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
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
Iustices of Peace or other officers to that purpose appointed speedily dispatch the businesse of those which are of their Iurisdiction that such as come as strangers and forrainers out of other contries hauing no iust cause of their comming they send backe againe with their substance to such places as they came fro but if they be idle vagabonds and Rogues or other like valiant beggers they either driue them out of the place or compell them to labour yet euermore hauing regard to prouide for such as are honest poore old sick or impotent That Clerkes bee first conuented before their Ordinarie and that the Ordinarie do speedily end the matter that they may not be long absent from their benefices and that they be not drawne before temporall Iudges vnlesse the nature of the cause doe so require it as that it be a méere Ciuile cause or a criminal cause belonging wholy to the Temporal court wherein if a Clerke shall bee found guiltie he shall first bee depriued from his ministerie and then shall bee deliuered ouer into the Seculer hands but if the crime bee solely Ecclesiasticall the Bishop alone shall take knowledge thereof and punish it according as the Canons doe require That where one dieth without issue leauing behind him brethren of the whole bloud and brethren of the halfe bloud the brethren of the whole bloud haue the preheminence in the lands and goods of the deceased before the brethren of the halfe bloud whether they be of the fathers side or the mothers side That no man make Armour or sell it without the princes leaue vnlesse they bee kniues or other such like small weapons That proofe by witnesses was deuised to that end that the truth should not be concealed and yet all are not fit to be witnesses but such alone as are of honest name and fame and are without all supition of loue hatred or corruption and that their dispositions bee put in writing that after the witnesses bee published and their depositions bee knowne there bee no more production of witnesses vnlesse the partie sweare those proofes came a new vnto his knowledge If Parents giue profusely to one of their children the other notwithstanding shall haue their lawfull porcions vnlesse they be proued to be vnkinde towards their parents That women albeit they be debtors or creditors may be Tutors or Curators to their children and that there is not an oath to be exacted of them that they wil not marrie again so that they renounce their priuiledge graunted vnto them per Senatus consultū Velleian̄ and performe al other things as other Tutors doe That Gouernours of Prouinces are not to leaue their charges before they are called from thence by the Prince otherwise they incurre the danger of Treason That womens Dowries haue a priuiledge before all other kinds of debt that what Dowrie a woman had in her first marriage she shall haue the same in her second marriage neither shall it be lawfull for her father to diminish it if it return againe vnto his hand That a man shal not haue the propertie of his wiues dowrie neither a woman the propertie of that which is giuen her before marriage but the propertie of either of them shal come vnto their children yea though they marrie not againe Wils or Testaments made in the behoofe of children stand good howsoeuer imperfect otherwise they are but they are not auaileable for strāgers but strangers are they which are not children neither mattereth it whether the Will or Testament be writ by the fathers hand only or by some other body by his appointment as the father deuideth the goods among the children so they are to haue their parts Of Hereticks and that such are Hereticks which do refuse to receiue the holy Communion at the ministers hand in the Catholick Church that Hereticks are not to be admitted to roomes and places of Honor and that women Hereticks may not haue such priuiledge as other women haue in their Dowries That is called Mariners vsury that is wont to be lent to Mariners or Marchant men specially such as trade by sea which kind of lending the law calleth passage money in which kind of vsury a man cannot go beyond the 100. part That Churches inioy a 100. yards prescription That such things as are litigious during the controuersie are not to be sold away A Litigious thing is that whih is in suite betwéene the plaintife and defendant That while the suite dependeth there bee no Letters or Edict procured from the Prince concerning the cause in question but that the cause be decided according to the generall Lawes in vse That in Diuorces the children be brought vp with the innocent partie but at the charges of the nocent and that Diuorces bee not admitted but vpon causes in Law expressed That no woman whose husband is in warfare or otherwise absent shall marry againe before she haue certaine intelligence of the death of her former husband either from the Captaine vnder whom he serued or from the gouernour of the place where he died and if any woman marrie againe without such certain intelligence how long soeuer otherwise her husband be absent from her both she and he who married her shall be punished as adulterers and if her former husband after such marriage retorne back againe she shall returne againe to her former husband if hee will receiue her otherwise she shall liue apart from them both If any man beat his wife for any other cause than for which he may be iustly seuered or diuorced from her hee shall for such iniurie be punished If any man conceiue a iealousie against his wife as that she vseth any other man more familiarly then is méete shee should let him thrée seuerall times admonish him thereof before thrée honest and substanciall men and if after such admonition he be found to commune with her let him be accused of adultery before such Iudge who hath authoritie to correct such offences The ninth and last Collation containeth matter of succession in goods that as long as there be any descendent either Male or Female so long neither any ascendent or any collaterall can succeed and that if there be no discendent then the ascendent be preferred before the collaterall vnlesse they be brethren or sisters of the whole blood who are to succéed together with the ascendent but in ascendents those are first called which are in the next degrée to the deceased then after those which are in a more remote degrée that in collaterals all be equally admitted which are in the same degrée and of the same Parents whether they be male or female That the lands of any Church Hospitall or other like Religious place be not sold aliened or changed vnlesse it be to the Princes house or to or with an other like Religious place and that in equall goodnesse quantitie or that it be for the redemption of Prysoners and that they be not let out to any priuat
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