portionis is a Writ that lyeth for a joint renent or renent in Common that is distreyned for more rent than the proportion of the Land commeth unto Reg. orig fol. 182. b. OP Open Law Lex manifesta Lex apparens is making of Law which by Magna Charta cap. 28. Bayliffs may not put men unto upon their own bare assertions except they have Witnesses to prove their imputation OR Orchel anno 1 R. 3. cap. 8. Orchall anno 24 H. 8. cap. 2. anno 3 4 Ed. 6. cap. 2. seemetst to be all one with Cork Ordinance of the Forest Ordinatio Forestae is a Statute made touching Forest causes in the 34 year of Edward 1. See Assise Ordinary Ordinarius though in the Civil law whence the word is taken it doth signifie any Judge that hath authority to take knowledge of Causes in his own right as he is a Magistrate and not by deputation yet in our Common law it is most commonly and for ought I remember alway taken for him that hath ordinary jurisdiction in causes Ecclesiastical See Brook hoc titulo Linwood in cap. exterior titulo de Constitutionibus verbo Ordinarii saith quòd Ordinarius habet locum principaliter in Episcopo et aliis superioribus qui soli sunt universales in suis ju isdictionibus sed sunt sub eo aliâ—ordinarii hii viz. quibus competit jurisdictio ordinaria de jure privilegio vgl consuetudine c. v. c. Ordinatione contra servientes is a Writ that lyeth against a Servant for leaving his Master against the Statute Register original fol. 189. Ordel Ordalium is a Saxon word signifying as much as Judgement in some mens opinions compounded of two Saxon words or a privative as a in Greek and dael 1. pars It signifieth as much as expers but it is artificially used for a kind of purgation practised in antient times whereby the party purged was judged expers criminis called in the Canon law purgatio vulgaris and utterly condemned There were of this two sorts one by fire another by water Of these see M. Lamberd in his explication of Saxon words verbo Ordalium where he expresseth it at large with such superstitions as were used in it Of this you may like wise read Holinshed in his description of Britain fol. 98. and also M. Manwood parte pri of his Forest laws pag. 15. But of all the rest Hotoman especially disput de feud p. 41. where of five kind of proofs which he calleth feudales probationes he maketh this the fourth calling it explorationem et hujus furiosae probationis 6. genera fuisse animadvertit per flammam per aquam perferrum candens per aquam vel gelidam vel ferventem per sortes et per corpus Domini of all which he allegeth several exemples out of History very worthy the reading See M. Skene also de verbor significatione verbo Machamium This seemeth to have been in use here with us in Henry the seconds dayes as appeareth by Glanvile lib. 14. c. 1 2. Read also of this in M. Verstegans Restitution of decayed intelligence cap. 3. pag. 63. seq Orfgild aliis Cheapegeld is a restitution made by the Hundred or County of any wrong done by one that was in plegio Lamberd Archaion page 125. 126. Org is anno 31. Ed. 3. stat 3. cap. 2. is the greatest sort of North sea-fish now a daies called Organ ling. Oredelf is a liberty whereby a man claimeth the Ore found in his soyl New exposition of Termes Ortelli is a word used in the book termed pupilla oculi in the chapter containing the Charter of the Forest parte 5. cap. 22. and signifyeth the clawes of a dogs foot being taken from the French orteils des pieds i. digiti pedum the Toes OS Osmonds anno 32. Henr. 8. cap. 14. OT Oth of the King Juramentum Regis is that which the King taketh at his Coronation which in Bract. is set down in these words Debet Rex in coronatione sua in nomine Jesu Christi praestito sacramento haec tria promittere populo sibi subdito Inprimis se esse praecepturum pro viribus opem impensurum ut ecclesiae dei et omni populo Christiano vera pax omnisuo tempore observetur Secundò ut rapacitates et omnes inquietates omnibus gradibus interdicat Tertiò ut in omnibus judciis aequitatem praecipat misericordiam ut indulgeat ei suam misericordiam clemens misericors Dens ut per justitiam suam firma gaudeant pace universi And in the old abridgment of Statutes set out in King Henry the eighths dayes I find it thus described This is the oath that the King shall swear at his Coronation That he shall keep and maintain the right and the liberties of the Holy Church of old time granted by the righteous Christian Kings of England and that hee shall keep all the Lands Honours and Dignities righteous and free of the Crown of England in all manner whole without any manner of minishment and the rights of Crown hurt decayed or lost to his power shall call again into the ancient estate and that he shall keep 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 judgements equity and right justice with discretion and mercy and that he shall grant to hold the Lawes and customes of the Realm and to his power keep them and affiem them which the folke and people have made and chosen and the evill Lawes and customes wholey to put out and stedfast and stable peace to the people of this Realm keep and cause to be kept to his power and that hee shall grant no Charter but where he may doe it by his oath All this I find in the foresaid Book titulo Sacramentum Regit and Charter of Pardon quinto Oth of the Kings Justices is That they well and truly shall serve the King and that they shall not assent to things that may turn to his dammage or disinheritance Nor that they shall take no fee nor livery of none but the King Nor that they shall take gift or reward of none that hath adoe before them except it be meat and drink of small value as long as the plce is hanging before them nor after for the cause Nor that they shall give counsell to none in matter that may touch the King upon pain to be at the Kings will body and goods And that they shall doe right to every person notwithstanding the Kings Letters c. Anno 18. Ed. 3. statut 4. which the old abridgement maketh to be anno 20. ejusdem statuâ—o perse Otho was a Deacon Cardinal of S. Nichens in carcere Tulliani and Legate for the Pope here in England anno 22 H. 3. whose constitutions we have at this day Stows An. p. 303. and see the first constitution of the said Legat Othobonus was a Deacon Cardinal
places they there have this commissary is but superfluous and most commonly doth rather vex and disturb the Country for his lucre than of conscience seek to redresse the lives of offenders And therefore the Bishop taking prestation money of his Archdeacons yearely pro exteriori jurisdictione as it is ordinarily called doth by super-onerating their circuit with a commissary not only wrong Archdeacons but the poorer sort of subjects much more as common practice daily teacheth to their great woe Commission commissio is for the most part in the understanding of the Common law as much as delegatio with the Civilians See Brook titulo Commission and is taken for the warrant or Letters Patents that all men exercising jurisdiction either ordinary or extraordinary have for their power to hear or determine any cause or action Of these see divers in the table of the Register original verbo Commissio Yet this word sometime is extended further than to matters of judgement as the Commission of Purveyers or takers anno 11 H. 4. cap. 28. But with this epitheton High it is most notoriously used for the honourable Commission Court instituted and founded upon the Statute 1 Eliz. cap. 1. for the ordering and reformation of all offences in any thing appertaining to the jurisdiction ecclesiastical but especially such as are of higher nature or at the least require greater punishment than ordinary jurisdiction can afford For the world being grown to that loosenesse as not to esteem the censure of excommunication necessity calleth for those censures of fines to the Prince and imprisonment which doe affect men more neerly Commission of rebellion commissio rebellionis is otherwise called a writ of Rebellion Breve Rebellionis and it hath use when a man after proclamation made by the Sheriff upon an order of the Chauncery or court of Statrechamber under penalty of his allegeance to present himself to the Court by a certain day appeareth not And this commission is directed by way of command to certain persons to this end that they or three two or one of them doe apprehend or cause to be apprehended the party as a rebell and contemner of the Kings lawes wheresoever they find him within the Kingdom and bring him or cause him to be brought to the court upon a day therein assigned The true copie of this commission or Writ you have in Cromptons divers jurisdictions Court de Starre-Chamber as also in West tractat touching proceedings in chancery Sectio 24. Commissioner commissionarius is he that hath commission as Letters Patents or other lawful warrant to execute any publike office as Commissioners of the office of Fines and Licenses West parte 2. symbol titulo Fines sect 106. Commissioners in Eyr anno 3 Ed. 1. cap. 26. with infinite such like Committee is he to whom the consideration or ordering of any matter is referred either by some Court or consent of parties to whom it belongeth As in Parliament a Bill being read is either consented unto and passed or denied or neither of both but referred to the consideration of some certain men appointed by the house farther to examine it who thereupon are called Committees Committee of the King West part 2. symbol titulo Chancerie sect 144. This word seemeth to be something strangely used in Kitchin fol. 160. where the widow of the Kings Tenent being dead is called the Committee of the King that is one committed by the ancient law of the land to the Kings care and protection Common bench bancus communis is used some time for the Court of Common plees anno 2 Ed. 3. cap. 11. So called as M. Cambden saith in his Britannia pag. 113. quia communia placita inter subditos ex jure nostro quod commune vocant in hoc disceptantur that is the Plees or Controversies tryed between Common persons Common fine finis communis of this Fleta hath these words Quibus expeditis speaking of the businesse finished by Justices in Eyr consueverunt Justiciarii imponere villatis juratoribus hundredis toti comitatui concelamentum omnes separatim amerciare quod videtur voluntarium cùm de per jurio concelauâ—ento non fuerint convicti sed potius dispensandum esset cum eis quod anim as in statera posuerint pro pacis conservatione lib. 1. cap. 48. § Quibus And a little following § Et provisum he hath these words Et provisum ests quòd communes misericordiae vel fines comitatuum amerciatorum in finibus ininerum Justiciariorum ante recessum ipsorum Justiciariorum per sacramenta militum aliorum proborum hominum de comitatu eodem affidentur super eos qui contribuere debent unde particulae Justiciariis liberentur ut cum aliis extractis suis ad Scaccarium liberare valeant These last words of his have relation to the statute Westminst pr. cap. 18. which read See Fine Common Plees communia placita is the Kings Court now held in Westminster Hall but in antient time moveable as appeareth by the Statute called Magna charta cap. 11. as also anno 2 Ed. 3. cap. 11. and Pupilla oculi parte 5. cap. 22. But M. Gwin in the Preface to his Readings saith that until the time that Henry the third granted the great Charter there were but two Courts in all called the Kings Courts whereof one was the Exchequer the other the Kings Bench which was then called Curia Domini regis and Aula regia because it followed the Court or King and that upon the grant of that Charter the Court of Common plees was erected and setled in one place certain viz. at Westminster And because this Court was setled at Westminster wheresoever the King lay thereupon M. Gwin ubi supra saith that after that all the Writs ran Quòd sit coram Justiciariis meis apud Westmonasterium whereas before the party was commanded by them to appear coram me vel Justiciariis meis simply without addition of place as he well observeth out of Glanvile and Bracton the one writing in Henry the seconds time before this Court was erected the other in the latter end of Henry the thirds time who erected this Court. All civil causes both real and personal are or were in former times tryed in this Court according to the strict law of the Realm and by Fortescue cap. 50. it seemeth to have been the onely Court for real causes The chief Judge thereof is called the Lord chief Justice of the Common Plees accompanied with 3 a 4 Assistants or Associates which are created by Letters Patents from the King and as it were enstalled or placed upon the Bench by the Lord Chancelor and Lord chief Justice of the Court as appeareth by Fortescue cap. 51. who expresseth all the circumstances of this admission The rest of the Officers belonging to this Court are these The Custos brevium three Protonotaries otherwise called Prenotaries Chirographer Filazers 14. Exigenters 4. Clerk of the Warrants Clerk of the Juries or Jurata
words Billa vera or disallow by writing Ignoramus such as they doe approve if they touch Life and Death are farther referred to another Jury to be considered of because the case is of such importance but others of lighter moment are upon their allowance without more work fined by the Bench except the party travers the Inditement or challenge it for insufficiency or remove the cause to a higher Court by Certiorari in which two former cases it is referred to another Jury and in the latter transmitted to the higher Lamb. Eir. li. 4. ca. 7. and presently upon the allowance of this Bill by the Grand Enquest a man is said to be indited Such as they disallow are delivered to the Bench by whom they are forthwith cancelled or torn The Petit Iury consisteth of twelve men at the least and are empaneled as well upon criminal as upon civil causes those that passe upon offences of Life and Death doe bring in their verdict either guiltie or not guilty wherupon the Prisoner if he be found guilty is said to be convicted and so afterward receiveth his judgement and condemnation or otherwise is acquitted and set Free Of this read Fortes cap. 27. Those that passe upon civil causes real are all or so many as can conveniently be had of the same Hundred where the land or tenement in question doth lie and four at the least And they upon due examination bring in their verdict either for the Demandant or Tenent Of this see Fortescue cap. 25 26. According unto which judgement passeth afterward in the Court where the cause first began and the reason hereof is because these Justices of Assise are in this case for the ease of the Country only to take the verdict of the Jury by the vertue of the writ called Nisi prius and so return it to the Court where the cause is depending See Nisi prius Joyn with this the chapter formerly cited out of the Custumary of Normandie and that of King Etheldreds laws mentioned by Master Lamberd verbo Centuria in his explication of Saxon words And by these two words you shall perceive that as well among these Normans as the Saxous the men of this Jury were Associates and Assistants to the Judges of the Court in a kind of equalitie whereas now adayes they attend them in great humility and are as it were at their command for the service of the Court the words set down by M. Lamberd are these In singulis centuriis comitia sunto atque liberae conditionis viri duodeni aetate superiores un à cum praeposito sacra tenentes juranto se aedeo virum aliquem innocentem hand condemnaturos sontemve absoluturos to this joyn also the 69. chapter of the said Custumary See Enquest See 12. Men. See Lamberds Eirenarch lib. 4. cap. 3. pag. 384. Juris utrùm is a writ that lieth for the incumbent whose predecessour hath alienated his lands or tenements the divers uses of which writ see in Fitzh nat br fol. 48. Jurisdictiou Jurisdictio is a dignity which a man hath by a power to doe Iustice in causes of Complaint made before him And there be two kinds of Jurisdictions the one that a man hath by reason of his fee and by vertue thereof doth right in all plaints concerning his fee The other is a Iurisdiction given by the Prince to a Bayliff this division I have in the Custumary of Normandie cap. 2. which is not unapt for the practice of our Commonwealth for by him whom they call a Bayliff wee may understand all that have commission from the Prince to give judgement in any cause The Civilians divide jurisdictionem generally in imperium jurisdictionem and imperium in merum et mixtum Of which you may read many especiall tractats written of them as a matter of great difficulty and importance Justes cometh of the French Joustes i. decursus and signifieth with us contentions between Martial men by speares on horsback anno 24 H. 8. cap. 13. Justice Justiciarius is a Freneh word and signifieth him that is deputed by the King to doe right by way of judgement the reason why he is called Justice and not Judex is because in ancient time the latine word for him was Justitia and not Justiciarius as appeareth by Glanv lib. 2. cap. 6. Roger Hoveden part poster suorum annalium fo l 413. a. and divers other places which appellation we have from the Normans as appeareth by the Grand Custumary cap. 3. And I doe the rather note it because men of this function should hereby consider that they are or ought to be not Justi in their judgements but in abstract ipsa justitia howbeit I hold it well if they perform their office in concreto Another reason why they are called Justiciari◠with us and not Judices is because they have their authority by deputation as Delegates to the King and not jure magistratus and therefore cannot depute others in their stead the Justice of the Forest only excepted who hath that liberty especially given him by the Statute anno 32 H. 8. cap. 35. for the Chancellor Marshal Admiral and such like are not called Justiciarii but Judices of these Justices you have divers sorts in England as you may perceive here following The manner of creating these Justices with other appurtenances read in Fortescue cap. 51. Justice of the Kings bench Justiciarius de Banco Regis is a Lord by his office and the chief of the rest wherefore he is also called Capitalis Justiciarius Angliae his office especially is to hear and determine all plees of the Crown that is such as concern offences committed against the crown dignity and peace of the King as treasons felonies mayhems and such like which you may see in Bracton lib. 3. tractat 2. per totum and in Stawnf treatise intituled The plees of the Crown from the first chapter to the fifty one of the first Book But either it was from the beginning or by time is come to passe that he with his Assistants heareth all personal actions and real also if they be incident to any personal action depending before them See Cromptons jurisd fol. 67. c. Of this Court Bracton lib. 3. ca. 7. nu 2. saith thus Placita vero civilia in rem personam in Curia domini Regis terminanda coram diversis Justiciariis terminantur Habet enim plures curias in quibus diversae actiones terminantur illarum curiarum habet unam propriam sicut aulam regiam justiciariios capitales qui proprias causos Regis terminant aliorum omnium par querelam vel per privilegium sive libertatem ut si sit aliquis qui implacitari non debeat nisi coram domino Rege This Justice as it seemeth hath no patent under the broad Seal For so Cromp. saith ubi supra He is made only by Writ which is a short one to this effect Regina Johanni Popham militi salutem Sciatis
