Court then needed not this complaint that now is but euery Iurisdiction should peaceably hold his owne right such as the Prince Law or Custome hath afforded vnto it THOMAS RIDLEY The contents of this Booke THE Diuision of the whole booke into foure parts pag. 1. What right or Law is ingenerall 1. What is the Law publicke and what the Law priuat 1. 2. What is the Law of Nature 2. What is the Law of Nations 2. What the Law Ciuile 2. That there be foure Tomes of the Ciuile Law The Digest the Code the Authentick and the Feuds 3. The Institutes are an Epitome of the Digest 3. What is the Digest and why it is so called and why the same are called the Pandects 3. What are the Institutes and why they are so called 4. The Pandects or Digest are diuided into seuen parts and they againe into fiftie Bookes 4. That the first part thereof conteineth foure Bookes and what is the sum thereof 4. That the second part hath eight books and what is the contents thereof 5. That the third part stretcheth it selfe into eight bookes and what they contein 6. That the fourth part containeth eight bookes and the contents thereof 7. That the fift part comprehendeth nine bookes and the matter thereof 9. That the sixt is spent in seuen bookes and the subiect thereof 11. That the seuenth part is diuided into six books and the matter thereof 15. The second Volume of the Ciuile Law is the Code which is distributed into twelue bookes 27 Why the Code is so called 28 The Argument of the first booke of the Code 30. 31. 32 The 2. 3. 4. 5. 6. 7. 8. 9. booke of the Code containe like Titles as were handled in some one or other book of the Digest except onely a few as De Edendo de Indicta viduitate de Caducis Tollendis and some other small number beside 33 The Contents of the tenth booke of the Code 33. 34. 35. 36. 37. The Argument of the eleuenth booke of the Code 38. vsque ad pag. 41. The matter of the twelfth booke of the Code 41. The Authenticks are the third Volume of the Ciuile Law and why they are so called 45. That the Authenticks are diuided into 9. collations 45. What is the sum of the first Collation 46. What is the matter of the second collation 47. What of the third 48. What of the fourth 49. What of the fifth 50. What of the sixt 52. What of the seuenth 54. What of the eighth 55. What of the ninth 56. That the feuds are the fourth and last volume of the Ciuile Law 61. What a Feud is why it is so called and who were the first authors thereof 61. 62. How many kind of Feuds ther be viz. Temporal or perpetuall 62. 63. What is a Temporall Feud 63. What a perpetuall Feud 63. Perpetuall Feuds are gotten either by inuestiture or by Succession 63 What is Inuestiture 64 What is Succession 64 Of perpetual Feuds some are Regal some other not regal 65 What are Regall feuds 65 That of Regall Feuds some are Ecclesiasticall some Seculer and what either of them are 65 What be not Regall Feuds 65 Beside of Feuds some are Liege some other not Liege and what either of them are 65 What be vassals or liegemen and how many sorts there bee thereof 65 What be Valuasores Maiores and what Minores 65 By how many waies a Feud is lost 65 What is the Canon Law and that there are two principall parts thereof the Decrees and the Decretals 66 What be the Decrees and whereof they are collected and who was the author thereof 66 That there be two parts of the Decrees the Distinctions and the causes 66 What the Distinctions doe containe and what the causes 67 What be the Decretals and whence they are gathered 67 That there be three volumes of the Decretals the one called the Decretals of Gregory the ninth the other the sixt the other the Clementines who be the authors thereof when they were first set out 68 That each of them is diuided into fiue bookes 68 What the first booke of the Decretals comprehendeth 68. 69. 70. What the second 71. 72 What the third 73 What the fourth 74 What the fift 75. 76. 77 That the things the Ciuile Law is conuersant in here in this Realme are either ordinarie or extraordinarie 78 Of the ordinarie some are Ciuile some other are criminal 79 Ordinarie Ciuile matters are all Marine matters pertaining to the ship it selfe or any part thereof and all contracts betweene partie and partie concerning things done vpon or beyond the sea 79 Of shipwracks which notwithstanding are so of the cognition of the Ciuile Law within this Realme as that they are granted by the Kings Commission to the Lord Admirall and other which haue like Iurisdiction 83 The maner of proceeding in Ciuile Marine matters 84 Of Piracie and what it is which also is held by the Regall Commission and the maner of proceeding therein 85 Of extraordinarie matters belonging to the Ciuile law within this Land by the benefit of the Prince 86 Negotiation betweene Prince and Prince and the treatie thereof 86 Martiall causes in an Armie Ciuile or criminall and the ordering of them both 87 The bearing of Armes and the ranging of euery one into his roome of honor and the diuersitie of them and how they are to be come by 89 Of the diuersitie of colours in bearing Armes and which is the chiefest of them 91. 