledge of spirituall men Parochiall is that which is instituted for the saying of diuine seruice and ministring the holy Sacraments to the people dwelling within a certaine compas of ground neare vnto it Our Realme was first diuided into parishes by Honorius Archb of Canterbury in the yeare of our Lord. 636. Camden Britan. pag. 104. Of these parish churches I finde there were in England in the daies of H. 8. the number of 45000. Hotoman in his disputations de feudis ca. 2. maketh mention of this word parochia out of Pomponius Laetus in these words Nam sic quoque Pomponius Laetus veterem consuetudinem fuisse scribit eamque ab Imperat 〈…〉 Constantino repetitam vt Duc 〈…〉 praefectis Tribunis qui pro augendâ— Imperio consenuerant darentur agri villaeque vt necessaria suppet 〈…〉 quoad viuerent quas paroehias cabant And a litle after ver 〈…〉 inter feuda parochias hoc 〈…〉 est quod hae plerumque senibus 〈…〉 veteranis plerisque emeritae 〈…〉 dabantur qui cum de Rep. bene meriti essent publico beneficio reliquum vitae sustentabant aut si quod bellum nasceretur euocati non tam milites quà m magistri milituÌ„ viderentur Feuda vero plurimum Iâ—â—enibus robustis primo flore aetatis qui militiae munus sustinere poteraÌ„t imo verò vt posseÌ„t vt velleÌ„t c. Parlament parlamentum is a French word signifiing originally as much as Collocutio or colloquium but by vse it is also taken for those high courts of Iustice throughout the kingdome of Fraunce where mens causes and differences are publikely determined without farder appeale Whereof there be seuen in number as Paris Tolouse Gresnoble in Daulphene Aix in Prouence Bordeaux Diion in Bourgogine and Roan in Normandy Vincentius Lupanus de Magistrat Franc. lib. 2. cap. Parlamentum num 28. whereunto Gerard de Haillon addeth the eighth viz. Rhenes in Brettagne In England we vse it for the assembly of the king and the three estates of the Realme videlicet the Lords Spirituall the Lords Temporall and commons for the debating of maters touching the common wealth and especially the making and correcting of lawes which assembly or court is of all other the highest and of greatest authoritie as you may reade in Sir Thomas Smith de Repub. Anglo lib. 2. cap. 1. 2. Camd. Britan. pag. 112. and Cromptons Iurisd fol. pri seqq The institution of this court Polydor Virgil lib. 11. of his Chronicles referreth after a sort to Henry the first yet confessing that it was vsed before though verie seldome I find in the former prologue of the Grande Custumarie of Normandie that the Normans vsed the same meanes in making their lawes And I haue seene a monument of Antiquite shewing the maner of houlding this parlament in the time of King Edward the sonne of King Etheldred which as my note saith was deliuered by the discreeter sorte of the Realme vnto William the Conquerour at his commaundement allowed by him This writing beginneth thus Rex est caput principium finis parlamenti ita non habet parem in suo gradu Et sic ex Rege solo primus gradus est Secundus gradus est ex Archiepiscopis Episcopis Abbatibus Prioribus per BaroniaÌ„ tenentibus Tertius gradus est de procuratoribus cleri Quartus gradus est de Comitibus Baronibus aliis Magnatibus Quintus gradus est de militibus Comitatuum Sextus gradus est de civibus Burgensibus ita est parlamentum ex sex gradibus sed sciendum licet aliquis dictorum quinque graduum post Regem absens fuerit dum tamen omnes praemoniti fuerint per rationabiles summonitiones parlamentum nibilo minus censetur esse plenum Touching the great authoritie of this court I finde in Stowes Annalls pag. 660. that Henry the sixth directing his priuie seale to Richard Earle of Warwicke thereby to discharge him of the Captainship of Cales the Earle refused to obey the priuie seale and continued forth the said office because he receiued it by Parlament But one example cannot make good a doctrine And of these two one must needes be true that either the king is aboue the Parlament that is the positiue lawes of his kingdome or els that he is not an absolute king Aristotle lib. 3. Politico cap. 16. And therefore though it be a mercifull policie and also a politique mercie not alterable without great perill to make lawes by the consent of the whole Realme because so no one part shall haue cause to complaine of a partialitie yet simply to binde the prince to or by these lawes weare repugnant to the nature and constitution of an absolute monarchy See Bracton lib. 5.
Princes especially purposed But of this reade Sir Thomas Smith lib. 3. de Rep. Angl. cap. 9. Some later statutes doe cast this punishment vpon other offenders as namely the statute anno 1. El. cap. primo vpon him that denieth the Kings supremacie the second time c. and the statue anno 13. El. ca. 2. vpon him that affirmeth the authoritie of the Pope or that refuseth to take the oathe of supremacie and the statute anno 13. El. cap. 1. fuch as be seditious talkers of the inheritance of the Crowne or affirme the Queenes Maiestie to be an heritique And the word is applied most commonly to the punishment first ordeined by the statutes before mentioned for such as transgressed them but in later times imposed vpon other offences for that where it is saide that any man for an offence committed shall incurre a premunire it is meant that he shall incurre the same punishment which is inflicted against those that trangresse the statute made anno 16. R. 2. ca. 5. which is commonly called the statute of premunire which kinde of reference is not vnusuall in our statutes Cor example I shew onely the statute anno 5. El. ca. 5. where it is inacted that if any man preach or teach by wrighting that the cōmon Counsell of the Realme doe by that statute forbid flesh to be eaten as of necessitie for the sauing of mans soule that he shall for such preaching c. be punished as they be which be spredders of false newes hauing reference thereby to those statutes which conteine the punishment of such offenders Now touching the Etymologie of this word Praemunire some thinke it proceedeth from the strength giuen to the Crown by the former statutes against the vsurpation of forein and vnnaturall power which opinion may receiue some ground from the statute anno 25. Ed. 3. stat 6. cap. pri But other thinke it to grow from the verb Praemonere being barbarously turned into Praemunire which corruption is taken from the rude Interpreters of the Ciuile and Canon lawes who indeede doe vse the effect Praemunire many times for the efficient cause Praemonere according to our prouerb He that is well warned is halfe armed And of this I gather reason from the forme of the writ which is thus conceiued in the old nat br fol. 143. Praemunire facias praefatum praepositum I. R. procuratorem c. quod tune sint coram nobis c. for these words can be referred to none but parties charged with the offence Praepositus villae is vsed sometime for the Constable of a town or petit Constable Cromptons Iurisdict fol. 205. how be it the same author fol. 194. seemeth to apply it otherwise for there quatuor homines praepositi be those 4. men that for euery towne must appeare before the Iustices of the Forest in their Circuit It is vsed sometime for a Reeve See Reeve Praerogatiue of the King praeregatiua regis is that especiall power preeminence or priuiledge that the King hath in any kinde ouer and aboue other persons and aboue the ordinarie course of the common lawe in the right of his crowne And this word Praerogatiua is vsed by the Ciuilians in the same sense l. Rescriptum 6. § 4. Π. de hono muner But that priviledge that the Roman Emperour had aboue common persons they for the most part comprised sub iurefisci Π. de iure fisct per totum tit Co. li. 10. tit 1. Among the Feudists this is termed ius regalium ius regaliorum vel a nonnullis ius regaliarum But as the Feudists sub iure regalium soe our lawyers sub praerogatiua regis doe comprise also all that absolute heighth of power that the Ciuilians call maiestatem vel potestatem vel ius imperii subiect only to god which regalia the Feudists diuide into two sorts maiora sc minora regalia for to vse their owne words Quaedam regalia dignitatem praerogatiuam imperii praeemmentiam spectant quaedam verò ad vtilitatem commodum pecuniarium immediatè attinent haec proprièfiscalia sunt ad ius fisci pertinent Peregri de iure fisci li. pri cap. 1. nu 9. See also Arnoldus Clapmarius de arcanis Imperii lib. pri cap. 11. seqq who seemeth to make difference betwene maiestatem ius regaliorū Others also make those maiora regalia that appertaine to the dignitie of the prince and those minora which inrich his cofers Regnerus Sixtinus de iure rega cap. 2. By this it appeareth that the statute of the Kings prerogatue made an 17. Ed. 2. conteineth not the summe of the Kings whole prerogatiue but onely so much thereof as concernes the profit of his cofers growing by vertue of his regall power and crowne for it is more then manifest that his prerogatiue reacheth much farder yea euen in the maters of his profit which that statute especially consisteth of For example it is the kings prerogatiue to graunt protection vnto his debtours against other creditours vntill himselfe be satisfied Fitzh nat br fol. 28. B. to distreine for the whole rent vpon one tenent that hath not the whole land Idem fol. 235. A. to require the auncesters debt of the heire though not especially bound Brit. cap. 28. fo 65. b. to seise vpon money paid by his deptour into a court for the satisfaction of an executor Plowden fol. 322. a. to permit his deptours to siew for their debts by a Quo minus in the exchequer Perkins Grawnts 5. to be first paid by one that oweth money both to him and others Dyer fol. 67. nu 20. to take the lands of accountants into his hands for his own satisfaction Plowd casu Almes fol. 321. 322. to take his action of accoumpt against executors eodem fol. 320. not to be tied to the demaund of his rent Coke li. 4. fo 73. a. Now for those regalities which are of the higher nature all being within the compas of his prerogatiue and iustly to be comprised vnder that title there is not one that belonged to the most absolute prince in the world which doth not also belong to our king except the custome of the nations so differ as indeede they doe that one thing be in the one accompted a regalitie that in another is none Onely by the custome of this kingdome he maketh no lawes without the consent of the 3. estates though he may quash any lawe concluded of by them And whether his power of making lawes be restreined de necessitate or of a godly and commendable policy not to be altered without great perill I leaue to the iudgement of wisermen But I hold it incontrowlable that the king of England is an absolute king And all learned politicians doe range the power of making lawes inter insignia summae absolutae potestatis Maiora autem regalia sunt haec clausula plenitudinis potestatis ex ea aliquid statuere leges condere ac eas omnibus singulis
writ and not those that he houldeth of course or custome And in that case also it may be gathered out of the same authour that he hath a record but with the testimony of those annexed that be suiters to the Court. Which seemeth to agree with Bractons words aboue specified Seruiens Hundredi habet recordum in testimonio proborum hominum And to this purpose read Glanuile lib. 8. cap. 8. 9. 10. One Iustice vpon view of forcible detinew of land may record the same by statute anno 15. R. 2. cap. 2. the Maior and Constables of the Staple haue power to record recognisances of debt taken before them anno 10. H. 6. ca. 1. Brooke titulo Record seemeth to say that no court ecclesiasticall is of record how truly it is to be inquired For Bishops certifiing bastardy bigamy excommunication the vacancy or plenarty of a Church a mariage a diuorce a spirituall intrusion or whether a man be professed in any religion with other such like are credited without farder enquiry or controlment See Brooke titulo Bastardy See Fleta lib 6. ca. 39. 40. 41. 42. Lamb. cirenarcha lib pri cap. 13. Glanuile li. 7. ca. 14. 15. the Register originall fol. 5. b. Bracton lib. 5. tracta 5. ca. 20. nu 5. Britton ca. 92. 94. 106. 107. 109. Doct. and Stud. li. 2. ca. 5. but especially Cosius apologie parte pri ca. 2. And a testament shewed vnder the seale of the Ordinary is not trauersable 36. H. 6. 31. Perkins Testament 491. Fulb. paral fol. 61. b. But it may be that this opinion groweth from a difference betweene that law whereby the court Christian is most ordered and the common law of this land For by the ciuile or canon law no instrument or record is held so firme but that it may be checked by witnesses able to depose it to be vntrue Co. plu◠valere quod agitur quà m quod simulate concipitur ca. cùm Iohannes 10. extra de fide instrumentorum Whereas in our common law against a record of the Kings Court after the terme wherein it is made no witnes can preuaile Britton ca. 109. Coke lib. 4. Hindes case fol. 71. lib. assisarum fol. 227. nota 21. This reconciliation may be iustified by Brooke himselfe titulo Testaments num 4. 8. 14. and by Glanuile lib. 8. cap. 8. The King may make a court of record by his graunt Glanuil li. 8. ca. 8. Britton cap. 121. as for example Queene Elizabeth of worthy memory by her Charter dated 26. Aprilis anno 3. regni sui made the Consistory Court of the Vniuersity of Cambridge a Court of record There are reckoned among our common lawyers three sorts of records viz A record iudiciall as attainder c. A record ministeriall vpon oath as an office found A record made by conueyance by consent as a fine deede enrolled or such like Coke li. 4. Andrew Ognels case fo 54. b. Recordare facias or recordari facias is a writ directed to the Shyreeue to remoue a cause depending in an inferiour court to the Kings bench or common plees as out of a court of auncient Demesn Hundred or Countie Fitz. nat br fol. 71. B. out of the countie Court idem fo 46. B. or other courts of record idem fol. 71. C. 119. K. Howbeit if you will learne more exactly where and in what cases this writ lyeth reade Brooke in his Abridgm titulo Recordare pone It seemeth to be called a recordare because the forme is such that it commaundeth the Shyreeue to whom it is directed to make a record of the proceeding by himselfe and others and then to send vp the cause See the Register verbo Recordare in the Table of the originall Writs See Certiorart See Accedas ad Curiam Recorder recordator commeth of the French recordeur i. talis persona quae in Ducis Curia â iudicio faciendo non debet amoueri Grand Custumarie of Norm cap. 107. 121. Whereby it appeareth that those which were necessarie Iudges in the Duke of Normandies Courts were called Recorders and who they were is shewed in the ninth chapter of the said booke And that they or the greater part of them had power to make a record it is euident in the chapter 107. Here in England a Recorder is he whome the Maior or other Magistrate of any citie or towne corporate hauing Iurisdiction or a Court of record within their precincts by the Kings graunt doth associate vnto him for his beter direction in maters of Iustice and proceedings according vnto lawe And he is for the most part a man well seene in the common lawe Recordo processis mittendis is a writ to call a Record together with the whole proceeding in the cause out of one court into the Kings Court Which see in the Table of the Register orig how diuersly it is vsed Recordo vtlagariae mittendo is a writ Iudiciall which see in the Register iudicial fol. 32. Recouerie Recuperatio cōmeth of the French Recouvrer i. Recuperare It signifieth in our commō lawe an obteining of any thing by Iudgement or triall of lawe as evictio doth among the Ciuilians But you must vnderstand that there is a true recouerie and a feigned A true Recouerie is an actuall or reall recouerie of any thing or the value thereof by Iudgement as if a man siewed for any land or other thing moueable or immoueable and haue a verdict and Iudgement for him A feigned recouerie is as the Ciuilians call it quaedam fictio iuris a certaine forme or course set downe by lawe to be obserued for the beter assuring of lands or tenements vnto vs. And for the beter vnderstanding of this reade West parte 2. symbol titulo Recoveries sect pri who saith that the end and effect of a Recouerie is to discontinue and destroy estates Tayles Remainders and Reuersions and to barre the former owners thereof And in this formality there be required 3. parties viz. the Demaundant the Tenent and the Vowchee The Demaundant is he that bringeth the writ of Entrie and may be termed the Recouerer The Tenent is he against whom the writ is brought and may be termed the Recoveree The Vowchee is he whom the tenēt vowcheth or calleth to wartantie for the land in demaund West vbi supra In whom you may reade more touching this mater But for example to explane this point a man that is desirous to cut of an estate tayle in lands or tenements to the end to sell giue or bequeath it as him self seeth good vseth his frend to bring a writ vpon him for this land He appearing to the writ saith for him selfe that the land in question came to him or his auncesters from such a man or his auncester who in the conueiance thereof bound him selfe and his heires to make good the title vnto him or them to whome it was conueied And so he is allowed by the court to call in this third man to
