from their lawful defence how persons of common trust as Marriners Inholders and such like are bound by Lawe to restore such things as they haue taken in charge to kéepe The second parte being distributed into viij bookes yéeldeth matter of Iudgement as who may be Iudge and who not where and before what Iudge euery one is to be conuented how many kindes of Iudgement there are Ciuile Criminall and mixt of both by what actions things that are ours by right of inheritance may be chalenged whether they be corporall or incorporall what action the Lawe affordes if any man conceale that is ours that we may come to the sight thereof what action lyeth against him who by euill persuasions or leude inticement hath corrupted another mans seruant or hauing run away by his ill counsell hath concealed him from his master what prouision the Lawe hath against Dice-play and such as kéepe Dicing houses how he is to be punished which being put in trust to measure any mans ground makes a false report of the measure thereof that no man hinder a corse of a dead bodie to be carried to buriall or to be buried in such places as he and his predecessors haue right vnto or to build a Tombe to that purpose and beautifie the same The third part imbracing xij bookes concerneth personall actions which rise not of cause of right or possession but of couenant and obligation as things credited or lent in a certaine summe the meanes how to recouer the same if it be denied that is by oath of the partie that denieth it vnlesse hee may bee conuicted either by witnesse or instrument that hee hath forsworne himselfe how many kinds of oaths there are voluntarie out of Iudgement necessarie exacted by the Iudge in doubtfull cases where otherwise there wanteth proofe to manifest the trueth Iudiciall such as one partie offereth to another in Iudgemēt and cannot be refused without iust cause and lastly that which the Iudge offereth to the plaintife as concerning the value of the thing which is in strife or the charges that he hath bin at in recouering of the same what exceptions there lyes against Obligations as that which for cause was giuen and cause did not follow that the cause was dishonest for which that is challenged that was giuen that the summe was not due which was paid and therefore not to be exacted but to be repaid actions for things lent for a certaine time and to a certaine vse actions for things pawned actions that either passengers haue against Mariners for the goods or ware that they haue brought into the ship or Mariners haue against Passengers for their fraught actions of eiectment wherein the passengers and Mariners are bound each to other for contribution of the losses of such things that haue béene cast into the sea in the time of a storme or tempest according to the qualitie and quantitie of the goods they haue in the ship actions whereby masters are bound to answere for their seruants contracts and fathers for their childrens in such things or negotiation as they haue put them in trust withall sauing where the child boroweth money without his fathers priuitie for riot and for such purpose as his father hath no vse thereof Remedies for women when by weaknesse of their sexes and lack of councell they haue inwrapt themselues in suertiship for other men action of compensation where a debt is demaunded for which an equiualent portion hath béene receiued in lieu or satisfaction thereof actions of mandate or commaundement wherein one hath done some worke or laid out some money vpon an other mans mandate or word and yet when hée requireth allowance thereof it is denied him actions of societie or fellowship wherein either the societie is required to bee maintained and the money put in common banck to be diuided actions of bargaine and sale either pure or conditionall the bargaine being once made the losse and gaine that after happeneth is the buyers vnlesse the seller retain some further right in the thing sold vnto himselfe actions of letting or setting either of the vse of a person or the vse of a thing vpon a certaine hyer actions of change and such like The fourth part being digested into eight bookes ministreth actions for such things as are accessarie to contracts such as pawnes and pledges are which are giuen for the better securitie of the contract actions for restitution wherin a man hath béene deceiued in a bargaine more then the halfe value of the thing sold or wherein the seller hath concealed some fault in the thing sold which he ought by Law to haue reuealed or promised some qualitie in the same which was not in it or where the thing sold hath béene euicted by an other out of the hands of the buyer himselfe vsing all iust defence of Law for himselfe actions for interest and vsurie and how many kinds thereof there bée that men vse by land lucratorie compensatorie and punitorie whereof the first is altogether vnlawfull the other two allowed where either iust gain ceaseth or iust losse followeth vpon that occasion that which is lent is not paide according to the day of couenant Sea vsurie otherwise called nautick vsurie is greater then land vsurie and yet allowed by Law for that the seafaring man takes vpon himselfe the daunger of the transporting thereof and securing the same at such place as it is appointed to be deliuered In deciding of matters of controuersie the Law procéeds sometimes by witnesses sometimes by instruments sometimes by presumptions where knowledge or ignorance of fact or Law is presumed Spousals are mutuall promises of a future marriage marriage is a lawfull coopling together of man and woman the companie and societie of the whole life the Communion of all Diuine and humane rites and things and of one and the same house wrought by the consent and mutuall good will of the one towards the other in espousals and marriages is to bée considered who is to bee ioyned