92 Of Emperours and Kings and the great Epithites they haue in the Ciuile Law 92 Of Precedencie and Protoclisie in great persons next after the Emperour and King 93 Of Knights and Doctors of Law and their precedencie 95 Of Esquires and Gentlemen 95. 96 Of great personages how they succeed each other in inheritance and other places of honour 97 Of womens gouernment and the defence thereof 98 Certaine questions in Succession betweene a brother borne before his fathers Kingdom and a brother after who shall succeed 100 Questions between the Kings second son liuing at his fathers death and the eldest brothers son his father dying before the Kings death who shall succeed 101 Of the Tytles of the Canon law in vse or out of vse among vs. 102 Some out of vse by reason of the palpable Idolatrie they conteined 103 Some other out of vse because they were contrarie to the laws of the land 103 Of Bishops Chauncelors their Office and Antiquitie 104 Of those Tytles that are absolute in vse among vs recited by Doctor Cousen in his Apologie for Ecclesiasticall proceeding 109 How the exercise of the Ciuile and Canon Law is impeached within this Realme and by how many waies 109 What is a Premunire 109 That Ecclesiasticall Iudges executing the Kings Ecclesiastical Law cannot be within the compasse of a Premunire as Prem is vnderstood by the statut of R. 2 and H. 4. 110 That the word Elswhere in the said statuts cannot be vnderstood of the
who was péerelesse among all Quéenes that euer went before her and vnmatchable as I verily doe beleeue by any that euer shall succéed her as their magnanimitie whereby they subdued not only their domesticall enemies but vanquished euen their forraine foes were their designements neuer so daungerous not shewing any token of discouragement either in the treasonable attempts of the one or in the malitious complotiments of the other What an excellent work of hers was that that then when all her neighbour Kingdomes round about her were drunke with the cup of the fornication of the whore of Babilon shee alone came out of Babilon and so continued constantly to the end mauger the threats of the red fierie Dragon and the floods of water he cast out of his mouth after her How excellent did she shew her selfe in those two vertues which doe chiefly preserue Princes States that is Mercie and Iudgement the Records of her time do shew so that I may spare to remember any by name which happily would be not well taken And yet truth it is that mens gouernment is more agréeable to Nature than womens is whom God in the beginning put in subiection vnder man and who for the most part are by Nature weake in bodie and thereby vnable to put in execution the great affaires of a Kingdom and vnsetled in iudgement and so hardly can determine that which is right and settle themselues thereupon yet by the numeration of certaine ill gouerning Quéens to conclude a generalitie against all gouernment of women is but an ill kind of arguing for euen by the like reason a man might conclude against Kings of which sort although there hath bin many good whom God hath vsed as instruments to worke great good vnto people in euery kingdom yet more of them haue bin euill as the Stories of euery country will shew and to abridge God of his power that he cannot as well gouerne by a woman as by a man when it is his good pleasure so to doe were great iniurie to God and a great discredit to all woman kind but to returne thither where I left In succession of Kings a question hath béene where the King hath had sons both before hee came to the Kingdome and after which of them is to succéed he that was borne before the Kingdom as hauing the prerogatiue of his birth-right or he that was dorne after as being brought into the world vnder a greater planet than the other neither hath there wanted reason or example for each side to found themselues Herodot lib. 4. Iustin lib. 11. Plutarchus in vita Artoxerxis on for Xerxes the son of Darius King of Persia being the eldest birth after his father was inthronised in the Kingdom carried away the Empire thereof from his brother Artemines or Artebarsones borne before his father came to the royall possession thereof so Arseces the son of another Darius borne in the time of his fathers Empire carried away the garland from his brother Cyrus borne before the Empire so Lewes Duke of Millan borne after his father was Guiâ—â—ard l. 1. Histor â—lonâ—us Decad. 