The triall of bastardie that part of the second part of policie, or maner of gouernement of the realme of England: so termed, spirituall, or ecclesiasticall. Annexed at the end of this treatise, touching the prohibition of marriage, a table of the Leuitical, English, and positiue canon catalogues, their concordance and difference. By William Clerke.

The Triall of Bastardie .

CHAP. I.

Of possessions and Natiuities , their cognisance and triall .

THe issue of the defiled bed , before we come to handle it , either in it selfe or the contrary , least happily the readers should ( some of them ) looke for another issue here , than I know they be likely to finde , I meane a relation of pleadings in possessions , after the common lawes : I aduertise them before hand , howsoeuer this may seeme to fit the argument , Haec non iudicantur in Ecclesia , The church hath no cognisance of them .

The possession of Radulphus and Agatha his mother , left them by Radulphus the father and grandfather to Agatha and hir sonne , when he went to Ierusalem , impeached afterwards by F. great vncle to Radulphus the sonne , in that he obiected , this Agatha was begotten by Radulphus hir father , of Au●line the wife of Alan , in the time of Alex. 3. manifesteth as much in the Canons . a a Cap. causam quae . Qui sil . sunt legit . For when the incident question of hir natiuitie arose before the secular Iudges , it came in the end to the audience of Alexander , who in his commission in that cause of the Iurisdiction of the church , to the BB. of London & Worcester , ( hauing touched the possessory Iudgement of the king ) countermaunded immediatly againe his former rescript in these wordes , viz. Causam quae inter R. & F. super eo quod mater dicti R. dicitur non fuisse de legitimo matrimonio nata agitari dinoscitur , vobis commisimus terminandam : verum quod literis nostris inseri fecimus , v●praefato R. possessionem omnium quorum possessor extitit , quando Auus suus proficiscendi Hierosolimam iter arripuit , ante principalis causae ingressum faceretis restitui , si eadem possessione fuisset per violentiam spolitatus . Nos attendentes quod ad Regem pertinet , non ad ecclesiam , de talibus possessionibus iudicare , ne videamur iuri regis Anglorum detrahere , qui ipsarum iudicium ad se assorit pertinere , f. v. mandamus , quatenus regi possessionum iudicium relinquentes , de causa principali , videlicet vtrum mater predicti R. de ligitimo sit matrimonio nata , plenius cognoscatis , & causam huiusmodi terminetis . &c. that is to say , The cause or question notoriously knowne to be moued betweene R. and F. touching that , that the mother of the sayd R. is affirmed not to be borne in lawfull matrimonie , we haue committed to you to be determined ; howbeit , where we caused to be inserted in the same our letters , that you should see the possession of all things restored to the aforesaid R. that he possessed when his grandfather tooke his iourney to Hierusalem , before your entrance to the principall busines , ( if violently first he he had beene spoiled of the same ) weighing that the Cognisance of such possessions appertaineth not to the church , but to the king , & least we should seem to derogate from the right of the king of England , who claimeth they pertain to himself , we require you ( leauing the possessorie iudgement to the king ) that you take absolute knowledge of the principall cause : that is to say , whether the forenamed R. his mother bee borne in lawfull matrimonie , & determine the same .

The politique bodie of this land considered as it is compacted of all sortes and degrees of people , deuided onely in tearmes , and by names of spiritualtie , and temporaltie : hauing auctoritie , the one part , commonly called the English Church , to declare , interprete , and shew any cause , question , or doubt of the Law diuine , or spirituall learning , and to administer such offices and dueties as to their roomes spirituall doth appertaine : the other , the lay or temporall Iudges , for triall of propertie of landes , secular contentions , as also the conseruation of the people of this Realme in quiet and peace , and howe they doe , both their auctorities and iurisdictions conioyne together in the due administration of iustice , the one to helpe the other , appointed so , ordained and instituted to that purpose and end , that the kings & queens of the same ( according to their plenarie power from God ) might be furnished of themselues to render iustice and finall determination to all subiects , and in all causes , as they haue and doe at this day hold ( of God ) to themselfe , and by their sword , their people and crowne : acknowledging no superiour on earth , without restraint or prouocation , to any pope , prince , or potentate in the world , b b 24. H. 8. cap. 12. in prohem . ad idem de repub. Anglo . may giue a light to that we haue said of the spirituall and secular powers before .

For howsoeuer they may seeme to be distinguished in themselues , they be but one body , hauing but one onely head , the royall and kingly maiesty of this land , where the Aristocraticall gouernmentes and Democraticall , haue been euermore strange vnto vs : for deuided in times past into many & sundry kings , reigning ech absolutly in his country , not vnder the subiection of other , till by fighting , the vanquished alwaies falling to the augmentation of the vanquisher , it grew at the last into one Monarchy , neuer did any take inuestiture at the Emperors hand of Rome , or any other superior forraigne prince or Potentate , but held ( as I sayd before ) and as they haue , doe , and will hold of none but of God , their people and crowne .

Hence it is taken for an Empire in the world : wherof ( as did Vlpian de publico romanorum iure ) I may as boldly write viz. Huius sacrosanctae , & Augustae ciuitatis status , in sacris , & sacerdotibus , & magistratibus consistit : that is to say , The state of this imperiall common-wealth , consisteth in holie thinges , and in priests , and magistrates : for so we repute no lesse the magistrate than the priesthood , to be ordained of God ; as the apostle c c Rom. 13. teacheth , & whereof Duarenus dilateth thus , viz. Sunt cnim magistratus & sacerdotium velut vnius corporis , id est ecclesiae , duo membra precipua : quorum alterum alterius auxilio eget . Verily they are ( saith d d De sacris ecclesiae minist. ac benefic . lib. 1. cap. 1. Duarenus ) the magistracie and priesthood , as it were of one bodie , that is to say , two principall members of the Church ; hauing need the one of the others assistance . And in another place , Nam etsi religionis & sacrorum procuratio omnibus alijs rebus nobis antiquior esse debeat , tamen imperio magistratus ad tranquilitatem inter homines tuendam est opus , sine qua ; ne religio quidem cousislere potest : Itaque Iustinianus noster maxima dei inter homines dona esse ait , e e Nouel . 6. sacerdotium , & imperium , quorum vnum diuinarum rerum administratio , alterum humanarum gubernatio moderatioquesit : non enim ( vt apud hebreos quondam atque Romanos ijdem & reges erant & pontifices ) f f Euseb. lib. 1. Hist. Eccles. c. 5. c. cleros . 21. Dist. ita in Christiana repub. idem homo vtranque personam sustinet , & vtrumque munus exequitur ; sed duae sunt functiones , diuersae , quarum vnaqueque plurimum operis habet ac difficultatis : communis tamen est vtrinsque finis , & scopus : nempe religionis , & mandatorum diuinorum , in otto & pace conseruatio . Hinc Iustinianus noster de consensu & concordia rerum diuinarum & humanarum , sacerdotij , & imperij loquens , simphoniae verbo vtitur : that is to say , The charge of religion , & of sacred things , though it ought to be ( in antiquitie vnto vs ) preferred before all things els , the power notwithstanding of the magistrate is needfull for the preseruation of peace amongst men ; without the which religion verily cannot consist : Iustinian therefore affirmeth Priesthood and the Magistracie , the chiefest giftes of God amongst men , in that the one is the administration of diuine thinges ; the gouernment the other , and moderation of things humane : for not ( as in times past the same were kinges and bishops with the Hebrewes and Romanes ) so in a Christian common-wealth now , the same man beareth and executeth the person and office of them both ; g g It is and was of ancient time due to the imperiall crowne of this realme to haue the soueraignty and rule ouer all maner persons borne within the same whether ecclesiasticall or lay : but the kings and queenes , neither haue , doe , nor will challenge authoritie and power of ministerie of diuine offices in the church . Jniunct . an 1. Eliz. tit . Admonition . but they are two diuerse functions , requiring either of them great labour and difficultie . The end and scope notwithstanding of either , common to both ; the conseruation namely of religion , and diuine commandementes , in quiet and peace . Iustinian hereupon treating of the concordance , and agreement of diuine and humane things , Priesthood , and the Magistracie , vseth the worde symphonia , as much as concent or harmonie in musicke .

But to the state of the cause , after the Latines , the issue in the common-law , in the canon and ciuill lawes , the incident question , Bastardie , whose triall our argument is , and whether wee will hasten our stile : the incident question I call it , for it is not sprung where it riseth in the secular court tanquam emergens in iudicio , ( such as be said in the lawes we mentioned last ) to haue originem nouam post iudicium incohatum , respicientes processum ; but incidently , respecting onely merita negotij principalis , and not the processus at all .

Here ( affirmed that reuerend doctor Sir Thomas Smith , h h De repub. Anglo . lib. 2. cap. 12. speaking of the issue generallie ) is the place where the strife & debate remaineth , as a water held in a darke and close vessell issueth out , is auoyded , and emptied , and no where els : and that stroke ( saith he ) well stroken , is the departing of all the controuersies .

These we may leaue to whom they be more familiar in their termes , than they can , or at the least is necessarie ( touching this triall ) they should be made interpreted , to the common capacitie of the rest . Hence issueth out our purpose : that is to say , the incident question ( effected ) of the natiuitie , before the secular Iudges , in secular causes of possession ; the kings or queenes writ ensueth to this effect as followeth i i Infra . ca. 3. to the Ordinarie , and there his Iurisdiction beginneth .

CHAP. II.

The Canonicall and secular Computations ( in consanguinitie ) their confusion . The sequell . The Lateran synod . The answere of the Prelates to the kinges writ of Bastardie . Their Instance . The conclusion of the Nobles at Merton .

IN the Romane Ciuill and Canon supputation of degrees , there insueth nowe a difference to be handled in them : that is to say , a discent , or discord , or that which is more , a preiudice , and a violence too , to the Lawes , to the Canons , and either so to other : howbeit not in themselues , but their application and practise : like a well tuned Instrument vnskilfully handled . Hence indured the secular lawes of this land an iniurie ( in their possessorie Iudgementes ) by the Canons , as also did in former time the Canons , by the secular sort , till king Henry the third reformed ( in the end ) the one , the other , the Lateran synod ; wherof wee shall treat seuerally in their places , but first of the violence to the Canons .

For declaration of this , ( by the way ) Computation must first be considered of ( in degrees of consanguinitie or bloud ) & how it is distinguished by Canonicall and Legal : the computation canonicall is declared in the chapter of consanguinitie hereafter , the legal or secular computation we haue briefly related here , and that for two causes , the one ( hauing occasion to speak of the preiudice to the canons ) it is deriued from it , the other it shall explane the Canonical computation the better , therefore it is pictured here , according to the secular emperor Iustinian his lawes , to the end ( I say ) that compared with the figure ensuing of consanguinity it may ad the greater light vnto it , and either consequently vnto other .

These Legal and Canonical computations , I know not how it came to passe , but that I may vse the wordes of the Canon , Quidam Legum & Canonum imperiti , certaine as well Legists as Decretalists , ignorant both of the lawes and Canons , confounded them ; what violence grew by this to the Canons ensueth , for when it had taken roote , this negligent or malitious error , ( for so we may coniecture ) they could not be so ignorant all of them , from whom it sprang , Cenealogiae terminum Nuptialia iura , numerationem sanctorum patrum , & antiquam Ecclesiae computationem : peruersa quadam calliditate disturbare nituntur . It disturbed , or they disturbed with it ( this error ) by their peruerse subtility , the bonds and scope of Genealogy , the laws of matrimonie , the holy fathers numeration , and auntient computation of the church : and besides their strange , prophane , and erronious computation , which they grounded vpon the secular lawes , they determined their Genealogie in the sixt legal degree , affirming there the Legal computation determined . But what Iustinian defined , and vnto what degree , ( his secular computation ) I leaue to Iustinianistes to define , onely to aunswere this error , his wordes be these , Hactenus ostendisse sufficiat , quemadmodum gradus cognationis numer entur : namque ex his , palam est intelligere , quemadmodum vlteriores gradus numerentur : generata quippe persona , gradum adijcit . When Iustinian had extended ascending , descending , and collaterally his numeration , and specified to the sixth Legal degree ; this may suffice ( saith he ) touching the computation of degrees in kindred : for by this it is easie to number the rest that be further off ; forasmuch as a person begotten , begetteth a degree , &c. This touching their errour in determining the Legal computation onelie .

For their confusion , I meane of both computations in one : were the infection thereof , as far forgone in marriages with vs , as it was confuted then in the Lateran counsell , we should not , I suppose ( after the phrase of the scripture ) come so neare to the shame of our kindred as nowe we doe : but hereof more , and more fitly hereafter .

To their period again , their series in their Genealogie was legal : their computation legal , to the sixt degree : but their termination , there , neither legal , nor Canonicall : What then ? Computatis namque gradibus , &c. aut finitur consanguinitas in Sexto gradu , &c. The Canon asketh this question , viz. ( Computation therfore had ) doth it determine or not determine consanguinitie in the sixth degree ? inferring thus : Si autem finitur , fallaces erunt leges quibus isti vtuntur , qui in decimo gradu sibi succedere consanguineos inbent : quod si non funitur consanguinitas in huiusmodi sexto gradu , falsidici erunt isti qui vltra illum sextum gradum nolunt computare consanguinitatem : igitur aut leges erunt falsae , aut isti qui sic finiunt generationem : sed vi verdicae leges , & veraces sunt Canones , dicamus id quod veritas habet , scilicet quod non terminatur consanguinitas in huiusmodi sexto gradu , &c: that is to say , Verily if it determineth so , they be deceiuable lawes which they vse , that command succession in bloud in the tenth degree : but if it determineth not consanguinitie in the sixth degree , they shal be false sayers , that refuse ( in consanguinitie ) to make their computation beyond the said sixt dedegree : to conclude , the lawes must needes be false , or they that so determine generation . But as the laws be right , and the canons true , so let vs persist in that , that trueth it selfe possesseth , namely ( touching consanguinitie in the 6 degree ) in not determining there .

Their numeration remaineth nowe to be spoken of , their Series , their order , and ( touching the same ) the censure of the Lateran synod . Neither would I be taken to impeach their numeration , but the disguised habit they gaue it . For it sorteth , and so it is approoued with the secular lawes i. the law of their nation so called the Romane ciuil law , as also ( after the reuerend authous Mr. Bracton , and Mr. Plowden : for so they haue applied it either of them in their works ) of ours .

Touching the secular computation what may be said for further information therein , wee referre to that demonstration ensuing to the eye , according to Horace : Certior aure arbiter est oculus , that is to say , Of the two i. the eye , and the eare , the eye is the certainer iudge . Hinc agrimensores , and the view de ventre inspiciendo were & be in vse in the ciuil law , as also ( as occasion is ministred ) exercised in this land : thus we leaue them ( the secular computations ) to that relation that ensueth of the Lateran synod , viz.

