Princes especially purposed But of this reade Sir Thomas Smith lib. 3. de Rep. Angl. cap. 9. Some later statutes doe cast this punishment vpon other offenders as namely the statute anno 1. El. cap. primo vpon him that denieth the Kings supremacie the second time c. and the statue anno 13. El. ca. 2. vpon him that affirmeth the authoritie of the Pope or that refuseth to take the oathe of supremacie and the statute anno 13. El. cap. 1. fuch as be seditious talkers of the inheritance of the Crowne or affirme the Queenes Maiestie to be an heritique And the word is applied most commonly to the punishment first ordeined by the statutes before mentioned for such as transgressed them but in later times imposed vpon other offences for that where it is saide that any man for an offence committed shall incurre a premunire it is meant that he shall incurre the same punishment which is inflicted against those that trangresse the statute made anno 16. R. 2. ca. 5. which is commonly called the statute of premunire which kinde of reference is not vnusuall in our statutes Cor example I shew onely the statute anno 5. El. ca. 5. where it is inacted that if any man preach or teach by wrighting that the cōmon Counsell of the Realme doe by that statute forbid flesh to be eaten as of necessitie for the sauing of mans soule that he shall for such preaching c. be punished as they be which be spredders of false newes hauing reference thereby to those statutes which conteine the punishment of such offenders Now touching the Etymologie of this word Praemunire some thinke it proceedeth from the strength giuen to the Crown by the former statutes against the vsurpation of forein and vnnaturall power which opinion may receiue some ground from the statute anno 25. Ed. 3. stat 6. cap. pri But other thinke it to grow from the verb Praemonere being barbarously turned into Praemunire which corruption is taken from the rude Interpreters of the Ciuile and Canon lawes who indeede doe vse the effect Praemunire many times for the efficient cause Praemonere according to our prouerb He that is well warned is halfe armed And of this I gather reason from the forme of the writ which is thus conceiued in the old nat br fol. 143. Praemunire facias praefatum praepositum I. R. procuratorem c. quod tune sint coram nobis c. for these words can be referred to none but parties charged with the offence Praepositus villae is vsed sometime for the Constable of a town or petit Constable Cromptons Iurisdict fol. 205. how be it the same author fol. 194. seemeth to apply it otherwise for there quatuor homines praepositi be those 4. men that for euery towne must appeare before the Iustices of the Forest in their Circuit It is vsed sometime for a Reeve See Reeve Praerogatiue of the King praeregatiua regis is that especiall power preeminence or priuiledge that the King hath in any kinde ouer and aboue other persons and aboue the ordinarie course of the common lawe in the right of his crowne And this word Praerogatiua is vsed by the Ciuilians in the same sense l. Rescriptum 6. § 4. Π. de hono muner But that priviledge that the Roman Emperour had aboue common persons they for the most part comprised sub iurefisci Π. de iure fisct per totum tit Co. li. 10. tit 1. Among the Feudists this is termed ius regalium ius regaliorum vel a nonnullis ius regaliarum But as the Feudists sub iure regalium soe our lawyers sub praerogatiua regis doe comprise also all that absolute heighth of power that the Ciuilians call maiestatem vel potestatem vel ius imperii subiect only to god which regalia the Feudists diuide into two sorts maiora sc minora regalia for to vse their owne words Quaedam regalia dignitatem praerogatiuam imperii praeemmentiam spectant quaedam verò ad vtilitatem commodum pecuniarium immediatè attinent haec proprièfiscalia sunt ad ius fisci pertinent Peregri de iure fisci li. pri cap. 1. nu 9. See also Arnoldus Clapmarius de arcanis Imperii lib. pri cap. 11. seqq who seemeth to make difference betwene maiestatem ius regaliorū Others also make those maiora regalia that appertaine to the dignitie of the prince and those minora which inrich his cofers Regnerus Sixtinus de iure rega cap. 2. By this it appeareth that the statute of the Kings prerogatue made an 17. Ed. 2. conteineth not the summe of the Kings whole prerogatiue but onely so much thereof as concernes the profit of his cofers growing by vertue of his regall power and crowne for it is more then manifest that his prerogatiue reacheth much farder yea euen in the maters of his profit which that statute especially consisteth of For example it is the kings prerogatiue to graunt protection vnto his debtours against other creditours vntill himselfe be satisfied Fitzh nat br fol. 28. B. to distreine for the whole rent vpon one tenent that hath not the whole land Idem fol. 235. A. to require the auncesters debt of the heire though not especially bound Brit. cap. 28. fo 65. b. to seise vpon money paid by his deptour into a court for the satisfaction of an executor Plowden fol. 322. a. to permit his deptours to siew for their debts by a Quo minus in the exchequer Perkins Grawnts 5. to be first paid by one that oweth money both to him and others Dyer fol. 67. nu 20. to take the lands of accountants into his hands for his own satisfaction Plowd casu Almes fol. 321. 322. to take his action of accoumpt against executors eodem fol. 320. not to be tied to the demaund of his rent Coke li. 4. fo 73. a. Now for those regalities which are of the higher nature all being within the compas of his prerogatiue and iustly to be comprised vnder that title there is not one that belonged to the most absolute prince in the world which doth not also belong to our king except the custome of the nations so differ as indeede they doe that one thing be in the one accompted a regalitie that in another is none Onely by the custome of this kingdome he maketh no lawes without the consent of the 3. estates though he may quash any lawe concluded of by them And whether his power of making lawes be restreined de necessitate or of a godly and commendable policy not to be altered without great perill I leaue to the iudgement of wisermen But I hold it incontrowlable that the king of England is an absolute king And all learned politicians doe range the power of making lawes inter insignia summae absolutae potestatis Maiora autem regalia sunt haec clausula plenitudinis potestatis ex ea aliquid statuere leges condere ac eas omnibus singulis
barrs laide crosse waies one ouer another so that a man may see through them in and out And it is to be thought that iudgement seates in ould time were compassed in with those barres being founde most necessary to defend the iudges and other officers from the presse of the multitude and and yet neuer the more to hinder any mans view that had a desire or cause to obserue what was done Cancellarius at the first by the opinion of Lupanus signified the registers or actuaries in court grapharios sc qui conscribendis excipiendis iudicum actis dant operam Pithaeus saith they were such as we now call Secretarios But this name in our daies is greatly advanced and not onely in other kingdomes but in ours also is giuen to him that is the cheife man for mater of iustice in priuate causes especially next vnto the prince For whereas all other Iustices in our common wealth are tied to the lawe and may not swerue from it in iudgement the Chanceler hath in this the kings absolute power to moderate and temper the written lawe and subiecteth himselfe onely to the lawe of nature and conscience ordering all things iuxta aequum bonum And therefore Stawnford in his Prerogatiue ca. 20. fo 65. saith that the Chanceler hath two powers one absolute the other ordinary meaning that though by his ordinary power in some cases he must obserue the forme of proceeding as other ordinarie Iudges yet that in his absolute power he is not limited by the written law but by conscience and equitie according to the circumstances of the mater in question But how long he hath had this power some would doubt For Polidorus Virgilius lib. 9. historiae Anglica hath these words of William the Conqueror Instituit item Scribarum Collegium qui diplomata scriberent eius Collegii magistrum vocabat Cancellarium qui paulatim supremus factus est Magistratus qualis hodie habetur And see Fleta lib. 2. cap. 13. This high Officer seemeth to be derived from Fraunce vnto vs as many other Officers and vsages be For of this thus writeth Boërius in his Tractate De authoritat Magni Concilii num 8. Consistorio Franciae post Principem Dominus Franciae Cancellarius cui velut excelsum iudicii tribunal hoc in regno sub Principe tamen nostro moderanti sigillumque authenticum quo sine publicis patētibus regiis literis nulla fides adhibetur liberam administrationem habenti omnes singuli regii Iusticiarii quocunque nomine nuncupentur ac quavis authoritate fungantur e◠inferiores sunt Et meritò Succedit enim in quaestoris locum c. He that beareth this magistracie is called the Chanceler of England anno 7. R. 2. cap. 14. and by the Statute anno 5. Eliz. cap. 18. the Lord Chanceler and Keeper haue all one power Note farder that diuers inferior Officers are called Chancelers as Chanceler of the Exchequer an 25. H. 8. cap. 16. whose office hath bene thought by many to haue bene created for the qualifying of extremities in the Exchequer He sitteth in the court and in the Exchequer chamber and with the rest of the court ordereth things to the kings best benefit he is alwaies in cōmission with the Lord Treasurer for the letting of the lands that came to the crowne by the dissolution of Abbeyes and hath by priuie seale from the king power with others to compound for forfeitures of bonds and forfeitures vpon penall statutes He hath also much to doe in the reuenue come by the dissolution and first fruites as appeareth by the acts of vniting them to the Crowne Chanceler of the Duchie of Lācaster anno 3. Ed 6. cap. 1. an 5. eiusdem cap. 26. whose office is principall in that court to iudge and determine all controuersies betweene the king and his tenents of the Duchie land and otherwise to direct all the kings affaires belonging to that court Chanceler of the Order 1. of the Garter Stowes annals pag. 706. Chanceler of the Vniversity anno 9. H. 5. cap. 8. anno 2. H. 6. cap. 8. Chaunceler of the court of Augmentations anno 27. H. 8. cap. 27. anno 32. eiusdem cap. 20. anno 33. eiusd cap. 39. Chaunceler of the first fruites anno 32. H. 8. cap. 45. Chaunceler of courts anno 32. H. 8. cap. 28. Chaunceler of the Diocesse anno 32. H. 8. cap. 15. Chancerie cancellaria is the court of equitie and conscience moderating the rigour of other courtes that are more streightly tyed to the leter of the lawe whereof the Lord Chancelor of England is the chiefe Iudge Cromptons iurisd fol. 41. or else the Lord Keeper of the great Seale sithence the statute 5. Eliz. cap. 18. It taketh the name from the Chaunceler as M. Camden noteth in his Britannia pag. 114. in meo The Officers belonging to this court are as is abouesaid the Lord Chaunceler or Keeper of the broade Seale twelue Masters of the Chancerie whereof the Master of the rolles is one and the chiefe the sixe Clerkes the Examiners a Sergeant at armes the Marshall and cryer of the court the clerks of the courts otherwise called Courseters the clerkes of the petie bagge the clerke of the crowne the clerk of the hanaper the protonotary or register the controller of the hanaper the clerk of appeales the sealer the ch 〈…〉 axe the clerke of the facult 〈…〉 the clerk of the patents clerk of the starre chamber clerk of presentations clerk of dismissions clerk of licenses to alienate clerkes of the enrolments clerk of the protections clerk of the court of wards clerk of the sub penaes which see described in their places Chapell capella commeth of the French chapelle i. aedicula and is of 2. sorts either adioining to a Church as a parcel of the same which men of worth doe build vt ibidem familiaria sepulchra sibi constituant to the vse of the Romans l. 5. Π. de religio or els separate from the mother church where the parish is wide and is commonly called a chappell of case because it is builded for the case of one or more parishioners that dwell ouer farre from the Church and is serued by some inferiour curate prouided at the charge of the rector or of them that haue benifite by it as the composition or custome is Whence the word is deriued the Canonists differ in opinion Rebuffus de pacif posses nu 104. saying that some take it à capiendo laicot others à capra because it representeth those cotages which men were wont to couer ouer with goates skins Petrus Gregorius in suo syntagma te li. 15. ca. 29. hath these words of this thing Capellanus à capellania capella cui praeficitur nominatur item ab officio seu beneficio capellania Capella aliquibus dicta quasi capiens 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seu populos vel capiens laudem vel secundùm praepositum a cappa Diui Martint aut a
Realme the land was quieted the king gained greate riches toward the supporting of his wars Inquire farder of the name Baston is thougt by some to be the beame of a paire of Scoales or waights and this is in this place metaphorically applied to the iuste peising of recompence for offences committed My poore opinioÌ„ is that the etymology of this title or addition groweth from the French treilles i. cancelli barres or letises of what thing soeuer a grate with crosse bars or of the singuler treille i. pargula an house arbour a raile or forme such as vines runne vpon and Baston a staffe or pole noting thereby that the Iustices emploied in this commission had authoritie to proceede without any solemne iudgement seate in any place either compassed in with railes or made booth or tent-wise set vp with staues or poales without more worke wheresoeuer they could apprehend the malefactors they sought for See lib. Assisarum fol. 141. 57. Iustices of peace Iusticiarii ad pacem are they that are appointed by the kinges commission with others to attend the peace in the County where they dwell of whom some vpon speciall respect are made of the Quorum because some busines of importance may not be dealt in without the presence or asseÌ„t of them or one of them Of these it is but folly to write more because they haue so many thinges perteining to their office as cannot in fewe words be comprehended And againe Iustice Fitzherberd some time sithence as also M. Lamberd and M. Crompton of late haue written bookes of it to their great commendatioÌ„ and fruitfull benefit of the whole Realme See also Sir Thomas Smith de repub Angl lib 2. cap. 19. They were called Gardians of the peace vntill the 36. yeare of King Edward the third cap. 12. where they be called Iustices Lamb. Eirenarcha lib. 4. cap. 19 pag. 578. There oathe see also in Lambard lib. i. ca. 10. Iustices of peace c. within liberties Iusticiarii ad pacem infra libertates be such in cities and other corporate townes as those others be of any countie and their authoritie or power is all one within their seueral precincts anno 27. H. 8. ca. 25. Iusticies is a writ directed to the Shyreeue for the dispatch of iustice in some especiall cause wherewith of his owne authoritie he cannot deale in his Countie Courte lib. 12. cap. 18. wherevpon the writ de excommunicato deliberando is called a Iusticies in the old nat bre fol. 35. Also the writ de homine replegiando eodem fol. 41. Thirdly the writ de secunda superoneratione pasturae eodem fol. 73. Kitchin fol. 74. saith that by this writ called Iusticies the Shyreeue may hold plee of a greate summe whereas of his ordinary authoritie he cannot hold plees but of summes vnder 40. shillings Crompt on fo 231. agreeth with him It is called a Iusticies because it is a commission to the Shyreeue ad Iusticiandum aliquem to â—doe aman right and requireth noe returne of any certificat of what he hath done Bracton lib. 4. tracta 6. cap. 13. nu 2. maketh mention of a Iusticies to the Shyreeue of London in a case of Dower See the newe booke of Entries Iusticies Iustification Iustificatio is an vpholding or shewing a good reason in courte why he did such a thing as he is called to answere as to iustifie in a cause of Repleuin Broke titulo Repleuin K E KEeper of the great Seale Custos Magni Sigills is a L. by his office and called Lord Keeper of the great Seale of England c. is of the Kings priuy Councell vnder whose hands passe al charters Commissions and graunts of the King strengthened by the great or broad Seale Without the which Seale all such Instruments by Lawe are of no force for the King is in interpretation and intendment of Law a Corporation and therefore passeth nothing firmely but vnder the said Seale This Lord Keeper by the statute anno 5. Elizabethae Cap. 18. hath the same and the like place authority preeminence Iurisdiction execution of Lawes and all