quod constituimus vos Justiciarium nostrum capitalem ad placita coram nobis terminandum durante bene-placito nostro Teste c. And Bracton in the place now recited speaking of the Common Plees saith that Sine Warranto jurisdictionem non habet which I think is to be understood of a Commission under the great Seal This Court was first called the Kings Bench because the King sat as Judge in it in his proper Person and it was moveable with the Court. See anno 9 H. 3. cap. 11. More of the jurisdiction of this Court see in Crompton ubi supra See Kings Bench. The oath of the Justices see in the Statute anno 18 Edw. 3. stat 4. See Oatb Justice of common plees Justiciarius communium placitorum is also a Lord by his Office and is called Dominus Justiciarius communium placitorum and he with his assistants originally did hear and determine all causes at the Common law that is all civil causes between common persons as well personal as real for which cause it was called the Court of Common Plees in opposition to the Plees of the Crown or the Kings Plees which are special and appertaining to him only Of this and the Jurisdiction hereof see Cromptons jurisdiction fol. 91. This Court was alwayes setled in a place as appeareth by the Statute anno 9 H. 3. cap. 11. The oath of this Justice and his Associates see anno 18 Edw. 3. Stat. 4. See Oath Justice of the Forest Justiciarius Forestae is also a Lord by his Office and hath the hearing and determining of all offences within the Kings Forest committed against Venison or Vert of these there be two whereof the one hath jurisdiction over all the Forests on this side Trent the other of all beyond The chiefest point of their Jurisdiction consisteth upon the articles of the Kings Charter called Charta de Foresta made anno 9 H. 3. which was by the Barons hardly drawn from him to the mitigation of over cruel ordinances made by his predecessors Read M. Camdens Brit. pag. 214. See Protoforestarius The Court where this Justice sitteth and determineth is called the Justice seat of the Forest held every three years once whereof you may read your fill in M. Manwoods first part of Forest lawes pag. 121. 154. pag. 76. He is sometimes called Justice in Eyre of the Forest See the reason in Justice in Eyre This is the only Justice that may appoint a Deputy per statutum anno 32 H. 8. cap. 35. Justices of Assise Justiciarii ad capiendas Assisas are such as were wont by special Commission to be sent as occasion was offered into this or that County to take Assises the ground of which polity was the ease of the Subjects For whereas these actions passe alway by Jury so many men might not without great hinderance be brought to London and therefore Justices for this purpose were by Commission particularly authorised and sent down to them And it may seem that the Justices of the Common Plees had no power to deal in this kind of businesse until the statute made anno 8 Richard 2. cap. 2. for by that they are enabled to take Assises and to deliver Gaols And the Justices of the kings Bench have by that Statute such power affirmed unto them as they had one hundred years before that Time hath taught by experience that the better sort of Lawyers being fittest both to judge and to plead may hardly be spared in term time to ride into the Countrey about such businesse and therefore of later years it is come to passe that these commissions ad capiendas Assisas are driven to these two times in the year out of term when the Justices and other may be at leasure for these Controversies also wherupon it is also fallen out that the matters wont to be heard by more general Commission of Justices in Eyr are heard all at one time with these Assises which was not so of old as appeareth by Bracton l. 3. c. 7. 2. nu Habet etiam Justiciarios itinerantes de Comitatu in Comitatum quandoque adomnia placita quandoque ad quaedam specialia sicut Assisas c. et ad Gaolas deliberandas quandoque ad unicam vel duas non plures And by this means the Justices of both Benches being justly to be accounted the fittest of all others others their Assistants as also the Sergeant at law may be imployed in these affaires who as gravest in years so are they ripest in judgement and therefore likest to be void of partiality for being called to this dignity they give over practice anno 8 R. 2. cap. 3. but this alway to be remembred that neither Justice of either Bench nor any other may be Justice of Assise in his own Countrey anno 8 R. 2. cap. 2. anno 33 H. 8. cap. 24. Lastly note that in these dayes though the self same men disparch businesse of so divers natures and all at one time which were wont to be performed by divers and at severall times yet they doe it by several commissions Cromptons jurisdictions fol. 210. For those who be in one word called Justices of Circuit and twice every year passe by two and two through all England have one Commission to take Assises another to deliver Gaols another of Oyer and Terminer That Justices of Assise and Justices in Eyre did antiently differ it appeareth anno 27 Ed. 3. cap. 5. and that Justices of Assise and Justices of Gaol delivery were divers it is evident by anno 4 Ed. 3. cap. 3. The oath taken by Justices of Assise is all one with the oath taken by the Justices of the Kings Bench. Old abridgement of Statutes titulo Sacramentum Justiciariorum See Oath Justices of Oyer and Terminer Justiciarii ad audiâ—ndum Terminandum were Justices deputed upon some especial or extraordinary occasion to hear and deter mine some or more causes Fitzherbert in his natura brevium saith that the Commission a'Oyer and Terminer is directed to certain persons upon any great assembly insurrections hainous demeanure or trespasse committed And because the occasion of granting this commission should be maturely weighed is provided by the Statute anno 2 Ed. 3. cap. 2. that no such commission ought to be granted but that they shall be dispatched before the Justices of the one Bench or other or Justices errants except for horrible trespasses and that by the special favour of the King The form of this commission see in Fitzh natur brev fol. 110. Justices in Eyre Justiciarii itinerantes are so termed of the French Erre i. iter which is an old word as a grand erre i. magnis itineribus proverbially spoken the use of these in antient time was to send them with Commission into divers Counties to hear such causes especially as were termed the Plees of the Crown and therefore I must imagine they were so sent abroad for the ease of the Subjects who must else have been
Mines fol. 322. a. to be received in a sute before issue joyned upon an ayde prier Idem casu Dutchy of Lancaster fol 221. b. to be never in nonage codem f. 218. b. that a man indicted may not wage battel with him Idem casu nimes fol. 335. b. that no man upon any right may enter upon him being in possession but must be put to sute Dyer f. 139. nu 33 to seise the lands of his tenents that alienate without license Plowd casu Mines fol. 322. a. that no subject may wage his law against him Broke chose in action 9 Coke lib. 4. fol. 93. to present in the right of the youngest coparcener being his ward before the elder Plowd casu Mines fol. 332. b. fol. 333. a. that a benefice by institution is not full against him Coke Digbies c. f. 79. a. not to find pledges for the persecuting of any action For he cannot be amerced Fitzh na br f. 31. F. fo 47. C. To sue in what Court he will Fitz. na b. f. 7. B. 32. E. To sue the writ Ne adm ttas after 6 months Reg. or f. 31. a. That a mans villain having remained in his ancient demesn by the space of a year may not be recovered by the writ de nativo habendo Fitzh nat br fol. 79. A. To grant an office with the habendam post mortem alterius Dyer fol. 295. nu 1. to shorten the ordinary time of summons being 15 daies in writ of right Brit. ca. 121. To give what honour or place he listeth to his subjects anno 31 H. 8. cap. 10. To be owner of a forest See Forest To have free warren See Warren Not to be owted of his freehold Cromptons justice of peace fol. 59. b. et 16. a. To araign a man being both a Traitor and a Felon rather upon the Treason than upon the Felony because he may have the whole Escheats idem eodem fol. 99. a. To warrant the day of appearance to his subject being in his service and summoned to appear at a day certain Fitzh nat br fol. 17. a. Divers of these and many others did belong fisco imperatorum which you may find in the Digest de jure fisci et Co. lib. 10. tit 1. Besides these also many moe may be observed to belong unto our King out of the laws which I leave to their collection which are of longer reading and more painfull industry Prerogative of the Archbishop of Canterbury or York prerogativa Archiepiscopi Cantuariensis seu Eboracensis is an especial preeminence that these Sees have in certain cases above ordinary Bishops within their Provinces And that of the Archbishop of Canterbury principally consisteth of these points First in the confirmation of all elections made of Bishops by the Dean and Chapter of all Cathedral Churches as also the consecration of them Next in a power of visiting his whole Province of assembling Synods of supplying the defects and negligences of inferiour Bishops of receiving appeals from their Courts of assigning coadjutors to those Bishops that grow weak and insufficient to discharge their function of appointing Vicars general to those that have either none or an insufficient man employed in that office and of dispensing in all Ecclesiastical cases wherein the laws bear dispensation of taking oath of every Bishop at his confirmation to perform canonical obedience unto the See of Canterbury But these seem to belong unto him by an ordinary Archiepiscopal authority Certain other things there be that appertain unto him more than ordinarily to other Archbishops as the original calling of any person in any cause belonging to spiritual jurisdiction out of any part of his Province though not appealed But this point is now limited by the Statute made anno 23 H. 8. cap. 9. The receiving of an appeal from the lowest Judge Ecclesiastical within his Province immediately The appointing of a Keeper or Guardian of the spiritualties during the vacancy of any Bishoprick By which means all Episcopal rites of the Diocess for that time do belong unto him as Visitation Institution to benefices and such like The visitation of every Dioces within his province when and in what order it pleaseth him As also of all other privileged Churches The probat of Testaments and granting of Administrations in case where the party deceased hath goods of any considerable value out of the Diocess wherein he dyeth And that value is ordinarily five pounds except it be otherwise by composition between the said Archbishop and some other Bishop as in the Diocess of London it is ten pounds The probat of every Bishops Testament or the administration of his goods dying intestate though not having any goods chattels or debts without the compass of his own jurisdiction The bestowing of any one dignity or Prebend in any Cathedral church upon the creation of a new Bishop that himself thinketh good to make choice of There may be more particulars of this prerogative that I know not but these may be sufficient to express the thing that I desire to declare Who so desireth to read these more more at large and other privileges of this Church in temporal matters may resort to the book intituled De antiquitate Britannicae Ecclesia nominatim de privilegiis Ecclesiae Cantuariensis historia and especially to the eighth chapter of the said book pa. 25. Prerogative Court curia Praerogativa Archiepiscopi Cantuariensis is the Court wherein all Wills be proved and all Administrations taken that belong to the Archbishop by his prerogative which see in Prerogative And if any contention do grow between two or more touching any such Will or Administration the cause is properly debated and determined in this Court The Judge of this court is called Judex Curia praerogativâ— Cantuariensis The Archbishop of York hath also the like power and court which is termed his Exchequer but far inferiour to this in countenance and profit Prescription praescriptio is a course or use of any thing for a time beyond the memory of man as the exposition of the Law terms doth define it Kitchin fol. 104. saith thus Prescription is when for continuance of time whereof there groweth no memory a particular person hath particular right against another particular person And custom is where by continuance of time beyond memomory divers persons have gotten a right with whom agreeth Sir Edward Coke lib. 4. fol. 32. a. And usage is by continuance of time the efficient cause of them both and the life of both prescription and custome Thus saith Kitchin But as in the Civil law so I think likewise in the common Prescription may be in a shorter time As for example where the Statute anno 1 H. 8. cap. 9. saith that all actions popular must be sued within three years after the offence committed and the Statute anno 7 ejusdem cap. 3. That four years being past after the offence committed in one case and one year in another no sute can be commenced
Wesenbecius in their Paratitles π. finium regund And though Justinian in his first division omitteth the third member yet afterward in the same title § 20. he saith as these men do viz. that there be certain actions naming these and other of like nature that seem to have a mixture c. Of this you may also read Britton at large in his Chapter 71. And this division of action springeth from the object or matter whereabout it consisteth Wesenb parat π. de actio obliga The Author of the new Tearms of Law defineth a mixt action to be a sute given by the Law to recover the thing demanded and also the damages for wrong done as in Assise of novel disseisin the which writ if the disseisour make a feoffment to another the disseiseur shall have a remedie against the disseisour and the feoffer or other land tenant to recover not only the land but the dammages also See the test These words occasion me to shew that actio is by the Civil law called mixta in two respects Nam quadam mistae sunt quòd in se actionis in rem actionis personalis naturam habeant in üs actor reus uterque sit l. actionis verbo § fina w. de obliga actio Tales sunt actio familiae excisc communi dividun finium regun quaedam verò mistae sunt quòd rem simul poenam persequantur ut in actione vi bonorum rapt legis Aquiliae ea quae datur contra eos qui legata vel fidei commissa sacrosanctis Ecclesiis relicta solvere distulerunt And of this latter 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 one riseth out of the common civil law the other from some Edict of the Pretour Who being Chief Justicer had authority for his year to supply the defects of the general law by his especial edicts And a division not unlike this may be made in the Common law of England one growing from the antient customary law the other from some Statute Brook tit Action sur le statut Action of the final cause is divided into civill poenal mixt Cook vol. 6. fol. 61. a. Action civil is that which tendeth only to the reeovery of that which by reason of any contract or other like cause is due unto us as if a man by action seek to recover a sum of mony formerly lent c. Action penal is that aimeth at some penalty or punishment in the party sued be it corporal or pecuniary As in the Action legis Aquiliae in the Civil law wherby in our Common law the next Friends of a man feloniously slain or wounded shall pursue the law against the murtherer or him that wounded him to condign punishment Bract. li. 3. ca. 4. Action mixt is that which seeketh both the thing whereof we are deprived and a penalty also for the unjust deteining of the same as in an Action of Tithe upon the Statute anno 2 3 Ed. 6. cap. 13. Action is also according to the form of Petition divided into such as are conceived to recover either the simple value of the thing chalenged or the double the triple or quadruple Bract. li. 3. ca. 3. nu 6. So doth Decies tantum lye against Embracers Fitz. not br fol. 171. and against Jurours that take mony for their verdict of one part or the other or