Ad sedem apostolicam ( for so the canon relateth the same ) perlata est questio nouitar exorta de gradibus consanguinitatis , quam quidam legum & canonum imperiti excitantes , eosdem propinquitatis gradus contra sacros canones , & ecclesiasticum morem numerare nituntur : nouo & inandito errore affirmantes , quod germani fatres , vel sorores , inter se , sint in secunda generatione : filij eorum & filiae in quarta , nepotes eorum vel neptes in sexto , talique more progeniem computantes , in huiusmodi sexto gradu eam terminātes , &c. Nos vero ( Deo annuente ) hanc questionem discutere curauimus : in synodo habita in lateranensi consistorio , conuocatis ad hoc opus episcopis & clericis atque iudicibus diuersarum prouinciarum : Denique diù ventilatis legibus , & sacris canonibus , distincte inuenimus : ob aliam atque aliam causam : alteram legum fieri , alteram canonum computationem . In legibus siquidem ob nihil aliud ipsae graduum mentio facta est , nisi vt hereditas vel successio ab vna ad alteram personam ( inter consanguinios ) deferatur . In canonibus vero ab hoc progenies computatur , vt aptè monstretur vsque ad quotam generationem a consanguineorum nuptijs sit abstinendum . Ibi prescribitur vt hereditas propinquis more legitimo conferatur : hic vero vt ritè & canonice inter fideles nuptiae celebrentur . In legibus aistinctè non numerantur gradus , nisi vsque ad sextam : in canonibus autem vsque ad septimam distinguitur generationem . Hac ergo de causa , quia hereditates nequeunt deferri : nisi de vna ad alteram personam , idcirco curauit secularis imperator in singulis personis singulos perficere gradus : quia vero nuptiae sine duabus non valent fieri personis , ideo sacri canones duas in vno gradu constituere personas , &c. that is to say , A new-found question is proposed to th' apostolique Sea of the degrees of consanguinitie , the which certaine mouing , vnskilfull in the lawes and canons , contrarie to the sacred canons , haue striuen to confound them : in a strange and new errour affirming , that German brothers and sisters are betweene themselues in the second generation , their sonnes and daughters in the fourth , their nephewes and neeces in the sixth , & making their computation of their progenie so in the said sixt degree they determine it , &c. Now we in a synod holden in the Lateran consistorie , assembled thereunto , the Bishops , Clergie , and Iudges of diuerse prouinces , haue had care to discusse this question : and after long examination had ( in the end ) of the lawes and canons , we found it out distinctly , at the last , one computation ( for this and that reason ) to be had of the lawes , an other of the Canons : for mention verily is made in the laws of degrees , to no other end but that succession or inheritance should descend ( in consanguines ) from one to another : but in the canons for this ; that it may manifestly be shewed to what degree in kindred , marriages should be abstained from ; it is prescribed there , that inheritance should lawfully be conferred to the next ; here , that mariages be rightly amongst christians , and Canonically celebrated : degrees in the laws , are not in names and tearmes distinguished , beyond the sixt degree ; in the Canons to the seauenth generation : for this consideration therefore in persons , that successions cannot passe but from one to another , the secular emperour prouided to appoint in singular persons , singular degrees : but that mariages consist not but of two , the sacred Canons haue therefore in one degree ordained two .

M. Beza reproueth this numeration of the Canons , because the Canons number ( as he saith ) by the De repud . pag. 25. persons , and not their generations ; and therefore affirmeth , that Multo planius & rectius loquuntur , qui generationes , non personas enumerandas dicunt . They speak ( saith M. Beza ) more plainly false , and more truely , that affirme the generations , and not the persons to be numbred , and his reason is , Cum generatio efficiat gradum , that is , Because the generation makes the degree . De repud . pag. 26. Indeed there were certaine Canonists , before the Lateran sinod , and Legists too , that numbred so , whose ignorance was condempned there , but neuer since but in earthly successions , and so they number still , that is to say , the degrees by the persons , to conferre their inheritance to the next ; but by the generations , the Canons number the degrees in mariage causes , that we come not too neer to the kindred of our slesh : wherein they varie not from M. Beza at all , but onely in the equilaterall lines , where he maketh two brethren two generations , & their children foure , & so in the residue where their generations be , & so he affirmeth them to be eiusdem , euen of the same Pag. 26. speciei & seriei , by the order & course of nature , & therfore do the Canons make them the same generations , and the same degrees , and so his wordes many seeme to import no lesse where he saith , Natura enim ipsa ostendit tot opportere gradus , quot sunt generationes , that is to say , Euen nature her selfe doth shew , ther ought to be so many degrees , as there be generations : neuerthelesse we must count than so , ( saith he ) as we respect Ordinem numerandi , and make them so by the order and course of numbering , two generations : the which he holdeth in all the laterals , to be holden without exception , as may appeare by that treatise : that is to say , so many persons so many degrees ; the Canons hold the same in the ascending and descending lines , Vna dempta : the vse of this rule is explaned , in the chapter of consanguinitie hereafter : this M. Beza reproueth also , viz. the rule of Vna dempta , and yet hee Pag. 15 confesseth it hath nothing in it , that is differing from the truth , for so he writeth , Et si nihil statuit à veritate alienum , tamen non recte concepta est , that is to say , Though it ordereth nothing that is differing from the trueth , yet it is not conceiued aright : but let it suffice it be true and holdeth where the Canons vse it , that is in the ascending and descending lines , vpright and downeright straight , they bend it not to the laterals , for it will not hold with the rule of generation there , wher the persons do spread themselues , or nature rather spreadeth the persons on either side . Here is their difference in the equilaterals only where M. Beza giueth libertie to marrie within the prohibition of the Canons , but his prohibition is the same with the Canons in the the rest , so far as the Canon prohibition reacheth , except in the persons that be not collateral or vice-parents & children the one to the other : & the same their rules with his of the collateral or vice-parent , & of the honesty of nature , only his prohibition goeth beyond the prohibition of the Canons , in the laterals that be not equal , wherin so much the nearer he draws than to the law of nature , as he carries them further off from the kinred of their flesh , this is seene in that example , viz.

PETRVS MARTINVS IOHANNES STEPHANVS MARCVS . BERTA ROBERTVS ALBERTVS Gaius Martin TITVS MARIA

For he prohibiteth Martin to marrie with Marie , ( his grandfathers neeces nephues neece ) because he may not marry with Bertaes daughter , that is , with his sisters daughter : and this he confirmeth by the rule of the honesty of nature , which is this , Cum naturae honestate pugnat , vt cuius siliam ducere non potes , neptim possis , that is to say , It is against the honestie of nature that thou shouldest marrie with his or hir neece , whose daughter thou canst not marrie : this for his prohibition . But for his libertie , touching that we haue sayd before , let vs suppose Albertus hath an equilaterall sonne vnto Titius , viz a brother that is discended , a second Martin , this Martin shal marrie with this Marie his grandfathers neece , and yet his father is Maries first colateral parent , that is to say , hir fathers brother , notwithstanding both the rule of collateral parent , and the rule of the honestie of nature , which should seeme as well to hold in the one as the other , for Martin may not marrie with his grandfathers daughter , that is , his aunt , by the expresse leuitical prohibition ; why shal he then marry with his neece , whose daughter he may not marrie by the former rule ? I will not determine between so reuerend a diuine & the canon lawes , only I haue written this , that such as haue or shall hereafter haue the reading of that treatise , may enter into consultation with themselues amongest themselues , why the elder Martin in this example should not marrie with his graund-fathers neeces nephewes neece , and the yonger Martin should marrie with his graund-fathers neece ? onely I may cite S. Ambrose , who affirmed plainly they might not Ambr. lib. 8. Epist. 66. marrie by the lawe of God : but Mr. Beza answereth that S. Ambrose affirmed this memoria lapsus , as much to say , as forgetting himselfe . To this I may cite another that writeth thus , Quia vero Beza , hanc iuris canonici computationem ridet & improbat ideo sciendum & obseruandum Ioachim . a Beust in admonitione de grad pag. 230. est quod in consistorijs harum terrarum ( non obstante consideratione Bezae ) computatio iuris canonici obseruetur , & secundum eam pronuncietur : i. Where ( saith he ) Mr. Beza derideth and reprooueth the computation of the canon lawe , it is therefore to be noted and obserued , that in the consistories of these prouinces of ours , the computation of the canon law must be obserued , notwithstanding the consideration of Beza , and be pronounced after it .

And so the computation of the lawes of our land , spiritual or lay , must be obserued , and be pronounced after them in these prouinces of ours , notwithstanding the consideration of any .

And this computation is naturall : whereof more at large in the chapter of consanguinitie heereafter . Thy ius primogeniti , thy fathers inheritance , take it by the legall figure , it is lawfull for thee , and number vnto that , by that computation there , viz. Father , Sonne , 1. 2. and so in order in the residue . But seeke not a wife by that computation , in the other that insueth ; namely the canonicall figure , specially in the midst of the tree , thou hast no portion there : thou shalt not come neere it , but touch it not in any wise : it is the kindred of thy flesh , yea , thy fathers bloud , which forced , he that cast out Adam from the garden of Eden , and set the cherubins there , and the blade of a sword , to keepe the way of the tree of life , Gen. chap. 3. hath said , That bloud shal be vpon thee : and though thou tarriest ( i. Thou diest not the death ) because the Leuit. chap. 20 iudiciall is gone , yet the morrall law abideth , which thou transgressest , and neuer dwellest long in that seede , and thy fathers inheritance togither : for the Lord hath set a sword , to keepe the way thereof , from that posteritie .

It commeth thus to passe that two legal degrees do make but one canonicall : brothers ( for example ) reckoned after the secular lawes in the second degree in legal succession ; after the canons be numbred in the first , in causes of matrimonie : their children ( there ) in the fourth , here in the second : ( there ) their nephewes in the sixt , here in the third , and so descending still in the collateral lines ( for otherwise they differ not ) the 8 and 10 by the lawes , the 4 and 5 by the canons , and so of the residue .

These computations mentioned here before , not regarded in their seuerall natures , wrought the confusion

prosecute the example particularly .

The Lawes we haue said of the Church and this Realme of England , be diuerse in their estimation of Bastardie : that is , they repute it diuersly . The canons distinguish here , Legitimation ensues ( by the canons ) a subsequent marriage , in certain cases they dispence : the lawes distinguish not , they respect not marriages that ensue , they dispence not : neuerthelesse they disable not ( the laws of the land ) the legitimation by the canons in orders and priesthood : Adea vero quae pertinent ad regnum ( after Mr. Bracton ) n n De acquirend . rerum dom. cap. 29 Non sunt legitimi nec heredes iudicantur , propter consuctudinem regni , quae se habet in contrarium : that is to say , Touching the secular iudgementes of this Realme , they bee not legitimat nor iudged to be heires , for the contrarie obserued custome in this land . The Arch-Deacon ( for example ) of Yorke o o Cap. innotuit . De elect . vnlawfully first elected to that dignitie in the church of Worcester , touched in his natiuitie , many things induced ( especially concurring ) his despensation in the Canons , viz. Literarum scientia , morum honestas , vitae virtus ; fama personae , concors capitulielectio , petitio populi , assensus principis , suffraganeorum suffragia , humilis denotio confitentis , that is to say , His knowledge in learning , his honsty in maners , the vertue of his life , the report of his person , his agreeable choyse of the chapter , the peoples request , the prince his assent , the suffagranes voices , his owne humilitie , which freely chose and humbly to acknowledge rather his defect , than hee would Laesa ccnsci●tia , i. assume the pastoral office with a wounded conscience . To conclude , such bee the lawes and iudgements of the church , their allowance such , & disallowance ( by the lawes of the land ) as shall be their practise and excercise spirituall or Lay. p p H. 8. Aa . 28. cap.

To end in a word this generall and obscure transmission to the ordinary , note by the way , what a subtill fallation ensued , viz. a certificate to the secular court , neyther true nor false : for so , & verum rescribatur , & falsum , i. The ordinarie may certifie both right and wrong in diuerse respects , for hee may certifie Mulier , that is to say him , a legitimate , and rightly too , to orders and dignities : but of the land , Bastardus , that is , To inheritance a bastard . This for the preiudice to the laws .

Touching now the king , the prelats , his obiection , their answere , their instance , and the nobles their conclusion at Merton , Crastino sancti vinccntij , i. The morrow after the feast of S. Vincent ( there ) the Archbishop of Canturbury , his suffagranes , and greatest part of the earles and barrons of this land assembled to the Corronation of the king , and queene Alianour his wife , treating of the common wealth of the same , touching many articles that concerned both the king & the queene , to the which they were summoned al , this obiection ( tearmed in the statutes , The kings writ of Bastardy ) amongst othe matters was handled , viz. Whether one beeing borne afore matrimonie , may inherit in like maner as he that is borne after matrimonie . All the Bishops aunswered vnto this , That they would not nor could not answere vnto it , because it was directly against the common order of the church , and all the Bishops instaunted the lordes that they would consent that all such as were borne afore matrimony should be legitimat , as well as they that be borne within matrimonie , as to the succession of inheritance , for as much as the church accepteth such for legitimate : and all the earles & Barons with one voice answered , That they would not chaunge the lawes of the realme , which hitherto hath been vsed and approued .

Postea verò die Iouis proximè post festum sancti Dionisij , that is to say , The thursday next ensuing the feast of Dionisius , the same yeare , the king in his court holden at Merton , and namely before the most reuerend fathers the archbishops of Canterburie and Yorke , the Bishop of Chichester , lord Chancelor then , the BB. of Duresme , Ely , Norwich , London , Bath , Excester , Carleil , Hereford , Rochester , and many other honourable personages , prouided when Bastardy should thenceforth be obiected , in the kinges secular court against any for such a cause ( that is to say , Thou art a Bastard , and therefore , Because thou wert born before thy father and mother their mariage solemnised ) there should be sent Loquela ( as much to say , as that transmission we haue mentioned ) to the ordinarie , to this effect , and in this form of wordes viz. That Inquisition be made whether such or such were born before spousals or matrimony , or not : and that the ordinarie should certifie againe , the king in the same for me of words , without ambiguitie .

The vse of this figure and readie vnderstanding .