2. lib. 6. Mich. Ritius lib. 2. de regib Hâ—â—gar Sigeb in â—roni Duke was preferred to the Dukedome before his brother Galliasius borne before the Dukedome But these examples notwithstanding and the opinion of sundry Doctors to the contrarie common vse of succession in these latter daies hath gone to the contrarie and that not without good reason for that it is not meet that any that haue right to any succession by the progatiue of their birthright such as all elder brethren haue should be despoiled therof except there be some euident cause of incapacitie to the contrarie Beside sundry contentions haue risen in kingdomes betweene the issue of the eldest sonne of the king dying before his father and the second brother suruiuing the father who should Raigne after the Father the Nephew challenging the same vnto him by the title of his fathers birthright and so by the way of representation for the eldest son euen the father yet liuing beares the person of the father how much ff de liberis posthumis l in suis then rather his father being dead Whereupon the Law cals as well the sonne Filiusfamilias as the father Paterfamilias for that the son euen during the fathers life is as it were Lord of his fathers state the other claiming as eldest son to his father at the time of his death vpon which title in old Pausanias lib. 3. Historiaris time there grew controuersie betwéene Areus the son of Acrotatus eldest son to Cleomines King of Lacedemon and Cleomines second son to Cleomines and vncle to the said Areus but after debate thereof the Senate gaue their sentence for Areus right against Cleomines beside Eunomus Plutarch in vita Licurg King of Lacedemon hauing two sons Polydectes and Lycurgus Polydectes dying without children Lycurgus succéeded in the kingdom but after that he vnderstood Polydectes widow had a child he yeelded the Crowne to him wherein he dealt far more religiously then either did king Iohn who vpon like pretence not only put by Arthur Plantaginet his eldest brothers son from the succession of the kingdom but also most vnnaturally tooke away his life from him or king Richard the third who most barbarously to come vnto the kingdom did not only sley his two innocent Nephewes but also defamed his owne mother in publishing to the world that the late king his brother was a bastard Our Stories Bartel l. si viâ—ae matre C. de bonis maternis primogeniti filii noÌ„ excludâ— secuÌ„dogenituÌ„ in regno doe not obscurely note that controuersie of like matter had like to growne betwéene Richard the second and Iohn of Gaunt his vncle and that hee had procured the counsell of sundry great learned men to this purpose but that he found the hearts of sundry Noblemen of the Land and specially the citizens of London to bee against him whereupon hee desisted from his purpose and acknowledged his Nephewes right Yet notwithstanding when as Charles the second Vicerius in vita Henricâ— 7. King of Cicill departed his life and left behind him a Nephew of Charles his cloâ—st son surnamed Martellus and his younger son Robert and the matter came in question which of them should succéede Clement the fifth gaue sentence for Robert the younger son of Charles deceased against the son of Martellus being Nephew to his Grandfather and so caused the said Robert to be proclamed king of both Caecils Clem. pastoralis de re iudicata which was done rather vpon displeasure that Pope Clement conceiued against the Emperour Frederick than that there was iust cause so to doe And yet Glanuill an old reuerent Lawyer of this Land and Lord chiefe Iustice vnder Henry the second séemeth to make this questionable here Glanuil l. 7. c. 3. in England who should bee preferred the Vncle or the
giuing money to the Iudge or to the party grieued And this I take to be a far better limitation for either Law hauing the ground of the Ciuil Law and a statute of the Common Law and common reason it selfe for it than the other deuise is which so distinguisheth this businesse as still it makes it rest in the mouth of the Iudge which cause of Diffamation is méere spiritual and which not which were not to be done if there were cléere dealing in the matter for Lawes are so to be made as that as little as may be bee left to the discretion of the Iudge but all be expressed as far as the nature of the cause will giue leaue which albeit it be hard to doe for the varietie of the cases that euery day happen neuer thought on before yet that is to be laboured so far as may be for this libertie of leauing many things to the Iudges discretion is many times great occasion of confusion in Iudicature saying sometimes this and sometimes that as his priuat humor shall lead him and therefore a plaine distinction betwéene both the Lawes were best that euery man may see and say what is proper to either of them And thus far as concerning matters of Diffamation Now followeth that I speake of matters of Bastardie Bastardie is an vnlawfull state of birth disabled by diuine and humane Lawes to succéed in inheritance Of Bastards some are begot and borne of single women in which ranke also I put widowes some other of married women Of single women some are such as a man may make his wife if himselfe bee sole and vnmarried as those that are kept as Concubines in place of a mans wife some other are such as a man cannot make his wife although himselfe bee