[46] Essonium, an Excuse. Sir Edward Coke derives the term from the French verb essonier or exonier. He tells us, it is all one with what the civilians call excusatio. Sir Henry Spelman mentions the same derivation, and adds, ex, privativum, soing, cura. The Greek word ἐξὸμνυσθαι has been proposed as another derivation, implying an excuse by means of an oath. The term occurs so early as the Assizes of Jerusalem, (c. 58.) So limited is the doctrine of Essoins in the present day, that it will here suffice to observe, there were five principal kinds in the reign of Henry the second; I say principal, because there were necessarily many others of less importance. These, as enumerated by Sir Edward Coke, were; 1. de servitio Regis. 2. In terram sanctam. 3. Ultra mare. 4. De malo lecti. 5. De malo veniendi; the two last being the same as those ex infirmitate de reseantisâ and ex infirmitate veniendi, so frequently mentioned by our author, in the present book. Essoins are said to have been derived to us from the Normans. (Vide Assises of Jerusalem, c. 58. le Grand Custum. de Norm. sparsim. Bracton 336. b. et seq. Fleta L. 6. c. 7. Mirror, 117. et seq. 2 Inst. 125. Spelm. Cowell. Les termes de la ley, &c. &c.)
[47] In affirmance of this period of time, see Articuli super chartas, c. 15. and Lord Coke’s comment. (2 Inst. 567.) The Norman code required the same period to render a summons lawful, Grand Custum. de Norm. c. 49. See also Bracton 334. a. and Fleta L. 6. c. 6. s. 11. 12.
[48] It seems from the Regiam Majestatem, that if the summons were made by one summoner, in the presence of lawful and sufficient witnesses, it was good. These witnesses were to verify the summons, before the defendant could be compelled to answer. (Reg. Maj. L. 1. c. 6.)
[49] Seisina “is borrowed of the French seisine, ‘possessio,’ and so it signifieth in our common Law.” (Cowell ad voc.) Craig concludes, that as we had the term, so we had the doctrine from the French. (Craig Jus Feud. L. 2. Dieg. 7. s. 1.) Sir Edward Coke and Sir Henry Spelman coincided with Cowell and Craig in the derivation. (Co. Litt. 17. a. Spelm. Gloss. ad voc.) The term, it seems, was used, both by the canonists and civilians. (Cowell ubi supra: vide also Index ad Anglo-Sax. LL. verb. saisiare and references there.)
[50] Vide Bracton 367. a.
[51] Vide F.N.B. 36. 37. Ed. 1687.
[52] Duodecimâ manu. The author of the commentaries renders this expression eleven, besides the principal, an interpretation which is more or less confirmed by the following authorities: Co. Litt. 295. a. 2. Inst. 44, and the Diversity of Courts, p. 324. On the other hand, Les Termes de la Ley, in describing the ceremony as applied to the very object of the text, expressly says, that the principal should be accompanied by twelve. (Ibid. ad voc. ley.)
Bracton, when treating of the subject, employs the same expression, and observes, that the land was not to be replevied, before the tenant had waged his law, nor, if he failed in waging it; and he lays it down, that the Tenant could not wage his Law by means of an Attorney constituted for that purpose, but must do it personally. (Bracton 366. a. 410. a.) As to the origin of waging Law, the reader may consult Cowell ad voc. Law and les Termes de la ley ubi supra and Bl. comm. 3. 341. &c.
Before we quit this chapter, it may not be amiss to observe, that Sir Edward Coke refers to it to show, that previous to Magna Carta, he that would make his Law in any Court of Record, must bring with him fideles Testes. (Co. Litt. 168. b.)
[53] Bracton tells us, that it was not necessary that the compurgators should be of the same rank as their Principal: it was sufficient if they were trust-worthy, and of good characters. (Bracton 410. a.)