other Customes CoÌ„modities and Aduantages as hath the Lord Chaunceler of England for the time being Keeper of the priuy Seale Custos priuati Sigilli is a Lord by his office vnder whose hands passe all Charters signed by the Prince before they come to the broad or great Seale of England He is also of the Kings priuy Councell He seemeth to be called Clerke of the priuy Seale anno 12. R 2. Cap. 11. But of late daies I haue knowne none to beare this office by reason the Prince thinketh good rather to keepe this Seale in his owne hands and by priuate trust to commit it to his principall Secretary or some such one of his Councell as he thinketh fit for that function Keeper of the Touch. anno 2. H. 6. cap. 14. seemeth to be that officer in the kings mint which at this day is termed the master of the assay See Mint Keeper of the Forest Custos Forestae is also called cheife Warden of the Forest Manwood part pri of his Forest Lawes pag. 156. c. hath the principall gouernmeÌ„t of all things belonging thereunto as also the check of all officers belonging to the Forest And the Lord Cheife Iustice in Eyre of the Forest when it pleaseth him to keepe his Iustice Seate doth 40. daies before send out his generall Summons to him for the warning of all vnder-officers to appeare before him at a day assigned in the Summons This See in Manwood Vbi Supra King Rex is thought by M. Camden in his Britan. pag. 105. to be contracted of the Saxon word Cyninge signifing him that hath the highest power absolute rule ouer our whole Land and thereupon the King is in intendment of Lawe cleared of those defects that common persons be subiect vnto For he is alwaies supposed to be of full age though he be in yeares neuer so young Cromptons Iurisdictions fol. 134. Kitchin fol. i. He is taken as not subiect to death but is a Corporation in himselfe that liueth euer Crompton ibidem Thirdly he is aboue the Law by his absolute power Bracton lib. pri cap. 8. Kitchin fol. 1. and though for the beter and equall course in making Lawes he doe admitte the 3. estates that is Lords Spirituall Lords temporall and the Commons vnto Councell yet this in diuers learned mens opinions is not of constreinte but of his owne benignitie or by reason of his promise made vpon oath at the time of his coronation For otherwise were he a subiect after a sort and subordinate which may not bee thought without breach of duty and loyaltie For then must we deny him to be aboue the lawe and to haue no power of dispensing with any positiue lawe or of graunting especiall priuiledges and charters vnto any which is his onely and cleare right as Sir Thomas Smith well expresseth lib. 2. cap. 3. de Repub. Anglican and
dwelling on the Marches of Wales or Scotland who in times past as M. Camden saith pag. 453. had their priuate lawes much like as if they had beene Kings which now be worne out Of these Marchers you may reade anno 2. H. 4. cap. 18. anno 26. Hen. 8. cap. 6. anno 1. Ed. 6. cap. 10. where they are called Lord Marchers See anno 27. Hen. 8. cap. 26. howe these were extinguished Mareshall Mariscallus is a French word signifying as much as Tribunus Celerum or Tribunus militum with the auncient Romanes or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with the Grecians or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Tiraquel de Nobilitate ca. 8. p. 42. nu 17. The french word may seeme also among many other that they haue to proceede from the German Marschalk i. equitum magister which Hotoman in verbis feudalibus verbo Marschalkus deriueth from the old word March signifiing a house with whome agreeth Lupanus de Magistratibus Eranciae lib. pri ca. Marcshallus Others make it of these two Saxon words Mar. i. equus and scalch i. praefectus or as M. Verstegan saith from Mare the generall appellation of all horses as hors is now in Englishe and Scalc which in the auncient language of the Netherlanders he affirmeth to signifie a kind of seruant as Scalco doth at this day among the Italians being originally a Dutch word with vs there be diuers officers of this name but one most noble of all the rest who is called Lord or Earle Marshall of England of whome mention is made in diuers statutes as anno 1. H. 4. ca. 7. 14. anno 13. Rich. 2. ca. 2. His office consisteth especially in maters of warre and armes as well with vs as in other countries whereof you may reade in Lupanus vbi supra and Tilius li. 2. ca. de Conestabili Mariscallo c. But he that will knowe the office of our Lord Marshall had neede beside the fewe statutes which concerne him to read his commission and also to haue acces to the Heradls who out of their antiquities are able to discouer much that by prescription belongeth vnto this office The next to this is the Marshal of the Kings house whose especiall authoritie is according to Britton and M. Gwin in the preface to his reading in the Kings place to heare and determine all plees of the Crowne and to punish faults committed within the verge to heare and determine suites betweene those of the kings houshold and others within the verge Cromptons Iurisdict fol. 102. of him you may reade Fitzh nat br fol. 241. B. and anno 18. Ed. 3. statut 2. ca. 7. anno 27. Ed. 3. stat 2. c. 6. an 2. H. 4. c. 23. a. 15. H. 6. c. 1. Fleta saith that the office of the Marshall of the kings house belongeth to the Earle of Northf in fee and that he may appoint with the Kings consent a Knight vnder him to execute the office which office he also describeth to be especially to execute the iudgements decrees of the Steward to haue the keeping of the prisoners li. 2. cap. 4. and read farder of his office in the 5. chapter of the said booke which is to dispose of the Lodging in the Kings houshold vnder the Chamberlaine and to cleere the Verge of strumpets c. anno 5. Hen. 3. statut 5. Then be there other inferiour officers of this name as Marshall of the Iustices in Eyre anno 3. Ed. 1. ca. 19. Marshall of the Kings bench anno 5. Ed. 3. ca. 8. and this is he which hath the custodie of the prison called the Kings bench in Southwarke Fitzh nat br fol. 251. I. And these inferiour Marshalls be either ad placitum or in fee Kitchin fol. 143. I finde also in Fleta li. 2. ca. 15. mention of a Marshall of the Kings hall whose office is when the tables be prepared and clothes laide to call out both those of the houshold and straungers according to their worth and decently to place them to reiect vnworthy persons to knowe the number of the hall and to testifie it at the next accompt to see dogs kept out to saue the almes from filching to see filence kept and euery man competently serued with meate and drinke and when the courte remoueth to appointe euery one of the houshold his lodging There is also a Marshall of the esche quer anno 51. H. 3. sta 5. to whome the courte committeth the custody of the kings debters during the terme time to the end they may be farder imprisoned if they cleere not their debts He also assigneth Shyreeues escheators customers and collectors their auditours before whome they shall accompt He hath all inquisitions taken before escheators virtute officii deliuered vnto him to be deliuered by him to the treasurers Remembrancer Mareshalsee Marescaltia is the Court of the Marshall or word for word the seate of the Marshall of whome see Cromptons Iurisdict fol. 102. It is also vsed for the prison in Southwarke the reason whereof may be because the Marshall of the kings house was wont perhaps to sit there in iudgment See the statute anno 9. R. 2. cap. 5. anno 2. Hen. 4. ca. 23. Martiall lawe is the law that dependeth vpon the voice of the king or the kings leiuetenent in warres For how be it the king for the indifferent and equall temper of lawes to all his subiects doe not in time of peace make any lawes but by the consent of the three estates in Parlament yet in warres by reason of great daungers rising of small occasions he vseth absolute power in so much as his word goeth for law And this is called Martiall law Smith de repub Angli li. 2. c. 3. See Law of armes Mariage Maritagium signifieth not onely the coupling together of man and wife but also the interest of bestowing a ward or a widow in mariage Magna charta ca 6. anno 9. He. 3. and Bracton lib. 2. ca. 3. and also it signifieth land giuen in mariage Bracton li. 2. ca. 34. 39. And in this signification the same authour saith that Maritagium est aut liberum aut seruitio obligatum li. 2. ca. 7. nu 3. 4. Liberum maritagium dicitur vbi donator vult quòd terra sic data quieta sit libera ab omni seculari seruitio quod ad Dominum feudi possit pertinere et ita quòd ille cui sic data fuerit nullum omninò inde faciat seruitium vsque ad tertium haeredem vsque ad quartum gradum ita quòd tertius heres sit inclusivus See the rest See also Skene de verbo significatione verbo Maritagium who is worth the reading Maritagio amisso per defaltam is a writ for the tenent in frank mariage to recouer lands c. whereof he is deforced by another Regist fol. 171. Maritagio forisfacto is a writ See Forisfactura Maritagii Marke merca commeth of the Saxon
Librata terrae Oyer and Terminer audiendo terminando in true French Ovir terminer is in the intendment of our lawe a commission especially graunted to certaine men for the hearing and determining of one or more causes This was wont to be in vse vpon some sodaine outrage or insurrection in any place Cromptons Iurisd fol. 131. 132. See The Statute of Westm 2. cap. 29 anno 13. Ed. 1. who might graunt this commission And see Fitzh nat br fol. 100. for the forme and occasion of the writ as also to whom it is to bee graunted and whom not See Broke titulo Oyer determiner Oyer de Record Audire Recordum is a petition made in court that the Iudges for beter proofes sake will be pleased to heare or looke vpon any Record P PAcking whites anno 1. R. 3. cap. 8. Pain fort dure poena fortis dura is in true French peine fort dure It signifieth in our common lawe an especiall punishment for those that being arraigned of felonie refuse to put themselues vpon the ordinarie triall of God and the cuntrey and thereby are mute or as mute in interpretation of law This as Stawnf thinketh pl. cor lib. 2. cap. 60. is founded vpon the Statute of Westm prim cap 12. anno 3. Ed. prim His reason is because Bracton who writ before that Parlament maketh no mention of it and Britton writing after that time toucheth it in his 4. chapter fol. 11. viz. in words to this effect If they will not acquite themselues let them be put to their penance vntill such time as they do desire triall and let the penance bee such viz. Let them be bare legged without girdle and without hatte or cappe in their coate onely and lye in prison vpon the naked earth day and night And let them eate no bread but of barley and branne nor drink any other then water and that vpon that day when they eate not And let them be chained Stawnford in his said 60. chapter of his second booke expoundeth it more plainely and particularly in this sort And note that this strong and hard paine shall be such sc He shall be sent backe to the prison whence he came and layed in some lowe darke house where he shall lye naked vpon the earth without any litter rushes or other clothing and without any raiment about him but onely something to couer his priuie members And he shall lye vpon his backe with his head couered and his feete And one arme shall bee drawne to one quarter of the house with a cord and the other arme to another quarter and in the same maner let it be done with his legges and let there be layed vpon his body iron and stone so much as he may beare or more and the next day following he shall haue three morsels of barley bread without drinke and the second day he shall haue drinke three times and as much at each time as he can drinke of the water next vnto the prison doore except it be running water without any bread And this shall be his diet vntill he dye Palatine See County Palatine See Cassan de consuetud Burg. pag. 14. Palingman anno 11. Henr. 7. cap. 22. Panell panellum commeth of the French panne i. pellis or paneau a peece or pane as wee call it in English It signifieth in our common lawe a shedule or rolle containing the names of such Iurours as the Shyreeue prouideth to passe vpon any triall Register orig fol. 223. a. Kitthin fol. 266. See Broke hoc titulo And thereupon the empaneling of a Iurie is nothing but the entring of them into the Shyreeues rolle or booke Pannage pannagium is a tolle or contribution Fitz. nat br fol. 227. D. See Pawnage Paramounte aliâs peremounte commeth of these two French words par i. per and Monter i. ascendere It signifieth in our law the highest Lord of the fee for there may be a Tenent to a Lord that houldeth ouer of another Lord. And the former of those is called Lord Mesn the second Lord paramount And a Lord paramount as it seemeth by Kitchin fol. 209 consisteth only in comparison as one man may be great being compared with a lesser and litle being compared with a greater and as Genus among the Logicians may be in diuers respects both genus and species Fitzh nat br fol. 135. M. So that none seemeth simply to be Lord paramount but only the King as Genus summum is simply Genus For the King is patron paramount to all the benefices in England Doctor and student ca. 36. See Parauaile Maner and Fee Parauaile aliâs Perauaile is compounded of two French words par i. per and aualler i. dimittere demittere It signifieth in our common law the lowest tenent or him that is tenent to one who houldeth his fee ouer of another So is it vsed pl. cor fol. 197. and Fitzh nat br fol. 135. M. See Paramounte See Mesn Parcell makers are two officers in the eschequer that make the parcels of the escheators accoumpts wherein they charge them with euery thing they haue leuyed for the kings vse within the time of their office deliuer the same to one of the auditors of the court to make an accompt for the escheatour thereof Parceners See Coparceners Parcinarie participatio commeth of the French partir i. diuiduum facere It signifieth in our common law a houlding or occupying of land by more pro indiviso or by ioynt tenents otherwise called Coparceners of the French parsonnier i. partiarius particeps For if they refuse to diuide their common inheritance and chuse rather to hold it ioyntly they are said to hold in parcinarie Litleton fol. 56. 57. This by the Feudists and Lombards is termed adaequatio vel paragium And among the auncient Romanes particulones sic enim authore Nonio a veteribus cohaeredes inter se dicebantur quòd partes invicem facerent Spigelius Pardon Perdouatio is a French word signifiing as much as pax venia gratia It is vsed most notoriously in our common lawe for the remitting or forgiuing of a felonious or other offence committed against the king This pardon is two-fold one ex gratia Regis the other per cours del ley by course of law Stawns pl. cor fol. 47. Pardon ex gratia Regis is that which the king in some speciall regard of the person or other circumstance sheweth or affoordeth vpon his absolute prerogatiue or power Pardon by course of lawe is that which the lawe in equitie affoordeth for a light offence as homicide casuall when one killeth a man hauing no such meaning West parte 2. symbol titulo Inditements sect 46. Of this see the new booke of Entries verbo Perdon Pardoners anno 22. H. 8. c. 12. were certaine fellowes that caried about the Popes Indulgences and sold them to such as would buy them against whom Luther by Sleydans report in censed the people of Germany in his