together at what yeares and by whose consent there doth wayte and attend vpon Marriages Ioyntures Dowries and such like and sometimes Diuorse which is so called of the diuersitie of the mindes of those that are married because such as are diuorsed goe one a diuerse way from the other The causes whereupon Diuorces growe are Adultery deadly hatred one toward another intollerable crueltie néerenesse of kindred and affinitie in degrées forbidden impotencie on the one side or the other actions of Dowrie after diuorce or seperation actions against a mans wife imbeaselling away his goodes actions against a husband disclayming his owne childe and his wife being with child if he make doubt therof meanes how and where she shall be kept vntill her deliuery so that no false birth shall be put in place of the true childe or that she abuse not her husband or the next heire with a false shewe of that which is not Tutelage and gouernment of children vnderage which is either
to the owner of the ground so that he gather the same within thrée dayes after they are so falne for otherwise the law presumes he makes no reckoning of them and fruites lying vpon the ground doe easily putrifie That a man may challenge his children out of an other mans hand that holdeth them from him That a Tenant after his Lease is expyred may remoue quietly carry away such things from the farme as he brought thither so that the rent be paied and those things which he brought thither were not bound for the paiment thereof Actions are taken away and possessions maintayned by exceptions prescriptions preiudices which themselues are many times in stéed of actions as is the exception de re indicata which is an exception that determineth the cause in controuersie Of Exceptions some are perpetuall and peremptory some are temporal and dilatory Perpetuall and peremptory are they which euermore haue place can nerer be auoyded Temporall and dilatory are they which are not euermore in place but may be auoided Exceptions are alleaged either because that is done which ought to be done or that is done that ought not to be done or that is not done that ought to be done Of prescriptions likewise some are perpetuall some temporall the effect of eyther of them is to determine the actioney ther in the maner of doing or by the time when it was done or by the place where it was done or by some other like circumstance An Obligation is a bond of the Law whereby a man is necessarily bound to pay some thing to an other man Obligations arise eyther out of bargaines betwéene man man or out of some offence that is done Obligations by bargaines are procured eyther by some thing that passeth betwéene the parties that doe contract or else is effected by words or consent Out of obligations spring actions which are nothing else but a right to prosecute that in iudgement which a man pretendeth to be due vnto him whereof there are two sorts of which one is a challenge for right of a thing due thother a sute against a person for some offence or trespas done The seauenth last part being deuided into sixe Bookes treateth of Obligations which stand in wordes and their effect how far two or more principall debtors are bound to the creditor in the whole or euery one for his owne part Of Suerties and how far they are bound and whether the discharge of the one be the release of the other by how many waies Obligations by wordes are dissolued or released by renouation by payment by acceptation of the debt not paid as if it were paid Of Obligations some are ciuill as those which haue béene heretofore handled some Pretorian or pertayning to the Chauncery as those whereby Tutors Curators Proctors enter inte land vnto a child his state shall be safe that is committed to their hands That that shall be paied which the Iudge ceaseth That the Plaintife shall ratifie and allowe that which his Proctor shall doe for him in iudgement and such like Criminall Iudgements are priuat or publike that is they are commenced eyther vpon priuat offences or vpon publike faults and suits Priuat offences concerne priuat mens reuenge and iniuries Publike the reuenge or iniurie of the whole state Priuat offences which had ordinarie procéedings and ordinatie punishment were many among which Theft is the chiefest which is a deceitfull fingering of an other mans goodes with intent to gaine eyther the thing it selfe or the vse or possession thereof so that the mind alone maketh not theft but the act ioyned to the mind be the quantity neuer so smal Of Theftes some are manifest other not manifest manifest is that wherein the offender is eyther taken in the déed doing or taken before he could cary away the thing stolne thither whether he entended the punishment whereof was fower double the value of that which was stolne Not manifest was that wherein the party offending was not taken in the déed doing and the paine thereof was the double of that which was purloyned or taken away If any pilfery or theft be done in a Ship Tauerne or Inne the Master of the ship tauerne or Inne is to answere double the value thereof if the same be done by himselfe or their selues or any of their mariners or seruants for it behoueth them to haue honest men whom they are to imploy in such seruices But if it be done by any of the passengers or guests of the house the owners of the ship tauerne or Inne are not to answere for the same for they cannot turne away such guests as come into their house neyther in all likelyhood know they the qualitie or condition of their guests If any man priuely vnwitting the owner thereof cut downe hacke or barke any trée of any sort whatsoeuer or those that are of the nature of trées as Iuey réedes willows so that they be spoyled he is to answere the double value of that he hath cut downe spoiled and further if it be a Vine trée to be punished as a robber He that taketh any thing away