died in pound Kitchin fol. 145. or if he claim a propriety in the Cattel sued for Terms of the Law To wage law what it is see in his place verbo Law See Mortgage Gager deliverance See Gage Gayle See Gaol Gainage Wain agium is â—eer to the French Gaignage i. quaestus lucrum and signifieth in our Common law the land held by the baser kind of Sokemen or Villeins Bracton lib. 1. cap. 9. where he hath these words speaking observants Et in hoc legem habet contra dominos quòd stare possunt in judicio contra eos de vita membris propter saevuiam dominorum vel propter intolerabilem injuriam Ut si eos destruant quòd salvum non possit eis esse Wainagium suum Hoc autem verum est de illis servis qui tenent in antiquo dominico coronae And again lib. 3. tract 2. cap. 1. Miles liber homo non amerciabitur nisi secundum modum delicti secundum quod delictum fuit magnum vel parvum salvo contenemento suo Mercator verò non nisi salva mercandiza sua villanus non nisi salvo Wainagio suo This in West 1. cap. 6. anno 3. Ed. prim is called Gaynure and again cap. 17. and in magna charta cap. 14. it is called Wainage I find it in the Old nat br fol. 117. called Fainor v.z. in these words The Writ of Aile was praecipe c. quòd reddat unam bovatam terrae unam bovatam marisci and â—he Writ was abated for that the oxegang is alwayes of a thing that lyeth in gainor I think this word was used of lands usually plowed because they that had it in occupation had nothing of it but the profit and fruit raised of it by their own pains toward their sustenance nor any other title but at the Lords will Gainor again in the same book fol. 12. is used for a Sokeman that hath such land in his occupation In the 32. Chapter of the Grand Custumary of Normandie Gergneurs be ruricolae qui terras eleemozynatas possidem and Britton useth gainer for to plow or till fol. 65. a. 42. b. West parte 2. symbol titulo Recoveries sect 3. hath these words A praecipe quòd reddat lyeth not in Bovata marisci 13 Ed. 3. fol. 3. nor de selione terrae Edw. 1. for the uncertainty because a selion which is a land sometime containeth an acre sometime half an acre sometime more and sometime lesse It lyeth not of a garden cotage or croft 14. Assis 13.8 H. 63.22 Ed. 4.13 de virgata terrae 41.43.13 Ed. 3. de fodina de minerade mercatu 13 E. 3. for they be not in demesn but in gain c. Lastly in the statute of distresses in the Exchequer anno 51 Hen. 3. I find these words No man of religion nor other shall be distreined by his beasts that gain the land Galege galicae seemeth to come of the French galloches which signifieth a certain kind of shoo worn by the Gaules in foul weather of old times I find it used for some such Implement anno 4 Ed. 4. cap. 7. anno 14. 15 H. 8. c. 9. where is written plainly Galoches Galingal cyperus is a medicinal herb the nature and diversity whereof is expressed in Gerards Herbal lib. 1. cap. 22. The root of this is mentioned for a drugge to be garbled anno 1 Jacob. cap. 19. Gallihalpens were a kind of coin forbidden by the statute anno 3 H. 5. cap. 1. Galloches See Galege Galls Gallae be a kind of hard fruit like a nut but rounder growing of the Tree called in Latine galla The divers kinds and uses whereof Gerard expresseth in his Herbal lib. 3. c. 34. This is a drug to be garbled an Ja. c. 19. Gaol gaola cometh of the French Geole i. caveola a cage for birds but is metaphorically used for a prison Thence cometh Geolier whom we call Gayler or Gaoler Garbe Garba cometh of the French garbe altâs gerbe i. sascis It signifieth with us a bundle or sheaf of corn Charta de Foresta cap. 7. and garba sagittarum is a sheaf of arrowes Skene de verb. significat verbo Garbae Garbling of bow-staves anno 1 R. 3. cap. 11. is the sorting or culling out the good from the bad As garbling of Spice is nothing but to purifie it from the drosse and dust that is mixed with it It may seem to proceed from the Italian garbo that is finesse neatnesse Gard Custodia cometh of the French garde being all of one signification It signifieth in our Common law a custodie or care of defence but hath divers applications sometimes to those that attend upon the safety of the Prince called Yeoman of the Guard sometime to such as have the education of children under age or of an Idiot sometime to a Writ touching Wardship Which writs are of three sorts one called a right of Guard or Ward in French droit de gard Fitzh nat br fol. 139. The second is ejectment de gard Idem fol. 139. L. The third is ravishment de gard Idem fol. 140. F.G. See Gardein see Ward Gardein Custos cometh of the French Gardien and yet the German Warden is neer unto it It ligniheth generally him that hath the charge or custodie of any person or thing but most notoriously him that hath the education or protection of such people as are not of sufficient discretion to guide themselves and their own affairs as Children and Idiots being indeed as largely extended as both Tutor and Curator among the Civilians For where as Tutor is he that hath the government of a youth untill he come to fourteen yeers of age and Curator he that hath the disposition and ordering of his substance afterward until he attain to five and twenty years or that hath the charge of a frantick person during his lunacie the common Lawyers use but onely Gardien or Gardian for both these And for the better understanding of our English law in this thing you must know that as Tutor is either Testamentarius or à Praetore datus est ex lege Atilia or lastly legitimus so we have three sorts of Gardeins in England one ordained by the Father in his last will another appointed by the Judge afterward the third cast upon the Minor by the law and custome of the land Touching the first a man having goods and Chattels never so many may appoint a Gardein to the body or person of his child by his last VVill and Testament until he come to the age of fourteen years and so the disposing or ordering of his substance until what time he thinketh meet and that is most commonly to the age of 21 years The same may he do iâ— he have lands to never so great a value so they hold not in capite of the King nor oâ— any other Lord by Knights service And in the former case if the Father appoint no Gardein to his Child the Ordinary
Officers and usages be For of this thus writeth Boerius in his tract De authorit Magni Consilii nu 8. Consistorio Franciae post Principem Dominus Franciae Cancellarius cui velut excelsum judicii tribunal hoc in regno sub Principe tamen nostro moder anti sigillum â— authenticum quo sine publicis patentibus regiis literis nulla fides adhibetur liberam administrationem habenti omnes singuli regii Justiciarii quocunque nomine nuncupontur ac quavis authoritate fung antur co inferiores sant Et meritò Succedit enim in quaestoris locnm c. He that beareth this Magistracie is called the Chancellor of England anno 7 R. 2. c. 14. and by the Statute anno 5 Eliz. cap. 18. the Lord Chancellor and Keeper have all one power Nore farther that divers inferior Officers are called Chancellors as Chancellor of the Exchequer anno 25 H. 8. cap. 16. whose office hath been thought by many to have been created for the qualifying of extremities in the Exchequer He fâ—teth in the Court and in the Exchequer chamber and with the rest of the Court ordereth things to the Kings best benefit he is alwayes in commission with the Lord Treasurer for the letting of the Lands that came to the Crown by the dissolution of Abbeyes and hath by privie seal from the King power with others to compound for forfeitures of honds and forfeitures upon penal statutes He hath also much to do in the revenue come by the dissolution and first fruits as appeareth by the acts of uniting them to the Crown Chanchellor of the Dutchie of Lancaster anno 3 Ed. 6. cap. 1. anno 5 ejusdem cap. 26. whose office is principal in that Court to judge and determine all controversies between the King and his Tenents of the Dutchie land and otherwise to direct all the Kings affaires belonging to that Court. Chancellor of the Order i. of the Garter Stowes annals pag. 706. Chancellor of the University anno 9 H. 5. cap. 8. anno 2 H. 6. cap. 8. Chancellor of the Court of Augmentations anno 27 H. 8. cap. 27. anno 32. ejusdem cap. 20. anno 33. ejusdem cap. 39. Chancellor of the nâ—â—t truits anno 32 H. 8. cap. 45. Chancellor of Courts anno 32 H. 8. cap. 28. Chancellor of the Diocesse anno 32 H. 8. cap. 15. Chancerie Cancellaria is the Court of equity and conscience moderating the rigour of other Courts that are most straightly tyed to the Letter of the Law whereof the Lord Chancellor of England is the chief Judge Cromptons jurisd fol. 41. or else the Lord Keeper of the great Seal sithence the statute 4 Eliz. cap. 18. It taketh the name from the Chancellor as M. Cambden noteth in his Britannia pag. 114. in meo The Officers belonging to this Court are as is abovesaid the Chancellor or Keeper of the broad Seal twelve Masters of the Chancery whereof the Master of the Rolls is one and the chief the six Clerks the Examiners a Sergeant at Armes the Marshall and Crier of the Court the Clerks of the courts otherwise called Courseters the Clerks of the Pettie bagge the Clerk of the Crown the Clerk of the hanapar the protonotary or register the controller of the hanaper the Clerk of appeals the Sealer the Chafe-wax the Clerk of the faculties the Clerk of the patents Clerk of the statre chamber Clerk of presentations Clerk of dismission Clerck of licenses to alienate Clerks of the enrollements Clerk of the protections Clerk of the court of wards Clerk of the subpenaes which lee described in their places Chapel Capella cometh of the French chapelle i. aedicnla and is of two sorts either adjoyning to a Church as a parcel of the same which men of worth do build ut ibidem familiaria sepalchra sibi constituant to the use of the Romanes l. 5. Ï€. de religio or else separate from the mother Church where the Parish is wide and is commonly called a Chapel of ease because it is builded for the ease of one or more Parishioners that dwell over farre from the Church and is served by some inferior Curate provided at the charge of the Rector or of them that have benefit by it as the composition or custome is Whence the word is derived the Caronists differ in opinion Rebuffus de pacif possess num 104. saying that some take it à capiendo l. icos others à capra because it representeth those cottages which men wore wont to cover over with Goats skins Petrus Gregorius in suo syntagmate lib. 15. cap. 29. hath these words of this thing Capellanus a capella is capella cui praeficitur nominatur item ab officio sen bene ficio capellania Capella aliquibus dicta quasi capiens 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seu populos vel capiens landem vel secundùm praepositum à cappa Divi Martini aut à caprinis pellibus quibus olim altaria tegebaâ—tur secundùm Archidiacanum Arbitrarer à simplici tecto quo oratorium campestre operitur laeteribus undiquaque patentibus patulis Tectum enim Gallis simpliciter dicitur chapelle à capite Under formata aliqua aomina chape in cape c. Aut capella locus qui minor is spatii sit quà m ecclesia quod tot homines non capiat ut ecclesia Ita altare eapella est ca. quaesitum c. penult i. quaest 3. Jahan Aâ—draeas in cap. 1. de succes ab intesta praebenda cum onere quotidie celebrandi sacram lâ—turgiam ca. significatum 11. de praebend or atorium ca. authoritate de privilegiis in 6. quòd in eo loco orationes non aliae res profanae peragi debeant ca. pen. fina 42. distinct The same author in his book de beneficiis cap. 11. nu 10. hath these words Dâ—cti porrò primi tùs cappellant à cappa Sancti Martini quam Reges Francorum ob adjuratorium in praeliis solebant secum habere quam ferentes custodientes cum caeteris sanctorum reliquiis clerici capellani caeperunt vocari ut omnia refert Valafridus Strabo Abbas Augensis ca. fina de incrementis rerum ecclesiastica There is of these chapels one kind called a fâ—ee chapel which seemeth to be such as hath maintenance perpetual toward the upholding thereof and wages of the curate by some lands charitably bestowed on it without the charge of the Rector or Parish anno 37 H. 8. cap. 4. anno 1 Ed. 6. cap. 14. Chapellain capellanus is he that performeth divine service in a chapel and therefore in our Common law it iâ— used most ordinarily for him that is depending upon the king or other man of worth for the instruction of him and his family the executing of prayers and preaching in his private house where commonly they have a Chapel for that purpose as anno 21 H. 8. cap. 13. Where it is set down what persons may privilege one or mo Chaplains