reade Gerards Herball lib. 2. cap. 425. The fruite or eare of this for it bringeth forth an eare like Lauender is a drugge garbleable anno 1. Iacob cap. 19. Spoliation spoliatio is a writ that lyeth for an incumbent against another incumbent in case where the right of patronage commeth not in debate As if a Parson bee made a Bishop and hath dispensation to keepe his Rectorie and afterward the patron present another to the Church which is instituted and inducted The Bishop shall haue against this incumbent a writ of spoliation in Court Christian Fitz. nat br fol. 36. see Beneuolence Squalley anno 43. Elizab. cap. 10. Squyers See Esquires Stablestand is one of the foure Euidences or presumptians whereby a man is convinced to intend the stealing of the Kings Deere in the Forest Manwood parte 2 of his Forest lawes cap. 18. num 9. the other three be these Dogdrawe Backbeare Bloudie-hand And this stablestand is when a man is found at his standing in the Forest with a Crosse bowe bent ready to shoote at any Deere or with a long bowe or else standing close by a tree with Greyhounds in a lease ready to slippe Idem eodem Stalkers a kind of net anno 13 R. 2. stat 1. cap. 20. anno 17. eiusdem cap. 9. Stallage stallagium commeth of the French Estaller i. merces exponere expedire explicare It signifieth in our common law money payed for pitching of stalles in Faire or Market See Scavage This in Scotland is called stallange Skene de verbor signif verbo Stallangiatores And among the Romaines it was termed Siliquaticum à siliqua primo minimo omnium pondere apud illam nationem Stannaries stannaria commeth of the Latine stannum i. tynne signifying the Mines and workes touching the getting and purifying of this mettall in Cornewall and other places Of this read Camden Britan. pa. 119. The liberties of the stannarie men graunted by Ed. 1. before they were abridged by the statute anno 50. Ed. 3. see in Plowden casu Mines fol. 327. a. b. Staple Stapulum signifieth this or that towne or citie whether the Merchants of England by common order or commandement did carie their wolles wol-fels cloathes lead and tinne and such like commodities of our land for the vtterance of them by the great The word may probably be interpreted two wayes one taking it from staple which in the Saxon or old English language signifieth the stay or hold of any thing Lamb. in his duties of Constables num 4. because the place is certaine and setled and againe from the French estape i. forum vinarium because to those places whether our English Merchants brought their commodities the French would also meete them with theirs which most of all consisteth in wines but I thinke this latter the truer because I finde in the Mirrour of the world written in French these words A Calais 〈◊〉 auoit Estape de le laine c. Which is as much to say as the staple for wols c. You may read of many places appointed for this staple in the statutes of the land according as the Prince by his Councell thought good to alter them from the second yeare of Ed 3. cap. 9. to the fifth of Edw the sixth cap 7. what officers the staples had belonging to them you may see anno 27. Ed. 3. stat 2. ca. 21. Starre chamber Camera stellata is a Chamber at Westminster so called as Sir Tho. Smith coniectureth lib. 2. cap. 4. either because it is full of windowes or because at the first all the roofe thereof was decked with Images of guilded starres And the later reason I take to be the trewer because anno 25. H. 8. ca. 1. It is written the Sterred Chamber In this Chamber euery weeke twice during the terme and the very next day after terme is there a Court held by the Lord Chaunceler or Keeper and other honourable personages of the Realme This Court seemeth to haue taken beginning from the statute anno 3. H 7. ca. pri Whereby it is ordained that the Lord Chaunceler and Treasurer of England for the time being and the Keeper of the Kings priuy seale or two of them calling to them a Bishop and a temporall Lord of the Kings most honourable Councell and the two cheife Iustices of the Kings Bench and common place for the time being or other two Iustices in their absence should haue power to call before them and punish such misdoers as there be mentioned The faults that they punish be Routes Riots Forgeries Maintenances Embraceries Periurics and such other Misdemeanures as are not sufficiently prouided for by the common law It appeareth both by Sir Tho Smith lib. 2. de Rep Anglo cap. 4. and by experience also that at this day the whole number of the Princes most honourable priuy Councell and such other Barons spirituall or temporall as be called thither by the Prince haue place in this Court with those aboue named Of this Court thus speaketh M. Gwin in the preface to his readings It appeareth in our bookes of the termes of K. Edward 4. And of the report of cases hapning vnder the vsurpation of Richard the third that sometime the King and his Councell and sometime the Lord Chaunceler and other great personages did vse to sit iudicially in the place then and yet called the Starre Chamber But for as much as be like that assembly was not ordinary therefore the next Kings Henry the seuenth and his some H. 8. tooke order by two seuerall lawes viz. 3. H. 7. ca. pri 21. H. 8. ca. 2. That the Chaunceler assisted with others there named should haue power to heare complaints against Retainours Embraceours misdemenures of officers and such other offences which through the power and countenance of such as do commit them do lift vp the head aboue other faults and for the which inferiour Iudges are not so meete to giue correction And because that place was before dedicated to the like seruice it hath bene euer since also accordingly vsed Touching the officers belonging to this Court see Camden pag. 112. 113. Statute statutum hath diuers significations in our common lawe First it signifieth a Decree or act of Parlament made by the Prince and three estates which is the bodie of the whole Realme And though it borow the name from that kind of Decree which those cities that were vnder the Romaine Empire made for the particular gouernment of themselues ouer and aboue the vniuersall or common lawe of the Empire yet in nature it commeth nearest to that which the Romaines called legem for that as that was made by the whole people noble and ignoble so this is ordeined by those that represent the whole number both of prince and subiects one and other through the whole kingdome The difference neuerthelesse was this that Lex was offered to the consideration of the people by the Magistrate of the Senate or Consull but the bils or suggestions whence
of the same country to say the truth vpon the sayd issue taken And if the Enquest come not at the day of this writ returned then shall goe a habeas corpora and after a distresse vntill they come old nat br fol. 157. See how diuersly this writ is vsed in the table of the Register Iudiciall There is also a writ of this name that is originall as appeareth in the Register orig fol. 200. b. which M. Lamberd in his processes annexed to his Eirenarcha saith to be the common proces vpon any presentment not being felony nor especially appointed for the fault presented by statute Whereof he setteth downe an example in the same place See also the new booke of Entries verbo Enquest fol. 253. columna 1. 2. 3. Venire facias tot matronas See Ventre inspiciendo See Lamb. Eirenarcha li. 4. ca. 14. pa. 532. Venew vicinetum is taken for a neighbour or neare place As for example twelue of the Assise ought to be of the same Venew where the Demaund is made old nat br fol. 115. and in the statute anno 4. H. 4. ca. 26. anno 25. H. 8. ca. 6. I finde these words And also shall returne in euery such panell vpon the venire facias sixe sufficient Hundreders at the least if there be so many within the Hundred where the Venew lyeth Ventre inspiciendo is a writ for the search of a woman that faith shee is with childe and thereby withhouldeth land from him that is the next heire at the common law Register originall fol. 227. a. Verdour viridarius commeth of the French verdior i. Saltuarius vel custos nemoris he is as M. Manwood parte pri of his forest lawes pag. 332. defineth him a Iudiciall officer of the Kings forest chosen by the King in the full county of the same shire within the forest where he doth dwell and is sworne to maintaine and keepe the Assises of the forest and also to view receiue and inrolle the Attachments and presentments of all maner of trespasses of the forest of vert and venison And the same authour vpon the first artitle of Canutus charter in the beginning of the same part saith that these in the Saxons times were called Pagened being foure in number and they chiefe men of the forest as then they were Their fee was in Canutus time each of them euery yeare of the Kings allowance two horses one of them with a saddle another of them without a saddle one sword fiue Iauelins one speare one shield and ten pounds in money These foure as appeareth by the said charter nu 11. had regalem potestatem and might proceede to a threefold iudgement And if any man offered them or any of them violence if he were a free man he should loose his freedome and all that he had if a villein he should loose his right hand All the officers of the forest were to be corrected and punished by them ibidem nu 10. The verdour is made by the Kings writ Cromptons Iurisd fol 165. the forme of which writ you haue in Fitzh nat br fol. 164. which is directed to the Shyreeue for the choice of him in a full County by the assent of the said County Yet if a verdour bee sodainely sicke or dead at the time of the Iustice seate a new may be chosen without a writ Manwood parie prim pag. 72. the office is as Crompton saith loco allegato properly to looke to the vert and to see that it be wel maintained Also when any forfeiture is taken in the Forest before the Foristers or other ministers the price thereof shall be deliuered to the verdour who is to answer for it before the Iustices in Eyre And if he die his heire is chargeable therewith Crompton ibidem The forme of his oath at his admittance you may see in Manwoods first part of his Forest lawes pag. 51. who there calleth him verderour aliâs verdictor You shall truly serue our Soueraigne Lord the King in the office of a verderor of the Forest W. you shall to the vttermost of your power and knowledge do for the profit of the King so farre as it doth apperteine vnto you to do You shall preserue and maintaine the auncient rights and franchises of his Crowne you shall not conceale from his Maiestie any rights or priuiledges nor any offence either in vert or venison or any other thing You shall not withdraw nor abridge any defaults but shal endeuour your selfe to manifest and redresse the same and if you cannot doe that of your selfe you shall giue knowledge thereof vnto the King or vnto his Iustice of the Forest You shall deale indifferently with all the Kings liege people you shall execute the lawes of the Forest and do equall right and iustice as well vnto the poore as vnto the rich in that appertaineth vnto your office you shall not oppresse any person by colour thereof for any reward fauour or malice All these things you shall to the vttermost of your power obserue and keepe Their office is farder expressed eodem pag. 93. which is to sit in the court of attachment to see the attachments of the Forest to receiue the same of the Foresters and Woodwards that do present them and then to enter these Attachments into their rolles Verdict veredictum is the answer of a Iurie or Enquest made vpon any cause ciuill or criminall committed by the court to their consideration or triall And this verdict is two-fold either generall or especiall Stawnf pl. cor lib. 3. cap. 9. A general verdict is that which is giuen or brought into the Court in like generall termes to the generall issue as in an action of disseisin the Desendant pleadeth No wrong no disseisin Then the issue is this in generall whether the fact in question be a wrong or not And this committed to the Iurie they vpon consideration of their euidence come in and say either for the plaintiffe that it is a wrong and disseisin or for the Defendant that it is no wrong no disseisin And againe the prisoner at the barre pleading Not guiltie the Enquest in like generall termes bring in their verdict either for the King Cuilty or for the prisoner Not guilty A speciall verdict is that whereby they say at large that such a thing and such they find to be done by the Defendant or Tenent so declaring the course of the fact as in their opinions it is proued and for the qualitie of the fact they pray the discretion of the Court. And this speciall verdict if it containe any ample declaration of the cause from the beginning to the end is also called a verdict at large Whereof reade diuers examples in Stawnf pl. cor lib. 3. cap. 9. and one or two in Litleton fol. 78. 79. See the new booke of Entries verb. Verdict Verge virgata may seeme to come from the French verger i. viridarium hortus It is vsed here in England for the compasse
the Lord Chancelour or by our appointment before Iustices in eyre in open court Glanvile li. 11. cap. pri Britton cap. 126. whome of this thing you may reade more at large There be also in respect of the diuers courts Atturneys at large and Atturneys special belonging to this or that court onely The name is borrowed of the Normanes as appeareth by the custumarie cap. 65. And I find the word attornati or as some reade tornati in the same signification in the title de statu regularium ca. vnico § Perrò i. n sexto where the glosse saith that Atturnati dicuntur Procuratores apud acta constituti Our old Latine word for this seemeth to be responsalis Bract. lib. 4. cap. 31. lib. 5. parte 2. cap. 8. and so it is in Scotland at this day but especially for the Atturney of the defendant as prolocutor is for the persewer M. Skene de verb. significatione Responsalis as Sigâ—nius witnesseth in his first booke de regno Italie was in auncient time the title of the Popes ambassadour pag. 11. Atturney of the court of wards and Liueries Atturnatus regis in curia Wardorum LiberaturaruÌ„ is the third officer in that Court who must be a person learned in the lawes of the land being named and assigned by the king At his admission into the office he taketh an oath before the Master of the said court well and truly to serue the king as his Atturney in all courts for and concerning any mater or cause that toucheth the possessions and hereditaments limited to the suruey and gouernement of this court and to procure the kings profite thereof truly to councell the king and the Master of the Court in all things concerning the same to the best of his cunning witte and power and with all speed and diligence from time to time at the calling of the Master to endeuour himself for the hearing and determination indifferently of such matters causes as depend before the Master not to take any gift or reward in any mater or cause depending in the court or else where wherein the king shall be partie whereby the king shall be hurt hindred or disinherited to do to his power wit and cunning all and euery thing that appertaineth to his office Atturney of the Court of the Duchie of Lancaster Atturnatus curia Ducatus Lancastriae is the second officer in that Court and seemeth for his skill in law to be there placed as assessor to the Chanceler of that court being for the most part some honorable man and chosen rather for some especiall trust reposed in him to deale betweene the king and his tenents then for any great learning as was vsuall with the Emperors of Rome in the choice of their Magistrates Attournment attornamentum commeth of the French tourner i. vertero and in our common lawe is an yeelding of the tenent to a new Lord or acknowledgement of him to be his Lord. For otherwise he that buyeth or obtaineth any lands or tenements of another which are in the occupation of a third cannot get possession yet see the statute an 27. H. 8. cap. 16. The words vsed in atturnment are set downe in Litleton I agree me to the graunt made to you c. But the more common atturnment is to say Sir I attourn to you by force of the same graunt or I become your tenent c. or else deliuer vnto the grauntee a peny halfepeny or farding by way of attournment Litleton lib. 3. cap. Attournment 10. whome you may reade more at large and find that his definition proceedeth from more lawe then Logickeâ— because he setteth downe diuers other cases in the same chapter whereto attournment appertaineth as properly as vnto this But you may perceiue there that attournment is the transposing of those duties that the tenent ought to his former Lord vnto another as to his Lord and also that attournment is either by word or by act c. Also attournment is voluntarie or else compulsorie by the writ tearmed Per quaeseruitia Owld nat br fol. 155. or sometime by distresse Fitzh nat br fol. 147. Lastly attournment may be made to the Lord himselfe or to his Steward in Court Kitchin fol. 70. And there is attournment in deede and attournment in lawe Coke vol. 6. fo 113. a. Attournment in lawe is an act which though it be no expresse attournment yet in intendment of law is all one Atturnato faciendo vel vecipiendo is a writ which a man oweing suite to a countie hundred weapon take or other court and desiring to make an attourney to appeare for him at the same court whome he doubteth whether the Shyreeue or bailiffe will admit or not for his Attourney there purchaseth to commaund him to receiue such a man for his attourney and admit his appearance by him The forme and other circumstances whereof see in Fitzh nat br fo 156. Audiendo terminando is a writ but more properly tearmed a commission directed to certaine persons when as any great assembly insurrectioÌ„ or heinous demeanure or trespasse is committed in any place for the appeasing and punishment thereof which you may read at large in Fitzh nat br fo 110. See also oyer terminer Andience courte Curia audientiae Cantuariensis is a court belonging to the Archbishop of Canterburie of equall authoritie with the Arches court though inferior both in dignity and antiquitie The originall of this court was because the Archeb of Canterbury heard many causes extra iudicially at home in his owne palace in which before he would finally determine any thing he did vsually commit them to be discussed by certaine learned men in the ciuile canon lawes whome thereupon be termed his auditors And so in time it grew to one especiall man who at this day is called Causarum negotiorumque audientiae Cantuariensis auditor seu officialis And with this office hath heretofore commonly bene ioyned the Chancelership of the Archbishop who medleth not in any point of coÌ„tentious iurisdiction that is desciding of causes betweene party and party except such as are ventilated pro forma onely as the confirmation of bishops elections or such like but onely of office and especially such as are voluntariae iurisdictionis as the granting of the custody of the spiritualties during the vacation of Bishoprickes Institutions to benefices dispensing with banes of matrimonie and such like But this is now distinguished in person from the Audience Of this Audience court you may reade more in the booke intituled De antiquitate ecclasiae Brittannicae historia Audita querela is a writ that lieth against him who hauing taken the bond called statute Merchant of another and craving or hauing obteined execution of the same at the Maior Bayliffes hands before whome it was entred at the complaint of the partie who entred the same vpon suggestion of some iust cause why execution should not be graunted as a release or other exception This writ is