from another by violence is to be punished in the worth foure fold for that it is a sin more grieuous then theft If any man vpon any ill intent make a Tumult wherby any hurt commeth to any man hee shall answere double of that the party is harmed in If any vpon a burning of a house or the fall thereof or vpon a shipwrack or the spoiling of a boat or ship steale any thing away or being put in trust to kéepe any thing thereof conceale the same he shall pay the foure double of the same but if any man set the same a fier himselfe he is either to be cast out to wild beasts or is to be burnt with the same fier he went about to burn another with If any haue spitefully contumeltously iniured another man his wife or children in déed word or writing they are to forfait so much as the partie grieued shall estéem himselfe iniured by or the Iudge shall tax it at A famous Libell is where a man hath of malitious purpose writ compounded or set out any thing to the infamie of another without a name or with a name and the punishment therof is death and anciently was that he lost the power or libertie to make a Will the like punishment followeth him that hauing found an infamous Libell doth not by and by spoyle the same that the knowledge thereof come not abroad especially where the matter thereof is capitall or worthy death Extraordinarie crimes are those which haue no ordinarie punishment appointed them but are arbitrarie at the Iudges appointment such as are Sollicitors of other folkes wedlockes and Maids chastities although they misse of their purpose such as of purpose cast myre durt or any like filth vpon another to the intent to disgrace him such as being with child of purpose cause themselues to
his credit salued by recompence in money as the Iudge or Iurie vpon proofe of his worth and place shall esteeme it and tax it In these Actions he that sued ad publicam vindictam and had followed it so far as that he had brought it to a Recantation or a publicke disgrace could not haue recompence of his credit by money saue onely in case of commutation neither hee that had got his credit valued by money could haue a publike disgrace also inflicted for his satisfaction but what way he had chosen with that he must haue rested contented for that irèful mens wraths otherwise would neuer haue bin satisfied the prosecution of these actions otherwise wold be cōfounded These two kinds of procéedings the Princes and Sages of former ages seeme to haue sorted to the two kindes of Iurisdiction that are amongst vs the one Spirituall the other Temporall and therefore the Law of the Land it selfe saith in a cause of Diffamation when money is not demanded but a thing done for punishment of sin which is all one as when the Ciuilians say when it is done ad publicam vindictā it shall be tried in the spiritual courts wherupon by argument of cōtrary sense it followeth that where the punishment of sin is not required but amends in money is demanded there it is to be tried in the temporal Court for the law would that euery man should haue his remedy agréeable to reason in what sort him best liketh And therfore be the fault what it may be that the words of the Diffamation do sound vnto as long as it stāds but in words the party doth not take vpon him to iustifie the matter that is comprised vnder those words and doth séeke but for the punishment of the slanderous words only so long it is to be tryed at the Spirituall Law for the Law speaketh in generall in cases of Diffamation where punishment of sin only is required so that where a man is called Traitor Felon or Murtherer or any other crime belonging vnto the Cōmon Law being euery one of them words of great diffamation so the partie therein séeke punishment onely and not his priuat interest there the Spiritual Law is to hold plea thereof For where the Law doth not distinguish there neither ought we to distinguish but the Law hath said in general that causes of Diffamation whose prosecution is thus qualified doe belong vnto the triall of the spiritual Law and therfore euen those cases before remembred where the party followeth this kind of prosecution ought by that Law to belong vnto the Spirituall court as on the contrarie side Spiritual causes of Diffamation being propounded to a pecuniarie end ought to be ordered in a Temporall Court But where any man takes vpon him to iustifie the crime that he hath obiected there either Court is to hold plea of the crime that properly belongeth to that Court for that now no longer words are in question but matter is in tryal whether the partie diffamed hath indéed committed that offence that he is charged withall or no which can bee tried in no other Court than in that to which it doth properly appertaine And that this was the Course aunciently held in matters of diffamation betwéene the Ecclesiasticall and Common Law it is manifest by the Statute of 2. of Edward the 3. chapter 11. 2. Edw. 3. c. 11. where although the Statute taxeth the peruerse dealing of such as when they had béene indicted before the Sherifes in their Retorne after deliuered by Inquest before the Iustice of the Assise did sue the indictors in the Spiritual Court surmising against them that they had diffamed them and therefore in that case forbad the like suits for that Iustice thereby was hindered and many people were feared to indict Offenders yet that Statute plainly sheweth that in all other cases of Diffamation rising out of Temporall crimes beside this the Ecclesiasticall Law had the cognisaunce and that this was forbidden it was not for that that words of this nature could not be censured at the Ecclesiasticall Law when punishment of sin only is required but for that it was not fit that those things which had béene once ordered in one Court should be called againe to examination in another Court and therefore the generall procéeding in matters