THe vse hereof is practised daily in inheritances , whose right descendeth Quasi ponderosum quid

THE LEGAL FIGVRE·

The signification of the com passes and characters of this Figure . g Great vncles great vncles vncle . The son 〈…〉 . h his , hir , sonne daughter . 8 i his , hir , nephew neece . 9 k his , hir , nephews neeces sonne daughter . 10 l his , hir , nephew neeces nephew neece . 11 m his , hir , nephews nephews neeces neeces son daught . 12 f Great vncles great vncle . The same aunt . 6 g his , hir , sonne daughter . 7 h his , hir , nephew neece . 8 i his , hir , nephews neeces sonne daughter . 9 k his , hir , nephews neeces nephew neece . 10 l his , hir , nephews nephews neeces neeces son daught . 11 e Great vncles vncle . The same aunt . iij. 5 f his , hir , sonne daughter . iij. 6 g his , hir , nephew neece . iij. 7 h his , hir , nephews neeces sonne daughter . iij. 8 i his , hir , nephews neeces nephew neece . 9 k his , hir , nephews nephews neeces neeces son daught . 10 l Great vncle . The same aunt . iij. 4 e his , hir , sonne daughter . iij. 5 f his , hir , nephew neece . iij. 6 g his , hir , nephews neeces sonne daughter . iiij . 7 h his , hir , nephews neeces nephew neece . 8 i his , hir nephews nephews neeces neeces son daught . 9 c Vncle . Aunt . ij . 3 d his , hir , sonne daughter . ij . 4 e his , hir , nephew neece . iij. 5 f his , hir , nephews neeces sonne daughter . iiij . 6 g his , hir , nephews neeces nephew neece . 7 h his , hir , nephews nephews neeces neeces son daught . 8 b Brother . Sister . j. 2 c his , hir , sonne daughter . ij . 3 d his , hir , nephew neece . iij. 4 e his , hir , nephews neeces sonne daughter . iij. 5 f his , hir , nephews neeces nephews neece . 6 g his , hir , nephews nephews neeces neeces son daught . 7

eadens deorsùm , recta linea vel transuersali ; neuer ascending againe the way that it came , except it be à latere , propter defectum haeredum inferius prouenientium : that is to say , Inheritaunce descendeth ( like a weighty or ponderous thing , that falleth downewards ) in a right , or collaterall line , neuer ascending the way it came again , but laterally or sideward , for want of descending heires . It is thus to be vnderstood , ✚ is that person in this figure , whose distance in degree is demaunded from euerie other peson in the same , vpwards , downward , or collaterally , on the fathers or the mothers side ; this is made manifest in the 6. chap. of this treatise , together with the order of numbring the degrees in either computation . Now for the signification of the compasses , ( in this figure ) and letters expressed in the same , as well great as small , this is expressed on the side of this figure , thus : viz. by the great letters , and the small that be lincked vnto them : for example , capitall F. hath six little letters lincked vnto it , there is writen ouer F. ( the stocke ) what tearme it hath in consanguinitie , after the laws , and what degree vnto ✚ whose ascending stock he is ; there is also written vnder euery other litle letter that is linked vnto F. the tearme & degree it hath likewise vnto ✚ , whose Collateralls they be : the same of euery capital letter , and of their generations . This may suffice for the ascendents and collaterals ; the descendents be declared in the figure .

CHAP. III.

The Transmission or writ of certificat to the Ordinarie-The Statutarie antecedents to the same .

REx venerabili in christo W. eadem gratia Lincoln . episcopo salutem . Sciatis quod cum A. in curia nostra , coram nobis vel coram Iust. nostris peteret versus B. tantam terram cum pertinentijs in tali villa , idem B. venit in eadem curia , coram &c. et obiecit eidem A. quod nullum ius habuit in terra illa eo quod Bastardus est , quia natus antequam talis pater ipsius A. desponsauit matrem ipsius A. Et ideo vobis mandamus , quod conuocatis coram vobis conuocandis , rei veritatem inde diligenter inquiratis . viz. Vtrum praedictus A. natus suit antequam praedictus talis desponsauit talem matrem ipsius A. vel post , & inquisitionem quam inde seceris scire sacias nobis vel iusticiarijs nostris talibus , per literas vestras patentes teste , &c. The cause of this obiection in this writ of Bastardie is Prioritie of the natiuitie to the spousels that ensued : the wordes therefore be ( here ) after Mr. Bracton omitted , that be inserted in the other that ensue , viz. Et quoniam huiusmodi inquisitio pertinet ad forum ecclesiasticum . For example , Rex talt cpiscopo salutem Sciatis quod cum A. peteret versus B. tantam terram cum pertinentijs in tali villa vt iu●sumu & idem . B. venerit in eadem curia & diceret quod fuit in seysina in eadem terra sicut de illa quaeh hereditarie descendit de quodam G. patresuo cuius heres ipse est vt dicit , idem A. obiecit cidem B. in cadem curia nostra quod nihil iuris potuit habere in terra illa petita quia Bastardus est , & natus de adultera , asserens se esse filium legitimum ipsius . G. heredem , & quoniam huiusmodi cognitio ad forum pertinet ecclesiasticum vobis mandamus quod ( conuocatis conuocandis ) &c. vt supra : the reason of difference is this , Transmission ( there ) is arbetrarie , necessarie here : for ( saith Mr. Bracton ) Nihil pertinct ad iudicem ecclesiasticum cognoscere de prioritate & posterioritate natiuitatis eius cui opponitur Bastardia , cum sponsalia vel matrimonium hinc inde concessa sunt : that is to say , The spiritual iudge hath no cognition ( where spousals or matrimonie be confessed on either part ) of prioritie or posterioritie of his natiuitie , to whom Bastardie is obiected : with whom accordeth the tres-reuerend Iudge , sir Robert Brooke , affirming it hath been tried by the countrey : where he distinguisheth betweene generall and speciall Bastardie . The other Transmission , or rather in the other case , is necessary , because ( saith Mr. Bracton ) Non pertinet ad iudicem secularem discussio , vtrum sit ibi matrimonium vel non , The deciding of matrimony , or not , appertaineth not to the secular Iudge .

To the common vnderstanding of all , briefly , the writs wee haue mentioned immediatly heere before proceeded the one of them from this obiection , viz. Birth or natiuitie before marriage solempnized : the other from this , viz. Issue of a colourable wife , an adulteresse , a wife de facto , and not de iure , to him that is lawfully wedded to another , or haply to none : in our vulgar speech , and after the plainest fashion , a whore : more ciuilly after custome and common curtisie , a concubine , a leman , or such as was the woman of Samaria , i. A wife without a husband .

But we must not ( by the way ) confound or seeme to make all one the whore , the adulteresse , and the concubine , so termed in the canons , scortum , maecha , amica , or concubina ; they bee verily distinguished ( there ) q q 36. Q. 1. I. ex illa . Aliud est fornicatio : aliud stuprum : aliud a dulteriū : aliud incestus : aliud raptus . Per aliud , & aliud , by one , and another , that is to say , The whore is one , the adulteresse another , the leman another , whose misliuinges and misconstruction of my wordes togither , may terme them haply whores all three : but note their difference , that is to say , The whore , hir common request makes hir a votoresse of single life , for shee will not wed . The adulteresse , of adulterium , as much to say , as ad alterius thorum , hir proprietie is hir husbands , but her propertie hir owne : Now , the concubine is holden at the will of her lord . They be also distinguished by their offsprings , Manseres , Nothos , and Spurios . Hence sprang these verses in Latine : Manscribus scortum , sed moecha nothis dedit ortum , Vt seges à spica , sic spurius est ab amica .

These Latine verses from the glosse I haue rudely englished thus , viz.

The whore doth manscr Bastard bring , The nothos baseth ' adulteresse wife : As from the care the corne doth spring , The leman is base spurius life .

AThird transmission ensueth to the court christian to this effect , viz. Rex tali episcopo salutem . sciatis quod cum A. in curia nostra coram , &c. peteret versus B. tantam terram cum pertinentijs in tali villa vt ius suum , idem B. venit in eadem curia & dixit quod predictus A. nihil iuris clamare poterit in terra illa quia Bastardus est , eo quod C. pater suus cuius heredem se facit nunquam de sponsauit matrem suam , & quoniam huiusmodi cognitio de tali Bastardia obiecta ad forum pertinet ecclesiasticum , vobis mandamus quod ( conuocatis conuocandis ) coram vobis , &c. vt supra , Here they were the parties ( by the obiection of the aduerse part ) the parents namely of him or hir to whom this obiection was made , and from whence this writ proceedeth , affianced , betrothed , and contracted ; they wanted onely the Churches benediction . i. They were neuer solemnly nor vnsolemnly married in the face of the Church , nor elswhere : heereof more largely in the chapter of matrimonie hereafter .

The fourth and last transmission that wee purpose here to treat of , is conceiued in this forme of words , viz. Rex tali episcopo salutem . Sciatis quod cum A. in curiae nostra , &c. peteret versus B. tantum terrae cum pertinentijs in tali villa vt ius suum , idem B. venit in eadem curia & obiecit eidem A. quod nihil iuris inde clamare potuit quia Bastardus est , eo quod natus fuit per tantum tempus ante matrimonium contractum solemniter in facie ecclesiae inter talem patrem ipsius A. responsum fuit a predicto A. quod natus fuit post matrimonium contractum inter patrem & matrem suam tempore interdicti , adhibita omni solemnitate que tunc potuit adhiberi . Et quoniam huiusmodi causae cognitio , &c. vt supra , Question was moued here of the natiuitie ratione interdicti ecclesiae : that is to say , Grounded vpon the prohibition of the canons ; hereof likewise in the chapter prohibition canonicall : this may suffice for the writ or transmission to the Ordinarie , and so we be come to the statutarie antecedents to the same . The occasion whereof was , a fraud obiected in parlement , in 10 of king Hen. 6.

This obiected fraud was touched in general terms by Mr. Bracton in the reigne of king Henrie the third : for writing ( then ) of th' effect of legitimation , s s Delegi● & consuet. ang lib. 5. tit de except . n. 17. his wordes be these , viz. Effectus vero legitimationis probatae hic est , quod cum semel probata fuerit & indicium protali red datur in curia regis , semper quoad omnes legitimus erit , nisi in probatione interuenerit fraus , &c. sed fraudulenter posset fieri inquisitto hoc modo , vt si quis plures terras vel amplus haereditates peteret à diuersis , procurare poterit petens per fraudem , quod ab aliquo ipsorum ei opponeretur Bastardia , & it a pacisci cum eo , ne quid diceret in testes , & contra testificata : & sic fraudulenter probare possit legitimationem ; & hic obtinere versus omnes : quod quidem esset iniquum : The effect ( saith he ) of legitimation is this ; that once proued , and iudgement thereof giuen in the kinges Court , hee shall be alwaies reputed and with all men a legitimate , except there shall happen to fall out and be fraud in the proof , &c. But thus th' inquisition may fraudulently be made , that is to say , If one demaundeth diuerse landes , or ample hereditamentes of diuerse men , the demandant may procure by fraud , that Bastardie ( by some one ) be obiected against him , and couenant therewithall that hee excepteth not ( at the time ) against his witnesses , their persons , or depositions : and so hee shoulde prooue his legitimation , but fraudulently , and consequently preuaile against all the rest : but this were verie vniust .

This fraud how neer it commeth to the obiected fraud in the statutes , the readers may easily discerne . But to our purpose , hence proceeded the Statutarie antecedents , mentioned to be handled in this chapter ; to eschew as well such subtil disherisons , ( if need should be ) in that said case , as in other the like in time to come : touching therefore these Statutarie antecedentes , it was ( by the aduise and assent of the spirituall and temporall lordes , as also the speciall request of the commons in that Parlement assembled ) ordained and established by authoritie of the same , as followeth , viz. That from henceforth all Iudges of or in the courtes , where anie plee is , or shal be depending , taken , or moued , in which Bastardie is , or shall be alleaged against anie person party to the same plee , and thervpon an issue ioyned , which by the law ought to be certified by the Ordinarie , that the Iudges , or one Iudge , of , or in the courts where the said plee is , or shal be depending , taken , or moued ( before the time that any writ of certificate passe out of the same court to the Ordinarie , to certifie vpon the issue so ioyned , or to bee ioyned ) shall make a remembraunce vnder their seales , or his seale , at the sute of the demaundant , or tenaunt , playntife , or defendaunt in the plee , in which the Bastardie is or shall bee alleaged ; reciting the issue that is ioyned in the same plee of Bastardie , and certifying to the Chauncellor of the king of England for the tyme beeing , to the intent , that thervpon proclamation be made in the said Chauncery by three moneths , once in euery month , that all persons pretending any interest to obiect against the partie , which pretendeth himselfe to be mulier , that they sue to the ordinarie , to whom the writ of certificate is , or shal be directed , to make their allegations and obiections against the partie which pretendeth himselfe to be Mulier , as the law of holie church requireth , and the sayd chauncellor hauing notice of the sayd remembrance and issue ioyned , and required by the said demaundant or tenaunt , plaintife or defendant , hauing the said remembrance to make the said proclamation , as afore is said , the same chancellor for the time being , shall do to make proclamation in forme aforesaid , and the proclamation so made , shall certifie in the court where the saide plee , in which Bastardie is alleaged one other time shal be depending , and that the Iudges of or in the court where the same plee is , or shal be depending , taken , or moued , before any proclamation so to be made in the chauncerie , make one time such proclamation in the court , and also one other time , when the proclamation shal be certified by the chauncellor of England , and made in forme aboue rehearsed ; and then the said Iudge shall award the said writ of certificate to the Ordinarie , to certifie vpon the issue so ioyned , or to be ioyned ; and if any writ of certificate be made or graunted before that all the proclamations in the forme aforesayd be made , and certified , that then the the said writ of certificat , and the certificate of the ordinarie therevpon made , or to be made , shall be void in law , and of none effect .

Thus much touching the Statutarie antecedents , I haue thought good to deliuer verballie as I read and receiued the same from the Statute it selfe .

CHAP. IIII.

The Ordinarie his office : and order in proceeding .

THe court christian is possessed ( now ) of the cognisance , the secular Plee in suspence quousque , i. till returne be made of the inquisition againe : the Ordinaries office ( in order ) ensueth next : But first we wil define the Ordinary , then his office , and shew withall ( as what ) how manifold his office is .

It requireth ( this ) a larger discourse , and euerie branch it beareth , than is conuenient here , or possible to be related in so small a content ; it is therfore reserued ( this ) to a treatise of it selfe , intituled The Ordinarie , as life , health , habilitie , and other opportunities may finish it , onely here , according to the nature of the proces , and this cognition which is summarie , it shall suffice to relate it summarily .

The Ordinarie is he , Cui à lege vel ab imperiali culmine competit ius dicendi potestas . i. t t 2. q. 6. c. in iud: c. To whom is power giuen , and auctoritie from the law , or from the Prince , to render iudgment : ad vniuersaliter , i. Vniuersallie . For there be many Ordinaries , according to the verse , Illustris primus medius , spectabilis imus , but such an Ordinarie here ( by the title of Ordinarie ) we must vnderstand , that is to say , to whom is power giuen and auctoritie , from the law , or from the prince , to render iudgement vniuersaly , such be the BB. of euery prouince : howbeit their iurisdiction is not ( in this cognisance ) ordinarie , but delegata : such as the iurisdiction is , quae demandatur à principe specialiter ad vnam , vel plures causas . v v ff de iurisdict . om. Iud. L. morte . de off . delegat . Quoniam . & Cap. super . & cap. pastoralis .

