of any other countrie found within the kingdome in recompence of goods taken froÌ„ him in the said countrie after he hath hene denied restitution there Register orig fo 129. a. This among the auÌ„cieÌ„t Civilians was called clarigatio now barbarously represali 〈…〉 Arretted arrectatus is he that is conuented before a Iudge and charged with a crime Stawnf pl. cor lib. 2. 45. quasi ad rectum vocatus It is vsed somtime for imputed or laid vnto as no folly may be arretted to him being vnder age Litleton cap. Remitter The Latine substantiue Rettum is vsed in the Register orig Chawcer vseth the verb arretteth id est layeth blame as M. Speight interpreteth it I may probably coniecture that this word is the Latine rectum For Bracton hath this phrase ad rectum habere malefactorem i. to haue the malefactor foorth coming so as he may be charged and put to his triall lib. 3. tract 2. cap. 10. and in another place rectatus de morte hominis i. charged with the death of a man eod cap. 1. num 3. Articles of the Cleargie articuli Cleri be certaine statutes made touching persons and causes ecclesiasticall anno 9. Ed. 2. Like vnto which there were other made anno 14. Ed. 3. stat 3. Assay of measures and waights assaia mensurarum ponderum Register orig fol. 279. is the examination vsed by the Clerke of the market Assayer of the king is an officer of the mint for the due triall of siluer indifferently appointed betwixt the maister of the Mint and the merchants that bring siluer thither for exchange anno 2. H. 6. cap. 12. Assault in sultus commeth of the French verb assailir i. adormi appetere invadere which French also proceedeth from the Latine assilire i. vim afferre oppugnare It signifieth in our common lawe a violent kind of iniurie offered to a mans person of a higher nature then batterie For it may be committed by offering of a blowe or by fearefull speech M. Lamberd in his eirenar lib. 2. cap. 3. whome reade The feudists call this assultum and define it thus Assultus est impetus in personam aut locum fiue hoc pedibus fiat vel equo aut machinis aut quacunque alia re assiliatur Zasius de feud parte 10. nu 38. And assilire est vim adferre adoriri oppugnare li. feud 1. tit 5. § 1. Assach seemeth to be a Welch word and to signifie so much as a kind of excuse or strange kind of purgation by the oathes of three hundred men anno 1. H. 5. cap. 6. Assart assartum in M. Manwoods iudgement parte 2. ca. 9. ru 5. of his forest lawes commeth of the French assortir signifying as he saith to make plaine or to furnish but rather indeede to set in order and handsomly to dispose Assartum est quod redactum est ad culturam Fleta li. 4. ca. 21. § Item respondere It signifieth as the said M. Manwood saith nu 1. vbi supra an offence committed in the forest by plucking vp those woods by the rootes that are thickets or coverts of the forest and by making them plaine as eatable land where he also faith that an assart of the Forest is the greatest offence or trespasse of all other that can be done in the forest to vert or venifon containing in it as much as waste or more For whereas the waste of the Forest is but the felling and cutting downe of the couerts which may grow againe in time an assart is a plucking them vp c. which he confirmeth out of the redde booke in the Exchequer in these words Assarta verò occasiones nominantur quando sc forestae nemora vel dumeta pascuis latibulis ferarum oportuna succiduntur quibus succisis radicitiâ— avulsis terra subvertitur excolitur And again out of the Register originall fo 257. a. b. in the writ ad quod damnum sent out in case where a man sueth for a licence to assart his grounds in the Forest and to make it severall for tillage Soe that it is no offence if it be done with licence To this may Bracton also be added li. 4. ca. 38. nu 11. where he saith that these words boscus esâ—icitur assartum signifie as much as redactus in culturam of this you may read more in Cromptons Iurisdictions fo 203. and in charta de foresta anno 9. H. 3. ca. 4. where the english word is not assart but assert in Manwood parte 1. of his Forest lawes pa. 171. The word is vsed anno 4. Ed. 1. stat 1. in the same signification That which we call assartum is els where tearmed Disboscatio Decis Genu. 74. Assembly vnlawfull illicita assemblata coÌ„meth of the French assembler i. aggregare whence also is the substantiue assemblee i. coitio congregatio It is in our common lawe as M. Lamberd defineth it eiren li. 1. ca. 19. the companie of 3. persons or more gathered together to doe an vnlawfull act although they doe it not See vnlawfull assemblie Assets quod tantundem valet Bract. li. 5. tract 3. ca. 8. nu 2. is nothing but the French assez 1. satis For though this word masque vnder the vizard of a substantiue it is in truth but an adverb It signifieth in our common lawe goods enough to discharge that bruden which is cast vpon the executour or heire in the satisfying of the testators or auncestors debts or legacies See Brooke titulo Assets per discent by whome you shall learne that whosoeuer pleadeth assets sayeth nothing but that he against whome he pleadeth hath enough descended or come to his hands to discharge that which is in demauÌ„d The author of the newe tearmes of lawe maketh 2. sorts of assets viz. assets par discent assets enter mains the former being to be alleaged against an heire the other against an executor or administrator Assigne assignare both it selfe and the French assigner come of the latine It hath two significations one generall as to appoint a deputè or to set ouer a right vnto another In which signification Britton fo 122. saith this word was first brought into vse for the fauour of Bastards because they cannot runne vnder the name of heires to their fathers and therefore were are comprised vnder the name of assignees The other signification of this word is especial as to appointe at or set forth viz. to assigne errour old br nat fo 19. is to shew in what part of the proces errour is committed To assigne false iudgement eodem fo 17. that is to declare how and where the iudgement is vniust To assigne a false verdict eodem fo 112. and to assigne an oath to be false anno 9. R. 2. ca. 3. To assigne the cessor old nat br fo 134. 1. to shew how the plaintife had cessed or giuen ouer To assigne wast is to shewe wherein especially the wast is coÌ„mitted Reg. orig f. 72. Assigne in the generall signification
to the crowne or graunted vnto some great subiect and so remaine still in the nature of a Fraunchise And this hath beene euer sithence the stat anno 14. Ed. 3. stat 1. ca. 9. whereby these Hundred courts formerly fermed out by the Shyreeue to other men were reduced all or the most part to to the countie court and so haue and doe remaine at this present So that where you read now of any hundred courts you must know that they be seuerall fraunchises wherein the Shyreeue hath not to deale by his ordinarie authoritie except they of the Hundred refuse to doe their office See West parte 1. symbol lib. 2. sect 288. See Turn The newe expounder of lawe termes saith that the latine Hundredum is sometime vsed for an immunitie or priviledge whereby a man is quit of mony or customes due to the gouernours or Hundreders Hundreders Hundredarii be men empaneled or fit to be empaneled of a Iurie vpon any controversie dwelling within the Hundred where the land lieth which is in question Cromptons Iurisdict fol. 217. anno 35. Henrici 8. cap. 6. It signifieth also him that hath the Iurisdiction of a hundred and holdeth the hundred court anno 13. Ed. pri ca. 38. anno 9. Ed. 2. stat 2. anno 2. Ed. 3. ca. 4. and sometime is vsed for the Bayliffe of an hundred Hornin his mirrour of Iustices li. 1. ca del office del coroner Hundredlaghe signifieth the Hundred courte from the which all the officers of the Kings forest were freed by the charter of Canutus ca. 9. Manwood parte 1. pag. 2. Huors See Conders Huseans commeth of the French houseaux i. ocrea aboote It is vsed in the Statute anno 4. Ed. 4. ca. 7. Hustings Hustingum may seeme to come from the French Haulser i. tollere attollere suberigere for it signifieth the principall and highest court in London anno 11. H. 7. ca. 21. Fitzh nat br fol. 23. See anno 9. Ed. pri ca. vnico Other Cities and townes also haue had a court of the same name as Winchester Lincolne Yorke and Sheppey and others where the Barons or Citizens haue a record of such things as are determinable before them Fleta libro 2. cap. 55. Husfastene is he that holdeth house and land Bracton lib. 3. tractat 2. ca. 10. His words be these Et in franco plegio esse debet omnis qui terram tenet domum qui dicuntur Husfastene etiam alii qui illis deserviunt qui dicuntur Folgheres c. I A I Arrock anno 1 Rt. 3. ca. 8. is a kinde of cork so called Identitate nominis is a writ that lyeth for him who is vpon a Capias or Exigent taken and committed to prison for another man of the same name whereof see the forme and farder vse in Fitzh nat br fol. 267. see the Register originall fol. 194. Idiot and he that afterward becometh of insane memory differeth in diuers cases Coke fol. 154. b. lib. 4. See here following Idiota inquirenda Idiota inquirenda vel ex aminanda is a writ that is directed to the excheatour or the Shyreeue of any county where the king hath vnderstanding that there is an Idiot naturally borne so weake of vnderstanding that he connot gouern or mannage his inheritance to call before him the partysuspected of Idiocie examin him And also to inquire by the oaths of twelue men whether he be sufficiently witted to dispose of his owne lands with discretion or not and to certifie accordingly into the Chauncery For the king hath the protection of his subiects by his prerogatiue the gouernmēt of their lands and substance that are naturally defectiue in their owne discretion statut de praerogatiua Regis editum anno 17. Ed. 2. cap. 8. wherof read Stawnf praerog cap. 9. and of this writ read Fitzh nat br fol. 232. see the register orig fol. 267. Ietzon se Flotzon Ieofaile is cōpoūded of 3. french words I' ay faille i. ego lapsus sum signifieth in our commō lawe an ouer-sight in pleading touching the which you haue a statute anno 32. H. 8. cap. 30. whereby it is enacted that if the Iury haue once passed vpon the issue though afterward there be found a Ieofaile in the pleading yet iudgement shall likewise be giuen according to the verdict of the Iury. See Brooke tit Rrepleder the author of the new tearms of law saith that a Ieofaile is when the parties to any suite haue in pleading proceeded so farre that they haue ioyned issue which shal be tried or is tried by a Iury or inquest and this pleading or issue is so badly pleaded or ioyned that it will be errour if they proceed then some of the said parties may by their councell shew it to the court as well after verdict giuen and before iudgement as before the Iury be charged the shewing of which defects before the Iury charged was often when the Iury came into the court to trie the issue then the councell which will shew it shall say this inquest you ought not to take and if it be after verdict then he may say to Iudgement you ought not to goe and because of this many delayes grew in suites diuers statutes are made to redresse them viz. 32. H. 8. c. 30. others in Q. Elizabethes daies and yet the fault litle amended Ignoramus is a word properly vsed by the grand Enquest empaneled in the inquisition of causes criminall and publique and writen vpon the bill whereby any crime is offered to their cōsideration when as they mislike their euidence as defectiue or to weake to make good the presentment The effect of which word so written is that all farder inquiry vpon that party for that fault is thereby stopped and he deliuered without farder aunswer It hath a resemblance with that custome of the auncient Romans where the Iudges when they absolued a person accused did wright A. vpon a litle table prouided for that purpose i. Absoluimus if they iudged him guilty they writ C. id est Condemnamus if they found the cause difficult and doubtfull they writ N. L. id est Non liquet Asconius Pedianus in oratio pro Milone Alexander ab Alexandro Genial dierum li. 3. ca. 14. Ikenildstreate is one of the four famous wayes that the Romans made in England taking the beginning ab Icenis which were they that inhabited Northf Southf and Cambridg shyre Camd. Britan. fol. 343. See Watlingstreat Imparlance interlocutio vel interloquela is a petition made In court vpon the count of the Demanndant by the tenent or declaration of the plaintife by the defendant whereby he craueth respight or an other day to put in his aunswer See Brooke titulo Continuaence See Dies datus Imparlaunce seemeth to be generall or speciall speciall imparlaunce is with this clause saluis omnibus aduantagiis tam ad iurisdictionem curiae quà m breue narrationem Kitchin fol. 200. Then generall in reason must be that which