from the French the other from the Saxons both conteining a circuit or portion of the realme into the which the whole land is diuided for the beter gouernment thereof and the more easie administration of iustice So that there is no part of the kingdome that lieth not within some countie and euery county is gouerned by a yerely officer whom we cal a Shyreeue which among other duties belonging to his office putteth in execution all the commandements iudgments of the kings courts that are to be executed within that compasse Fortescue cap. 24. Of these counties there be foure of especiall marke which therefore are tearmed countie Palatines as the county Palatine of Lancaster of Chester of Durham of Ely ann 5. Eliz. 1. c. 23. I read also of the county Palatine of Hexam an 33 H. 8. ca. 10. Vnde quaere And this county Palatine is a Iurisdiction of so high a nature that whereas all plees touching the life or mayhem of man called plees of the crowne be ordinarily held sped in the kings name cannot passe in the name of any other the chiefe gouerners of these by especiall charter from the king did heretofore send out all writs in their owne name and did all things touching iustice as absolutely as the Prince himself in other counties only acknowledging him their superiour and Soueraigne But by the statute anno 27. H. 8. c. 25. this power is much a bridged vnto the which I refer the reader as also to Crom. Iuris fo 137. for the whole course of this court Besides these counties of both sorts there be likewise counties corporate as appeareth by the statute anno 3. Ed. 4. 5. and these be certaine cities or auncient boroughs of the land vpon which the Princes of our nation haue thought good to bestow such extraordinary liberties Of these the famous city of London is one and the principall Yorke another an 32. H. 8. cap. 13. the city of Chester a third an 42. Eliz. cap. 15. Canterburie a fourth Lamb. Eiren. l. 1. cap. 9. And to these may be added many moe but I haue onely obserued out of the statutes other writers the county of the towne of Kingston vpon Hull anno 32. H. 8. cap. 13. the county of the towne of Havorford West anno 35. H. 8. cap. 26. and the county of Litchfield Cromptons Iustice of peace fo 59. a. County is in another significatiō vsed for the County court which the Shyreeue keepeth euery moneth within his charge either by himselfe or his deputie anno 2. Ed. 6 ca. 25. Cromptons Iuris fo 221. Bract. li. 3. c. 7. li. 3. tract 2. cap. 12. Of these counties or shires one with another there are reckoned in England 37. beside twelue in Walet 〈…〉 The word comitatus is also vsed for a iurisdiction or territorie among the Feudists Countie court curia comitatus by M. Lamberd is otherwise called conuentus in his explication of Saxon words and diuided into two sorts one retaining the generall name as the county court held euery moneth by the Shyreeue or his deputie the vnder-shyreeue whereof you may reade in Cromptons iurisd fol. 231. the other called the Turne held twice euery yeare which see more at large in his place and Cromptons Iurisd fol. 231. This countie court had in auncient times the cognition of these and other great maters as may appeare by Glanvile lib. 1. cap. 2 3. 4. by Bracton and Britton in diuers places and by Fleta li. 2. cap. 62. But that was abridged by the statute of Magna charta cap. 17. and much more by 1. Ed. 4. cap. vnico It had also and hath the determination of certaine trespasses and debts vnder forty shillings Britton cap 27. 28. what maner of proceeding was of old vsed in this court see Fleta vbi supra Coursitour See Cursetour Court curia commeth of the French court which signifieth the kings palace or mansion as curtis doth among the Lombards All these spring of the Latine curia which signifieth one of thirty parts into which Romulus diuided the whole number of the Romaines sometime also the Senate house as appeareth by Tully in his Offices nihil est quod dignum nobis aut in foro aut in curia agere possumus which in his oration pro Milone he calleth Templum sanctitatis amplitudinis mentis consilii publici caput vrbis c. Court with vs signifieth diuersly as the house where presently the king remaineth with his ordinarie retinue and also the place where iustice is iudicially ministred of which you finde 32. seueral sorts in M. Cromptons booke of Iurisdictions well described And of them most be courts of record some be not and therefore are accompted base courts in comparison of the rest Beside these also there are courts Christian Smith de repub Anglor lib. 3. cap. 9. which are so called because they handle maters especially appertaining to Christianitie and such as without good knowledge in diuinity cannot be well iudged of being held heretofore by Archb. and Bishops as from the Pope of Rome because he chalenged the superioritie in all causes spirituall but sithence his eiection they hold them by the kings authoritie virtue magistratus sui as the Admirall of England doth his court Whereupon it proceedeth that they send out their precepts in their owne names and not in the kings as the Iustices of the kings courts doe And therefore as the appeale from these courts did lie to Rome now by the statute an 25. H. 8. cap. 19. it lyeth to the king in his Chauncerie Court baron curia baronis is a court that euery lord of a maner which in auncient times were called barons hath within his owne precincts Barons in other nations haue great territories and iurisdiction from their Soueraignes as may be proued out of Cassanaeus de gloria mundi parte 5. consideratio 56. by Vincentius de Franchis descis 211. and many others But here in England what they be and haue bene heretofore see in Baron Of this court Baron you may reade your fill in Kitchin that writeth a large booke of it and of a court leete S. Edward Coke in his fourth booke of Reports amongst his copyhold cases fol. 26. b. saith that this court is two after a sort and therefore if a man hauing a maner in a towne and do graunt the inheritance or the copyholders thereunto belonging vnto another this grantee may keep a court for the custumarie tenents and accept surrenders to the vse of others and make both admittances and graunts the other court is of Freeholders which is properly called the court baron wherein the suyters that is the Freeholders be Iudges whereas of the other the Lord or his steward is Iudge Court christian curia christiana See Court Court of Pypowders See Pypowders Court of Requests curia requestarum is a court of equitie of the same nature with the Chancerie principally instituted for the helpe of such
for the view perrambulation meering bounding of the place that he mindeth to afforest which returned into the chauncerie proclamation is made throughout all the Shire where the ground lieth that none shal hunt or chace any maner of wilde bests within that precinct without the kings speciall licence after which he appointeth ordinances lawes and officers fit for the preseruation of the vert and venison and so becommeth this a forest by mater of record The properties of a forest are these in speciall first a forest as it is truly and strictly taken cannot be in the hands of any but the king the reason is giuen by M. Manwood because none hath power to graunt commission to a Iustice in Eire for the forest but the king parte 1. pag. 87. The second propertie be the courts as the Iustice seate every three yeare the Swainemoote thrice every yeare Idem eodem pag. 90. parte 2. ca. 1. nu 4. 5. and the attachement once every fortie daies Idem eod pag. 92. The third propertie may be the officers belonging vnto it for the preservation of the vert and venison as first the Iustices of the forest the warden or keeper the verders the foristers Agistours Regarders Bailiffes Bedels and such like which you may see in their places See Manwood part 2. ca. 1. nu 4. 5. But the cheife propertie of a forest both by M. Manwood parte 1. pa. 144. and M. Crompton pag. 146. is the Swainmote which as they both agree is no lesse incident vnto it then the court of Pyepowders to a faire Other courts and offices are not so requisite in those forests that are in the hands of subiects because they be not truly forests but if this faile then is there no thing of a forest remaining but it is turned into the nature of a chace See Chace I reade of thus many forests in England The forest of Windsour in Berkshire Cambd. Britan. pag. 213. of Pickering Crompton 190. of Shirwood idem fol. 202. of Englewood in Cumberland anno 4. H. 7. ca. 6. Crompton fol. 42. of Lancaster Idem fol. 196. of Wolemore Stowes Annals pag. 462. of Gillingham Idem pag. 113. of Knaresborow anno 21. H. 8. ca. 17. of Waltham Camd. pag. 328. of Breden Idem pag. 176. of Whiteharte Idem pag. 150. of Wiersdale Idem pag. 589. and Lownsedall ibidem of Deane Idem pag. 266. anno 8. H. 6. ca. 27. anno 19. H. 7. cap. 8. of Saint Leonards in Southsex Manwood parte 1. pa. 144. of Waybridge Sapler Idem eodem pa. 63. of Whitvey pag. 81. of Fekenham Camd. pa 441. of Rockingham Idem pag. 396. Forest de la mer. Idem pag. 467. of Huckstowe Idem pa. 456. of Haye Manwood part 1. pag. 144. of Cantselly eadem pag. of Ashdowne in the county of Sussex anno 37. H. 8. ca. 16. Forests of Whittilwood and Swasie in the countie of Northampton anno 33. H. 8. ca. 38. of Fronselwood in com Somerset Cooke li. 2. Cromw case f. 71. b. I heare also of the forest of Exmore in Deuonshire There may be more which he that listeth may looke for Forester forestarius is a sworn officer of the Forest appointed by the Kings leters patents to walke the forest both earely and late watching both the vert and venison attaching and presenting all trespassers against them within their owne bayliwicke or walke whose oath you may see in Crompton fol. 201. And though these leters patents be ordinarily graunted but quam diu bene se gesserint yet some haue this graunt to thē and their heires and thereby are called Foristers or Fosters in fee. Idem fol. 157. 159. Et Manwood parte prima pag. 220. whome in Latine Crompton calleth Foristarium feudi fol. 175. Foreiudger forisiudicatio signifieth in the common lawe a iudgement whereby a man is depriued or put by the thing in question It seemeth to bee compounded of fo rs i. praeter iuger i. iudicare Bracton lib. 4. tract 3. cap. 5. hath these words Et non permittas quòd A. capitalis dominus feudi illius habeat custodiam haeredis c. quia in Curia nostra forisiudicatur de custodia c. So doth Kitchin vse it fol. 209. and old nat bre fol. 44. 81. and the statute anno 5. Ed. 3. cap. 9. and anno 21. R. 2. cap. 12. Foriudicatus with authors of other nations signifieth as much as banished or as deportatus in the auncient Romaine lawe as appeareth by Vincentius de Franchis descis 102. Mathaeus de Afflictis lib. 3. feudorum Rub. 31. pag. 625. Foregoers be pourveyours going before the king or queene being in progresse to prouide for them anno 36. Ed. 3. cap. 5. Forfeiture forisfactura commeth of the French word forfaict i. scelus but signifieth in our language rather the effect of transgressing a penall lawe then the transgression it selfe as forfeiture of Escheates anno 25. Ed. 3. cap. 2. Statut. de Proditionibus Goods confiscate and goods forfeited differ Stawnf pl. cor fol. 186. where those seeme to be forfeited that haue a knowne owner hauing committed any thing whereby he hath lost his goods and those confiscate that are disavowed by an offendour as not his owne nor claymed by any other I thinke rather that forfeiture is more generall and confiscation particular to such as forfeit onely to the Princes Exchequer Reade the whole chapter lib. 3. cap. 24. Full forfeiture plenaforisfactura otherwise called plena vita is forfeiture of life and member and all else that a man hath Manwood parte prim pag. 341. The Canon Lawyers vse also this word For forisfacta sunt pecuniariae poenae delinquentium Glos in cap. Praesbyteri extra de poenis Forfeiture of mariage forisfactura maritagii is a writ lying against him who houlding by knights seruice and being vnder age and vnmaried refuseth her whome the Lord offereth him without his disparagement and marieth another Fitzh nat br fol. 141. H. I. K. L. Register orig fol. 163. b. Forfeng quiet antiam prioris prisae designat in hoc enim delinquunt Burgenses Londonenses cum prisas suas ante prisas regis faciunt Fleta lib. 1. cap. 47. Forgerie See here next following Forger of false deeds Forger of false deedes commeth of the french Forger i. accudere fabricare conflare to beate one an anvile to fashion to bring into shape and fignifieth in our common law either him that fraudulently maketh and publisheth false writings to the preiudice of any mans right or else the writ that lyeth against him that committeth this offence Fitzh nat br fol. 96. B. C. calleth it a writ of deceite See Tearmes of law verbo Forger and Wests Simbol parte 2. Indictments sectio 66. See the new booke of Entries verbo Forger de faits This is a branch of that which the ciuilians call crimen falsi Nam falsarius est qui decipiendi causa scripta publica falsificat Speculator de crimine