both And to be short any other action upon a Statute that punisheth any offence by restitution or fine proportionable to the transgression Action is prejudicial otherwise called preparatorie or else principal prejudicial is that which groweth from some question or doubt in the principal as if a man sue his younger Brother for Land descended from his Father and it be objected unto him he is a Bastard Bract. lib. 3 ca. 4. nu 6. For this point of bastardy must be tryed before the cause can further proceed and therefore is termed praejudicialis quia prius judicanda Action is either awncestrel or personal Stawnf pl. cor 59. Auncestrel seemeth to be that which we have by some right descending from our Ancestor upon us and that personall which hath the beginning in and from our selves Action upon the Case actio super casu is a general Action given for redress of wrongs done without force against any man and by Law not especially provided for For where you have any occasion of sute that neither hath a fit name nor certain form already prescribed there the Clerks of the Chancery in antient time conceived a fit form of Action for the fact in question which the Civilians call actionem in factum and our common Lawyers action upon the case In factum actiones dicuntur ideo quia quod nomine non possunt exprimere negotium id rei gesta enarratione declarant citra formulam ac solennitatem ullam Cuiacius Gothofredus ad Rubricam de praescriptis verbis And whereas in the Civill Law there are two sorts actionis in factum one termed actio in factum ex praescriptis verbis the other actio in factum praetoria Wesenb parat de praescrip verb. the former growing upon words passed in contract the other more generally upon any fact touching either contract or offence formerly not provided against this Action upon the Case seemeth in use to be more like to the Pretours Action in factum than to the other because in the perusal of the new book of Entries and Brooks his Abridgement hereupon I perceive that an Action upon the Case lyeth as well against offences as breach of contract Of this see more in the word Trespass Action upon the Statute actio super Statuto is an Action brought against a man upon breach of a Statute to be resembled in mine opinion to any Action given in the law Imperial either upon edictum praetoris ple biscitum or senatusconsultum For as the Pretour so the common People in comitiis tributis and the Senators or Nobility in curia vel senatu had power to make laws whereupon the Pretour or other Judges permitted Action And even so our high Court of Parliament maketh Statutes against such offences as are either newly grown or more and more increased and our Judges entertain their Plees that commence their actions against the breakers of them Action is perpetual or temporal perpetua vel temporalis and that is called perpetual the force whereof is by no time determined Of which sort were all civil Actions among the antient Romans viz. such as grew from Laws decrees of the Senate or constitutions of the Emperors whereas actions granted by the Pretor died within the year de perpet tempor actio in Instit So we have in England perpetual and temporary actions and I think all may be called perpetual that are not expresly limited As divers Statutes give actions so
but of a Rent the same Actions lye as do of Land as the Case requireth The third difference is that an Annuity is never taken for Assets because it is no Free-hold in law neither shall be put in execution upon a Statute Merchant Statute Staple or Elegit as a Rent may Dyer fol. 345. num 2. speaketh also to this effect Annise-seed semen anisi is a medicinal seed not unknown so called of the herb anisum whereof it is the fruit Of this he that listeth may read Gerards Herbal lib. 2. ca. 397. It is noted among the garbleable drugs and spices anno 1 Jaco ca. 19. Anoisance aliâs Noisance aliâs Nusance nocumentum commeth of the French nuisance i. incommodum noxa and hath a double signification being used as well for any hurt done either to a publick place as high-way bridge or common river or to a private by laying any thing that may breed infection by incroaching or such like means as also for the Writ that is brought upon this transgression whereof see more in Nusance The word Anoysance I find anno 22 H. 8. c. 5. AP Apostate capiendo is a Writ that lyeth against one that having entred and professed some order of Religion breaketh out again and wandereth the Country contrary to the Rules of his Order For the Abbot or Prior of the House certifying this into the Chancery under their Common seal and praying this Writ directed to the Sheriff for the apprehension of such Offendour and for the delivery of him again to his Abbot or Prior or their lawfull Attorney were wont to obtain the same The form wherof with other circumstances you shall find in the Register orig fol. 71 267. and Fitzh natur br fol. 233. C. Apparlement commeth of the French pareilement i. similiter perinde itidem and signifieth a resemblance as apparlment of War anno 2 R. 2. stat 1. ca. 6. Appeal appellum commeth of the French appellor i. accire accersere nominare evocare clamore aliquem flagitare Itsignifieth in our Common-law as much as accusatiâ— with the Civilians For as in the Civil-law Cognisance of criminal Causes is taken either upon inquisition denunciation or accusation so in ours upon indictment or appeal indictment comprehending both inquisition and denunciation And accusation or appeal is a lawfull declaration of another mans crime which by Bracton must be felony at the least in the Common-law before a competent Judge by one that setteth his name to the Declaration and undertaketh to prove it upon the penalty that may ensue of the contrary To declare the whole course of an Appeal were too much for this Treatise Wherefore for that I must refer you to Bracton lib. 3. tract 2. c. 18. cum sequent Britton c. 22 23 24 25. and to S. Thomas Smith l. 3. de repub Anglo c. 3. and lastly to Stawnf pl. cor l. 2. c. 6 7 c. usque 17. An Appeal is commenced two waies either by VVrit or by Bill Stawnf ubi supra fol. 46. And it may be gathered by him fol. 148. that an Appeal by VVrit is when a VVrit is purchased out of the Chancery by one to another to this end that he appeal a third of some felony committed by him finding Pledges that he shall do it and deliver this VVrit to the Sheriff to be recorded Appeal by Bill is when a man of himself giveth up his accusation in writing to the Vicount or Coroner offering to undergo the burthen of appealing another therein named This point of our Law among others is drawn from the Normans as appeareth plainly by the grand Customary cap. 68. where there is set down a solemn discourse both of the effects of this Appeal viz. the order of the combat and of the tryal by inquest of which by the Common-law of England it is in the choise of the Defendant whether to take See the new book of entries verbo Appel and the book of Assises fo 78. Appel Appeal of mahem appellum mahemit is an accusing of one that hath maimed another But that being no felony the Appeal thereof is but in sort an action of Trespass because there is nothing recovered but dammages Bracton calleth this appellum de plagis mahemâ—o and writeth of it a whole Chapter l. 3. tract 2. ca. 24. See S. Edw. Cook 4. vol. fo 43. a. Appeal of wrong imprisonment appellum de pace imprisonnamento is used by Bracton for an action of wrong imprisonment whereof he writeth a whole tractat lib. 3. tractat 2. ca. 25. Appeal appellatio used in our Common law divers times as it is taken in the Civil Law which is a removing of a cause from an inferiour Judge to a superiour as appeal to Rome an 24. H. 8. ca. 12. an 1 Eliz. ca. 1. But it is more commonly used for the private accusation of a murtherer by a party who had interest in the party murthered or of any felon by one of his complices in the fact See Approver Appendant appendens is any thing belonging to another as accessorium principali with the Civilians or adjunctum subjecto with the Logicians An Hospital may be appendant to a manor Fitz. nat br f. 142. Common of fishing appendant to a free hold Westm 2. ca. 25. anno 13. Ed. 1. Appertinances pertinentiae commeth of the French appertenir i. pertinere It signifieth in our common law things both corporall belonging to another thing as to the more principall as Hamlets to a chief Mannor common of pasture turbarie piscarie and such like and incorporeall as liberties and services of Tenents Brit. c. 39. Where I note by the way that he accounteth common of Pasture turbary and piscary to be things corporal Look Common Apportionment Apportionamentum is a dividing of a Rent into parts according as the land whence the whole rent issueth is divided among two or more See the new terms of Law Apprentice Appenticius commeth of the French aprenti i. tyro rudis discipulus or of the verb apprendre i. addiscere discere and signifieth with us one that is bound by covenant in word or writing to serve another man of Trade for certain years upon Condition that the Artificer or man of Trade shall in the mean time endeavour to instruct him in his Art or Mysterie S. Thomas Smith in his Book de rep Ang. l. 3. c. 8. saith that they are kind of Bondmen differing only in that they be Servants by Covenant and for a time Of these you may read divers Statutes made by the wisedome of our Realm which I think superfluous here to mention Appropriation appropriatio proceedeth from the French approprier i. aptare accommodare and properly signifieth in the law of England a severing of a benefice ecclesiastical which originally and in nature is juris diviâ—i in patrimonio nullius to the proper and perpetual use of some Religious House or Dean c. and Chapter Bishoprick or College And the reason of
be speciall in this signification as if an especial Commission should be granted to certain as in antient times they often were Bracton lib. 3. c. 11. in fine for the taking of an assise upon one disseisin or two any thing done in the Court before them a man would say it was done at such an especial assise And in this very signification doth Glanvile use it lib. 9. c. 12. in these words Sicontra dominum suum non infra assisam tunc distringitur â—se occupator c. and lib. 13. cap. 32. in these words cùm quis itaque infra assisam domini regis i. infra tempus à domino rege de consilio procerum ad hoc constitutum quandoque majus quandoqne minus censetur alium injuste sine judicio disseisiverit c. Of this word Assise you may read in Mâ— Skene de verbo signif de verbo Assise and by him understand that in Scotland also it is diversly used viz. in five several significations And touching the fifth signification he hath these words An Assise is called a certain number of men lawfully summoned received sworn and admitted to judge and discern in sundry civil causes like as Perambulations Cognitions Molestations pourpestrure division of Lands serving of Briefs and in all and sundry Criminal causes decided and tryed by an assise whereof there are two kinds one ordinarily in use which may be called a little assise of the number of 13 or 15 persons the other called a Great assise which consisteth of 25. Persons c. The rest is very worth the reading Assisa continuanda is a Writ directed to the Justices assigned to take an assise for the continuance of the cause in case where certain Records alleged cannot in time be procured by the party that would use it Reg. orig f. 217. Assisa praeroganda it is a Writ directed to the Justices of Assise for the stay of proceeding by reason of the Kings business wherein the party is imployed Register orig fo 208 and 221. Association associatio is a patent sent by the King either of his own motion or at the sure of the Plaintiff to Justices appointed to take assises of novel disseisin or of Oyer and Terminer c. to take others unto them as fellows collegues in that business The derivation is plain the examples and sundry uses hereof you may find in Fitzh nat br fol. 185. E. fo 111. B. but more particularly in the Reg. orig fol. 201 202 205 206 207 223 224. Assoile absolvere commeth of the French absouldre and signifieth to deliver or set free from an excommunication Stawnf pl. cor fol. 72. in words to this effect otherwise the Defendant should remain in Prison untill the Plaintiff were assoiled that is delivered from his excommunication Assumpsit is a voluntary promise made by word whereby a man assumeth or taketh upon him to perform or pay any thing unto another This word containeth any verbal promise made upon consideration which the Civilians express by divers words according to the nature of the promise calling it sometime pactum sometime sponsionem sometime promissionem pollicitationem or constitutum the word seemeth to be drawn from the Latine assumptio quae significat professionem l. Ï€. ad municipalem AT Attache attachiare commeth of the French attacher i. figere nectere illigare defigere alligare In our Common law it signifieth to take or apprehend by Commandement or Writ And M. Lambert in his Eirenarch lib. 1. cap. 16. maketh this difference between an Arrest and an Attachment that an arrest proceedeth out of lower Courts by Precept and an attachment out of higher Courts by Precept or Writ and that a Precept to arrest hath these formal words ducifacias c. and a Writ of attachment these words praecipimus tibi quòd attachies talem habeas cum coram nobis c. whereby it appeareth that he which arresteth carrieth the party arrested to another higher Person to be disposed of forthwith he that attacheth keepeth the Party attached and presenteth him in Court at the day assigned in attachment Yet I observe out of Master Kitchin that an attachment issueth out of a Court Baron which is a low Court cap. Attachment in Court Baron fol. 79. Another difference there is that an arrest lyeth only upon the body of a man and an attachment sometime upon his goods as shall be shewed in the sequel It may be likewise asked how an attachment and a capias do differ and how an attachment and a cape and an attachment and a Distress First that an attachment differeth from a capias it appeareth by Kitchin in these words fol. 79. Note that in a Court Baron a man shall be attached by his goods and a capias shall not go out thence whereby I gather that an attachment is more general taking hold of a mans goods and a capias of his body only Then an attachment differeth from a cape in this because a cape be it cape magnum or cape parvum taketh hold of immoveables as Lands or Tenements and are properly belonging to action real as you may gather out of their forms in Fitzh nat br whereas attachment hath rather place in Actions personal as Bracton plainly setteth down lib. 4. tract 4. cap. 5. num 3. Where nevertheless it appeareth that a cape may be likewise used in an Action personal An attachment as is formerly said taketh hold of moveable goods or the body For it appeareth by Kitchin fol. 263. that a man may be attached by an hundred Sheep Read Skene de verbo signif verbo Attachiamentum Now it followeth to shew how Attachment differeth from a Distress For so it doth as may be shewed out of Kitchin fol. 78. where he saith that Process in Court Baron is Summons Attachment and Distress our of the Old nat br fol. 27. where it is said that a Process in a quare impedit is Summons Attachment and one Distress and again fol. 28. where speaking of the Writ Ne admittas he saith thus And the Process is one prohibition and upon the prohibition an Attatchment or Distress and fol. 32. in a Writ of Indicavit you have these words And after the attachment returned the Distress shall go out of the Roles of the Justices Bracton on the other side l. 5. tract 3. c. 4. num 2. sheweth that both attachiamentum magnum cape districtiones sunt Of which opinion Fleta also is li. 5. ca. 24. § si autem aed. But there also he saith that attachiamentum est districtio personalis cape magnum districtio realis So that by his opinion districtio is genus to Attachment Britton in his 26 Chapter hath words to this effect But in Attachment of Felony there commeth no Distress otherwise than by the body And if the Sheriff return in the cases aforesaid that the Trespassours have nothing in his Bayliwick by the which they may be distreined it must be awarded that he