kings house whose function is fragmenta diligenter colligere ea distribuere singulis diebus egenis agrotos leprosos incarceratos pauperesque viduas alios egenos vagosque in patria commorantes charitative visitare item equos relictos robas pecuniam alia ad eleemosynae largita recipere fideliter distribuere Debet etiam regem super eleemosynae largitione crebris summonitionibus stimulare praecipuè diebus Sanctorum rogare ne robas suas quae magni sunt pretii histrionibus blanditoribus adulatoribus accusatoribus vel menestrallis sed and eleemosinae suae incrementum iubeat largiri Fleta lib. 2. cap. 2. Almoine eleemosina See Frank almoyne Almond amygdalum is well knowne to euery mans sight it is the kirnell of a nut or stone which the tree in Latine called amygdalus doth beare within a huske in maner of a wal nut of whose nature and diuersities you may reade Gerards Herball lib. 3. cap. 87. This is noted among merchandize that are to be garbled anno 1. Iaco. ca. 19. Alnegeor aliâs aulnegeor vlniger vel vlnator cometh from the French aulne an elle or elwand and signifieth an officer of the Kings who by himselfe or his deputie in places conuenient looketh to the assise of wollen cloth made through the land and to seals for that purpose ordained vnto them an 25. Ed. 3. Stat. 4. cap. 1. anno 3. R. 2. cap. 2. who is accomptable to the king for euery cloth so sealed in a fee or custome therunto belonging anno 17. R. 2. cap. 2. Reade of this more anno 27. Ed. 3 cap. 4. anno 17. R. 2. cap. 2. 5. anno 1. H. 4. cap. 13. anno 7. eiusdem cap. 10. anno 11 eiusd cap. 6. anno 13. eiusd cap. 4. anno 11. H. 6. cap. 9. anno 31. eiusdem cap. 5. anno 4. Ed. 4. ca. 1. anno 8. eiusdem cap. 1. an 1. R. 3. cap. 8. Ambidexter is that iurour or embraceour that taketh of both parties for the giuing of his verdict He forfeiteth ten times so much as he taketh anno 38. Ed. 3. cap. 12. Cromptons iustice of peace fol. 156. b. Amendment emendatio commeth of the French amendement and signifieth in our common lawe a correction of an error committed in a processe and espyed before iudgment Terms of the lawe Broke titulo Amendement per totum But if the fault be found after iudgment giuen then is the party that wil redresse it driuen to his writ of errour Tearmes of the lawe Broke titulo Error Amerciament amerciamentum signifieth the pecuniarie punishment of an offendor against the King or other Lord in his court that is found to be in misericordia i. to haue offended and to stand at the mercie of the King or Lord. There seemeth to be a difference betweene amerciaments and fines Kitchin fol. 214. And I haue heard coÌ„mon Lawyers say that fines as they are taken for punishments be punishments certaine which grow expresly from some statute and that amerciaments be such as be arbitrably imposed by affeerors This is in some sort confirmed by Kitchin fol. 78. in these words l'amerciameÌ„t est affire per pares M. Manwood in his first part of Forest lawes pag. 166. seemeth to make another difference as if he would inferre an amerciameÌ„t to be a more easie or more mercifull penaltie and a fine more sharpe and grieuous Take his wordes If the pledges for such a trespasse saith he do appeare by common summons but not the defendant himselfe then the pledges shall be imprisoned for that default of the defendant but otherwise it is if the defendant himselfe do appeare and be ready in Court before the Lord Iustice in eyre to receiue his iudgment and to pay his fine But if such pledges do make default in that ease the pledges shall be amerced but not fined c. The author of the new tearmes of lawe saith that amerciament is most properly a penalty assessed by the peeres or equals of the partie amercied for an offence done for the which he putteth himselfe vpon the mercie of the Lord. Who also maketh mentioÌ„ of an amerciament royal and defineth it to be a pecuniarie punishment laid vpon a Sheriffe Coroner or such like Officer of the kings amercied by Iustices for his offence See Misericordia Amoveas manum Looke ouster le râ—aiue An tour waste annus dies vastum Looke yeare day and waste Ancaling of tile anno 17. Ed. 4. ca 4. Annats Annates seemeth to be all one with first fruites anno 25. H. 8. ca. 20. looke First fruites The reason is because the rate of first fruites payed of spirituall liuings is after one yeares profite Of which Folydore Virgil de inueÌ„tione rerum lib. 8. cap. 2. saith thus Nullum inuentum mâ—iores Romano Pontifici cumulavit opes quà m annatum quas vocant vsus qui omnino multò antiquior est quà m receÌ„tiores quidam scriptores suspicantur Et annates more suo appellant primos fructus vnius anni sacerdatii vacantis aut danidiam eorum partem Sanè hoc vectigal iam pride cùm Romanus Pontifex non habuerit tot possessiones quot nunc habet eum oportuerit pro dignitate pro officio multos magnosque facere sumptus paulatim impositum fuit sacerdotiis vacantibus quae ille conferret de qua quidem re vt gravi saepe reclamatum fuisse testatur Henricus Hostiensis qui cum Alexandro 4. Pontifice vixit sic vt Franciscus Zabarellus tradat post hac in concilio Viennensi quod Clemens quintus indixit qui factus est Pontifex anno salutis humanae 135. agitatum fuisse vt eo deposito annatum onere vigesima pars vectigalium sacerdotalium penderetur quotannis Romano Pontifici id quidem frustrà Quare Pontifex annatas in sua nassa retinuit vt ne indidem exire possent lege caetera Anniented commeth of the French aneantir i. se abiicere atque prosternere It signifieth with ourlawyers as much as frustrated or brought to nothing Litletâ—n lib. 3. cap. warrantie Annua pensione is a writte wherby the king hauing due vnto him an annuall pension from any Abbot or Prior for any of his Chaplaines whom he shal think good to name vnto him being as yet vnprouided of sufficient liuing doth demaund the same of the said Abbot or Prior for one whose name is comprised in the same writ vntill c. and also willeth him for his Chaplaines better assurance to giue him his leters patents for the same Register orig fol. 265. 307. Fitzh nat br fol. 231. where you may see the names of al the Abbeyes and Priories bound vnto this in respect of their foundatioÌ„ or creation as also the forme of the leters patents vsually graunted vpon this writ Annuitie annuus reditus signifieth a yearely rent to be paide for tearme of life or yeres or in fee and is also vsed for the writ that lyeth against a man for
termed the Deane of the Arches or the officiall of the Arches court Deane of the Arches because with this officialtie is commonly ioyned a peculiar iurisdiction of thirteene parishes in London tearmed a Deantie being exempted from the authoritie of the Bishop of London and belonging to the Archbishop of Canterburie of which the parish of Bow is one the chiefe because the Court is there kept Some others say that he was first called Deane of the arches because the officiall to the Archbishop being many times employed abroad in ambassages for the king and realme the Deane of the Arches was his substitute in his court and by that meanes the names became confounded The iurisdiction of this Iudge is ordinarie and extendeth it selfe through the whole Prouince of Canterburie So that vpon any appeale made he foorthwith and without any farder examinatiō of the cause sendeth out his citation to the party appealed and his inhibition to the Iudge from whome the appeale is made Of this he that will may reade more in the booke intituled De antiquitate Eccelesiae Britānicaehistoria Arma moluta seeme to be sharpe weapons that doe cut not blunt that doe onely breake or bruise Bracton li. 3. tract 2. ca. 23. Stawnf pl. cor fo 78. 79. whereof Bracton hath these words arma moluta plagam faciunt sicut gladius bisacuta huiusmodi ligna verò lapides brusuras 〈…〉 bes ictus qui iudicari non possunt ad plagam ad hoc vt inde veniri possit ad duellum Armour arma in the vnderstanding of our common lawe is extended to any thing that a man in his anger or furie taketh into his hand to cast at or strike another Cromptons Iustice of peace fo 65. a. So armorum appellatio non vtique scuta gladios galeas significat sed fustes lapides l. 42. Π. de verbo significatione Array arraia aliàs arraiamentum commeth of the French array i. ordo which is an old word out of vse or it may be well deduced from raye i. linea It signifieth in our commō lawe the ranking or setting forth of a iurie or enquest of men impaneled vpō a cause a. 18. H. 6 c. 14. Thence is the verb to array a panel owld nat br fo 157. that is to set forth one by another the men empaneled The array shal be quashed owld nat br fo 157. By statute every array in assise ought to be made foure daies before Broke titulo Panel nu 10. to chalenge the array Kitchin fo 92. Arreyers seemeth to be vsed in the statut anno 12. Rich. 2. ca. 6. for such officers as had care of the souldiers armour to see them duly appointed in ther kindes Arraine arraniare commeth of the French arranger i. astituere ordinare that is to set a thing in order or in his place and the same signification it hath in our common law For example he is saide to arraine a writ of novel disseisin in a countie that fitteth it for triall before the Iustices of that circuit owld nat br fo 109. Litleton fo 78. vseth the same word in the same sence viz. the lease arraineth an assise of nouel disseisin Also a prisoner is said to be arrained where he is indighted and brought forth to his triall Arrained within the verge vpon murder Stawnf pl. cor fo 150. The course of this arrainment you may read in S. Thomas Smith de repub Anglo li. 2. ca. 23. Arrearages arreragia commeth of the French arrierages 1. reliqua It signifieth the remaine of an account or a summe of mony remaining in the hands of an accoūtant It is vsed sometime more generally for any mony vnpaide at