sorts of homage vsed by them straunge vnto vs. whereunto ioyne Hotoman disputat de feudis in diuers places namely columna 860. C. hiis verbis Deinceps de nota hominii feudalitiae subiectionis videamus Omnium quidem video esse commune vt dexteras tanquam in foederibus iungerent plerumque etiam vt dexteris aversis osculum praeberent interdum vt ambas manus iunctas patrono contrectandas praeberent supplicum dedititiorum nomine qui velatas manus porrigebant and pag. 861. hiis verbis Multis Galliae atque etiam Angliae moribus constitutum est Quod ex Anglico Litletonio intelleximus vt hominium seruili supplici veneratione ac plane tanquam a dedititiis praestetur Nam vasallus discinctus nudo capite ad pedet sedentis patroni proiectus ambas manus iunctas porrigit quas dum Dominus suis manibus amplectitur haec verba pronunciat Here venio in tuum hominium fidem homo tuus fio ore manibus tibique iuro ac spondeo fidelem me tibi futurum eorum feudorum nomine quae tuo beneficio accepi c. Whereunto you may adde him colum 819. G. 822. F. 857. B. D. F. Of homage in Scotland reade M. Skene de verb. signif verbo Homagium to whome you may also ioyne a plentifull discourse in speculo Durandi commonly called speculator among the Civilians titulo De Feudis Homagio respectuando is a writ to the Escheatour commaunding him to deliuer seisin of lands to the heire that is at full age notwithstanding his homage not done which ought to be performed before the heire haue liuerie of his lands except there fall out some reasonable cause to hinder it Fitzh nat br fol. 269. Homine eligendo ad custodiendam peciam sigillipro Mereatoribus aediti is a writ directed to a corporation for the choice of a new man to keepe the one part of the seale appointed for statutes Merchant when the other is dead according to the statute of Acton Burnel Register orig fol. 178. a. Homine replegiando is a writ for the bayle of a man out of prison which in what cases it lyeth and what not See Fitz. nat br fol. 66. See also the Register orig fol. 77. See the new booke of Entries verb. Homine replegiando Homine capto in Withernamium is a writ to take him that hath taken any bondman or woman and led him or her out of the countie so that he or shee cannot be repleuied according to lawe Register orig fol. 79. a. See Withernam Homicide homicidium is the slaying of a man and it is diuided into voluntarie or casuall homicide voluntarie is that which is deliberated and committed of a set mind and purpose to kill homicide volūtary is either with precedent malice or without The former is murder and is the felonious killing through malice prepensed of any person liuing in this realme vnder the Kings protection West part 2. simbol tit Inditment sect 37. c. vsque ad 51. where you may see diuers subdiuisions of this mater See also Glanuile lib 14. cap 3. Bract. l 3. tra 2. c. 4. 15. 17. Brit. c. 5. 6. 7. See Muder Mans slaughter Chaūce medley Homesoken aliâs Hamsoken Hamsoca is compounded of Ham. i. habitatio and Soken i. quaerere It is by Bracton lib. 3. tract 2. c 23. thus defined Homesoken dicitur inuasio domus contra pacem Domini Regis It appeareth by Rastall in the title Expositiō of of words that in auntient times some men had an immunitie to doe this for he defineth Homesoken to be an immunitie from amercements for entring into houses violently and without licence which thing seemeth so vnreasonable that me thinketh he should be deceiued in that his exposition I would rather thinke it should be a libertie or power graunted by the king to some common person for the cognisance or punishment of such a trangression for so I haue seene it interpreted in an old note that I haue giuen me by a freind which he had of an expert man toward the Exchequer but of what authoritie I know not See Hamsoken Hondhabend is compounded of two Saxon words Hond i. hand and habend i. hauing and signifieth a circumstance of manifest theft when one is deprehended with the thing stollen in his hand Bracton lib. 3. tract 2. ca. 31. 54. who also vse the handberend for the same eodem cap. 8. Honour honor is beside the generall signification vsed specially for the more noble sort of seigneuries whereof other inferiour Lordships or maners doe depend by performance of customes and seruices some or other to those that are Lords of them And I haue reason to think that none are honours originally but such as are belonging to the King How be it they may afterward be bestowed in fee vpon other nobles The maner of creating these honours may in part be gathered out of the statutes anno 31. H. 8. cap. 5. where Hampton court is made an honour and anno 33. eiusdem cap. 37. 38. whereby Amptill and Grafton be likewise made honours and anno 37. eiusdem ca. 18. whereby the King hath power giuen by his leters patents to erect foure seuerall honours Of Westminster of Kingston vpon Hull Saint Osithes in Essex and Dodington in Berkshire This word is also vsed in the selfe same signification in other nations See ca. licet causam extra de probationibus and Minsinger vpon it nu 4. In reading I haue obserued thus many honours in England The honour of Aquila Camden Britan. pag. 231. of Clare pag. 351. of Lancaster pag. 581. of Tickhill pag. 531. of Wallingford Notingham Boloine Magna charta cap 31. of West Greenewish Camd pag. 239. of Bedford pupil oculi parte 5. cap. 22. of Barhimsted Brooke titulo Tenure nu 16. of Hwittam Camd pag. 333. of Plimpton Cromptons Iurisd fol. 115. of Creuecure and Hagenet Febert anno 32. H. 8. cap. 48. of East Greenewish of Windsour in Berk shire and of Bealew in Essex anno 37. H. 8. ca. 18. of Peverell in the county of Lincolne Register orig fol. 1. Horngeld is compounded of Horn and Gildan or Gelder i. Soluere It signifieth a taxe within the forest to be paid for horned beasts Cromptons Iurisd fol. 197. And to be free thereof is a priuiledge graunted by the king vnto such as he think eth good Idem ibidem and Rastall in his exposition of words Hors de sonfee is an exception to auoide an action brought for rent issuing out of certaine land by him that pretendeth to be the Lord or for some customes and seruices for if he can iustifie that the land is without the compas of his fee the action falleth v. Brooke hoc titulo Hospitallers Hospitalarii were certaine knights of an order so called because they had the care of hospitals wherein Pilgrims were receiued to these Pope Clement the fift transferred the Templers which order by a
latine word for him was Iusticia and not Iusticiarius as appeareth by Glan lib. 2. cap. 6. Roger Houeden parte poster suorum annalium fo 413. a. and diuers other places which appellation we haue from the Normans as appeareth by the grand custumary cap. 3. and I doe the rather note it because men of this function should hereby consider that they are or ought to be not Iusti in their iudgements but in abstract ipsâ— iusticia how be it I hould it well if they performe their office in concreto Another reason why they are called Iusticiary with vs and not Iudices is bicause they haue their authority by deputation as Delegates to the king and not iure magistratus and therefore cannot depute others in their steed the Iustice of the Forest onely excepted who hath that liberty especially giuen him by the statute anno 32. H. 8. cap. 35. for the Chanceller Marshall Admirall and such like are not called Iusticiarii but Iudices of these Iustices you haue diuers sorts in England as you may perceaue heare following The maner of creating these Iustices with other appertenences reede in Fortescu cap. 51. Iustice of the Kings bench Iusticiarius de Banco regis is a Lord by his office and the cheife of the rest wherefore he is also called Capitalis Iusticiarius Angliae his office especially is to heare and determine all plees of the crowne that is such as concerne offences committed against the crowne dignitie and peace of the King as treasons felonies may hems and such like which you may fee in Bracton lib. 3. tractat 2. per totum and in Stawnf treatise intituled the plees of the crowne from the first chapter to the 51. of the first Booke But either it was from the beginning or by time it is come to passe that he with his assistans heareth all personall actions and reall also if they bee incident to any personall action depending before them See Cromptons Iuridict fol. 67. c. of this court Bracton lib. 3. cap. 7. nu 2. saith thus placita verò ciuilia in rem personam in Curia Domini Regis terminanda coram diuersis iusticiarus terminantur Habet enim plures curias in quibus diversae actiones terminantur illarum curiarum habet vnam propriam sicut aulam regiam iusticiarios capitales qui proprias causas Regis terminant aliorum omnium per querelam vel per priuilegium siue libertatam vt si sit aliquis qui implacitari non debeat nisi coram Domino rege This Iustice as it seemeth hath no patent vnder the broad seale For so Crompton saith vbi supra He is made onely by writ which is a short one to this effect Regina Iohanni Popham militi saluteÌ„ Sciatis quod consistuimus vos Iusticiarium nostrum capitalem ad placita coram nobis terminandum durante beneplacito nostro Teste c. And Bracton in the place nowe recited speaking of the common plees saith that sine warranto inrisdictionem non habet which I thinke is to be vnderstood of a commission vnder the great Seale This court was first called the kings bench because the King sate as Iudge in it in his proper Person and it was moueable with the court See anno 9. H. 3. cap. 11. more of the Iurisdiction of this court see in Crompton vbi supra See Kings bench The oath of the Iustices see in the statute anno 18. Ed. 3. stat 4. See Oathe Iustice of common plees Iusticiarius communium placitorum is also a Lord by his office and is called Dominus Iusticiarius communium placitorum and he with his assistants originally did heare and determine all causes at the common lawe that is all ciuil causes betweene common persons as well personall as reall for which cause it was called the court of common plees in opposition to the plees of the Crowne or the Kings plees which are speciall and appertaining to him onely Of this and the Iuridisdiction hereof see Cromptons Iurisdiction fo 91. This Court was alwaies setled in a place as appeareth by the statute anno 9. H. 3. cap. 11. The oath of this Iustice and his associats see anno 18. Ed. 3. stat 4. See Oath Iustice of the Forest Iusticiarius Forestae is also a Lord by his office and hath the hearing and determining of all offences within the Kings forest committed against Venison or Vert of these there bee two whereof the one hath Iurisdiction oueral the forests on this side Trent the other of all beyond the cheifest point of their Iurisdiction consisteth vpon the articles of the Kings Charter called Charta de Foresta made anno 9. H. 3. which was by the Barons hardly drawne from him to the mitigation of ouer cruell ordinances made by his predecessors Reade M. Camdens Britan. Pag. 214. See Protoforestarius The Court where this Iustice sitteth and determineth is called the Iustice seate of the Forest held euery three yeares once whereof you may reade your fill in M. Manwoodes first part of Forest lawes pag. 121. 154. pag. 76. He is sometimes called Iustice in Eyre of the forest See the reason in Iustice in Eyre This is the only Iustice that may appoint a deputy per statutum anno 32. H. 8. cap. 35. Iustices of Assise Iusticiarii ad capiendas Assisas are such as were wont by speciall commission to be sent as occasion was offered into this or that county to take Assises the ground of which polity was the ease of the subiects For whereas these actions passe alway by Iury so many men might not without great hinderance be brought to London and therefore Iustices for this purpose were by commission particularly authorised and sent downe to them And it may seeme that the Iustices of the common plees had no power to deale in this kinde of busines vntill the statute made anno 8. Rich. 2. cap. 2. for by that they are enhabled to take Assises and to deliuer Gaols And the Iustices of the kings Bench haue by that statute such power affirmed vnto them as they had one hundred yeares before that Time hath taught by experience that the beter sort of Lawyers being fittest both to iudge and plead may hardly be spared in terme time to ride into the country about such busines and therefore of later yeares it is come to passe that these commissions ad â—apiedas Assisas are driuen to these two times in the yeare out of terme when the Iustices and other may beat leasure for these controuersies also whereupon it is also fallen out that the maters wont to be heard by more generall Commissions of Iustices in Eyre are heard all at one time with these Assises which was not so of ould as appeareth by Bracton lib. 3. c. 7. nu 2. Habet etiam Iusticiarios itineraÌ„tes de comitatu in Comitatum quandoque ad omnia placita quandoque ad quaedam specialia sicut Assisas c. ad Gaolas
Bracton lib. 2. cap. 16. num 3. and Britton cap. 39. For hee pardoneth life and limme to offendours against his crowne and dignitie except such as he bindeth himself by oath not to forgiue Stawnf pl. cor lib. 2. cap. 35. And Habet omnia iura in manu sua Bracton lib. 2. cap. 24. num prim And though at his coronation he take an oath not to alter the lawes of the land Yet this oath notwithstanding hee may alter or suspend any particular lawe that seemeth hurtfull to the publike estate Blackwood in Apologia Regum c. 11. See Oath of the king Thus much in short because I haue heard some to be of opiniō that the lawes be aboue the king But the kings oath of old you may see in Bracton lib. 3. cap. 9. nu 2. for the which looke 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 testimonie of any thing done in his presence is of as high nature and credit as any Record Whence it cōmeth that in all writs or precepts sent out for the dispatch of Iustice he vseth none other witnesse but himselfe alwaies vsing these words vnder it Teste me ipso Lastly he hath in the right of his crowne many prerogatiues aboue any common person be he neuer so potent or honourable whereof you may reade your fill in Stawnf tractate vpon the Statute thereof made anno 17. Ed. 2. though that containe not all by a great number What the kings power is reade in Bracton lib. 2. cap. 24. nu prim 2. King of Heradls Rex Heraldorū 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 Iudgment seate where the Kinge of England was wont to sitte in his owne person and therefore was it moueable with the court or kings Houshould And called Curia domini Regis or Aula Regia as M. Gwine reporteth in the preface to his readings and that in that and the Exchequer which were the only courts of the king vntill Henry the thirds daies were handled all maters of Iustice as well Ciuill as Criminall whereas the court of common plees might not be so by the statute anno 9. H. 3. cap. 11. or rather by M. Gwins opinion was presently vpon the graunt of the great charter seuerally erected This court of the Kings bench was wont in auncient times to be especially exercised in all Criminall maters plees of the crowne leauing the handling of priuate contracts to the cownty court Glanuil lib. 1. cap. 2. 3. 4. li. 10. cap. 18. Smith de Repub Anglicana lib. 2. cap. 11. and hath president of it the Lord Cheife Iustice of England with three or foure Iustices assistaunts four or fiue as Fortescu saith cap. 51. and officers thereunto belonging the clearke of the crowne a Praenatory or Protonotari and other sixe inferior ministers or Atturnies Camd Britan pag. 112. See Latitat How long this court was moueable I finde not in any wrighter But in Brittons time who wrot In K. Ed the 1. his daies it appeareth it followed the court as M. Gwin in his said preface wel obseruethout of him See Iustice of the Kings Bench. Kings siluer is properly that mony which is due to the king in the court of common plees in respect of a licence there graunted to any man for passing a fine Coke vol. 6. fo 39. a. 43. b. Kintall of woad iron c. is a certaine waight of merchandize to the valew of a hundred or something vnder or ouer according to the diuers vses of sundry nations This word is mentioned by Plowden in the case of Reniger and Fagossa Knaue is vsed for a man seruant a. 14. Ed. 3. stat 1. ca. 3. And by M. Verstigans iudgemēt in his Restitutiō of decaied intelligence ca. 10. it is borowed of the dutch cnapa cnaue or knaue which signifie all one thing and that is some kinde of officer or seruant as scild-cnapa was he that bore the weapon or shield of his superior whom the latines call armigerum and the French men escuyer Knight Miles is almost one with the Saxon Cnight i. Administer and by M. Camdens iudgment pag. 110. deriued from the same with vs it signifieth a gentleman or one that beareth Armes that for his vertue and especially Martiall prowes is by the King or one hauing the Kings authority singled as it were from the ordinary sort of gentlemen and raised to a higher accompt or steppe of dignity This among all other nations hath his name from the Horse Because they were wont in auncient time to serue in warrs one horsbacke The Romans called them Equites the Italians at these daies terme them Cauallieri The French men Cheualliers The German Reiters The Spaniard Caualleros or Varoncs a Cauallo It appeareth by the statute anno 1. Ed. 2. cap. 1. that in auncient times gentlemen hauing a full knights fee and houlding their land by knights seruice of the king or other great person might be vrged by distresse to procure himselfe to be made knight when he came to mans estate for the answerable seruice of his Lorde in the Kings warres To which point you may also reade M. Camden in his Britannia pag. 111 But these customes be not nowe much vrged this dignity in these dayes being rather of fauour bestowed by the Prince vpon the worthier sort of gentlemen then vrged by constraint The maner of making knights for the dignitie is not hereditarie M. Camden in his Britan. pag. 111. shortly expresseth in these words Nostris verò temporibus qui Equestrem dignitatem suscipit flexis genibus educto gladio leuiter in humero percutitur Princeps his verbis Gallicè affatur Sus vel sois Cheualier au nom de Dieu id est Surge aut Sis Eques in nomine Dei The solemnitie of making Knights among the Saxons M. Stow mentioneth in his Annals pag. 159. See the priuiledges belonging to a knight in Fernes Glorie of Generositie pag. 116. Of these knights there be two sorts one spirituall another temporall Cassanaeus in gloria mundi parte 9. Considerat 2. of both those sorts and of many subdiuisions reade him in that whole part The temporall or second sort of knights M. Ferne in his Glorie of generositie pag. 103. maketh threefold here with vs. Knights of the sword Knights of the Bath and Knights of the soueraigne Order that is of the Garter of all which you may reade what he saith I must remember that mine intent is but to explain the termes especially of our common lawe Wherefore such as I find mentioned in Statutes I will define as I can M Skene de verb. significat verbo Milites saith that in the auncient lawes of Scotland Freeholders were called Milites Which may seem to haue bene a custome with vs