possession Conspiracie conspiratio though both in Latine and French it be used for an agreement of men to do any thing either good or bad yet in our Lawyers books it is alway taken in the evil part It is defined anno 34 Ed. pri stat 2. to be an agreement of such as do confeder and bind themselves by oath covenant or other aliance that every of them shall bear and ayde the other falsly and maliciously to indite or falsly to move or maintain Plees and also such as cause children within age to appeal men of Felonie whereby they are imprisoned and fore grieved and such as retain men in the Countries with liveries or fees to maintain their malicious enterprises And this extendeth as well to the takets as to the givers And Stewards and Bayliffes of great Lords which by their seignorie office or power undertake to bear or maintain quarrels plees or debates that concern other parties than such as touch the estate of their Lords or themselves anno 4 Ed. 3. cap. 11. anno 3 H. 7. cap. 13. and of this see more anno 1 H. 5. cap. 3. an 18 H. 6. cap. 12. as also in the new book of Entries ver Conspiraey Conspiracie in the places before mentioned is taken more generally is confounded with maintenance and champerty But in a more special signification it is taken for a confederacie of two at the least falsely to endict one or to procure one to be endicted of Felony And the punishment of Conspiracy upon an Indictment of Felony at the Kings sute is that the party attainted leese his frank law to the intent that he be not empaneld upon Juries or Assises or such like éploiments for the testifying of truth And if he have to do in the Kings Court that he make his Atturney and that his lands goods and chattels be seised into the Kings hands his Lands estreaped if he find no better favour his trees raced and his body committed to prison 27 lib. assis 59. Cromptons Justice of Peace fol. 156. b. This is called villanous judgement or punishment See Villanous judgement But if the partie grieved sue upon the Writ of conspiracy then see Fitzh nat br fol. 114. D. 115. I. Conspiracie may be also in cases of lesse weight Idem fol. 116. A. c. See Frank Law Conspiratione is a Writ that lyeth against conspiratours Fitz. nat br fol. 114. d. Cromptons Jurisd fol. 209. See also the Register fol. 134. Constable constabularius vel Conestabulis is a Saxon word compounded of cuning or cyng and staple which do signiffe the stay and hold of the King Lamb. duties of Constables num 4. But I have heard it made heretofore of these two words comes stabuli which seemeth to me the more probable because we have this Officer from France as most others and not from the Saxons And Tilius in his Commentaries de rebus Gallicis li. 2. c. de conistabili hath the same etymologie giving the reason thereof quia praeest stabulo i. equili regis which office is ancient here in England and mentioned by Bracton seeming to answer him that was called tribunus celerum under the first Kings of Rome and Magister equitum afterward The Germans that inhabite the side of the river Rhene note him by this title die constofler and in counterfeit Latine constofelerus and in older time constafolarius that the Romans were wont to tearm assessorem judicii And as Spiegelius in his Lexicon noreth derive the word à stafolo comitis i. gradu Judicis fiscalis For staffel in their language as he saith signifieth a grees or step of a pair of stairs And thereupon stafelstein being a word used in their very ancient writings signifieth as much as Praetorium But a man many times may shew in this kind more curiosity than discretion as perhaps some will judge me here to have done And therefore enough of this This word is diversly used in our Common law first for the Constable of England who is also called Marshall Stawnâ—â— pl. cor fol. 65. Of whose great dignity and authority a man may find many arguments and signes both in the Statutes and Chronicles of this Realm His sway consisteth in the care of the common peace of the Land in deeds of arms and matters of wars Lamb. ubi supra with whom agreeth the statut anno 13 R. 2. cap. 2. statut 1. Smith de Repub. Anglo lib. 2. cap. 25. Of this Officer or Magistrate M. Gwin in the Preface to his Reading saith to this effect The Court of the Constable and Marshal determineth contracts touching deeds of arms tout of the Realm and handleth things concerning warrs within the Realm as Combats blasons of armory c. But it may not deal with battel in appeals nor generally with any other thing that may be tryed by the Law of the Land And read Fortescue c. 32. This office was belonging heretofore to the Lords of certain mannors jure feudi why it is discontinued see Dyer f. 258. nu 39. Out of this high magistracie saith M. Lamberd were drawn these lower Constables which we calâ—oÌ„stables of Hundreds and franchises and first ordained by the Statute of Winchester anno 13 Ed. 1. which appointeth for the conservation of the peace and view of armour two Constables in every Hundred and franchise which in Latine are called constabularii capitales And these be now a dayes called high Constables because continuance of time and increase both of people and offences hath again under these made others in every Town called petit Constables in Latine subconstabularios which are of like nature but of inferiour authority to the other as you may read at large in that learned mans Treatise before named Of these also read S. Thomas Smith lib. 2. cap. 22. Beside these there be officers of particular places called by this name as Constable of the Tower Stawnf pl. cor fol. 152. anno 1 H. 4. cap. 13. Stows annals pa. 812. jurisdict fol. 132. Constable of the Exchequer anno 51 H. 3. statute 5. Constable of Dover Castle Camdeni Britan. pag. 239. Fitzh nat br fol. 240. otherwise called castellane West i. cap. 7. anno 3 Ed. 1. But these be castellani properly as Master Lamberd noteth though conjoyned in name with the others See the Statute anno 32 H. 8. cap. 38. M. Manwood parte prima c. 13. of his Forest laws maketh mention of a Constable of the Forest Consuetudinibus servitiis is a Writ of right close which lyeth against the Tenant that deforceth his Lord of the rent or service due unto him Of this see more at large the Old nat br fol. 77. Fitzh eodem fol. 151. and the Register orig fol. 159. Consultation consultatio is a Writ whereby a cause being formerly removed by prohibition from the Ecclesiastical Court or Court Christian to the Kings Court is returned thither again For the Judges of the Kings Court if upon comparing the libel with
restraint For the Law holdeth this not good but rather supposeth it to be constrained Broke in his Abridgement joyneth Dures and Manasse together i. duritiam minas hardness and threatning See the new Book of Entries verbo Dures And the New Terms of Law EA EAldermans Aldermannus among the Saxons was as much as Earl among the Danes Cambden Britan. pag. 107. If ye go to the true etymologie of the word me thinkoth it should sound more generally so much as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with the Graecians or Senator with the Romans who were rather Counsellors at large than bestowed upon any particular office as Comites were See Coun. ie And that signification we retain at this day almost in all our Cities and Boroughs calling those Aldermen that are Associates to the Chief Officer in the common Councel of the Town anno 24 H. 8. cap. 13. or sometime the chief Officer himself as in Stawnford Earl Comes in M. Cambdens opinion pag. 107. is a word made by the Danes of Ealderman a word of the Saxons M. Lamberd seemeth notwithstanding to acknowledge that Earl is originally a Saxon word Explica of Saxon words verbo Paganus and interpreteth it Satrapam which word the Romans borrowing of the Persians applyed to those that were praefecti provinciarum M. Verstegan in his restitution of decayed Intelligence deriveth it from two Netherland words ear i. honor and ethel i. nobilis wherein I leave the Reader to his own iudgement This title in ancient time was given to those that were Associates to the King in his Counsels and Marshal actions as Comes was to those that followed the Magistrates in Rome and executed their offices for them as their Deputies and died alwayes with the man Zasius hath of this word thus much Comitum originem in Doctoribus non invenimus sed noveris eam dignitatem vetustissimam esse Nam Cor. Tacitus in libello de Germania scribit apud priscos usu fuisse receptum ut cuilibet Principi seu Duci exercitus duodecim comites assignarentur ideo dictos quia comitarentur eos à Ducum latere non decederent Comitatum it aque originem Germanis moribus or tum esse dictus receptissimus autor testis est Quapropter quod in duodecimo libro codicis aliqui tituli de Comitibus largitionum c. inscribuntur usurpationem Imperatoris ex Germanorum ritibus sumptum credo But the Conqueror as M. Cambden saith gave this dignity in Fee to his Nobles annexing it to this or that County or Province and allotted them for their maintenance a certain proportion of money rising from the Princes profits for the pleadings and forfeitures of the Province For example he bringeth an ancient Record in these words Henricus 2. Rex Angliae his verbis Comitem creavit Sciatis nos fecisse Hugonet Bigot Comitem de Nortfolk sc de tertio denario de Norwic. Nortfolk sicut aliquis Comes Angliae libertus comâ—tatum suum tenet Which words saith the same Author an old book of Battel Abbey thus expoundeth Consuetudinaliter per totam Angliam mos antiquitùs inoleverat Comites provinciarum tertium denarium sibi obtinere inde Comites dicti And another book without name more fully Comitatus à Comite dicituâ— aut vice versa Comes autem est quia tertiam portionem corum quae de placitis proveniunt in quolibâ—t Comitatu percipitâ— Sed non omnes Comites ista percipiunt sed bit quibus Rex baereditariò aut personaliter concessit You may read M. Fern in Lacy's nobility something to his effect pag. 12. But he saith that one Duke or Earl had divers Shires under his government as a Viceroy and had Lieurenants under him in every particular Shire called a Sheriff That one Earl was dignified by the appellation of more than one Sheriff it appeareth by divers of our ancient Statutes as namely by the sentence of Excommunication pronounced by the Bishops against the infringers of the great Charter and Charter of the Forest anno 38 H. 3. Roger Bigot is named Earl both of Northfolk and Southfolk and anno 1 Ed. 3. Thomas Earl of Lancaster and Leycester Humfrey Bohun Earl of Hereford and Essex Dyer fol. 285. num 39. At these dayes as long since the Kings of England make Eearls by their Charters of this or that County giving them no authority over the County nor any part of the profit rising of it but onely some annual stipend out of the Exchequer rather for honours sake than any great commodity And these be in other Nations accounted Earles improperly Quià illi dicuntur verè Comites quibus datur Comitatus in feudum illi Comites abusivè qui non habent administrationem Vincentius de Franchis descis 115. num 7. The manner of creating Earles is by girding them with a Sword Camden pag. 107. but see the solemnity thereof described more at large in Stowes annals pag. 1121. The occasion why these Earles in latter times have had no sway over the County wherof they bear their name is not obscurely signified in Sir Tho. Smith l. 2. cap. 14. where he saith that the Sheriff is called Vicecomes as Vicarius Comiâ—is following all matters of Justice as the Earl should do and that because the Earl is most continually attendant upon the King in his wars or otherwise So that it seemeth that Earls by reason of their high employments being not able to follow also the businesse of the County were delivered of all that burthen and onely enjoyed the honour as now they do And the Sheriff though he be still called Vice-comes yet all he doth is immediatly under the King and not under the Earl See Countie and see Hotoman de verb. feudal verb. Comes and Cassan de consuetud Burg. pag. 12. Easement esamentum is a service that one Neighbour hath of another by Charter or prescription without profit as a way through his ground a sink or such like Kitchin fol. 105. which in the Civil law is called Servitus praedii EE Eele fares alias Eele Vare anno 25 H. 8. be the frie or brood of Eeles EG Egyptians Aegyptiani are in our Statutes and Laws of England a conterfeit kind of Rogues that being English or Welsh people accompany themselves together disguising themselves instrange robes blacking their faces and bodies and framing to themselves an unknown Language wander up and down and under pretence of telling of Fortunes curing diseases and such like abuse the ignorant common people by stealing all that is not too hot or too heavie for their carriage anno 1. 2 Philip. Mar. cap. 4. anno 5 Eli. cap. 20. These are very like to those whom the Italians call Cingari of whom Franciscus Leo in suo thesauro fori Ecclesiastici parte prim cap. 13. thus writeth Cingari qui corrupto vocabulo quandoque etiam Saraceni nominantur permissione principum ac aliorum dominorum per Italium vagantur nec unquam