quanta per confessionem partis adversae vel per probationes legitimas in fine litis apparebit And againe in the conclusion of all Non astringens se ad singula probanda sed potens vtquatenus probauerit in praemissis aut eorum aliquo eatenus obtineat By vertue of which clauses the plaintiffe faileth not in the end by any ouer or vnder demand neither is driuen to begin his action againe but obtaineth for so much as he proueth to be due though not to the heithe of his demaund Abridgement abbreuiamentum see Abridge A C ACcedas ad Curiam is a Writ that lieth for him who hath receyued false iudgement in a court Baron being directed to the Sheriffe as appeareth by Dyer fol. 169. nu 20. Like as the writ De falso iudicio lyeth for him that hath receiued false iudgement in the county Court the forme whereof you may see in Fitzh nat br fol. 18. d. and in the Register fol. 9. b. where it is said that this writ lyeth for iustice delayed as well as falsly giuen It is a species of the writ called Recordare Register originall fol. 5. b. and Fitzh vbi supra Accedas ad Vicecomitem is a writ directed to the Coroner cōmanding him to deliuer a writ to the Sheriffe that hauing a pone deliuered vnto him doth suppresse it Regist origin fol. 83. Accessory Accessorius vel Accessorium is vsed in our common lawe otherwise then among the Ciuilians For whereas with them it is generally takē for any thing depending vpon another here though it be so likewise yet most commonly and notoriously it signifieth a man that is guiltie of a fellonious offence not principally but by participation as by commandement aduice or concealement And a man may be accessorie to the offence of another after two sorts by the common lawe or by statute and by the common lawe two waies also that is before or after the fact Before the fact as when one commaundeth or aduiseth another to commita felony and is not present at the execution thereof For his presence maketh him also a principall wherfore there cannot be an accessorie before the fact in manslaughter because man-slaughter is sodaine and not prepensed Cooke lib. 4. fol. 44. a. Accessorie after the fact is when one receiueth him whom he knoweth to haue committed felonie Accessorie by statute is he that abetteth councelleth or hideth any man committing or hauing committed an offence made felony by statute For though the statute make no mention of abettours c. yet they are by interpretation included Of all these consult with Stawnf pl. cor lib. 1. cap. 45. 46. 47. 48. There is also an accessorie of an accessorie as he that wittingly receiueth an accessorie to felonie lib. Assis 26. pl. 51. Coron Fitzh 196. Stawnf pl. cor li. 1. cap. 48. And the lawe of England is that so long as the principall is not attainted the accessorie may not be dealt with Stawnf vbi supra The reason whereofyou may see Cooke lib. 4. fol. 43. b. And this is also true by the ciuill lawe Claudius de Battandier in pract crim regula 101. at the least vntill the principall be certainely knowne Of this subiect reade M. Cromptons Iustice fol. 37. b. 38. 39. Acceptance is a receiuing of a rent whereby the receiuer bindeth himselfe for euer to allow a former fact done by another whether it be in it selfe good or not new tearmes of law Accompte computus is in the cōmon lawe taken for a writte or action brought against a man that by meanes of office or businesse vndertaken is to render an account vnto another as a bailife toward his Master a guardian in socage toward his ward such others as you shall find particularly named by Fitzh in his nat br fo 116. where you may also haue the forme and further vse of this writte See ex parte talis Accroche See enchrochement This word accroche is vsed ann 25. Ed. 3. Stat. 3. ca. 8. Achat commeth of the french achet 1. emptio nundinatio and is vsed for a contract or bargain Broke tit contract Acquitall signifieth in our cōmon law most ordinarily a deliuerance setting free from the suspicion or guiltines of an offence and is twofold acquitall in law or acquital in fact Acquitall in law is when two be appealed or endicted of felony one as principall the other as accessorie the principall being discharged the accessorie by consequent is also freed And in this case as the accessorie is acquitted by law so is the principall in fact Stawnf pl. cor fo 168. Acquittance Acquietantia cōmeth from the french quicter or quitter i. acceptò ferre or quictance i. acceptitatio apocha and signifieth a release or discharge from a dept formerly due But the verbe acquite the participle acquited the nowne acquital signifie also a discharge or cleering from an offence obiected as acquited by proclamation Smith de rep Anglo pa. 76. Stawnf pl. cor fo 168. Broke tit Acquitall See the new tearmes of lawe verbo acquitall acquittance Acquietandis plegiis is a Writ lying for a suretie against the creditour that refuseth to acquite him after the debt is paid by the debtour Register ori fol. 158. where it appeareth that this is a Iusticies Acre acre is a certaine quātitie of land containing in length 40. perches and foure in breadth or to that quantitie be the length more or lesse And if a man erect any new cotage he must lay 4. acres of land to it after this measure anno 31. Eliza. cap. 7. and with this measure agreeth M. Crompton in his iurisdiction of Courts fol. 222. though he say also that according to the diuers customes of diuers countries the perche differeth being in some places and most ordinarily but 16. foot dimid But in the Counties of Stafford 24. foote as was adiudged in the case betweene Sir Ed. Aston and S. Iohn B. in the Exchequer In the Statute made of sowing of Flaxe ann 24 H. 8. cap. 4. eight score perches make an acre which is 40. multiplied by 4. See also the ordinance of measuring land made anno 34. Ed. 1. Stat. 1. which agreeth with this accompt The word acre seemeth to come from the Germane word acker which is all one with the Latine ager Action actio is defined by Bracton lib. 3. cap. 1. as it is by Iustinian li. 4. Instit titulo de actionibus viz. Actio nihil aliud est quà m ius persequēds in iudicio quod alicui debetur Action is principally diuided by Iustinian in personalem realem by Bracton into personall reall and mixt action personall is that which belongeth to a man against another by reason of any contract offence or cause of like force to a contract or offence made or done by him or some other for whose fact he is by law to answer Bract. lib. 3. cap. 3. nu 2. Action reall is defined to be that which is giuen to any
man against another that vpon any cause possesseth or occupieth the thing required or siewed for in his owne name and none other mans and in this onely respect that he possesseth or occupieth the thing and none other Bract. ibid. nu 3. and his reason is this quia habet rem vel possidet quam restituere potest vel dominum nominare This definition reason he farther exēplifieth in the words there following which he that wil may reade at large Action mixt is that which lyeth aswell against or for the thing which we seeke as against the person that hath it and is called mixt because it hath a mixt respect both to the thing the person Bract. lib. 3. cap. 3. nu 5. For example the diuision of an inheritance betweene coheyres or copartners called in the ciuill lawe actio familiae exciscunde secondly the diuision of any particular thing being common to more called likewise actio de communi dividundo this kind of action saith Bracton doth seeme to be mixt because it lyeth as well against thing as the person and indeed so do other excellent Civilians as Cuiacius and Wesenbecius in their Paratitles Π. finium regund And though Iustinian in his first diuision omitteth the third member yet afterward in the same title § 20. he saith as these men do viz. that there be certaine actions naming these and other of like nature that seeme to haue a mixture c. Of this you may also reade Britton at large in his chapter 71. And this diuision of action springeth frō the obiect or matter wherabout it consisteth Wesenb parat 〈◊〉 de actio obliga The author of the new tearmes of law defineth a mixt action to be a suite giuen by the lawe to recouer the thing demaunded and also the dammages for wrong done as in Assise of nouel disseysin the which writ if the diffeisour make a feofment to another the disseiseur shall haue remedie against the disseisour and the feoffer or other land tenant to recouer not onely the land but the dammages also See the rest These words occasion me to shew that actio is by the ciuill lawe called mixta in two respects Nam quaedam mistae sunt quòd in se actionis in rem actionis personalis natur am habeant in iis actor reus vterque sit l. actionis verbo § fina Π. de obliga actio Tales sunt actio familiae ercise communi diuidun finium regun quaedam verò mistae sunt quòd remsimul poenam persequantur vt in actione vi bonorum rapt legis Aquiliae ea quae datur contra eos qui legata vel fidei commissa sacrosanctis Ecclesiis relicta soluere distulerunt And of this later sort is the example that the said author bringeth of a mixt action Action is also by the Civilians divided of the efficient cause in civilem praetoriam Whereof the one riseth out of the common civil lawe the other from some edict of the Pretour Who being cheife Iusticer had authoritie for his yeare to supply the defects of the general law by his especial edicts And a division not vnlike this may be made in the common law of England one growing from the auncient qustomary law the other from some statute Broke tit Action sur le statut Action of the finall cause is divided into civil poenal mixt Cooke vol. 6. fo 61. a. Action civile is that which tendeth onely to the recouerie of that which by reason of any contract or other like cause is due vnto vs as if a man by action seeke to recouer a summe of money formerly lent c. Action penall is that aimeth at some penaltie or punishment in the partie sued be it corporall or pecuniarie As in the action legis Aquiliae in the civile lawe whereby in our common lawe the next frends of a man feloniously slaine or wounded shall persue the law against the murderer or him that wounded him to condigne punishment Bract. li. 3. ca. 4. Action mixt is that which seeketh both the thing whereof we are depriued and a penaltie also for the vniust deteyning of the same as in an action of tithe vpon the statute anno 2. 3. Ed. 6. ca. 13. Action is also according to the forme of petion divided into such as are conceiued to recouer either the simple value of the thing chalenged or the double the triple or quadruple Bract. li. 3. ca. 3. nu 6. So doeth Decies tantum lie against embracers Fitzh nat br fo 171. and against iurours that take mony for their verdict of one part or the other or both And to be short any other action vpon a statute that punisheth any offence by restitution or fine proportionable to the transgression Action is preiudiciall otherwise called preparatorie or els principall preiudiciall is that which groweth from some question or doubt in the principall as if a man sue his younger brother for land descended from his father and it be obiected vnto him that he is a bastard Bract. li. 3. ca. 4. nu 9. For this pointe of bastardie must be tried before the cause can farder proceede therefore is termed preiudicialis quia prius iudicanda Action is either awncestrell or personall Stawnf pl. cor 59. Auncestrel seemeth to be that which we haue by some right descending from our auncester vpon vs and that personall which hath the beginning in and from our selues Action vpon the case actio super casu is a generall action giuen for redresse of wrongs done without force against any man and by lawe not especially provided for For where you haue any occasiō of suite that neither hath a fitte name nor certaine forme alreadie prescribed there the clerkes of the chauncerie in auncient time conceiued a fitte forme of action for the fact in questiō which the Civilians call actionem infactum our common lawyers action vpon the case In factum actiones dicuntur ideo quia quod nomine non possunt exprimere negotium id rei gestae enarratione declarant citra formulā ac solennitatem vllā Cuiacius Gothofredus ad Rubricam de praescriptis verbis And whereas in the civile lawe there are two sorts actionis in factum one tearmed actio in factum ex praescriptis verbis the other actio in factum praetoria We semb parat de praescrip verb. the former growing vpon words passed in contract the other more generally vpon any fact touching either contract or offence formerly not provided against this action vpon the case seemeth in vse to bemore like to the pretours action in factum then to the other because in the perusall of the new booke of entries and Brookes his abridgement heerevpon I perceiue that an action vpon the case lieth as well against offenses as breach of contract Of this see more in the word Trespas Action vpon the statute actio super statuto is an action brought against