the due time as arrearages of rent That this word is borowed from France it appeareth by Tiraquel de vtroque retractu tomo 3. pa. 32. nu 10. Arrest arestum commeth of the French arrester i. retinere retare subsistere or rather it is a French word in it selfe signifying a setling stop or stay and is metaphorically vsed for a decree or determinatiō of a cause debated or disputed to and fro as arrest du Senat. i. placitum curiae In our comon law it is taken most of all for a stay or stoppe as a man apprehended for debt c. is said to be arrested To pleade in arrest of iudgment is to shew cause why iudgment should be stayed though the verdict of the 12. be passed To plead in arrest of taking the enquest vpon the former issue is to shew cause why an enquest should not be taken c. Broke tit Repleder Take this of learned M. Lambard in his eirenarch li. 2. ca. 2. pa. 94. Budae saith he in his greeke commentaries is of opinion that the French word arrest which with them signifieth a decree or iudgment of court tooke beginning of the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. placitum and as we might say the pleasure and will of a court And albeit it were not out of the way to think that it is called an arrest because it stayeth or arresteth the partie yet I beleeue rather that we receiued the same from the Normane lawes because we vse it in the same sence with thē For commonly with vs au arrest is taken for the execution of the commaundement of some court or of some officer in iustice But howsoeuer the name began an arrest is a certaine restraint of a mans person depriuing him of his owne will and libertie and binding it to become obedient to the will of the lawe And it may be called the beginning of imprisonment Precepts writs of the higher courts of lawe do vse to expresse it by two sundry words as capias and attachies which signifie to take or catch hold of a man But this our precept noteth it by the words duci facias that is cause him to be conueyed c. For that the officer hath after a sort taken him before in that he commeth vnto him and requireth him to go to some Iustice of the peace Thus farre M. Lamberd And by like this word is spred farder then France For Gaile a Germaine writer sheweth by his Tractate de arrestis imperii that it is vsed also in the imperiall territories in the same significatiō c. 1. n. 1. Arrestandis bonis ne dissipentur is a writ which lyeth for him whose catell or goods are taken by another that during the controuersie doth or is like to make them away and will be hardly able to make satisfaction for thē afterward Reg. orig fol. 126. b. Arrestando ipsum qui pecuniam recepit ad proficiscendum in obsequium Regis c. is a writ that lieth for the apprehension of him that hath taken prest money towards the kings warres and lieth hidden when he should goe Register orig 24. b. Arresto facto super bonis mercatorum alienigenorum c. is a writ that lyeth for a denizen against the goods of strangers
is formerly said taketh hold of moueable goods or the bodie For it appeareth by Kitchin fo 263. that a man may be attached by a hundred sheepe Reade Skene de verbo signific verbo attachiamentum Now it followeth to shew how attachement differeth from a distresse For so it doth as may be shewed out of Kitchin fo 78. where he saith that processe in court baron is summons attachment and distresse out of the owld nat br fo 27. where it is said that a processe in a quare impedit is summons attachement and one distresse and againe fo 28. wheare speaking of the writ ne admittas he saieth thus and the processe is one prohibition and vpon the prohibition an attachment and distresse and fo 32. in a writ of Indicauit you haue these words and after the attachment returned the distresse shall goe out of the rols of the Iustices Bracton on the other side li. 5. tract 3. ca. 4. nu 2. sheweth that both attachiamentum magnum cape districtiones sunt of which opinion Fleta also is li. 5. ca. 24. § si autem ad But there also he saith that attachiamentum est districtio personalis cape magnum districtio realis So that by his opinion districtio is genus to attachement Britton in his 26. chapter hath words to this effect but in attachement of felony there commeth no distresse otherwise then by the body And if the Shyreeue return in the cases aforesaid that the trespassours haue nothing in his bayliwick by the which they may be distreined it must be awarded that he take their bodies c. In which place an attachement is plainly vsed for an apprehension of an offender by his goods So that to conclude I finde no difference between an attachment and a distresse but these two◠that an attachement reacheth not to lands as a distresse doth and that a distresse toucheth not the bodie if it be properly taken as an attachement doth yet are they diuers times confounded as may appeare by the places formerly alleadged and by Glanvile li. 10. ca. 3. and Fleta li. 2. ca. 66. seqq How be it in the most common vse an attachment is an apprehēsion of a man by his body to bring him to answer the action of the plaintiffe a distresse is the taking of another mans goods for some reall cause as rent seruice or such like whereby to driue him to replevie and so to be plaintiffe in an action of trespas against him that distreined him And so much for the difference and coherēcie of these words See also Distres I finde in West parte 2. symbolaio titulo proceedings in chauncerie sect 22. 23. that attachemēt out of the chaūcery is two-fold one simple and originally decreed for the apprehension of of the partie the other after return made by the Shyreeue quod defendens non est inventus in baliva sua with proclamations made through the whole courtie in such places as he shall thinke meete that the partie appeare by a day assigned and that he attached never the lesse if he may be found This second kinde hath an affinitie with the canonists vijs modis at the which if the partie appeare not he is excommunicate or with the Civilians vijs modis vnâ cum intimatione For in the chaūcerie if he com not vpō this he is forth with pressed with a writ of rebellion There is an attachment of priviledge which is a power to apprehend a man in a priviledged place or els by vertue of a mans priuiledge to call another to this or that courte whereunto he himselfe belongeth and in respect whereof he is priviledged Newe booke of entrise verbo priviledge fo 431. col 2. There is also a foreine attachement which is an attachement of a foriners goods found within a libertie or citie to satisfie some creditour of his within the citie There is also an attachement of the forest which is a court there held For as M. Manwood saith in his first parte of forest lawes p. 90. 92. 99. there be three courts of the forest wherof the lowest is called the Attachement the meane the swaynemote the highest the Iustice seate in eyre This court of attachement seemeth so to be called because the verderours of the forest haue therein no other authoritie but to receiue the attachements of offenders against vert and venison taken by the rest of the officers and to enrol them that they may be presented and punished at the next Iustice seate Manwood parte 1. pa. 93. And this attaching is by three meanes by goods and catels by body pledges and mainprise or by the body onely The courte is kept euery 40. daies throughout the yere And he that hath occasion to learne more of this I refer him to M. Manwood loco quo supra to M. Crompton in his courte of the forest Attachement is commaunded in writs the diversitie whereof you may see in the Register originall vnder the word Attachiamentum in indice At large see assise at large in the word assise and owld nat br fo 105. Verdict at large Littleton fo 98. To vouch at large owld nat br fo 108. To make title at large Kitchin fo 68. See Barre Attaint attincta commeth of the French as you shall see in the word attainted But as it is a substantiue it is vsed for a writ that lyeth after iudgement against a Iurie that hath giuen a false verdict in any court of record be the action reall or personall if the debt or dammages surmount the summe of 40. shillings what the forme of the writ is and how in vse it is extended see Fitzena br fol. 105. and the new booke of entries fol. 84. colum 1. The reason why it is so called seemeth to be because the partie that obtaineth it endeuoureth thereby to touch deprehend or staine the Iurie with periurie by whose verdict he is grieued What the punishment of this periurie is or of him that bringeth the writ against the Iurie if he faile in his proofe see Glanvile lib. 2. cap. 19. Fitz. nat br fol. 109. K. Io. 110. A. B. C. D. c. the termes of the lawe verb. Attaint Fortescue cap. 26. Smith de rep Anglo lib. 3. cap. 2. and anno 11. H. 7. cap. 21. an 23. H. 8. cap. 3. and others In what diuersitie of cases this writ is brought see the Register orig in Indice Attainted attinctus commeth of the French teindre i. tingere the participle whereof is teinct i. tinctus or else of attaindre i. assequi attingere It is vsed in our common lawe particularly for such as are found guiltie of some crime or offence and especially of felonie or treason How be it a man is said to be attainted of of disseisin Westm 1. cap. 24. 36. anno 3. Ed. 1. And so it is taken in French likewise as estre attaint vayncu en aucun cas is to be cast in any case
Which maketh me to thinke that it rather coÌ„meth from attaindre as we would say in english catched ouertaken or playnly deprehended And Britton ca. 75. vseth the participle attaint in the sence that we say attained vnto A man is attainted by two meanes by appearance or by proces Stawnf pl. cor fo 44. Attaynder by by apparence is by confession by battelll or by verdict idem fo 122. Confession whereof attaynt groweth is double one at the barre before the iudges when the prisoner vpon his endictment read being asked guilty or not guilty answeareth guilty neuer putting himselfe vpon the verdict of the Iurie the other is before the coroner in sanctuarie where he vpon his confession was in former times constreyned to abiure the Realme which kinde also of the effect is called attaynder by abiuration Idem fo 182. Attaynder by battel is when the party appealed by another and chusing to trie the the truth by combat rather then by Iurie is vanquished Idem fo 44. Attaynder by verdict is when the prisoner at the barre answering to the endictment not guilty hath an enquest 〈◊〉 life and death passing vpon him and is by their verdict or doomâ— pronounced guiltie Idem fo 108. 192. Attainder by processe otherwise called attainder by default or attainder by outlagarie is where a partie flieth and is not found vntill he haue bene fiue times called publikely in the countie and at the last out-lawed vpon his default Idem fol. 44. I find by the same author fol. 108. that he maketh a difference between attainder and conuiction in these words And note the diuersitie betweene attainder and conuiction c. And with this agreeth the Statute anno 34. 35. H. 8. cap. 14. in ipso principio and anno 1. Ed. 6. cap. 12. in these words that then euery such offender being duly thereof convicted or attainted by the lawes of this realme c. And againe in these words Euery woman that is or shall fortune to be wife of the person so attainted convicted or outlawed c. To this you may likewise adde the flat anno 2. 