lawyers signifying him to whose use any other man is infeoffed in any Lands or Tenements See the new book of entries verbo uses and in Replevin fol. 508. colum 3. verbo Trespas fol. 606. fol. 123. a. b. colum 3. num 7. CH Chafe wax is an Officer in Chauncery that fitteth the wax for the sealing of the Writs such other instruments as are there made to be sent out This Officer is borrowed from the French For there calefactores cerae sunt qui regiis literis in Cancellaria ceram imprimunt Corasius Chase chacea commeth of the French chasser i. sectari belluas apros cervos It signifieth two things in the Common Law First as much as actus in the Civil law that is a driving of cattel to or from any place as to chase a distress to a fortlet Old nat br fol. 45. Secondly it is used for a receit for Deer and wild beasts of a middle nature between a Forest and a Park being commonly lesse than a Forest and not endued with so many liberties as the Courts of attachment Swain mote and Justice seat and yet of a larger compas and stored with greater diversity both of keepers and wild beasts or game than a park And Crompton in his book of Jurisdictions fol. 148. saith that a Forest cannot be in the hands of a subject but it forth with loseth the name and becommeth a chase and yet fol. 197. he saith that a subject may be lord and owner of a Forest which though it seem a contrariety yet be both his sayings in some sort true For the King may give or alienate a Forest to a subject yet so as when it is once in the subject it leeseth the true property of a Forest because that the Courts called the Justice seat the Swain more and Attachment forthwith do vanish none being able to make a Lord chief Justice in Eyr of the Forest but the King as M. Manwood well sheweth parte 2. of his Forest Lawes cap. 3. 4. And yet it may be granted in so large a manner that there may be Attachment and Swainmote and a Court equivalent to a Justice seat as appeareth by him in the same chapter num 3. So that a Chase differeth from a Forest in this because it may be in the hands of a subject which a Forest in his proper true nature cannot and from a Park in that that it is not inclosed hath not onely a larger compasse and more store of game but of Keepers also and Overseers See Forest Chaleâ—ge calumnia cometh of the French chalenger i. sibâ— asserere is used in the Common law for an exception taken either against persons or things persons as in assise to the Jurors or any one or more of them or in a case of felony by the prisoner at the barre Smith de reâ— Angl. lib. 2. cap. 12. Briton cap. 52. Bracton lib. 2. tract 2. cap. 22. Against things as a declaration Old nat br fol. 76. Chalenge made to the Jurors is either made to the array or to the polles Chalenge to the array is when the whole number is excepted against as partially empaneled chalenge to or by the polle when some one or more are excepted against as not different Terms of the Law Chalenge to the Jurours is also divided into Chalenge principal and Chalenge per cause i. upon cause or reason Challenge principal otherwise by Stawnf pl. cor fol. 157. 158. called peremptorie is that which the Law alloweth without cause alleged or farther examination Lamberd Eirena lib. 4. cap. 14. as a prisoner at the barr arraigned upon felonie may peremptorily chalenge to the number of 20. one after another of the Jurie empaneled upon him alleging no cause but his own dislike and they shall be still put off and new taken in their places But in case of high treason no challenge peremptorie is allowed anno 33 H. 8. cap. 23. Fortescue saith that a prisoner in this case may challenge 35 men c. 27. but that law was abridged by anno 25 H. 8. cap. 3. I cannot here omit to note some difference that in mine opinion I observe between Chalenge principal and Chalenge peremptorie finding peremptorie to be used only in matters criminal and barely without cause alledged more than the prisoners own phantasie Stawnf pl. cor fol. 124. but principal in civil actions for the most part and with naming of some such cause of exception as being found true the law alloweth without farther scanning For example if either party say that one of the Jurors is the son brother cousin or tenent to the other or espoused his daughter this is exception good and strong enough if it be true without farther examination of the parties credit And how far this Chalenge upon children reacheth you have a notable example in Plowden casu Vernon against Manners fol. 425. Also in the plee of the death of a man and in every action real as also every action personal where the debt or dammages amount to 40 marks it is a good Chalenge to any man that he cannot dispend 40 shillings by the year of Free-hold anno 11 H. 7. cap. 21. and Terms of the Law verbo Chalenge The ground of this Chalenge you may see farther in Fleta lib. 4. cap. 8. Chalenge upon reason or cause is when the party doth allege some such exception against one or more of the Jurors as is not forthwith sufficient upon acknowledgement of the truth thereof but rather arbitrable and considerable by the rest of the Jurors as for example if the son of the Juror have married or espoused the daughter of the adverse party Terms of the Law ubi supra This Chalenge per cause seemed to be tearmed by Kitchin chalenge for favour fol. â—2 or rather Chalenge for favour is said there to be one species of Chalenge per cause where you may read what chalenges be commonly accounted principal and what not See the new book of Enteries verbo Chalenge and the Old nat br fol. 158. 159. That this word Chalenge is long sithence latined by the word calumnia appeareth by Bracton lib. 3. tract 2. cap. 18. lib. 4. tract 3. cap. 6. lib. 5. cap. 6. But I doubt Priscian will never forgive him that first strook this blow at him Of Chalenge you may farther read Fleta lib. 1. cap. 32. § Ad quem diem seq Chamberdekins are Irish beggers an 1 H. 5. c. 8. Chamberer is used for a Chamber-maid an 33 H. 8. cap. 21. Chamberlain camerarius vel camberlingus cometh of the French chambellan i. cubicularius vel praefectus cubiculi It is diversly used in our Cbronicles Laws and Statutes as Lord great Chamberlain of England Lord Chamberlain of the Kings house the Kings Chamberlain anno 13 Ed. 1. cap. 41. anno 17 R. 2. cap. 6. to whose office it especially appertaineth to look to the Kings chambers and wardrope and to govern the under ministers
Nisi prius which came to his hand that term which received he bindeth into a bundle and bestoweth them The Custos breviam also maketh entry of the Writs of Covenant and the Concord upon every Fine and maketh forth exemplifications and Copies of all Writs and Records in his office and of all Fines levied The Fines after they be ingrossed the parts thereof are divided between the Custos brevium and the Chirographer whereof the Chirograper keepeth alwayes with him the Writ of Covenant and the note the Custos brevium keepeth the concord and the foot of the Fine upon the which foot the Chirographer do because the Proclamations to be endorsed when they be all proclaimed This Office is in the Princes gift Custos placitorum coronae Bracton l. 2. cap. 5. This seemeth to be all one with him whom we now call Custos rotulorum Of this Officer I find mention in the Writ odio acia Regist orig fol. 133. b. Custos rotulorum is he that hath the custodie of the Rolls or Records of the Sessions of Peace and as some think of the commission of the Peace it self Lamb. Eirenarch lib. 4. ca. 3. pag. 373. He is alwayes a Justice of Peace and Quorum in the County where he hath his Office Idem eodem and by his Office he is rather termed an Officer or Minister than a Judge because the Commission of the Peace layeth by expresse words this especial charge upon him quòd addies loca praedicta brevia praecepta praecessus indictamenta prodictacoram te dictis sociis tuis venire facias Idem eodem where read a competent tract of other things belonging to this Office Custos of the spiritualities custos spiritualitatis vel spiritualium is he that exerciseth the Spiritual or Ecclesiastical Jurisdiction of any Dioces during the vacancie of the See the appointment of whom by the Canon Law appertaineth to the Dean and Chapter ca. ad abolendā Extra Ne sede vacante aliquid innovetur But with us in England to the Arch-bishop of the Province by Prescription Howbeit divers Deans and Chapters if M. Gwin say truly in the Preface to his Readings do challenge this by auncient Charters from the Kings of this Land Cutter of the tayls is an Officer in the Exchequer that provideth Wood for the Tayles and cutteth the sum paid upon them and then casteth the same into the Court to be written upon DA DAmmage cometh of the French dam or domage signifying generally any hurt or hinderance that a man taketh in his estate But in the Common law it particularly signifieth a part of that the Jurours be to enquire of passing for the Plaintiff or Demandant in a Civil action be it personal or real For after verdict given of the principal cause they are likewise asked their consciences touching costs which be the charges of sute called of the Civilians expensae litis and Dammages which conte in the hindrance that the Plaintiff or Demandant hath suffered by means of the wrong done to him by the Defendant or Tenant Dane-gilt Dane-gold or Dane-gelt Dane-geldum is compounded of Dane and gelt i. pecunia and was a Tribute layd upon our Ancestors of twelve pence for every hide of Land through the Realm by the Danes that once got the masterie of us in regard as they pretended of clearing the Seas of Pyrates which greatly annoyed our Land in those dayes Cambd. Britan. 83. with whom agree the laws of Edward set out by M. Lamberd cap. 11. Stow in his annals pag. 118. saith that this tribute came to 40000. pounds by the year and that it was released by Ed. the Confessor The Author of the new terms of Law saith that this tribute began in the time of King Etheldred who being sore distressed by the continual invasion of the Daue to procure his peace was compelled to charge his people with importable payments For first he gave them at five several payments 113000. pounds and afterward granted them 48000. pounds yeerly See Roger Hoveden parte poster suorum annalium in Henrico secundo fol. 344. a. Dareyn continuance See Continuance Darein is a corrupt word of the French dernier i. ultimus Darrein presentment ultimae prasentatio See Assise or Darreyn presentment Dates dactyli is the plumme or fruit of the tree in Latine called palma in English the Date-tree well known to most men by sight And he that will farther understand the nature or diversities of this fruit may repair to Gerards Herbal lib. 3. cap. 131. They be numbred among Spices and Drugs to be garbled 1 Jacob. 19. Day dies is sometime used in the Law for the day of appearance in Court either originally or upon assignation and sometime for the returns of Writs For example dayes in bank be dayes set down by Statute or order of the Court when Writs shall be returned or when the party shall appear upon the Writ served And of this you may read the Statutes anno 51 H. 3. cap. 1. 2. Marlb cap. 12. anno 52 H. 3. and the Statute de anno bissextili anno 21 H. 3. and lastly anno 32 H. 8. cap. 21. To be dismissed without day is to be finally discharged the Court Kitchin fol. 193. He had a day by the Roll Kitchin fol. 197. that is he had a day of appearance assigned him Day Yeer and waste See Dies and Year DE Deadly feud feuda is a profession of an unquenchable hatred until we be revenged even by the death of our enemy It is deduced from the German word Feed which as Hotoman saith in verbis feudalibus modo bellum modo capitales inimicitias significat This word is used anno 43 Eliz. cap. 13. Dead pledge mortuum vadium See Mori gage Dean decanus is an Ecclesiastical Magistrate so called of the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because he hath power over ten Canons at the least Howbeit in England we use to call him a Dean that is next under the Bishop and chief of the Chapter ordinarily in a Cathedral Church and the rest of the Society or Corporation we call Capitulum he Chapter But this word how diversly it is used read Lindwood titulo de judic ca. pri verbo Decani rurales where Dean Rurals are said to be certain persons that have certain jurisdiction Ecclesiastical over other Ministers and Parishes neer adjoyning assigned unto them by the Bishop and Archdeacon being placed and displaced by them As there be two foundations of Cathedral Churches in England the old and the new the new be those which Henry the eighth upon suppression of Abbyes transformed from Abbot or Prior and Covent to Dean and Chapter so be there two means of creating these Deans For these of the old foundation are brought to their dignity much like Bishops the King first ending out his Congé d'eslire to the Chapter the Chapter then chusing the King yeelding his royal assent and the Bishop confirming him and giving his mandate to install him
the bestowing or assuring of a Dower See Dower But it is sometime used Metaphorically for the setting forth or severing of a sufficient portion for a Vicar toward his perpetual maintenance when the Benefice is appropriateâ— See Appropriation And the Statute An. 15. R. 2. c. 5. Endowment de la plus belle parte is where a man dying seised of some lands holding in Knights service and other some in socage the Widow is sped of her Dower rather in the lands holding in soccage than Knights service Of this read Litleton more at large lib. 1. cap. 5. Enfranchisement cometh of the French Franchise i. libertas and is in a manner a French word of it self it signifieth in our Common law the incorporating of a man in any society or body politick For example he that by Charter is made Denizen of England is said to be infranchised and so is he that is made a Citizen of London or other City or Burgesse of any Town Corporate because he is made partaker of those liberties that appertain to the Corporation whereinto he is infranchised So a villain is infranchised when he is made free by his Lord and made capable of the benefits belonging to the free-men Englecerie Engleceria is an old abstract word signifying nothing else but to he an English-man For example if a man be privily slain or murdered he was in old time accounted Francigena which word comprehendeth every alien until Englecerie was proved that is until it were made manifest that he was an English-man A man may marvel what meaning there might be in this but Bracton cleareth the doubt who in his third book tract 2. cap. 15. num 3. telleth us that when Canutus the Danish King having setled his estate here in peace did at the request of our Barons disburden the land of his army wherein he accounted his greatest safety and conditioned with them that his Countrey-men which remained here should continue in peace and the more to secure that that for every Francigena under which word as is above said he comprehended all outlandish men and women and especially Danes that was secretly murthered there should be levied to his Treasurie 66 marks out of the village where the murther was committed or out of the Hundred if the Village were not able to pay it and further that every man murthered should be accounted Francigena except Englecery were proved which how it was to be proved look the seventh Number in the same Chapter And see also Horns mirrour of Justices lib. 1. cap. del office del coroner and Fleta lib. 1. cap. 30. This Engleceris for the abuses and troubles that afterward were perceived to grow by it was clean taken away by a Statute made Anno 14. Edward 3. capite quarto Enheritance See Inheritance Enquest Inquifitio is all one in writing with the French word and all one in signification both with the French and Latine Howbeit it is especially taken for that inquisition that neither the Romans nor French men ever had use of that I can learn And that is the Enquest of Jurors or by Jurie which is the most usual trial of all causes both Civil and Criminal in our realm For in causes Civil after proof is made on either side so much as each party thinketh good for himself if the doubt be in the fact it is referred to the discretion of twelve indifferent men empaneled by the Sheriff for the purpose and as they bring in their Verdict so judgement passeth For the Judge faith the Jurie findeth the fact thus then is the Law thus and so we judge For the Enquest in causes criminal see Jurie and see Sir Thomas Smith de Repub. Anglor lib. 2. cap. 19. An Enquest is either of office or at the mise of the party Stawn pl. cor lib. cap. 12. Entendment cometh of the French entendiment i. intellectus ingenium It signifieth in our Common law so much as the true meaning or signification of a word or sentence See of this Kitchin fol. 224. Entayl feudum talliatum cometh of the French entaille i. inscisus and in our Common law is a substantive abstract signifying Fee-tail or Fee-intailed Litleton in the second Chapter of his Book draweth Fee-tail from the verb Talliare which whence it cometh or whether it will I know not whereas in truth it must come from the French taille i. sectura or tailler i. scindere secare And the reason is manifest because Fee-tail in the Law is nothing but Fee abridged scanted or currelled as you would say or limited and tyed to cettain conditions Taille in France is metaphorically taken for a tribute or subsidie v. Lupanum de Magistratibus Francorum lib. 3. cap. Talea See Fee See Tail Enterpleder Interplacitare is compounded of two French words entre i. inter and pleder i. disputare and it signifieth in our Common law as much as cognitio praejudicialis in the Civil Law that is the discussing of a point incidently falling out before the principal cause can take end For example two several persons being found Heirs to Land by two several offices in one Countie the King is brought in doubt to whether livery ought to be made and therefore before Livery be made to either they must enterplead that is formerly trie between themselves who is the right Heir Stawnf praeroga cap. 12. See more examples in Broke titulo Enterpleder Entire tenancie is contrary to several Tenencie signifying a sole possession in one man whereas the other signifieth joynt or common in more See Broke several Tenencie See the new book of Entries verbo Entier tenancie Entry Ingressus cometh of the French entree i. introitus ingressus aditus and properly signifieth in our Common law the taking possession of Lands or Tenements See Plowden Assise of fresh force in London fol. 93. b. It is also used for a Writ of possession for the which see Ingressu And read West also parte 2. Symbol titulo Recoveries Sect. 2. 3. Who there sheweth for what things it lyeth and for what things it lyeth not Of this Britton in his 114. Chapter writeth to his effect The Writs of entry savour much of the right of poverty As for example some be to recover customes and services in the which are contained these two words solet debet as the Writs Quo jure Rationalibus divisis rationabili est overio with such like And in this place of entrie there be three degrees The first is where a man demandeth Land or Tenements of his own seisin after the Term is expired The second is where one demandeth Lands or Tenements let by another after the Term expired The third where one demandeth Lands or Tenements of that Tenent that had entry by one to whom some Ancestor of the Plaintiff did let it for a Term now expired According to which degrees the Writs for more fit remedy are varied And there is yet a fourth form which is withour degrees and in case of a