a man vpon breach of a statute to be resembled in mine opinion to any action giuen in the lawe imperiall either vpon edictum praetoris plebiscitum or senatusconsultum For as the Pretour so the common people in comitijs tributis the Senatours or nobility in curia vel senatu had power to make lawes wherevpon the Pretour or other Iudges permitted action And euen so our high court of Parlament maketh Statutes against such offēces as are either newly grown or more and more increased and our Iudges intertaine their plees that commence actions against the breakers of them Action is perpetuall or temporall perpetua vel temporalis and that is called perpetuall the force whereof is by no time determined Of which sort were all ciuill actions among the auncient Romaines viz. such as grew from lawes decrees of the Senate or constitutions of the Emperors whereas actions granted by the Pretor died within the yeare de perpet tempor actio in Institut So we haue in England perpetuall and temporarie actions and I thinke all may be called perpetuall that are not expresly limited As diuers Statutes giue actions so they be pursued within the time by them prescribed namely the Statute anno 1. Ed. 6. cap. 1. giueth action for 3. yeares after the offences therein shall be committed and no longer and the Statute anno 7. H. 8. cap. 3. doth the like for foure yeares and that anno 31. Eliz. cap. 5. for one yeare no more But as by the ciuill lawe no actions were at the last so perpetual but that by time they might be prescribed against as actiones in rem decem aut viginti terminantur annis personales verò triginta § 1. de perpet temp actio in Institutio l. 3. Co. de praescript 30. annorum so in our common law though actions may be called perpetual in comparison of those that be expressely limited by statute yet is there a means to prescribe against reall actions within fiue yeares by a fine leuied or a recouerie acknowledged as you may see farther in the word Fine and Recouerie And for this also looke Limitation of assise Action is farther diuided in actionem bona fidei stricti iuris Which diuision hath good vse in our common lawe likewise though the tearmes I find not in any of their writers But of this and such like diuisions because they haue as yet no apparent acceptance amongst our Lawyers but onely a hidden vse I referre the reader to the Ciuilians and namely to Wesenb in his Paratitles Π. De obligatio actio Addition additio is both the English and French word made of the Latine and signifieth in our common law a title giuen to a man ouer and aboue his Christian and surname shewing his estate degree occupation trade age place of dwelling c. For the vse wherof in originall writs of actions personale appeales and indictments it is prouided by Statute anno 1. H. 5. cap. 5. vpō the penaltie therein expressed Tearmes of the lawe Broke farder addeth that it is likewise requisite in townes and gates of townes parishes in great townes and cities where there may be any doubt by reason of more townes gates or parishes of the same name titulo Addition See also M. Cromptons Iustice of peace fol. 95. 96. Adeling was a word of honor among the Angles properly apertaining to the Kings children whereupon king Edward being himselfe without issue and intending to make Eadgare to whome he was great Vnkle by the mothers side his heire to this kingdome called him Adeling Roger Houedine parte poster suorum Annal. fol. 347. a. Adiournment adiurnamentum is almost all one with the French adiounrement i. denunciatio vel diei dictio and signifieth in our commō law an assignement of a day or a putting off vntill another day Adiournment in eyre anno 25. Ed. 3. Statute of pourveyers cap. 18. is an appointment of a day when the Iustices in eire meane to sit againe Adiourn anno 2. Edw. 3. cap. 11. hath the like signification And this whole title in Broke his abridgement proueth the same The bastard Latine word adiurnamentum is vsed also among the Burgundians as M. Skene noteth in his booke De verbo signi verbo Adiurnatus out of Chassaneus de consuet Burg. Ad inquirendum is a writ iudiciall commanding inquirie to be made of any thing touching a cause depending in the Kings court for the better execution of iustice as of bastardie of bondmen and such like whereof see great diuersitie in the Table of the Register iudiciall verbo Ad inquirendum Admeasurement admensuratio is a writ which lyeth for the bringing of those to a mediocritie that vsurpe more then their part And it lyeth in two cases one is tearmed admeasurement of dower admensuratio dotis where the widow of the deceased holdeth from the heire or his guardian more in the name of her dower then of right belongeth vnto her Register orig fol. 171. a. Fitzh nat br fol. 148. The other is admeasurement of pasture admensuratio pasturae which lieth betweene those that haue common of pasture appendant to their free-hold or common by vicenage in case any one of them or more doe surcharge the common with more cattell then they ought Register orig fol. 156. b. Fitzh nat br fol. 125. Administer administrator in our common law is properly taken for him that hath the goods of a man dying intestate committed to his charge 〈…〉 y the ordinary is accountable for the same whensoeuer it shall please the ordinarie to call him thereunto I finde not this word soe vsed in all the civile or canon lawe but more generally for those that haue the gouernment of any thing as the Decrees can 23. quaest 5. c. 26. Administratores plane saecularium dignitatum c. and extrava com ca. 11. Grangias autem alia loca Cisterciensium ordinis aliorum Regalium in quibus Gubernatores seu custodes vel administratores ponuntur c. Howsoeuer the signification of this word grew to be restrained amongst vs it greatly booteth not But there was a statute made anno 31. Ed. 3. ca. 11. whereby power was giuen to the ordinarie to appointe these administratours and to authorize them as fully as executors to gather vp and to dispose the goods of the deceased alway provided that they should be accountable for the same as executors And before that viz. Westm 2. anno 13. Ed. 1. ca. 19. it was ordeined that the goods of those that died intestate should be committed to the ordinarie his disposition and that the ordinarie should be bound to answer his debts so far forth as the goods would extēd as executors And I perswade myselfe that the committing of this burden vnto Bishops to those that deriue ecclesiasticall authoritie from them grew first from the constitution of Leo the Emperour Co. de Episco cleri l. nulli licere 28. Where it is saide that if a man dying
the civile canon law for provincia as balliua heere in England is vsed for a countie or shire Balkers See Conders Ballivo amoveÌ„do is a writ to remooue a baylife out of his office for want of sufficient liuing with in his bayliwick Reg. orig f. 178. Bane seemeth to signifie the destruction or ouerthrow of any thing Bracton li. 2. tracta 2. ca. 1. nu 1. as he which is the cause of of another mans drowning is said there to be la bane i. malefactor In that Bracton in the place aforesaid prefixeth a French article to this word it should seeme by his opinion that the word is French but I finde it not in any French writer that euer I read Baneret banerettus in M. Skenes opinion seemeth to be compounded of baner and rent whome reade more at large of this verbo Baneret de verbo signi but our M. Camden rather draweth the word from the German bannerheires Brittan pae 109. in meo libro S. Thomas Smith de repub Auglo li. 1. ca. 18. saith that baueret is a Knight made in the field with the ceremonie of cutting of the point of his standard and making it as it were a baner And they being before bachelers are now of greater degree allowed to display their armes in a baner in the Kings armie as barons doe M. Camden vbi supra hath these words of this matter Baneretti cùm vasallorum nomen iam desierat a baronibus secundi erant quibus inditum nomen a vexillo Concessum illis erat militaris virtutis ergo quadrato vexillo perinde ac barones vti vnde equites vexillarii a nonnullis vocantur c. Of creating a knight baneret you may read farder in M. Segar Norrey his booke li. 2. ca. 10. That they be next to barons in dignitie it appeareth by the statut an 14. R. 2. c. 11. by anno 5. R. 2. stat 2. ca. 4. it may be probably coniectured that they were aunciently called by summons to the court of parlament and anno 13. R. 2. stat 2. ca. 1. we finde that a baneret for praying a pardon for a murderer contrarie to that statut is subiect to all one punishment with a baron Iohan Gregorius Tholosanus li. 6. ca. 10. sui syntagmatis nu 9. hath these words In Gallia sunt duae species affines nobilium feudorum quas dicunt de benneretz barons Benneretus iure suae dignitatis antequam talis dici mereatur nobilis esse debet genere in quarto gradu possidens in ditione decem scutarios bachalarios armoruÌ„ id est decem vasallos habens sufficiens patrimonium quo possit secum ducere quatuor aut quinque nobiles comites continuos cum equitibus duodecim aut sexdecim Fit autem Benneretus cùm princeps huiusmodi personae concedit vexilli ius ex vexillo peditum in acie vel extra die solenni sacris peractis admit acumina Vocant la queve de pennon fitque labarum id est equitum vexillum vocant cornette eumque equitem facit si iam non est Quòd si ditior his fiat benneretus habet vnam benneretam aut sex equites bachalarios qui possideant singuli in censum sexcentas libras ex eius ditione seu feudo tunc possunt ex licentia principis baronis nomen sibi adsciscere Bans bannus vel bannum signifieth a publike notice giuen of any thing The word is ordinarie among the feudists and growne from them to other vses as to that which we heere in England call a proclamation whereby any thing is publikely commaunded or forbidden Vincentius de Franchis descis 521. 360. Hotoman verbo bannus in verbis fendalibus saith that there is both baÌ„nus and bannum and that they signifie two divers things His words are these Bannus siue bannum duo significat EdictuÌ„ qua die vasalli equis armisque instructi ad comitatum adesse debent sanctioneÌ„ hoc est mulctam edicto non parentis which he confirmeth by divers authorities This word bans we vse heere in England especially in the publishing of matrimoniall contracts in the church before mariage to the end that if any man can say against the inteÌ„tion of the parties either in respect of kindred or otherwise they may take their exception in time And in the canon lawe Banna sunt proclamationes sponsi sponsae in ecclesijs fieri solitae ca. 27. extra de sponsal ca. vlt. qui matrimonium accus pos ca. vlt de clan despons Yet our word banning seemeth to come thence being nothing but an exclamation of another Onely Bracton once maketh mention of bannus regis for a proclamation or silence made by the crier before the congresse of the champions in a combate li. 3 tracta 2. ca. 21. Bank bancus commeth of the French banque i. mensa In our common lawe it is most vsually taken for a seate or bench of iudgement as bank leroy the kings bench bank de commoÌ„ plees the bench of comon plees or the common bench Kitchin fo 102. called also in latine bancus regius bancus communium placitorum Crompt iuris fo 67. 91. Camden in his Britannia pa. 112. 113. in meo calleth them also bancum regium bancum communem See frank bank Bankrupt alià s bankrowte coÌ„meth of the french banque route and faire banqueroute with the French is as much as foro cedere solâ—â— vetere with the Romanes The composition of the French word I take to be this banque i. monsa route i. vestigium metaphorically taken from the signe left in the earth of a table once fastened vnto it now taken away So that the original seemeh to haue sprung froÌ„ those Romain mensary which as appeareth by many wrighters had their tabernas mensas in certaine publique places whereof when they were disposed to flie deceiue men that had put them in trust with their monies they left but the signes or carcases behinde them I know that others of good learning and M. Skene for one bring this a banco rupto but the French word worketh in me this other opinion for after their sence the French should rather be banque rompu Bankrupt with vs signifieth him or his act that hauing gotton other mens goods into his hands hideth him selfe in places vnknowne or in his owne priuate house not minding to pay or restore to his creditours their duties anno 34. H. 8. ca. 4. where the french phrase faire banque route is translated to the word to make bankrupt A bankrupt anno 1. Iacobi ca. 15. is thus described All and euery such person and persons vsing or that shall vse the trade of merchandise by way of barg aining exchange bartrey cheuisance or otherwise in grosse or by seeking his her or their trade of liuing by buying and selling and being a subiect borne of this Realme or any the kings dominions or denizen
anno 4. Ed. 3. cap. 3. And bestiall is generally vsed for all kind of catell anno 1. Iacobi cap. 33. Bidding of the bedes was a charge or warning that the parish Priest gaue to his parishioners at certaine especiall times to say so many Pater nosters c. vpon their beades anno 27. H. 8. cap. 26. Bigamie bigamia signifieth a double mariage It is vsed in the common lawe for an impediment that hindreth a man to be a Clerke by reason that he hath bene twice maried For vpon those words of S. Paule to Timothie the first cap. 3. vers 2. Opertet ergo Episcopum irreprehensibilem esse vnius vxoris virum the Canonists haue founded their doctrine that he that hath bene twice maried may not be a Clerke And also him that hath maried a widow they by interpretation take to haue bene twice maried And both these they do not onely exclude from holy orders but also deny them all priuiledges that belong vnto Clerkes But the author of the new termes of lawe well saith that this lawe is abolished by anno 1. Ed. 6. cap. 12. And to that may be added the statute anno 18. Elizab. cap. 7. which alloweth to all men that can read as Clerkes though not within orders the benefite of Clergie in case of felonie not especially excepted by some other statute Bilanciis deferendis is a writ directed to a corporation for the carying of weights to such or such a hauen there to weigh the wools that such a man is licenced to trāsport Reg. orig f. 270. a. Bilawes are orders made in court leets or court Barons by common assent for the good of those that make them farder then the publique lawe doth binde Coke vol. 6. fo 63. a. Kitchin fo 45. 79. These in Scotland are called burlawe or birlawe Skene de verbo sign verbo Burlawe where he saith thus Lawes of burlawe are made and determined by consent of neighbours elected and chosen by common consent in the courts called birlawe courts In the which cognition is taken of compleints betwixt neighbour and neighbour which men so chosen are iudges and arbitratours to the effect aforesaide and are called birlawe men For bawr or bawrsman in Dutch is rusticus and so birlaw or burlaw leges rusticorum Hetherto M. Skene Bilinguis though it signifie in generality a double tounged man yet in our common lawe it is vsed for that Iury that passeth betweene an english man and an alien Wherof part must bee Englishmen and part straungers anno 28. Ed. 3. ca. 13. Bille billa is diuersly vsed among our cōmon lawyers First as West saith pa. 1. symb li. 2. sect 146. it is al one with an obligation sauing that whē it is in ēglish it is commonly called a bill and when it is in latine an obligation But I heare other good lawyers say that a bill though it be obligatorie yet is without condition or forfeiture for non payment and that the obligation hath both Bille secondly is a declaration in writing that expresseth either the griefe and the wrong that the complaynant hath suffered by the party complained of or els some fault that the party complayned of hath committed against some lawe or statute of the common wealth This bille is sometime offered vp to Iustices errants in the generall assises sometime and most of all to the Lord Chanceler of England especially for vnconscionable wrongs done sometime to others hauing iurisdiction accordingly as the law wheruppon they are grounded doeth direct It containeth the fact complained of the dammages thereby suffered and petition of processe against the defendant for redresse West parte 2. Simbol titulo supplications sect 52. whom you may reade at large touching this mater Billa vera is as it were a word of arte in our common lawe For the grand enquest empaneled and sworne before the Iustices in eare c. indorsing a bill whereby any crime punishable in that court is presented vnto them with these two words do signifie thereby that the presentor hath furnished his presentment or denunciation with probable euidence and worthy of farder consideration And thereuppon the party presented by the same bill is said to stand indicted of the crime and so tyed to make answer vnto it either by confessing or trauersing the indictment And if the crime touch the life of the party indicted it is yet referred to another enquest called the enquest of life and death who if they finde him guilty then he standeth conuicted of the crime and is by the Iudge to be cōdemned to death See Ignoramus see Indictment Billets of gold commeth of the french billot 1. massa auri anno 27. Ed 3. stat 2. ca. 14. Bynny peper anno 1. Iaco. ca. 19. Blacke maile is halfe english halfe french For in french maille signifieth a smal peece of mony which we cal a halfepeny It signifieth in the counties of Comberlād Northumberland Westmerland and the bishopricke of Durisme a certaine rate of mony corne catell or other consideration paide vnto some inhabiting vpon or neare the borders being men of name and power allied with certaine knowne to be great robbers and spoile-takers within the saide counties to the end thereby to be by them freed protected and kept in safty from the daunger of such as doe vsually robbe and steale in those partes an 43. Eliza. ca. 13. Blacke rodde is the huiffier belonging to the order of the Garter so called of his blacke rodde that he carrieth in his hand He is of the kings chamber and also huissier of the parlament Blanks cōmeth of the french blanc 1. candidus albus It signifieth a kind of coine that was coined in the parts of Frāce 5. by K. H. that were subiect to England the valew whereof was eight pence Stowes annals pa. 586. These were forbidden to be current within this realme a. 2. H. 6. ca. 9. The reason why they were called blankes may be because at the time these were coyned in France there was also a peece of gold coyned which was called a Salus of the value of 22. shillings from which this siluer was in name distinguished by the colour Bloody hand See Backberend Blomary is one of the forges belonging to an iron mill which also seemeth otherwise to be tearmed a Finary The vse wherof if you will vnderstand you must knowe that first there is a fornace wherin 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 vnto smithes 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 blowne with bellowes made to goe by water are cast the saide sowes of raw iron and melted againe and by a workman called the finary man are wounde and wrought rounde and afterwarde beaten by a hammer into little wedges about a yarde long which are called bloomes Then