The vnder or inferiour Ordinaries , principally such as be surrogates abroad in exempted iurisdictions , we will not handle here , but els where , and there in their places , Hi enim leuia tractant , i. Their iurisdiction consisteth in lighter matters , as did the potestates and defensores , Ciuitatum and municipales magistratus , x. Autent . de defensor Ciuit. ¶ . nos igitur , & ¶ . audient . Colla. 3. whose cognisance exceeded not three hundred shillings . Latissimè patet , his office is exceeding spatious , it is interposed sometime in place of principall actions , as in case where auxilium ordinarium , i. reliefe Autent . eod. d. ¶ . audient ff. de iurisdict . om. Iud. L. fin . by way of ordinarie action is wanting , but where ordinarie means may be had , there is no recourse to his extraordinarie assistance , and this either at , or without the instance of any party , aut cis inuitis , sometime it is interposed incidenter , incidently : it reiecteth somtime the action , sometime it detracteth from it , quandoque deseruit ei , i. It serueth other whiles the action , or subiecteth it selfe vnto it : this we cannot prosecute here particularlie . It is generallie his office two-fold , that is to say , Noble , or mere and mercenarie , they differ thus , ( these offices ) viz. His noble office is that , Quod per se subsistit nulli actioni vel exceptioni deseruiens vel adhaerens , sed sui solius nobilitate gaudens , his Mercenarie that , Quod adhaerit actioni , vel exceptioni , impotens stare per scipsum , vnde famulando ) deseruit alij , sicut faciunt mercenarij , that is to say , It subsisteth his noble office of it selfe , relying neither to action nor exception , but vpholden onely by the exellencie of it selfe , the mercenarie that , that serueth or subiecteth it selfe to the action , not able to stand of it self , but dependeth , ( as mercenaries or hirelings do ) so termed . Quia nomina esse debent consequentia rebus , i. Names must be appliable to their things .

Touching their iurisdiction , d d Pet. de serr . in form . lib. in act. confes . proseruit . ver. Plenam & omnimodam . ll. ad haec vtitur & auctoritatibus maximis , & plurimis . the worde comprehendeth generally merum & mixtum imperium : these be included in the offices we haue mentioned heere . It comprehendeth also , modicam cohertionem , or , simplicem iurisdictionem , as much to say as that quae commissa intelligitur , eo ipso , quod causae alicuius commissio demandatur : e e Sp c. de iurisdict . om. Iudicum . d●c . expedito . modica vero coertio . such is the cognisance of the trial of Bastardy : that is to say , Committed to the Ordinarie from the Prince .

Hence his iurisdiction in this triall is not ordinaria ( as I said before ) but delagata : Neuerthelesse wee repute him generally , namely the B. a perpetuall and naturall Ordinarie . f f Prouinc ang. in glo . Lindw . ver. ord. .

Here we will leaue the Ordinarie and his generall office , and returne to the point , viz. His office in the triall of Bastardie , and his order in proceeding there : but let no man vnderstand ( by order ) the order iudiciarie , substantiall proces or regular solemnities required by the lawe : all which be discoursed in their places in the Ordinarie , according to that part of pollicie , and maner of gouernment of this land , & without which , a sentence or iudgment hath no validitie : for that were nothing els in summarie causes , such as this cognition is , but to peruert order : wee might speake of heere plenarie , and summarie causes , their natures , cognisance , and difference ; but because the argument will not endure heerein their discourse at large , we will also amongst the rest leaue them to the tractat of the Ordinarie .

Officium vero ordinarij : briefly the Ordinaries office is this , viz. Conuocatis conuocandis , &c. that is to say , The parties summoned that bee required to be called before him in this triall , in their presence then and either of them ( if they appeare ) that he proceed to a diligent and summarie inquisition according to the tenor of his writ , g g Bracton . the order and scope whereof the law comprehendeth in these wordes , viz. Summariè & de plano sine strepitu & figura iudicij : that is to say , Summarily , plainly , sine strepitu , i. Without noise of aduocates , such as was the finishing of Salomons Temple : wherein was neither hewing nor hammering heard . h h Reg. 3. 6. Figura importeth as much in iudgement , as a perfect similitude or likenesse doth in any thing els , i. The verie apparant forme , picture , and face as it were of iudgement it selfe , framed of that substantiall iudiciarie order , and proces that wee haue mentioned .

Hereof , viz. Of such summarie causes , the plenarie cognition was reputed in the end a wastfull prorogation , and grewe to be in proces of time both hurtfull , and hatefull . Such be the causes of Benefices , Tythes , Matrimonies , and Vsuries : from whence sprang the constitution , i i Dispendiosam . in the canons Dispendiosam , in manner and forme ordained as followeth , viz. Dispendiosam prorogationem litium quam interdum ex subtili ordinis iudiciarij obseruatione causarum docet experientia prouenire restringere in subscriptis casibus cupientes : statuimus vt in causis super electionibus : postulationibus , vel prouisionibus , aut super dignitatibus , personatibus , officiijs , canonicatibus , vel prebendis , seu quibusuis beneficijs ecclesiasticis , aut super decimis ad quarum etiam prestationem possunt qui tenentur ad eas premoniti censura ecclesiastica coerceri : nec non super matrimonijs vel vsuris & eas quoquo modo tangentibus ventilandis , procedi valeat ( de cetero ) simpliciter , & de plano , ac sine strepitu iudicij & figura : volentes non solum ad futura negotia , sed ad presentia & adhuc etiam per appellationem pendentia , hoc extendi .

I must not omit the question and doubt that arose in those times , touching these wordes , summarie , de plano sine strepitu & figura iudicij : The question and doubt was great , the Decretall therefore intituled Sepe contingit , ensued heereupon , to manifest and explane the constitution , the question , and doubtes . Sed adhuc per ipsum decretalem ( writeth a learned doctor of the lawe ) non fuit plenè consultum seu succursum auribus causidicorum : Neither ( saith he ) is that any maruaile ; and his reason is , Quia ipsorum natura ad lites querendas est inclinata : & semper cogitant lites ex litibus suscitare .

The regular solemnities were abrogated in such summarie causes , and reserued , so farre forth , as they bee mentioned to be in that decretall abrogated and reserued , and not otherwise . The Iudge is therefore freed from ( in these cognitions ) the obseruation of iudiciall order and forme required in other causes in the bodie of the lawes , Canonici and Municipalis . Neuerthelesse hee continueth , as also the decretall forbiddeth not , that obseruation in iudgement in these causes still that nature and naturall reason ordained , citation k k c. Pastoralis ext d●●ent . & re iudict . ( for example ) is one : obserued after the canonistes in Adam , whom vppon his transgression God called before him in the Garden , l l Gen. 3. Adam , Vbies ? Where art thou Adam ? &c. Another , though no regular libell , yet a petition or kinde of narration is naturall ( at the least ) Oretenùs : This was obserued in the question of the women before Salomon : viz. Filius meus viuit , & filius istius mortuus est : m m c. Afferte . de presumpt . Reg. 3. c. As also in the woman before Iesus , Mulier , vbi est qui te accusat ? &c. Hir accusation was heere required . The exception also is naturall ( so termed ) Rei iudiacatae , and the reason is , Ne sepius iudicetur in id ipsum : But other exceptions , such as rather tend to frustrate or delay the processe , than informe the Iudge , bee repulsed , as opposite ( more ) than agreeable to nature . The Sacrament or oath , so termed Iuramentum calumniae , Howbeit deriued from the ciuill lawe , yet it sauoureth so of naturall equitie , that it is retained amongest the rest ; for this doth bridle the malice of contenders . The secret examination of witnesses , and regard of their depositions , viz. Howe they accord , and conclude , is another , obserued in the Elders ( before Daniel ) against Susanna . " These naturall obseruations be familiar to our reuerend Ordinaries , and their learned Officials , in their places , and the regular solemnities in theirs ; it were to be wished they were as familiar to the residue , our rurals inferior and peculiar Iudges .

But with these we haue nothing to do in this trial : briefly our naturall ordinarie his Processus , i. His order , is this , viz. he proceedeth without solempnitie eyther of Libel , or Contestationis litis : Ordinarie vacations he respecteth not , ordeined for mans necessities , dilations he abridgeth , cutteth off frustratorie and friuolous exceptions and appeales , the multitude he represseth of witnesses , aduocates , and proctors , natural and iust defences onely he admitteth : vrgeth the oath de calumpnia and veritate dicenda ; Citeth vnto sentence , and determineth his finall decrec in writing . This is the sum of the Decretal , the substance of the text ensueth . viz. o o Sepe contingit . Sepe contingit quod causas committimus : & in earum aliquibus simpliciter ac de plano ac sine strepitu & figur a iudicij procedi mandamus ; de quorum significatione verborum à multis contenditur : & qualiter procedi debeat dubitatur . Nos autem dubitationem huiusmodi ( quantum nobis est possibile ) decidere cupientes , hac in perpetuum valitura constitutione sancimus , vt iudex cui taliter causam committimus , necessario libellum non exigat , litis contestationem non postulet , in tempore etiam feriarum ob necessitates hominum in dultarum a iure , procedere valeat , amputet dilationum materiam litem quanto poterit saciat breuiorem , exceptiones , appellationes dilatorias , & frustratorias repellendo : partium aduocatorum , & procuratorum contentiones & Iurgia , testiumque superfluam multitudinem refrenando , non sic tamen Iudex litem abbreuiet : quin probationes necessariae & defensiones legitimae admittantur .

Citationem vero , & praestationem iuramenti de calumnia velmalitia , siuè de veritate dicenda , ne veritas occultetur per commissionem huiusmodi intelligimus non excludi .

Verum quod iuxta petitionis formam pronunciatio sequi debet per partem agentis , et etiam rei ( si quid petere voluerit ) est in ipso litis exordio petitio facienda : siuescriptis , siue verbo , actis tamēcontinuo , vt super quibus positiones & articuli for mari debeant , possit haberi plenior certitudo , & vt fiat desinitio clarior , inserenda .

Et quod positiones ad faciliorem expeditionem litium propter partium confessiones & articulos ad clariorem probationem vsus longeuus in causis admisit , nos vsum huiusmodi obseruari volentes , statuimus vt iudex sic deputatus a nobis ( nisi aliud de partium voluntate procedat ) ad dandum simul vtrosque terminum dare possit & ad exhibendum omnia acta & munimenta quibus partes vti volunt in causa ; post dationem articulorum diem certam quandocunque sibi videbitur valeat assignare : eo saluo , quod vbi remissionem sieri contingeret pro testibus producendis , possint etiam instrament a produci , assignatione huiusmodi non obstante : interrogabit etiam partes siuè ad earum instan tium siuè ex officio , vbicunque hoc equitas suadebit : sententiam vero definitiuam citat ad id , licet non peremtoriè partibus inscriptis & prout magis sibi placuerit stans , vel sedens , proferat : etiam si ei videbitur conclusione non facta , prout ex petitione & probatione & alijs actitatis in causa suerit faciendum . Quae omnia etiam in illis casibus in quibus per aliam constitutionem nostram vel alias procedi potest simpliciter , & de plano ac sine strepitu & figura iudicij voiumus obseruari . Si tamen in praemissis casibus solemnis ordo iudiciarius in toto , vel in parte , non contradicentibus partibus obseruetur , non erit processus propter hoc irritus , nec etiam irritandus .

The incident question is now returned whence it came , and certified to the secular court : the ordinary Functus est officio suo , we leaue the natiuitie therefore discussed , by vertue of the kings transmission , to the , censure of the secular iudges , and descend continuing stil our stile ( in natiuities ) canonically to matrimony and legitimate issue .

CHAP. V.

Of matrimonie , and Legitimat issue .

OVr scope hath been hitherto tied to a limitted iurisdiction , viz. The secular Transmission from the king : we haue not therfore defined Bastardie , and so we deeme it needlesse stil , the legitimate issue may verilie suffice for this : that is to say ( as contraries doe ) the one to explane the other .

But legitimat issue , let no man vnderstand legitimate only , that is to say , such as be adopted children , for there is in such but a bare immitation of nature , neither haue we vse ( in this land ) of adoption nor arrogation , but naturall and legitimat , that is the legitimate issue we speake of here , viz. Naturall and Legitimate both : naturall , so termed , Quia naturalitèr generati ; legitimat , ex Legitima parentum coniunctione approbata per leges , that is to say , Natural , of their naturall begetting ; legitimat , of their parentes lawfull coniunction , approued by the lawes : this is the issue of the body lawfully begotten , other issue hast thou none but Bastards .

What shal then become of the issue sprong from Clandestine marriages ? Clandestine marriages we call them Quae clam contrahuntur , that is to say , That bee contracted so priuily that they cannot bee lawfullie proued by witnesses , p p C 1. & C. Cum inhibitio ext. de Cland. desp . shall that be bastarded ? I saie not so without exception , but I counsell thee trust it not , for I assure thee , ( howsoeuer the matrimonie holdeth before God and the world ) if the parties shall both of them acknowledge it , incurring onely a corporall pennance , and the clerke that shall celebrate the same , but 3. yeares suspention from his office , yet if the one confesse it not , or that which is more , renounce the marriage , and the other proue it not , ( for in this case the partie is enioyned to proue that pleadeth the matrimonie ) q q d. c. 1. Cland. desp . verily proued , it holdeth , Coram Deo & Ecclesia , i. Before God and the congregation , otherwise , Coram Deo , qui corda scrutatur , &c. that is to say , Before God it shall stand ; the searcher of the secreats of all hearts : but Ecclesia non iudicat de occultis , It is too secreat for the church to determine . Touching therefore this issue , to come to the determination of the church , i. The law of the church , Let vs wade but a little further , and suppose by the way but that that falleth out indeed often times : viz. Thou contractest thy selfe and marriest ( priuely ) with a woman , who afterwards contracteth and marrieth openly with another , whose wife shall shee be ?

Touching the resurrection , our sauiour Christ answered such a question to the Saduces r r Mat. 22. but thus the law doth answere this . viz. eyther it may ( the Clandestine marriage ) be proued , and then it shall preiudise the publique ensuing contract , touching first the consumation s s c. Quod nobis in sin . de Cland. desp . &c. quod nobis . qui fil . sunt legitimi . of the publique , if it bee not consumated : next , it shall preiudice it , if it be consumate , touching the legitimation of children : but namely of such as be borne of the publique matrimonie , post receptionem ecclesiae , that is to say , After the Church hath receiued and published the Clandestine : t t c. 2. Qui filsunt legit . and not otherwise : For from the publication of the clandestine marriage , the publique shal be iudged vnlawfull , but the issue not disabled of the publique that is sprung before , u u d. c. 2. Eod. tit . though the marriage be disolued afterwardes : so this danger thou contractest withall , whosoeuer , that weddest thy wife in the darke : And more than that , if haply hee beget hir with childe ( as such mischances fall , whether before or after publication of thy marriage ) so it be borne in matrimonie , be aduised whether the law ( in fauour of legitimation ) groundeth not more vpon thy possible excesse , than the actual cohabitation of the other : presuming him an adulterer x x Bald. in L. si à matre . Eod. de suis & legit . Ab. in c. accedens . de purg . Can. ext. ; consequently if thou verifiest not the prouerbe , my cow , my calfe : the bull is not regarded .