permitteth it is by Law guilty of the fault committed by him that escapeth be it Felony Treason or Trespass Negligent escape is when one arrested and afterwards escapeth against his will that arrested him and is not pursued by fresh sute and taken again before the party pursuing hath lost the sight of him Idem cap. 27. But there read more of this matter for there be doubts worth the consideration And of the course of punishment by the Civil Law in this point read in Practica criminali Claudii de Battandier reg 143. read also Cromptons Justice fol. 35. b. fol. 36. 37. and read the new Terms of Law There is an escape of beasts likewise and therefore he that by charter is quietus de escapio in the forrest is delivered of that punishment which by order of the forrest lyeth upon those whose beasts be found within the land forbidden Cromptons Jurisdict fol. 196. Eschequer Scaccarium cometh of the French Eschequier i. abacus tabula lusoria and signifieth the place or Court of all receipts belonging to the Crown and is so termed as I take it by reason that in ancient times the accomptants in that Office used such Tables as Arithmetitians use for their calculations for that is one signification of Abacus amonst others Polydor. Virgil. lib. 9. hist Anglc. saith that the true word in Latine is Statarium and by abuse called Scaccarium In mine opinion it may well seem to be taken from the German word Schatz signifying as much as Thesaurus or Fiscus And from this fountain no doubt springeth the Italian word Zecchâ—â— signifying a mint and Zecherit aliâs Zechieri the Officers thereunto belonging Descis Geâ—uen 134. M. Cam. in his Britan. pag. 113. saith that this Court or office took the name à tabula ad quam assidebant proving it out of Gervasius Tilburiensis whose words you may read in him This Court is taken from the Normans as appeareth by the Grand Custumarie cap. 56. where you may find the Eschequier thus described The Eschequier is called an assembly of High Justiciers to whom it appertaineth to amend that which the Bailiffes and other meaner Justiciers have evil done and unadvisedly judged and to do right to all men without delay as from the Princes mouth Skene de verbo Significatione verbo Scaccarium hath out of Paulus Aemilius these words Saccarium dicitur quasi S. at arium quòd homines ibâ— in jure sistantur vel quòd sit stataria perennis curia cum caeterae curiae essent indictivae nec loco nec tempore state where he saith also of himself that in Scotland the Eschequer was stable but the other Session was deambulatorie before James the fist qui instituit Statariam curiam cum antea esset indictiva he addeth farther Others think that Scaccarium is so called à similitudine ludi Scaccorum that is the play of the Chests because many persons meet in the Chequer pleading their causes one against the other as if they were fighting in arraied battel Others think that it cometh from an old Saxon word Scata as writeth S. Thomas Smith which signifieth Treasure taxation or Imposts whereof account is made in the Chequer This Court consisteth as it were of two parts whereof one is conversant especially in the judicial hearing and deciding of all causes appertaining to the Princes Cofers anciently called Scaccarium computorum as Ockam testifieth in his lucubrations the other is called the receipt of the Exchequer which is properly imployed in the receiving and payment of money Crompton in his Jurisdictions fol. 105. defineth it to be a Court of Record wherein all causes touching the revenues of the Crown are handled The officers belonging to both these you may find named in M. Camddens Britannia cap. Tribunalia Angliae to whom I refer you The Kings Exchequer which now is setled in Westminster was in divers Counties of Wales anno 27 H. 8. cap. 5. but especially cap. 26. Escheate Eschaeta cometh of the French escheoir i. cadere accidere excidere and signifieth in our Common law any lands or other profits that fall to a Lord within his Manor by way of forfeiture or the death of his Tenent dying without Heir general or especial or leaving his Heir within age or unmarried Magna Charta c. 31. Fitzh nat br f. 143. T c. Escheat is also used sometime for the place circuit within the which the King or other Lord hath escheats of his Tenents Bracton lib. 3. tract 2. cap. 2. pupilla oculi parte 2. cap. 22. Escheat thirdly is used for a VVrit which lieth where the Tenent having estate of Fee-simple in any Lands or Tenements holden of a superior Lord dyeth seised without Heir general or especial For in this case the Lord bringeth this VVrit against him that possesseth these Lands after the death of his Tenentâ— and shall there by recover the same in lieu of his services Fitzh nat br fol. 144. These that we call Escheats are in the Kingdom of Naples called Excadentia or bona excadentiala as Baro locat excadentias eo modo quo locatae fuerunt ab antiquo it a quod in nullo debita servitia minuantur non remittit Gallinam debitam Jacobutius de Franchis in praeludiis ad feudorum usum tit 1. num 29. num 23. v. Maramae singularia verbo Excademia And in the same signification as we say the Fee is escheated the Feudists use feudum aperitur lib. 1. feudal titulo 18. § 2. titul 15. titul 26. § 4. Escheatour Escaetor cometh of Escheat and signifieth an officer that observeth the Escheats of the King in the County whereof he is Eseheatour and certifieth them into the Exchequer This officer is appointed by the L. Treasurer and by Letters Patents from him and contineth in his office but one year neither can any be Escheatour above once in three years anno 1 H. 8. cap. 8. anno 3. ejusdem cap. 2. See more of this officer and his authority in Cromptons Justice of peace See anno 29 Ed. 1. The form of the Escheatours oath see in the Register original fol. 301. b. Fitzh calleth him an officer of record nat br fol. 100. C. because that which he certifieth by vertue of his office hath the credit of a Record Officium escaetriae is the Escheatourship Regist orig fol. 259. b. Escuage Scutagium cometh of the French escu i. clypeus a buckler or shield In our Common law it signifieth a kind of Knights service called service of the Shield whereby the Tenent holding is bound to follow his Lord into the Scotish or Welsh wars at his own charge for the which see Chivalrie But note that Escuage is either uncertain or certain Escuage uncertain is properly Escuage and Knights service being subject to homage fealty ward and marriage so called because it is uncertain how often a man shall be called to follow his Lord into those wars and again what his charge will be in
joyntly to the Husband and the Wife and after to the Heirs of their bodies whereby the Husband and Wife be made joynt tenants during the coverture Coke lib. 3. Butler and Bakers case f. 27. b. See Frank mariage Joynture is also used as the abstract of Joynt tenants Coke lib. 3. the Marquess of Winchesters Case fol. 3. a. b. Junctura is also by Bracton and Fleta used for joyning of one bargain to another Fleta lib. 2. cap. 60. touching the self-same thing and therefore joynture in the first signification may be so called in respect that it is a bargain of livelihood for the wife adjoyned to the contract of mariage Journ Choppers anno 8 Hen. 6. cap. 5. be regraters of yarn Whether that we now call yarn were in those daies called journ I cannot say but Choppers in these dayes are well known to be changers as choppers of Churches c. Journeyman commeth of the French Journee that is a day or dayes work which argueth that they were called Journeymen that wrought with others by the day though now by Statute it be extended to those likewise that covenant to work in their occupation with another by the year anno quinto Elizabeth cap. quarto IS Issue Exitus commeth of the French Issir i. emanare or the Substantive Issue i. exitus eventus It hath divers applications in the common Law sometime being used for the children begotten between a man and his wife sometime for profits growing from an amercement or fine or expences of sute sometime for profits of lands or tenements West 2. anno 13. Edw. prim cap. 39. sometime for that point of matter depending in sute whereupon the parties joyn and put their cause to the trial of the Jury and in all these it hath but one signification which is an effect of a cause proceeding as the children be the effect of the mariage between the Parents the profits growing to the King or Lord from the punishment of any mans offence is the effect of his transgression the point referred to the trial of twelve men is the effect of pleading or processe Issue in this last signification is either general or special General issue seemeth to be that whereby it is referred to the Jury to bring in their verdict whether the Defendant have done any such thing as the Plaintiff layeth to his charge For example if it be an offence against any Statute and the Defendant plead not culpable this being put to the Jury is called the General issue and if a man complain of a private wrong which the Defendant denieth and pleads no wrong nor disseisin and this be referred to the 12. it is likewise the General issue Kitchin fol. 225. See the Doctor and Student fol. 158. b. The Special issue then must be that where special matter being alleged by the Defendant for his defence both the parties joyn thereupon and so grow rather to a Demurrer if it be quaestio Juris or to tryal by the Jury if it be quaestio facti See the new Book of Entries verbo Issue JU Juncture See Joynture Jure patronatus See the new Book of Entries verbo Jure patronatus in quare impedit fol. 465. col 3. Jurie Jurata commeth of the French Jurer i. jurare it signifieth in our Common law a company of men as 24. or 12. sworn to deliver a truth upon such evidence as shall be delivered them touching the matter in question Of which trial who may and who may not be empanelled see Fitzh nat brev fol. 165. D. And for better understanding of this point it is to be known that there be three manner of trials in England one by Parliament another by Battel and the third by Assize or Jury Smith de Repub. Anglorum lib. 2. cap. 5 6 7. touching the two former read him and see Battel and Combat and Parliament the trial by Assise be the action civil or criminal publike or private personal or real is referred for the fact to a Jury and as they find it so passeth the Judgement and the great favour that by this the King sheweth to his Subjects more than the Princes of other Nations you may read in Glanvil lib. 2. cap. 7. where he called it Regale beneficium clement is principis de consilio procerum populis indultum quo vitae hominum Status integritats tam salubriter consulitur ut in jure quod quis in libero soli tenemento possidet retinendo duelli casum declinare possint homines ambiguum c. see the rest This Iury is not used only in Circuits of Justices Errant but also in other Courts and matters of Office as if the Escheatour make inquisition in any thing touching his Office he doth it by Jury or Inquest if the Coroner inquire how a subject found dead came to his end he useth an Inquest the Justices of Peace in their Quarter Sessions the Sheriff in his County and Turn the Bayliff of a Hundred the Steward of a Court Leet or Court Baron if they inquire of any offence or decide any cause between party and party they doe it by the same manner So that where it is said that all things be triable by Parliament Battel or Assise Assise in this place is taken for a Jury or Enquest empanelled upon any cause in a Court where this kind of trial is used and though it be commonly deemed that this custom of ending and deciding causes proceed from the Saxons and Britons and was of favour permitted unto us by the Conquerour yet I find by the grand Customarie of Normandy cap. 24. that this course was used likewise in that Country For Assise is in that Chapter defined to be an assembly of wise men with the Bayliff in a place certain at a time assigned forty dayes before whereby Justice may be done in causes heard in the Court. Of this custom also and those Knights of Normandie Johannes Faber maketh mention in the Rubrique of the Title de militari testamento in Institut this Jury though it appertain to most Courts of the Common law yet is it most notorious in the half-year Courts of the Justices errants commonly called the great Assises and in the quarter Sessions and in them it is most ordinarily called a Jury And that in civil causes whereas in other Courts it is oftener termed an Enquest and in the Court Baron the Homage In the general Assise there are usually many Juries because there be store of causes both civil and criminal comonly to be tried whereof one is called the Grand Jury and the rest Petit Juries whereof it seemeth there should be one for every Hundred Lamb. Eirenar lib. 4. cap. 3. pag. 384. The Grand Jury consisteth ordinarily of 24. grave and substantial Gentlemen or some of them Yeomen chosen indifferently out of the whole Shire by the Sheriff to consider of all Bils of Inditement preferred to the Court which they doe either approve by writing upon them these
at least the remedy for the same is likest there to be had by some sodain inrode and happing of such recompence of the injury received as may most conveniently be lighted upon See Reprisalls See Marches Marquis Marchio by the opinion of Hotom verbo Marchio in verbis feudalibus commeth of the German March i. limes signifying originally as much as Custos limitis or Comes praefectus limitis of these Zasius thus writeth de Marchione nihil compertum est nisi quod Gothicum vocabilum putamus And afterwards thus Hujusmodi Marchionum sive ut nos appellamus Margraphiorum origo in limitaneos praepositos sive duces referenda Margraphii dicti quòd limitibus quos vulgo marken appellamus graphii td est praepositi fuerunt c. For in those Territories that have naturally no bounds of great strength or defence there is need of wise and stout men toward their borders for the keeping out of Neighbour enemies But here in England though we have a L. Warden of the Marches northward and a Warden of the Cinque Ports toward the South-east and were wont to have Lord Marchers between us and Wales that served this turn yet those which we call Marquises are Lords of more dignity without any such charge and are in honor and account next unto Dukes At this day I know but one in England and that is the Marques of Winchester being of that noble family of the Powlets See Cassanaeus de consuetud Burg. pag. 15. Marrow was a Lawyer of great account that lived in Henry the seventh this daies whose learned Readings are extant but not in print Lambert Eirenarch lib. 1. cap. 1. Marterns see Furre Master of the Rolls Magistri rotulorum is an Assistant unto the Lord Chancellour of England in the High Court of Chancery and in absence heareth Causes there and giveth Orders Cromptons Jurisdiction fol. 41. His Title in his Patent as I have heard is Clericus parvae bagae Custos rotulorum domus conversorum This Domus conversorum is the place where the Rolls are kept so called because the Jews in ancient time as there were any of them brought to Christianity were bestowed in that House seperately from the rest of their Nation But his office seemeth originally to have sprung from the safe keeping of the Rolls or Records of Indictments passed in the Kings Courts and many other things He is called Clark of the Rolls anno 12 Rich. 2. cap. 2. and in Fortescue his Book cap. 24. and no where Master of the Rolls untill anno 11 H. 7. cap. 20. and yet an 11. ejusdem cap. 25. he is also called Clark In which respect Sir Thomas Smith l. 2. cap. 10. de Repub Angl. well saith That he might not unfitly be called Custos Archivorum He seemeth to have the bestowing of the offices of the six Clarks anno 14 15 Henry the eight cap. 1. Master of the Mint an 2 Hen. 6. cap. 14. he is now called the warden of the Mint whose office see in Mint Master of the Court of Wards and Liveries is the chief principal officer of the Court of Wards and Liveries named and assigned by the King to whose Custody the Seal of the Court is committed He at the entring upon his office taketh an oath before the Lord Chancellor of England well and truly to serve the King in his Office to minister equal Justice to rich and poor to the best of his cunning wit and power diligently to procure all things which may honestly and justly be to the Kings advantage and profit and to the augmentation of the rights and Prerogative of the Crown truly to use the Kings Seal appointed to his Office to endeavour to the uttermost of his power to see the King justly answered of all such profits rents revenues and issues as shall yearly rise grow or be due to the King in his Office from time to time to deliver with speed such as have to do before him not to take or receive of any person any gift or reward in any Case or matter depending before him or wherein the King shall be party wherby any prejudice losse hinderance or disherison shall be or grow to the King an 33 H. 8. cap. 33. Master of the Horse is he that hath the rule and charge of the Kings stable being an Office of high account and alwaies bestowed upon some Noblemen both valiant and wise This Officer under the Emperors of Rome was called Comes sacri stabuli The master of the Horse is mentioned anno 39 Eliz. ca. 7. and an 1 Edw. 6. cap. 5. Master of the Posts is an Officer of the Kings Court that hath the appointing placing and displacing of all such through England as provide Post horse for the speedy passing of the K. messages other businesses in the thorow-fair towns where they dwel as also to see that they keep a certain number of convenient Horses of their own and when occasion is that they provide others therewith to furnish such as have warrant from him to take Post-horses either from or to the Seas or other borders or places within the Realm He likewise hath the care to pay them their wages and make their allowance accordingly as he shall think meet This Officer is mentioned an 2 E. 6. cap. 3. Master of the Armoury is he that hath the care and oversight of his Majesties Armour for his person or Horses or any other provision or store thereof in any standing Armouries with command and placing or displacing of all inferiour Officers thereunto appertaining Mention is made of him anno 39 Elizabeth cap. 7. Master of the Jewel-house is an Officer in the Kings houshold of great credit being allowed bouge of Court that is dyet for himself and the inferiour Officers viz. Clarks of the Jewel-house and a special lodging or Chamber in Court having charge of all plate of Gold of Silver double or parcel guilt used or occupied for the Kings or Queens board or to any Officer of account attendant in Court and of all Plate remaining in the Tower of London of Chains and loose Jewels not fixed to any garment Mention is made of this Officer an 39 Eliz. c. 7. Master of the Kings Houshold magister hospitii is in his just Title called Grant master of the Kings Houshold and beareth the same Office that he did that was wont to be called Lord Steward of the Kings most honourable Houshold anno 32 Henry 8. cap. 39. Whereby it appeareth that the name of this Officer was then changed and Charles Duke of Suffolk President of the Kings Councel then enjoying that office was so to be called ever after so long as he should possess that office Master of the Ordinance anno 39 Eliz. ca. 7. is a great officer to whose care all the Kings Ordinance and Artillery is committed being some great man of the Realm and expert in marshal affairs Master of the Chancery Magister Cancellariae is an assistant