sole and vnmaried for that either they are alreadie precontracted to some other or that they be in so néere a degrée of affinitie or consanguinitie one to the other that the marriage would bee damnable and the issue thereof vnlawfull Of such as are begotten of single women by single men who are in case to marrie them if they will some are called by the Ciuile Law Filij Naturales because they were begot by such as they held for their wiues and yet were not their wiues who might be legitimat by sundry waies as hereafter shall be shewed Some other begot vpon single women if they were begot in vage lust without any purpose to hold such a one for a Concubine but vpon a desire onely to satisfie a mans present Lust whether they were begotten by married men or single men were called Spurij who for the most part are putatiue children and their Father is not otherwise knowne than by the mothers confession which sometimes saith true sometimes otherwise Isidor saith they were so called because they were borne out of puritie for that such kinde of lust is contrarie to holy Matrimonie whose bed is vndefiled and therefore the other is corrupt and abhominable But where any was borne of a woman single or married that prostituted her selfe to euery mans pleasure and made publicke profession of her selfe to be an harlot such as are they whom the Law calleth Scorta these were called Manzeres Those which were begotten of maried women were cald Nothi because they séemed to be his childrē whom the mariage doth shew but are not no otherwise than some feauers are called Nothae that is bastard feauers because they immitate the tertian or quartan Feauer in heat and other accidents but yet are neither tertians or quartans as the learned Phisitians wel know but these are counted so to be bastards if either the husband were so long absent from his wife as by no possibilitie of Nature the child could be his or that the Adulterer and Adulteresse were so knowne to kéepe company together as that by iust account of time it could not fall out to be any other mans child but the Adulterers himselfe and yet in these very cases within this Realme vnlesse the husband bee all the time of the impossibilitie beyond the Seas the Rule of the Law holds true Pater is est quem nuptia demonstrant The most nefarious and last kind of bastards are they whom the Law calleth Incestuosi which are begot betwéene ascendents and descendents in infinitum and betwéen collaterals so far as the Diuine Prohibition and the right interpretation thereof doth stretch it selfe The effects of these sorts of bastardies are diuerse First it staineth the bloud for that he that is a bastard can neither challenge Honour nor Armes from the Father or Mother for that he was begot and borne out of Matrimonie which is the first step to Honour and therefore the Apostle calleth Marriage honorable whereupon it must follow that the opposite thereof is shame for albeit it be no sin for a bastard to be a bastard yet is it a defect in him to be such a one and a thing easily subiect to reproch Secondly it repelleth him that is a bastard from all succession descending from the Father or the mother whether it be in goods or Lands vnlesse there be some other collaterall prouision made for the same for that all such Lawes and statutes as are made to any of these purposes were intended to the benefit of such as are Legitimat and are next of kin by lawfull succession and not by vnlawfull coniunction To Legitimat him that was a bastard when there could no clame be made vnto his birthright but by grace among the Romans were sundry wayes first where the Father of the Bastard they being both single persons married the woman by whom he begot the child secondly where the father did by his last will and Testament or by some publike instrument subscribed by witnesse name him to be his naturall and lawfull sonne or simply his sonne without the addition of any of these two words base or natural therwithall did make him his heyre which could not be but in such cases only where the father had no other naturall lawfull child left aliue Thirdly whereas the Prince by his rescript or the Senate by their decrée did doe any one that credyt as to grant them the fauor of legitimation which was done for the most part in such cases only wheras eyther the father of the child or the child himselfe offered himselfe to be attendant on the Court or Prince In this Realme none of the foresaid legitimations take place as far as I can learne but only that which is done by Parliament and that verie rarely for beside those that King Henry the 8. did in the varietie and mutabilitie of his mind 28. 8. cap. 7. towards his owne issue I think there cannot be many examples shewed for as for that which is wrought by subsequent 1. Mar. 1. parliamen cap. 1. Marriage being a thing auntiently pressed by the Clergie of this Land to be admytted in like sort as it is vsed in other Lands where
