high way ouerflowne with water for default of scowring a ditch which he and they whose estate he hath in certain land there haue vsed to scower and cleanse A. may trauerse either the mater viz. that there is no high way there or that the ditch is sufficiently scowred or otherwise he may trauers the cause viz. that he hath not the land c. or that he and they whose estate c. haue not vsed to scoure the ditch Lamb. Eirenarcha lib. 4. cap. 13. pag. 521 522. Of Trauers see a whole chapter in Kitchin fol. 240. See the new booke of Entries verbo Trauers Treason traditio vel proditio commeth of the French trahison i. proditio and signifieth an offence committed against the amplitude and maiestie of the commonwealth West parte 2. symbol titulo Inditements sect 63. by whom it is there diuided into High treason which other call altam proditionem and petit treason High treason he defineth to be an offence done against the securitie of the common wealth or of the Kings most excellent Maiestie whether it be by imagination word or deed as to compasse or imagine treason or the death of the Prince or the Queene his wife or his sonne and heyre apparent or to deflowre the Kings wife or his eldest daughter vnmaried or his eldest sonnes wife or leuie war against the King in his Realme or to adhere to his enemies ayding them or to counterfeit the Kings great Seale priuie Seale or money or wittingly to bring false money into this Realme counterfeited like vnto the money of England and vtter the same or to kill the Kings Chaunceler Treasurer Iustice of the one bench or of the other Iustices in Eyre Iustices of Assise Iustices of oyer and terminer being in his place doing of his office anno 25. Ed. prim ca. 2. or forging of the Kings seale manuell or priuy signet priuy seale or forrein coine current within the Realme anno 2. Mar. cap. 6. or diminishing or impairing of money current an 5. Elizab. ca. 11. anno 14. El. ca. 3. 18. Elizab. ca. pri and many other actions which you may read there and in other places particularly expressed And in case of this treason a man forfeiteth his lands and goods to the King onely And it is also called treason Paramount anno 25. Ed. 3. cap. 2. The forme of Iudgement giuen vpon a man conuicted of high treason is this The Kings Sergeant after the verdict deliuered craueth Iudgement against the prisoner in the behalfe of the King Then the Lord Steward if the traitour haue bene noble or other Iudge if he be vnder a peere saith thus N. Earle of P. For so much as thou before this time hast bene of these treasons indited and this day arraigned for thee same and put thy selfe vpon God and thy peeres and the Lords thy peeres haue foūd thee guilty my Iudgement is that thou shalt from hence be conueied vnto the Tower of London whence thou camest and from thence drawne through the middest of London to Tiburne and there hanged and liuing thou shalt be cut downe thy bowels to be cut out and burnt before thy face thy head cut off and thy body to be diuided in foure quarters and disposed at the Kings Maiesties pleasure and God haue mercy vpon thee Petit treason is rather described by examples then any where logically defined as when a seruant killeth his master or a wife her husband or when a secular or religious man killeth his prelate to whom he oweth faith and obedience And in how many other cases petit treason is committed See Cromptons Iustice of peace And this maner of treason giueth forfeiture of Escheats to euery Lord within his owne fee anno 25. Ed. 3. cap. 2. Of treason see Bracton lib. 3. tract 2. cap. 3. nu pri 2. Treason compriseth both high and petit treason anno 25. Ed. 3. stat 3. cap. 4. Treasure troue The saurus inuentus is as much as in true French Tresor trouuè i. treasure found and signifieth in our common law as it doth in the Ciuile law idest veterem depositionem pecuniae cuius non extat memoria vt iam dominum non habeat l. 31 § prim Π. de acquir rerum Dom. Neere vnto which definition commeth Bracton lib. 3. tract 2. cap. 3. num 4. And this treasure found though the ciuill lawe do giue it to the finder according to the lawe of nature yet the lawe of England giueth it to the King by his prerogatiue as appeareth by Bracton vbi supra And therefore as he also saith in the sixth chapter it is the Coroners office to enquire therof by the countrie to the Kings vse And