convenable as in the stat an 27. Ed. 3. stat 2. ca. 17. Couenāt conuētio is the consēt of two or more in one self thing to doe or giue somwhat West part 2. symbol li. 1. sect 4. It seemeth to be as much as pactum conventum with the ciuilians which you read often times in Tullie Pactum conuentum quod vulgo vestitum vocant opponitur nudo pacto velut ab omni iuris solennitate destituto Huius exempla ponere difficile esse Iason existimavit Conventum aiunt quod vestitur aut re aut verbis aut literis aut contractus cohaerentiâ aut rei interuentu Oldendorpius And couenant in this signification is either a covenant in lawe or a couenant in fact Coke lib. 4. Nokes case fo 80. or couenant expresse couenant in lawe idem li. 6. fo 17. ae Couenant in law is that which the law intendeth to be made though in words it be not expressed as if the lessour doe dimise and graunt c. to the leassee for a certaine tearme the lawe intendeth a couenant of the lessours part that the lessee shall during his whole terme quietly inioy his lease against all lawfull encumbrance Covenant in fact is that which is expressely agreed betweene the parties There is also a couenant meerely personall and a couenant reall Fitz. nat br fo 145. And he seemeth to say that a couenant reall is whereby a man tieth himselfe to passe a thing reall as land or tenements as a couenant to levie a fyne of land c. a couenant meerely personall of the other side is where a man couenanteth with another by deede to build him a house or any other thing or to serue him or to infeoffe him c. Couenant is also the name of a writ for the which see Conuentione Instruments of couenants you may see good store in West parte i. Symbolaeog li. 2. sectio 100. See also the new booke of entries verbo Couenant Couent conuentus signifieth the society or fraternity of an abbie or priorie as societas signifieth the number of fellowes in a colledge Bracton li. 2. ca. 35. It commeth of the french conuent i. coenobium Couerture is a french word signifying any thing that couereth as apparell a couerlet c. and deduced from the verb couvrer i. tegere It is particularly applied in our common lawe to the estate and condition of a maried woman who by the lawes of our realme is in potestate viri and therefore disabled to contract with any to the preiudice of her selfe or her husband without his consent and priuity or at the least without his allowance and confirmation Broke hoc tit per totum And Bracton saith that omnia quae sunt vxoris sunt ipsius viri nec habet vxor potestatem sui sed vir li. 2. ca. 15. and that vir est caput mulieris li. 4. ca. 24. and againe that in any law mater sine viro respondere non potest li. 5. tract 2. ca. 3. and tract 5. ca. 25. eiusdem libri he hath words to this effect vir vxor sunt quasi vnica persona quia caro vna sanguis vnus Res licet sit propria vxoris vir tamen eius custos cùm sit caput mulieris and li. 1. ca. 10. nu 2. Vxores sunt sub virga viri And if the husband alienate the wifes land during the mariage shee cannot gainesay it during his life See Cui ante diuortium and Cui in vita Covine covina is a deceitfull assent or agreement betweene two or more to the preiudice or hurt of another New tearms of lawe It commeth of the french verb conuenancer i. depacisci or rather conuenir i. conuenire Cowcher signifieth a factour that continueth in some place or country for trafique anno 37. Ed. 3. ca. 16. It is vsed also for the generall booke into which any corporation entreth their particular acts for a perpetuall remembrance of them Counte cōmeth of the french coumpte i. subductus cōputatio ratio or of cōte i. narratio It signifieth as much as the originall declaratiō in a proces though more vsed in reall actions then personall as declaration is rather applied to personall then reall Fitzh nat br fo 16. A. 60. D. N. 71. A. 191. E. 217. A. Libellus with the ciuilians comprehendeth both And yet count and declaration be confounded sometimes as count in debt Kitchin fo 281. count or declaration in appeale pl. cor fo 78. Count in trefpasse Britton cap. 26 count in an action of trespasse vpon the case for a slaunder Kit. fol. 252. This word seemeth to come from France Normandy For in the grand Custumarie c. 64. I find conteurs to be those which a man setteth to speake for him in court as aduocates cap. 63. pledeurs to be another sort of spokes men in the nature of Atturneys for one that is him selfe present but suffereth another to tell his tale Where also in the 65. chapter Atturney is said to be he that dealeth for him that is absent See this text and Glosse vpō those 3. chapters Countours by Horn in his Myrror of Iustices li. 2. ca. Des loyers are Sergeants skilfull in the lawe of the Realme which serue the cōmon people to pronounce and defend their actions in iudgement for their fee when occasiō requireth whose duty if it be as it is there described and were obserued men might haue much more comfort of the lawe then they haue Countenance seemeth to be vsed for credit or estimation old na br fol. 111. in these words Also the attaint shall be graunted to poore men that will sweare that they haue nothing whereof they may make fine sauing their countenance or to other by a reasonable fine So is it vsed anno 1. Ed. 3. stat 2. cap. 4. in these words Shyreeues shall charge the kings depters with as much as they may leuie with their oathes without abating the depters countenance Cownter computatorium feemeth to come of the Latin computare or the French counter For we vse it for the name of a prisō wherinto he that once slippeth is like to accompt ere he get out Counter plee is compounded of two French words contre i. contra adversus and pleder i. causam agere It signifieth properly in our common lawe a replication to ayde prier For when the tenent by courtesie or in dower prayeth in ayde of the king or him in the reuersion for his beter defence or else if a stranger to the action begun defire to be receiued to say what he can for the safegard of his estate that which the demandant alledgeth against this request why it shuold not be admitted is called a counter plee See Broke 〈…〉 t. And in this signification it is vsed anno 25. Ed. 3. st at 3. cap. 7. See also the new termes of the law and the statute anno 3. Ed. 1. cap. 39. County comitatus signifieth as much as shire the one descending
authoritie ouer the Countie nor any part of the profit rising of it but onely some annuall stipend out of the Exchequer rather for honours sake then any great commoditie And these bee in other nations accompted Earles improperly Quia illi dicuntur verè Comites quibus datur Comitatus in feudum illi Comites abusivè qui non habent administrationem Vincentius de Franchis descis 115. nu 7. The maner of creating Earles is by girding them with a sword Camden pag. 107. but see the solemnitie thereof described more at large in Stowes annals pa. 1121 The occasion why these Earles in later time haue had no swaye ouer the Countie whereof they beare their name is not obscurely signified in Sir Thomas Smith lib. 2. cap. 14. Where he saith that the Shyreeue is called Vicecomes as Vicarius Comitis following all maters of iustice as the Earle should do and that because the Earle is most commonly attendant vpon the king in his warres or otherwise So that it seemeth that Earles by reason of their high employments being not able to follow also the businesse of the countie were deliuered of all that burthen and onely enioyed the honour as now they doe And the Shyreeue though he be still called Vice-comes yet all he doth is immediatly vnder the king and not vnder the Earle See Countie see Hetoman de verb. feudal verbo Comes and Cassan de consuetud Burg. p 12. Easement esamentum is a seruice that one neighbour hath of another by charter or prescription without profite as a way through his ground a sinke or such like Kitchin fol. 105. which in the ciuill lawe is called Seruitus pradii Eele fares aliâs Eele Vare an 25. H. 8. cap. 7. be the frie or brood of Eeles Egyptians Egyptiani are in our statutes and lawes of England a counterfeit kinde of roagues that being English or Welch people accompany thēselues together disguising themselues in straunge roabes blacking their faces and bodies and framing to themselues an vnknowne language wander vp and downe and vnder pretence of telling of Fortunes curing diseases and such like abuse the ignorant common people by stealing all that is not too hote or too heauie for their cariaage anno 1. 2. Phi. M. cap. 4. anno 5. Eliz. cap. 20. These are very like to those whom the Italians call Cingari of whom Franciscus Leo in suo the sauro fori ecclesiastici parte prim cap. 13. thus writeth Cingari qui corrupte vocabulo quandoque etiam Saraceni nominantur permissione principū ac aliorum dominorum per Italian vagantur nec vnquam viderunt partes infidelium minusque legem Mahome it noverunt sed sunt ferè omnes Itali male habituati ex rebus furtivis vivunt ac fraudulentis earum permut ationibus ludis in quibus vt plurimum fraudes committunt sunt baptizati Eiectione custodiae Eiectment de gard is a writ which lyeth properly against him that casteth out the Gardian from any land during the minority of the heire Register origin fol. 162. Fitz. nat br fol. 139. Tearmes of the law verbo Gard. There be two other writs not vnlike this the one is tearmed Droit de gard or right of guard the other Rauishment de Gard. Which see in their places Eiectione firmae is a writ which lyeth for the Leassee for terme of yeares that is cast out before the expiration of his tearme either by the leassour or a straunger Register fol. 227. Fitz. nat br fo 220. See Quare eiecit infra terminum See the new booke of Entries verbo Eiectione firmae Einecia is borowed of the French Aisne i. primogenitus and signifieth in our common lawe Eldership Statute of Ireland anno 14. Hen. 3. Of this see M. Skene deverb signif verbo Eneya Eyre aliâs Eyer Iter. Bracton lib. 3. cap. 11. in Rubrica commeth of the old French word Erre i. iter as à grand erre i. magnis itineribus It signifieth in Britton cap. 2. the court of Iustices itinerants and Iustices in Eyre are those onely which Bracton in many places calleth Iusticiarios itinerantes of the Eyre reade Britton vbi supra who expresseth the whole course of it And Bracton lib. 3. tractat 2. cap. 1. 2. The Eyre also of the Forest is nothing but the Iustice seate otherwise called which is or should by auncient custome be held euery three yeare by the Iustices of the forest iourneying vp and downe to that purpose Cromptons Iurisd fol. 156. Manmood parte prima of his Forest lawes pag. 121. See Iustice in Eyre Reade Skene de verborum significa verbo Iter whereby as by many other places you may see great affinitie betweene these 2. Kingdomes in the administration of Iustice and gouernment Election de Clerke Electione clerici is a writ that lyeth for the choyce of a clerke assigned to take and make bonds called statute Merchant and is graunted out of the Chauncerie vpon suggestion made that the Clerke formely assigned is gone to dwell in another place or hath hinderance to let him from following that businesse or hath not land sufficient to answer his transgression if he should deale amisse c. Fitzh nat br fol. 164. Elegit is a writ Iudiciall and lyeth for him that hath recouered debt or dammages in the kings court against one not able in his goods to satisfie and directed to the Shyreeue commaunding him that he make deliuery of halfe the parties lands or tenements and all his goods oxen and beasts for the plough excepted Old nat br fol. 152. Register originall fol. 299. 301. and the Table of the Register Iudiciall which expresseth diuers vses of this writ The author of the new terms of law saith that this writ should be siewed within the yeare whom read at large for the vse of the same Elk a kinde of ewe to make bowes of anno 33. H 8. cap. 9. Empanel Impanellare Ponere in assisis Iuratis commeth of the french Panne 1. pellis or of Pannequ which signifieth some time as much as a pane with vs as a pane of glasse or of a windowe It signifieth the wrighting or entring the names of a Iury into a parchment schedule or Rolle or paper by the Shyreeue which he hath sommoned to appeare for the perfourmance of such publique feruice as Iuries are imployed in See Panell Emparlance commeth of the french Parler and signifieth in our common lawe a desire or petition in court of a day to pause what is best to doe The ciuilians call it petitionem induciarū Kitchin fol. 200. interpreteth it in these words If he imparle or pray continuance For praying continuance is spoken interpretatiuè in that place as I take it The same author maketh mention of Emparlance generall fol. 201. and Emparlance speciall fol. 200. Emperlance generall seemeth to be that which is made onely in one word and in generall terms Emparlance speciall where the party requireth a day to deliberate adding also