Mearc which signifieth a peece of mony worth thirty siluer pence Lamb. explicat of Saxon words verbo Mancusa what it now signifieth in our coyne euery man knoweth But in auncient times I find a merke of gold which was the quantitie of eight ounces Stowes annals pag. 32. and againe pag. 691. 12. merkes of golde Troy weight the which was 200. pounds of English mony after which rate euery merke valued 16. pounds 13. shillings 4. pence M. Skene de verbor signific verbo Merke saith that in tractatu de ponderibus mensuris a Mercke signifieth an ounce weight or halfe a pound wherof the dramme is the eighth part like as the ounce is the eighth part of a marcke citing Cassanaeus de consuet Burgund Rub. prim § 7. verbo Solz Turnoys hiis verbis Solidus inquit in iure capitur pro auro quorum 72. faciunt libram auri duodecim vncia faciunt libram octo vnciae mercaÌ„ Market mercatus commeth of the French marche i. emporium forum nundinarium it signifieth with vs the same thing and also the liberty or priuiledge whereby a towne is enabled to keepe a market Old nat br fol. 149. So doth Bracton vse it lib. 2. cap. 24. num 6. lib. 4. cap. 46. where he sheweth that one market ought to bee distant from another sex lencas dimidiam tertiam partem dimidiae The reason thereof both he and Fleta giueth in these wordes Quia omnes rationabiles dietae constant ex 20. milliaribus Diuidatur ergo dieta in tres partes prima auteÌ„ matutina detur euntibus versus mercatum secunda detur ad emendum vendendum quae quidem sufficere debet omnibus nisi sint forte mercatores statarii qui merces deposuerint exposuerint venales quibus necessaria erit prolixior mora in mercatu tertia pars relinquitur redeuntibus de mercatu ad propria Et quaequidem omnia necesse erit facere de die non de nocte propter infidias incursum latronum vt omnia sint in tuto c. lib. 4. cap. 28. § Item refert Marle is a kind of stone or â—halke which men in diuers countries of this Realme cast vpon their land to make it the more fertile It is some where called Malin anno 17. Edvard 4. cap. 4. Marque seemeth to bee a French word signifying notam vel signum or else to come from the German march i. limes it signifieth in the auncieÌ„t statutes of our land as much as reprisals as anno 4. H. 5. cap. 7. Marques and Reprisals are vsed as synonyma And leters of Marque are found in the same signification in the same chapter The reason may be because â—â—e griefes wherevpon these leâ—â—rs are sought and graunted are commonly giuen about the â—ounds and limits of euery contrey or at least the remedie for the same is likest there to bee had by some sodaine inrode happing of such recompence of the iniurie receiued as may most conueniently be lighted vpon See Reprisals See Marches Marquis Marchio by the opinion of Hotom verbo Marchio in verbis feudalibus commeth of the German March i. limes signifiing originally as much as Custos limitis or Comes praefectus limitis of these Zasius thus writeth de Marchione nihil compertuÌ„ est nisi quod Gothicum vocabulum putamus And afterward thus Huiusmodi Marchionum siue vt nos appellamus Margraphiorum origo in limitaneos praepositos siue duces referenda Margraphis dicti quòd limitibus quos vulgò marken appellamus graphii id est praepositi fuerunt c. For in those teritories that haue naturally noe bounds of great strength or defence there is neede of wise and stout men toward their borders for the keeping out of neighbour enemies But here in England though we haue a Lord warden of the marches northward and a warden of the cinque ports toward the south east and were wont to haue Lo. Marchers between vs and Wales that serued this turne yet those which we call Marquises are lords of more dignity without any such charge and are in honour and accompt next vnto Dukes At this day I know but one in England and that is the Marquis of Winchester being of that noble familie of the Powlets See Cassanaeus de consuetud Burg. pag. 15. Marrow was a lawyer of great accompt that liued in Henry the seuenth his daies whose learned readings are extant but not in print Lamb. Eiren. li. pri cap. 1. Marterns see Furre Master of the Rols Magister rotulorum is an AssistaÌ„t vnto the Lord Chauncelour of England in the high court of Chauncery and in his absence heareth causes there and giueth orders Crompt Iurisd fol. 41. His title in his patent as I haue heard is Clericus paruae bagae custos rotulorum domus conuersorum This domus conuersorum is the place where the rols are kept so called because the Iewes in auncient times as they were any of them brought to christianity were bestowed in that house separatly from the rest of their nation But his office seemeth originally to haue sprong from the safe keeping of the Roules or records of inditements passed in the kings courts and many other things He is called clerke of the rols anno 12. R. 2. ca. 2. and in Fortescue his booke cap. 24. and no where master of the rols vntil anno 11. Hen. 7. cap. 20. and yet anno 11. einsdem cap. 25. he is also called clerk In which respect Sir Thomas Smith li. 2. ca. 10. de Repnb Angl. well saith that he might not vnfitly be called Custos Archiuorum He seemeth to haue the bestowing of the offices of the sixe clerks anno 14. 15. Hen. 8. cap. 8. Master of the mint anno 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 Liueries is the cheife and principall officer of the court of wards and liueries named and assigned by the king to whose custodie the seale of the court is committed He at the entring vpon his office taketh an oath before the Lord Chauncelour of England well and truly to serue the King in his office to minister equal iustice to rich poore to the best of his cunning witte and power diligently to procure all things which may honestly and iustly be to the kings aduaÌ„tage and profit and to the augmentation of the rights and prerogatiue of the crowne truly to vse the kings seale appointed to his office to end eauour to the vttermost of his power to see th 〈…〉 king iustly aunswered of all suc 〈…〉 profits rents reuenewes a 〈…〉 issues as shall yearely rise grow or be due to the king in his office from time to time to deliuer with speed such as haue to do before him not to take or receiue of any person any gift or reward in any case or mater depending before him or wherein the king shall be party
praecepturum pro viribus opem impensurum vt ecclesiae dei omni populo Christiano vera pax omni suo tempore observetur Secundò vt rapacitates omnes iniquitates omnibus gradibus interdicat 3. vt in omnibus iudieiis aequitatem praecipiat misericordiam vt indulgeat et suā misericordiā clemens misericors Deus vt per Iustitiā suam firma gaudeant pace vniuersi And in the old abridgement of statutes set out in H. 8. daies I finde it thus described This is the oath that the King shall sweare at his coronation That he shall keepe and maintaine the right and the liberties of the holy church of old time graunted by the righteous Christian Kings of England and that he shall keepe all the lands honours and dignities righteous and free of the Crowne of England in all maner whole without any maner of minishment and the rights of the Crowne hurt decayed or lost to his power shall call againe into the auncient estate and that he shall keepe the peace of the holy church and of the clergy and of the people with good accord and that he shall doe in all his iudgements equitie and right iustice with discretion and mercie and that he shall graunt to hold the lawes customes of the realme and to his power keepe them and affirme them which the folke and people haue made and chosen and the euill lawes and customes wholly to put out and stedfast and stable peace to the people of this realme keepe and cause to be kept to his power and that he shall graunt no charter but where he may doe it by his oath All this I finde in the foresaide Booke titulo Sacramentum Regis and Charter of pardon quinto Oth of the Kings Iustices is that they well and truly shall serue the king and that they shall not assent to things that may turne to his dammage or disinheritance Nor that they shall take no fee nor liuerie of none but the king Nor that they shall take gift nor reward of none that hath adoe before them except it be meate and drinke of smal value as long as the plee is hanging before them nor after for the cause Nor that they shall giue councell to none in mater that may touch the King vpon paine to be at the kings will body and goods And that they shall doe right to euery person notwithstanding the Kings leters c. anno 18. Ed. 3. statut 4. which the old abridgement maketh to be anno 20. eiusdem statuto per se Otho was a Deacon Cardinall of S. Nichens in carcere Tulliam and Legate for the Pope heere in England anno 22. H. 3. whose constitutions we haue at this day Stowes An. pa. 303. see the first constitution of the said Legat. Othobonus was a Deacon Cardinall of S. Adrian and the Popes legate heere in England anno 15. H. 3. as appeareth by the award made betweene the said King and his commons at Kenelworth his constitutions we haue at this day in vse Ouch anno 24. H. 8. ca. 13. Ouster le main Amouere manum word for word signifieth to take off the hand though in true French it should be Oster la main It signifieth in the common law a Iudgement giuen for him that tendeth a trauers or sieweth a Monstrance de droit or petition For when it appeareth vpon the mater discussed that the King hath noe right nor title to the thing he seised then Iudgement shal be giuen in the Chauncery that the kings hands be amoued and thereupon Amoueas manum shal be awarded to the Escheatour which is as much as if the iudgement were giuen that he should haue againe his land v. Stawn praerog ca. 24. See anno 28. Ed. 1. stat 3. ca. 19. It is also taken for the writ graunted vpon this petition Fitzh nat br fol. 256. C. It is written oter le maine anno 25. Hen. 8. ca. 22. Ouster le mer vltra mare commeth of the French oultre i. vltra and le mer. i. mare and it is a cause of excuse or Essoine if a man appeare not in Court vpon Summons See Essoin Outfangthef aliâs vtfangthef is thus defined by Bracton li. 3. tra 2. ca. 34. vtfangthef dicitur latro extraneus veniens aliunde de terra aliena qui captus fuit in terra ipsius quitales habet libertates but see Britton otherwise fol. 91 b It is compounded of three Saxon words out i. extra fang i. capio vel captus and Thef i. fur It is vsed in the common law for a liberty or priuiledge whereby a Lord is inhabled to call any man dwelling within his owne fee and taken for felony in any other place and to iudge him in his owne court Rastals expos of words Owelty of seruices is an equality when the tenent parauaile oweth as much to the mesn as the mesn doth to the Lord paramont Fitzh nat br fol. 136 A. B. Outlawry vtlagaria is the losse or depriuation of the benefit belonging to a subiect that is of the Kings protection and the Realme Bracton li. 3. tract 2. ca. 11. num pri nu 3. Forisfacit vtlagatus omnia quae pacis sunt Quia a tempore quo vtlagatus est caput gerit lupinum ita quòd ab omnibus interfici possit impunè maxime si se defenderit vel fugerit ita quòd difficilis sit eius captio nu 4. Si autem non fugerit nec se defenderit cùm captus fuerit extunc erit in manu domini Regis mors vita qui taliter captum interfecerit respondebit pro co sicut pro alio v. c. Outeparters anno 9. H. 5. ca. 8. seemeth to be a kind of theeues in Ridesdall that ride abroad at their best advantage to fetch in such catell or other things as they could light on without that liberty some are of opinion that those which in the forenamed statute are termed out-patters are at this day called out-putters and are such as set matches for the robbing of any man or house as by discouering which way he rideth or goeth or where the house is weakest fittest to be entred See Intakers Owtryders seeme to be none other but bayliffe errants employed by the Shyreeues or their fermers to ride to the fardest places of their counties or hundreds with the more speede to summon to their county or hundred courts such as they thought good to worke vpon anno 14. Ed. 3. stat 1. ca. 9. Oxgang of Land Bouata terrae Sixe oxgangs of land seeme to be so much as sixe oxen will plough Crompton iurisd fol. 220. but an oxegang seemeth properly to be spoken of such land as lyeth in gainour old nat br fol. 117. M. Skene de verbor significat verbo Bovata terrae saith that an oxen-gate of land should alway conteine 13. acres and that 4. oxen-gates extendeth to a pound land of old extent See
our common lawe plurally those that are empaneled in an Enquest vpon any man for the conuicting and clearing him of any offence for the which he is called in question And the reason thereof is because the course and custome of our nation is to trie euery man in this case by his equals West prim cap. 6. anno 3. Ed. prim So Kitchin vseth it fol. 78. in these wordes Mais si le amerciament soit affirre per pares And this word in this signification is not in vse with vs onely but with other nations also For pares sunt conuasalli quorum sententiá vasallus propter feloniam est condemnatus Barklaius de Regno lib. 4. cap. 2. Et pares sunt qui ab eodem domino feudum tenent lib. prim Feudor cap. 26. But this word is most notoriously vsed for those that be of the Nobilitie of the Realme and Lords of the Parlament and so is it vsed in Stawnf pl. of the Crowne lib. 3. cap. Triall per les Peeres being the first The reason whereof is because though there be a distinction of degrees in our Nobilitie yet in all publike actions they are equall as in their voices in Parlament and in passing vpon the triall of any Noble man c. This appellation seemeth to be borowed from Fraunce and from those twelue Peeres that Charles the Great or Lewis the younger in some mens opinion instituted in that kingdome which be next vnto the King and are of like dignitie among themselues touching their power in publike affaires Of whome you may reade Vincentius Lupanus de magistrat Fraunciae lib 1. cap. Pares Fraunciae So that we though we haue borowed the appellation and applied it with some reason to all that are Lords of the Parlament yet haue wee no sett number of them because the number of our Nobles may be more or lesse as it pleaseth the King Pelota is a word vsed in the booke called pupilla ocult parte 5. cap. 22. signifying the ball of the foot of the French pelote i. pila Peru fort dure See Pain for dure Pelt wooll is the woll pulled off the skinne or pelt of dead sheepe anno 8. H. 6. cap. 22. Penon anno 11. R. 2. cap. prim is a Standard Banner or Ensigne caried in warre It is borowed from Fraunce for pennon in the French language signifieth the same thing See Baneret yea reade this word anno 21. R. 2. cap. 1. Penne See Baye Peper piper is a spice known in a manner to euery childe beeing the fruite of a plant that is betweene a tree and an herbe of whose diuersities and nature you may reade Genards herball lib. 3. cap. â—46 This is set among merchandize that are to be garbled anno 1. Iacob cap. 19. Peper lowse anno 32. H. 8 cap. 14. Per. cui post See Entrie Perambulatione facionda is a writ that is siewed out by two or more Lords of manets lying neere one another and consenting to haue their bounds seuerally knowne It is directed to the Shyreeue commanding him to make perambulation and to set downe their certaine limits betweene them Of this reade more at large in Fitz. nat br fol. 133. See Rationabilibus diuisis See the Regist orig fol. 157. and the new booke of Entries verbo Perambulatione facienda Perche pertica is a French word signifying a long pole It is vsed with vs for a Rodde or Pole of 16. foote and a halfe in length Where of 40 in length and foure in bredth make an acre of ground Cromptons Iurisd fol. 222. Yet by the custome of the countrie is may be longer as he there saith For in the Forest of Sheerewood it is 25. foot fol. 224. M. Skene de verbor signif verbo Particata terrae saith that particata terrae is a Roode of land where he hath also these wordes in effect Three beere cornes without tayles set together in length make an inch of the which cornes one should be taken of the midde ridge one of the side of the ridge another of the furrow Twelue inches make a foot of measure three foote and an inch make an elne sixe elnes long make one fall which is the common lineall measure and sixe elnes long and sixe broade make a square and superficiall fall of measured land And it is to be vnderstood that one rod one raip one line all fall of measure are all one for each one of them containeth sixe elnes in length Howbeit a rod is a staffe or pole of wood a raipe is made of tow or hempe And so much land as falleth vnder the rod or raipe at once is called a fal of measure or a lineal fall because it is the measure of the line or length onely Like as the superficiall fall is the measure both of length and bredth Item tenne fals in length and foure in bredth make a Roode foure Roodes make an acre c. This is the measure of Scotland where of you may reade more in the same place Perdonatio vtlagariae in the Register iudiciall fol. 28. is the forme of pardon for him that for not comming to the kings court is outlawed and afterward of his owne accord yeldeth himselfe to prison Peremptorie peremptorius commeth of the verb perimere to cut of and ioyned with a substantiue as action or exception signifieth a finall and determinate act without hope of renewing So Fitzh calleth a peremptory action nat br fol. 35. P. fol. 38. M. fol. 104. O. Q. R. fol. 108. D. G. and non-suite peremptorie idem eodem fol. 5. N. F. fol. 11. A. peremptory exception Bracton li. 4. ca. 20. Smith de rep Anglorum li. 2. ca. 13. calleth that a peremptory exception which can make the state and issue in a cause Perinde valere is a dispensation graunted to a clerk that being defectiue in his capacity to a benefice or other ecclesiasticall function is de facto admitted vnto it And it hath the appellation of the words which make the faculty as effectuall to the party dispensed with as if he had bene actually capable of the thing for which he is dispensed with at the time of his admissioÌ„ Perkins was a learned Lawyer fellow and bencher of the inner Temple that liued in the daies of Edward the 6. and Queene Mary He writ a booke vpon diuers points of the common law of very great commendation Permutatione Archidiaconatus ecclesiae eidem annexae cum ecclesia praebenda is a writ to an Ordinary commaunding him to admit a clerk to a benefice vpon exchaunge made with another Register orig fol. 307. a. Pernour of profits commeth of the French verb prendre i. accipere and signifieth him that taketh as pernour of profits anno 1. H. 7. ca. pri Pernour de profits and cesti quevse is all one Coke li. i. casu Chudley fol. 123. a. See Pernour anno 21. R. 2. ca. 25. Per quae seruitia is a writ iudiciall issuying from the note or fine and