3. Edw. 6. cap. 33. And I find by Stawnf pl. cor fol. 66. that a man by our ancient lawes was said to be conuicted presently vpon the verdict guiltie but not to be attainted vntill it appeared that he was no clerke or being a clerke and demanded of his ordinarie could not purge himselfe So that a man was not attainted vpon conuiction except he were no Clerke and in one word it appeareth that attainder is larger then conuiction conuiction being onely by the Iurie And attainder is not before iudgement Perkins Graunti num 27. 29. Yet it appeareth by Stawnf fol. 9. that conuiction is called attainder sometime For there he saith that the verdict of the Iurie doth either acquit or attaint a man and so it is Westm pr. cap. 14. anno 3. Ed. 1. This auncient lawe touching the conuiction and purgation of Clerkes is altered by anno 23. Eliz. cap. 2. as you may farder reade in Clergie Attainder Attinctus though it be most vsed in matters of felonie and treason yet is it likewise applied to inferior transgressions as to disseisin Westm 1. cap. 36. anno 3. Ed. 1. and Britton cap. 26. See Attaint and Attainted Attendant attendens coÌ„meth of the French attendre i. demorari opperiri expectare praestolari it signifieth in our common law one that oweth a dutie or seruice to another or after a sort dependeth of another For example there is Lord mesn and tenent the tenent holdeth of the mesn by a peny the mesn holdeth ouer by two pence The meane releaseth to the tenent all the right he hath in the land and the tenent dyeth His wife shall be endowed of the land and she shall be attendent to the heire of the third part of the peny and not of the third part of the two pence For she shall be endowed of the best possession of her husband Another hath Kitchin fol. 209. in these words where the wife is endowed by the gardian she shal be attendant to the gardian and to the heire at his full age with whome agreeth Perkins also in Dower 424. Atturney atturnatus coÌ„meth of the French tourner i. vertere as tourner son esprit à faire quelque chose i. animum ad rem aliquam inclinare Thence commeth the participle tournè i. versus conversus and the Substantiue tour i. vices vicissitudo as chacun à son tour i. quilibet sua vice It signifieth in our common lawe one appointed by another man to do any thing in his steade as much as procurator or fyndicus in the ciuill lawe West parte 1. Symbolayogr lib. 2. sect 559. defineth it thus Atturneys be such persons as by the consent commandement or request do take heed fee to and take vpon them the charge of other mens busines in their absence by whome they are commaunded or requested And where it seemeth that in auncient time those of authoritie in Courts had it in their arbitriment whether they would suffer men to appeare or sue by any other then themselues as is euident by Fitz. nat br fol. 25. in the writ Dedimus potest atem de atturnato facundo where it is shewed that men were driuen to procure the kings writs or letters parents to appoint Atturneys for them it is sithence prouided by Statutes that it should be lawfull so to do without any such circuit as by the Statute anno 20. H. 3. cap. 10. anno 6. Ed. 1. cap. 8. anno 27. eiusdem stat 2. an 12. Ed. 2. 1. anno 15. eiusdem cap. vnico anno 7. Ric. 2. cap. 14. anno 7. H. 4. cap. 13. anno 3. H. 5. cap. 2. anno 15. H. 6. cap. 7. anno 17. H. 7. cap. 2. is to be proued And you may see great diuersitie of writs in the table of the Regi origin wherein the king by his writ commaundeth the Iudges to admit of Atturneys Wherby there grew at the last so many vnskilfull Atturneys and so many mischiefes by them that prouision for restraining them was requisite Wherefore anno 4. H. 4. cap. 18. it was ordained that the Iustices should examine them and displace the vnskilfull And againe anno 33. H. 6. cap. 7. that there should be but a certaine number of them in Northfo 〈…〉 and Southfolke In what cases a man at this day may haue an Atturney and in what not see Fâ—â— vbisupra Atturney is either generall or speciall Atturney generall is he that by generall authoritie is appointed to all our affaires or suites as the Atturney generall of the king pl. cor fol. 152. which is as much as Procurater Caesaris was in the Romane Empire Atturney general of the Duke Cromptons Iurisd fol. 105. Atturney speciall or particular is he that is employed in one or more causes particularly specified Atturneys generall be made after two sorts either by the kings leters patents before him or
of a fine For if a fine duly levied of lands tenements be not impugned within fiue yeres it excludeth all claime for euer And if a man omit his continuall claime for a yeere and a day then the tenent in possession prescribeth an immunity against the entrie of the demandant and his heyre Fitzh nat br fo 79. Terms of the law verbo Continuall clayme Out of our statutes you may haue greater diuersitie which see collected in mine Institutes titulo de Vsucapio longi tempo praescript So that Brissonius in his 14. de verbo fignif seemeth to say truly that prescription is an exception founded vpon so long time runne and past as the lawe limiteth for the pursuite of any action An example may be taken from those statutes anno 1. H. 8. ca. 4. which inacteth that in all actions populer information shall be made within three yeares after the offence committed or els be of no force Of like nature is the statute anno 7. H. 8. ca. 3. which in some cases maketh one yeeres prescription sufficient against informations Custome is also vsed for the tribute or tolle that merchans pay to the king for carying in and out merchandise anno 14. Ed. 3. stat 1. ca. 21. in which signification it is latined custuma Register orig fo 138. a. 129. a. and lastly for such seruices as tenents of a maner owe vnto their lord New booke of entries verbo Custome Customary tenents tenentes per consuetudmem are such tenents as hould by the custome of the maner as their especiall euidence See Copihoulds Custos breuium is the principall clerk belonging to the court of common plees whose office is to receiue and keepe all the writs and put them vpon files euery returne by it selfe and at the end of euery terme to receiue of the protonotaries all the records of Nisiprius called the postea For they are first brought in by the clerk of assise of euery circuit to the protonotarie that entred the issue in that mater for the entring of the iudgement And then doe the protonotaries get of the court peremptory day for euery party to speake what he hath to alleage in arrest of iudgement which day being past he entreth the verdict and iudgement thereupon into the rols of the court and that done he doth in the end of the tearme deliuer ouer to the custos breuium all the records of Nisi prius which came to his hand that terme which receiued he bindeth into a bundle and bestoweth them The custos breuium also maketh entry of the writs of couenant and the concord vpon euery fine and maketh forth exemplifications and copies of all writs and records in his office and of all fines leuied The fines after they be ingrossed the parts therof are diuided betwen the custos breuium and the chirogropher whereof the chirogropher keepeth alwaies with him the writ of couenant and the note the custos breuium keepeth the concord and the foote of the fine vpon the which foote the chirographer doth cause the proclamations to be indorsed when they be all proclaymed This office is in the princes gift Custos placitorum coronae Bracton li. 2. ca. 5. This seemeth to be all one with him whome we nowe call custos rotulorum of this officer I finde mention in the writ odio atia Register original fo 133. b. Custos rotulorum is he that hath the custodie of the rols or records of the sessions of peace and as some thinke of the commission of the peace it selfe Lamb. Eirenarch li. 4. ca. pa. 3. 373. He is alway a Iustice of Peace and Quorum in the countie where he hath his office Idem eodem and by his office he is rather termed an officer or minister then a iudge because the commission of the peace layethe by expresse words this especiall charge vpon him quòd ad dies locapraedicta breuia praecepta processus indictamenta praedicta coramte dictis sociis tuis venire facias Idem eodem where read a competent tract of other things belonging to this office Custos of the spiritualties custos spiritualitatis vel spiritualium is he that exerciseth the spirituall or ecclesiasticall iurisdiction of any dioces during the vacancie of the See the appointment of whome by the canon lawe apperteineth to the deane and chapter ca. ad abolendam Extra Ne sede vacante aliquid innovetur but with vs in England to the Archbishop of the province by prescription How be it divers deanes and chapters if M. Gwin say truly in the preface to his readings doe chalenge this by awncient charters from the kings of this land Cutter of the talyes is an officer in the exchequer that provideth wood for the talyes and cutteth the summe paid vpon them and then casteth the same into the Court to be written vpon DA DAmmage commeth of the french dam or domage signifiing generally any hurt or hinderance that a man taketh in his estate But in the common lawe it particularly signifieth a part of that the Iurours be to inquire of passing for the plaintiffe or demandant in a ciuile action be it personall or reall For after verdict giuen of the principall cause they are likewise asked their consciences touching costs which be the charges of suite called of the Civilians expensae litis and dammages which conteine the hindrance that the plaintiffe or demandant hath suffered by meanes of the wrong done to him by the defendant or tenent Dane guilt Danegold or Danegelt Danegeldum is compounded of Dane and gelt i. pecunia and was a tribute laide vpon our ancesters of 12. pence for euerie hide of land through the realme by the Danes that once got the masterie of vs in regard as they pretended of clearing the sease of pyrates which greatly annoyed our land in those daies Cambd. Brittan 83. with whome agree the lawes of Edward set out by M. Lamberd ca. 11. Stowe in his annals pa. 118. saith that this tribute came to 40000. pownds by the yeare and that it was released by Edw. the confessour The author of the newe Terms of law saith that this tribute began in the time of king Etheldred who being sore distressed by the continuall inuasion of the Dane to procure his peace was compelled to charge his people with importable payments For first he gaue them at fiue severall paiments 113000. poundes and afterward graunted them 48000. poundes yeerely See Roger Houeden parte poster suorum annalium in Henrico secundo fo 344. a. Dareyn continuance See Continuance Darein is a corrupt word of the French dernier i. vltimu◠Darrein presentment vltima praesentatio See Assise or darreyn presentment Dates dactyli is the plumme or fruite of the tree in latine called palma in english the Date tree well knowne to most men by sight And he that will farder vnderstand the nature or diuersities of this fruite may repaire to Gerards herball li. 3. ca. 131. They be numbred among