may appoint one to order his moveables and chattels until the age of fourteen years at which time he may chuse his Gardian accordingly as by the Civil Law he may his Curator For we hold all one rule with the Civilians in this case and that is Invito curator non datur And for his Lands if he hold any by Copy or Court-rol commonly the Lord of the Fee appointeth him a Guardian until he come to the age of fourteen years and that is one next of kind to the Minor of that side that can hope for least profit by his death If he hold by charter in socage then the next of kind on that side by which the land cometh not is the Guardian and hereupon called guardian in socage And that which is said here of socage seemeth to be true likewise in petit sergeantie anno vicesimo octavo Ed. vardi primi statuto primo And the reason of this Fortescue giveth in his book intituled A commendation of the politique laws of England cap. 44. viz. because there might be suspition if the next kinsman on that side by which the land descendeth should have the custody and education of the Child that for desire of his land he might be entised to work him some mischief Lastly if a man die seised of lands holding by Knights service leaving his heir in minority that is under 21 years the Lord of the Fee hath by Law the custody both of the heir anâ— his land until he come to age See the statute anno 28 Ed. prim statut prim And the reason of this Fortescue likewise giveth for that he to whom by his Tenure he oweth Knights service when he can perform it is likeliest to train him up in martial and ingenious discipline until he be of ability But Polidore Virgil in his Chronicle lib. 16. saith that this was Novum vectigalis genus excogitatum to help Henry the third being oppressed much with poverty by reason he received the Kingdome much wasted by the Wars of his Ancestors and therefore needing extraordinary help to uphold his estate yet the 33 Chapter of the Grand Custumary maketh mention of this to have been used by the Normans and I think this the truer opinion Here it is to be observed whether land in Knights service hold in capite or of another Lord or some of the King and some of another If of the King whether of the King alone or not all is one For the King in this case is Guardian to the heirs both person and land by his prerogative Stawnford praerogat cap. 1. If he hold of a common Lord it is either of one alone or more if of one onely then is he Guardian of both person and Lands if of more then the Lord of whom he holdeth by the elder Tenure is Guardian of the person and every one of the rest hath the custody of the land holden of himself If the priority of the Tenure cannot be discerned then is he Guardian of the person that first happeth him Terms of the law Stawnf ubi supra whom you may read more at large which Author fol. 19. maketh mention of Gardeyn in feit and Gardeyn in droit that is in deed and in law I take the first to be him that hath purchased or otherwise obtained the ward of the Lord of whom the Land holdeth The second him that hath the right by his inheritance and seignorie Old nat br fol. 94. Then is there Gardeyn per cause de gard which is he that hath the wardship of a Minor because he is Guardian of his Lord being likewise in minority Stawnford ubi supra fol. 15. Of this you may read Skene de verb. signif verbo Varda by whom you may learn great affinity and yet some difference between the Law of Scotland and ours in this point Guardia is a word used among the Feudists for the Latine Custodia and Guardianus seu guardio dicitur ille cui custodia commissa est lib. Feudo 1. titulo 2. titulo 11. Gardeyn of the Spiritualities Custos spiritualium vel spiritualitatis is he to whom the spiritual jurisdiction of any Diocesse is committed during the vacancie of the See an 25 H. 8. c. 21. And I take that the Guardeyn of the Spiritualties may be either Guardein in law or Jure Magistratus as the Arch-bishop is of any Dioces within his Province or Guardian by delegation as he whom the Arch-bishop or Vicar general doth for the time depute Gardeyn of the peace Custos pacis See Conservatour of the peace Gardeyn of the Cinque ports Gardianus quinque portuum is a Magistrate that hath the jurisdiction of those Havens in the East part of England which are commonly called the Cinque ports that is the five Havens who there hath all that jurisdiction that the Admiral of England hath in places not exempt The reason why one Magistrate should be assigned to these few Havens seemeth to be because they in respect of their situation anciently required a more vigilant care than other Havens being in greater danger of invasion by our enemies by reason that the Sea is narrower there than in any other place M. Cambden in his Britannia pag. 238. saith That the Romans after they had setled themselves and their Empire here in England appointed a Magistrate or Governour over those East parts whom they rearmed Comitem littoris Saxonici per Britanniam having another that did bear the same title on the opposite part of the Sea whose office was to strengthen the Sea Coasts with Munition against the outrages and robberies of the Barbarians And farther signifieth his opinion that this Warden of the Cinque ports was first erected amongst us in imitation of that Roman policie See Cinque ports Gare anno 31 Ed. 3. cap. 8. is a coarse wool full of staring hairs as such as groweth about the pesil or shanks of the Sheep Garnishment cometh of the French Garnir i. instruere It signifieth in our Common law a warning given to one for his appearance and that for the better furnishing of the cause and Court. For example one is sued for the detinue of certain Evidences or Charters and saith that the Evidences were delivered unto him not onely by the Plaintiff but by another also and therefore prayeth that that other may be warned to plead with the Plaintiff whether the said conditions be performed yea or no. And in this petition he is said to pray Garnishment New book of Entries fol. 211. colum 3. Terms of the Law Cromptons Jurisd fol. 211. which may be interpreted either warning of that other or else furnishing of the Court with parties sufficient throughly to determine the cause because untill he appear and joyn the Defendant as Fitzherb saith is as it were out of the Court nat br fol. 106. G. and the Court is not provided of all parties to the action I am the bolder thus to interpret it because I find Britton in the same
mind cap. 28. where he saith That contracts be some naked and sans garnment and some furnished or to use the literal signification of his word apparelled but a naked Obligation giveth no action but by common assent And therefore it is necessary or needfull that every Obligation be apparelled And an obligation ought to be apparelled with these sive sorts of garnements c. Howbeit I read it generally used for a warning in many places and namely in Kitchin fol. 6. Garnisher le court is to warn the Court. And reasonable garnishment in the same place is nothing but reasonable warning and again fol. 283. and many other Authors also But this may be well thought a Metonymy of the effect because by the warning of parties to the Court the Court is furnished and adorned Garrantie See Warrantie Garter Garterium cometh of the French Jartiere or Jartier i. periscelis fascia poplitaria It signifieth with us both in divers Statutes and otherwise one especiall Garter being the ensigne of a great and Noble Society of Knights called Knights of the Garter And this is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Poeta among the Graecians was Homer among the Romans Virgil because they were of all others the most excellent This high order as appeareth by M. Camden pag. 211. and many others was first instituted by that famous King Edward the third upon good successe in a skirmish wherin the Kings Garter I know not upon what occasion was used for a token I know that Polydore Virgil casteth in another suspition of the originall But his grounds by his own confession grew from the Vulgar opinion yet as it is I will mention it as I have read it Edward the third King of England after he had obtained many great victories king John of France king James of Scotland being both prisoners in the Tower of London at one time and king Henry of Castile the Bastard expulsed and Don Pedro restored by the Prince of Wales did upon no weighty occasion first erect this order in Anno 1350. viz. He danceing with the Queen and other Ladies of the Court took up a Garter that happened to fall from one of them whereat some of the Lords smiling the king said unto them That ere it were long hee would make that Garter to be of high reputation and shortly after instituted this order of the Blew Garter which every one of the order is bound dayly to wear being richly decked with Gold and precious stones and having these words written or wrought upon it Honi soit qui maly pence which is thus commonly interpreted Evill come to him that evil thinketh But I think it might be better thus Shame take him that thinketh evill See knights of the Garter M. Ferne in his glory of generosity agreeth with M. Camden and expressier setteth down the victories whence this order was occasioned whatsoever cause of beginning it had the order is inferior to none in the world consisting of 26. martial and heroical Nobles whereof the king or England is the chief and the rest be either Nobles of the Realm or Princes of other Countries friends and confederates with this Realm the Honour being such as Emperours and kings of other Nations have desired and thankfully accepted it he that will read more of this let him repair to M. Camden and Polydore and M. Ferne fol. 120. ubi supra The Ceremonies of the chapter proceeding to election of the investures and robes of his installation of his vow with all such other Observations see in M. Segars new book intituled Honour militarie and civill lib. 2. cap. 9. fol. 65. Garter also signifieth the principall kings at Armes among our English Heralds created by king Henry the fifth Stow. pag. 584. Garthman anno 13 R. 2. stat 1. ca. 19. anno 17. ejusd ca. 9. Gavelet is a special and antient kind of Cessavit used in Kent where the custome of Gavell kind continueth whereby the tenent shall forfeit his Lands and tenements to the Lord of whom he holdeth if he withdraw from him his due rents and services The new Expounder of Law Termes whom read more at large I read this word anno 10. Edw. 2 cap. unico where it appeareth to be a Writ used in the Hustings at London And I find by Fleta that it is used in other liberties as the Hustings of Winchester Lincolne York and the Cinque ports lib. 2. cap. 55. in principio Gavelkind is by M. Lamberd in his exposition of Saxon words verbo Terra et scripto compounded of three Saxon words gyfe cal cin omnibus cognatione proximis data But M. Verstegan in his restitution of his decayed intelligence cap. 3. called it Gavelkind quasi give all kind that is give to each child his part It signifieth in our Common law a custome whereby the Land of the Father is equally divided at his death amongst all his Sons or the Land of the Brother equally divided among the Brethren if he have no issue of his own Kitchin fol. 102. This custome is said to be of force in divers places of England but especially in Kent as the said Authour reporteth shewing also the cause why Kentish men rather use this custome than any other Province viz. because it was a composition made between the Conquerour and them after all England beside was conquered that they should enjoy their ancient customes whereof this was one For. M. Camden in his Britannia pag. 239. saith in expresse words thus Cantiani eâ lege Gulielmo Normanno se dediderunt ut patrias consuetudines illaesas retinerent illamque imprimis quam Gavelkind nominant Haec terrae quae eo nomine censentur liberis masculis ex aequis portionibus dividuntur vel faeminis si masculi non fuerint adding more worth the noting viz. Hanc haereditatem cùm quintum decimum annum attigerint adeunt sine Domini consensu cuilibet vel dando vel vendendo alienare licet Hac filii parent thus furti damnatis in id genus fundis succedunt c. This custome in divers Gentlemens lands was altered at their own petition by Act of Parliament anno 31 H. 8. cap. 3. But it appeareth by 18 H. 6. cap. pri that in those dayes there were not above thirty or fourty persons in Kent that held by any other Tenure See the new Terms Gavelet and Gavelkind Gawgeour gaugeator seemeth to come of the French Gawchir i. in gyrum torquere It signifieth with us an Officer of the Kings appointed to examine all Tunnes Hogsheads Pipes Barrels and Tercians of Wine Oil Honey Butter and to give them a mark of allowance before they be sold in any place And because this mark is a circle made with an iron Instrument for that purpose It seemeth that from thence he taketh his name Of this Office you may find many Statutes the first whereof is anno 27 Ed. 3. commonly called the Statute of provision or Purveyours cap. 8. GE Geld signifieth with the
Saxons pecunia vel tributum See Gyld Genets aliâs Jenets See Furre Gentleman generosus seemeth to be made of two words the one French gentil i. hònestus vel honesto loco natus the other Saxon Mon as if you would say a man well born The Italian followeth the very word calling those gentil homini whom we call Gentlemen The Spaniard keepeth the meaning calling him Hidalgo or Hijo d'algo that is the son of some man or of a man of reckoning The French men call him also gentil homme so that Gentlemen be those whom their blood and race doth make noble and known 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Greek in Latine Nobiles Smith de Repub. Anglor lib. 1. cap. 20. under this name are all comprised that are above Yeomen so that Noblemen be truly called Gentlemen But by the course and custome of England Nobility is either major or minor the greater contains all titles and degrees from Knights upward the lesser all from Barons downward Smith ubi supra cap. 21. The reason of the name as I take it groweth from this that they observe gentilitatem suam that is the race and propagation of their bloud by giving of arms which the common sort neither doth nor may do For by the Coat that a Gentleman giveth he is known to be or not to be descended from those of his name that lived many hundred years since Howbeit that this is neglected where substance faileth to maintain the countenance For many of great birth fall to poverty whose posterity living and labouring in want have small encouragement to look after the titles of their Ancestors and so in time slip into the number of the ignoble sort yet if they by their vertue or fortune can again advance themselves to sufficient ability the Herald out of his observations can restore them to the Coat of their Progenitors and now and then help them to one that their Ancestors never ware Gentiles homines see in Tiraquel de Nobilitate cap. 2. pag. 53. Tully in his Topickes thus saith of this matter Gentiles sunt qui inter se codem sunt nomine ab ingenuis oriundi quorum majorum nemo servitutem servivit qui capite non sunt diminuti And in the first book of his Tusc questions he calleth Tullum Hostilium one of the Kings of Rome gentilem suum General Issue vid. Issue Gestu fama is a Writ Lamb. Eirenarcha lib. 4. cap. 14. pag. 531. GI Gigge milles were for the fulling of Woollen Cloth and forbidden Anno 5 Edward 6. cap. 22. Gild alias Geld gildare cometh from the Saxon word Gildan i. solvere Lamb. in his explication of Saxon words saith verbo Contubernalis It is used as a verb and as a substantive also and as it is a substantive it is latined Gilda and signifieth a Tribute or sometime an amercement or thirdly a Fraternity or Company combined together with orders and laws made among themselves by the Princes license M. Camden citeth many antiquities by which it appeareth to signifie a tribute or tax as pag. 135. 