testamentarie or due to the next of kinne or datiue all which are either to be confirmed or disposed of by the Magistrate Administrations of Tutors and Curators and how farre they are indangered by their office and wherein they are to interpose their authoritie and consent and for what actes the pupils or minors may be sued done by the tutors or curators how any may be argued to be a suspected tutor or curator and how and by whom he may be remooued if there appeare iust cause of suspition against him A Tutor is chiefly set ouer the person of the childe secondly ouer his goods but the Curator or Gardian is chiefly set ouer the goods and then ouer the person of the child children their father being dead by the order of the Iudge are to be brought vp with their mother vnlesse she hath fled vnto a second marriage which if she haue done then is he to be brought vp with some of his néerest kinne such as is knowne to be an honest man and will haue a care of his good education with whom the Iudge is to allowe him such maintenance as all his stock be not spent therein but euermore something be left against he come to full age When the time of Tutelage or curatorship is ended they are to render accompt vnto the Iudge what they haue receiued and how they haue expended the same and what residue is left and according as their proofes are either by oath or otherwise so the Iudge either alloweth or disalloweth the same If the Tutors or Curators proue bankrupt or vnable to satisfie the Pupill or Minor then lieth an action against their suerties for the satisfaction of the same and if both of them faile then lieth it against the Iudge or Magistrate if either he haue not receiued any caution at all of the Tutors or Curators or hath receiued an vnsufficient caution or vnsufficient suerties knowing them to be vnsufficient otherwise he is not to secure fortune and future cases of the child the Tutors or curators are to sell nothing of those things that are the childrens sauing such things which by kéeping cannot be kept vnlesse they haue the order or decrée of the Iudge thereunto which the Iudge is not to decrée vnlesse the child be so far in debt that it cannot be satisfied without selling some part of the other goods or there be some other like iust and necessarie cause like vnto this which may not be auoided As Minors haue curators and gouernors so also mad persons and prodigall persons are appointed to haue gouernors by law for that they can no more gouerne their owne state then the others can Prodigall persons are they that know no time nor end of spending but riot or lauish out their goods without all discretion Vnder the fift Section which compriseth in it nine bookes are conteyned last Wils and Testaments and who they be that can make the same and how many kinds thereof there be solemne or militarie and they eyther put in writing or else Nuncupatiue what is an vniust or void Will what is to be thought of those things which are found eyther to be blotted out or interlyned in a Will how Heires or Executors are to be instituted or substituted in wills and vnder what conditions they may be eyther instituted or substituted in the same What time an heire hath to deliberat after the Testators death before he proue the Will what is a military testament what priuiledges it hath how the inheritance may be eyther got or lost how Testaments are to be opened published and writ out what mens Testaments are not to be opened and published Of the punishment of such which a will being extant séeke by administration or some other like meanes to possesse the goods and of those which either forbid or compell any man to make a Will Of the power or right of Codicils of Legacies and bequests as what things may be bequeathed and what not to whom any thing may be bequeathed and of the signification of the words and things which doe appertaine vnto Legacies of yéerely and monethly legacies what time they be due in the beginning of the yeere or in the end which of them be pure and which conditionall Of the vse profit and benefit of any thing bequeathed of dwelling and workes of seruants bequeathed of Dowry bequeathed and what profit the Legatorie hath thereby Of choise or election bequeathed Of wheat wine oyle bequeathed and what is contained vnder euery of them Of ground furnished bequeathed and the instruments thereto belonging and what is to be vnderstood by that bequest Of store bequeathed in Latin called Penus what is comprised vnder that word of houshold stuffe bequeathed of education bringing vp bequeathed of gold siluer womens attire ornaments and such like bequeathed and what is to be vnderstood by euery of them how Legacies may be taken awaie Of thinges that are doubtfull in a Will and how they are to be vnderstood Of those things that are left for punishment sake in a will whether they be auaylable or otherwise Of those things which being bequeathed in a Will are counted notwithstanding as not bequeathed Of those things that