craftie wilie or subtill sometime as much as artificiall curious singular exact or perfect as Rien contrefaict fin i. nihil simulatum aut adimitationem alterius expressum potest esse exactum vel ita absolutum quin reprehensionem vel offensionem incurrat as is set downe in that worke truly regal intituled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pa. 115. so that this fine force with vs seemeth to signifie an absolute necessitie or constreint not avoidable and in this sence it is vsed old nat br fol. 78. and in the statute anno 35. H. 8. ca. 12. in Perkins Dower fo 321. and Plowden fo 94. Coke vol. 6. fol. 111. a. Fine adnullando levato de tenemento quod fuit de antiquo dominico is a writ to Iustices for the disanulling of a fine levied of lands holding in auncient demesn to the preiudice of the Lord Register originall fol. 15. b. Fine capiendo pro terris c. is a writ lying for one that vpon conviction by a Iury hauing his lands and goods taken into the kings hand and his body committed to prison obteineth fauour for a summe of money c. to be remitted his imprisonment and his lands and goods to be redeliuerd vnto him Register orig fo 132. a. Fine levando de tenementis tentis de Rege in capite c. is a writ directed to the Iustices of the coÌ„mon plees whereby to licence them to admit of a fine for the sale of land holding in capite Regist originall fol. 167. a. Fine non capiendo pro pulchre placitando is a writ to inhibit officers of courts to take fines for faire pleading Register original fol. 179. See Beau pleder Fine pro redisseisina capienda c. is a writ that lieth for the release of one laid in prison for a redisseisin vpon a reasonable fine Register originall fol. 222. Finarie See Blomarie Finours of gold and siluer be those that purifie and part those metals from other courser by fire and water anno 4. H. 7. ca. 2. They be also called parters in the same place sometime departers Fireboote for the composition looke Hayboote It signifieth allowance or Estovers of woods to maintaine competent fire for the vse of the tenent First fruites primitiae are the profits of every spirituall liuing for one yeare giuen in auncient time to the Pope throughout all Cristendome but by the statute anno 26. H. 8. cap. 3. translated to the Prince for the ordring wherof there was a court erected an 32. H. 8. ca. 45. but this court was dissolued anno pri Mar. sess 2. ca. 10. sithence that time though those profits be reduced againe to the crowne by the statute anno 1. Eliz. ca. 4. yet was the court neuer restored but all maters therein wont to be handled were transferred to the Exchequer See Annats Fishgarthe anno 23. H. 8. ca. 18. Fitche See furre Fitzherberd was a famous lawyer in the daies of King Henry the eight and was chiefe Iustice of the common plees he wrot two worthie bookes one an abridgement of the common lawes another intituled de Natura brevium Fledâ—it commeth of the Saxon word Fled that is a fugitiue wit which some make but a termination signifiing nothing of it selfe how be it others say it signifieth a reprehen sion censure or correction It signifieth in our auncient lawe a discharge or freedome from amercements when one hauing been an outlawed fugitiue commeth to the peace of our Lord the King of his owne accord Rastall Exposition of words or being licensed Newe termes of lawe See Bloodwit and Childwit See Fletwit Fleete Fleta is a famous prison in London so called as it seemeth of the riuer vpon the side whereof it standeth Camden Britannia pag. 317. Vnto this none are vsually committed but for contempt to the king and his lawes or vpon absolute commaundemeÌ„t of the king or some of his courts or lastly vpoÌ„ debt when men are vnable or vowilling to satisfie their creditours Flemeswit or rather Fleherswit commeth of the Saxon word Flean which is a contract of Flegen that is to flie away It signifieth with our lawyers a libertie or charter whereby to chalenge the catel or amercements of your man a fugitiue Rastall Exposition of words See Bloodwit Fleta writeth this word two other waies as Flemenesfree vie or Flemesfreicthe and interpreteth it habere catalla fugitivorum li. 1. ca. 47. Fleta is a feigned name of a learned lawyer that writing a booke of the common lawes of England and other antiquities in the Fleete termed it thereof Fleta He seemeth to haue liued in Ed. the 2. time and Edw. the 3. idem li. 1. ca. 20. § qui ceperint li. 2. ca. 66. § item quod nullus Fletwit aliâs Fredwit Skene de verborum significatione verb. Melletum saith that Flichtwit is a libertie to courts and to take vp the amercements pro melletis he giueth the reasoÌ„ because Flicht is called Fliting in french Melle which sometime is conioyned with hand-strookes And in some bookes Placitum de melletis is called the moote or plee of beating or striking Flight See Finer Florences anno 1. R. 3. ca. 8. a kinde of cloth so called Flotsen aliâs Flotzam is a word proper to the sease signifiing any goods that by shipwrecke be lost and lie floting or swimming vpon the toppe of the water which with Ietson and lagon and shares be giuen to the Lord Admirall by his leters patents Ietson is a thing cast out of the shippe being in daunger of wrecke and beaten to the shore by the waters or cast on the shore by the marriners Coke vol. 6. fo 106. a. Lagon aliâs Lagam vel Ligan is that which lyeth in the bottome of the sea Coke ibi Shares are goods due to more by proportion Foder fodrum signifieth in our English tongue a course kinde of meate for horses and other catell But among the Feudists it is vsed for a prerogatiue that the prince hath to be provided of corn and other meate for his horses by his subiects towards his wars or other expeditions Arnoldus Clapmarius de arcanis imperii lib. 1. ca. 11. And reade Hotoman de verbis feudalibus litera F. Folgheres or rather Folgers be folowers if we interpret the word according to the true signification Bracton saith it signifieth eos qui alii deserviunt lib. 3. tract 2. cap. 10. Folkmoote is a Saxon word compounded of Folk i. populus Gemettan i. convenire It signifieth as M. Lamberd saith in his explication of Saxon words verbo Conuentus two kind of Courts one nowe called the countie court the other called the Shyreeues turne This word is still in vse among the Londoners and signifieth celebrem ex omni ciuitate conuentum Stowe in his Suruey of London but M. Manwood in his first part of forest lawes pag. 111. hath these words Folkemote is the court holden in London wherein all the folke and people of the citie did complaine on
Frauk almoine libera Eleemozyna in french frank Ausmone signifieth in our common lawe a tenure or title of lands Britton cap. 66. nu 5. saith thus of it Franke almoyne is lands or tenements bestowed vpon God that is giuen to such people as bestow themselues in the seruice of God for pure and perpetuall almes whence the feoffours or giuers cannot demaund any terrestriall seruice so long as the lands c. remaine in the handes of the feoffees With this agreeth the grand custumary of Normandie cap. 32. Of this you may reade Bracton at large lib. 2. cap. 5. 10. See Fitzh nat br fol. 211. See the new booke of Entries verbo Franke Almoine But Britton maketh another kind of this land c. which is giuen in almes but not free almes because the tenents in this are tyed in certain seruices to the feoffor Pritton vbisupra Frank bank francus bancus in true french franc banc signifieth word for word a free bench or seate and among our lawe writers it seemeth to be vsed for copyhold lands that the wife being espoused a virgin hath after the decease of her husband for her dower Kitchin fol. 102. Bracton lib. 4. tract 6. cap. 13. nu 2. hath these wordes Consuetudo est in partibus illis quòd vxores maritorum defunctorum habeant francum bancum suum de terris sockmannorum tenent nomine dotis Fitzher calleth it a custome whereby in certaine cities the wise shall haue her husbands whole lands c. for her dower Nat. br fol. 150. P. See Plowden casu Newis fol. 411. Frank chase Libera chasea is a libertie of free chase whereby all men hauing ground within that compasse are prohibited to cut downe wood or discouer c. without the view of the forester though it be his owne demesne Cromptons Iurisdictions fol. 187. Frank fee feudum francum seu liberum is by Brooke tit Dimesn num 32. thus expressed That which is in the hand of the King or Lord of any maner being auncient demesn of the Crowne viz. the Demesnes is called frank fee and that which is in the hands of the tenents is auncient demesn onely see the Register original fol. 12. a. Whereby it seemeth that that is frank see which a man holdeth at the common lawe to himselfe and his heires and not by such seruice as is required in auncient demesn according to the custome of the maner And again I find in the same booke fol. 14. b. a note to this effect that the lands which were in the handes of king Edward the Saint at the making of the booke called Doomesday is auncient demesn and that all the rest in the realme is called frank fee with the which note Fitzherb agreeth na br fol. 161. E. So that all the land in the realme by this reason is either auncient demesn or frank fee. The new expounder of the lawe termes defineth frank fee to be a tanure in fee simple of lands pleadable at the common lawe and not in auncient demesn See Fachineus lib. 7. cap. 39. who defineth feudum francum esse pro quo nullum seruitium praestatur Domino with whom agreeth Zasius de fendis parte 12. saying that therefore it is feudum improprium quia ab omni seruitio liberum Frank ferme Firma libera is land or tenement wherein the nature of fee is chaunged by feofment out of knights seruice for certaine yearely seruices and whence neither homage wardship mariage nor releife may be demaunded nor any other seruice not contained in the feofment Britton ca. 66. nu 3. see Fee ferme Frank law libera lex See Cromptons Iustice of peace fol. 156. b. where you shall finde what it is by the contrary For he that for an offence as conspiracy c. leeseth his franke lawe is said to fall into these mischiefs first that he may neuer be impaneled vppon any iury or assise or otherwise vsed in testifiing any truth Next if he haue any thing to doe in the kings court he must not approch thither in person but must appoint his attourney Thirdly his lands goods and chatelsmust be seised into the kings hands and his lands must be estreaped his trees rooted vp and his body committed to prison For this the said authour citeth the booke of Assises fo 59. Conspiracy F. 11. 24. Ed. 3. fo 34. See Conspiracy Frank mariage liberū maritagiū is a tenurein taile speciall growing from these words in the gift comprised Sciant c. me M. H de W. dedrsse concessisse praesenti charta mea confirmasse I. A. filio meo Margeriae vxori eius filiae verae T. N. in liberū marit agium vnum messuagium c. West parte i. Symbol li. 2. sect 303. The effect of which words is that they shall haue the land to them and the heires of their bodies and shall doe no fealty to the donour vntill the fourth degree See new Terms of law Glanuile li. 7. ca. 18. Bracton li. 2. ca. 7. nu 4. where he diuideth maritagium in liberum seruitio obligatum See Mariage Fleta giueth this reason why the heires doe no seruice vntill the fourth discent ne donatores vel eorum haeredes per homagii receptionem a reuersione repellantur And why in the fourth discent and downeward they shall doe seruice to the donour quia in quarto gradu vehementer praesumitur quòd terra non est pro defectu haeredum donatariorum reversura libro tertio ca. 11. in princ Frankpledge Franoiplegium is compounded of Franc. i. liber and pleige i. fideiussor and signifieth in our common law a pledge or surety for free men For the auncient custome of England for the preseruation of the publique peace was that euery free borne man at fourteene yeares of age after Bracton religious persons clerks knights and their eldest sonnes excepted should finde suerty for his truth toward the King and his subiects or else be kept in prison whereupon a certaine number of neighbours became customably bound one for another to see each man of their pledge forthcomming at all times or to answere the transgression committed by any broken away So that whosoeuer offended it was forthwith inquired in what pledge he was and then they of that pledge either brought him forth within 31. daies to his aunswere or satisfied for his offence This was called Frank pledge causa qua supra and the circuit thereof was called Decenna because it commonly consisted of 10. houshouldes And euery particular person thus mutually bound for himselfe and his neighbours was called Decennier because he was of one Decenna or another This custome was so kept that the shyreeues at euery county court did from time to time take the oaths of yonge ones as they grew to the age of 14. yeares and see that he were combined in one dozen or another whereupon this braunch of the shyreeues authority was called visus Franciplegu view of frankpledge See
cap. 11. is the sorting or culling out the good from the bad As garbling of spice is nothing but to purifie it from the drosse and dust that is mixed with it It may seeme to proceed from the Italian garbo that is finenesse neatnesse Gard Custodia commeth of the French garde being all of one signification It signifieth in our common lawe a custodie or care of defence but hath diuers applications sometimes to those that attend vpon the safetie of the Prince called Yeomen of the Guard somtime to such as haue the education of children vnder age or of an Idiot sometime to a writte touching wardshippe Which writs are of three sorts one called a right of guard or ward in French droit de gard Fitzh nat br fol. 139. the second is eiectment de gard Idem fol. 139. L. the third is rauishment de gard Idem fol. 140. F. G. See Gardem see Ward Gardein Custos commeth of the French gardien and yet the German Warden is neare vnto it It signifieth generally him that hath the charge or custodie of any person or thing but most notoriously him that hath the education or protection of such people as are not of sufficient discretion to guide themselues and their owne affaires as children and Idiots being indeede as largely extended as both Tutor and Curator among the Civilians For whereas Tutor is he that hath the gouernment of a youth vntill he come to 14. yeares of age and Curator he that hath the disposition and ordering of his substance afterward vntil he attaine to 25. yeares or that hath the charge of a franticke person during his lunacie the common Lawyers vse but onely Gardien or Gardian for both these And for the better vnderstanding of our English lawe in this thing you must know that as tutor is either testamentarius or à Praetore datus ex lege Atilia or lastly legitimus so we haue three sortes of Gardeines in England one ordained by the father in his last will another appointed by the Iudge afterward the third cast vpon the Minor by the lawe and custome of the land Touching the first a man hauing goods and chatels neuer so many may appoint a gardein to the bodie or person of his child by his last will and testament vntill he come to the age of fourteene yeares and so the disposing or ordering of his substance vntill what time he thinketh meet and that is most commonly to the age of 21. yeares The same may he do if he haue lands to neuer so great a valew so they hold not in capite of the king nor of any other Lord by knights seruice And in the former case if the father appoint no Gardein to his child the Ordinarie may appoint one to order his moueables and chatels vntill the age of 14. yeares at which time he may chuse his guardian accordingly as by the the ciuill lawe he may his Curator For we hold all one rule with the Civilians in this case and that is Invito curator non datur And for his lands if he hold any by copie of court rolle commonly the Lord of the fee appointeth him a guardian vntill he come to the age of 14. yeres and that is one next of kind to the Minor of that side that can hope for least profitby his death If he hold by charter in socage then the next of kind on that side by which the land commeth not is the guardian and hereupon called guardian in socage And that which is said here of socage seemeth to be true likewise in petit sergeantie anno vicesimo octauo Edvardi primi statuto primo And the reason of this Fortescue giueth in his booke intituled A commendation