139. 159. 168. 178. M. Crompton in his Jurisdictions fol. 191. sheweth it to be an amercement as foot geld and fol. 197. he interpreteth it to be a prestation within the Forest in these words To be quit of all manner of Gelds is to be discharged of all manner of prestations to be made for gathering of sheves of Corn of Lamb and of Wool to the use of Foresters Again M. Camden pag. 349. dividing Suffolk into three parts calleth the first Gildable because tribute is thence gathered the second libertatem S. Edmundi the third libertatem S. Etheldredae And the Statutes anno 27 Ed. 3. Stat. 2. cap. 13. anno 11 H. 7. cap. 9. use Gildable in the same sense and so doth the Statute anno 27 H. 8. cap. 26. From this M. Lamberd ubi supra is likewise perswaded that the common word Gild or Gildhall doth proceed being a Fraternity or Communalty of men gathered into one combination supporting their common charge by a mutual contribution And in the Register original fol. 219. b. I read Gildam mercatoriam that is the Gild Merchant which I have heard to be a certain liberty or privilege belonging to Merchants whereby they are enabled to hold certain plees of Land within their own Precincts This word Gildes or Guildes is so used anno 37 Ed. 3. cap. 51. anno 15 R. 2. cap. 5. And Gildbalda Teutonicorum is used for the fraternity of Easterling Merchants in London called the Stilyard anno 22 Hen. 8. cap. octavo Ginger Zinziber is a spice well known being the root of a plant that groweth in hot Countries as Spain Barbary c. The true form whereof you have expressed in Gerards Herbal lib. 1. cap. 38. This is a spice whose root is to be garbled anno 1 Jacob. cap. 19. Gynny peper piper de Ginnea is otherwise called Indian peper of the place whence it cometh The nature and farther description whereof you have in Gerards Herbal lib. 2. cap. 66. This you have mentioned among druggs and spices to be garbled in the Statute 1 Jacob. cap. 19. Gisarms anno 13 Ed. 1. stat 3. cap. 6. is a kind of weapon Fleta writeth it Sisarms lib. 1. cap. 24. § item quod quilibet GL Glawnce Ore Plowden casu Mines fol. 320. b. Glanvil was a learned Lawyer that was chief Justice in Henry the seconds dayes and writ a Book of the Common laws of England which is the ancientest of any extant touching that subject Stawnf praerog cap. prim fol. 5. He was then called in Latine Ranulphus de Glanvilla He dyed in Richard the first his dayes at the City of Acres in the Coast of Jury being with him in his voyage to the Holy Land Plowden casu Stowel folio 368. b. GO Go is used sometime in a special signification in our Common law as to go to God is to be dismissed the Court. Brook titulo Fayler de records num 1. Go forward seemeth also to be a sign given by a Judge to the Seargeant or Counsellor pleading the cause of his Clyent that his cause is not good For when he standeth upon a point of Law and heareth those words of the Judges mouth he taketh understanding that he loseth the Action Smith de Repub. Anglo lib. 2. cap. 13. To go without day is as much as to be dismissed the Court Kitchin fol. 193. Good behavior See Good abearing Good abearing Bonus gestus is by an especial signification an exact carriage or behaviour of a subject toward the King and his liege people whereunto men upon their evil course of life or loose demeanure are sometimes bound For as M. Lamberd in his Eirenarcha lib. 2. cap. 2. saith he that is bound to this is more strictly bound than to the peace because where the peace is not broken without an affray or batterie or such like this surety de bono gestu may be forefeited by the
sub lege signifieth him that is in some franck pledge of whom take Bractons words li. 3. tract 2. ca. H. nu 5. Minor vero qui infra aetatem duodecim annorum fuerit utlagari non potest nec extra legem pont quiae ante talem aetatem non est sub lege aliqua nec in decenna non magis quam foemina quae utlagari non potest quiae ipsa non est sub lege i. Inlowghe anglice sc in franco plegio sive decenna sicut masculus duodecim annorum ulterius c. Inlaughe significat hominem subjectum lege Fleta lib. 1. cap. 47. Inlagary Inlagatio is a restitution of one outlawed to the Kings protection and to the benefit or estate of a subject Bracton lib. 3. tract 2. cap. 14. nu 6 7 8. Britton cap. 13. Inmates are those that be admitted to dwell for their money jointly with an other man though in several rooms of his Mansion house passing in and out by one door and not being able to maintain themselves which are inquiral in a Leet Kitchin fol. 45. where you may read him at large who be properly Inmates in intendment of law and who not Imprison anno 18. Ed. 3. statu 4. cap. unico seemeth to signifie so much as an attempt comming of the French Empris which is all one with Enterpris an enterprite Inquirendo is an authority given to a person or persons to inquire into something for the Kings advantage which in what cases it lyeth see the Register original fol. 72.85.124.265.266.179.267 Inquisition Inquisitio is a maner of proceeding in matters criminal by the office of the Judge which Hostiensis defineth thus Inquisitio nihil aliud est quam alicujus criminis manifesti ex bono aequo Judicis competentis canonice facta investigatio ca. qualiter de accusatio in the Decretales this course we take here in England by the great inquest before Iustices in Eyre See Eyre and the places in Bracton and Britton there noted Inquisition is also with us used for the King in temporal causes and profits in which kind it is confounded with Office Stawnford praerogativ fol. 51. See office Inrolement Irrotulatio is the Registring recording or entring of any lawful act in the Rolles of the Chancerie as recognisance acknowledged or a Statute or a Fine levied See West parte 2. symbol titulo Fines Sect. 133. Insimul tenuit is one species of the writ called a Formdon See Formdon Intakers be a kind of Thieves in Ridesdall anno 9. H. 5. ca. 8. so called as it seemeth because they dwelling within that liberty did receive in such booties of cattel or other things as the out parters brought in unto them See Out parters Interdiction Interdictio is used in the Common law in the same signification that it hath in the Canon law where it is thus defined Interdictio est censura ecclesiastica prohibens administrationem divinorum c. quod in te de poenitent remiss in the Decretals and thus is it used an 24. H. 8. ca. 12. Interpleder See Enterpleder Intrusion intrusio by Bracton lib. 4. cap. 2. is thus defined Intrusio est ubi quis cui nullum jus competit in re nec scintilla Iuris possessionem vacuam ingreditur quae nec corpore nec animo possidetur sicut haereditatem jacentem antequam adita fuerit ab haerede vel saltem à domino capitali ratione custodiae vel ratione eschaetae si forte haeredes non existant vel si post mortem alicujus per finem factum â—â—l per modum donationis ubi successio sibi locum vendicare nonpossit vel si post mortem alicujus qui tenuit ad vitam debeat tenemen um reverti ad proprietarium ponat quis se in seisinam antequam tenementum illud veniat ab illis ad quem pertinere deberet ex praedictis causis with whom agreeth Fleta lib. 4. cap. 30. sect 1. 2. See Britton cap. 65. to the same effect See the new book of Entries verb. Entrusion See Entrusion See Disseisin the Author of new Terms of law would have intrusion especially after the tenant for life is deceased Verbo Abatement and abatement in all other cases But I find not any Latine word for Abatement but intrusio so that 1 rather think these two English words to be Synonyma and Fleta cap. supra citato seemeth direct against this his opinion Intrusione is a Writ that lyeth against the Intruder Regist fol. 233. Inventarie inventarium is a description or repertory orderly made of all dead mens goods and Cattels prized by four credible men or more which every Executor or Administrator ought to exhibite to the Ordinary at such times as he shall appoint the same West parte prim Symb. lib. 2. sect 696. where likewise you may see the form This Inventary proceedeth from the Civil Law for whereas by the antient Law of the Romans the Heir was tyed to answer all the Testators debts by which means heritages were prejudicial to many men and not profitable Justinian to encourage men the better to take upon them this charitable office ordained that if the Heir would first make and exhibite a true Inventary of all the Testators substance comming to his hand he should be no further charged than to the value of the Inventary l. ult Cod. de Jure deliberando Invest investire commeth of the French word Invester and signifieth to give possession Hear Hotoman de verbis feudalibus verbo Investitura Investitura barbarum nomen barbaricam quoque rationem habet Nam ut ait Feudista lib. 2. tit 2. Investitura propriè dicitur quando hasta vel aliquod corporeum traditur à domino with us we use likewise to admit the Tenant by delivering them a verge or rodd into their hands and ministring them an oath which is called Investing Others define it thus Investitura est alicujus in suum jus introductio Inure signifieth to take effect as the pardon inureth Stawnf praerog fol. 40. See Enure JO Joynder is the coupling of two in a sute or action against another Fitzh nat br fol. 118. H. 201. H. 221. H. in many other places as appeareth in the Index verbo Joynder Joynt tenants fimul tenentes liber intrationum titulo Formdon in vieu 3. be those that come to and hold Lands or Tenements by one title pro indiviso or without partition Littleton lib. 3. cap. 3. and Terms of Law See Tenants in common Joyning of issue Junctio exitus See Issue Joynture Junctura is a covenant whereby the husband or some other friend in his behalf assureâ—h unto his wife in respect of mariage lands or tenements for term of her life or otherwise See West part 2. Symbol lib. 2. titulo Covenants sect 128. and the new exposition of the law Terms It seemeth to be caled a Joynture either because it is granted ratione juncturae in matrimonio or because the land in Frank mariage is given
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
of summs under forty shillings Crompton fol. 231. agreeth with him It is called a Justicies because it is a commission to the Sheriff ad Justiciandam aliquem to doe a man right and requireth no return of any certificate of what he hath done Bracton lib. 4. tract 6. cap. 13. num 2. maketh mention of a Justicies to the Sheriff of London in a case of Dower See the new book of Entries Justicies Justification Justificatio is an upholding or shewing a good reason in Court why he did such a thing as he is called to answer as to Justifie in a cause of Replevin Broke titulo Replevin KE KEeper of the great Seal Custos Magni Sigilli is a Lord by his Office and called Lord-Keeper of the great Seal of England c. and is of the Kings privy Councel under whose hands pass all Charters Commissions and Grants of the King strengthened by the great or broad Seal Without the which Seal all such Instruments by Law are of no force for the King is in interpretation and intendment of Law a Corporation and therefore passeth nothing firmly but under the said Seal This Lord Keeper by the Statute anno 5 Eliz. cap. 18. hath the same and the like place authority preheminence Jurisdiction execution of Laws and all other Customes Commodities and advantages as hath the Lord Chancellor of England for the time being Keeper of the privy Seal Custos privati Sigilli is a Lord by his Office under whose hands pass all Charters signed by the Prince before they come to the broad or great Seal of England He is also of the Kings privy Councell He seemeth to be called Clerk of the privy Seal anno 12 Rich. 2. cap. 11. But of late daies I have known none to bear this Office by reason the Prince thinketh good rather to keep his Seal in his own hands and by private trust to commit it to his principal Secretary or some such one of his Councel as he thinketh fit for that function Keeper of the Touch anno 2 H. 6. cap. 14. seemeth to be that Officer in the Kings Mint which at this day is termed the Master of the Assay See Mint Keeper of the Forest Custos Forestae is also called Chief Warden of the Forest Manwood parte prim of his Forest laws pag. 156. c. and hath the principal government of all things belonging thereunto as also the check of all Officers belonging to the Forest And the Lord Chief Justice in Eyr of the Forest when it pleaseth him to keep his Justice Seat doth forty daies before send out his general Summons to him for the warning of all under Officers to appear before him at a day assigned in the Summons This see in Manwood ubi supra KI King Rex is thought by M. Camden in his Britan. pag. 105. to be contracted of the Saxon word Cyninge signifying him that hath the highest power and absolute rule over our whole Land and thereupon the King is in intendment of Law cleared of those defects that Common persons be subject unto For he is alwaies supposed to be of full age though he be in years never so young Cromptons Jurisdictions fol. 134. Kitchin fol. 1. He is taken as not subject unto death but is a Corporation in himself that liveth ever Crompton