Bracton: Thorne Edition: English. Volume 4, Page 277

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Volume 4, Page 277

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[001] is pronounced: ¹if he is acquitted, the woman will prevail through him, nor may she
[002] be further accused; if he is found guilty, the woman is not thereby convicted, but will
[003] conduct her own case and² may perhaps prevail,³ either by favour or justice or with
[004] the help of the law. For what if the adulterer was oppressed by his enemies, or overwhelmed
[005] in court by false testimony and suborned witnesses, whom he was unwilling
[006] or unable to challenge, shall not the woman, having obtained a scrupulous judge,
[007] defend her chastity? But if before [the adulterer] is convicted.⁴ Which rule it would
[008] be safer to follow in all the cases mentioned above, that if one judge clears himself,
[009] it ought to aid his fellow judges and the party, but if he fails to do so, that it does not
[010] prejudice the others so that they cannot defend themselves and their cause.

Concerning the answer of the judges.

[012] The judges may answer, as was briefly said above, that though the thing in question
[013] is temporal, and cognisance belongs to the secular forum, the plaintiff expressly,
[014] in a writing, renounced the privilegium fori and a royal prohibition, and [agreed]
[015] that he could⁵ be sued wherever and in whatever forum the creditor wished, and
[016] therefore that the plaintiff ought not to be heard, because of his renunciation, since
[017] he freely wished to be drawn to a forbidden forum and one not his proper judge.⁶
[018] When the judges and the creditor have produced the instrument of renunciation,
[019] which the complainant cannot deny, let him be compelled at once, in the secular
[020] court, to restore what he owes, or do what he agreed, and let him be in mercy as
[021] against his creditor for the wrongful detention, even without another writ, as was
[022] said above,⁷ because of his deceit and malice, because of his own accord he returned
[023] to the royal court, which he had previously renounced,⁸ [to the prejudice of the lord
[024] king.] After this has been done, let the action of prohibition first proceed, and if it is
[025] proved that he once willingly proceeded in the ecclesiastical forum, then, his suit and
[026] renunciation being taken together, let the penalty be increased, because of the
[027] several wrongs,⁹ and let the debtor be punished because of the renunciation, with the
[028] punishment aforesaid for the wrongful detention,¹⁰

Notes

1. Om: ‘qui,’ as D.

2. ‘et,’ as D.

3. ‘possit,’ as D.

4. D. 48.5.18.7: ‘Sed si antequam condemnetur,’ the beginning of the next lex

5. ‘posset’

6. Supra 249, 251, 269, infra 282

7. Supra 251

8. Supra, 249, 251

9. Supra 251

10. ‘pro iniusta detentione,’ as above