of the politique lawes of England cap. 44. viz. because there might be suspition if the next kinsman on that side by which the land descendeth should haue the custody and education of the child that for desire of his land he might be entised to worke him some mischiefe Lastly if a man dye seised of lands holding by knights seruice leauing his heire in minoritie that is vnder 21. yeares the Lord of the fee hath by law the custodie both of the heire and his land vntill he come to age See the statute anno 28. Ed. prim statut prim And the reason of this Fortescue likewise giueth for that hee to whom by his tenure he oweth knights seruice when he can performe it is likeliest to traine him vp in martiall and ingenious discipline vntill he be of abilitie But Polidore Virgil in his Chronicle lib. 16. saith that this was Movum vectigalis genus excogitatum to helpe Henry the third being oppressed much with pouertie by reason he receiued the kingdome much wasted by the wars of his aun cestours and therefore needing extraordinarie helpe to vphold his estate yet the 33. chapter of the Grand Custumary maketh mention of this to haue bene vsed by the Normans and I thinke this the truer opinion Here it is to be obserued whether land in knights seruice hold in capite or of another Lord or some of the King and some of another If of the king whether of the king alone or not all is one For the king in this case is guardian to the heires both person and land by his prerogatiue Stawnf praerog cap. 1. If he hould of a common Lord it is either of one alone or more if of one onely then is he guardian of both person and lands if of more then the Lord of whome he houldeth by the elder tenure is guardian of the person and euery one of the rest hath the custodie of the land holden of him selfe If the prioritie of the tenure cannot be discerned then is he guardian of the person that first happeth him Termes of the lawe Stawnf vbi supra whom you may reade more at large which Author fol. 19. maketh mention of gardeyn in feit and Gardeyn in droit that is in deed and in lawe I take the first to be him that hath purchased or otherwise obtained the ward of the Lord of whom the land holdeth the second him that hath the right by his inheritance and seignorie old nat br fol. 94 Then is there gardein per cause de gard which is he that hath the wardship of a Minor because he is guardian of his Lord being likewise in minoritie Stawnf vbi supra fol. 15. Of this you may reade Skene de verb. signif verbo Varda by whom you may learn great affinitie and yet some difference betweene the lawe of Scotland and ours in this point Guardia is a word vsed among the Feudists for the Latine custodia and guardianus seu guardio dicitur ille cui custodia commissa est lib. Feudo 1. titulo 2. tit 11. Gardeyn of the spiritualties Custos spiritualium vel spiritualitatis is he to whom the spirituall iurisdiction of any Diocesse is committed during the vacancy of the see anno 25. H. 8. cap. 21. And I take that the
enabled to hould certaine plees of land within their owne precincts This word Gildes or Guildes is so vsed anno 37. Ed. 3. ca. 51. anno 15. R. 2. cap. 5. And Gildhalda Teutonicorum is vsed for the fraternity of easterling merchaunts in London called the stilyard anno 22. H. 8. cap. octauo Ginger Zinziber is a spice well knowne being the roote of a plant that groweth in hot countries as Spaine Barbary c. The true forme whereof you haue expressed in Gerards herball li. 1. ca. 38. This is a spice whose roote is to be garbled anno 1. Iaco. ca. 19. Ginny peper piper de Ginnea is otherwise called Indian peper of the place whence it commeth The nature and farder description whereof you haue in Gerards herball lib. 2. ca. 66. This you haue mentioned among drugs and spices to be garbled in the statute i. Iaco. ca. 19. Gisarms anno 13. Ed. 1. stat 3. cap. 6. is a kinde of weapon Flet a writeth it Sisarmes lib. 1. ca. 24 § item quod quilibet Glaunce Ore Plowden casu Mines fo 320. b. Glanuill was a learned lawyer that was Chiefe Iustice in Henry the seconds dayes and writte a booke of the common lawes of England which is the auncientest of any extant touching that subiect Stawnf praerog cap. prim fol. 5. He was then called in Latine Ranulphus de Glanvilla He died in Richard the first his daies at the citie of Acres in the coast of Iury being with him in his voyage to the holy land Plowden casu Stowel fol. 368. b. Goe is vsed sometime in a speciall signification in our cōmon lawe as to go to God is to be dismissed the court Broke titulo Fayler de records num 1. Goe forward seemeth also to be a signe giuen by a Iudge to the Sergeant or Counceler pleading the cause of his client that his cause is not good For when he standeth vpon a point of lawe and heareth those words of the Iudges mouth he taketh vnderstanding that he looseth the action Smith de Repub. Anglo lib. 2. cap. 13. To go without day is as much as to be dismissed the court Kitchin fol. 193. Good behauiour See Good abearing Good abearing Bonus gestus is by an especiall signification an exact cariage or behauiour of a subiect toward the king and his liege people whereunto men vpon their euill course of life or loose demeanure are sometimes bound For as M. Lamberd in his Eirenarcha lib. 2. cap. 2. saith he that is bound to this is more strictly bound then to the peace because where the peace is not broken without an affray or batterie or such like this suretie de bono gestu may be forfeited by the number of a mans company or by his or their weapons or harnesse Where of see more in that learned Writer in the same chapter as also in M. Cromptons Iustice of peace fol. 119. b. 120. 121. 122. 123. 124. 125. 126. 127. Good country Bona patria is an Assise or Iury of country men or good neighbours Skene de verbo signif verbo Bona patria Graffer grafarius signifieth as much as a notarie or scriuener It commeth of the French greffier i. scriba actuarius This word is vsed in the statute anno 5. H. 8. c. 1. Graines grana paradisi aliâs Cardamomum is a spice medicinable and wholesome whereof you may see diuers kindes in Gerards herball l. 3. ca. 148. These are cōprised among merchādise that be to be garbled an◠I. c. 19. Grand assise See Assise and Magna assisa Grand Cape see Cape and Attachment Grand Sergeanty See Chyvalrie Seargeantye Grand distresse Magna destrictio is a distresse taken of all the lands and goods that a man hath within the county or bayliwicke whence he is to be distrained Fleta li. 2. ca. 69. § penult See Distresse This word is vsed anno 51. H. 3. ca. 9. This falleth out when the defendant hath been attached and yet appeareth not vpō his attachment or whē he appeareth afterward makes default For then the Shyreeue is commanded to distreine the Defendant by all his goods and chatels and to answer the king the issues of his lands Grange grangia is a house or building not onely where corne is laide vp as barns be but also where there be stables for horses stalles for oxen and other catell sties for hogs and other things necessary for husbandry Lindwood ca. item omnes de iudiciis verbo Graungus in glossa Graunt Concessio grantum Glanvile signifieth specially in our common law a gift in writing of such a thing as cannot aptly be passed or conueyed by word only as rent reversions seruices advowsens in grosse common in grosse villein in grosse tythes c. or made by such persons as cannot giue but by deede as the king and all bodies politique which differences be often in speech neglected and then is it taken generally for euerry gift whatsoeuer made of any thing by any person and he that graunteth it is named the grauntour and he to whome it is made the Grauntee West parte i. symbol lib. 2. sect 334. A thing is said to lie in graunte which cannot be assigned with out deede Coke l. 3. Lincolnes Coll. case f. 63. a. Greate men are sometimes vnderstood of the laity of the higher house of parlament as anno 43. Ed. 3. ca. 2. anno 8. R. 2. in prooem and sometime of the knights c. of the lower house as anno 2. R. 2. stat 2. in princip Gree commeth of the French Grè i. sententia beneplaecitum It signifieth in our common law contentment or good liking as to make gree to the parties is to satisfie them for an offence done anno 1. Rich. 2. cap. 15. Greachbreach is breaking of the peace Saxon in the descriptiion of England ca. 11. v. Rastal titulo exposition of words The new expounder of lawe termes writeth it Grichbreach and giueth it the same signification See Greve Greene hewe is all one with vert Manwood parte 2. of his forest lawes cap. 6. nu 5. See Vert. Greene waxe seemeth to be vsed for estretes deliuered to Shyreeues out of the exchequer vnder the seale of that court to be levied in the county anno 42. Ed. 3. ca. 9. anno 7. H. 4. cap. 3. See Forein apposer Greue praepositus is a word of power and authoritie signifiing as much as Dominus or praefectus Lamberd in his exposi of Saxon words verbo Praefectus Where he seemeth to make it all one with Reve as I thinke vndoubtedly it is The Saxon word is Gerefa whereof we haue diuers words compounded as Shyreeue Portgreave c. which were wont of the Saxons to be written Scyrgerefa Portgerefa See Shyreeue and Portgreve See Roger Hoveden parte poster suorum annal fo 346. b. where he saith thus Greue dicitur ideo quod iure debeat grithe i. pacem ex illis facere qui patriae inferunt Vae i. miseriam vel malum Grithbreach
is a breach of peace For Grith is a word of the old Angles signifiing peace Roger Hovedin parte poster suorum annal fo 346. b. See Greachbreach Grills anno 22. Ed. 4. ca. 2. Grocers be merchants that ingrosse all merchandize vendible anno 37. Ed. 3. ca. 5. Groome anno 33. H. 8. ca. 10. Valletus is the name of a seruant that serueth in some inferiour place M. Verslegan in his restitution of decayed intelligence saith that he findeth it to haue beene in times past a name for youths who albeit they serued yet were they inferiour to men seruants and were sometimes vsed to be sent on foote of errands seruing in such manner as lackies doe nowe Growme anno 43. E. ca. 10. seemeth to be an engine to stretch wollen cloth withall after it is wouen Guydage Guydāgium is that which is giuen for safe conduct through a strange territorie Cassan de consuet Bourg pag. 119. whose words be these Est Guidagiū quod datur alicui vt tutò conducatur per loca alterius Guylde See Gyld Guylhalda Teutonicorum See Gild. Gule of August Gula Augusti anno 27. Ed. 3. stat 3. cap. vnico Fitzh nat br fol. 62. I. aliâs Goule de August Plowd casu Mines fo 316. b. is the very day of Saint Peterad vincula which was wont and is still within the limits of the Roman church celebrated vpon the very Kalends of August Why it should be called the gule of August I cannot otherwise coniecture but that it commeth of the latine gula or the French gueule the throate The reason of my coniecture is in Durands rationali diuinorum li. 7. ca. de festo Sancti Petri ad vincula who saith that one Quirinus a tribune hauing a daughter that had a disease in her throat went to Alexander then Pope of Rome the sixt from Saint Peter and desired of him to borow or see the cheines that Saint Peter was cheined with vnder Nero which request obteined his said daughter kissing the said cheine was cured of her disease and Quirinus with his family was baptised Tunc dictus Alexander papa saith Durand hoc festum in Kalendis Augusti celebrandum instituit in honorem beali Petri ecclesiam in vrbe fabricavit vbi vincula ipsa reposuit ad vincula nominavit Kalendis Augusti dedicauit In qua festivitate populus illic ipsa vincula hodie osculatur So that this day being before called onely the Kalends of August was vpon this occasion afterward termed indifferently either of the instrument that wrought this miracle Saint Peters day ad vincula or of that part of the maiden wheron the miracle was wrought the Gule of August Gultwit seemeth to be compounded of Gult i. noxa and wit which is said by some skilfull men to be an auncient termination of the words in the Saxon tongue signifiing nothing in it selfe but as dom or hood and such like be in these english words Christendom and Manhood or such others others say and it is true that wit signifieth blame or reprehension Gultwit as Saxon in his description of England ca. 11. doth interpret it is an amends for trespas Gust Hospes is vsed by Bracton for a straunger or guest that lodgeth with vs the second night lib. 3. tracta 2. ca. 10. In the lawes of Saint Edward set forth by M. Lamberd num 27. it is written Gest of this see more in Vncothe Gumme gummi is a certaine clammie or tough liquor that in maner of a swetie excrement issueth out of trees and is hardened by the sunne Of these ther be diuers sorts brought ouer seas that be drugs to be garbled as appeareth by the statute anno 1. Iaco. ca. 19. Gutter tyle alias corner tyle is a tile made three cornerwise especially to be laid in gutters or at the corners of tyled houses which you shall often see vpon douehouses at the foure corners of their rofes anno 17. Eduardi 4. ca. 4. H A HAbeas corpus is a writ the which a man indited of some trespas before Iustices of peace or in a court of any franchise and vpon his apprehension being laid in prison for the same may haue out of the kings bench thereby to remooue himselfe thither at his owne costs and to answer the cause there c. Fitzh nat br fol. 250. H. And the order is in this case first to procure a Certiorari out of the Chaūcerie directed to the said Iustices for the remoouing of the Inditemēt into the kings bench and vpon that to procure this writ to the Shyreeue for the causing of his body to be brought at a day Register iudiciall fol. 81. where you shall finde diuers cases wherein this writ is vsed Habeas corpora is a writ that lieth for the bringing in of a Iurie or so many of them as refuse to come vpon the venire facias for the tryall of a cause brought to issue old nat br fol. 157. See great diuersitie of this writ in the table of the Register Iudiciall verbo habeas corpora the new booke of Entries verbo eodem Habendum is a word of forme in a deede of conueyance to the true vnderstanding whereof you must knowe that in euery deede of conueyance there be 2. principall parts the premisses and the habendum The office of the premisses is to expresse the name of the grauntour the grauntee and the thing graunted or to be graunted The office of the habendum is to limite the estate so that the generall implication of the estate which by construction of lawe passeth in the premisses is by the habendum controlled and qualified As in a lease to two persons the habendum to one for life the remainder to the other for life altereth the generall implication of the ioynt tenancie in the freehould which should passe by the premisses if the Habendum weare not Cooke vol. 2. Bucklers case fo 55. See Vse Habere facias seisinam is a writ Iudicial which lyeth where a man hath recouered lands in the kings court directed to the Shyreeue and commaunding him to giue him seisin of the land recouered old nat br fol. 154. Termes of the lawe whereof see great diuersity also in the table of the Register Iudiciall verb. Habere facias seisinā This writ is issuing sometime out of the Records of a fine executorie directed to the Shyreeue of the countie where the land lyeth commanding him to giue to the Cognizee or his heires seisin of the land whereof the fine is levied which writ lyeth within the yeare after the fine or Iudgemēt vpon a scire facias and may be made in diuers formes West parte 2. symb titulo Fines sect 136. There is also a writ called Habere facias seisinam vbi Rex habuit annum diem vastum which is for the redeliuery of lands to the Lord of the fee after the king hath taken his due of his lands that was conuicted of felonie Register orig fol. 165.