to a tenent for terme of life shall inure to him in the Reuersion Erius alius Iris is the flower de luce whose diuers kindes you haue expressed in Gerards herball lib. 1. ca. 34. The roote of this is mentioned among merchandize or drugs to be garbled anno 1. laco ca. 19. Ermins seemeth to come of the french Ermine i. mus araneus it signifieth a furre of great price Erminstreate See Watlingstreate Errant Itinerans commeth of the french Errer i. errare or the ould word Erre i. iter It is attributed to Iustices of circuit pl. cor f 15. and Baylifes at large See Iustices in Eyre and Baylife See also Eyre Errour Error commeth of the french Erreur and signifieth more specially in our common law an errour in pleading or in the proces Brooke titulo Errour And thereuppon the writ which is brought for remedy of this ouersight is called a writ of error in Latine De errore corrigendo thus defined by Fitz. in his nat br fol. 20. A writ of errour is that properly which lyeth to redresse false iudgement giuen in any court of record as in the common bench London or other citie hauing power by the kings charter or prescription to hold plee of debt See the new booke of Entries verbo Error or trespasse aboue the summe of twenty shillings This is borowed from the French practise which they call proposition d'erreur Wherof you may reade in Gregorius De appellation pag. 36. In what diuersitie of cases this writ lyeth see the Register originall in the Table verb. Errore corrigendo and Register iudiciall fol. 34. There is likewise a writ of errour to reuerse a fine West parte 2 sect symbol titulo Fines 151. Errore corrigendo See Errour Escambio is a licence graunted to one for the making over of a Bill of Exchange to a man ouer Sea Register original fol. 194. a. Escape Escapium commeth of the French Eschapper i. aufugere effugere and signifieth in the lawe a violent or priuie evasion out of some lawfull restraint For example if the Shyreeue vpon a Capias directed vnto him take one and indeavour to carie him to the Gaol and he in the way either by violence or by slight breake from him this is called an Escape pl. cor fol. 70. Many examples might bee brought out of him and others but the thing is plaine Stawnford lib. 1. ca. 26. pl. cor nameth two kindes of Escapes voluntarie negligent Voluntarie is when one aresteth another for felonie or some other crime and afterwards letteth him goe whither he listeth In which escape the partie that permitteth it is by lawe guiltie of the fault committed by him that escapeth be it felonie treason or trespas Negligent escape is when one is arrested and afterward escapeth against his wil that arrested him and is not pursued by fresh suite and taken againe before the partie pursuing hath lost the fight of him Idem cap. 27. but there read more of this mater for there be doubts worth the consideration And of the course of punishment by the ciuill lawe in this point reade in practica criminali Claudii de Battandier reg 143. reade also Cromptons Iustice fol. 35. b. fol. 36. 37. and read the newe Termes of lawe There is an escape of beasts likewise and therefore he that by charter is quietus de escapio in the forest is deliuered of that punishment which by order of the forest lieth vpon those whose beasts be found within the land forbidden Cromptons Iurisdict fo 196. Eschequer Scaccarium commeth of the French Eschequier i. abacus tabula lusoria and signifieth the place or court of all receipts belonging to the crowne and is so termed as I take it by reason that in auncient times the accomptants in that office vsed such tables as Arithmeticians vse for their calculations for that is one fignification of Abacus amonst others Polidor Virgil. lib. 9. histo Anglo saith that the true word in latine is Statarium and by abuse called Scaccarium In mine opinion it may well seeme to be taken from the German word schatz signifiing as much as the saurus or fiscus And from this fountaine no doubt springeth the Italian word Zeccha signifiing a mynt and Zeccherii aliàs Zecchieri the officers thereunto belonging Descis Geruen 134. M. Cam. in his Britan. p. 113. saith that this court or office tooke the name à tabula ad quam assidebant proouing it out of Geruasius Tilburiensis whose words you may read in him This court is taken from the Normans as appeareth by the grand Custumarie cap. 56. where you may finde the Eschequier thus described The Eschiquier is called an assemblie of high Iusticiers to whome it appertaineth to amend that which the Baliffes and other meaner Iusticiers haue euill done and vnaduisedly iudged and to doe right to all men without delaie as from the princes mouth Skene de verbo significatione verbo Scaccarium hath out of Paulus Aemilius these words Scaccarium dicitur quasi Statarium quòd homines ibi in iure sistantur vel quòd sit stataria perennis Curia cum ceterae curiae essent indictivae nec loco nec tempore statae where he saith also of himselfe that in Scotland the Eschequer was stable but the other session was deambulatorie before Iames the 5. qui instituit Statariam curiam cum antea esset indictiva he addeth farder Others thinke that Scaccarium is so called a similitudine ludi Scaccorum that is the play of the chests because many persons meete in the Chequer pleading their causes one against the other as if they were fighting in an arraied battaile Others think that it commeth from an old Saxon word Scata as writeth S. Thomas Smith which signifieth treasure taxation or imposts whereof accompt is made in the Chequer This court consisteth as it were of 2. parts whereof one is conuersant especially in the iudiciall hearing and deciding of all causes appertaining to the princes cofers aunciently called Scaccarium computorum as Ockam testifieth in his lucubration the other is called the receipt of the Eschequer which is properly imploied in the receiuing and paiment of money Crompton in his Iurisdictions fo 105. defineth it to be a court of record wherein al causes touching the reuenewes of the crown are handled The officers belonging to both these you may find named in M. Camdens Britannia ca. Tribunalia Angliae to whome I referre you The kings exchequer which now is setled in Westminster was in diuers countries of Wales anno 27. H. 8. ca. 5. but especially ca. 26. Escheate Eschaeta cōmeth of the French escheoir i. cadere accidere excidere and signifieth in our common lawe any lands or other profits that fall to a Lord within his maner by way of forfeiture or the death of his tenēt dying without heire generall or especiall or leauing his heire within age or vnmaried Magna chart ca. 31. Fitzh nat br fol. 143. T. c. Escheate is also vsed
quietantiam murdri in exercitu Fleta libr. prim cap. 47. Ferm firma commeth of the French Ferme i. colonia villa praedium and signifieth with vs house or land or both taken by Indenture of lease or lease parol It may likewise not vnaptly be coniectured that both the French and English word came from the Latine firmus for locare ad firmum I find somtime to signifie with others as much as to set or let to farme with vs. The reason whereof may be in respect of the sure hould they haue aboue tenents at will v. vocabul vtriusque iuris verbo Afflictus The authour of the new Termes of lawe deriueth this word from the Saxon feormian which signifieth to feed or yeeld victuall For in auncient time the reseruations were as well in victuals as money which I leaue to the iudgemet of the Reader How many wayes ferme is takē see Plowden casu Wrothesley fol. 195. a. b. Feudarie See Feodarie Fieri facias is a writ iudiciall that lyeth at all times within the yeare and day for him that hath recouered in an action of debt or dammages to the Shyreeue to commaund him to leuie the debt or the dammages of his goods against whome the recouerie was had This writ hath beginning from Westm 2. cap. 18 anno 13. Ed. 1. See old nat br fol. 152. See great diuersitie thereof in the Table of the Register iudiciall verbo Fieri facias Fifteenth Decimaquinta is a tribute or imposition of mony laide vpon euery city borough and other towne through the realme not by the polle or vpon this or that man but in general vpon the whole city or towne so called because it amounteth to one fifteenth parte of that which the city or towne hath bene valued at of ould This is now a dayes imposed by parlament and euery towne through the realme great or lesse knoweth what a fiftenth for themselues doth amount vnto because it is perpetuall whereas the subsidie which is raised of euery particular mans lands or goods must needs be vncertaine because the estate of euery seuerall man is so ticklish and vncertaine And in that regard am I driuen to thinke that this fifteenth is a rate aunciently laide vpon euery towne according to the land or circuit belonging vnto it whereof M. Camden hath many mentions in his Britannia In stead of the rest take a fewe page 168. of Wels in Somerset shire he writeth thus Quo tempore vt testatur ceasualis Angliae liber Episcopus ipsum oppidum tenuit quod pro quinquiginta hidis geldauit And pag. 171. of Bathe Geldabat pro viginti hidis quando Schira geldabat thirdly pa. 181. of ould Sarisbury thus pro quinquaginta hidis geldabat and these rates were taken out of Domes day in the Eschequer so that this seemed in ould time to be a yearely tribute in certainty whereas now though the rate be certaine yet it is not leuied but by Parlament See Taske see Quinsie me Filazer Filazarius commeth of the french Filace i. filum filacium it is an officer in the common plees whereof there be 14. in number they make out all originall proces as well reall as personall and mixt and in actions meerely personall where the defendants be returned or sommoned there goeth out the distresse infinite vntill apparence If he be returned Nihil then proces of Capias infinite if the plaintife will or after the third Capias the plaintife may goe to the Exigenter of the Shire where his originall is grounded and haue an Exigent and proclamation made And also the Filazer maketh foorth all writs of viewe in causes where the view is prayed he is also allowed to enter the imparlance or the generall issue in common actions where apparence is made with him and also iudgement by confession in any of them before issue be ioyned and to make out writs of execution thereupon But although they entred the issue yet the protonotarie must enter the iudgement if it be after verdict They also make writs of Supersedeas in case where the defendant appeareth in their offices after the Capias awarded Filctale See Sothale File filacium is a threed or wyer whereon writs or other exhibits in courts are fastened for the more safe keeping of them Finders anno 18. Ed. 3. stat 1. cap. vnico anno 14. R. 2. cap. 10. seeme to be all one with those which in these dayes we call searchers Fine finis commeth of the French fin i. finis and hath diuers applications in our commō lawe sometime being vsed for a formall or ceremonious conueyance of lands or tenements or as West saith titulo Fines sect 25. of any thing inheritable being in esse tempore finis to the end to cut off all controuersies West parte 2. symb sect 1. defineth a fine in this signification couenants made before Iustices and entred of Record And out of Glanvile thus lib. 8. cap. 1. Finis est amicabilis compositio finalis concordia ex consensu licentia Domini Regis vel eius Iusticiariorum And lib. 9. cap. 3. Talis concordia finalis dicitur eo quod finem imponit negotio adeò vt neutra pars litigantium ab eo de caetero poterit recedere And out of Bracton lib. 5. tract 5. cap. 28. num 7. thus Finis ideò dicitur finalis concordia quia imponit finem litibus est exceptio peremptoria The authour of the new termes of lawe defineth it to be a finall agreement had betweene persons concerning any land or rent or other thing whereof any suite or writ is betweene them hanging in any court See the new booke of Entries verbo Fines This fine is of so high a nature that Bracton lib. 3. cap. 7. num 3. hath these words of it Item immediate pertinet ad Regem querela finis factae in curia Domini Regis non observatae Et est ratio quia nemo potest finem interpretari nisi ipse Rex in cuius curia fines fiunt See also anno 27. Ed. prim stat prim cap. prim The Civilians would call this solemne contract transactionem iudicialem de re immobili because it hath all the properties of a transaction if it be considered in his originall vse v. Wesemb parat titulo de transact For it appeareth by the writers of the common lawe aboue named that it is nothing but a composition or concord acknowledged and recorded before a competent Iudge touching some hereditament or thing immoueable that earst was in controuersie betweene those that be parties to the same concord and that for the better credit of the transaction being by imputation made in the presence of the king because it is leuied in his Court and therefore doth it bind women couert being parties and others whom ordinarily the lawe disableth to transact onely for this reason that all presumption of deceipt or euill meaning is excluded where the king is priuy to the acte But discourse of wit and reason