ibidem Thirdly he is above the Law by his absolute power Bracton lib. 1. cap. 8. Kitchin fol. 1. And though for the better and equal course in making Laws he do admit the three Estates that is Lords Spiritual Lords Temporal and the Commons unto Counsel yet this in divers learned mens opinions is not of constraint but of his own benignity or by reason of his promise made upon oath at the time of his Coronation For otherwise were he a Subject after a sort and subordinate which may not be thought without breach of duty and loyalty For then must we deny him to be above the Law and to have no power of dispersing with any positive law or of granting especial Privileges and Charters unto any which is his only and clear right as Sir Thomas Smith well expresseth lib. 1. cap. 3. de Repub. Anglica and Bracton lib. 2. cap. 16. num 3. and Britton ca. 39. For he pardoneth life and limme to Offendors against his Crown and Dignity except such as he bindeth himself by Oath not to forgive Stawnf pl. Cor. l. 2. ca. 35. And Habet omnia jura in manu sua Bracton l. 2. c. 24. nu 1. And though at his Coronation he take an Oath not to alter the laws of the Land yet this Oath notwithstanding he may alter or suspend any particular Law that seemeth hurtfull to the publique Estate Blackwood in Apologia Regum cap. 11. See Oath of the King Thus much in short because I have heard some to be of opinion That the Laws be above the King But the Kings Oath of old you may see in Bracton lib. 3. cap. 9. nu 2. for the which look in Oath of the King The Kings Oath in English you may see in the old Abridgement of Statutes titulo Sacram. Regis Fourthly the Kings only Testimony of any thing done in his presence is of as high nature and credit as any Record Whence it commeth that in all Writs or Precepts sent out for the dispatch of Justice he useth none other Witness but himself alwaies using these words under it Teste me ipso Lastly he hath in the right of his Crown many Prerogatives above any common person be he never so potent or honorable whereof you may read you fill in Stawnfords Tractate upon the Statute thereof made anno 17 Ed. 2. though that contain not all by a great number What the Kings power is read in Bracton lib. 2. cap. 24. nu pri 2. King of Heralds Rex Haraldorum is an Officer at Armes that hath the preeminence of this Society See Herald This officer of the Romans was called Pater Patratus Kings Bench Bancus Regius is the Court or Judgement Seat where the King of England was wont to sit in his own person and therefore was it moveable with the Court or Kings houshold And called Curia Domini Regis or Aula Râ—gia as Master Gwin reporteth in the Preface to his Readings and that in that and the Exchequer which were the only Courts of the King untill Henry the Thirds dayes were handled all matters of Justice as well Civil as Criminal whereas the Court of Common Plees might not be so by the Statute anno 9 H. 3. cap. 11. or rather by Master Gwins opinion was presently upon the grant of the great Charter severally erected This Court of the Kings bench was wont in ancient times to be especially exercised in all Criminal matters and Plees of the Crown leaving the handling of private contracts to the County Court Glanvil lib. 1. cap. 2 3 4 lib. 10. cap. 18. Smith de Repub. Anglicana lib. 2. cap. 11. and hath President of it the Lord
see the usual form hereof particularly set down whereunto joyn the new Exposition of Law terms Lieutenant see Lieftenant Lieutenant of the Tower seemeth to have been an Officer under the Constable an H. 4. cap. 15. LO Locus partitus signifieth a division made between two Towns or Countries to make trial in whether the Land or place in question lieth Fleta lib. 4. cap. 15. nu 1. Locall localis signifieth in our Common law as much as tyed or annexed to a place certain Example the thing is local and annexed to the freehold Kitchin folio 180. And again in the same place An action of trespass for battery c. is transitory not local that is not needfull that the place of the battery should be set down as material in the Declaration or if it be set down that the Defendant should traverse the place set down by saying he did not commit the battery in the place mentioned in the Declaration and so avoid the Action And again fol. 230. the place is not local that is not material to be set down in certainty And the gard of the person and of the lands differeth in this because the person being transitory the Lord may have his Ravishment de Gard before he be seised of him but not of the Land because it is local Perkins Grants 30. Lobbe is great kind of North sea fish an 31 Ed. 3. stat 3. ca. 2. Lodemanage is the hire of a Pslot for conducting of a ship from one place to another Loich fish as Lob Ling Cod an 31 Ed. 3. stat 3. cap. 2. Lodeworks is one of the works belonging to the stanneries in Cornwall for the which read M. Cambdens Britan. in his title of Cornwall pag. 119. See Stremework Lollards Lollardi were in account and reputation of those times Heretiques that abounded here in England in the daies of Edward the third and Henry the fifth an 2 H. 5. cap. 7. whereof Weekliefe was the chief as Stow saith in his Annals pa. 425. who by this report went bare footed and basely cloathed to wit in base russet garments down to the Heels they preached and especially against Monks and other religious men Of these read more in him and others that writ of those times The name Lindwood derià Lolio quia sicut lolium inficit segetes sic Lollardi multociens inficinnt fideles simplices inter quos conversantur in ca. finali de Haereticis verbo Lollardiae But Tritemius in his Chronicle deduceth the name from one Gualter Lolhard a German as the first Author of that Sect living about the year of our Redemption 1315. Lord Dominus by Master Cambdens opinion is a contract of Lafford which is the Danish word for dominus It is a word of honor with us and is used diversly Sometime being attributed to a man that is noble by birth or creation which sort are otherwise called Lords of the Parliament Sometime to those that be so called by the courtesie of England as all the Sons of a Duke or the eldest son of an Earl Sometime to men honorable by office as Lord Chief Justice c. And sometime to a mean man that hath fee and so consequently the homage of Tenents within his Manour for by his Tenents he is called Lord and by none other and in some places for distinction sake he is called Land-lord It is used nevertheless by the Writers of the Common law most usually in this signification and so is it divided into Lord above and Lord measn Lord Measn is he that is owner of a Mannour and by vertue thereof hath Tenants holding of him in fee and by copy of Court-roll and yet holdeth himself over a Superiour Lord who is called Lord above or Lord paramount Old nat br fol. 79. Although I think none simply to be accounted Lord paramount but the Prince because all other hold mediately or immediately of him and he of none In this signification I like wise read Very Lord and very Tenent eodem fo 42. and Brook titulo Heriot n. 1. where I think very Lord is he which is immediate Lord to his Tenent and him to be Very Tenent to that Lord of whom he immediately holdeth So that if there be Lord above Lord measn and Tenant the Lord above is not very Lord to the Tenent nor the tenent very tenent to the Lord above Lord in grosse Fitzh nat brev fol. 3. is he that is Lord having no manour as the King in respect of his Crown idem fol. 5. f. See him also fo 8. a b. where I find a Case wherin a private man is Lord in gross viz. a man make a gift in tayl of all the land he hath to hold of him and dieth his heir hath but a Seignory in gross Lorimersy an 1 Richard 2. cap. 12 is one of the Companies of London that maketh Bits or Briddles of Horses and such like the name seemeth to be taken from the Latin Lorum and is elsewhere written Lorinors Lotherwit aliâs Leyerwit is a liberty or privilege to take amends of him that defileth your Bond-woman without licence Rastals expositinn of words It is an amends for lying with a Bond-woman Saxon in his description of England cap. 11. Some think it should be rather written Legerwit for Leger is the Saxon word for a Bed or Logherwit of the old word Logher being of the same signification See Bloodwit and Lyerwit LU Lusernes see Furre Lushoborow is a base coyn used in the daies of King Edward the third coyned beyond Seas to the likeness of English mony and brought in to deceive the King and his subjects To avoid the which it was made Treason for any man wittingly to bring in any such anno 25 Edward the third stat 4. cap. secundo MA MAcegriefs aliâs Macegrefs be such as willingly buy and sell stollen flesh Briton cap. 29. fol. 71. b. Cromptons Justice of Peace fol. 193. a. Magna assisa eligenda is a Writ directed to the Sheriff to summon four lawfull Knights before the Justices of Assise there upon their Oaths to chuse twelve Knights of the vicenage c. to pass upon the great Assise between A. Plaintiff and B. Defendant c. Regist orignal fol. 8. a. Magna Charta called in English the great Charter is a Charter containing a number of Laws ordained the ninth year of Henry the third and confirmed by Edward the first The reason why it was tearmed Magna Charta was either for that it contained the sum of all the written laws of England or else that there was another Charter called the Charter of the Forest established with it which in quantity was the lesser of the two I read in Holinshed that K. John to appease his Barons yielded to Laws or Articles of Government much like to this great Charter but we now have no ancienter written law than this which was thought to be so beneficial to the Subject and a Law of so great equity in comparison of
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
want of heirs c. Privy seal privatum sigillum is a seal that the King useth sometime for a warrant whereby things passed the privy signet and brought to it are sent farther to be confirmed by the great Seal of England sometime for the strength or credit of other things written upon occasions more transitory and of less continuance than those be that pass the great seal Privilege privilegium is defined by Cicero in his Oration pro domo sua to be lex privata homini irrogata Frerotus in paratit lis ad titulum decretalâ—um de privilegiis thus defineth it privilegium est jus singulare hoc est privata lex quae uni homini vel loco vel Collegio similibus aliis conceditur cap. priv legia distinct 3. priva enim veteres dixere quae nos singula dicimus Infit Agellius li. 10. ca. 20. Idiòque privilegia modò beneficia modò personales constitutiones dicuntur c. It is used so likewise in our Common law and sometimes for the place that hath any special immunity Kitchin fo 118. in the words where debters make feigne dgifts and feoffments of their land and goods to their friends and others and betake themselves to privileges c. Privilege is either personal or real a personal privilege is that which is granted to any person either against or beside the course of the Common law as for example a person called to be one of the Parliament may not be arested either himself or any of his attendance during the time of the Parliament A privilege real is that which is granted to a place as to the Universities that none of either may be called to Westminster hall upon any contract made within their own precincts And one towards the Court of Chancery cannot originally be called to any Court but to the Chancery certain cases excepted If he be he will remove it by writ of Privilege grounded upon the statute anno 18 Edward the third See the new book of Entries verbo Privilege Probat of Testaments probatio testamentorum is the producting and insinuating of dead mens Wills before the ecclesiastical Iudge Ordinary of the place where the patty dyeth And the Ordinary in this case is known by the quantity of the goods that the party deceased hath out of the Dioces where he departed For if all his goods be in the same Dioces then the Bishop of the Dioces or the Arch-deacon according as their composition or prescription is hath the probat of the Testament if the goods be dispersed in divers Dioceses so that there be any sum of note as five pounds ordinarily out of the Dioces where the party led his life then is the Archbishop of Canterbury the ordinary in this case by his prerogative For whereas in old time the will was to be proved in every Dioces wherein the party deceased had any goods it was thought convenient both to the subject and to the Archiepiscopal See to make one proof for all before him who was and is of all the general ordinary of his Province But there may be antiently some composition between the Archbishop and an inferiour ordinary whereby the sum that maketh the prerogative is above five pound See Praerogative of the Archbishop This probat is made in two sorts either in common form or pertestes The proof in common form is only by the oath of the executor or party exhibiting the Will who sweareth upon his credulity that the Will by him exhibited is the last Will and Testament of the party deceased The proof per testes is when over and beside his oath he also produceth witnesses or maketh other proof to confirm the same and that in the presence of such as may pretend any interest in the goods of the deceased or at the least in their absence after they have been lawfully summoned to see such a Will proved if they think good And the later course is taken most commonly where there is fear of strife and contention between the kindred or friends of the party deceased about his goods For a VVill proved only in common form may be called into question any time within thirty years after