be either simple or with dignity Simple Prebends be those that haue no more but the reuenew toward their maintenance Prebends with dignity are such as haue some Iurisdiction annexed vnto them according to the diuers orders in euery seuerall church Of this see more in the title De praebendis dignitat in the Decretalls Alciat saith that praebenda in the plurall number and neuter gender was aunciently vsed as now praebenda in the singuler number and feminine gender is vsed parerg ca. 43. Praebendary praebendarius is he that hath a prebend See Praebend Praecept praeceptum is diuersly taken in the cōmon law sometime for a commaundement in wrighting sent out by a Iustice of peace or other for the bringing of a person one or more or records before him of this you haue examples of diuers in the table of the Reg. Iudiciall And this vse seemeth to be borowed from the customes of Lombardy where praeceptum signifieth scripturam vel instrumentum Hot. in verbis feudal libro 3. Commentariorum in libros fendorum in praefatione Sometime it is taken for the prouocation whereby one man inciteth an other to commit a felony as theft or murder Stawnf pl. cor fol. 105. Bracton calleth it praeceptum or mandatum lib. 3. tract 2. ca. 19. whence a man may obserue three diuersities of offending in murder Praeceptum fortia consilium praeceptum being the instigation vsed before hand fortia the assistance in the fact as help to binde the party murdered or robbed consilium aduise either before or in the deede The Ciuilians vse mandatum in this case as appeareth by Angelus in tracta de maleficus vers Sempronium Mandatorem Praeceptories anno 32. H. 8. cap. 24. were benefices in a kinde termed preceptories because they were possessed by the more eminent sort of the Templers whome the cheife master by his authoritie created and called praeceptores Templi Ioach. Stepha de Iurisdict li. 4. cap. 10. num 27. See Comaundry Praecipe quod reddat is a writ of great diuersitie touching both the forme and vse for beter declaration whereof see Ingressu and Entrie This forme is extended as well to a writ of right as to other writs of entry or possession old nat br fol. 13. and Fitzh nat br fol. 5. And it is called sometime a writ of Right close as a praecipe in capite when it issueth out of the court of common plees for a tenent holding of the King in cheife as of his Crowne and not of the King as of any honour castell or maner Register orig fol. 4. b. Fitzh nat br fol. 5. F. Sometime a writ of Right patent as when it issueth out of any Lords court for any of his tenents deforced against the deforcer and must be determined there Of this reade more at large in Fitzh nat br in the very first chapter or writ of all his booke Praemunire is taken either for a writ or for the offence wherevpon the writ is graunted The one may well enough be vnderstoode by the other It is therefore to be noted that the church of Rome vnder pretence of her supremacie and the dignitie of Saint Peters chaire grew to such an incroching 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 meanes or other In so much as for the most part he graunted out Mandats of ecclesiasticall liuings before they were voide to certaine persōs by his buls pretēding therein a great care to see the Church prouided of a Successorbefore it needed Whence it grew that these kinde of Buls were called Gratiae expectativae or Prouisiones whereof you may reade a learned discourse in Duarenus that worthie Ciuilian in his tractat De beneficiis lib. 3. c. 1. and in his treatise De immunitate ecclesiae Gallicanae These prouisions wereso rife with vs that at the last King Edward the third that heroicall Prince not disgesting so intolerable an oppression made a statute in the 25. yeare of his reigne statuto 5. cap. 22. and another statuto 6. eiusdem anni cap. pri and a third anno 27. against those that drew the Kings people out of the Realme to answer of things belonging to the kings court and another anno 28. statu 2. 6. 1. 2. 3. 4. to the like effect whereby he greatly restained this libertie of the Pope Yet such was the wantonnesse that grew out of his power the num patiēce of princes in those daies that hee still advētured the continuance of these prouisions in so much as King Richard the second made likewise a statute against them in the 12. yeare of his reigne cap. 15. and the 13. yeare statut 2. ca. 2. making mention of the said first statute of Edward the third ratifiing the same and appointing the punishment of those that offēded against it to be perpetuall banishment forfeiture of their lands tenements goods and catels as by the same doth more at large appeare And againe in the 16. yeare of his reigne cap. 5. to meete more fully with all the shifts inuented to defraude these former statutes he expresseth the offence more particularly and setteth the same punishment to it that hee ordeined in the last former statute for there toward the ende he hath these words If any purchase or pursiew or do to be purchased or pursiewed in the court of Rome or els where any such translations processes and sentences of excommunication Buls Instruments or any other things c. After him K. H. the fourth in like maner greeued at this importuny by other abuses not sully mette with in the former statutes in the second yeare of his reigne cap. 3. 4. addeth certaine new cases and laieth vpon the offendours in them the same censure whereunto for shortnes sake I referre you admonishing likewise to adde the statute anno 9. eiusdem cap. pri anno 7. cap. 9. 8. anno 9. eiusdem cap. 8. anno 3. H. 5. cap. 4. Out of which statutes haue our professors of the common lawe wrought many daungers to the Iurisdiction ecclesiasticall thretning the punishment conteined in the statute anno 27. Ed. 3. 38. eiusdem almost to euery thing that the court Christian dealeth in pretending all things delt with in those courts to be the disherison of the Crowne from the which and none other fountaine all ecclesiasticall Iurisdiction is now deriued wheras in truth Sir Tho. Smith saith very rightly and charitablely that the vniting of the supremacie ecclesiasticall and temporall in the king vtterly voideth the vse of all those statuts Nam cessante ratione cessat lex And whatsoeuer is now wrought or threatened against the Iurisdiction ecelesiasticall by colour of the same is but in emulation of one court to another and by consequent a derogation to that authoritie from which all Iurisdiction is now deriued and the maintenance whereof was by those
dare bellum indicere belli indicenci licentiam alii dare pronunciare ita vt a sententia appellari non possit committere sive delegare alicui causam cum clausula appellatione remota cognoscere de crimine laesae maiestatis legitimare per rescriptum eos qui extra legitimum matrimonium nati sunt ad famam honores natales in integrum restituere veniam aetatis dare creare Duces Marchiones Comites regnum in feudum concedere Huc referri potest ius erigendi scholam quae hodie Vniuersitas vel Academia appellatur etiā ius creādi doctores gradu licentiae aliquem insigniendi creandi magistratus tabelliones siue notarios ius dandi insignia nobilitatis siue nobiles creandi ius cudendae monetae noua vectigalia instituendi vel instituta vectigalia augendi Sixtinus vbi supra So that those other which are mentioned in libris feudorum and the interpreters of them are at the least for the most part iustly called regalia minora as armandiae viae publicae flumina nauigantia portus ripalia vectigalia monetae mulctarum poenarumque compendia bona vacantia bona quae indignis auferuntur bona eorum qui incestum matrimonium contrahunt bona damnatorum proscriptorum angariae parangariae extraordinariae ad expeditionem imperatoris collationes potestas creandorum magistratuum ad iusticiam exequendam argentarie palatia in ciuitatibus constituta piscationum reditus salinarum reditus bona committentium crimen laesae maiestatis thesaurus inuentus By setting downe these regalities of both sorts as they are accoumpted in the Empire and other forein kingdomes they may be the more easily compared with our kings prerogatiues and so the differences noted betweene vs and them And whereas some things are before reckoned both inter regalia maiora minora the reader must vnderstand that this may be in diuers respects For example the power of raising a tribute or of coyning money is inter maiora but the profit that groweth to the Prince by the one or other is inter minora Now may there also be noted out of books a great number of prerogatiues belonging to the king of this land which doe not bring profit to his cofers immediately and therefore may be accoumpted inter regalia maiora or at the least in a middle or mixt nature or inter maiora minora because by a consequent they tend to the increase of the kings exchequer Of these such as I haue obserued in reading I will set downe as they come to my hands without farder curiosity in diuiding It is the kings prerogatiue that he may not be siewed vpon an ordinary writ as tenent to lands but by petition Plowd casu Walsingham fo 553. to haue a cecessary consent in the appropriation of all benefices Idem casu Grendon fol. 499. to waiue and to demurre and to pleade to the issue or to waiue the issue and to demurre vpon the plee of the aduers part yet not to chaunge the issue another terme after he and the aduers part be once at issue Idem casu Willion fol. 23. 6. a. casu Mines fol. 322. a. to be receiued in a suite before issue ioyned vpon an ayde prier Idem casu Dutchry of Lancaster fol. 221. b. to be neuer in nonage eodem fol. 218. b. that a man indicted may not wage battell with him Idem casu nimes fol. 335. b. that no man vpon any right may enter vpon him being in possession but must be put to suite Dyer fol. 139. nu 33. to seise the lands of his tenents that alienate without licence Plowd casu Mines fol. 322. a. that no subiect may wage his law against him Broke chosein action 9. Coke lib. 4. fol. 93. to present in the right of the youngest coparcener being his worde before the elder Plowd casu Mines fol. 332. b. fol. 333. a. that a benefice by institution is not full against him Coke Digbies case fol. 79. a. not to finde pledges for the persecuting of any action For he cannot be amerced Fitzh nat br fo 31. F. fo 47. C. to siew in what court he will Fitzh nat br f. 7. B. 32. E. to siew the writ Ne admittas after sixe monethes Regist orig fol. 31. a. that a mans villein hauing remained in his auncient demesn by the space of a yeare may not be recouered by the writ de natiuo habendo Fitzh nat br fol. 79. A. to graunt an office with the babendum post mortem alterius Dyer fo 295. nu 1. to shorten the ordinary time of summons being 15. daies in writ of right Brit. ca. 121. to giue what honour or place he listeth to his subiects anno 31. H. 8. ca. 10. to be owner of a forest See Forest to haue free warren See Warren Not to be owted of his free hould Cromptons Iustice of peace fol. 59. b. 16. a. to araigne a man being both a Traitor and a Felon rather vpon the treason than vpon the felony because he may haue the whole escheats Idem eodem fol. 99. a. to warrant the day of appearance to his subiect being in his seruice and summoned to appeare at a day certaine Fitzh nat br fol. 17. a. Diuers of these and many others did belong fisco imperatorum which you may finde in the Digest De iure fisci Co. lib. 10. tit 1. Besides these also many moe may be obserued to belong vnto our King out of lawes which I leaue to their collection that are of longer reading and more painefull industry Prerogatiue of the Archbishop of Canterbury or Yorke prarogatiua Archiepiscopi Cantuariensis seu Eboracensis is an especiall preeminence that these Sees haue in certaine cases aboue ordinary Bishops within their Prouinces And that of the Archbishop of Canterburie principally consisteth of these points First in the confirmation of all elections made of Bishops by the Deane and Chapter of all Cathedrall Churches as also the consecration of them Next in a power of visiting his whole Prouince of assembling Synods of supplying the defects and negligences of inferiour Bishops of receiuing appeales from their courtes of assigning coadiutours to those Bishops that grow weake and insufficient to discharge their function of appointing Vicars generall to those that haue either none or an insufficient man employed in that office and of dispensing in all ecclesiasticall cases wherein the lawes beare dispensation of taking oath of euery Bishop at his confirmation to performe canonicall obedience vnto the See of Canterburie But thes seem to belong vnto him by an ordinarie archiepiscopall authority Certaine other things there be that appertaine vnto him more then ordinarily to other Archbishops as the originall calling of any person in any cause belonging to spirituall iurisdiction out of any part of his prouince though not appealed But this point is now limited by the Statute made anno 23. Henr. 8. ca. 9. The receyuing of an appeale from the lowest Iudge ecclesiasticall