are taken away from the Legatories in the will as vnworthy of them Of conditions demonstrations causes what force they haue and how they prouaile in a Will Of the Law Folcidia what it is and how men thereby are restrained for bequeathing any more then the thrée parts of their goods so that a fourth part thereof should still remainewith the heire if any man had receiued in Legacie more then he might by the law Folcidia that he should put in band to restore that if any vnknowen debt after should appeare so the same were true debt at what day a Legacie becomes due that is streight from the death of the Testator vnlesse it be left to be paied vpon a certaine or vncertain day or vnder a condition and that the heire enter into band to pay the legacie when the day comes or the condition happen and if he refuse to do it then the legatorie to be put in possession therof vntill the day or condition happen The sixt part spreading it selfe ouer seauen Bookes handleth matters of possession of goods or administration thereof not growing out of the Ciuill Law which only makes heires and giueth right of succession but out of the Pretorian Law or Law of conscience which in equitie calleth sundry to the succession of other mens goods by administration where there is no Will and in some cases where there is a Will as where the will is concealed or the Erecutor renounceth the will but if the will once appeare then the administration forthwith ceaseth In cases where Administrations are to be graunted the children of the deceased haue libertie to take it within a yeare after the death of the deceased and if they be further off of kind then they haue onely a hundred dayes
in all instruments and the day and yeare when the instrument was made That the Oath of the deceased as concerning the quantitie of his goods so far as it toucheth the diuision of the same among his children be holden for good but that it be in no sort preiudicial to the creditors Of women tumblers such other of like sort which with the feates of their body maintaine themselues that no oath or suertie be taken of them that they wil not leaue that kind of life since such oath is against good maners and is of no validitie in Law That such gifts as are giuen by priuat men to their Prince néed no record but are good without inrolling of them and in like sort such things as are giuen by the Princes to priuat men That no person thing or gold of an other man be arested for another mans debt which they now call reprisals that he which is hurt by such reprisals shall recouer the foure double of the damages that he hath suffered therby and that one man be not beaten or stricken for another That he that cals a man into law out of his Territorie or Prouince where he dwelleth shall enter caution if hee obteine not in the suite against him he shall pay him so much as the Iudge of the Court shall condemne him in And that he who hath giuen his oath in Iudgemēt shal pay the whole costs of the suite but after shall bee admitted to prosecute the same if hee will so that hee put in suerties to performe it That such women as are vnindowed shal haue the fourth part of their husbands substance after his death and in like sort the man in the womans if the man or woman that suruiueth be poore That Churches or Religious persons may change grounds one with another For that one priuiledged persons right ceaseth against another that is in like sort priuiledged That such changes of manors Lands Tenements and Hereditaments as are made by Churchmen to the Prince be not fained matters and so by the Prince come to other mens hands who haue set on the prince to make this change and that the change be made to the Princes house only and if the Prince after conuey or confer the same vpon any priuat man it shall be lawfull for the Church to reenter vpon the same againe and to reposseed it as in her former right That in greater Churches Clerkes may pay something for their first admittance but in lesser Churches it is not lawfull That such as build found or indowe Churches which must goe before the rest doe the same by the authoritie of the bishop and that such as are called patrons may present their Clarkes vnto the Bishop but that they cannot make or ordaine Clerkes therein themselues That the sacred misteries or ministeries bee not done in priuate houses but bee celebrated in publicke places lest thereby things be done contrarie to the Catholicke and Apostolicke faith vnlesse they call to the celebrating of the same such Clerkes of whose faith and conformitie there is no doubt made or are deputed thereto by the good will of the Bishop but places to pray in euery man may haue in his owne house if any thing be done to the contrarie the house wherein these things are done shall be confiscated and themselues shall be punished at the discretion of the Prince That neither such as be dead nor the Corse or Funerall of them be iniured by the creditors but that they bee buried