by common opinion before it work prescription Procedendo is a writ whereby a plee or cause formerly called from a base Court to the Chancery Kings bench or Common plees by a writ of privilege or certiorare is released and sent down again to the same Court to be proceeded in there after it appeareth that the Defendant hath no case of privilege or that the matter comprised in the Bill be not well provided Brook hoc titulo and Terms of the law Cook vol. 6. fol. 63. a. See an 21 R. 2. ca. 11. in fine letters of procedendo granted by the Keeper of the privy seal See in what diversity it is used in the table of the original Register and also of the Iudicial Iâ—roces processus is the manner of proceeding in every cause be it personal or real civil or criminal even from the original writ to the end Britton fol. 138 a. wherein there is great diversity as you may see in the table of Fitz. nat br verbo Proces and Brooks Abridgement hoc titulo And whereas the writings of our Common Lawyers sometime call that the Proces by which a man is called into the Court and no more the reason thereof may be given because it is the beginning or the principal part thereof by which the rest of the business is directed according to that saying of Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Divers kinds of Proces upon Inditements before Iustices of the peace See in Cromptons Justice of peace fol. 133 b. 134.135 But for orders sake I refer you rather to M. Lambard is his tractat of Processes adjoined to his Eirenarcha who according to his subject in hand divideth criminal Proces either into Proces touching causes of treason or felony and Proces touching inferiour offences the former is usually a capias capias alià s exigifaciaâ— The second is either upon inditement or presentment or information that upon inditement or presentment is all one and is either general and that is a venire facias upon which if the party be returned sufficient then is sent out a Distringas infinitè untill he come if he be returned with a Nihil babet then issueth out a Capias Capias aliis Capias pluries and lastly an Exigi facias The special proces is that which is especially appointed for the offence by statute For the which he referreth his reader to the eighth chapter of his fourth book being very different Processum continuando is a writ for the continuance of a Proces after the death of the chief Iustice in the writ of oyer and terminer Register original fol. 128. a. Prochein amy proximus amicus vel propinquier is word for word a neer friend It is used in our Common law for him that is next of kinne to a child in his
of Courts Seneshat de l'hostel de Roy Steward of the KINGS Houshold Cromptons Jurisdictions fol. 102. Senescallo Mareshallo quod non teneant placita de libero tenemento c. is a writ directed to the Steward or Marshal of England inhibiting them to take cognizance of any action in their Court that concerneth either Freehold debt or Covenant Register original fol. 185. a. 191. b. Senie aliâs Sene sena is a leaf of a medicinable herb that bringeth forth stalks of a cubit high purging Phlegmatick Cholerick and also Melancholick humours without great violence The farther use whereof you may read in Gerrards Herbal lib. 3. cap. 8. This is mentioned among other Drugs and spices to be garbled anno 1 Jac cap. 19. Septuagesima is a Sunday certain and alwaies the third Sabbath before Shrove sunday from the which until the Octaves after Easter the solemnizing of mariage is by the Canon laws forbidden The reason whereof is given for that all this time until Easter is a time of mourning for the fall of Adam and for the misery of man thereof insuing And Easter with the Octaves thereof is a time of Christs glorification and so of ours also in him for his and by him our conquest over death and sin And that therefore all carnal affection onght during that space to be wholly mortified in us See Quinquagesima see Advent see Rogation week Sequitur sub suo periculo is a writ that lyeth where a summons adwarrantizandum is awarded and the Sheriff returneth that he hath nothing whereby he may be summoned For then goeth out an Aliâs and Pluries And if he come not at the Pluries then shall go out this writ Old nat br fol. 163. Sequestration sequestratio is a separating of a thing in controversie from the possession of both those that contend for it And it is double voluntary or necessary Voluntary is that which is used by the consent of each party Necessary is that which the Judge of his Authority doth whether the parties will or not It is used also for the act of the ordinary disposing of office the goods and chattels of one deceased whose estate no man will meddle with Dyer fol. 232. num 5. fol. 256. num 8. fol. 160. num 42. fol. 271 num 26. as also in the gathering of the fruits of a Benefice void to the use of the next Incumbent anno 28 H. 8. cap. 11. Fortescue cap. 50. and in divers other cases Sequestro habendo is a writ judicial for the dissolving of a seqnestration made by the Bishop at the Kings commandement of the fruits of a benefice thereby to compell the Parson to appear at the sute of another for the Parson upon his appearance may have this writ for the release of the sequestration Register judicial fol. 36. a. Sergeants servians commeth of the French sergeant i. satelles accensus a man of the Guard a kind of Souldier so called because he was sepè accitus ad res necessarias in exercitu peragendas Calepin M. Skene de verb. signif verb. Serjeant hath these words Sergeant commeth from Sergent quae est vox composita de Serrer quod est inclndere gent. quod pro gente populo vel plebe usurpatur Itaque Serjandus disitur qui jussu magistratus quemlibet de populo reum crimints in carcerem corjicit seu includit This word Sergeant is diversly used in our Law and applyed to sundry offices and callings First a Sergeant at Law or of the Coyfe is the highest degree taken in that profession as a Doctor in the Civil law And to these as men best learned and best experienced of all others is there one Court severed to plead in by themselves and that is the Court of Common pleas where the Common law of England is most strictly observed These are made by the Kings mandat or VVrit directed unto them commanding them upon a great penalty to take upon them that degree by a day certain therein assigned Dyer fol. 72. num 1. see Counte And of these one is the Kings Sergeant being commonly chosen by the King out of the rest in respect of his great learning to plead for him in all his causes as namely in causes of treason pl. cor li. 3. ca. pri And of these there may be more if it so please the King This is called in other Kingdomes Advocatus Regius Cassan de consuet Burgund pag. 850. VVith what solemnity these Sergeants be created read Fortescue cap. 50. This word Sergeant seemeth to be used in Britton for an Officer belonging to the County who in his first Chapter speaking of Appeals made before the Coroner hath these words in effect And then let the Coroner cause his appeal to be entred and the names of his sureties And afterward let commandement be given to the Sergeant of the County where the felony was committed that he have the body of the persons appealed at the next County And it is probable that this Officer was all one with him whom Bracton in his fifth book cap. 4. num 2. calleth Servientem Hundredi of whom he hath these words Post probationem defaltae faciet serviens Hundredi incontinenti summonitionem vel affidet partibus diem si praesentes sint ad proximum Comitatum c. This is like to be the same Officer which in antient time was called the Bayliff of the Hundred who as is declared in Bayliff had the like authority in his Hundred that the Shyreeve had in the County though inferiour to him and to be controlled by him as appeareth by divers antient presidents set down by Kitchin in his Tractat of Returns in Court Hundred Court-Baron c. I read also in Bracton lib. 3. tractat 2. cap. 28. Of the Kings Sergeant who is like to be also an Officer in the County in these words speaking of a woman ravished and what she ought to do for the pursute of the Ravisher sic ire debet ad prepositum Hundredi ad servientem Domini Râ—gis ad coronatores ad Vicecomitem ad primum comitatum faciat appellum suum And again eod l. c. 32. in these words si sine secta cognoverit se inde esse latronem coram vicecomite vel coronatore vel serviente Domini Regis c. And again lib. 5. tract 3. cap. 4. num 8. in these words Quid si servien Domini Regis dederit partibus diem ad Comitatum c. And by Fleta it seemeth that this Term was general to the Shyreeve Coroner and Bayliffs of Counties who in his sixt book cap. 3. § 1. hath these words Com. quis igitur senserit dominum suum vel euriam suam sibi de recto defecisse tunc ost ense hoc Vicecomiti statim praecipiat ballivo Hundredi vel iteneranti vel alteri servienti Regis quòd assumptis sibi l beris legalibus hominibus de viceneto illo ad curiam illius
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
used in our vulgar talk for the petit Sessions which are yearly kept for the disposing of Servants in service by the Statute anno 5 Elizabeth cap. 4. See Recognisance Statute sessions otherwise called Petit Sessions are a meeting in every Hundred of all the Shires in England where of custome they have been used unto the which the Constables do repair and others both Housholders and servants for the debating of differences between Masters and their Servants the rating of Servants wages and the bestowing of such people in Service as being fit to serve either refuse to seek or cannot get Masters anno 1 Eliz. cap. 4. Statu'o stapulae is a writ that lyeth to take his body to Prison and to seise upon his Lands and goods that hath forfeited a bond called Statute staple Regist orig fol. 151. a. Statutam de laborariis is a writ Iudicial for the apprehending of such labourers as refuse to work according to the Statute Reg. judi fol. 27. b. Statuto Mercatorio is a writ for the imprisoning of him that hath forfeited a bond called the Statute Merchant untill the debt be satisfied Regist origin fol. 146. b. and of these there is one against Lay persons ubi supra and another against Ecclesiastical 148. Stavisaker staphis agria vel herba pedicularis is a medicinable herb the kind and vertues thereof you have set forth in Gerards Herbal lib. 1. cap. 130. The seed of this is mentioned among drugs to be garbled anno 1 Jacob. ca. 19. Stenrerie is used for the same that Stannaries be in the statute anno 4 H. 8. cap. 8 See Stannaries Sterling Sterlingum is a proper epitheton for mony currant within the Realm The name groweth from this that there was a certain pure Coyn stamped first of all by the Easterlings here in England Stows Annals pag. 112. The which I rather believe because in certain old Monuments of our English and broken French I find it written Esterling so Roger Hoveden writeth it parte poster annalium fol. 377. b. M. Skene de verborum sipnific verbo Sterlingus saith thus Sterling is a kind of weight containing 32 corns or grains of wheat And in the Canon law mention is made of five shilling sterling and of a merk sterling ap 3. de arbitriss c. constituit 12. de procurator And the sterling peny is so called because it weighs so many grains as I have sundry times proved by experience and by the law of England the peny which is called the sterling round and without clipping weigheth 32 grains of wheat without tails whereof twenty make an ounce and 12 ounces a pound and eight pound make a gallon of wine and eight gallons maketh a bushell of London which is the eighth part of a quarter Hitherto M. Skene Buchanan lib. 6. saith that the common People think it so termed of Sterling a Town in Scotland Our Lyndwood saith that it is called sterling of the bird which we call a sterling which as he noteth was ingraven in one quarter of the coin so termed cap. Item quia de testamentis vaerb Cent. solides in Glos Stews are those places which were permitted in England to women of prosessed incontinency for the proffer of their bodies to all commers it is derived from the French Estuves i. thermae vaporarium Balneum because wantons are wont to prepare themselves to these venerous acts by bathing themselves And that this is not new Homer sheweth in the 8 book of his Odiss where he reckneth hot bathes among the effeminate sort of pleasures Of these stewes see the statute anno 11 Hen 6. ca. pri Steward See Seneschall and Stuward Steward of the Kings house an 25 Ed. 3. statute 5. cap. 21. Stily ard Guilda Theutonicorum anno 22 H. 8. ca. 8. et anno 32 ejusdem ca. 14. is a place in London where the fraternity of the Easterling Merchants otherwise the Merchants of Hawnse and Almain an pri Ed. 6. cap. 13. are wont have their abode See Geld. It is so called of a broad place or Court wherein Steel was much sold upon the which that house is now founded Nathan Câ—itraeus See Hawnse Stone of wool Petra lanae see Weights See Sarpler It ought to weigh 14 pounds yet in some places by custome it is more See Cromptons Justice of peace f. 83. b. Straife aliâs Stray See Estry Straits anno 18 H. 6. ca. 16. Streme works is a kind of work in the Stanaries for saith M. Camden titulo Cornwall pa. 119. Horum Stanarioâ—um five metallicorum operum duo sunt genera Alterum Lode-works alterum streme works vo cant Hoc in lecis inferioribus est cum Fossis agendis stanni venas sectantur et fluvierum alveos subinde defl ctunt illud in locis aeditiorsbus cum in montibus puteor quod Shafts vcc in t in magnam attitudinem defodiunt et cuniculos agunt These you may read mentioned an 27 H. 8. cap. 23. Stirks Strip See Estreapement SU Suard aliâs steward senescallus seemeth to be compounded of Steed and ward and is a word of many applications yet alway signifieth an officer of chief account within the place of his sway The greatest of these is the Lord high Steward of England whose power if those Antiquities be true which I have read is next to the Kings and of that height that it might in some sort match the Ephori amongst the Lacedemonians The custom of our Common-wealth hath upon great consideration and policie brought it to passe that this high Officer is not appointed for any long time but only for the dispatch of some especiall businesse at the arraignment of some Nobleman in the case of treason or such like which once ended his Commission expireth Of the high Steward of Englands Court you may read Cromptons Jurisd f. 28. I have read in an antient Manuscript of what credit I know not that this Officer was of so great power in antient times that if any one had sought justice in the Kings Court and not found it he might upon complaint therof made unto him take those Petitions and reserving them to the next Parliament cause them there to be propounded and not only so but also in the presence of the King openly to rebuke the Chancellor or any other Judge or officer whom he found defective in yeilding Justice And if in case the judge or Officer so reprehended did allege that his defect grew from the difficultie of the case insomuch as he durst not adventure upon it then the case being shewed and so â—ound the Lord Steward together wich the Constable of England there in the presence of the King and Parliament might elect five and twenty persons or more or fewer according to their discretion and the case or cases in question some Earls some Barons some Knights some Citizens and Burgesses which upon deliberation should set down what they thought just and equal and their decree being read and allowed by Parliament did