Stawn pl. cor lib. pr. cap. 42. saith that in auncient times it was doubtfull whether the concealing of treasure found were felonie yea or not and that Bracton calleth it grauem praesumptionem quasi crimen furti But the punishment of it at these dayes as he proueth out of Fitzh Abridgment pag. 187. is imprisonment and fine and not life and member And if the owner may any way be knowne then doth it not belong to the kings prerogatiue Of this you may reade Britton also cap. 17. who saith that it is euery subiects part as soone as he hath found any treasure in the earth to make it knowne to the Coroner of the countrie or to the Bayliffes c. See Kitchin also fol. 40. Treasurer thesaurarius commeth of the French tresorier i. quaestor praefectus fisci and signifieth an Officer to whom the treasure of another or others is committed to be kept and truly disposed of The chiefest of these with vs is the Treasurer of England who is a Lord by his office and one of the greatest men of the land vnder whose charge and gouernment is all the Princes wealth contained in the Exchequer as also the checke of all Officers any way employed in the collecting of the Imposts tributes or other reuenewes belonging to the Crowne Smith de Repub. Anglor lib. 2. cap. 14. more belonging to his office see ann 20 Ed. 3. cap. 6. anno 31. H. 6. cap. 5. anno 4. Ed. 4. cap. pri anno 17. eiusdom cap. 5. anno prim R. 2. cap. 8. anno 21. H. 8. cap. 20. anno prim Ed. 6. cap. 13. Ockams Lucubrations affirme that the Lord chiefe Iustice had this authoritie in times past and of him hath these words Iste excellens Sessor omnibus quae in inferrore vel superiore scacchio sunt prospicit Ad nutum ipsius quaelibet officia subiecta disponuntur sic tamen vt ad Domini Regis vtilitatem iuste perueniant Hic tamen inter caetera videtur excellens quod potest his sub testimonio suo breve Domini Regis facere fieri vt de thesauro quaelibet summa liberetur vel vt computetur quod sibi ex Domini Regis mandato praenouerit computandum vel si maluerit breve suum
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
deliberandas quandoque ad vnicam vel duas non plures And by this meanes the Iustices of both benches being iustly to be accounted the fittest of all others and others their assistants as also the Sergeants at law may be imployed in these affaires who as grauest in yeares so are they ripest in iudgement and therefore likest to be voide of prociality for being called to this dignity they giue ouer practise anno 8. R. 2. cap. 3. but this alway to be remembred that neither Iustice of either bench nor any other may be Iustice of Assise in his owne country anno 8. Rich. 2. cap. 2. anno 33. H. 8. cap. 24. lastly note that in these daies though the selfe same men dispatch busines of so diuers natures and all at one time which were wont to be performed by diuers and at seuerall times yet they doe it by seuerall commissions Cromptons Iurisdictions fo 210. For those who be in one word called Iustices of circuit and twice euery yeare passe by two and two through all Englād haue one cōmission to take Assises another to deliuer Goales another of oyer and terminer That Iustices of Assise and Iustices in Eyre did aunciently differ it appeareth an 27. Ed. 3. cap. 5. and that Iustices of Assise Iustices of goale deliuery were diuerse it is euident by anno 4. Fd. 3. cap. 3. The oath taken by Iustices of assise is all one with the oath taken by the Iustices of the kings bench Ould abridgement of statutes titulo Sacramentum Iusticiariorum See Oath Iustices of oyer and terminer Iusticiarii ad audiendum terminandum were Iustices deputed vpon some especiall or extraordinary occasion to heare and determine some or more causes Fitzherberd in his natura beruium saith that the commission d' oyer and terminer is directed to certaine persons vpon any great assembly insurrection hainous demeanure or trespasse committed And because the occasion of granting this commission should be maturely wayed it is prouided by the statute anno 2. Ed. 3. cap. 2. that no such commission ought to be graunted but that they shal be dispatcheo before the Iustices of the one bench or other or Iustices errāts except for horrible trespasses that by the especial fauour of the King The forme of this cōmission see in Fitzh natura breu fol. 110. Iustices in Eyre Iusticiarii itinerantes