of Diffamation is not there prohibited but the particuler crossing of matters after iudgement is there reprehended So that that distinction I haue here before spoken of which taketh vpon it to determine when a case of Diffamation is of the Temporal cognisance when of the Ecclesiastical cannot here take place for that it is contrarie to the former Statute or Decrée that diuided these cases into Temporall or Ecclesiasticall cognisance by the varietie of the prosecution thereof and that it is contrarie to the auncient practise that hath confirmed this prosecution in either Court but specially in the Ecclesiasticall Court which hath still holden the triall of such Diffamations wherein sin hath béene onely sought to be punished vntill now of late that men haue stept ouer the bankes of their authoritie and confounded either Iurisdiction with the promiscuous acts one of another when as the Statute it selfe is plaine that the authors of this Statute or Decrée whethersoeuer you call it which set these bounds to either law in procéeding vpon matters of Diffamation respected not so much the qualitie of the crime vpon which the Diffamation grew as the manner of procéeding therein ayming in the one at publicke vindict which is to be sought out of the Ecclesiasticall law and in the other at priuat interest which is to be had out of the Temporall Law Neither is an Action of Diffamation a matter of so light esteeme or qualitie a mans fame or good name being in equal ballance with his life as that it should be drawne away to be attendant on any other action that is of smaller weight or importance than it selfe is for this is one of those Actions which for the speciall preheminence thereof are called Actiones praeindiciales that is such that draw smaller causes vnto them but themselues are drawne of none other but such as are like principal or greater than themselues are So that vnlesse the manner of procéeding bring these causes vnder the compasse of the common Law in such sort as I haue before shewed the coopling of them with another matter of the same Law will hardly bring them vnder the triall thereof For that there be few actions greater than it selfe is so that if the crime be Ecclesiasticall howsoeuer it toucheth a Temporall cause the tryall shall be still at the Ecclesiasticall Law And the same that I say of Diffamations rising out of Ecclesiasticall crimes I hold also to bee true in Diffamations springing out of Temporall crimes where punishment is required for the offence committed and amends in money is not demaunded vnlesse happely that grow of penance inioyned which the offender wil redéeme by
ought to be od in number that if they disagrée that which is concluded by the greater part may preuaile An arbiterment is a power giuen by the parties Litigant to some to heare and determine some matter in suite betwéene them to pronounce vpon the same to which they are to bind themselues vnder a penaltie to stand The first Booke hauing set out the first obiect of the Law which standeth in the persons who make vp the Iudgemēt as in the person of the Iudge himselfe the Aduocats Proctors and Clients there followeth in the second booke the second obiect of the same which is the Iudgemēts themselues which are to be commenced by a Citation that in a competent court fit for the same by a Libell offered vp in the court by the plaintife to the Iudge which is to containe the sum of that which is required in Iudgemēt where if the defendant do againe reconuent the plaintife he is to answere albeit the defendant be not of that Iurisdiction the libel being admitted the defendant is to ioyne issue and yet before either of them enter any further into the cause that there may be faire and sincere dealing in the same that all suspition of malitious dealing therin may be taken away each of them are to take an oath the Plaintife that hee doth not of any malice prosecute the suite against the Defendant or the Defendant of any malice maintain the suit against the plaintife but that they verily beléeue their cause is good and that they hope they shall be able to prooue the one his libell the other his exceptions if he shall put in any into the Court. The cause being begun delaies are often graunted if either there come any Holyday betwéene or any other like iust cause bee offered as for producing of witnesses and such like If there be no iust cause of delay then the Iudge is to goe on in the due course of Law prouided alwaies that more bee not demaunded by the plaintife than is due and that the cause possessarie bee handled before the petitorie and that hee that is spoiled bee first and before all things restored to that thing or place whereof he was spoyled or from which he was put fro yea though he haue nothing els to alledge for himselfe beside the bare spoliation it selfe If the one side or other wilfully or deceiptfully decline Iudgement the Iudge is to put the other in possession of that which is in demaund or at the lest to sequester the fruits and possessions of that which is in controuersie but if both parties appeare and ioyne issue affirmatiuely then is it but a question of Law and not a fact neither doth there remaine ought els to bee done by the Iudge but that hee giue sentence against him that hath confessed it and put his sentence in execucion But if issue be ioyned negatiuely then is the plaintife to proue his Libell so far as it consists in fact by witnesses which are to be compelled by Law if they will not come or appeare voluntarily by publicke and priuat instruments by presumptions by coniectures by oath which being done the Defendant in like sort is to bee admitted to proue his exceptions and cleere his prescription if hee bee able to alledge any in which hee is Plaintife neither is hee bound thereto before the Plaintife haue perfected and prooued his owne right After proofes are