For touching the cohabitation of thy wife with an adulterer , whatsoeuer may be saide in the canon and ciuill lawes , consider ( for more suretie ) after the lawes of this land , whether thou art within or without the foureseas , at such time as the child be conceiued . y y Bracton . De leg . & cons. ang. lib. 1. c. 9. in fin . Brook . tit . Bastardy . n. 4.

A second danger thou hazardest in Clandestine marriages , whether greater , lesse , or equall with the other , I will not stand to prooue , but measure it , and take it as it is , viz. Thou tastest haply the forbidden fruit : Looke more for this in the figures and declaration of consanguinitie and affinitie in the 6 and 7 chapters ensuing , there is pictured for thee the tree & the fruit : Well , thou tastest the forbidden fruit with good intent : for so the law intendeth thou hadst bonam fidem , if thou knewst it not : i. Thou tookest her not to be of kinne , or at the least so neere of kinne vnto thee : thy issue shal be bastarded ( here ) by reason of thy Clandestine marriage : Nec de parentum ignorantia , vllum est habitura subsidium , i. Excluded quite from the benefite of their parents simple ignorance : of whom the lawe presumeth ( in case of Clandestinitie ) that they were not ( thy parents ) vnwitting of their impediment , or affectors rather of that ignorance : howbeit otherwise , that is to say , contracted in the face of the Church , their ignorance had relieued them . z z d. c. Cum inhibibitio ¶ . Si quis . ext. eod. tit.

Neuerthelesse vnderstand this in issue that is had ante latam sententiam diuortij , i. Before the sentence giuen of diuorce : for so conceiue withall , they must be diuorced howsoeuer . a a Si tamen infideles , qui secundum vetetis , vel propriae legis instituta , circa gradus consanguinitatis , vel affinitatis a canonibus notatos , coniuncti sunt , domino inspirante , conuersi fuerint , matrimonium anteà contractum non erit post baptismi lauacrum irritandum : cum per sacramentum baptismi , non soluantur coniugia , sed crimina dimittantur . Vnde & proles indenata legitima censibitur . c. de infidelibus . ext. de consang . & aff. Haec instit . iuris can . lib. 2. tit 13. si tamen . Lancelot .

Touching legitimation , it is otherwise in these prohibited marriages , howbeit openly and solemnly had in the face of the Church where the parents be priuie to their impediments . b b d c. Cum inhibitio . eod. tit

The like of him or her that marrieth a second husband or wife , liuing the first : c c Bracton . in which case also as in the other before , Solemnitie , Clandestinitie , Priuitie , and Ignorance , haue their effects accordingly .

Here we may remember ( and not without cause ) the diuorced husband and wife : but why do I terme them diuorced , if man & wife ? or why man and wife , if diuorced ? doe they not marrie againe with others ( liuing the diuorced ) ? they do , but they doe not wel therein ; the positiue lawes of the Church be against it : and therfore I terme them the diuorced husband and wife , that is to say , diuorced onely a cohabitationè , i. From mutuall dwelling and cohabitation togither , and not ( as some would haue it ) a vinculo , from the band of marriage , which is indissoluble .

They may read in the Epistle to the Corinthians 1. Cor. cap. 7 thus : Vnto the married I command , not I , but the Lord ; Let not the wife depart from hir husband : but and if she depart , let hir remaine vnmarried , or be reconciled to her husband : and let not the husband put away his wife . And againe , Art thou bound vnto a wife ? seeke not to be loosed : they answere , Except Cap. eod. it be for whoredome : they say well ; hereby they put her away : but doe they marrie ( during hir life ) with another , by the same exception ? When Iesus had shewed himselfe to his disciples at the sea of Tiberias , which was the third time he appeared vnto them after he was risen from the dead , hee communed there with Simon Peter , when they had dined , and signified in the end vnto him by what death he should glorifie God . Lord ( said Peter ) what shall this man do ? meaning that disciple whom Iesus loued so , & that leaned on his brest at supper . What is that to thee ( saidour sauiour ) if I will that he tarrie till I come ? follow thou me . Then went this word abroad amongst the brethren , that this disciple should not die : yet our Lord sayd not , hee shall not die , but if I will that hee tarrie till I come , what is that to thee ? So , this is gone abroad , He may marry another : yet the Lord hath not said , He may marrie another ; no more than ( when he spake , Thou shalt not take a wife with hir sister during hir life ) he said , Thou mayst marrie with hir sister , thy wife being dead : Basilius therefore answered vnto this , Epist. ad Diodorum , Non temerè ex eo quod scriptum est , colligendum esse quod scriptum non est : that is to say , That that is not written , must not be vnaduisedly gathered , from that that is written : no nor yet that thou shalt put away thy wife for whoredome art thou commmanded to it , nor commended for it : neuerthelesse ( for that ) thou art permitted . Wilt thou be assured in this case , & walk where thou needest not wauer , but ground thy selfe on faith indeed , August . in coment . suo ad ● . Cor. cap 7. & in Hom. 49. de adulteritus coniu●is . quae sententia allegatur in cap. ● Quemadmodum 32. Q 7. Idem tenet Hieron . ad damas praesbit . 〈◊〉 cap. omnes . D. 32. Q. 7. vid. Q. per totum , & con 〈…〉 allegat . and so to be free from sinne ? Absteine , or els be reconciled : in no wise contract a new with anie other vpon diuorce , & seperation made by the Iudge for a time , the lawes yet standing to the contrarie . Besides diuerse learned and most reuerend Fathers and Councels of the Church be against thee .

But , Hinc illae lachrimae : These contracts wee haue mentioned , affoord them the greatest fauour the law presumeth for them : the Scandal remaineth yet a blot ( in perpetuitie ) notwithstanding : for , Post secutam copulam & sufceptam prolem detectis quibusdam impedimentis , non sine graui scandalo contracta matrimonia retractari oporteat . Marriages ( that is to say ) confumat with bodily knowledge and children , detected afterwardes of certaine impediments , without great offence , cannot be dissolued . d d Glo. in sum . 30. Q 5 & can . Si quis 〈…〉 5● . His itaque . dist. 30 Q 5.

A second offence ariseth exceeding this in a higher degree so termed , Reatus adulterij : as much to say , as the breach of the 6 commandement : and thus it falleth out , viz. Si alter coniugi● qui clam contraxerit coniugium negauerit ( legitimis probationibus deficientibus ) iudicis sententia ritè fuerit absolutus ; vterque alijs nubendo , incurrit reatum adulterij , i. If one of these priuie contractors shall denie the matrimonie , and consequentlie ( for want of proofe ) be freed from the other by sentence of the iudge , they incurre eyther of them , by marrying vnto others , the daunger of adulterie . e e De clandest . desp . Iud. iuris Canon Lancelot .

Hence it was prouided , Consultissimè by the law , f f C. 2. 30. Q 5. vt nullus fidelium occultè nuptias contrahat . i. That Christians should not so priuely make their marriages , but that the minister of the Church should against the consumation of the same , proclaime or publish ( as we terme them ) the bans to this effect , that if any man or woman could alleadge any lawfull impediment why such and such , &c. should not be ioyned in lawfull matrimonie , they should then alleadge it , &c. at the first , second , third , or last publication , &c. the minister is also inioyned , vt ipse inuestiget vtrum aliquod futuro matrimonio obsistat impedimentum , as much to search , as in him may lie , if any obstacle ( or not ) may repulse the matrimonie approching . g g D. c. cum inhibitio in princip. ext. eod. tit.

This law is more precisely obserued in other countries than in many partes of ours , especially our exempted iurisdictions , for there it wil not serue , I mean where this obseruation is , to dwell a yeare or two in a place ( hauing been a stranger els all the daies of his life ) to make him of that parish onely where he dwels in respect of matrimonie , if he contracteth there : but shal be sent to seeke the places whence he came , and letters testimonial from thence , namely from the ministers of those remote & far distant places , to testify of him , ( touching mariage there ) whether he be bound or free ; Abbas reporteth this obseruation in his time , the which Panormitan relating , two learned doctors , of great authoritie of opinion is cleare touching the minde of the letter of the law , that so it ought to bee in such cases : and for mine owne parte , ( Saluo semper meliori iudicio ) if the law be not such with vs , it shal lie open to a manifest fraud , for what is that to Barwicke where I was borne , and liued thirty yeares together , the bannes should be published two yeares after at Islington or S. Iohns parish , by London , where I dwelt and am dwelling , in the one and in the other , but two bare yeares , happily two monethes , yea why should not two daies serue my turne ? I flye from Barwicke , & am entertained at Islington , wher I rest a winters night , and hauing contracted my selfe with my Mistris , or hir maide , for some causes best knowne to our selues , I take my leaue honestly in the morning , & am entertained again fresh & fasting in S. Iohns parish , there I pray ( the morrow after ) publication in the parish church of matrimonie , betwixt me and I know not whom , for my accquaintance was but smal , yet I can name my selfe , my mistris ( you must suppose her a wyddowe ) or her mayde , or if my memorie fayles me , I haue their names in writing ; Islington is a common name known farre and neere , there dwels mine old mistres and my fellow , & there dwelt I for a long winters night togither : as for S. Iohns parish , I shal not need to charge my memorie with it , it is sufficient I tender the bannes there , and say whose man I am ; we shal be thus denounced , my new wife and I together , at these two parishes , and my poore old wife at Barwicke , shal be neuer the wiser .

This ( saith Panormitan ) he hath seen , De facto , in his time , and surely iniquitie is riper in ours , yea rotten ripe , it is but needlesse to faine an example , for let him say that hath not seene , or crediblie heard of , ( in this age of ours ) as great experience as this : and whence commeth it ? verily , after Clandestine marriages alwaies premised first , next from the inconsiderat examining the condition and state of the person , and certifying with the like discretion , and receiuing their certificates together , whose bannes and mariage they publish and solemnise .

This I could counsel them whom it concerneth in that behalf , to looke vnto , for two causes ; the one , the open scandal that may ensue such marriages & contracts ; the iminent danger the other , of the Canon ; that pointeth at the world , this at themselues : the law hath Duplicem mentem , not a double meaning , such as is their excercise that fold them as they list , but the same vnderstanding in both , the onely difference is , the one is nearer , the other further off , viz Extensiuā , and comprehensiuam , of these in the tractat of the ordinarie . In the meane time ( touching the mind I haue deliuered here of the canon in Clandestine marriages ) such as be disposed , and whom it concerneth besides , let them learne if they please , and sure it is worth the knowledge , whether it comprehendeth , or we haue extended vnto it .

And touching Clandestine marriages generallie , such be moreouer sayd to be so , in which be omitted Solemnitates quas ecclesia de honestate requirit . i i D. c. cum inhibitio . eod. tit. that is to say , Such decent solemnities as the church hath ordeined , as Publicum proclama , traductio in ecclesiam , benedictio sacerdotis , annulus , &c. Neuertheles they shall not , the defect of these , frustrate the marriages had , if no other impediment ensue , only it hindreth the cōsumation of the contract not had , and as we haue sayd , they agrauate the paine , they be not otherwise reputed for substance , but decency , according to the text , Omnia decenter & secundum ordinem fiant &c. Neuerthelesse concurring with lawfull impediments and detected ( as in other cases of Clandestinitie ) they disable also the issue . Glo. in d. c. cum inhibitio ver. Clandestina . eod. tit.

Hostiensis , of no lesse authoritie than learning , concludeth generally that euery matrimony had against the churches prohibition general , or special , expressed , or not expressed , shal be deemed Clandestine & subiect to the Canon . m m Host . super c. cum inhibitio Pan. eod.

Here I might speake of the prohibited times to marrie , that is to say from the first sunday in aduent , to the octaues of the Epiphanie inclusiuely , the first prohibition . The second from the Lxx. sunday , to the octaues of Easter inclusiuely . The third , from the first Rogation day , till the seuenth of Pentecost , that is to say , till Trinitie sunday : vpon which day it is lawfull to solemnize n n De ferijs c. capellan . exc . ●●…nd . de dec . & oblat . ver. nubentium . .

This hath beene , and is the obseruation of the Church at this day , namely to suspend in these times not the beginning , nor ratification of matrimonie , o o Patrimonium initur . per sponsionem , ratificatur per consensum , consumatur per copulam . but the accessorie solemnities onely , and the consumation of the contract ; neither can I finde it so strict , this temporall prohibition , as it is ( for the most part ) interpreted to be , for thus I find it qualified , viz. Haec autem seruanda sunt , si vxor consensum adhibere voluerit , the glosse addeth & contra : that is to say , This abstinence taketh place , if the wife shall consent thereunto : and likewise if the husband , for they haue not power of their bodies in themselues , but either ouer other in due beneuolence : this the canons terme Debitum coniugale , wherin they be prohibited to defraud one another , except it be by consent for a time q q 1. Cor. 7. 3. 4. 5. ; no reason then the Church should defraud them both . Let me not offend , in shewing the significations I haue read of these prohibited times to marrie , leauing the same vnto them , that best be able to iudge them .

The time of Aduent , represented Tempus absentiae sponsi , i. The absence of the bridegrome , in the which his spouse most of all desireth , Aduentum , i. The comming of hir husband , and which shee importuneth daily . This she inquireth of passengers too and fro , abandoning all delightes , so saith a father , Sponsa ecclesia tempore aduentus querit in lectione prophetarum quos tunc legit & qui de hoc certam habuerunt reuelationem : Ideo in memoriam sponsi absentis , sed desiderati , ecclesia tunc temporis ordinat filios suos a nuptijs abstinere . The spouse ( saith hee ) the Church , euen seeketh so this time , the comming of her bridegrome in the Prophets , which then she readeth and who haue had thereof certaine reuelation ; and therefore shee hath this time of Aduent in remembrance of hir absent , but most desired bridegrome , ordained that her sonnes should abstain from marriage r r Itinerar . Paradis . de mat . ser. 2. .

The second prohibition represented Tempus luctus in quo lugemus casum Ad●… : & casum nostrum in ipso . The second prohibition , that is to say , the time of lent , it represented a time of mourning ; wherein we bewailed the fall of Adam , and ( in him ) our owne : and the dangers consequently herein we haue fallen into . We should not therefore in these dangers reioyce , but lament rather and pray : it hath not therefore in this time , the Church , wherin she bewailed hir sinnes , in dread of such imminent dangers , giuen libertie to hir children to marrie .