Regale beneficium clementis principis de consilio procerum populis indultum quo vitae hominū status integritati tam salubriter consulitur vt in iure quod quis in libero soli tenemento possidet retinendo duells casum declinare possint homines ambiguum c see the rest This Iury is not vsed onely in circuits of Iustices errant but also in other courts and maters of office as if the Escheatour make inquisition in any thing touching his office he doth it by a Iury or inquest if the Coroner inquire how a subiect found dead came to his end he vseth an inquest the Iustices of peace in ther quarter Sessions the Shyreeue in his county and Turne the baylife of a Hundred the Stewarde of a court Leete or court Baron if they inquire of any offence or descide any cause betweene party and party they doe it by the same maner So that where it is said that all things be triable by Parlament Battell or assise Assise in this place is taken for a Iury or Enquest empaneled vpō any cause in a court where this kind of triall is vsed and though it be commonly deemed that this custome of ending and desciding causes proceede from the Saxons and Brittons and was of fauour permitted vnto vs by the Conquerour yet I finde by the grand Customarie of Normandie cap 24. that this course was vsed likewise in that countrie For Assise is in that Chapter defined to be an assembley of wise men with the Bailife in a place certaine at a time assigned 40. daies before wherby Iustice may be done in causes heard in the court of this custome also and those Knights of Normandie Iohannes Faber maketh mention in the Rubrique of the title de militari testamento in Institut this Iury though it appertaine to most courts of the common law yet is it most notorious in the half yeare courts of the Iustices errants commonlie called the great assises and in the quarter Sessions and in them it is most ordinarily called a Iurie And that in ciuile causes wheras in other courts it is oftener tearmed an enquest and in the court Baron the Homage In the generall Assise there are vsually many Iuries bicause there be store of causes both ciuil and criminall commonly to be tried wherof one is called the Grand Iury and the rest petit Iuries whereof it seemeth there should be one for euery Hundred Lamb. Eirenar l. 4. cap. 3. pa. 384. The Grand Iurie consisteth ordinarily of 24. graue and substantiall gentlemen or some of them yeomen chosen indifferently out of the whole shyre by the Shyreeue to consider of all bils of Inditement preferred to the court which they doe either approoue by writing vpon them these words billa vera or disallowe by writing Ignoramus such as they doe approoue if they touch life and death are farder referred to another Iury to be considered of because the case is of such importance but others of lighter moment are vpon their allowance without more worke fined by the bench except the party travers the Inditement or chalenge it for insufficiencie or remooue the cause to a higher court by certiorarie in which 2. former cases it is referred to another Iurie and in the latter transmitted to the higher Lamb. Eire l. 4. c. 7. presently vpon the allowance of this bill by the Grand Enquest a man is said to be indighted Such as they dissalowe are deliuered to the benche by whome they are forthwith cancilled or torne The petit Iury consisteth of 12. men at the least are Empanelled as well vpon criminall as vpon ciuile causes those that passe vpon offences of life and death doe bring in their verdict either guiltie or not guiltie wherevpon the prisoner if he be found guiltie is said to be conuicted and so afterward receaueth his iudgment and condemnation or otherwise is acquited and sett Free of this reade Fortes cap 27. those that passe vpon ciuile causes reail are all or so many as can conueniently be had of the same hundred where the land or tenement in question doth lie and 4. at the least And they vpon due examination bring in their verdict either for the demaundant or Tenent of this see Fortesc cap. 25. 26. according vnto which iudgement passeth afterward in the court where the cause first began and the reason hereof is because these Iustices of Assise are in this case for the ease of the cuntry onely to take the verdict of the Iurie by the vertue of the writ called nisi prius and so returne it to the court where the cause is depending See Nisi prius Ioyne with this the chapter formerly cited out of the custumary of Normandie and that of King Etheldreds lawes mentioned by Maister Lamberd verbo Centuria in his explication of Saxon words and by these two words you shall perceiue that as well among these Normans as the Saxons the men of this Iuty were associats and Assistants to the Iudges of the court in a kind of equality where as now a daies they attend them in great humility and are as it were at their commaund for the seruice of the court the words set downe by M. Lamberd are these In singulis centuriis comitia sunto atque liberae condicionis viri duodeniaetate superiores vnà cum praeposito sacra tenentes iuranto se adeo virum aliquem innocentem haud condemnaturos sontemve absoluturos to this ioyne also the 69. chapter of the saide custumarie See Enquest See 12. men See Lamberds Eurenarch lib. 4. cap. 3. p. 384. Iuris vtrùm is a writ that lyeth for the incumbent whose predecessour hath alienated his lands or tenements the diuers vses of which writ see in Fitzh nat br fol. 48. Iurisdiction Iurisdictio is a dignity which a man hath by a power to doe Iustice in causes of complaint made before him And there be two kinds of Iurisdictions the one that a man hath by reason of his fee and by vertue thereof doth right in all plaints concerning his see The other is a Iurisdiction giuen by the prince to a baylife this diuision I haue in the Custumary of Normandy cap. 2. which is not vnapt for the practise of our common welth for by him whom they call a baylife we may vnderstand all that haue commission from the prince to giue iudgement in any cause The ciuilians diuide iurisdictionem generally vnderstand in imperium iurisdictionem and imperium in merum mixtum Of which you may reade many especiall tractats writen of them as a mater of great difficulty and importance Iustes commeth of the French Ioustes i. decursus and signifieth with vs contentions betweene Martiall men by speares on horsbacke anno 24. H. 8. cap. 13. Iustice Iusticiarius is a French word and signifieth him that is deputed by the king to do right by way of iudgement the reason why he is called Iustice and not Iudex is because in auncient time the
deliberandas quandoque ad vnicam vel duas non plures And by this meanes the Iustices of both benches being iustly to be accounted the fittest of all others and others their assistants as also the Sergeants at law may be imployed in these affaires who as grauest in yeares so are they ripest in iudgement and therefore likest to be voide of prociality for being called to this dignity they giue ouer practise anno 8. R. 2. cap. 3. but this alway to be remembred that neither Iustice of either bench nor any other may be Iustice of Assise in his owne country anno 8. Rich. 2. cap. 2. anno 33. H. 8. cap. 24. lastly note that in these daies though the selfe same men dispatch busines of so diuers natures and all at one time which were wont to be performed by diuers and at seuerall times yet they doe it by seuerall commissions Cromptons Iurisdictions fo 210. For those who be in one word called Iustices of circuit and twice euery yeare passe by two and two through all Englād haue one cōmission to take Assises another to deliuer Goales another of oyer and terminer That Iustices of Assise and Iustices in Eyre did aunciently differ it appeareth an 27. Ed. 3. cap. 5. and that Iustices of Assise Iustices of goale deliuery were diuerse it is euident by anno 4. Fd. 3. cap. 3. The oath taken by Iustices of assise is all one with the oath taken by the Iustices of the kings bench Ould abridgement of statutes titulo Sacramentum Iusticiariorum See Oath Iustices of oyer and terminer Iusticiarii ad audiendum terminandum were Iustices deputed vpon some especiall or extraordinary occasion to heare and determine some or more causes Fitzherberd in his natura beruium saith that the commission d' oyer and terminer is directed to certaine persons vpon any great assembly insurrection hainous demeanure or trespasse committed And because the occasion of granting this commission should be maturely wayed it is prouided by the statute anno 2. Ed. 3. cap. 2. that no such commission ought to be graunted but that they shal be dispatcheo before the Iustices of the one bench or other or Iustices errāts except for horrible trespasses that by the especial fauour of the King The forme of this cōmission see in Fitzh natura breu fol. 110. Iustices in Eyre Iusticiarii itinerantes are so termed of the French Erre i. iter which is an old word as a grand erre i. magnis iteneribus prouerbially spoken the vse of these in auncient time was to send them with commission into divers counties to heate such causes especially as were termed the plees of the crowne and therefore I must imagine they were so sent abroad for the ease of the subiects who must els haue beene hurried to the kings bench if the cause were too high for the countie court They differed from the Iustices of oyer and terminer because they as is aboue said were sent vpon some one or fewe speciall cases and to one place whereas the Iustices in Eyre were sent through the prouinces and counties of the land with more Indefinite and generall commission as appeareth by Bracton lib. 3. cap. 11. 12. 