therefore to be noted that the Church of Rome under pretence of her supremacy and the dignity of Saint Peters chair grew to such an incroaching that there could not be a benefice were it Bishoprick Abbathy or other of any worth here in England the bestowing whereof could escape the Pope by one means or other In so much as for the most part he granted out Mandates of Ecclesiastical livings before they were void to certain persons by his Bulls prerending therein a great care to see the Church provided of a Successor before it needed Whence it grew that these kinds of Bulls were called Gratiae expectativae or Provisiones whereof you may read a learned discourse in Duarenus that worthy Civilian in his tractate De beneficiis lib. 3. ca. 1. and in his treatise De immunitate ecclesiae Gallicanae These provisions were so rife with us that at the last King Edw. the third that heroical Prince not disgesting so intollerable an oppression made a statute in the 25 year of his reign stat 5. cap. 22. and another stat 6. ejusdem anni cap. pâ—i and a third anno 27. against those that drew the Kings people out of the Realm to answer of things belonging to the Kings Court and another anno 28. statu 2. c. 1 2 3 4. to the like effect whereby he greatly restrained this liberty of the Pope Yet such was the wantonness that grew out of his power and the impatience of Princes in those daies that he still adventured the continuance of these provisions in so much as King Richard the second made likewise a statute against them in the Twelfth year of his reign ca. 15. and the 13 year stat 2. cap. 2. making mention of the said first Statute of Edward the third ratifying the same and appointing the punishment of those that offended against it to be perpetual banishment forfeiture of their lands tenements goods and chattels as by the same doth more at large appear And again in the 16 year of his reign cap. 5. to meet more sully with all the shifts invented to defraud these former Statutes he expresseth the offence more particularly and setteth the same punishment to it that he ordained in the last former Statute For there toward the end he hath these words if any purchase or pursiew or do to be purchased or siewed in the Coure of Rome or elsewhere any such translations processes and sentences of excommunication Bulls Instruments or any other things c. After him K. Henr. the fourth in like manner grieved at this importunie by other abuses not fully met with in the former Statutes in the second year of his reign cap. 3. and 4. addeth certain new cases and layeth upon the offendours in them the same censure whereunto for shortness sake I refer you admonishing likewise to adde the statute an 9 ejusdem cap. pri an 7. cap. 9. 8. anno 9 ejusdem cap. 8. anno 3 H. 5. cap. 4. Out of which statutes have our Professors of the Common law wrought many dangers to the Iurisdiction Ecclesiastital threatning the punishment contained in the statute anno 27 Edw. 3. 38 ejusdem almost to every thing that the court Christian dealeth in pretending all things dealt within those Courts to be the disherison of the Crown from the which and none other fountain all Ecclesiastical Iurisdiction is now derived whereas in truth Sir Tho. Smith saith very rightly and charitably that the uniting of the Supremacy Ecclesiastical and Temporal in the King utterly voideth the use of all those statutes Nam cessante ratione cessat lex And whatsoever is now wrought or threatned against the Iurisdiction Ecclesiastical by colour of the same is but in emulation of one Court to another and by consequent a derogation to that authorit from which all Iurisdiction is now derived and the maintenance whereof was by those Princes especially purposed But of this read Sir Thomas Smith lib. 3. de Rep. Ang. cap. 9. Some later statutes do cast this punishment upon other Offenders as namely the statute anno 1 Eliz. cap. prim upon him that denieth the Kings supremacy the second time c. and the statute anno 13 Eliz cap. 2. upon him that affirmeth the authority of the Pope or that refuseth to take the oath of Supremacy and the Statute an 13 Eliz. ca. 1. such as be seditious talkers of the inheritance of the Crown or affirm the Queen Majestie to be an heritique And the word is applyed most commonly to the punishment first ordained by the statutes before mentioned for such as transgressed them but in latter times imposed upon other offences For that where it is said 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 transgress the statute made an 16 R. 2. c. 5. which is commonly called the statute of premunire which kind of reference is not unusual in our statutes For example I shew only the statute anno 5 Elizabeth cap. 5. where it is enacted that if any man preach or teach by writing that the common counsell of the Realm do by that statute forbid flesh to be eaten as of necessity for the saving of mans soul that he shall for such preaching c. be punished as they be which be spreaders of false news having reference thereby to those statutes which contain the punishment of such offenders Now touching the Etymologie of this word Praemuuire some think it proceedeth from the strength given to the Crown by the former statutes against the usurpation of forain and unnateral power which opinion may receive some ground from the statute anno 25 Edward 3. stat 6. cap. pri But other think it to grow from the verb Praemonere being barbarously turned into praemunire which corruption is taken from the rude Interpreters of the Civil and Canon-laws who indeed do use the effect Praemunire many times for the efficient cause Praemonere according to the proverb He that is well warned is half armed And of this I gather reason from the form of the writ which is thus conceived in the Old nat br fol. 143. Praemunire facias praefatum praepositum I. R. precuratorem c. quod tunc sint coram nobis c. for these words can be referred to none but parties charged with the offence Praepositus ville is used sometime for the Constable of a town or petit Constable Crom. Iurisd fol. 205. howbeit the same author fol. 191. seemeth to apply it otherwise for there quatuor homines praepositi be those four men that for every town must appear before the Iustices of the Forest in their circuit It is used sometime for a Reeve See Reeve Praerogative of the King praerogativa regis is that especial power preeminence or privilege that the King hath in any kind over and above other persons and above the ordinary course of the Common law in
and the Statute 31 Elizabeth cap. 5. saith by way of correcting the two former Statutes that all actions c. brought upon any Statute the penalty whereof belongeth to the King shall be brought within two years after the offence committed or else be void And the statute anno 39 Eliz. cap. prim secund saith that actions brought after two years by any common person or after three years by the King alone for decay of husbandry or tillage shall be of no force Whosoever offendeth against any such statute and doth escape uncalled for two years or three years in one case of the two later of these three statutes may justly be said to have prescribed an immunity against that action The like may be said of the statute made anno 23 Elizabeth cap. primo which saith that all offences comprised in that statute made in the 13 year of Elizab. cap. 2. are inquirable before both Justices of peace and of Assise within one year and a day after the offence committed Also the title that a man obtaineth by the passing of five years after a fine acknowledged of any land or tenements may justly be said to be obtained by prescription And whereas the Statute anno 8 R. 2. ca. 4. saith that a Iudge or Clerk convicted for false entring of plees c. may be fined within two years the two years being ended he prescribeth against the punishment of the said Statute and whereas the Statute anno 11 H. 7. saith that he which will complain of maintenance or embracery whereby perjury is committed by a lury must do it within six daies those six daies ended the parties prescribe and whereas the Statute anno 5 Ed. 6. saith that a man being not indicted within 3 months of any offences there mentioned touching Service and Sacraments he shall be clear from thence forward the three months being ended he prescribeth and the same may be said of the Statute anno 5 Ed. 6. cap. 5. which saith that a man shall not be indited of any offence there mentioned touching the decay of tillage after three years And whereas it is ordained by the statute anno 8 H. 6. cap. 9. that those which keep possession of lands by force after 3 years possession held by themselves and their ancestors shall not be subject to the arbitrament of Disseisours there set down I hold this a prescription likewise against those censures v. anno 23 H. 6. cap. 15. Lastly a servant prescribeth liberty after a year Bracton li. 1. ca. 10. nu 3. and the right that is gotten in any Stray to a Lord of a manor no man claiming it within the year and day after proclamation made is an usucapion or prescription See Action perpetual and temporal And see Cromptons Justice of peace fol. 173. b. ubi habebis festum But see one rule for all in Lam. Eirenarch lib. 4. cap. 5. pag. 469. Of this prescription and the learning touching the same you may read a solemn report in S. Edwards Cooks Luttrels case vol. 4. f. 84. b. seq Presentation Praesentatio is used properly for the act of a patron offering his Clerk to the Bishop to be instituted in a benefice of his gift the form whereof see in the Register original fol. 322. a. Presentment is a meer denunciation of the Iurors themselves or some other Officer as Iustice Constable Searcher Surveyours c. without any information of an offence inquirable in the Court whereunto it is presented See Lamberd Eirenarcha lib. 4. cap. 5. pag. 467. President praeses is used in the Common law for the Kings Lieutenant in any Province or Function as President of Wales of York Barwick Presient of the Kings Councel Anno 22 Hen. 8. cap. 8. anno 24 Hen. 8. cap. 3 14. Preignotary Protonotarius is a word that seemeth to be made either of two French words prime or primâ—er i. primus and Notaire i. Notarius tabellio Or of two Latine words prae notarius quasi primus aut principalis notarius The office is likewise borrowed from the later Romans who made his name of half Greek and half Latine viz. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. primus principalis and Notarius It is used in our Common law for the chief Clerks of the Kings Courts whereof three be of the Common plees and one of the Kings Bench. For the Pregnotary of the Common plees anno 5 H. 4. cap. 14. is tearmed the chief Clerk of that Court He of the Kings Bench recordeth all actions civil sued in that Court as the Clerk of the Crown-office doth all criminal causes Those of the Common plees do enter and inroll all manner of Declarations pleadings assises and judgements and all actions the same term that the apparence is made Also they make out all judicial writs as the Venire facias after issues joyned and Habeas corpus for the bringing in of the Jury after it is returned upon the Venire facias They also make forth writs of executions and of seisin writs of Supersedeas for appearance to Exigents as well as the Exigents and writs of privileges for removing of causes from other inferiour Courts of Record in case where the party hath cause of privilege Also writs of Procedendo of Scire facias in all cases and writs to enquire of dammages and all process upon prohibitions and upon writs of Audita quaerela and false judgement Finally they inroll all Recognisances acknowledged in that Court and all common Recoveries and may make exemplifications of any record the same term before the roles be delivered from them Prender commeth of the French trendere i. accipere acceptare capere prehendere It signifieth in our Common law sometime a power or right to take a thing before it be offered as such things as lye in Prender or such as lye in render West parte 2. titule Fines Sect. 126. where you have these words If the Lord grant the services of his Tenent by fine or otherwise the Lord before atturnment shall have such things as lye in Prender as the ward of the body of the heir and of the Land escheats c. but not such things as lye in render as rents and reliefs heriots and other services For he cannot avow for them before the attournment Prender de Baron signifieth literally in barbarous French to take a Husband But it is used in our Common law as an exception to disable a woman from pursuing an Appeal of murder against the Killer of her former Husband Stawnf pl. cor lib. 3. cap. 59. The reason whereof whether it be because by her second mariage she may justly be thought to have given up the interest she had in her former husband or for that she is now covert again or for both I leave to consideration Prender del profits signifieth verbatim to take the profits It signifieth substantively the taking of the profits See Cromptons jurisdict folio 185. See Pernour of profits Prest is used for some
nonage and is in that respect allowed by law to deal for him in the managing his affairs as to be his Guardian if he hold of any in socage and in the redresse of any wrong done unto him be it by his Guardian if he be ward and hold in Chivalry or any others Stat. West pri cap. 48. 