praecepturum pro viribus opem impensurum vt ecclesiae dei omni populo Christiano vera pax omni suo tempore observetur Secundò vt rapacitates omnes iniquitates omnibus gradibus interdicat 3. vt in omnibus iudieiis aequitatem praecipiat misericordiam vt indulgeat et suā misericordiā clemens misericors Deus vt per Iustitiā suam firma gaudeant pace vniuersi And in the old abridgement of statutes set out in H. 8. daies I finde it thus described This is the oath that the King shall sweare at his coronation That he shall keepe and maintaine the right and the liberties of the holy church of old time graunted by the righteous Christian Kings of England and that he shall keepe all the lands honours and dignities righteous and free of the Crowne of England in all maner whole without any maner of minishment and the rights of the Crowne hurt decayed or lost to his power shall call againe into the auncient estate and that he shall keepe the peace of the holy church and of the clergy and of the people with good accord and that he shall doe in all his iudgements equitie and right iustice with discretion and mercie and that he shall graunt to hold the lawes customes of the realme and to his power keepe them and affirme them which the folke and people haue made and chosen and the euill lawes and customes wholly to put out and stedfast and stable peace to the people of this realme keepe and cause to be kept to his power and that he shall graunt no charter but where he may doe it by his oath All this I finde in the foresaide Booke titulo Sacramentum Regis and Charter of pardon quinto Oth of the Kings Iustices is that they well and truly shall serue the king and that they shall not assent to things that may turne to his dammage or disinheritance Nor that they shall take no fee nor liuerie of none but the king Nor that they shall take gift nor reward of none that hath adoe before them except it be meate and drinke of smal value as long as the plee is hanging before them nor after for the cause Nor that they shall giue councell to none in mater that may touch the King vpon paine to be at the kings will body and goods And that they shall doe right to euery person notwithstanding the Kings leters c. anno 18. Ed. 3. statut 4. which the old abridgement maketh to be anno 20. eiusdem statuto per se Otho was a Deacon Cardinall of S. Nichens in carcere Tulliam and Legate for the Pope heere in England anno 22. H. 3. whose constitutions we haue at this day Stowes An. pa. 303. see the first constitution of the said Legat. Othobonus was a Deacon Cardinall of S. Adrian and the Popes legate heere in England anno 15. H. 3. as appeareth by the award made betweene the said King and his commons at Kenelworth his constitutions we haue at this day in vse Ouch anno 24. H. 8. ca. 13. Ouster le main Amouere manum word for word signifieth to take off the hand though in true French it should be Oster la main It signifieth in the common law a Iudgement giuen for him that tendeth a trauers or sieweth a Monstrance de droit or petition For when it appeareth vpon the mater discussed that the King hath noe right nor title to the thing he seised then Iudgement shal be giuen in the Chauncery that the kings hands be amoued and thereupon Amoueas manum shal be awarded to the Escheatour which is as much as if the iudgement were giuen that he should haue againe his land v. Stawn praerog ca. 24. See anno 28. Ed. 1. stat 3. ca. 19. It is also taken for the writ graunted vpon this petition Fitzh nat br fol. 256. C. It is written oter le maine anno 25. Hen. 8. ca. 22. Ouster le mer vltra mare commeth of the French oultre i. vltra and le mer. i. mare and it is a cause of excuse or Essoine if a man appeare not in Court vpon Summons See Essoin Outfangthef aliâs vtfangthef is thus defined by Bracton li. 3. tra 2. ca. 34. vtfangthef dicitur latro extraneus veniens aliunde de terra aliena qui captus fuit in terra ipsius quitales habet libertates but see Britton otherwise fol. 91 b It is compounded of three Saxon words out i. extra fang i. capio vel captus and Thef i. fur It is vsed in the common law for a liberty or priuiledge whereby a Lord is inhabled to call any man dwelling within his owne fee and taken for felony in any other place and to iudge him in his owne court Rastals expos of words Owelty of seruices is an equality when the tenent parauaile oweth as much to the mesn as the mesn doth to the Lord paramont Fitzh nat br fol. 136 A. B. Outlawry vtlagaria is the losse or depriuation of the benefit belonging to a subiect that is of the Kings protection and the Realme Bracton li. 3. tract 2. ca. 11. num pri nu 3. Forisfacit vtlagatus omnia quae pacis sunt Quia a tempore quo vtlagatus est caput gerit lupinum ita quòd ab omnibus interfici possit impunè maxime si se defenderit vel fugerit ita quòd difficilis sit eius captio nu 4. Si autem non fugerit nec se defenderit cùm captus fuerit extunc erit in manu domini Regis mors vita qui taliter captum interfecerit respondebit pro co sicut pro alio v. c. Outeparters anno 9. H. 5. ca. 8. seemeth to be a kind of theeues in Ridesdall that ride abroad at their best advantage to fetch in such catell or other things as they could light on without that liberty some are of opinion that those which in the forenamed statute are termed out-patters are at this day called out-putters and are such as set matches for the robbing of any man or house as by discouering which way he rideth or goeth or where the house is weakest fittest to be entred See Intakers Owtryders seeme to be none other but bayliffe errants employed by the Shyreeues or their fermers to ride to the fardest places of their counties or hundreds with the more speede to summon to their county or hundred courts such as they thought good to worke vpon anno 14. Ed. 3. stat 1. ca. 9. Oxgang of Land Bouata terrae Sixe oxgangs of land seeme to be so much as sixe oxen will plough Crompton iurisd fol. 220. but an oxegang seemeth properly to be spoken of such land as lyeth in gainour old nat br fol. 117. M. Skene de verbor significat verbo Bovata terrae saith that an oxen-gate of land should alway conteine 13. acres and that 4. oxen-gates extendeth to a pound land of old extent See
businesse See Association And Fitz. nat br fol. 185. 111. C. and Register origin fol. 202. 206. 124. Si recognoscant is a writ that lyeth for a Creditour against his depter for money numbred that hath before the shyreeue in the Countie court acknowledged himselfe to owe vnto his creditor such a summe receiued of him in numeratis pecunits The forme of the writ is this Rex Vicecomiti salutem Praec tibi quod si A. recognoscat se debere R. 40. solid fine vlteriori dilatione tunc ipsum distringas ad praedictum debitum eidem R. sine dilatione reddendum Teste c. Old nat br fol. 68. Skawe anno 4. Ed. 4. cap. 1. Skyvinage anno 27. H. 6. cap. 2. a proper name signifying the precincts of Caleis Sluse exclusa is a frame to keepe or let water out of a grounde Soc Soca is a word signifiing a power or libertie of Iurisdiction as appeareth by these words out of Bracton Sunt quidam Barones alii libertatem habentes sc soc sac Tol Thean Infangthefe Vtfangthefe isti possunt iudicare in Curia sua eum qui inuentus fuerit iufra libertatem suam seisitus de aliquo latrocinio manifesto li. 3. tractat 2. cap. 8. In the lawes of King Edward set out by M. Lamberd fol. 132. you haue these words Socha est quod si aliquis quarit aliquid in terra sua etiam furtum sua est Iusticia si inuentum fuerit an non Saxon in the description of Britany cap. 11. saith that Sock is a suite of Court and that thereof commeth Soken But the signification of the word as I haue bene credibly informed is as much as Inquisitio which we in moderne English terme seeking Of this Sok Skene de verborum signifie speaketh to this effect Sok is an ould word vsed in Charters and feofments which in sundry old bookes conteining the municipiall law of this Realme is called Secta de hominibus suis in curia secundum consuetudinem Regni So after my opinion he that is infeoffed with Sck. which now we call Soit but we in England Suite hath power to hould courts within his owne Baronie in which homines sui should giue Soyt Thus farre M. Skene Of this Fleta hath these words In huiusmodi verò maneriis speaking of the Kings maners erant olim liberi homines liberè tenentes quorum quidam cum per potentiores è tenementis suis eiecti fuerant eadem postmodum in villenagium tenenda resumpserūt quia huiusmodi tenentes cultores Regis esse dinoscuntur eis provisa fuit quies ne sectas facerent ad comitatus vel hundredōs vel ad aliquas inquisitiones assisas vel iuratas nisi in manerio tantùm dum tamen pro terra quorum congregationem tunc socam appellarunt hinc est quòd Socmanni hodie dicuntur esse A soco enim deriuantur quorum tonementa sunt villenagium domini privilegiatum ideo dicuntur glebae ascriptitii eo quòd ab huiusmodi glebis amoueri non deberent quam diu soluerent debitas pensiones nec compelli poterunt ad buiusmodi tenementa tenenda contra suas voluntates eo quòd corpora sua sunt libera Nec obstabit longa seruitutis possessio ad libertatē extinguendam quamuis ad merchetum sanguinis sui compulsus fuerit quis pro tenemento reddendo Nulla enim servitus ratione praescriptionis temporis potest liberum sanguinē in seruitute reducere non magis quam liberum tenementum potest servum in libertatem c. By whose words it appeareth that Soca is nothing else but the meeting or assembly of these kinde of tenents in any place within the maner or libertie wherefore he that hath soc may seeme to haue such a maner such tenents and such a libertie belonging to his maner and tenents as is here described Here you see diuersities of opinions touching this word one saying that it is a power or libertie to seeke after theeues stollen goods within a maner or fee and to doe iustice vpon such inquisition others that it is a libertie onely to haue suiters to his court other as Fleta that it conteineth both the former significations and furder that it is taken for the company of tenents which liue within such a liberty and are exempled from those common seruices of the Prince and country wherunto subiects are ordinarily tied This kinde of liberty is in diuers places at this day in England and commonly knowne by the name of soke or soken See Soke and Sockmans Soccage soccagium commeth of the French Soc. i. vomer a plowshare or coulter It signifieth in our common lawe a tenure of lands by or for certaine inferiour or husbandly seruices to be performed to the Lord of the fee. See Instituts of common lawe 31. As I haue shewed in Chivalrie all seruices due for land is either knights seruice or socage So then whatsoeuer is not knights seruice is soceage Bracton in his 2. booke cap. 35. num primo describeth it thus Dici poterit soccagium à Socco inde tenentes qui tenent in Sockagio Sockmanni dici poterunt eo quòd deputati sunt vt videtur tantummodo ad cultur am quorum custodia maritagia ad propinquiores parentes iure san guinis pertinebit Et si aliquando inde de facto capiatur homagium quòd pluries contingit non tamen habebit propter hoc Dominus capitalis custodiam maritagium Quia non semper sequitur homagium licet aliquando sequatur M. Skene de verborum significatione verb. Sockmanria saith that Sockage is a kinde of holding of lands when a man is infeoffed freely without any seruice ward reliefe or mariage and paieth to his Lord such dutie as is called petit sergeantie or when one holdeth land in the name of burgage or in libera elemozina or otherwise in blenche ferme siue nomine albae firmae opponitur militi qui tenet per seruitium militare Out of the place aboue named in Bracton you may finde a diuision of Soccage wherby it is termed either Soccagium liberum or villanum frank or free Soccage and base otherwise called villenage The former is there thus defined Soccagium liberum est vbi fit seruitium in denariis Dominis capitalibus nihil inde omnino datur ad scutum seruitium Regis Where I gather that to be free soccage which paieth a certaine summe of money to the chiefe Lord in regard of some tillage or such like and not of any Sergeantie or eschuage And to this effect he writeth also lib. 2. cap. 16. nu 9. c. vnde si tantum in denariis sine scut agio vel seriantiis vel si ad duo teneatur sub disiunctione sc ad certam rem dandam pro omni seruitio vel aliquam summam in denariis id tenementum potest dici Soccagium si autem superaddas
reade Gerards Herball lib. 2. cap. 425. The fruite or eare of this for it bringeth forth an eare like Lauender is a drugge garbleable anno 1. Iacob cap. 19. Spoliation spoliatio is a writ that lyeth for an incumbent against another incumbent in case where the right of patronage commeth not in debate As if a Parson bee made a Bishop and hath dispensation to keepe his Rectorie and afterward the patron present another to the Church which is instituted and inducted The Bishop shall haue against this incumbent a writ of spoliation in Court Christian Fitz. nat br fol. 36. see Beneuolence Squalley anno 43. Elizab. cap. 10. Squyers See Esquires Stablestand is one of the foure Euidences or presumptians whereby a man is convinced to intend the stealing of the Kings Deere in the Forest Manwood parte 2 of his Forest lawes cap. 18. num 9. the other three be these Dogdrawe Backbeare Bloudie-hand And this stablestand is when a man is found at his standing in the Forest with a Crosse bowe bent ready to shoote at any Deere or with a long bowe or else standing close by a tree with Greyhounds in a lease ready to slippe Idem eodem Stalkers a kind of net anno 13 R. 2. stat 1. cap. 20. anno 17. eiusdem cap. 9. Stallage stallagium commeth of the French Estaller i. merces exponere expedire explicare It signifieth in our common law money payed for pitching of stalles in Faire or Market See Scavage This in Scotland is called stallange Skene de verbor signif verbo Stallangiatores And among the Romaines it was termed Siliquaticum à siliqua primo minimo omnium pondere apud illam nationem Stannaries stannaria commeth of the Latine stannum i. tynne signifying the Mines and workes touching the getting and purifying of this mettall in Cornewall and other places Of this read Camden Britan. pa. 119. The liberties of the stannarie men graunted by Ed. 1. before they were abridged by the statute anno 50. Ed. 3. see in Plowden casu Mines fol. 327. a. b. Staple Stapulum signifieth this or that towne or citie whether the Merchants of England by common order or commandement did carie their wolles wol-fels cloathes lead and tinne and such like commodities of our land for the vtterance of them by the great The word may probably be interpreted two wayes one taking it from staple which in the Saxon or old English language signifieth the stay or hold of any thing Lamb. in his duties of Constables num 4. because the place is certaine and setled and againe from the French estape i. forum vinarium because to those places whether our English Merchants brought their commodities the French would also meete them with theirs which most of all consisteth in wines but I thinke this latter the truer because I finde in the Mirrour of the world written in French these words A Calais 〈◊〉 auoit Estape de le laine c. Which is as much to say as the staple for wols c. You may read of many places appointed for this staple in the statutes of the land according as the Prince by his Councell thought good to alter them from the second yeare of Ed 3. cap. 9. to the fifth of Edw the sixth cap 7. what officers the staples had belonging to them you may see anno 27. Ed. 3. stat 2. ca. 21. Starre chamber Camera stellata is a Chamber at Westminster so called as Sir Tho. Smith coniectureth lib. 2. cap. 4. either because it is full of windowes or because at the first all the roofe thereof was decked with Images of guilded starres And the later reason I take to be the trewer because anno 25. H. 8. ca. 1. It is written the Sterred Chamber In this Chamber euery weeke twice during the terme and the very next day after terme is there a Court held by the Lord Chaunceler or Keeper and other honourable personages of the Realme This Court seemeth to haue taken beginning from the statute anno 3. H 7. ca. pri Whereby it is ordained that the Lord Chaunceler and Treasurer of England for the time being and the Keeper of the Kings priuy seale or two of them calling to them a Bishop and a temporall Lord of the Kings most honourable Councell and the two cheife Iustices of the Kings Bench and common place for the time being or other two Iustices in their absence should haue power to call before them and punish such misdoers as there be mentioned The faults that they punish be Routes Riots Forgeries Maintenances Embraceries Periurics and such other Misdemeanures as are not sufficiently prouided for by the common law It appeareth both by Sir Tho Smith lib. 2. de Rep Anglo cap. 4. and by experience also that at this day the whole number of the Princes most honourable priuy Councell and such other Barons spirituall or temporall as be called thither by the Prince haue place in this Court with those aboue named Of this Court thus speaketh M. Gwin in the preface to his readings It appeareth in our bookes of the termes of K. Edward 4. And of the report of cases hapning vnder the vsurpation of Richard the third that sometime the King and his Councell and sometime the Lord Chaunceler and other great personages did vse to sit iudicially in the place then and yet called the Starre Chamber But for as much as be like that assembly was not ordinary therefore the next Kings Henry the seuenth and his some H. 8. tooke order by two seuerall lawes viz. 3. H. 7. ca. pri 21. H. 8. ca. 2. That the Chaunceler assisted with others there named should haue power to heare complaints against Retainours Embraceours misdemenures of officers and such other offences which through the power and countenance of such as do commit them do lift vp the head aboue other faults and for the which inferiour Iudges are not so meete to giue correction And because that place was before dedicated to the like seruice it hath bene euer since also accordingly vsed Touching the officers belonging to this Court see Camden pag. 112. 