defined as when a servant killeth his Master or a VVife her Husband or when a secular or religious man killeth his Prelate to whom he oweth faith and obedience And in how many other cases petit treason is committed see Cromptons Iustice of peace And this manner of treason giveth forfeiture of Escheats to every Lord within his own fee anno 25 Edw. 3. cap. 2. Of treason see Bracton lib. 3. tract 2. cap. 3. nu pri et 2. Treason compriseth both high and petit treason anno 25 Ed 3. stat 3. ca. 4. Treasure trove Thesaurus inventus is as much as in true French Tresor trouve i. treasure found and signifieth in our Common law as it doth in the Civil law id est veterom depositionem pecuniae cujus non extat mâ—mâ—â—ia ut jam dominum non habcat l. 31. sect prim de acquir rerum Dom. Neer unto which definition commeth Braction lib. 3. tract 2. cap. 3. num 4. And this treaâ—ure â—ound though the Civil law do give it to the finder according to the law of nature yet the law of England giveth it to the King by his Prerogative aâ— appeareth by Bracton ubi supra And therefore as he also saith in the 6 Chapter it is the Coroners office to enquire thereof by the Country to the Kings use And Stawnford pl. cor lib. prim cap. 42. saith that in antient times it was doubtfull whether the concealing of treasure found were felony yea or not and that Bracton calleth it gravem praesumptionem et quasi crimen furti But the punishment of it at these daies as he proveth out of Fitzh Abridgement pag. 187. is imprisonment and fine and not life and member And if the owner may any waies be known then doth it not belong to the Kings Prerogative Of this you may read Brâ—ton also cap. 17. who saith that it is every Subjects part as soon as he hath found any treasure in the Earth to make it known to the Coroners of the County or to the Bailiff c. See Kitchin also fol. 40. Treasurer thesaurarius commeth of the French treserier i. quaestor praefectus fisci and signifieth an Officer to whom the treasure of another or others is committed to be kept and truly disposed of The chiefest of these with us is the Treasurer of England who is a Lord by his Office and one of the greatest men of the Land under whose charge and government is all the Princes wealth contained in the Exchequer as also the check of all Officers any way imployed in the collecting of the Imposts Tributes or other Revenues belonging to the Crown Smith de Repub. Anglor lib. 2. cap. 14. more belonging to his Office see anno 20 Edw. 3. cap. 6. et anno 31 Henr. 6. cap. 5. et anno 4 Edw. 4. cap. prim et anno 17 ejusdem cap. 5. et anno prim R. 2. cap. 8. et anno 21 Henr. 8. cap. 20. et anno pri Ed. 6. cap. 13. Ockams Lucubrations affirm that the Lord chief Iustice had this authority in times past and of him hath these words Iste excellens Sessor omnibus quae in inferiore vel superiore schaccio sunt prospicio Adnutum ipsius quaelibet officia subjects disponuntur sic tamen ut ad Domini Regis utilitatem justo perveniant Hic tameninter caterae videtur excellens quod potest his sub testimonio suo breve domini Regis fâ—cere fieri ut de thesauor quaelibet summa libixetur ved us computetur quod sibi ex Domini Regis mandato pranoverit computandum vel si maluerit breve suum sub aliarum testimonio faciet de his rebus This high Officer hath by varetie of his Office at this day the nomination of the Eschetors yearly throughout England and giveth the places of all Customers Controllers and Searchers in all the Ports of the Realm He sitteth in the Chequer Chamber and with therest of the Court ordereth things to the Kings best benefit He with the Barons may by Statute stall debts of three hundred pounds and under And by Commission from his Majesty he with others joyned with him letteth leases for lives or years of the lands that came to the Crown by the dissolution of Abbies He by his Office giveth warrant to certain men to have their wine without impost He taketh declaration of all the mony paid into the Receipt of the Exchequer and of all Receivers accompts Then is there a Treasurer of the King houshold who is also of the Privy Councel in the absence of the Steward of the Kings Houshold hath power with the Controller and the Steward of the Marshalsea without commission to hear and determine treasons misprisions of treasons murder homicide and blood shed committed within the Kings Pallace Stawnfopl cor l. 3. c. 5. In the statute an 28 R. 2. c. 18. et 11 H. 7. ca. 16. mention is made of the Treasurer of Calis In Westm. 2. cap. 8. of the Treasurer of the Exchequer et anno 27 Edw. 3. stat 2. cap. 18. et anno 35 Eliz. cap. 4. of the Treasurer of the Navy or Treasurer of the wars or garrisons of the Navy anno 39 El. 7. Treasurer of the Kings Chamber anno 26 H. 8. cap. 3. et anno 33 ejusdem cap. 39. Treasurer of the wars anno 7 Henr. 3. cap. prim anno 3. Honr. 8. cap. 5. Treasurer for the Chancery West parte 2. symbol titulo Fines sect 152. Treasurer of the Kings Wardrope anno 15 Edw. 3. stat prim cap. 3. et anno 25 ejusdem stat 5. cap. 21. whose office you have well set out in Fleta lib. 2. cap. 14. Treasurer of the County for poor Souldiers anno 35 Eliz. cap. 4. And most Corporations through the Kingdom have an Officer of this name that receiveth their rents and disburseth their common expences Treat commeth of the French traire i. emulgere and signifieth in the Common law as much as taken out or withdrawn As a Iurour was challenged for that he might not dispend forty pounds and for that cause he was treat by the Statute Old nat br fol. 159. that is removed or discharged Bread of treat anno 51 H. 3. Statute of Bread c. what it signifieth I cannot learn Trespasse Transgressio is a French word signifying a much as Mors obitus excessus The reason whereof I take to be because in interpretation it is a passage from one place or estate to another for in Britton cap. 29. I find trespassants for passengers In our Common law and language it is used for any gransgression of the law under treason felony or misprission of treason or of feâ—ony or may be gathered out of Stawnf pl. cor fol. 38. where he saith that for a Lord of the Parliament to depart from the Parliament without the Kings license is neither treason nor felony but trespals And again fol. 31. saying that where it was wont before the Statute made anno prim Edw. a
called Statutum de frangentibus prisonam that the breach of Prison was felony if it were the Kings prison it is sithence but trespasse except the Prisoner were committed for felony But it is most commonly used for that wrong or dammage which is doue by a private man to the King as in his Forest pl. cor lib. 2. cap. 18. or to another private man And in this signification it is of two sorts trespasse general otherwise termed trespasse vi et armis and trespass especial otherwise called trespasse upon the case And this seemeth to be without force Terms of the Law Action upon the case as appeareth by Kitchin fol. 176. The former I take to be called general because it riseth from that general ground in Law and whatsoever is done by any private mans humour vi et armis is an offence The latter I call especial because Kitchin calleth the other general and another reason may be this because it springeth from a particular case or fact not contained under any other general head And the action lying for this trespasse is otherwise called an action upon the case as may be gathered out of divers places under the title Trespasse in Brook his Abridgement How to distinguish the form of these writs or actions see Fitzherb nat br fol. 86. L. 87. H. I. in an Action of trespasse this is perpetual that the Plaintiff sueth for dammages or the value of the burt done unto him by the Defendant It seemeth an hard thing to distinguish these two kinds of trespasses so as to be able to say when it is a trespasse vi et armis and when upon the case as may well appear to him that shall peruse this title in Brook But this is to be left to the experience of grave and skilfull Pleaders I find moreover in Kitchin so 188. that there is a trespasse local and trespasse transitory trespass local is that which is so annexed to a place certain as if the Defendant joyn issue upon the place and traverse the place only by saying Absque hoc that he did the trespasse in the place mentioned in the declaration and aver it it is enough to defeat the action Trespass transitory is that which cannot be defeated by the Defendants traverse of the place saying Without that I committed the trespasse in the place declared because the place is not material Examples of both you have set down by Kitchin in the place above named to this effect traverse by Absque boc of trespass in battery or goods brought in is transitory and not local as it is of trees cut and heâ—bs And therefore in trespasse transitory the place shall not make issue neither is it traversable no more than is a trespasse upon a case of an Assumption Bracton in his fourth book cap. 34. num 6. divideth transgressionem in majorem et minorem which place read See also great diversity of trespasses in the new book of Enteries verbo Trespass Tryal triatio is used in our Common law for the examination of all causes civil or criminal according to the laws of our Realm Of this word Stawn pl. cor lib. 2. cap. 26. writeth to this effect There was a Statute made prim secund Philip. Mar. cap. 10. to this purpose And be it farther enacted by the anthority aforesaid that all tryals hereafter to be had awarded or made for any Treason shall be had and used according to the due order and course of the Common laws of this Realm and not otherwise c. By this word tryal saith Stawnf in that place some understand as well the inquest that indicteth a man as the inquest upon the arraignment that attainteth or acquiteth him For these two make but one entire tryal that every man is to have when he is impeached of treason But others have answered to this that tryal in common speech is the tryal that a man is to have after he is indicted and not before For in Law the Inditement is nought but the accusation against him which he is to make answer unto and that being tryed it either attainteth or acquitteth him So that the tryal is the lssue which is tryed upon the Inditement and not the Inditement it self For that is no part of the thing which tryeth but the thing which is tryed and the offence And so this word Tryal understood in the Statute an 33 H. 8. c. 23. where he saith thus Must be indicted within the Shires or places where they committed their offences and also tryed before by the Inhabitants or Free-holders So he putteth a difference between Inditement tryal as he doth afterward in these words There to be indicted and tryed of their offences c. Thus far Stawnf Sir Tho. Smith de Repub. Angl. lib. 2. ca. 5. saith That by order usage of England there are three Tryals that is 3 wayes and manners whereby absolute and definite Judgement is given by the Parliament which is the highest and most absolute by battel and great assise which he severally describeth in three Chapters following though not so fully as the thing requireth But of the great Assise he speaketh at large in the three and twentieth Chapter of the same book And of these Tryals see more in Stawnf pl. cor lib. 2. cap. pri 2. 3. whereof he divideth the great Assise into two sorts one proper to Barons of the Parliament which is by 20 or 18 of their Peers the other common to others of lower condition which is by 12 men that be neighbours to the place where the offence was committed And of those you may read him at large in the said Chapters there following See Twelve men See the New book of Entries verbo Trial. Trihing Trihinga vel Trithinga seemeth by a place in Edward the Confessors laws set out by Master Lamberd nu 34. to be the third part of a Shire or Province otherwise called Letbe which we now call Leet The same Law doth M. Camden mention pag. 102 103. This Court is above a Court Baron and inferiour to the Shire or County This word is also used in the sentence of excommunication upon the great Charter and Charter of the Forest denounced in the daies of Edward the first as it is latined in the book called Pupilla oculi parte 5. cap. 22. A. I. In these words Visus autem defranco plegio sic fiat sc quod pax nostra teneatur quod Trihinga integra sit sicut esse consuevit c. Of this Fleta lib. 2. cap. 61. sect final writeth thus Sciendnm est quod aliae potestates erant super Wapentakia quae Tritinga dicebantur eo quòd erat tertia pars provinciae qui vero super eas dominabantur trithingreves vocabantur quibus deferebantur causae quae non in Wapentakiis poterant definiri in Shiram sicque quòd vecatur Hundredum jam per variationem locorum idiomatù Wapentakie appellatur tria vel quatuor