in peace That womens Ioyntures be not sold or made away no not euen with their owne consent In what place number forme maner and order the princes counsell is to sit and come together That he that is conuented in iudgement if he wilfully absent himselfe may be condemned after issue is ioyned That no man build a Chappell or Oratorie in his house without the leaue of the bishop and before he consecrate the place by praier and set vp the Crosse there and make Procession in the place and that before he builde it he allot out lands necessarie for the maintenance of the same those that shall attend on Gods seruice in the place and that Bishops be not non-residents in their Churches That all obey the Princes Iudges whether the cause bee Ciuill or Criminall they iudge in and that the causes be examined before them without respect of persons and in what sort the Processe is to be framed against such as be present and how against those that be absent The sixt Collation sheweth by what means children illegitimate may be made legitimat that is either by the Princes dispensation or by the fathers Testament or by making instruments of marriage betwéene the Mother and Father of the children so that the Mother die not before the perfecting of them or that she liue riotously with other men and so make her selfe vnworthie to be a wife That Noble personages marry not without instruments of Dowrie and such other solemnities as are vsuall in this behalfe that is that they professe the same before the bishop or minister of the place and thrée or foure witnesses at the least and that a remembrance thereof be left in writing and kept with the Monuments of the Church but that it shall not bee needfull for meaner persons to obserue the former solemnities That such as were indebted to the Testator or they to whom the Testator was indebted bee not left Tutors or Gardeins to their children that if any such bee appointed a Tutor a Curator bee ioyned to him to haue an ouersight of his dealing that Tutors or Curators are not bound by Law to let out the Minors money but if they do the interest shall be the Minors and the Tutor shall haue euery yeare two moneths to find out sufficient men to whom hee may let the money out to hyer for that it is let out at his perill that if the Minors state be great so that there will bee a yearely profit aboue his finding the Tutor shall lay vp the residue for a stock against he comes to age or buy land therwith if he can find out a good bargaine and a sure title but if the childs portion be small so that it will not find him then the Tutor or Curator shall dispose of the Minors state as he would dispose of his owne to which also hee is bound by oath How such instruments are inrolled before Iudges as concerning matters of borrowing and lending and such like may haue credit how men may safely bargaine either with writing or without writing if themselues be ignorant men and of the comparison of Letters and what credit there is to be giuen to an instrument when the writings and witnesses doe varie among themselues Of vnchaste people and such as Riot against nature whose punishment is death Of such as dispitefully on euery light trifle sweare by God and blaspheme his holy name against whom also is prouided the sentence of death That the
point what things it alloweth may be sold without the decrée of the Iudge what not I wil set downe the words of the Law it selfe speaking of Tutors gouernors of Puples whose place Executors Administrators do supply so far forth as they haue the tuition gouernaÌ„ce of minors during their vnderage C. de administrat tuto â—m vel curatoruÌ„ l. lex quâ— faithfully translated And it is a law of Constantin the great reprouing a former law of Seuerus the Emperor which gaue leaue to Tutors and Curators to sell away al the gold siluer precious stone apparrell and other rich moueables the Testator had and to bring the same into money which turned greatly to the hinderance of many Orphans whereupon Constantine after he had first ordered nothing should bee sold of the pearl precious stone naperie vtensels of the house and other necessarie stuffe and ornaments of the same saith thus Neither shall it be lawfull for them meaning the Tutors or Curators to sell the house wherein the Father died and the child grew vp wherein it is woe enough to the child not to sée his auncestors images not fastened vp or els puld downe Therefore let the house and all other his moueable goods still remaine in the Patrimonie of the child neither let any edifices or buildings which came in good reparation with the inheritance ruine or decay by collusion of the Tutor but rather if the Father or he whosoeuer the minor was heire vnto left any building in decay let the Tutor both by the Testimonie of the worke it selfe and the faith of many be compelled to repaire it for so the yearely rent will bring in more profit to the Minor than the price of the things being deceiptfully sold vnder-foot