Here they haue inferred , that Noah whilest he was in the Arke , knew not his wife , nor his sonnes theirs ; but liued there apart , yea and all other creatures besides , both male and female : for hauing continued in the arke , by the space of a yeare , they are not read any of them to haue multiplied . Againe the scripture s s Gen. 7. 7. speaking of the entrance of Noah into the Arke mentioneth it thus ; Noah entred , and his sonnes : and afterwardes ( as though they went apart ) and his wife , and his sons wiues : but otherwise of his going forth , viz. Go forth of the Arke , thou and thy wife , and thy sons & thy sons wiues with thee : t t Gen. 8. 16. So that the words which were in their entrance vsed apart ; were vsed togither in their going forth . Hence Hierome writeth vpon Zacharie , Temporibus tribulationis & luctus non debere sapientem inserutre operibus nuptiarum , that is to say , That they ought not , the actes of marriage , to be yeelded to ( of him that his wife ) in the times of tribulation and mourning .

Plangent terrae , &c. And the Prophet v v Zecharian . 12 writeth thus of the siege of Iudah against Hierusalem . In that day shall there be a great mourning in Hierusalem , &c. And the land shall bewaile , euerie familie apart : the familie of the house of Dauid apart , and their wiues apart ; the familie of the house of Nathan apart , and their wiues apart ; the familie of the house of Leui apart , and their wiues apart ; the familie of Shimei apart , and their wiues apart : all the families that remaine , euerie familie apart , and their wiues apart .

The third prohibited time , including the Ascention and Penticost , ( hereunto were added the 8 daies after Easter ) represented Tempus glorificationis , wherin ( saith the Lord ) x x Luke 20. 36. we shal be Sicut angeli Dei , i. Equall with the angels of God , which neither marry , nor are married . Briefly , the first prohibited time mentioned here , represented the time of reconciliation : the second of tribulation : the third of glorification .

This for the prohibitions ( I haue read ) of the times ; but where we haue mentioned De legitima parentum coniunctione approbata per leges , in the beginning of this chapter , that is to say ; Of the lawful coniunction of man and woman approoued by the laws : it resteth of the prohibition of the persons : for so wee shall iudge of lawfull coniunctions , and so of lawfull issue . And touching these persons sithens they be in nearenesse in themselues , discerned by consanquinity , and affinitie ; & consequently whether prohibited ( there ) to marrie or not , we haue next declared consanguinitie and affinitie in their orders , to manifest the prohibitions the better .

CHAP. VI.

Of consanguinitie or bloud : the figure and declaration thereof .

COnsanguinitie is a bond or linke of persons descended of the same stocke , deriued from carnall propagation : so called , Consanguinitas , quasi sanguinis vnitas : That is to say , Consanguinitie of the vnitie or communitie of bloud . y y Io. And. in decla . arb. consang . And this , whether it be lawfully contracted or otherwise : that is to say , Carnall knowledge and issue had in fornication , equally contracteth consanguinitie with matrimoniall knowledge , touching the prohibition of marriage . * * De preb c. per tuas . 28. 11. 8. c. 7 statute .

Now to discerne prioritie or neerenesse in bloud , two things must be regarded principally , so called , Linea , and Gradus : as much to say as the line and degree : whose vses the figure here ensuing shall declare at large , viz. to be the one of them , namely the line that , that gathereth togither the persons , conteining their degrees , and distinguishing them in their numbers , this is called Collectio personarum : the other the state or condition of the distant persons , shewing them how neere they be , or how farre asunder ( in themselues ) from their common stocke , or either from other : This is called Habitudo distantium personarum : & dicitur gradus ad similitudinem scalarum graduum , siuè locorum procliutum , quia ita gradimur de proximo ad proximum . z z L. Iurisconsultus . ft. de arb. aff.

It is also to be noted , this line to be threefold ; that is to say , Ascending , Descending , and Collateral . a a L. 1. aff. de grad. aff. c. 1. 26. Q. 5.

The ascending line is from me to my father , to my grand-father , great graund-father , and so vpwardes : in this figure from ✚ to A. B. C. D. Contrariwise , the descending line from me to my sonne , nephew , his sonne , downwards : in this figure , likewise from ✚ to a. b. c. d.

The collateral line is placed on either side : this is also noted to be twofold , viz Equall & vnequall . The equal colleteral is that , where equally they differ , the persons , from their common stocke : as brothers and sisters be equally distant from their father , as also be brothers & sisters children from their graundfather .

The vnequall , where one precedeth or goeth before or after another , such be brothers , and their brothers or sisters children , and others apparant in this present figure , as also in the Legal figure before , easely discerned by their equal or vnequal distance , by relation from themselues to their common stocks . Common stocks vnderstand such as be placed in this figure from ✚ vpwardes in the ascending line , A. B. C. D. there is proceeding from these , on eyther side , a generation manifest in this figure ; such be Collaterals , equall or vnequall , distinguished by their places : for example , Let vs make A the first stocke in the ascending line , for so it falleth out by order and course of nature , ✚ is descended from him , who pointeth at his equall collaterals b 1. b 1. on either side : behold then the discent from b 1. is c 1. from thence d 1 , from thence e 1 ; now b 1 is in the first degree to ✚ , c 1 in the second , d 1 in the third , e 1 in the fourth ; these be all from the stocke A. viz. b 1 , c 1 , d 1 , e 1 , collaterals vnto ✚ , i. one equall on either side , at whome hee pointeth equilaterally , namely b 1 ; the other three vnequall , eache further distant from him than other : for so they exceed ( first ) the equall collateral line of ✚ , and next they exceed themselues in descending as they goe .

The second stock is B , A is descended from him in this figure , and c 2. on eyther side : from c 2. is descended d 2 , from d 2 e 2 , from e 2 f 2. B is here in the second degree ascending vnto ✚ , and b in the second degree descending vnto him , vnto whom vpwards and downwards he pointeth directly , he pointeth also at d2 . and d2 . collaterally , these be all from the stocke B. viz. c2 . c2 . d2 . d2 . e2 . e2 . f2 . f2 . collaterals vnto ✚ as the other were in the stock before , that is to say d2 . and d2 . equals , c2 . and c2 . extend not to his line , and e2 . e2 . f2 . f2 . exceed it . Here is likewise one equal collateral vnto ✚ on either side , & three vnequals , exceeding ( as the other did ) themselues , in their descending as they goe .

And they be thus in degree vnto ✚ viz. c2 . and c2 . in the second degree , d2 . and d2 . in the same second degree , e2 . and e2 . in the third , f2 . and f2 . in the fourth , not encreasing in the collaterals from the stocke til they exceed the equall collaterall line of ✚ , such be from the first stocke c1 . d1 . e1 . which encrease in euery person , from the equal line vnto ✚ one degree .

Such be also from the second stocke e2 . f2 . from the third stocke g3 . The fourth generation determineth in this figure at the collateral equal line , viz. h4 : from the fourth and last stocke in the fourth degree vnto ✚ . This is after the Canons , and not the secular lawes , whose reason and difference we haue handled in the second chapter before , neuerthelesse it shall not be superfluous to deliuer ( as they tearme them ) such Magistral rules as the autenticall maisters , fathers and doctors of the law haue determined in these lines to distinguish as well the degrees , as to shew the difference we haue mentioned betweene the lawes and the Canons , the first wherof is this , viz.

In the right or straight ascending and descending lines , how many persons there be ( computation had The first rule of themselues & the persons that be placed betwixt them ) whose distance is demaunded , substracting but one , there be so many degrees . For example , if Vna dempta . thou wilt know how many degrees D. differeth in this figure from ✚ , thou shalt find ( with themselues and those together betwixt them ) fiue persons , conclude there be foure degrees , and that they differ consequentlie , ✚ and D , either from other , in the fourth degree .

The same conclusion is of ✚ and his descending d. for there be numbred likewise fiue persons , and so concluded foure degrees .

If thou wouldst know how they differ , D. from d , thou shalt finde there be numbred nine persons , conclude eight degrees , & that they differ consequentlie D. and d. either from other in the eight degree : the rule holdeth in this line in the residue , all one here after the laws and Canons , onely their difference is in the Collaterals , whose Magistral rules be these , viz. Collaterals in the equall line , how many persons The second rule . there be from either of them to their common stock , so far they differ either from other ; from ✚ ( for example ) to D. there be foure persons , from h4 . likewise to the same stocke D , be foure persons , ✚ and h4 . shall differ therfore , and be distant from themselues in the fourth degree . This is after the Canons .

After the laws it is otherwise , viz. collaterals in the equal line , how far they differ either of them from their stock in number of persons , in that number doubled they be distant from themselues ; this is apparant in the Legal figure , in the 2. Chap. before , for example , ✚ in that Legal figure differeth as it doth here in the same number of persons from D and from h 4 to the same D there , there be numbred likewise foure persons ; either of these numbers doubled from the persons to their common stocke , that is to say , either from ✚ to D , or h 4 to the same D , in that Legal figure maketh the number of eight : so many degrees shall the persons be a sunder , and this diuersitie ariseth as we haue touched in the 2. Chap. before , in that euery person addeth a degree in the collaterals , after the laws : as two brothers make two Legal degrees , which after the Canons do make but one . Their computations be diuers , as also their causes be diuers , whose reasons and difference we referre to the said 2. chapter before , only this difference we may note in this place , because it is not mentioned there , viz. In the equal collaterall line , whether the line consisteth of euen or odde numbers , the degree falleth alwaies out ( in number ) to be euen , after the lawes : this may be seen in the Legal figure in the 2. and 4. and 1. and 3. stocks there , for 2. make 4. and 4. make 8. in the equal collateral line , as also do 1 make 2 , & 3 , 6 , in the same collateral line : this appeareth in this Canonicall figure otherwise , for 1 maketh one , 3 three , 5. fiue , &c.

The rule remaineth now to be spoken of , touching The third rule . collaterals in the vnequall line , which after the Canons is this , viz. Collaterals in the vnequal line , how far they differ ( the furdest of them ) from their stocke , so farre they be either of them distant from themselues : for example , D is the stocke to ✚ and f4 in this figure , to know their distance in bloud , we must make our computation from the furthest : this appeareth in the figure to be ✚ , which differeth in the fourth degree from D , so many degrees therefore shall hee differ from f4 and consequently ✚ and f4 either from other . The same in the other descending collaterals vnto ✚ , Vsquè ad lineam aequalitatis : that is to say , The same computation that is had from ✚ to the said common stocke , the same computation shall hold betweene ✚ and euery descending person from the same stocke collaterall vnto ✚ , euen to his equall collaterall line : for they increase not ( as we haue said before ) one degree vnto ✚ , till they shal haue exceeded his equall collaterall line .

This ( if wee prosecute our example in the same stocke , D ) shal be manifest : for ✚ differing from this stocke in the fourth degree , differeth therefore from e4 in the fourth degree , from f4 in the fourth , from g4 in the fourth : and from h4 in the fourth . Hence it is holden an infallible rule in the canons , that a person begotten , begetteth not a degree , till the equall line be exceeded : and then ( and not before ) they increase in euery added person .

It is otherwise after the legall computation , for after the lawes it is thus : viz collaterals in the vnequal line , how many persons there be , ( substracting the stocke ) so many degrees . This appeareth in the same stocke and persons that wee supposed in the canonicall computation before : for ✚ differeth heere ( as there ) from D in the fourth degree : but e 4 ( heere ) in the fift , f4 in the sixt , g4 in the seuenth , and h4 in the eight , and so euery person without exception ( after the lawes ) doth increase a degree . I referre thee for example to the legal figure .

It shal be needlesse to prosecute euery particular stocke in this figure at large , for the same reason holdeth This figure is placed at the end of the next chapter here ensuing : togither with the figure of affinitie there . Secundum , Ioh. An. of those we haue touched , and the residue : We leaue them therefore ( with this relation ) to the figure insuing here of Consanguinitie , descending to the figure and declaration of affinitie , according to our promised order .

CHAP. VII .

Of affinitie or alliance by marriage . The figure and declaration thereof .

AFfinitie is ( after the Lawes ) personarum proximitas proueniens ex iustis nuptijs : as much in effect , as a neerenesse of persons proceeding from lawful marriages a a Non facile . ¶ . affines . & ¶ . sciendum ff. de grad. affinit . : for so it is contracted , and not otherwise , after the ciuil lawes : howbeit the canons haue and doe also , respect affinitie in this place , as wee haue mentioned of consanguinitie in the chapter going before , that is to say , Equally contracted in matrimonie , and otherwise b b De prob . d. c. per tuas . statut. praeal . H. 8. Anno. 28. c. 7. : for after the canons , it is ( Affinitie ) personarum proximitas ex quocunque coitu proueniens : owni carens parentela , A ncerenesse of persons proceeding from euerie carnall knowledge , without any maner of parentage , or auncestrie . And of that affinitie we speake of here : so called ( Affinitas ) quasi duorum ad vnum finem vnitas : As much to say , as an vnion or consolidation of two , viz. that be diuerse in one : for so they be , diuerse kinreds , by marriage or other copulations conioyned .

By this , it is contracted ( Affinitie ) two manner of waies ; First by lawfull marriages ; next by vnlawfull knowledge c c c. Discretionem . c. penult. ext. de eo qui cog . consang . vx . suae . : And hereof there be three sortes or kinds . The first is contracted thus , viz. My brother & I be Consanguins in the first degree , he taketh a wife , hir they call Personam additam personae per carnis copulam , as much in effect as , a person added to another by carnall or fleshly knowledge : this is the first kind of affinitie , contracted by meanes of my brother ; that is to say , betweene his wife and me : and the first degree : for thus they be ( the kinds and degrees ) discerned in affinitie , viz. By the persons that be in consanguinitie or bloud , neerer or further off : distinguished in the figure before , by their seuerall distance . For example , my brother is the first degree to me in consanguinitie : his wife in affinitie : my brothers sonne , in the second : his nephew in the third : his nephews sonne , in the fourth , they in consanguinitie : their wiues in the same degrees ; second , third , or fourth vnto me , but they in affinitie : they alter verily attinentiam , these added persons : that is to say , They attaine not to ( in me ) by their addition that , that I haue attained ( by bloud ) in the persons they be added vnto : for herein ( that is to say , in attinencie ) we be distinguished by consanguinitie , and affinitie : briefly ( that I may vse the termes ) my brother is my consanguine , his wife my affine , onely they retaine and participate with me the degree , be it first , second , third , or fourth , that I haue with the persons they be carnally known by , the which they alter not .

Consequently they shal be , euerie person in consanguinitie to my wife , in affinitie vnto me ; in what degree in the one , in that degree in the other ; but alwaies in the first kinde , be they brother , sister , nephew , neece , or any other person mentioned in this figure : for note , it conteineth not ( this figure ) but onely affinitie in the first kinde , and that to the fourth degree : forasmuch as the prohibition of marriage , by the canons ( now ) exceedeth not the same in kind , nor degree . d d c. Non debet consan . & aff.