are so termed of the French Erre i. iter which is an old word as a grand erre i. magnis iteneribus prouerbially spoken the vse of these in auncient time was to send them with commission into divers counties to heate such causes especially as were termed the plees of the crowne and therefore I must imagine they were so sent abroad for the ease of the subiects who must els haue beene hurried to the kings bench if the cause were too high for the countie court They differed from the Iustices of oyer and terminer because they as is aboue said were sent vpon some one or fewe speciall cases and to one place whereas the Iustices in Eyre were sent through the prouinces and counties of the land with more Indefinite and generall commission as appeareth by Bracton lib. 3. cap. 11. 12. 13. and Britton cap. 2. And againe they seeme to differ in this because the Iustices of oyer and terminer as it is before said were sent vncertainly vpon any vproare or other occasion in the country but these in Eyre as M. Gwin setteth downe in the preface to his reading were sent but euery seuen yeare once with whome Horn in his myrrour of Iustices seemeth to agree lib. 2. cap. queux poient estre actours c. and lib. 2. c. des peches criminels c. al suyte de Roy c. and lib. 3. c. de Iustices in Eyre where he also declareth what belonged to their office These were instituted by Henry the 2. as M. Camden in his Britannia witnesseth pag. 104. And Roger Hoveden parte posteri annalium fo 313. b. hath of them these wordes Iusticiarij itinerantes constituti per Henricum secundum i. qui diuisit regnum suumin sex partes per quarum singulas tres Iusticiarios itinerantes constituit quorum nomina haec sunt c. Iustices of Gaol deliuery Iusticiarii ad Gaolas deliberandas are such as are sent with commission to heare and determine all causes apperteining to such as for any offence are cast into the Gaol part of whose authoritie is to punish such as let to mainprise those prisoners that by lawe be not bayleable by the statute de finibus cap. 3. Fitzh nat br f. 251. I. These by likelyhoode in auncient time were sent to countries vpon this seuerall occasion But afterward Iustices of Assise were likewise authorised to this anno 4. Ed. 3. cap. 3. Their oath is all one with other of the kings Iustices of either bench Ould Abridgement of statutes titulo Sacramentum Iusticiariorum See Othe Iustices of labourers were Iustices appointed in those times to redresse the frowardnesse of labouring men that would either be idle or haue vnreasonable wages See anno 21. Eduardi 3. cap. primo anno 25. eiusd cap. 8. anno 31. eiusdem cap. 6. Iustices of Nisi prius are all one now a daies with Iustices of Assises for it is a common Adiournment of a cause in the common plees to put it off to such a day Nisi prius Iusticiarii venerint ad eas partes ad capiendas Assisas and vpon this clause of Adiournment they are called Iustices of Nisi prius as well as Iustices of Assises by reason of the writ or action that they haue to deale in their commission you may see in Cromptons Iurisdsctious fol. 204. yet M. Crompton maketh this difference betweene them because Iustices of Assise haue power to giue iudgement in a cause but Iustices of Nisi prius only to take the verdict But in the nature of both there functions this seemeth to be the greatest difference because Iustices of Nisi prius haue to deale in causes personall as well as reall wheras Iustices of Assise in strict acception deale only with the possessory writs called Assises Iustices of trial bastō alias of trayl baston were a kind of Iustices appointed by King Edward the first vpon occasion of great disorder growne in the Realme during his absence in the Scottishe and French warres they are called in the ould nat bre f. 52. Iustices of triall Baston but by Holynshed and Stow in Edw. pri of Traile baston of trailing or drawing the staffe as Holinshed saith Their office was to make inquisition through the Realme by the verdict of substantiall Iuries vpon all officers as Mayors Shyreeues Bailifes escheatours others touching extortion briberies and other such greeuances as intrusions into other mens lands and Barratours that vsed to take mony for beating of men and also of them whom they did beate by meanes of which inquisitions many were punished by death many by ransome and so the rest flying the