13. and Britton cap. 2. And againe they seeme to differ in this because the Iustices of oyer and terminer as it is before said were sent vncertainly vpon any vproare or other occasion in the country but these in Eyre as M. Gwin setteth downe in the preface to his reading were sent but euery seuen yeare once with whome Horn in his myrrour of Iustices seemeth to agree lib. 2. cap. queux poient estre actours c. and lib. 2. c. des peches criminels c. al suyte de Roy c. and lib. 3. c. de Iustices in Eyre where he also declareth what belonged to their office These were instituted by Henry the 2. as M. Camden in his Britannia witnesseth pag. 104. And Roger Hoveden parte posteri annalium fo 313. b. hath of them these wordes Iusticiarij itinerantes constituti per Henricum secundum i. qui diuisit regnum suumin sex partes per quarum singulas tres Iusticiarios itinerantes constituit quorum nomina haec sunt c. Iustices of Gaol deliuery Iusticiarii ad Gaolas deliberandas are such as are sent with commission to heare and determine all causes apperteining to such as for any offence are cast into the Gaol part of whose authoritie is to punish such as let to mainprise those prisoners that by lawe be not bayleable by the statute de finibus cap. 3. Fitzh nat br f. 251. I. These by likelyhoode in auncient time were sent to countries vpon this seuerall occasion But afterward Iustices of Assise were likewise authorised to this anno 4. Ed. 3. cap. 3. Their oath is all one with other of the kings Iustices of either bench Ould Abridgement of statutes titulo Sacramentum Iusticiariorum See Othe Iustices of labourers were Iustices appointed in those times to redresse the frowardnesse of labouring men that would either be idle or haue vnreasonable wages See anno 21. Eduardi 3. cap. primo anno 25. eiusd cap. 8. anno 31. eiusdem cap. 6. Iustices of Nisi prius are all one now a daies with Iustices of Assises for it is a common Adiournment of a cause in the common plees to put it off to such a day Nisi prius Iusticiarii venerint ad eas partes ad capiendas Assisas and vpon this clause of Adiournment they are called Iustices of Nisi prius as well as Iustices of Assises by reason of the writ or action that they haue to deale in their commission you may see in Cromptons Iurisdsctious fol. 204. yet M. Crompton maketh this difference betweene them because Iustices of Assise haue power to giue iudgement in a cause but Iustices of Nisi prius only to take the verdict But in the nature of both there functions this seemeth to be the greatest difference because Iustices of Nisi prius haue to deale in causes personall as well as reall wheras Iustices of Assise in strict acception deale only with the possessory writs called Assises Iustices of trial bastō alias of trayl baston were a kind of Iustices appointed by King Edward the first vpon occasion of great disorder growne in the Realme during his absence in the Scottishe and French warres they are called in the ould nat bre f. 52. Iustices of triall Baston but by Holynshed and Stow in Edw. pri of Traile baston of trailing or drawing the staffe as Holinshed saith Their office was to make inquisition through the Realme by the verdict of substantiall Iuries vpon all officers as Mayors Shyreeues Bailifes escheatours others touching extortion briberies and other such greeuances as intrusions into other mens lands and Barratours that vsed to take mony for beating of men and also of them whom they did beate by meanes of which inquisitions many were punished by death many by ransome and so the rest flying the
either Bench Barons of the Exchequer Iustices of peace c. And those that be meere recognisances are not sealed but inrolled And execution by force thereof is of all the recognisours goods and chatels except his draught beasts and implements of husbandrie and of the moitie of his lands West parte prim symb lib. 2. titulo Recognisances sect 149. And of these you may see there great diuersitie of presidents Note farder that a Recognizance though in the speciall signification it do but acknowledge a certaine debt and is executed vpon all the goods and halfe the lands of the recognisour yet by extention it is drawne also to the Bonds commonly called Statute Merchant and Statute of the Staple as appeareth by the Register original fol. 146. 151. 252. and by West vbi supra and others See Statute Merchant and Statute Staple Recognisance hath yet another signification as appeareth by these wordes in the statute West 1. c. 36. anno 3. Ed. 1. It is prouided also and agreed that if any man be attainted of disseisin done in the time of our King that now is with roberie of any maner of goods or moueables by recognisance of Assise of nouel disseisin the iudgement shall c. In which place it is vsed for the verdict of the twelue men empaneled vpon an Assise which twelue are also called recognitours of the Assise Litleton fol. 72. So also Bracton calleth them lib. 5. tractat 2. cap. 9. num 2. in these words In essonio verò reddendo exigentur omnes illi quos causa tetigerit sicut particeps Warantus alii vt supra Recognitores in Assisis Iuratores in Iuratis Inquisitores in Inquisitionibus c. And againe lib. 3. tract prim cap. 11. num 16. See the Statute anno 20. Ed. prim stat 4. See the newe book of Entries ver Recognisance Recognitione adnullanda per vim duritiem facta is a writ to the Iustices of the common Bench for the sending of a record touching a recognisance which the recognisour suggesteth to be acknowledged by force and hard dealing that if it so appeare it may be disanulled Register original fol. 183. a. b. Recognitours recognitores is a word vsed for the Iurie empaneled vpon an assise The reason why they be so called may be because they acknowledge a disseisin by their verdict See Bracton lib. 5. tract 2. cap. 9. nu 2. lib. 3. tract prim cap. 11. num 16. Record recordum commeth of the Latine recordari The word is both French and English and in both tongs signifieth an authenticall or vncontroulable testimonie in writing Britton cap. 27. and Lamb. Eirenarch lib. 1. cap. 13. In the Grand Custumarie of Normandie there are seuerall Chapters of diuers records expressing whose presence in each of the Courts is sufficient to make that which is enacted to be a record viz. the 102. chapter where you haue wordes to this effect The record of the Kings Court is a record of things done before the King All things done before the King so he haue one other witnesse This record may he and other make if he himselfe will not make it it may be made by three others And his person may not bee impeached or excepted against either in this or any other thing The next chapter viz. the 103. sheweth how many persons suffise to make a record in the Exchequer The next how many in an assise c. I find not that wee in our Courts especially the Kings Courts stand much vpon the number of recorders or witnesses for the strength of the testimonie which the record worketh but that we take it sufficient which is registred in each Court Glanvile lib. 8. cap. 8. Bracton lib. 3. tract 2. cap. 37. num 4. Britton in the Proeme of his booke saith that the Iustices of the Kings Bench haue a record the Coroner Vicount Iustices of the Exchequer Iustices of Goale deliuerie the Steward of England Iustices of Ireland Iustices of Chester Iustices assigned by the Kings leters patents in those causes they haue commission to take knowledge of All which as I take it must be vnderstood with that caueat of Brooke titulo Record num 20 22. that an act committed to writing in any of the Kings Courts during the terme wherein it is written is alterable and no record but that terme once ended and the said act duly enrolled it is a record and of that credit that admitteth no alteration or proofe to the contrarie Yet see Sir Edward Cookes Reports lib. 4. Rawlins case fol. 52. b. ann 12. Ed. 2. cap. 4. It is said that two Iustices of either Bench haue power to record Non suites Defaults in the countrey It appeareth by Bracton lib. 5. tract 2. c. 1. 11. that quatuor milites babent recordum being sent to view a partie essoined de malo lecti and lib. 5. tract 1. cap. 4. nu 2. that Seruiens Hundredi habet recordum in testimonio proborum honinum And in the Statute of Carleil made anno 15. Ed. 2. it is said that one Iustice of either Bench with an Abbot or a Prior or a Knight or a man of good same and credence hath a record in the view of one that is said by reason of sicknesse to be vnable to appeare personally for the passing of a fine And anno 13. H. 4. cap. 7. anno 2. H. 5. cap. 3. that two Iustices of peace with the Shyreeue or Vndershyreeue haue power to record what they find done by any in a ryot or route c. That which is before mentioned out of Britton touching the Shyreeue seemeth to be limited by Fitzh nat br fol 81. D. Who alloweth him a Record in such maters onely as he is commaunded to execute by the Kings writ in respect of his office And thence it commeth that Kitchin fol. 177. saith that the Escheatour and Shyreeue be not Iustices of record but officers of record In which words he signifieth that their testimony is authenticall onely in some certaine things that are expresly inioyned them by vertue of their Commission as ministers to the King in his higher Courts whereas Iustices of record haue in generality a record for all things within their cognisance done before them as Iudges though not expresly or particularly commaunded Fitzherbert in his Nat br fo 82. in principio something explaneth this point writing to this effect Euery act that the Shyreeue doth by vertue of his commission ought to be taken as mater of record no lesse then the Iustices of peace His reasons be two the former he cause his patent is of record the other because he is a conseruatour of the peace And then he addeth that the plees held before him in his County be not of record Yet is the county called a Court of record Westm 2. ca. 3. anno 13. Ed. 1. But it seemeth by Britton cap. 27. that it is onely in these causes whereof the Shyreeue houldeth plee by especiall