titulo Fines Sect. 156. Warrantia icustodiae is a Writ judicial that lyeth for him that is challenged to be ward unto another in respect of land said to be holden in Knights service which when it was bought by the Ancestors of the Ward was warranted to be free from such thraldome And it lyeth against the warranter and his heirs Regist. judic fol. 36. Warrant of Attorney See Letter of Attorney and Warranty Wardwite significat quietantiam misericordiae in casu qno non invenerit quis hominem ad wardam facteudam in castra vel alibi Fleta lib. 1. cap. 47. Warren Warrenna alià s varrenna commeth of the French Garrenne i. vivarium vel locus in quo vel aves vel pisces vel ferae continentur quae ad victum duntaxat pertinent Calapine out of Aulus Gellius lib. 2. Noct. Attic. ca. 20. A warren as we use it is a prescription or grant from the King to a man of having Feasants Partridges Connies and Hares within certain of his Lands Cromptons Jurisd fol. 148. where he saith that none can have warren but only the King no more than Forest or Chase Because it is a special privilege belonging to the King alone And a little after he hath these words to this effect the King may grant warren to me in mine own lands for Feasants and Patridges only And by this grant no man may there chase them without my licence And so of Hares but not of Connies For their property is to destroy the fruits of the earth as to eat Corn and pill the bark of Apple trees Master Manwood in his first part of Forest laws saith thus of it a warren is a franchise or privileged place of pleasure only for those beasts and fowles that are beasts and fowles of warren tantùm campestres non sylvestres viz. For such beasts fowls as are altogether belonging to the fields and not unto the woods and for none other beasts or fowles There are but two beasts of warren that is to say Hares and Connies And there are also but two fowles of warren viz. Feasants and Partridges And none other wildbeasts or birds have any firm peace privilege or protection within the warren If any person be found to be an offendor in any such free warren he is to be punished for the same by the course of the Common law and by the Statute anno 21 Edward 3. called the Statute de malefactoribus in parcis chaceis c. For the most part there are no Officers in a warren but the Master of the Game or the Keeper A free warren is sometime inclosed and also the same sometime doth lye open for there is no necessity of inclosing the same as there is of a Park for if a Park is suffered to lye open it ought to be seised into the Kings Kings hands Thus far M. Manwood Warscot is the contribution that was wont to be made towards Armor in the Saxons time In Canutus his Charter of the Forest set out by M. Manwood in the first part of his Forest laws uum 9. you have these words Sint omnes tam primaris quà m madiocres minuti immunes liberi quieti ab omnibus provincialibus summonitionibus et popularibus placitis quae Hundred laghe Angli dicunt et ab omnibus aâ—morum oneribus quod Warscot Angli dicunt et forinsecis querelis Warwis aliâs Wardwit is to be quit of giving mony for keeping of watches New exposition of law terms Wasie vastum commeth of the French gaster i. populari It signifieth diversly in our Common law first a spoil made either in houses woods gardens orchards c. by the tenent for term of life or for term of anothers life or of years to the prejudice of the Heir or of him in the Reversion or Remainder Kitchin fol. 168. c. usque 178. upon this committed the Writ of waste is brought or the recovery of the things wherupon the waste is made See Vastâ— Waste may be also made of tenents or bondmen belonging or regardant to the manor Regist. orig fol. 72. a. et 73. a. See the new book of Entries verbo Waste A waste of the Forest as M. Manwood saith parte prim of his Forest laws pag. 172. is most properly where a man doth cut down his own woods within the Forest without license of the King or of the Lord Chief Justice in Eyr of the Forest But it is also where a man doth plow up his own meadow or Pasture and converteth it unto tillage And of this you may read him at large in his second part cap. 8. num 4 et 5. Waste in the second signification is taken for those parts of the Lords Demesns that be not in any one mans occupation but lye common for bounds or passages of the Lord and Tenent from one place to another and sometimes for all the Kings Subjectâ— VVhich seemeth to be called waste because the Lord cannot make such profit of it as he doth of other of his land by reason of that use which others have of it in passing to and fro Upon this none may build or feed or cut down Trees without the Lords license VVaste hath a third signification as year day and waste Annus dies et vastum which is a punishment or forfeiture belonging to petit treason or felony wherof you may read Stawnf pl. cor lib. 3. cap. 30. And see Year Day and Waste Wasters anno 5 Ed. 3. cap. 14. See Roberds wen. See Draw latches Wastoll bread anno 51 H. 3. statute of br ad and statute of pilory Waterbayliffs seem to be officers in Porttowns for the searching of Ships an 28 H. 6. ca. 5. Watling street is one of the four waies which the Romans are said to â—have made here in England and called them Consulares Praetorias Militares Publicas Master Cambden in his Britannia perswadeth himself that there were more of this sort than four This street is otherwise called Werlam street as the same Author saith and howsoever the Romans might make it and the rest the names be from the Saxons And Roger Hoveden saith it is so called because the Sons of Wethle made it leading from the East sea to the VVest Annal part prior fol. 248. a. This street leadeth from Dover to London and so to Saint Albons and there onward directly toward the North-west through the Land as from Dunstable to Westchester anno 39. El. cap. 2. The second street is called Ikenild street beginning ab Icenis who were the people inhabiting Norfolk Suffolk and Cambridge shire as M. Cambden declareth pag. 345. The third is called Fosse the reason of the name he giveth because he thinketh it was ditched on each side The fourth is called Ermin street Germanico vocabulo à Mercurio quem sub nomine Iâ—munsull i. Mercurii columma Germani majores nostri colueruâ—t Of these read more in the said Author pag. 43 44. In the description of England
going under Saxons name cap. 7. I read that Belinus a Briton King made these four waies whereof the first and greatest he calleth Fosse stretching out of the South into the North and beginning from the corner of Cornwell and passing forth by Devonshire Somersetshire and so along by Tetbury upon Toteswould besides Coventree unto Lecester and thence by the wide plains to Newark and to Lincoln where it endeth The second he nameth Watling street comming out of the South east toward the Fosse beginning at Dover and passing through the middle of Kent over Thames beside London near Westminster and thence to Saint Albons by Donstable Stratford Towceter Wedon Lilborn Atheriston Gilberts hill now called Wreaken by Severn Workcester Stratton and so forth by the middle of Wales unto Cardican and the Irish seas The third he calleth Erminage street stretching out of the West North-west into the East South-east from S. Davids in the West Wales unto Southampton The fourth he called Rikenild street stretching forth by Worchester by Wicomb Brinhingham Litchfield Derby Chesterfield and by York forth into Tynmouth But he that listeth to read at large of these waies let him have recourse to the first volume of Holinsheds Chronicle and the description of England there the 19 chapter Where this antiquity is far otherwise declared than by the former writers Henry of Huntington likewise in the first book of his History not far after the beginning mentioneth these four Streets terming them calles Regia sublimatos anthoritate ne aliquis in eis inimicum invadere auderet c. Waterbayliffs anno 28 H. 6. cap. 5. is an Officer belonging to the City of London which hath the supervision and search of fish that is brought to that City as also the gathering of the toll rising from that water He is reckoned an Esquire by his Office as the Sword-bearer the Huntsman and the chief Sergeant is He also attendeth upon the Lord Maior for the time being and hath the principal care of marshalling the guests at his Table Way See Chimin WE Weif wavium whence it hath his original I cannot certainly say But I find the 19 chap. of the Grand Customary of Normandy to be intituled De choses gaines and latined by the Interpreter De rebus vaivis which are there tus defined vaiva sunt res vel alia quae nullius proprietati attributa sine possessionis reclamations sunt inventa quae usque ad diem aâ—â—um servanda sunt Et deâ—is modo quo dictum est de veriscis that is weeks ea sua esse probantibus est restitutio facienda c. This weif or things weived have the very same signification in our Common law and be nought but things forsaken The Civilians call it Derelictum or Quod est pro derelicto Bracton in the twelfth Chapter of his first book nsâ— 10. reckoneth them inter res quae sunt nullius ea quae pro waivio habentur sicut de averiis ubi non apparet Dominus where he also saith quòd olim fueruut inventoris de jure naturali et jam essiciuntur principis de jure Gentium That this is a Regality and belonging to the King except it be challenged by the owner within a year and a day it appeareth by Briton in his seventeenth chapter Now the Kings in their times have granted this and such like Prerogatives unto divers Subjects with their fees who there likewise saith that waifs things lost and estrayes must by the Lord of the franchise where they are found be caused to be cryed and published in Markets and Churches near about or else that the year and day doth not run to the prejudice of him that hath lost them See Waive M. Skene de verborum signif verb. waif saith that waif est pecus vel animal aberrans which wanders and waivers without a known Master and being found by any man within his own bounds must be by him proclaimed upon divers and sundry Market daies at the Parish Church and within the Sheriff-dome Otherwise the Deteyner may be accused of theft And it is lawfull for the owner to challenge the beast within a year and a day Whereby it appeareth that in Scotland that is called a weif which we here call a stray or estray Would of Kent is the woody part of the Country Camden Britannia pag. 247. M. Verstegan in his restitution of decayed intelligence saith that Wald Weald and Would differing in vowel signifie one thing to wit a Forest See the rest litera W. Wedding Nuptiae commeth of the German wed i. pignus and wed in Scotland signifieth so much at this day Skene de verborum signif verbo vadium Weigh waga is a certain weight of cheese or wool containing 256 pounds of avoyr de poyce See Clove Weights Pondera what they be it is well known There be two sorts of them in use with us The one called Troy weight which containeth twelve ounces in the pound and no more by the which Pearl precious stones electuaries and medicinal things gold silver and bread be weighed The other is called Aver de pois which containeth 16 ounces in the pound By this all other things are weighed that pass between man and man by weight saving only those above named Why the one should be called Troy weight I have not learned though I read it termed libram unciam Trojanam as if it came from Troy But Georg. Agricola in his learned Tractate de ponderibus mensuris pag. 339. termeth the pound of twelve ounces libram medicam and the other of sixteen ounces libram civilem saying thus of them both Medica civilis libra numero non gravitate unciarum differunt The second seemeth so to be termed by reason of the more full weight for Avoir de pois in French is as much as to say as to have full weight But by these words avoir depois are some time signified such Merchandize as are bought and sold by this kind of weights The first statute of York an 9 Ed. 3. in prooem an 27 Ed. 13. stat 2. cap. 10. anno 24. H. 8 cap. 13. Of weights in Scotland See Skene ac verbo signif verbo Serplathe All our weights and measures have their first composition from the penny sterling which ought to weigh two and thirty wheat corns of a middle sort twenty of which pence make an ounce and twelve such ounces a pound or twenty shillings but fifteen ounces make the Merchants pound Fleta lib. 2. cap. 12. It is not unlike that this Merchants pound though an ounce less should be all one in signification with the pound of Avoir de pois and the other pound called by Fleta troue weight plainly appeareth to be all one with that which we now call Troy weight And I find not Troy weight mentioned by any other that ever I read upon this subject but only our own Country men See Tronage Weights of Awncell anno 14 Ed.