It shal be necessarie heere , wee further declare the force and operation of affinitie ( touching this prohibition of marriage ) that is sprung by vnlawfull knowledge , either in matrimonie , or without : for so it may be as vnlawfully contracted in the one , as in the other ; as if Titius shall haue knowledge with Berta , whose mother hee marries afterwardes , and knowes hir likewise carnally , in this case shall Titius be diuorced from Bertas mother , and prohibited to contract with Berta hir selfe ; and the reason is , Titius shall not dwell with the mother whom he married , because hee contracted affinitie with her before , in his knowledge had with hir daughter . And he shall Stat. anno 28. Hen. 8 cap. 8. verse , and further to dilate . &c. Haec etiam per can per issin . i iuris . not marrie with Berta , because he contracted affinitie also with hir , in his knowledge had with hir mother : and therefore ( in this case ) the first affinitie dissolues the marrimonie had with the mother : the second hinders the matrimony to be had with the daughter .

Briefly thus the law considers in these cases , viz. which goeth before , or followeth , the affinitie , or the contract ; if affinitie , then the contract is disabled that is had afterwardes ; but if the contract , that affinitie preuaileth nothing that is subsequent . We shall not C. discretioneme . tuae , c. fin . de eo qui cog . cons. vxoris suae . greatlie seeme to digresse from our purpose briefly to rehearse the other two kinds of affinitie , if but to distinguish the later from the repealed Canons : for note , the prohibition also extended vnto them e e 35. Q. 3. c. de affinitate , & ext. de cland . desp . c. inhibitio . .

The second kind therfore of affinitie is this , viz. Ad to the first kind therof a person carnallie , as to thy brothers wife ( supposing thy brother to be dead ) a second husband , a second husband I tearme him , in respect of thy affinitie with hir ; for happilie she had vttered a double second before , with these thou hast nothing to do , but this second to thy brother , more properly thy brothers successour , is the second kinde of affinitie vnto thee f f 35. Q. eod. de propinquis . .

If thou wilt haue the third breefly , it is this , ad to thy second affinitie a person likewise carnallie , as to thy brothers wiues husband ( supposing hir to bee dead as thy brother was before ) another wife this is , Quid pro quo , one for another , merrily englished . For a reed a Rams horne ; but in earnest take hir and thy third affinitie together .

So it is said to be Primum genus , i. The first kind of affinitie , Quia primo emanat de consanguinitate : vel quiae ( vna persona mediante ) contr ahitur . Secundum , i. The second kind of affinitie , Quia secundo loco emanat , post primum , vel quia duabus personis mediantibus contrahitur . Tertium , i. the third kind of affinitie , Quia in tertio loco , vel quia ( tribus personis mediantihus ) emanat .

The effect we haue explaned hereof , in these three seueral kindes already , briefly they be so called , the first of one , the second of two , the third of three ; but we prosecute onely the first , for the other we haue related them to manifest the better this first , as also to giue a light ( as I haue sayd ) of the former Canons , and otherwise they haue no being here .

Touching therefore this first kind of affinitie , it is to be noted , and so it may be gathered by that we haue sayd before , viz. It is contracted inter sponsum & consanguineas sponsae , and againe , inter sponsam & consanguineos sponsi , as much to say , It is contracted ( this first kind of affinitie ) reciprocally , i. between the husband and consanguines of the wife ; and è conuerso , betweene the wife and consanguines of the husband , howbeit betweene the consanguines themselues , by this marriage , there is no affinitie contracted , more than was betweene Hobson and Iobson , by looking through a hedge when they spyed one another : somewhat nearer , but Hoc aliquid nihil est , i. so far from this attinencie , that it hath no consequence at all .

Hence it is that the father and sonne may contract and consumate marriage with the mother & daughter , as widdows & widdowers do ; & may do , & their sons and daughters , such as be so prouided for their children , when they couenant for themselues : hence may also two brothers contract and consumate marriage with two sisters g g C. quod super his ext. de cons. & aff. , the like of the vncle and nephew h h C. r. & 2. eod. tit. xxxv . q. v. sanè . .

Many attinencies may hereby be sprung between the same persons : this may be seen in children of diuers families , that be sons either of them to their mothers ; to their husbands , sons and brothers ; and vncle and nephew , to themselues . And thus it falleth out , I marrie a wife that hath a sonne that marrieth with my mother , tearme me ( for examples sake ) Ambrose ; my wife , Mary , who had to sonne Theodor , who married ( as I did his ) with Martha my mother ; I haue issue Peter ; he hath issue Iohn : these attinencies happen ( here ) between Peter and Iohn ; for first , sonnes they be reciprocallie , that is to say , to their mothers , Iohn to Martha , mother to Ambrose ; and Peter to Mary , mother to Theodor ; and so they be sonnes to their husbands ; Iohn to Theodor , Peter to Ambrose ; brothers to the same , i. either to others father ; Iohn to Ambrose , father to Peter ; Peter to Theodor , father to Iohn : for so it is in this example , Iohn and Ambrose had one mother , Martha ; and Peter and Theod. the same mother , Mary ; hence they be brothers , Peter is therefore Iohns brothers sonne ; and Iohn , Peters brothers sonne ; consequently Iohn shal be vncle to Peter , and Peter vncle to Iohn ; how they be nephewes it followeth by this . Conclude them therefore briefly , eache others mothers sonne , eache others fathers brother , eache others vncle , eache others nephew . The figure may be formed , as followeth in the page next ensuing .

Peter . Marye . had T. O. sonne Theodor. who married with Martha .

Iohn . Martha . had T o sonne . Ambros. who . married with Marye .

The computation it hath of degrees , ( I meane this affinitie ) it borroweth of Consanguinitie before , Non habet suam specialem computationem graduum , It hath no computation of it selfe in degrees ; this we haue sufficiently mentioned in this chapter alreadie , only we may describe the figure , the better to conceiue it formed .

First there be placed in the same ( in the middest ) foure compasses with seuerall superscriptions , viz. In the first , the first degree , in the second , the second degree , in the third , the third , & in the fourth , the fourth .

On the right side to these be placed likewise foure compasses , written in the first , brother ; in the second , brothers sonne ; in the third , brothers nephew ; in the fourth , brothers nephews sonne : againe on the same side of these be placed foure other compasses , written in the first , brothers wife : in the second , brothers sonnes wife : in the third , brothers nephewes wife : in the fourth , brothers nephewes sonnes wife .

On the left side of the first foure middle compasses , be placed likewise foure other compasses with seuerall superscriptions , viz. In the first , sister : in the second , sisters daughter : in the third , sisters neece : in the fourth , sisters neeces daughter . Likewise on the same side of these , be foure other compasses , and written in the first , Sisters husband : in the second , sisters daughters husband : in the third , sisters neeces husband : in the fourth , sisters neeces daughters husband .

There be added ( to these ) two other compasses , on the rightside one , on the left side another : the rightside compasse , conteineth ; Brothers wiues husband : the left , Sisters husbands wife . In these the doctors agree they be added for ornament and demonstration besides , of the not prohibited kindes ( in affinitie ) to marrie at this day , they are not otherwise of the substance of the figure .

There be yet obserued two bending lines ; one beginneth at the compasse of brother , and endeth at the compasse of sisters husband : wherein is written ; The first kind of affinitie prohibited at this day to marry .

The other beginneth at the compasse of sister , and endeth at the compasse of brothers wife : wherein is written the same . This forme was first inuented , as also the figures of consanguinitie ( before ) by the famous learned doctor , Iohan. Andre . and autenticall in the canons i i Can. Isidor . & Alex. 35. Q. 5. c. 1. 2. & vlt. : for after diuers contentions in his time had , touching the naturall forme of the figure , and the description thereupon of Iohan. de Deo . Hispan . who seemed by his metrical rules , to open thereunto the right vnderstanding indeed , howbeit the multitude of the same , and obscuritie hee begat in his rules and verses , brought forth another effect : Attendens ipse Iohan. Andr. For so he writeth of himselfe , Antiquorum scripta , &c. Recounting with the canons , the auncient and autenticall writers , hee composed it : handling therewithall these three points besides amongst the rest , viz. The necessitie of it : the authoritie : the often repetition .

For the first , Probatio ad oculum : as much to say , as an eie witnesse : the necessitie of it appeareth both in the lawes and canons ; this wee haue touched in the second chapter before . For the second , the canons we haue cited here alreadie of Isidor . and Alexander , viz. 35 Q. Cap. 1. 2. & vlt. may suffice . And for the third , that I may vse my learned authors words : nomini venit in dubium : id satis esse validum , satisque famosum , quod repitita lectio probat : Let this suffice for affinitie : the figure whereof ensueth .

THE CANONICAL FIGVRE OF CONsang .

Great grandfathers father . The same mother . iiij D 4 e Great vncles vncle . The same aunt . iiij . 5 f his , hir , sonne daughter . iiij . 6 g his , hir , nephew neece . iiij . 7 h his , hir , nephews neeces sonne daughter . iiij . 8 Great grandfather , Mother . iiij C 3 d Great vncle . The same aunt . iiij . 4 e his , hir , sonne daughter . iij. 5 f his , hir , nephew neece . iij. 6 g his , hir , nephews neeces sonne daughter . iiij . 7 Grandfath . grandmo . ij B 2 c Vncle . Aunt . ij . 3 d his , hir , sonne daughter . ij . 4 e his , hir , nephew neece . iij. 5 f his , hir , nephews neeces sonne daughter . iiij . 6 Father , mother . j A 1 b Brother , Sister . j. 2 c his , hir , sonne daughter . ij . 3 d his , hir , nephew neece . iij. 4 e his , hir , nephews neeces sonne daughter . iiij . 5

THEFIGVREOFAFFITIE. The fist kinde of affinitie prohibited at this day to marry . The first kinde of affinitie prohibited at this day to marry Thesbe be added for ornament only and demonstration of the kinde of affinitie but they be not prohebited to marrie . first deg. brother . sisters husband sister . brothers wife brothers wiues husbande sisters husbands wife . second deg brothers sonne . sisters daughters husb . sisters daughter brother sonnes wife third deg. Brothers nephew Sisters neeces husband Sisters neece . Brothers nephewes wife four deg. brothers nephews sonne . Sist . nee . daughter hus-band Sisters neeces daughter bro. nep . sonnes wife

This figure sheweth onely the first kinde of affinitie , in the first collaterall descendents , by carnall addition , that is to say , to thy brother a wife , tothy sister a husband , and so to the fourth degree .

The same affinitie thou hast that is to say , in the first kinde , by the same addition , to euery other person in this figure of consanguinitie .

The degrees shall be more or lesse , according to the distance of the persons they be added vnto : but alwaies in the first kinde , the which the prohibition of the Canons at this day exceedeth not .

CHAP. VIII .

Of the Prohibition Leuiticall .

HAc itaquè consuctudine quae ab ipso exordio humanae propagationis originem habuit , quam nulla lex contra iubendo euacuauerat , excusantur Abraam , Isaac , & Iacob , & ceteri qui de propria cognatione ducebant vxores a a 35. q. 2. & 3 c. igitur . §. hac itaque . . The question of their ages prouoked ( in their times ) the makers of the positiue canon lawes to answere such obiections had against the Patriarches and others that had married in their kindreds and tribes of the families of their fathers . They concluded ( therefore ) they were excused ( Abraham , Isaac , and Iacob ) by that custome that had growen from the beginning of humane propagation ; and that , which no law ( then ) had abolished .

The premisses , or reasons that they vsed ( before ) were these , viz. They were not prohibited b b d. c. cum igitur : in princip. : that Idolatry might be auoided c c Eod § est : that the Church might be instituted in the peculiar people of God d d Eod. § autem . . Deus enim quamuis . sic ab initio salutem humani generis dispensauit , vt primitiuam ecclesiam in illo populo institueret , qui sibi carnis consanguinitate erat propinquus : Hence the Apostles were chosen first of the Iewish nation , whom God appointed ( then ) the foundation ( as it were ) of the Church . Deinde ( in cecitate suae perfidiae Iudaica plebe relicta ) It was translated afterwardes ( the preaching of the gospel ) vnto strangers : Tam fide , quam cognatione carnis à Christo : Despising as it were the companie and conuersation of his consanguine , chose him a wife of another familie : fulfilling these prophecies e e Oseae . c. 4 Isaiah . 5 c. : In peccatis vestris dimisi matrem vestram quasi adulteram & repudiatam , &c. Vocabo plebem meam , non plebem meam . The canons haue enferred hence , that they were permitted first ( these marriages ) but now prohibited .

What the Lord commaunded concerning the daughters of Zelophehad , Mahlah , Tirzah , Hoglah , Milah , and Noah , they did ; that is to say , they married to their fathers brothers sonnes f f Nomb. 36 .

But this was after the commandements and laws which the Lord had commanded by the hand of Moses vnto the children of Israel in the plaine of Moab by Iorden , towardes Iericho : these be handled more at large in the table at the end of this treatise , Sect. 8. Vide tab. sect. 8 we leaue them therfore here , and to our purpose , the Leuiticall prohibition , viz.

6 None shall come neere to anie of the kindred of his flesh to vncouer hir shame . I am the Lord . Leuit. 18. & 20.

7 Thou shalt not vncouer the shame of thy father , nor the shame of thy mother , for she is thy mother , thou shalt not discouer hir shame .

8 The shame of thy fathers wife thou shalt not discouer , for it is thy fathers shame .

9 Thou shalt not discouer the shame of thy sister , the daughter of thy father , or the daughter of thy mother , whether she be borne at home , or born without ; thou shalt not discouer their shame .

10 The shame of thy sonnes daughter , or of thy daughters daughter , thou shalt not I say , vncouer their shame .

11 The shame of thy fathers wiues daughter begotten of thy father ( for she is thy sister ) thou shalt not ( I say ) discouer her shame .

12 Thou shalt not vncouer the shame of thy fathers sister : for she is thy fathers kinswoman .

13 Thou shalt not discouer the shame of thy mothers sister , for she is thy mothers kinswoman .

14 Thou shalt not vncouer the shame of thy fathers brother , that is , Thou shalt not goe into his wife , for she is thine aunt .

15 Thou shalt not discouer the shame of thy daughter in law , for she is thy sonnes wife , therefore shalt thou not vncouer hir shame .

16 Thou shalt not discouer the shame of thy brothers wife , for it is thy brothers shame .

17 Thou shalt not discouer the shame of the wife & of hir daughter , neither shalt thou take hir sonnes daughter , nor hir daughters daughter , to vncouer hir shame , for they are thy kinsfolkes , and it were wickednesse .

18 Also thou shalt not take a wife with her sister , during hir life , to vexe hir in vncouering hir shame vpon her . These in the glosse be briefly collected thus viz.