3 Ed. pri and Westm 2. cap. 15. anno 13 Ed. pri Profe alià s Prove is used for an Enquest anno 28 Ed. 3. cap. 13. Proclamation Proclamatio signifieth a notice publickly given of any thing whereof the King thinketh good to advertise his subjects So it is used anno 7 Rich. 2. cap. 6. Proclamation of rebellion is a publick notice given by the officer that a man not appearing upon a Subpoena nor an attachment in the Starchamber or Chancery shall be reputed a rebel except he render himself by a day assigned Cromptons jurisd fol. 92. See Commission of rebellion Proclamation of a fine is a notize openly and solemnly given at all the Assises that shall be holden in the County within one year after the ingrossing of the fine and not at the four general quarter sessions And these Proclamations be made upon transcripts of the fine sent by the Iustices of the common plees to the Iustices of Assise and the Iustices of peace West part 2. symbo titulo Fines sect 132. where also you may see the form of the Proclamation Proclamare est palam et valde clamare used by Tully Livie and the Civilian Ï€. Quibus ad liberta proclamare non licet And Proclamator signifieth him qui litem intendit vel causamagit Cicero de oratore lib. pri Non enim causidicum nescio quem neque proclamaâ—orem aut rebulam hoc sermone conquirimus c. I read in Fitz. nat br fol. 85 C. that the Kings proclamation is sufficient to stay a subject from going out of the Realm See the force of proclamations in an 31 H. 8. c. 8. see also proclamations in divers cases New book of Entries verb. Proclamations Proctors of the Clergy procuratores cleri are those which are chosen and appointed to appear for Cathedral or other Collegiate Churches as also for the common Clergy of every Dioces at the Parliament whose choise is in this sort First the King directeth his writ to the Arch-bishop of each Province for the summoning of all Bishops Deans Arch-deacons cathedral and collegiat churches and generally of all the Clergy of his Province after their best discretion and judgement assigning them the time and place in the said writ Then the Arch-bishops proceed in their accustomed course One example may serve to shew both The Arch-bishop of Canterbury upon his writ received directeth his letters to the Bishop of London as his Dean provincial 1 sect statuimus de poenis verb. tauquam in glos first citing himself peremptorily and then willing him to cite in like manner all the Bishops Deans Arch-deacons cathedral and collegiate churches and generally all the Clergy of his Province to the place and against the day prefixed in the writ But directeth withall that one Proctor sent for every cathedral or collegiate Church and two for the body of the inferiour Clergy of each Dioces may suffice And by vertue of these Letters authentically sealed the said Bishop of London directeth his like Letters severally to the Bishop of every Diocesse of the Province citing them in like sort and commanding them not only to appear but also to admonish the said Deans and Arch-deacons personally to appear and the Cathedrall and collegiat Churches as also the common clergy of the Diocesse to send their Proctors to the place and at the day appointed and also willeth them to certifie the Archbishop the names of all and every so monished by them in a Shedule annexed to their Letters certificatory The Bishops proceed accordingly and the Cathedrall and collegiat Churches as also the Clergy make choise of their Proctors which done and certified to the Bishop he returneth all answerably to his charge at the day These Proctors of the Clergy howsoever the case of late daies is altered had place and suffrage in the lower house of Parliament as well as the Knights Citizens Barons of the Cinque ports and Burgesses For so it plainly appeareth by the statute anno 21 R. 2. cap. 2. cap. 12. And sithence they were removed the Church hath daily grown weaker and weaker I pray God that in short time she famish not but that her liberties be better maintained Procurator is used for him that gathereth the fruit of the benefice for another man anno 3 R. 2. stat 1. cap. 2. And procuracy is used for the specialty whereby he is authorized Ibid. They are at this day in the West parts called Proctors Profer profrum vel proferum is the time appointed for the accompts of Shyreves and other officers in the Exchequer which is twice in the year anno 51. H. 3. statute quins And it may be gathered also out of the Regist fol. 139. in the writ De Atturnato Vicecomitis pro profro faciendo I read also of profers anno 32 H. 8. cap. 21. in these words Trinity term shall begin the Monday next after Trinity Sunday whensoever it shall happen to fall for the keeping of the essoynes profers returns and other ceremonies heretofore used and kept In which place profer seemeth to signfie the offer or indeavour to proceed in action by any man whom it concerneth so to do See Britton cap. 2. fol. 50. b. 55. a. fol. 80. b. and Fleta lib. 1. cap. 38. sect Utlagati et seq Profer the half mark See Half mark Profession professio is in the Common law used particularly for the entring into any religious Order of Friers c. New book of Entries verbo Profession Profits apprender See Prender Prohibition prohibitio is a writ framed for the forbidding of any Court either spiritual or secular to proceed in any cause there depending upon suggestion that the cognition thereof belongeth not to the said Court Fitz. nat br fol. 39. G. but is most usually taken especially in these daies for that writ which lyeth for one that is impleaded in the Court Christian for a cause belonging to the temporal jurisdiction or the cognisance of the Kings court whereby as well the party and his Councel as the Iudge himself and the Register or forbidden to proceed any farther in that cause for that it appertaineth to the dis-inheritage to the Crown of such right as belongeth unto it In how many cases this lyeth see Broke hoc titulo and Fitz. na br fol 93. seq This writ and the praemunire might in these daies well be spared for they were helps to the Kings inheritance and Crown when the two swords were in two divers hands Whereas now both the Iurisdictions being setled in the King there is small reason of either except it be to weary the subject by many quirks and delays from obtaining his
Councellors as the case may require Solet et debit See debet solet Solidata terrae See Farding deal of land Solace anno 43. Elizabeth cap. 10. Sommons aliâs summons summonitio commeth of the French semondre i. vocare It signifieth in our Common law as much as vocatio in jas or ciatio among the Civilians And thence is our word somner which in French is semoneur i. vocator monitor The Customary of Normandy for our summons hath semonse ca. 61. summons of the Exchequer anno 3 Edw. 1. cap. 19. anno 10. ejusdem cap. 9. How summons is divided and what circumstances it hath to be observed See Fleta li. 6. cap. 6 7. Sollutione feods militis Parlamenti and solutione feodi Burgen Parlamenti be Writs whereby Knights of the Parliament may recover their allowance if it be denied an 35 H. 8. ca. 11. Sontage Stow. pag. 284. is a task of forty shillings laid upon every Knights fee. Sorting Kersies 3 Jacob. cap. 16. Sothale is a kind of entertainment made by Bayliffs to those of their hundreds for their gain Which sometime is called Filctable Of this Bracton lib. 3. tractat 1. cap. prim hath these words De Ballivis qui faciunt cervicias suas quas quandoque vocant sothail quandoque fictale ut pecunias extorqueant ab iis qui sequntur Hundreda sua et Balvas suas c. I think this should rather be written Scotale See Scotale Southvicont Sub vicecomes is the undersheriff Cromptons Jurisd fol. 5. Sowne is a verb neuter properly belonging to the Exchequer as a word of their Art signifying so much as to be leviable or possible to be gathered or collected For example Estreats that sown not are such as the Sheriff by his industry cannot get and Estreats that sown are such as he can gather anno 4 H. 5. cap. 2. SP Speaker of the Parliament is an Officer in that high Court that is as it were the common mouth of the rest and as the honourable assembly consisteth of two Houses one called the Higher or Upper House consisting of the King the Nobility and Kings Councell especially appointed for the same the other termed the Lower or Common House containing the Knights of the Shires the Citizens Barons of the Cinque Ports and the Burgesses of Borough Townes so be their also two Speakers one termed the Lord Speaker of the Higher House who is most commonly the Lord Chancelor of England or Lord Keeper of the Great Seal the other is called the Speaker of the Lower House And the duties of these two you have particularly described in M. Vowels alias Hookers Book intituled The order and usage of keeping the Parliament Speciall matter in evidence See Generall Issue And Brook tit Generall issue and speciall evidence Spiritualities of a Bishop spiritualia Episcopi be those profits which he receiveth as he is a Bishop and not as he is a Baron of the Parliament Stawnf pl. cor fol. 132. The particulars of these may be the duties of his Visitation his benefit growing from ordering and instituting Priests prestation Money that subsidium charitativum which upon reasonable cause he may require of his Clergie Johannes Gregorius de Beneficis cap. 6. num 9. and the Benefit of his Jurisdiction Joachimus Stephanus de Jurisdict lib. 4. cap. 14. num 14. for these reckoneth Exactionem Cathedratic quartam Decimarum mortuariorum et oblationum pensitationem subsidium obaritativum celebrationem Spuedi collationem viatici vel commeatus oum Episcopus Romam proficiscitur jus Hospitii Litaniam et Processionem Spickenard spica nardi vel nardus is a medicinal herb whereof you may for your further instruction read Gerards Herball lib. 2. cap. 425. The fruit or eare of this for it bringeth forth an care like Lavender is a drug garbable anno 1. Jacob. 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 Person be made a Bishop and hath despensation to keep his Rectory and afterward the Patron present another to the Church which is instituted and inducted The Bishop shall have against this Incumbent a writ of Spolatio in curt Christian Fitzherbert nat br fol. 36. See Benevolence SQ Squalley anno 43. Elizab. b. cap. 10. Squyres See Esquires ST Stable stand is one of the four Evidences or presumptions whereby a man is convinced to intend the stealing of the Kings Dear in the Forest Manwood parte 2. of his Forest Lawes cap. 18. num 9. the other three be these Dogdrawe Backbear Bloudy hand And this Staplestand is when a man is found at his standing in the Forest with a Crosse bowe bent ready to shoot at any Deer or with a long Bowe or else standing close by a Tree with Greyhounds in a lease ready to slip Idem eodem Stalkers a kind of net anno 13 R. 2. stat 1. cap. 20. et anno 17. ejusdem cap. 9. Stallage Stallagium commeth of the French Estaller i. merces expenere expedire explicare It signifieth in our Common law money paid for pitching of stalls in Fair or Market See Scavage This in Scotland is called stallange Skene de verbor signific verbo Stallangiatores And among the Romans it was termed Siliquaticum à siliqua primo et minimo omnium pondere apudâ—llam nationem Stannaries stannaria commeth of the Latin stannum i. tynne signifying the Mines and works touching the getting and purifying of this mettall in Cornwal and other places Of this read Camden Britan. pag. 119 The liberties of the stannarie men granted by Edw. 1. before they were abridged by the Statute anno 50 Edw. 3. see in Plowden casu Mines fol. 327. a. b. Staple Stapulum signifieth this or that Town or Citie whether the Merchants of England by common order or commandement did carry their wools wool-fells cloathes lead and tinne and such like commodities of our land for the utterance of them by the great The word may probably be interpreted two waies one taking it from staple which in the Saxon or old English language signifieth the stay or hold of any thing Lamberd in his Duties of Constables num 4. because the place is certain and setled and again from the French estape i. forum vinarium because to those places whither our English Merchants brought their commodities the French would also meet them with theirs which most o all consisteth in Wines But I think this latter the truer because I find in the Mirrour of the world written in French these words A Calais y avotte Estape de le laine c. Which is as much to say as the staple for wools c. You may read of many places appointed for this staple in the statutes of the Land according as the Prince by his Councel thought good to alter them from the second year of Ed. 3. cap. 9. to the fifth of Ed. the sixth cap. 7. VVhat
upwards to the number of 24. by whose discretion all tryals pass both in civil and criminal causes through all Courts of the common Law in this Realm First for civil causes when proof is made of the matter in question as the parties and their Counsel think good on both sides the point of the fact that they are to give their verdict of is delivered likewise unto them which we call the issue and then are they put in mind of their oath formerly taken to do right between party and party and so sent out of the Court severally by themselves to consider upon the evidence of both sides untill they be agreed which done they return to the Court again and deliver their verdict by the mouth of the foreman And according to the verdict Iudgement afterward passeth either condemnatory for the Plaintiff or absolutory for the Defendant These twelve be called twelve milites Glanvile lib. 2. cap. 14 15. and so be they in Bracton divers times but that word is altered In causes criminal there be two sorts of Enquests one called the grand Enquest and the other the Enquest of life and death The grand Enquest is so called either because it consisteth commonly of a greater number than twelve as of twenty four eighteen or sixteen at the least or else because all causes criminal or penal first passe through them whereas the other Enquest is especially appointed for one or few matters touching life and death committed to their consideration Those of the grand Enquest are also called by Bracton 12 milites lib. 3. tract 2. cap. pri num 2. because they were wont to be Knights as it seemeth and not inferiours except so many Knights could not be found Idem eodem num 1. in fine And their function is to receive all presentments made unto them of any offence and accordingly to give their general opinion of the presentment by writing either these words Billa vera upon the bill of presentment which is an inditement of the party presented or else this word Ignoramus which is an absolving of him Now as criminal causes be of two sorts either capital touching life and member or finable so is there a double course of these Inditements For in causes only finable the party indited must either traverse the Inditement by denying it and so it is referred to a petit Jury whereby he is either convicted or discharged of the crime or else he confessing it the Court setteth his fine upon his head without more work But in matters of life and death the party indited is commanded to hold up his hand and answer guilty or not guilty if guilty he standeth convicted by his own confession if not guilty he is farther referred to the Enquest of life and death which consider upon the proof brought against the Prisoner and accordingly bring in their verdict Guilty or not Guilty so is he judged to dye or delivered by the Court. Of this read more in Inditement Assise Iury. See the statute anno 35 H. 8. cap. 6. 37 ejusdem cap. 22. et anno 2 Ed. 6. cap. 32. et anno 5 Eliz. cap. 25. VA VAcation vacatio hath an especial signification in this Kingdom being used for all that time respectively which passeth between term and term at London And when such times begun and ended in our Ancestors daies see Roger Hovedens annals parte posteriori fol. 343. a. where you shall find that this intermission was called pax Dei et Ecclesiae Vaccarie aliàs vacharie vaccaria aliàs vacheria seemeth to be a house to keep kine in Fleta lib. 2. cap. 41. sect Item inquiratur 12. and Cromptons Jurisd fol. 194. in these words without warrant no subject may have within the Forest a vacary But in the statute anno 37 H. 8. cap. 16. I find vachary to be as it were a special proper name of a certain quantity and compass of ground within the Forest of Ashedown Valew valentia valor The word is in it self plain enough But I cannot omit one place in M. West parte 2. symbol titulo Inditements sect 70. V. W. touching the difference between value and price These be his words And the value of those things in which offences are committed is usually comprised in Inditements which seemeth necessary in theft to make a difference from petit larceny and in trespass to aggravate the fault and increase the fine But no price of things ferae naturae may be expressed as of Deer of Hares c. If they be not in Parks and Warrens which is a Liberty anno 8 Edward 4. fol. 5. nor of Charters of land And where the number of the things taken are to be expressed in the Inditement as of young Doves in a Dove-house young Hawks in a wood there must be said pretii or ad valentiam but of divers dead things ad valentiam and not protii of coyn not current it shall be pretii but of coin current it shall neither be said pretii nor ad valentiam for the price and value thereof is certain But of counterfeit coin shall be said ad valentiam and in counterfeiting of coin shall not be said decem libras in denariis Dominae Reginae nor in pecunia Dominae Reginae but ad instar pecuniae Dominae Reginae Valour of mariage Valore maritagii is a writ that lyeth for the Lord having profered covenable mariage to the Infant without disparidgement against the Infant comming to his years if he refuse to take the Lords offer And it is to recover the value of the mariage Regist orig fol. 164. Old nat br fol. 90. Variarce commeth of the French varier i. alterare it signifieth in the Common law an alteration or change of condition after a thing done For example the Commonalty of a Town make a Composition with an Abbot Afterward this Town by a grant from the King obtaineth Bayliffs This is a variance and in this case if the Abbot commence any sute for breach of the composition he must vary from the words of the Commonalty set down in the Composition and begin against the Bayliffs and the Commonalties Brook tit Variance fol. 292. It is also used for an alteration of something formerly laid in a plee which is easilier known what it is than when it may be used as it appeareth by Brook through the whole title aforesaid See variance in the new book of Entries Vassal vasallus signifieth him that holdeth land in fee of his Lord Hot. verbo Feudal we call him more usually a Tenent in fee whereof some owe fidelity and service and are called vassalli jurati some that owe neither and are called vassalli injurati But of this later sort I think that in England we have not any Of these thus writeth Hotom in his disputations upon the Feuds cap. 3. Propriè is vassa dicitur qui ab Imperatore regale feudum accipit vassallus autem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 diminutivo nomine qui ab illo