113. Statute statutum hath diuers significations in our common lawe First it signifieth a Decree or act of Parlament made by the Prince and three estates which is the bodie of the whole Realme And though it borow the name from that kind of Decree which those cities that were vnder the Romaine Empire made for the particular gouernment of themselues ouer and aboue the vniuersall or common lawe of the Empire yet in nature it commeth nearest to that which the Romaines called legem for that as that was made by the whole people noble and ignoble so this is ordeined by those that represent the whole number both of prince and subiects one and other through the whole kingdome The difference neuerthelesse was this that Lex was offered to the consideration of the people by the Magistrate of the Senate or Consull but the bils or suggestions whence
in the number of the kings souldiours Master of the kings musters anno 2. Ed. 6. cap. 2. See Master Muster master general anno 35. Eliz. ca. 4. See Master of the kings musters N NAam Namium seemeth to come from the Dutch word nemmen i. capio It signifieth in our common law the taking or apprehending of another mans moueable goods and is either lawfull or vnlawfull Lawfull naam is nothing els but a reasonable distresse proportionable to the valew of the thing distreined for And this naam was aunciently called either vif or mort quicke or dead accordingly as it was made of dead or quicke chatels Lawfull naam is so either by the common law or by a mans perticular fact by the common law as when one taketh another mans beasts dammage seisant in his grounds by a mans particular fact as by reason of some contract made that for default of payment of an annuity agreed vpon it shall be lawfull to distreine in such or such lands c. Horns mirrour of Iustices lib. 2. ca. de vec de naam where you may read of other circumstances required in lawfull naam viz of what thing or of what things first in what maner on what daies and at what houres it ought to be made with other points worth the reading for the vnderstanding of our law antiquities See Withernam Nasse anno 4. H. 7. ca. 21. seemeth to be the proper name of Orford Hauen Whether it be so termed of the boates or water vessels that lye there or not let the reader iudge But nasselle is in French a kinde of small boat Natiuo habendo is a writ that lyeth to the Shyreeue for a Lord whose vilein claimed as his inheritance is runne from him for the apprehending and restoring of him to his Lord againe Register orig fol. 87. Fitzh nat br fol. 77. See Libertate probanda Naturalization See Denizen Ne admittas is a writ that lyeth for the plaintife in a Quare impedit or him that hath an action of Darrein presentment depending in the common Bench and feareth that the Bishop will admit the clerke of the defendant during the suite betweene them And this writ must be sued within sixe monethes after the avoydance Because after the sixe moneths the Bishop may present by lapse Register orig fol. 31. Fitzh nat br fol. 37. where see the rest Negatiue pregnant Negatiua praegnans is a negatiue implying also an affirmatiue As is a man being impleaded to haued one a thing vpon such a day or in such a place denyeth that he did it modo forma declarata which implyeth neuer the lesse that in some sort he did it Or if a man be said to haue alienated land c. in fee he denying that he hath alienated in fee seemeth to confesse that he hath alienated in some other sort Dyer fol. 17. nu 95. See Brooke hoc titulo and Kitchin fol. 232. And see the new exposition of lawe terms And read also in some Ciuilians of Affirmatiua praegnans and that is quae habet in se inclusiuam negatiuam Et hoc importare videntur dictiones Solùm tantùm quae implicant negatiuam Pacianus De probationibus lib. 1. ca. 31. nu 16. fol. 93. Neif natiua commeth of the French Naif i. naturalis vel nativus it signifieth in our common law a bond woman anno 1 Ed. 6. ca. 3. the reason is because women become bond rather natiuitate than by any other means Ne in iuste vexes is a writ that lyeth for a Tenent which is distrained by his Lord for other seruices than he ought to make and is a prohibition to the Lord in it selfe commaunding him not to distreine The especial vse of it is where the tenent hath formerly preiudiced himselfe by performing more services or paying more rent without constraint than he needed For in this case by reason of the Lords seisin he cannot avoide him in avowry and therefore he is driuen to this writ as his next remedie Register orig fol. 4. Fitzh nat br fol 10. Ne vicecomes colore mandat◠Regis quenquam amoueat à possessione ecclesiae minus iustè Register orig fol. 61. Nient comprise is an exception taken to a petition as vniust bicause the thing desired is not conteined or comprehended in that act or deede wherevpon the petition is grounded For example one desireth of the court to be put in possession of a house formerly among other lands c. adiudged vnto him The adverse party pleadeth that his petitiō is not to be granted because thogh he had a iudgement for certaine lands and houses yet the house into the possession wherof he desireth to be put is not conteined among those for the which he had iudgement See the newe booke of Entries titulo Nient comprise This seemeth to be especially to hinder execution Nifle anno 3. Ed. 4. cap. 5. Nihil anno 5. R. 2. stat pri cap. 3. is a word set vpon a debt illeuiable by the foreine Apposer in the Exchequer Nohil dicit is a fayling to put in answer to the plee of the plaintiffe by the day assigned which if a man do commit iudgement passeth against him as saying nothing why it should not Nisi prius is a writ iudiciall which lyeth in case where the Enquest is paneled and returned before the Iustices of the Banke the one partie or the other making petition to haue this writ for the case of the contrie It is directed to the Shyreeue commaunding that hee cause the men impaneled to come before the Iustices in the same countie for the determination of the cause there except it be so difficult that it need great deliberation In which case it is sent againe to the Bank v. anno 14. Ed. 3. cap. 15. The forme of the writ see in old nat br fol. 159. and in the Regist indic fol. 7. 28. 75. See the new booke of Entries verbo Nisi prius And it is called Nisi prius of these words comprised in the same whereby the Shyreeue is willed to bring to Westminst the men impaneled at a certaine day or before the Iustices of the next Assises nisi die Lunae apud talem locum prius venerint c. whereby it appeareth that Iustices of Assises and Iustices of nisi prius are differing And Iustices of nisi prius must be one of them before whom the cause is depending in the Bench with some other good man of the Countie associated vnto him Fitz. nat br fol. 240. E. which he taketh from the Statute of Yorke ann 12. Ed. 2. See Westm 2. cap. 30. anno 13. Ed. prim anno 27. eiusdem cap. 4. anno 2. Ed. 3. cap. 17. anno 4. eiusdem cap. 11. anno 14. eiusdem cap. 16. anno 7. Rich. 2. cap. 7. anno 18. Eliz. cap. 12. Nobility nobilitas in England compriseth all dignities aboue a Knight So that a Baron is the lowest degree thereof Smith de Repub. Anglor lib. prim
cap. 17. Bartolus in his Tractate De Nobilitate which he compiled vpon the lawe Si vt proponis C. de dignitatibus libro 12. rehearseth foure opinions de Nobilitate but reiecteth them and himselfe defineth it thus Nobilitas est qualitas illata per principatum tenentem qua quis vltra honestos plebeios acceptus ostenditur But this definition is too large for vs except we will accompt Knights and Banerets inter plebem which in mine opinion were too harsh For Equites among the Romanes were in a middle ranke inter Senatores plebem Nocumento See Nusance Nomination nominatio is vsed by the Canonists and common Lawyers for a power that a man by vertue of a maner or otherwise hath to appoint a Clerke to a patron of a benefice by him to be presented to the Ordinarie New termes of the lawe Non-abilitie is an exception taken against the plaintiffe or demandant vpon some cause why he cannot commence any suite in lawe as a Praemunire Outlawrie Villenage Excommunication or because he is a stranger borne The Ciuilians say that such a man hath not personam standi in iudicio See Broke hoc titulo see Fitzh nat br fol. 35. A. fol. 65. D. fol. 77. C. The new Expositour of lawe termes reckoneth sixe causes of Non-ability as if he be an outlawe a stranger borne condemned in a premunire professed in religion excommunicate or a villein Howbeit the second cause holdeth onely in actions reall or mixt and not in personall except he be a straunger and an enemie Non admittas See Ne admittas Non-age is all the time of a mans age vnder one and twenty yeares in some cases or fourteen in some as mariage See Broke titulo Age. See Age. Non capiendo clericum See Clerico non capiendo Non clayme Cromptons Iurisd fol. 144. seemeth to be an exception against a man that claimeth not within the time limited by lawe as within the yeare and day in case where a man ought to make continuall claime or within fiue yeares after a fine leuyed v. Coke lib. 4. in prooemio See Continuall clayme Non compos mentis is of foure sortes first he that is an idiot borne next he that by accident afterward wholy leeseth his wits thirdly a lunaticke that hath somtime his vnderstanding and sometime not lastly hee which by his own act depriueth himselfe of his right mind for a time as a drunkard Coke lib. 4. fol. 124. b. Non distringendo is a writ comprising vnder it diuers particulars according to diuers cases all which you may see in the Table of the Register original verbo Non distringendo Non est culpabilis is the generall answer to an action of trespasse whereby the defendant doth absolutely deny the fact imputed vnto him by the plaintiffe whereas in other especiall answers the defendaunt graunteth the fact to be done and alledgeth some reason in his defence why he lawfully might doe it And therefore whereas the Rhetoricians comprise all the substance of their discourses vnder three questions An sit quid sit quale sit this aunswere falleth vnder the first of the three all other answers are vnder one of the other two And as this is the generall aunswer in an action of trespasse that is an action criminall ciuily prosecuted so is it also in all actions criminally followed either at the suite of the king or other wherein the defendant denieth the crime obiected vnto him See the new booke of Entries titulo Non culpabilis and Stawnf pl. cor lib. 2. cap. 62. Non est factum is an aunswer to a declaration whereby a man denyeth that to be his deed whereupon he is impleaded Broke hoc titulo Non implacitando aliquem de libero tenemento fine breui is a writ to inhibit Bayliffes c. from distraining any man without the kings writ touching his free hould Register fol. 171. b. Non intromittendo quando breue praecipe in capite subdolè impetratur Is a writ directed to Iustices of the bench or in Eyre willing them not to giue one hearing that hath vnder the colour of intitling the king to land c. as houlding of him in capite deceitfully obteined the writ called praecipe in capite but to put him to his writ of right if he thinke good to vse it Register orig fo 4. b. Non mercandizando victualia is a writ directed to the Iustic̄es of Assise commaunding them to inquire whether the officers of such a towne doe sell victuals in grosse or by retaile during their office contrary to the statute and to punish them if they finde it true Register fol. 184. Non molestando is a writ that lyeth for him which is molested contrary to the kings protection graunted him Register fol. 24. Non omittas is a writ lying where the Shyreeue deliuereth a former writ to a Bayliffe of a fraunchis within the which the party on whom it is to be serued dwelleth the Bayliffe neglecteth to serue it for in this case the Shyreeue returning that he deliuered it to the Bayliffe this shal be directed to the Shyreeue charging him himselfe to execute the kings commaundement Old nat br fol. 44. of this the Reg. orig hath three sorts fol. 82. b. 151. and the Reg. Iudiciall one fol. 5. 56. Non ponendo in Assisis Iuratis is a writ founded vpon the stat Westm 2. ca. 38. and the stat Articuli super chartas ca. 9. which is graunted vpon diuers causes to men for the freeing them from Assises and Iuries See Fitzh nat br fol. 165. See the Register fol. 179. 100. 181. 183. Non procedendo ad Assisam Rege inconsulto is a writ to stop the triall of a cause appertaining vnto one that is in the kings seruice c. vntill the kings pleasure be farder knowne Reg. fol. 220. a. Non residentia pro clericis Regis is a writ directed to the Ordinary charging him not to molest a Clerk imployed in the kings seruice by reason of his non residence Register orig fol. 58. b. Non-suite is a renuntiation of the suite by the plaintife or demaundant when the mater is so farre proceeded in as the Iury is ready at the barre to deliuer their verdict anno 2. H. 4. ca. 7. See the new booke of Entries verbo Non-suite The ciuilians terme it Litis renunciationem Non soluendo pecuniam ad quam Clericus mulctatur pro non residentia is a writ prohibiting an Ordinary to take a pecuniary mulct imposed vpon a clerk of the kings for non-residence Regist orig fol. 59. Non tenure is an exception to a coumpt by saying that he houldeth not the land specified in the coumpt or at the least some parte of it anno 25. Ed. 3. stat 4. ca. 16. West parte 2. Simbol titulo Fines sect 138. maketh mention of non-tenure generall and non-tenure speciall See the new booke of Entries verbo Non-tenure where it is said that especiall non-tenure is an