brought on either side and the same thoroughly disputed on by the Aduocats the Iudge is to giue sentence which he is to frame according to the Libell and proofes formerly deduced in the cause The sentence being giuen Execution is to bee awarded vnlesse there be an appeale made from it within ten daies by the Law but fiftéene daies by the Statute of this Land from the time the partie against whom sentence was giuen had knowledge thereof or vnlesse it be appealed incontinently at the acts and in writing before a publike notary or at the lest the partie against whom the sentence proceeded within due time take his iourney toward the higher Iudge to prosecute the same by whom the former sentence is eyther confirmed or infirmed in the second instance The third booke conteyneth such Ciuile matters and causes as are liable to the Ecclesiasticall Courts as the honest life or conuersation of Clerks and theyr comely comportment in all their demeanor with what women they are to cohabit and dwell with whereby they may be frée from all suspition of ill life and with whom not which of them may be maried by the law of the Canons and which not in what cases they may be allowed to be non resident and in what not and how such as are non residents may be called home vnto their cure and if they retorne not vpon processe sent out against them how they are to be punished namely by depriuation or sequestration of the fruits and commodities of their benefice Prebends and dignities are preferments for Clerkes but not for such as are idle or absent from the same without iust cause but if any Clerk or Minister be sicke and his disease be curable he is to receiue the benefit of his prebend or dignitie in his absence as though he were present but if it be contagious or vncurable then is he to be put from the exercise of his office and a helper or coadiutor to be ioyned vnto him and they both to be mayntained of his stipend Prebends or dignities are to be got by institution which are to be giuen by the Bishop or his Chauncelor or such other as haue Episcopall iurisdiction without which neither any benefice is lawfully gotten or can lawfully be reteyned Benefices not void ought neyther to be granted neyther to be promised but such as are void ought to be granted wythin sixe monthes after knowledge of the voydance thereof otherwise the grant of them diuolueth commeth vnto the superiour he that causeth himselfe to be instituted into a benefice the Incumbent therof being aliue himselfe is to be deposed from his orders While any Benefice or Bishopricke is void nothing is to be changed or innouated in it and such gifts sales or changes of Ecclesiastical things as are made by the Bishop or any other like Prelate wythout the consent of the Chapiter are void in Law and such Benefices as do become void are to be bestowed without any impayring or diminution of the same In what case the goods and possessions of the Church may be alienated and in what not and that such things as are alienated be alienated by the greater part of the Chapiter otherwise the alienation is void What goods of the Church may be lent what sold what bought what changed what demised or let to lease what Morgaged or let to pawne After these follow Tractats of last Wils and Testaments of succession by way of Intestate of Burials of Tythes first Fruits and Offerings Of Monkes and their state in sundry sorts of the
the same word Elsewhere is to be ment and conceiued of the places of remoue the Popes vsed in those dayes being somtimes at Rome in Italy sometimes at Auignion in France semetimes in other places as by the date of the Bulls and other processe of that age may be séene which seuerall remoues of his gaue occasion to the Parliament of inserting the word Elsewhere in the bodie of those Statutes that thereby the Statutes prouiding against Processe dated at Rome they might not bée eluded by like Processe dated at Auignion or any other place of the Popes aboade and so the penaltie thereof towardes the offender might become voyd and be frustrated Neyther did the Lawes of this Land at any time whiles the Popes authoritie was in his greatest pride wythin this Realme euer impute Praemunire to any Spirituall Subiect dealing in anie Temporall matter by any ordinarie power wythin the land but restrained them by Prohibition only as it is plaine by the Kings Prohibition wherein are the greatest matters that euer the Clergie attempted by ordinarie and domesticall authoritie and yet are refuted only by Prohibition But when as certeine busie-headed fellowes were not content to presse vpon the kings Regall iurisdiction at home but would séek for meanes for preferment by forrein authoritie to controul the Iudgements giuen in the kings Courts by processe from the Pope then were Premunires decréed both to punish those audacious enterprises of those factious Subiects and also to check the Popes insolencie that he should not venter hereafter to enterprise such designements against the King and his people But now since the feare thereof is past by reason all entercourse is taken away betwéene the Kings good Subiects and the Court of Rome it is not to be thought the meaning of good and mercifull Princes of this land is the cause of these Statutes being taken away the effect thereof shall remaine and that good and dutifull subiects stepping happily awry in the exercise of some part of their Iurisdiction but yet without preiudice of the Prince or his Regall power shall be punished with like rigor of Law as those which were molesters gréeuers and disquieters of the whole estate But yet notwithstanding the edge of those Premunires which were then framed remaine sharpe and vnblunted still against Priests Iesuits other like Runnagates which being not content with their owne natural Princes gouernment séek to bring in againe that and like forrein authoritie which