will doe the Minor any good Neither doth this law only make prouision against Tutors but also against immodest and intemperate women which many times gage vnto their new married husbands not only their owne state but euen the state and liues of their children Further it crosseth the course of putting the childrens money to vsurie notwithstanding aunciently it was thought therein consisted all the strength of the Patrimonie for that course is seldome long scarcely continuall and stable and that therby many times the money being lost the childrens state come to nothing and therfore his conclusion is The Tutor should sell nothing without the order of the Iudge sauing the Testators ouerworne apparrell or those things which by kéeping could not be kept from corruption and such cattell as were superfluous Whereby it appeareth how carefull that age was to giue way to Executors by sale of the Testators goods to make gaine of the Orphans neither is this age better than that but that which was feared then may be prouided for now by like authoritie as was then In this Land a man dying leauing Legacies to his children and his wife Executrix or dying intestate and she taking administration and in her second marriage bringing all her first husbands state her childrens portions vnto her second husband and then dying there is no remedie against the second husband to recouer the said Legacies or porcions due vnto the children out of his hands because he is neither Executor nor Administrator and that he came not to those goods by wrong but by the deliuerie of the Executrix with whom he married but yet by the Ciuill Law there is and L. si me ff de rebus creditis si certum petatur that by this claime that the said goods came vnto his hands and that it is no reason any should be made rich by my goods against my wil for Legataries haue no action against any as Administrators in their owne wrong or hinderers of the performance of the last Wil of the deceased but Executors only they then alone when the party hauing it holds it by wrong and not by Lawful deliuerie which in this case is otherwise By the Law of this Land there is no prouision to preserue the state of a prodigall person from spoile which neither hath regard of time nor end of spending vnlesse the Father prouide for this mischiefe in his Will or by some other good order in his life but he is suffered to wast and spend his goods vntill there be nothing left as though the Prince and Common wealth had no interest in such a subiect to sée he did not waste his state and abuse his goods whereby many great houses are ouerthrowne and many children whom the Fathers carefully prouided for neuer leauing raking and scraping all their life time that their children after them might liue in great plentie and abundance come to great shame and beggerie But the Ciuill Law hath remedie for it for the ff de euratoriâ— furioso aliâ—â— extra minoreâ— dando Law counting such a man that is in this sort impotent in his déeds howsoeuer he be otherwise sensible in his words to be halfe mad and to be a young man in his manners how old soeuer otherwise he be in his yeares sets a Curator ouer him for the preseruing well ordering of their state no otherwise than if they were children or mad men indéed who so long haue power ouer them their goods vntil they come to sane maners to which if they once return the curators office ceaseth The like they doe to a widow or sole woman which liueth riotously hauing neither regard of her fame nor of her state L. et mulieri ff eod I find an old practise aunciently vsed in the Ecclesiasticall courts for restraining Executors or Administrators for dealing couenously alone in an Executorship or Administratorship when there are more Executors named in a Will than one or more Administrators deputed by the Ordinarie in an Administration than one which were well if it were recald brought back to his former vse againe For now as things stand many times one capricious fellow named an Executor in a Wil or appointed Administrator by the Ordinary with some other wel meaning men getting a start in this businesse of the rest ingrosseth all into his owne hands and without priuitie or concurrence of the other selleth releaseth disposeth all at his owne pleasure contrarie to the mind either of the Testator or the Ordinarie who would not haue named so many in the Wil or Administration but to the intent that all might or should execute and administer one communicate their acts with another The contrarie whereof is many times very preiudiciall and hurtfull to those that are to take benefit by the said Wil or Administration who for the want of the due performance of this kind of procéeding are defrauded of all that which in right or reason should haue come vnto them either by the Testators good-will or by the benefit of the Law And yet there is no remedie for this in law so far as I know for that al these making but one person in law the Law yéelds