writ and not those that he houldeth of course or custome And in that case also it may be gathered out of the same authour that he hath a record but with the testimony of those annexed that be suiters to the Court. Which seemeth to agree with Bractons words aboue specified Seruiens Hundredi habet recordum in testimonio proborum hominum And to this purpose read Glanuile lib. 8. cap. 8. 9. 10. One Iustice vpon view of forcible detinew of land may record the same by statute anno 15. R. 2. cap. 2. the Maior and Constables of the Staple haue power to record recognisances of debt taken before them anno 10. H. 6. ca. 1. Brooke titulo Record seemeth to say that no court ecclesiasticall is of record how truly it is to be inquired For Bishops certifiing bastardy bigamy excommunication the vacancy or plenarty of a Church a mariage a diuorce a spirituall intrusion or whether a man be professed in any religion with other such like are credited without farder enquiry or controlment See Brooke titulo Bastardy See Fleta lib 6. ca. 39. 40. 41. 42. Lamb. cirenarcha lib pri cap. 13. Glanuile li. 7. ca. 14. 15. the Register originall fol. 5. b. Bracton lib. 5. tracta 5. ca. 20. nu 5. Britton ca. 92. 94. 106. 107. 109. Doct. and Stud. li. 2. ca. 5. but especially Cosius apologie parte pri ca. 2. And a testament shewed vnder the seale of the Ordinary is not trauersable 36. H. 6. 31. Perkins Testament 491. Fulb. paral fol. 61. b. But it may be that this opinion groweth from a difference betweene that law whereby the court Christian is most ordered and the common law of this land For by the ciuile or canon law no instrument or record is held so firme but that it may be checked by witnesses able to depose it to be vntrue Co. plu◠valere quod agitur quà m quod simulate concipitur ca. cùm Iohannes 10. extra de fide instrumentorum Whereas in our common law against a record of the Kings Court after the terme wherein it is made no witnes can preuaile Britton ca. 109. Coke lib. 4. Hindes case fol. 71. lib. assisarum fol. 227. nota 21. This reconciliation may be iustified by Brooke himselfe titulo Testaments num 4. 8. 14. and by Glanuile lib. 8. cap. 8. The King may make a court of record by his graunt Glanuil li. 8. ca. 8. Britton cap. 121. as for example Queene Elizabeth of worthy memory by her Charter dated 26. Aprilis anno 3. regni sui made the Consistory Court of the Vniuersity of Cambridge a Court of record There are reckoned among our common lawyers three sorts of records viz A record iudiciall as attainder c. A record ministeriall vpon oath as an office found A record made by conueyance by consent as a fine deede enrolled or such like Coke li. 4. Andrew Ognels case fo 54. b. Recordare facias or recordari facias is a writ directed to the Shyreeue to remoue a cause depending in an inferiour court to the Kings bench or common plees as out of a court of auncient Demesn Hundred or Countie Fitz. nat br fol. 71. B. out of the countie Court idem fo 46. B. or other courts of record idem fol. 71. C. 119. K. Howbeit if you will learne more exactly where and in what cases this writ lyeth reade Brooke in his Abridgm titulo Recordare pone It seemeth to be called a recordare because the forme is such that it commaundeth the Shyreeue to whom it is directed to make a record of the proceeding by himselfe and others and then to send vp the cause See the Register verbo Recordare in the Table of the originall Writs See Certiorart See Accedas ad Curiam Recorder recordator commeth of the French recordeur i. talis persona quae in Ducis Curia â iudicio faciendo non debet amoueri Grand Custumarie of Norm cap. 107. 121. Whereby it appeareth that those which were necessarie Iudges in the Duke of Normandies Courts were called Recorders and who they were is shewed in the ninth chapter of the said booke And that they or the greater part of them had power to make a record it is euident in the chapter 107. Here in England a Recorder is he whome the Maior or other Magistrate of any citie or towne corporate hauing Iurisdiction or a Court of record within their precincts by the Kings graunt doth associate vnto him for his beter direction in maters of Iustice and proceedings according vnto lawe And he is for the most part a man well seene in the common lawe Recordo processis mittendis is a writ to call a Record together with the whole proceeding in the cause out of one court into the Kings Court Which see in the Table of the Register orig how diuersly it is vsed Recordo vtlagariae mittendo is a writ Iudiciall which see in the Register iudicial fol. 32. Recouerie Recuperatio cōmeth of the French Recouvrer i. Recuperare It signifieth in our commō lawe an obteining of any thing by Iudgement or triall of lawe as evictio doth among the Ciuilians But you must vnderstand that there is a true recouerie and a feigned A true Recouerie is an actuall or reall recouerie of any thing or the value thereof by Iudgement as if a man siewed for any land or other thing moueable or immoueable and haue a verdict and Iudgement for him A feigned recouerie is as the Ciuilians call it quaedam fictio iuris a certaine forme or course set downe by lawe to be obserued for the beter assuring of lands or tenements vnto vs. And for the beter vnderstanding of this reade West parte 2. symbol titulo Recoveries sect pri who saith that the end and effect of a Recouerie is to discontinue and destroy estates Tayles Remainders and Reuersions and to barre the former owners thereof And in this formality there be required 3. parties viz. the Demaundant the Tenent and the Vowchee The Demaundant is he that bringeth the writ of Entrie and may be termed the Recouerer The Tenent is he against whom the writ is brought and may be termed the Recoveree The Vowchee is he whom the tenēt vowcheth or calleth to wartantie for the land in demaund West vbi supra In whom you may reade more touching this mater But for example to explane this point a man that is desirous to cut of an estate tayle in lands or tenements to the end to sell giue or bequeath it as him self seeth good vseth his frend to bring a writ vpon him for this land He appearing to the writ saith for him selfe that the land in question came to him or his auncesters from such a man or his auncester who in the conueiance thereof bound him selfe and his heires to make good the title vnto him or them to whome it was conueied And so he is allowed by the court to call in this third man to
high way ouerflowne with water for default of scowring a ditch which he and they whose estate he hath in certain land there haue vsed to scower and cleanse A. may trauerse either the mater viz. that there is no high way there or that the ditch is sufficiently scowred or otherwise he may trauers the cause viz. that he hath not the land c. or that he and they whose estate c. haue not vsed to scoure the ditch Lamb. Eirenarcha lib. 4. cap. 13. pag. 521 522. Of Trauers see a whole chapter in Kitchin fol. 240. See the new booke of Entries verbo Trauers Treason traditio vel proditio commeth of the French trahison i. proditio and signifieth an offence committed against the amplitude and maiestie of the commonwealth West parte 2. symbol titulo Inditements sect 63. by whom it is there diuided into High treason which other call altam proditionem and petit treason High treason he defineth to be an offence done against the securitie of the common wealth or of the Kings most excellent Maiestie whether it be by imagination word or deed as to compasse or imagine treason or the death of the Prince or the Queene his wife or his sonne and heyre apparent or to deflowre the Kings wife or his eldest daughter vnmaried or his eldest sonnes wife or leuie war against the King in his Realme or to adhere to his enemies ayding them or to counterfeit the Kings great Seale priuie Seale or money or wittingly to bring false money into this Realme counterfeited like vnto the money of England and vtter the same or to kill the Kings Chaunceler Treasurer Iustice of the one bench or of the other Iustices in Eyre Iustices of Assise Iustices of oyer and terminer being in his place doing of his office anno 25. Ed. prim ca. 2. or forging of the Kings seale manuell or priuy signet priuy seale or forrein coine current within the Realme anno 2. Mar. cap. 6. or diminishing or impairing of money current an 5. Elizab. ca. 11. anno 14. El. ca. 3. 18. Elizab. ca. pri and many other actions which you may read there and in other places particularly expressed And in case of this treason a man forfeiteth his lands and goods to the King onely And it is also called treason Paramount anno 25. Ed. 3. cap. 2. The forme of Iudgement giuen vpon a man conuicted of high treason is this The Kings Sergeant after the verdict deliuered craueth Iudgement against the prisoner in the behalfe of the King Then the Lord Steward if the traitour haue bene noble or other Iudge if he be vnder a peere saith thus N. Earle of P. For so much as thou before this time hast bene of these treasons indited and this day arraigned for thee same and put thy selfe vpon God and thy peeres and the Lords thy peeres haue foūd thee guilty my Iudgement is that thou shalt from hence be conueied vnto the Tower of London whence thou camest and from thence drawne through the middest of London to Tiburne and there hanged and liuing thou shalt be cut downe thy bowels to be cut out and burnt before thy face thy head cut off and thy body to be diuided in foure quarters and disposed at the Kings Maiesties pleasure and God haue mercy vpon thee Petit treason is rather described by examples then any where logically defined as when a seruant killeth his master or a wife her husband or when a secular or religious man killeth his prelate to whom he oweth faith and obedience And in how many other cases petit treason is committed See Cromptons Iustice of peace And this maner of treason giueth forfeiture of Escheats to euery Lord within his owne fee anno 25. Ed. 3. cap. 2. Of treason see Bracton lib. 3. tract 2. cap. 3. nu pri 2. Treason compriseth both high and petit treason anno 25. Ed. 3. stat 3. cap. 4. Treasure troue The saurus inuentus is as much as in true French Tresor trouuè i. treasure found and signifieth in our common law as it doth in the Ciuile law idest veterem depositionem pecuniae cuius non extat memoria vt iam dominum non habeat l. 31 § prim Π. de acquir rerum Dom. Neere vnto which definition commeth Bracton lib. 3. tract 2. cap. 3. num 4. And this treasure found though the ciuill lawe do giue it to the finder according to the lawe of nature yet the lawe of England giueth it to the King by his prerogatiue as appeareth by Bracton vbi supra And therefore as he also saith in the sixth chapter it is the Coroners office to enquire therof by the countrie to the Kings vse And Stawn pl. cor lib. pr. cap. 42. saith that in auncient times it was doubtfull whether the concealing of treasure found were felonie yea or not and that Bracton calleth it grauem praesumptionem quasi crimen furti But the punishment of it at these dayes as he proueth out of Fitzh Abridgment pag. 187. is imprisonment and fine and not life and member And if the owner may any way be knowne then doth it not belong to the kings prerogatiue Of this you may reade Britton also cap. 17. who saith that it is euery subiects part as soone as he hath found any treasure in the earth to make it knowne to the Coroner of the countrie or to the Bayliffes c. See Kitchin also fol. 40. Treasurer thesaurarius commeth of the French tresorier i. quaestor praefectus fisci and signifieth an Officer to whom the treasure of another or others is committed to be kept and truly disposed of The chiefest of these with vs is the Treasurer of England who is a Lord by his office and one of the greatest men of the land vnder whose charge and gouernment is all the Princes wealth contained in the Exchequer as also the checke of all Officers any way employed in the collecting of the Imposts tributes or other reuenewes belonging to the Crowne Smith de Repub. Anglor lib. 2. cap. 14. more belonging to his office see ann 20 Ed. 3. cap. 6. anno 31. H. 6. cap. 5. anno 4. Ed. 4. cap. pri anno 17. eiusdom cap. 5. anno prim R. 2. cap. 8. anno 21. H. 8. cap. 20. anno prim Ed. 6. cap. 13. Ockams Lucubrations affirme that the Lord chiefe Iustice had this authoritie in times past and of him hath these words Iste excellens Sessor omnibus quae in inferrore vel superiore scacchio sunt prospicit Ad nutum ipsius quaelibet officia subiecta disponuntur sic tamen vt ad Domini Regis vtilitatem iuste perueniant Hic tamen inter caetera videtur excellens quod potest his sub testimonio suo breve Domini Regis facere fieri vt de thesauro quaelibet summa liberetur vel vt computetur quod sibi ex Domini Regis mandato praenouerit computandum vel si maluerit breve suum