those Statutes made prouision against but these things I leaue to the reuerend Iudges of the land and others that are skilfull in that profession onely wishing that some which haue most insight into these matters would adde some light vnto them that men might not stumble at them and fall into the daunger of them vnawares but now to Prohibitions A Prohibition is a commaundement sent out of some of the Kings higher Courts of Records where Prohibitions haue bin vsed to be graunted in the Kings name sealed with the seale of that Court and subscribed with the Teste of the chiefe Iudge or Iustice of the Court from whence the said Prohibition doth come at the suggestion of the Plaintife pretending himselfe to be grieued by some Ecclesiasticall or marine Iudge in not admittance of some matter or doing some other thing against his right in his or their iudiciall procéedings commaunding the said Ecclesiasticall or marine Iudge to proceed no further in that cause if they haue sent out any censure Ecclesiasticall or Marine against the plaintife they recall it and loose him from the same vnder paine of the Kings high indignation vpon pretence that the same cause doth not belong to the Ecclesiasticall or Marine Iudge but is of the temporall cognisance and doth appertaine to the Crowne and dignitie Prohibitions some are Prohibitions of Law some other are Prohibitions of fact Prohibitions of Law are those which are set downe by any Law or Statute of this Land whereby Ecclesiasticall Courts are interdicted to deale in the matters therein contained such as are all those things which are expressed in the kings Prohibition as are also those which are mencioned by the second of Edward the sixt where Iudges Ecclesiasticall C. 13. 2. Edw. 6. are forbid to hold plea of any matter contrarie to the effect intent or meaning of the statute of W. 2. Capite 3. The statute of Articuli Cleri Circumspecte agatis Sylua Cedua the treaties De Regia Prohibitione the Statute Anno 1. Edwardi 3. Capite 10. or oght else wherein the Kings Court ought to haue Iurisdiction Prohibitions of fact are such which haue no precise word or letter of Law or Statute for them as haue the other but are raised vp by argument out of the wit of the Deuiser These for the most part are méere quirks and subtilties of law and therfore ought to haue no more fauour in any wise honourable or well ordered Consistorie than the equity of the cause it selfe doth deserue for such manner of shifts for the most part bréed nought else but matter of vexation and haue no other commendable end in them though they pretend the right of the Kings Court as those other Prohibitions of the law doe but the Kings right is not to be supposed by imagination but is to be made plaine by demonstration and so both the Statute of the 18. of Edward the third Capite 5. is where it is prouided no Prohibition shall goe out but where the King hath the cognisance and of right ought to haue and also by the forenamed Statute of Edward the sixt which forbids that any Prohibition shall bee graunted out but vpon sight of the libell and other warie circumstances in the said Statute expressed by which it is to bee intended the meaning of the Lawgiuers was not that euery idle suggestion of euery Attorney should bréed a Prohibition but such onely should bee graunted as the Iudge in his wisdome should thinke worthy of that fauour and of right and equitie did deserue it although as I must déeds confesse the Statute is defectiue in this behalfe for to exact any such precise examination of him in these cases as it is also in other points and is almost the generall imperfection of all statutes that are made vpon Ecclesiasticall causes but I feare me as emulation betwéene the two lawes in the beginning brought in these multitudes of Prohibitions either against or beside law so the gaine they bring vnto the Temporall Courts maintaineth them which also makes the Iudges they cesse not costs and damages in cases of of Consultation although the statute precisely requires their assent and and assignement therin because they would not feare other men from suing out of Prohibitions and pursuing of the same The Prohibitions of the law as haue beene before shewed are neither many nor much repined at because they containe a necessarie distinction betwéene Iurisdiction and Iurisdiction and imply the kings right and subiectes benefit but the
trauersable so it be not in Criminall matters where time and place is required that the accuser doe not wander from place to place with the iniurie of the accused for howsoeuer the place and the action is altered yet the truth of the cause remaineth one and the selfe same still and so far as concerning actions of Trouer in Admirall causes Now it doth follow that I should speak of like preiudices that grow to the same by actions of Trespas but those will I passe ouer for that in so small a Treatise as this is I cannot go ouer all and therefore will I only put the Reader in mind that there are more deuises rising out of the Common Law that infest the Admiraltie than one But now to Wils and Testaments wherein they are impeached For matters of Wills and Legacies they are so proper to the triall of the Ecclesiasticall Law of this Realme as the professors of the Common Law themselues do oftentimes confesse and say they haue no more to doe therewith than the Ciuilian hath to doe with the knowledge of the matters of Franktenement and yet euen these matters of Testaments Legacies although Prohibitions be not so frequent in them as they are in the rest of Ecclesiasticall causes yet they are not quite void of them and that in some points wherein the verie life essence of a Will doth stand For whereas the auncient Romanes knowing how subiect matters of Wils are to forgerie corruption on the one side and suppression concealment on the other side to méet with all