benefice conferreth it vpon his Clerke whilest two others be contending in law for the right of presenting Exposition of the terms of law old nat br fol. 30. and Fitzh nat br fol. 48. Register originall fol. 32. Quare intrusit matrimonio non satisfacto is a writ that lyeth for the Lord against his tenent being his ward that after couenable mariage offered him marieth another and entreth neuer the lesse vpon his land without agreement first made with his Lord and Gardian Terms of the law Quare non permittit is a writ that lyeth for one that hath right to present for a turne against the proprietary Fleta lib. 5. cap. 16. Quarentine quarentina is a benefit allowed by the lawe of England to the widow of a landed man deceased whereby shee may challenge to continue in his capitall messuage or cheife mansion house by the space of 40. daies after his decease Of this see Bracton lib. 2. cap. 40. And if the heire or any other attempt to eiect her shee may haue the writ De Quarentina habenda Fitzh nat br fol. 161. see anno 9. H. 3. cap. 7. anno 20. cap. pri and Britton cap. 103. M. Skene de verborum significatione verbo Quarentina viduarum deriueth this word from the French Quaresme Who also haue this custome called lo quaresme des vefues granted to widows after the decease of their husbands as he proueth out of Papon in his Arrests libro 15. titulo des dots cap. 7. lib. 10. tit Substitutiones cap. 30. Of this read Fleta also lib. 5. cap. 23. Quarentena habenda is a writ that lyeth for a widow to inioy her Quarentine Register originall fol. 175. Quare non admisit is a writ that lyeth against the Bishop refusing to admit his Clerk that hath recouered in a plee of Aduowsen The furder vse whereof see in Fitzh nat br fol. 47. Register originall fol. 32. See the new booke of Entries verbo quare non admisit Quare obstruxit is a writ that lyeth for him who hauing a seruitude to passe through his neighbours ground cannot inioy his right for that the owner hath so strengthened it Fleta li. 4. cap. 26. § Item si minus Quarter Sessions is a court held by the Iustices of peace in euery Countie once euery quarter The iurisdiction whereof how farre it extendeth is to be learned out of M. Lamberds Eirenarcha Sir Thomas Smith de Republ. Anglor lib. 2. ca. 19. But to these you must adde the late statutes of the Realme for their power daily increaseth Originally it seemeth to haue bene erected onely for maters touching the peace But in these daies it extendeth much farder That these Sessions shold be held quarterly was first of all ordeined so farre as I can learne by the statute anno 25. Ed. 3. stat pri cap. 8. of these read Lamberds Eirenarcha the fourth booke throughout where he setteth them out both learnedly and at large Quashe quassare commeth of the French quasser i. quassare conquassare it signifieth in our common law to ouerthrowe Bracton lib. 5. tracta 2. cap. 3. nu 4. Quekbord anno 17. Ed. 4. ca. 2. Que est mesme signifieth verbatim Which is the selfe same thing It is vsed in our common law as a word of art in an action of trespas or of like nature for a direct iustification of the very act complained of by the plaintffe as a wrong for example in an action of the case the plaintiffe saith that the Lord threatned his Tenents at will in such sort as he draue them to giue vp their tenures The Lord for his defence pleadeth that he said vnto them that if they would not depart he would siew them as the law would This being the same thretning that he vsed or to speake artificially que est le mesme the defence is good Of this see Kitchin in the chapter Que est le mesme fol. 236. where you may haue many like examples Que estate word for word signifieth Quem statum It signifieth in our common law a plee whereby a man intitling another to lands c saith that the same estate that he had himselfe hath from him for example in a Quare impedit the Plaintife alleadgeth that such foure persons were seised of lands whereunto the Advowsen in question was appendant in fee and did present to the Church and afterward the Church was voide Que estat del c. that is which estate of the foure persons he faith also that he hath nowe during the vacation by vertue whereof he presently c. Brooke titulo Que estate fol. 175. 176. But it is harder to knowe when this Que estate is to be pleaded then to vnderstand what it is as by him may appeare See the new booke of Entries verbo Que estate Queene Regina is either shee that houldeth the Crowne of this Realme by right of blood or els shee that is maried to the King In the former signification shee is in all construction the same that the King is and hath the same power in all respects In the other signification shee is inferiour and a person exempt from the King For shee may siew and be siewed in her owne name Yet that shee hath is the Kings and looke what shee looseth so much departeth from the King Stawnf praerog cap. 2. fol. 10. in fine See Kitchin fol. 1. b. See Cooke lib. 4. Copy-hould cases fo 23. b. Augusta was the like among Romaines how be it not euisdem iuris in all things Queenes siluer See Kings siluer Quem reditum reddat is a writ Iudiciall that lyeth for him to whom a rent seck or rent charge is graunted by fine leuied in the Kings Court against the Tenent of the land that refuseth to atturne vnto him thereby to cause him to atturne See old nat br fol. 156. and West parte 2. Simbol titulo Fines sect 125. See the new booke of Entries Verbo Quem reditum reddit Querela friscae fortiae is a writ See Fresh force Querela coram Rege consilio discutienda terminanda is a writ whereby one is called to iustifie a complaint of a trespasse made to the king and himselfe before the King his counsell Register originall fol. 124. b. Questus est nobis c. is the sorme of a writ of Nusance which by the statute anno 13. Ed. pri cap. 24. lieth against him to whome the house or other thing that breedeth the Nusance is alienated wheras before that statute this actiō lay onely against him that first leuied the thing to the hurt of his neighbour See the Statute Quia improvide seemeth to be a supersedeas graunted in the behalfe of a clerke of the Chawncerie siewed against the priuiledge of that court in the common plees persiewed to the exigēd See Dyer f. 33. n. 18. Quid iuris clamat is a writ Iudiciall issuing out of the Record of the Fine which remaineth with
Kings house anno 25. Ed. 3. statute 5. ca. 21. Stillyard Guilda Theutonicorum anno 22. H. 8. ca. 8. anno 32. eiusdem ca. 14. is a place in London where the fraternity of the Easterling Merchants otherwise the Merchants of Hawnse and Almaine anno pri Ed. 6. cap. 13. Are wont to haue their aboade see Geld. It is so called of a broad place or courte wherein steele was much sould vpon the which that house is now founded Nathan Chitraens See Hawnse Stone of woll Petra lanae see weights See Sarpler It ought to weigh fourteene pounds yet in some places by custome it is more See Cromptons Iustice of peace fol. 83. b. Straife alias Stray See Estrae Straites anno 18. H. 6. ca. 16. Streme workes is a kinde of worke in the Stannaries for saith M. Camden titulo Cornwall pag. 119. Horum Stannariorum siue metallicorum operum duo sunt genera Alterum Lode-works alterum streme-works vocant Hoc in locis inferioribus est cùm Fossis agendis stanni venas sectantur fluuiorum alueos subinde deflectunt illud in locis aeditioribus cùm in montibus puteos quos Shafts vocant in magnam altitudinem defodiunt cuniculos agunt These you may read mentioned anno 27. H. 8. ca. 23. Stirks Strip See Estreapement Stuard alias steward senescallus seemeth to be compounded of Steede and ward and is a word of many applications yet alway signifieth an officer of cheife accoumpte 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 haue read is next to the kings and of that heighth that it might in some sort match the Ephori amongst the Lacedemonians The custome of our commonwealth hath vppon great consideration and policie brought it to passe that this high Officer is not appointed for any long time but onely for the dispatch of some especiall businesse at the arraignment of some Noble man in the case of treason or such like which once ended his commission expireth Of the high Steward of Englands Court you may reade Cromptons Iurisdiction fol. 82. I haue reade in an auncient manuscript of what credit I know not that this officer was of so great power in auncient times that if any one had sought iustice in the Kings court and not found it he might vpon complaint thereof made vnto him take those petitions and reseruing them to the next Parlament cause them there to bee propounded and not onely so but also in the presence of the King openly to rebuke the Chaunceler or any other Iudge or officer whom he found defectiue in yeelding iustice And if in case the Iudge or officer so reprehended did alledge that his defect grew from the difficultie of the case insomuch as he durst not aduenture vpon it then the case being shewed and so found the Lord steward together with the Constable of England there in the presence of the King and Parlament might elect 25. persons or more or fewer according to their discretion and the case or cases in question some Earles some Barons some Knights some Citizens and Burgesses which vpon deliberation should set downe what they thought iust and equal and their decree being read and allowed by Parlament did stand as a law for euer fardermore if the Chaunceler or other Iudge or officer could not well approue that the delay of iustice complained of grew from iust difficultie by reason that the case in question was formerly determined by lawe or statute then might the steward on the Kings behalfe admonish him of his negligence and will him to be more carefull and studious Or if there appeared malice or corruption then the King and Parlament was wont to remoue him and assigne another of better hope to the place Lastly if the king had about him any such euill Counceller as aduised him to things vniust or vnanswerable to his Maiestie as tending either to the disherifon of the Crowne publike hurt or destruction of the subiect The office of the Steward was taking to him the Constable and other great men with some of the Commons and giuing notice to the King of their intention to send to that Counseler and will him to desist from misleading the king yea if need so required to charge him to stay no longer about him but to depart from the Court which if he neglected to performe then they might send to the King and will him to remoue him and if the king refused then they might take him as a publike enemie to the King and Realme seise on his goods and possessions and commit his body to safe custody vntill the next Parlament there to be Iudged by the whole kingdome examples are brought of Godwin Earle of Kent in the time of King Edward next before the Conquerour of Hubert Burgh Earle of the same County in the reigne of Henry the third and of Peter Gaueston in Edward the seconds daies But experience as I said hath found this officer more daungerous then profitable and therefore hath time taught though not wholly to suppresse him yet to limite him to particular occasion and to restraine his power Then is there the Steward of the Kings most honourable houshould anno 24. H. 8. cap. 13. whose name is changed to the name of great Master anno 32. eiusdem cap. 39 But this statute was repealed by anno prim Mar. 2. Parlam cap. 4 and the office of the Lord Steward of the Kings houshold reuiued where you may at large reade diuers things touching his office As also in Fitzh nat br fol. 241. B. Of this Officers auncient power reade Fleta lib. 2. cap. 3. There is also a Steward of the Marshalsea pl. cor fol. 52. anno 33. H. 8. cap. 12. To be short this word is of so great diuersitie that there is not a corporation of any accompt or house of any honour almost through the realme but it hath an officer toward it of this name A steward of a maner or of a houshold what he is or ought to be Fleta fully describeth lib. 2. cap. 71. 72. Straunger commeth of the French estranger i. alienare It signifieth in our Language generally a man borne out of the land or vnknowne but in the lawe it hath an especiall signification for him that is not priuie or a party to an act as a Straunger to a iudgement oldna br fol. 128. is he to whome a iudgement doth not belong And in this signification it is directly contrarie to partie or priuie See Priuie Submarshall submarescallus is an officer in the Marshal sea that is deputie to the chiefe Marshall of the Kings house commonly called the Knight Marshall and hath the custody of the prisoners there Cromptons Iurisdict fol. 104. He is otherwise called Vnder-marshall Subpoena is a writ that lyeth to call a man into the Chauncerie vpon such case onely as the common lawe faileth in and hath not prouided
sub aliorum testimonio faciet de his rebus This high Officer hath by vertue of his office at this day the nomination of the Escheatours yeerely throughout England and giueth the places of all customers controllers and searchers in all the ports of the Realme He sitteth in the chequer chamber and with the rest of the court ordereth things to the Kings best benefite He with the Barons may by statute stall depts of three hundred pounds and vnder And by commission from his maiestie he with others ioyned with him letteth leases for liues or yeares of the lands that came to the Crowne by the dissolution of Abbeys He by his office giueth warrant to certaine men to haue their wine without impost He taketh declaration of all the money payed into the Receipt of the Exchequer and of all Receiuers accompts Then is there a Treasurer of the kings houshold who is also of the priuie Councell and in the absence of the Steward of the Kings houshold hath power with the Controller and the Steward of the Marshalsea without commission to heare and determine treasons misprisions of treasons murder homicide and bloudshed committed within the Kings pallace Stawnf pl. cor lib. 3. cap. 5. In the statute anno 28. Rich. 2. cap. 18. anno 11. H. 7. cap. 16. mention is made of the Treasurer of Calis In Westm 2. cap. 8. of the Treasurer of the Exchequer anno 27. Ed. 3. stat 2. cap. 18. ann 35. Eliz. cap. 4. Of the Treasurer of the Nauie or Treasurer of the warres or garrisons of the Nauie anno 39. El. cap. 7. Treasurer of the Kings chamber anno 26. H. 8. cap. 3. anno 33 eiusdem cap. 39. Treasurer of the warres anno 7. H. 7. cap. prim anno 3. H. 8. cap. 5. Treasurer of the Chauncerie West parte 2. symbol titulo Fines sect 152. Treasurer of the Kings Wardrobe anno 15. Ed. 3. stat prim cap. 3. anno 25. eiusdem stat 5. cap. 21. whose office you haue well set foorth in Fleta lib. 2. cap. 14. Treasurer of the Countie for poore souldiers anno 35. Eliz. cap. 4. And most corporations through the kingdome haue an officer of this name that receiueth their rents and disburseth their common expences Treate commeth of the French traire i. emulgere and signifieth in the common lawe as much as taken out or withdrawne As a Iurour was chalenged for that hee might not dispend 40. pounds and for that cause he was treate by the Statute old na br fol. 159. that is remoued or discharged Breade of treate anno 51. H. 3. Statute of breade c. what it signifieth I cannot learne Trespas Transgressio is a French word signifiing as much as Mors obitus excessiss 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 vsed for any transgression of the lawe vnder treason felonie or misprision of treason or of felonie as may be gathered out of Stawnf pl. cor fol. 38. where he saith that for a Lord of the Parlament to depart from the Parlament without the kings licence is neither treason nor felonie but trespasse And againe fol. 31. saying that where it was wont before the statute made anno prim Ed. 2. called Statutum de frangentibus prisonam that the breach of prison was felonie if it were the Kings prison it is sithence but trespasse except the prisoner were committed for felonie But it is most commonly vsed for that wrong or dammage which is done by a priuate man to the King as in his Forest pl. cor lib. 2. cap. 18. or to another priuate man And in this signification it is of two sortes trespasse generall otherwise termed trespasse vi armis and trespasse especiall otherwise called trespasse vpon the case And this seemeth to be without force Termes of the Lawe Action vpon the case as appeareth by Kitchin fol. 176. The former I take to be called generall because it riseth from that generall ground in lawe that whatsoeuer is done by any priuate mans humour vi armis is an offence The later I call especiall because Kitchin calleth the other generall and another reason may be this because it springeth from a particular case or fact not conteined vnder any other generall head And the action lying for this trespasse is otherwise called an action vpon the case as may be gathered out of diuers places vnder the title Trespasse in Brookes his Abridgement How to distinguish the forme of these writs or actions See Fitz. nat br fol. 86. I. 87. H. I. In an action of trespasse this is perpetuall that the plaintiffe sieweth for dammages or the valew of the hurt cone vnto 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 armis and when vpon the case as may well appeare to him that shall peruse this title in Brooke But this is to be left to the experiēce of graue and skilfull pleaders I find moreouer in Kitchin fol. 188 that there is a trespasse locall and trespasse transitorie trespasse locall is that which is so annexed to a place certaine as if the Defendant ioyne issue vpon the place and trauers the place onely by saying Absque hoc that he did the trespasse in the place mentioned in the declaration and averre it it is enough to defeate the action Trespasse transitorie is that which cannot be defeated by the defendants trauers of the place saying without that I cōmitted the trespasse in the place declared because the place is not materiall Examples of both you haue set downe by Kitchin in the place aboue named to this effect trauers by Absque hoc of trespasse in batterie or goods brought in is transitorie and not locall as it is of trees cut or herbes And therefore in trespasse transitorie the place shall not make issue neither is it trauersable no more then is a trespasse vpon a case of an Assumption Bracton in his fourth booke cap. 34. num 6. diuideth transgressionē in maiorem minorem which place reade See also great diuersitie of trespasses in the new booke of Entries verbo Trespasse Triall triatio is vsed in our common lawe for the examination of all causes ciuill or criminall according to the lawes of our Realme 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 furder enacted by the authoritie aforesaid that all trials hereafter to be had awarded or made for any treason shal be had and vsed according to the due order and course of the common lawes of this Realme and not otherwise c. By this word triall saith Stawnf in that place some vnderstand