effect and saith thus Vifangthef dicitur extraneus latro veniens aliunde de terra aliena qui captus fuit in terra ipsius qui tales habet libertates It seemeth to be compounded of these three words Vi fang thef which in our modern English be out take or taken Thief Of this Fleta hath these words Vifangenthef dicitur latro extraneus veniens aliunde de â—erra aliena qui captus fucrit in terra ipsius qui tales habet libertates Sed non sequitur quod possit ille hominem suum proprium extra libertatem suâ—m captum reducere usque in libertatem et ibi cum judicare reducere tamen poterit judicatum et judicium in proprio patibulo exequi ratione libertatis commodum tamen non video Debet enim quilibet juri subjacere ubi deliquit proprios tamen latrones et alienos judicare possunt dum tamen infra libertatem fuerint capti c. Vtlaghe significat bannitum extra legem Fleta lib. 1. cap. 47. See Vtlawrie Vtlagatio capiendo quando utlagatur in uno comitatu et postea fugit in alium is a writ the nature whereof is sufficiently expressed in the words set down for the name thereof See the Register original fol. 133. Vtlawrie utlagaria aliâs utlagatio is a punishment for such as being called into law and lawfully sought do contemptuously refuse to appear And as Bracton saith lib. 3. tract 2. cap. 11. He that is sued must be sought and called at 5 Counties a month being between every County to answer to the law And if he come not within that time pro exlege tenebitur cum principi non obediat nec legi et ex tunc utlagabitur that is as the Author of the Terms of Law saith he shall be pronounced by the Coroner to be out of the Kings protection and deprived of the benefit of the Law The effect of this is divers as the same Author saith for if he be out-lawed in an action personal he meaneth at the sute of another in a civil cause he shall forfeit all his goods and cattels to the King if upon felony then he shall forfeit all his Lands and Tenements that he hath in fee-simple or for term of his life and his goods and cattels Bracton ubi supra xum 5. saith that such as be outlawed upon Felony Ex tunc gerunt caput lupinum ita quod sine judiciali inquisitione ritè pereant et secum suum judicium portent et meritò sine lege pereunt qui secundum legem vivere recusarunt Et haec ita si cùm capiendi fuerint fugiant vel se defendant si autem vivi capti fuerint vel se reddiderint vita illorum et mors erit et manu Domini Regis See Horns miror of Justices lib. 3. cap. des fautes punishables Bracton saith in the place above specified with whom also Fleta agreeth lib. 1. cap. 27. that a Minor or a woman cannot be out-lawed But take his own words Minor vero qui infra aetatem 12. annorum fuerit utlagari non potest nec extra legem poni quia ante talem aetatem non est sub lege aliqua nec in Decenna non magis quà m foemina quae utlagari non potest quia ipsa non est sub lege i. Inlangh Anglice sc in franco plegio sive decenna sicut masculus 12. annorum ulteriùs Et ideo non potest utlagari Waiviari tamen bene potest pro derelicta haberi cum pro felonia aliqua fugam fecerit sine ceperit Est enim waivium quod nullus advocat nec princeps eum advocabit nec tuebitur cum fuerit rite Waiviata sicut fit de masculo qui secundum legem terrae ritè fuerit utlagatus c. To the same effect writeth Fitzherbert in his Natura brev fol. 161. viz. And because women be not sworn in Leets to the King as men be of the age of twelve years or upward it is said when a woman is out-lawed that she is waived but not out-lawed for she was never under the law nor sworn unto it More of this you may read in Bracton lib. 3. tractat 2. cap. 12 13. and then in the 14. how an out-law is in-lawed again and restored to the Kings peace and protection See also Fleta lib. 1. cap. 28. per totum Vtrum See Assise Vtter Baristers be such as for their long study and great industry bestowed upon the knowledge of the Common law be called out of their contemplation to practise and in the face of the world to take upon them the protection and defence of the Clyents These are in other Countries called Licentiati in jure Howbeit in modesty they still continue themselves hearers for divers years like the Scholars of Pythagoras that for the first five years never adventured to reason or discourse openly upon any point of their Masters Doctrine which their silence à cohihibendo sermone was termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Suidas and Zenodorus do report Vtlepe significat escapium latronum Fleta lib. 1. ca. 47. W WA VVAge vadiare proceedeth of the French Gager i. dare pignus pignore certare and signifieth in our Common law the giving of security for the performing of any thing as to wage law and to wage deliverance which see before in Gage None wageth law against the King Brook titulo Chose in action num 9. The substantive of this verb is Wager in the Latin vadium which some Feudists call wadium as testifieth Hotoman in his Commentaries de verbis feudalibus verbo Wadium See Law Wainage wanagium aliâs wannagium signifieth as much as peculium servorum of the Saxon word wonen i. habitare woening i. habitatio See Gamage Waive waiviare Regist. orig fol. 277. a. is to forsake habere pro derelicto as the Civilians term it Waiviare feudum suum Bracton lib. 2. cap. 7. that is to forsake Many of the Kings liege people to be out-lawed and many waived by erroneous proces anno 7 H. 4. cap. 13. See Vtlawry To waive the company of Theeves Stawnf pl. cor fol. 26. To waive his benefit Idem fol. 46. To waive the advantage Idem praerog fol. 17. Persons attainted or waived West parte 2. symbol tit Fines Sect. 13. D. This word waived waiviata properly belongeth to a woman that being sued in the Law contemptuously refuseth to appear as out-lawed doth to a man Regist. orig fol. 132. b. 277. a. The reason whereof see in Fitz. nat br fol. 161. A. See Weif Wales Wallia is a part of England on the West side inhabited by the off-spring of the antient Britons chased thither by the Saxons being called hither by them to assist them against the might of the Picts The reason of the appellation commeth from the Saxon Wealh i. exterus vel peregrinus for so the Saxons both called them and held them though now to the great quiet of this
except there were some other farther division whereby to raise of every plow land so much and so consequently of every Knights fee that is of every 680. acres two marks of silver Rastal in his Exposition of words saith that caruage is to be quit if the Lord the King shall tax all the land by carues that is a priviledge whereby a man is exempted from caruage Skene de verb. signif ver Carucata terrae deriveth 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 year and day with one plough which also is called hilda or hida terrae a word used in the old Britain lawes Master Lamberd among his precedents in the end of his Eirenarcha translateth carucatum terrae a plough land Caruage caruagium see Carue Cassia Fistula is a tree that beareth certain black round and long cods wherein is contained a pulpe soft and pleasant sweet serving for many uses in Physick This tree with her vertues you may find described in Gerards Herball lib. 3. cap. 77. The fruit is mentioned in the Statute anno 1 Jacob. cap. 19. among drugges and spices that bee to be garbled Cassia Lignea is a sweet wood not unlike to Cynamon and sometime used in stead of Cynamon Whereof you may read in Gerards Herball lib. 1. cap. 141. this is called Cassia lignum in the Statute anno 1. Jacob. c. 19. and is comprised among merchandize that are to be garbled Castellain castellanus is a keeper or a Captain sometime called a Constable of a Castle Bracton lib. 5. tractat 2. cap. 16. lib. 2. cap. 32. num 2. In like maner is it used anno 3 Ed. 1. cap. 7. In the books 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 have the custody of the Kings mansion houses called of the Lomberds curtes in England Courts though they be not places of defence or strength M. Manwood part 1. of his Forest laws pag. 113. saith that there is an Officer of the Forest called Castellanus Castelward castelgardum vel wardum castri is an imposition laid upon such of the Kings subjects as â—â—en within a certain compasse of any Castle toward the maintenance of such is doe watch and ward the Castle Magna charta cap. 20. anno 32 H. 8. cap. 48. It is used sometime for the very circuit it self which is inhabited by such as are subject to this service is in Stowes annals pag. 632. Casu consimâ—li is a writ of entrie granted where the Tenent by courtesie or Tenent for Term of life or for the life of another doth alien in fee or in tail or for term of anothers life And it hath the name of this for that the Clerks of the Chauncery did by their common consent frame it to the likenesse of the writ called In casu proviso according to their authority given them by the Starute Westm 2. cap. 24. which as often as there chanceth any new case in Chancery something like to a former case and yet not especially fitted by any writ licenceth them to lay their heads toge 〈…〉 and to frame a new form answerable to the new case and as like some former case as they may And this writ is granted to him in the reversion against the party to whom the said Tenent so alienateth to his prejudice and in the life time of the said Tenent The form and effect whereof read more at large in Fitzh na br fol. 206. Casu proviso is a writ of entry given by the Statute of Glocester cap. 7. in case where a Tenent in dower alieneth in fee or for Term of life or in tail and lyeth for him in reversion against the alienee Whereof read Fitz. nat br more at large fol. 205. Catalls Catalla al. âs chatels cometh of the Normans For in the eighty-seventh Chapter of the grand customary you shall find that all moveable goods with them are called charels the contrary whereof is fief ibid. which we do call fee. But as it is used in our Common Law it comprehendeth all goods moveable and immoveable but such as are in the nature of freehold or parcel thereof as may be gathered out of Stawnf praero cap. 16. and anno Eliz. 1. cap. 2. Howbeit Kitchin in the chapter catalla fol. 32. saith that ready money is not accounted any goods or chatels nor hawkes nor hounds The reason why hawkes and hounds be not he giveth because they be ferae naturae why money is not though he set not down the cause yet it may be gathered to be for that money of it self is not of worth but as by consent of men for their easier traffick or permutation of things necessary for Common life it is reckoned a thing rather consisting in imagination than in deed Catals be either personal or real Personal may be so called in two respects one because they belong immediately to the person of a man as a bow horse c. the other for that being any way with-held injuriously from us we have no means to recover them but by personal action Chatels real be such as either appertain not immediatly to the person but to some other thing by way of dependency as a boxe with charters of land the body of a ward apples upon a tree or a tree it self growing on the ground Cromptons Justice of peace fol. 33. B. or else such as are necessary issuing out of some immoveable thing to a person as a lease or rent for tearm of yeares Also to hold at will is a chatel real New tearms verbo Chatel The Civilians comprehend these things as also lands of what kind or hold soever under bona bona autem dividuntur in mobilia immobilia mobilia verò in ea quae se movent vel ab aliis moventur v. legem 49. l. 208. Ï€. de verb. significa interpretes ibidem Bracton also c. 3. l. 3. num 3. 4. seemeth to be of the same judgement Catallis captis nomine dictrictionis it is a Writ that lyeth within a Borow or within a honse for rent going out of the same and warranteth a man to take the dores windowes or gates by way of distresse for the rent Old nat br Fol. 66. Catallis reddendis is a Writ which lyeth where goods being delivered to any man to keep until a certain day and be not upon demand delivered at the day And it may be otherwise called a Writ of detinew See more of it in the Register orig f. 139. and in the Old nat br fol. 63. This is answerable to actio dispositi in the Civil law Catchepâ—lle though it now be used as a word of contempt yet in ancient times it seemeth to have been used without reproach for such as we now call Sergeants of the Mace or any other that use to arrest
men upon any cause anno 25 Ed. 3. stat 4. cap. 2. Cathedrall See Church Casu matrimonii praelocuti is a Writ which lyeth in case where a woman giveth lands to a man in fee simple to the intent he shall marry her and refusesh so to do in reasonable time being required thereunto by the woman The form and farther use thereof learn in the Register orig fol. 233. and in Fitzh nat br fol. 205. Causam nobis significes is a Writ which lyeth to a Maior of a Town or City c. that formerly by the Kings writ being commanded to give seisin unto the Kings grantee lof any land or tenements doth delay so to do willing him to shew cause why he so delayeth the performance of his charge Coke l. 4. casu communalty des Sadlers fol. 55. b. Cautione admittenda is a Writ that lyeth against the Bishops holding an excommunicate person in prison for his contempt notwithstanding that he offereth sufficient caution or assurance to obey the commandments and orders of holy Church from thenceforth The form and farther effect whereof take out of the Regist orig pag. 66. and Fitzh nat br fol. 63. CE Century centuria See Hundred Cepicorpus is a return made by the Sheriff that upon an exigend he hath taken the body of the party Fitzh nat br Fol. 26. Certiorari is Writ issuing out of the Chancery to an inferior Court to call up the records of a cause therein depending that conscionable Justice therein may be ministred upon complaint made by bill that the party which seeketh the said Writ hath received hard dealing in the said Court. Terms of the Law See the divers forms and uses of this in Fitzh nat br fol. 242. as also the Register both original and judicial in the tables verbo Certiorari Crompton in his Justice of peace f. 117. saith that this Writ is either returnable in the Kings Bench and then hath these words nobis mittatis or in the Chauncerie and then hath in caucellaria nostra or in the Common Bench and then hath Justiciariis nostris de banco The word Certiorare is used divers times in the digest of the Civil Law but our later Criticks think it so barbarous that they suspect it rather to be foisted in by Tribonian than to be originally used by those men of whose works the said digest is compiled Prataeus in suo lexico Certificat certificatorium is used for a writing made in any Court to give notice to another Court of any thing done therein As for example a certificat of the cause of attaint is a transcript made briefly and in few words by the Clerk of the Crown Clerk of the Peace or Clerk of Assise to the Court of the Kings Bench containing the tenure and effect of every endictment outlawrie or convictior and Clerk attainted made or pronounced in any other Court anno 34 H. 8. cap. 14. Of this see more in Certificat d'evesque Broke fol. 119. Certification of assise of novel disseisin c. Certificatio assisae novae disseisinae c. is a Writ grant ed for the reexamining or review of a matter passed by assise before any Justices and is called certificatione novae dissessinae Old nat br fol. 181. Of this see also the Register original fol. 200. and the new book of entries verb. Certificat of assise This word hath use where a man appearing by his Bailiff to an assise brought by another hath lost the day and having something more to plead for himself as a deed of release c. which the Bailiff did not or might not plead for him desireth a farther examination of the cause either before the same Justices or others obtaineth Letters patents unto them to that effect The form of these Letters Patents you may see in Fitzh nat br fol. 181. and that done bringeth a Writ to the Sheriff to call both the party for whom the assise passed and the Jurie that was empaneled upon the same before the said Justices at a certain day and place And it is called a certificate because in it there is mention made to the Sheriff that upon the parties complaint of the defective examination or doubts yet remaining upon the assise passed the King hath directed his Letters patents to the Justices for the better certifying of themselves whether all points of the said assise were duly examined yea or not See farther Old nat br and Fitzh ubi supra Of this also you may read Bractoâ— lib. 4. cap. 19. num 4. in fine 5 6. where he discusseth the reason of this point very learnedly and lastly Horn in his Mirrour of Justices lib. 3. cap. finali § en eyde des memoyees c. Certificando ' de recognitione Stapulae it is a Writ directed to the Major of the Staple c. commanding him to certifie the Chauncellor of a statute of the staple taken before him between such and such in case where the party himself detaineth it and refuseth to bring it in Regist orig fol. 152. b. In like manner may be said of certificando de statuto mercatorio eodem fol. 148. and de certificando in cancellarium de inquisitione de idemptitate nominis fol. 195. and certificando quando recognitio c. and certificando quid actum est de brevi super statutum mercatorium fol. 151. and certificando si loquela Warantiae fol. 13. Cessor is he that ceaseth or neglecteth so long to perform a duty be longing unto him as that by his cesse or cessing he incurreth the danger of Law and hath or may have the Writ cessavit brought against him Old nat br fol. 136. And note that where it is said in divers places the Tenent cesseth without any more words such phrase is so to be understood as if it were said the Tenent cesseth to do that which he ought or is bound to do by his Land or Tenement Cessavit is a Writ â—hat lyeth in divers cases as appeareth by Fitzh nat br fol. 280. upon this general ground that he against whom it is brought hath for two years foreslown to perform such service or to pay such rent as he is â—ed unto by his Tenure and hath not upon his Land or his Tenement sufficient goods or cattels to be distreined Consult more at large with Fitz. upon this ubi supra with Fleta lib. 5. cap. 34. § visa sunt and with the Terms of law See Cessavit de cantaria Register orig fol. 238. Cessavit de feod firma eodem fol. 237. Cessavit per biennium eodem folio etiam eodem See the new book of Entries verbo Cessavit Cestui qui vie is in true French Cestui a vie de qui. i. he for whose life any Land or Tenement is graunted Perkins graunts 97. Cestus qui use ille cujus usui vel ad cujus usum is broken French and thus may be bettered Cestui all use de qui. It is an ordinary speech among our Common