craft subtilty whatsoeuer which might seize on them did most carefully prouide that there should be seuen witnesses at the least present at the making of euery Will Testament except it were in time of some generall plague or sicknesse when so many Witnesses could not conueniently be had together for feare of infection or if it were in the Countrie where there are small multitude of people and that those witnesses should be particulerly required to that purpose with diuers other obseruations and circumstances tending all to the safe and sure making thereof which the Ecclesiasticall Law altered afterward in sundry points for that many true Wills were many times ouerthrowen for want of those precise solemnities reduced the whole number of those seuen witnesses vnto two only agreeably to the Law of God the Law of Nations where that number of witnesses is allowed as competent to prooue any matter so that the same witnesses be honest credible persons such as whose faith is not doubted of The Common Lawyers because themselues in sundry matters very dangerously many times admit one witnesse giue him full credit and that in matters of great waight importance as though all should be squared to their rule and framed to their compasse If an Ecclesiasticall Iudge in the probate of a Will contrarie to the rules of his owne Law will not admit the testimonie of one witnesse they forthwith fling out a Prohibition against him as though he had done an offence against the Crowne and dignitie in that he doth not allow those number of witnesses in the Probate of a Will that the Common Lawes of this land allow almost in euery matter For aunswere to which if I should alleage the precise forme of the Ecclesiasticall Law which to the essence of a will requireth this number of two witnesses or else holdeth it not for a Will but in cases inter liberos ad pios vsus where the only hand of the Father or Testator without witnesses serueth for a Will so the same be knowen to be the Testators owne hand or so prooued by comparison I would think to wise men I had said sufficiently but I will not rest hereupon but will conuince themselues by themselues for doe they I pray you in their owne procéedings where a Law or Statute requires more witnesses than one content themselues with one witnesse alone yea doe they not in all cases where a certeine number of witnesses are appointed to prooue a fact by Law or statute furnish the cause with so manie witnesses as the case desires or else doe they not accompt the procéeding void And will they think themselues so precisely bound to the kéeping of the letter of the Common law and will they not suffer the Ciuilian in like maner to cleane fast to the obseruation of the Ciuile Law especially when it hath the consent of the Law of God the Law of Nations and is his Maiesties Ecclesiasticall Law of this land aswell as the other is his Temporall Law of the same I confesse it may be true many times which one man saith specially when there concur therewith many great and violent presumptions and the party that reporteth it is of good credit but dangerous it is to open this gap to the malice of men for euen so many things shall be obtruded to the Iudge for trueth which are stark lyes and many things shall be pretended to be gold in shew which in proofe and practize will L. iuris urandi §. Simili modo C. de Testibus be found to be no other thing but méere drosse And therefore well decréed the Emperor Constantine that no one mans testimonie should be heard though he were neuer so great a man in Court But perhaps some man will say if credit shall not be giuen oftentimes to one mans testimonie much wickednesse will passe away vnpunished for reply to which I aunswere it is better to let a bad man scape than to punish a good and although it be true if a man may excuse himselfe by deniall no man will be found guiltie so also it is true on the other side if it be ynough to condemnation to be charged by one man alone without any other witnesses no man shall be innocent and therefore the admittance of one witnesse in causes and the procéeding thereupon to iudgement is verie dangerous An other like bar to this they lay in against Ecclesiasticall procéedings in matters of Testament whereas an Ecclesiastical Iudge prooueth a Will wherein are mannors lands tenements and other like hereditaments bequeathed challenging this also to be of the Crowne and dignity as though the Ecclesiasticall Iudge thereby tooke vpon him to decrée which lands were deuisable by will and which not or would by his probat adde a strength vnto the Will to make the deuise good or bad whereas on the contrarie part the Ecclesiasticall Iudge by this act doth only testifie that such a person made such a will that the same was prooued before himselfe vnder his Teste for his last will testament but for the validitie of the Will it selfe and the Legacies deuises therein whether they were of lands or tenements or of goods or chattels the Probat it selfe worketh nothing but leaueth that to the Law Common or Ecclesiastical according as the bequest belongeth to either of them whether it be good vailable in
no action to the one to sue the other but yet the ancient practise of the Ecclesiastical Law hath remedy which would redresse all this mischiefe if it were cald againe to vse might go without controlment as the equitie of the cause doth require And the remedie is this that such other of the Executors or Administrators as are in this sort interuerted from the execution of the Wil or Administration by the subtiltie of any like Executor or Administrator should craue the assistance of the Iudge will him by vertue of his office to call in such practick Executor or Administrator and to commaund him vnder paine of excommunication he procéed no further in the sole execution therof but coÌ„municat all his acts dealings with the rest of his Coexecutors or Coadministrators which if it were so ordered would make many mens Wils Administrations better performed than they are a great sort of poore Orphans states more sure certaine than coÌ„monly they are in such executors or administrators hands And certainly in this case there is some good vse of Superuisors in dead mens Wils whom many men merily iest at calling them candle-holders as though they could do nothing else in the execution therof but hold the candle while the Executors tel the Defuncts money if they might be permitted to put in practise that authoritie which the Law giueth them and that is when they find any Executor deale fraudulently in the execution of any Testators Will wherin they are named superuisors or do ingrosse all the state of the Defunct into his hands as hath bin before said they cal him to a particuler accouÌ„t that it may be séen how the administration stands ech executor may coÌ„municat to other their particuler receits disbursments which if any shal refuse to do then may the superuisor make therof coÌ„plaint vnto the Iudge as though the ff de administratione tutoruÌ„ l. 3. §. 1. same man dealt not truly in the execution therof who though perhaps in the beginning could not take bond of him for the true execution of the Will because the Testator had made choice of him therin approued his faith that no man required caution of him for any Legacie in the wil bequeathed in which case the Iudge might take bond of him for security of such legacies as are bequethed in the wil yea though his faith hath bin approued by the Ordinary as hath bin before remembred yet may the Iudge in this case if he find him iustly susspected of fraud deceit remoue him by the learning of that Law For neither the Testator himselfe if hee were aliue Instit de suspectis tutorib vel curator toto tit againe would indure him in this case but would blot his name out of his Will neither ought the Iudge to suffer him whose care is to sée that dead mens Wils take their effect according to the Testators meaning All which the law hath prouision for and for infinit things else of like good order in these cases if they might be suffered to put them in execution without impeachment And so far as concerning those things wherein the Ciuile and the Ecclesiasticall Law might be relieued without preiudice to the common Law for because they haue no practise thereof and yet doe not I bring forth these as the onely causes wherein the Ciuill and Ecclesiasticall Law may be licenced to deale in ouer and besides the practise of those things that they haue alreadie but that these are few among many other which might be sorted out if so be there were any hope for the further enlargement of the profession But now to the necessitie of the maintenance of the ciuill and Ecclesiasticall Law in this Realme as they are now practised or ought to be practised which was a thing first propounded but last put in execution in this worke Albeit that which hath béene alreadie said as concerning the Ciuile and Ecclesiasticall Law may well imply the necessarie preseruation of them both within this Land yet because it was a thing I promised to shew in the beginning of this Treatise after I had gone ouer the rest of the parts of my diuision I will in a word or two make plaine the necessitie thereof And therefore for a ground of all the rest I will assume this for a matter confessed that euery man knowes that euery well ordered Common wealth stands on two parts principally the publicke part which consisteth of the Prince and people and the Ecclesiasticall part which standeth in Sacris Sacerdotibus And therefore well said the Emperor In authent quoÌ„ oportet epÌ„os in princ col 1. Auth. de non alienand rebâ—â— Eccl. c. §. 1. Two of the greatest things that God euer gaue vnto the world meaning earthly things was the Empire or seculer gouernment whereby the outward man is ordered made as Aristole saith bonus ciuis that is a good and loyall subiect and the Priesthood whereby the inward man is ruled and is made as the said author testifieth bonus vir that is a good and vertuous man which are two wonderfull effects of the whole gouernment in general neither can the one of these be wanting but the other will bee ruinated and brought to desolation Secondly no man is ignorant of this but in politicke gouernment two things sway the whole state the one is peace at home and the other is war abroad which as they haue their seasons so they haue their causes and effects the one from councell at home the other from discipline abroad neither can the one or the other of these be maintained but by their priuate and proper Lawes Beside in peace who séeth not there is as much néed of vent by sea for to benefit the common wealth by either by importation of those things that wee want at home or by exportation of those things that we abound with as there is prouision to be made for the increasing and preseruing of those things that we haue rising and growing by land in our owne contrey neither of which can be had or inioyed without their proper lawes fit and appertaining to either policie And what Law is there that ordereth these businesses but the Ciuile law onely which giueth a forme to Nauigation and all occurrents that happen by sea whether they bee in or about the Nauigation it selfe or the contracts or as it were contracts that are made in vpon or beyond the same As a Legall forme is requisite in peace at home and Marine affaires abroad that euery thing may haue his due effect according to the right thereof so also it is necessarie in warlike exploits vpon the Sea that euery action haue his limits and bounds wherby Iustice may be ministred which if it bee to bee obserued where lawfull war is held betwéene Prince and Prince that euery one bee not left vnto his own lust much more is it expedient to be put in vre in