Nata , Soror , Neptis , Matertera , Fratris ' , & vxor . Et patrui Coniux , Mater , Priuigna , Nouerca . Vxoris quae soror , Priuigni Nata , Nurusquè . Atque soror patris Coniungi lege vetantur .

As much in effect amongst the residue in the admonition or table of prohibited marriages , set forth by the most reuerend father in God , Mathew , Archbishop of Canturburie , primate of England , and Metropolitan . An. 1563. as followeth ; that is to say .

A man may not marrie his Mother . The right ascending line , and first degree . Stepmother . Wiues mother . Sonnes daughter . The right descending line and second degree . Daughters daughter . Wiues sonnes daughter . Wiues daughters daughter . Daughter . The right descending line and first degree . Wiues daughter . Sonnes wife . Sister . The equall collateral line , and first degree . Wiues sister . Brothers wife . Fathers sister . The vnequall collaterall line , and second degree . Mothers sister . Fathers brothers wife .

30 Therfore shall ye keepe mine ordinances , that ye doe not any of the abhominable customes , which haue been done before you .

CHAP. IX .

Of the Prohibition Canonicall .

THe Egyptians were condemned & the Canaanites , in these wicked and incestuous marriages before , the Israelites forewarned therin ( by Moses ) to whom the former prohibition was giuen , for so they were commaunded , the children of Israel , that after the doings of the land of Aegypt , wherin they dwelt , they should not doe ; and after the maner of the land of Canaan , whether then the Lord would bring them , they should not doe , nor walke in their ordinances a a Leuit. 18. 3. ; for in all these the nations were defiled , which then the lord had promised to cast out before them b b Leuit. 18. 34. . This condemnation therfore of the Aegyptians , and the Israelites warning , may be spectacles vnto vs .

The positiue constitutions of the church of England c c In tabula quadam a reuerendissimo patre ac domino Archiepiscopo Cantuar. scripta . publicata , & poste à ab Archiepiscop & Episco , rescripto imperiali . Anno Elizabethae . congregat . app●o● at . & confirmat . , it falleth out to handle the positiue Canon law , but because Ecclesia anglicana , i. the English church , is nearest vnto vs , we will handle it first , and the rather , that this order hath seemed the nearest to manifest ( in this chapter ) our purpose , the Canons shal ensue afterwards .

The positiue constitutions therfore of the church of England haue added certaine persons vnto these ; that is to say , onely in names and tearmes , but not in degree , for though they be not found to be mentioned in the Leuitical , in their names and tearms their nearnesse ( notwithstanding ) in the same degrees , is as manifest as the rest , & whose shames thou discouerest equally with theirs , & thine owne abhomination together . Be not therfore deceiued , it is not the name of Consanguinity , or affinity , wherin the substance consisteth of this prohibition , but the degree . I might cite many laws , but let the statutes suffice , they follow in their orders , viz. in the chapter next ensuing , there thou shalt find them mentioned , not the Leuitical names , but degrees .

Such be in the ascending line , thy grand-mother , grand fathers wife , wiues grand-mother ; not mentioned ( there ) in their names and tearmes , equallie ( notwithstanding ) distant in degree from thee , with thy sonnes daughter , daughters daughter , wiues sons daughter , wiues daughters daughter , whom the prohibition comprehendeth , in their seueral names and tearmes : adde vnto these thy sons sons wife , daughters sonnes wife , whom the church hath decreed the same prohibition extends to . For note , their difference is in their lines , viz. They be distinguished by ascending and descending lines : that is to say , Of thy grand-mother and thy sonnes daughter , and daughters daughter , which be only of the persons we haue mentioned last , consanguines vnto thee , and in the second degree .

The same reason ( in affinitie ) is of the rest , that is to say , Thy grand-fathers wife , thy wiues grand-mother , be equallie ( from thee ) distant with thy wiues sonnes daughter , & wiues daughters daughter these in affinitie , the other in consanguinity , as for thy sons sons wife , daughters sons wife , they be equals vnto thee with thy wiues sons daughter , wiues daughters daughter , i. They differ not in line nor degree : only as before is said , they be distinguished from the persons we haue mentioned before by consanguinitie , & affinitie : otherwise the prohibition equally holdeth in them all . Such persons be also in the vnequall collaterall lines , viz. Thy brothers daughter : thy sisters daughter ; brothers sonnes wife ; sisters sonnes wife ; wiues brothers daughter ; wiues sister daughter : that is to say , equally distant from thee in consanguinitie , thy brothers and sisters daughters , with thy fathers and mothers sisters : adde vnto these in affinitie thy fathers brothers wife , thy mothers brothers wife , wiues fathers sister , wiues mothers sister : These in the ascendents . In the descendents , to the other ; that is to say , to thy brothers and sisters daughters , consanguines vnto thee , and descendents , adde ( in affinitie ) thy brothers and sisters sonnes wiues , and thy wiues brothers , and hir sisters daughters .

These be all in consanguinitie and affinitie vnto thee in the vnequall collaterall lines , ascending and descending , aswel mentioned as not mentioned expresly in the Leuitical law in their names and termes , in the same second degree . This may appeare more plainly in the table of prohibited marriages , comprehended within that table annexed at the end of this booke .

Touching now the canons , i. The positiue canon lawe , I referre thee to the figures of consanguinitie and affinitie before , as also to this table mentioned .

It shal be therefore needlesse , further to speake of the prohibition of the canons , than briefly that description and computation canonicall wee haue mentioned alreadie may declare it : for that vnderstood , vnderstand withall the prohibition of the canons ; that is to say , to the fourth degree : for ✚ in that example , may not marrie with any letter in the figure . This exceedeth the positiue constitutions of the Church of England , in euerie line two degrees , viz. First in consanguintie in the right ascending line two degrees , i. C and D , in the descending line likewise two degrees , i. c. d. in the collaterals , from A two degrees , i. d 1. e 1. In the collaterals from B. three degrees , d 2. e 2. f 2. In the collaterals from C and D , euerie person that is mentioned ; these in consanguinitie .

The prohibition in affinitie is extended thus , that is to say , beyond the positiue constitutions of the English Church : from the first stocke in the same figure vnderstanding the persons to be added carnally , for that is the vse of the figure , as may be gathered by that we haue said in the 7. chapter before , to thy brothers nephews wife ▪ brothers nephews sonnes wife : sisters nephews wife : sisters nephews sonnes wife : brothers neeces sonnes wife : sisters neeces sonnes wife . From the second stocke , to thy fathers brothers sons wife : fathers brothers nephewes wife : fathers brothers nephews sonnes wife : mothers brothers sonnes wife : mothers brothers nephewes wife : mothers brothers nephews sonnes wife . From the third and Vndestand ( with these ) their neeces sonnes wiues . fourth stocks , to the carnall additions , in either sex , that be mentioned in their lines . These we haue placed seuerally in their sections , for the plainer demonstration thereof in that table at the end of this booke . The reasons that the canons haue yeelded of this extension is this , viz.

Habita est enim illis ratio certissima charitatis , vt homines quibus esset vtilis atque honestissima concordia , diuersarum necessitudinum vinculis necterentur : nec vnus in vno multas haberet necessitudines , sed singulae spargerentur in singulos si ad socialem vitam diligentius plurimos obtinerent . Pater quippe & socer duarum sunt necessitudinum nomina ; dum ergo habet quis alium patrem , alium socerum , numerosius se charitas porrigit : vtrumquè autem vnus sc. Adam esse cogebatur , & filijs , & filiabus suis , quando fratres sorores què iungebantur coniugio ; sicut Eua vxor eius vtrique sexui filiorum , fuit & socrus , & mater . Quae si duae feminae fuissent , altera mater , altera socrus , copiosius se dilectio socialis colligaret . Sed hoc vnde fieret tunc non erat , quando nisi fratres & sorores ex illis duobus primis nulli homines erant . Fieri ergo debuit quod potuit , vt existente copia vnde ducerentur vxores , quae iam non erant sorores , non solum illud non sicret , vbi nulla necessitas esset , verumetiam si fieret , nefas esset : quod humano genere crescente , etiam inter impios deorum multorum falsorumque cultores , sic obseruari cernimus : vt etsi legibus permittantur fraterna coniugia , melior tamen consuetudo ipsam malit exhorrere licentiam : sic què aduersetur quasi licere nunquam potuer it . Copulatio ergo maris & feminae ( quantum attinet ad genus humanum ) quoddam seminarium est charitatis ; That is to say , in summe , though not in literall construction , ( besides other arguments of greater consequence in the lawes of God and of nature ) they grounded thereupon an infallible argument to ensue of loue and charitie , if men and women Diuersarum necessitudinum vinculis , as much to say , should knit themselues togither with bonds of sundry friendships , and not that one in one should haue many : such be the persons mentioned in their seuerall sections in the table heere ensuing from thy grandmother , Sect. 1. Num. 1. to thy wiues mothers sisters daughter , Sect. 8. num. 42. And euery ascending person and descending rightly in euery section after ; namely from thy great grandmother , Sect. 9. num. 43 , to thy daughters neeces daughter . Sect. 17. num. 106. Father is a name vnto thee of tender kindnesse ; none neerer , none deerer : thou makest of him thine vncle : and again of him ( I mean thine vncle ) thou makest thy father in-law , whilst thou matchest in that kindred , see Sect. 8. It is needlesse to wade through euery particular section ; the table is at hand , and the same reason holdeth in the rest : the neerer therfore thou commest to the kindred of thy flesh , the further off thou art from friendship that is expedient , that amitie ( I mean ) and loue , that all mankind vpholdeth , and is vpholden by it : for what is that coniunction we speake of , of man and woman ? Quantum attinet ad genus humanum ? It is answered thus , That is to say ; So farre as it toucheth humane kind , it is nothing els but quoddam seminarium charitatis . And how behoofefull & expedient is this , there is none that cannot discerne : the which how it riseth and spreadeth abroad it selfe , we haue declared in the chapter of affinitie before .

PROHIBITIONVM , CAVSARVMVE MATRImonium dirimentium in cap. 8. & 9. praecedentium , aliarumquè ( saepè in iure contingentium ) Tabula . Prohibitio matrimonij aut est Absoluta & simplex , eaquè est vel Ad tempus , veluti si quis matrimonium contraxerit Qui per aetatem matrimonium contrahere non potest , nam vel quis est Minor septennio , & non potest neque matrimonium , neque sponsalia contrahere . c. literas . de desp . impub. Maior septennio , sed impubes , & sponsalia contrahere potest . c. 2. de desp . impub. matrimonium non potest . Proximus pubertati , & si coire possit . c. de illis eod. quoniam malitia aetatem supplet , contrahere matrimonium potest . Pubes , & licet vir non sit , nequè coire posait , nisi tamen perpetuum sit impedimentum , contrahere matrimonium potest . Ioh. And. & Pan. & d. c. Puberes . de desp . impub. Qui vxorem superstirem habet ( ea viuente ) alteram ducere non potest . quisi Cum altera sponsalia inierit , nulla ex ijs nascitur obligatio , quin vt possit ( mortua vxore ) aliam ducere . Matrimonium cum altera contraxerit de facto , eaque sit Nescia eius rei , & non valet quidem matrimonium , sed ( vxore mortua ) cogi poterit vt secundam ducat , si modo illa hoc petierit . Et tunc ex nouo consensu , etiam tacito , constabit matrimonium . c. 1. de eo qui duxit in vx . Sciens quod alteram habet , & non potest etiam ex nouo consensu istam ducere , modo eam ( viua prima vxore ) cognouerit . cap. fin . de eo qui duxit . Qui dilueida furoris interualla habet , non potest , dum furore tenetur , matrimonium contrahere . Perpetuò , & prohibentur alij , vel ratione Ordinis , & vel ordines sunt Maiores , Sed in hijs omnibus , notandum est , prohibitio absoleta est . Anno. 28. H. 8. cap. 7. Minores , Sed in hijs omnibus , notandum est , prohibitio absoleta est . Anno. 28. H. 8. cap. 7. Voti , est què votum vel Solemne , Sed in hijs omnibus , notandum est , prohibitio absoleta est . Anno. 28. H. 8. cap. 7. Simplex , Sed in hijs omnibus , notandum est , prohibitio absoleta est . Anno. 28. H. 8. cap. 7. Frigidtaris , & impotentiae coeundi , ea vero est vel ●aturalis , & vel in Marem incidit , & dicitur frigiditas , quae quidem matrimonium de facto contractum , ostendit ab initio nullum fuisse . Aut. de nupe . § . Si vero . Col 4. Foeminam , & arctatio est , quae si huiusmodi sit , vt non nisi ope medicorum & cum periculo vitae cognosci possit . ditimit matrimonium . c. ex literis . c. Fraternitatis . de Frigid . & mal . Si verò cognosci potest , licet abortum faciat , vel fine miraculo aperiri possit , tenebit matrimonium . Host . in sum . Hoc tit . Accidentlis & vel Aperta , vt in spadonibus quibus detracta sunt virilia , & si praecessit impedimentum , slatim sóluitur . Occulta , veluti cum quis ita fascinatus sit . vt cum vxore nequeat , cum alijs vero rem habere possit , quod malificium dicitur . Et si Temporale fuerit impedimentum , non est impedimento matrimonio . Perpetuum , expectandum erit ad tempus quo effluxo , poterunt ( Prestitis quibusdam propinquorum iuramentis ) separari . c. Fin. eod. Perpetuo furore detentus contrahere matrimonium non potest . Respectiua , cum quis matrimonium contrahere potest , sed hane , vel illam , ducere non potest : huius prohibitionis causae sunt Consanguinitas , ea est vel Spiritualis , eaque ex Baptismo & confirmatione oritur inter leuantem & leuatum , ac parentes leuati : Iter●… inter leuatum , & filias & coniugem prius cognitas leuantis ; postremo inter parentes leuati , & vxorem leuantis : idem de confirmante & baptizante . Notandum etiam est in hijs , prohibitionem esse & fuisse absoletam , H. 8. statut. praeal . c. eod. Legalis , quae sit per adoptionem . Notandum etiam est in hijs , prohibitionem esse & fuisse absoletam , H. 8. statut. praeal . c. eod. Naturalis eaquè inter Ascendentes & descendentes perpetuò prohibet . Collaterales vsque Ad certos gradus lege diuina prohibet . In quartum gradum lege humana . c. Fin. de consang . & aff. Affinitas quam secundum canones etiam illitita facit copula . c. descretionem : De eo quia cog . cons. Et quidem Inter maritum & vxoris consanguineas , & è contra oritur affinitas : c. Fin. de cons. & aff. & si Antecedat affinitas matrimonium , veluti si quis prius cum consanguinea rem habuerit eius quam postea ducit , tam impedientur nuptiae , quam dirimentur , in prohibitum gradum . c. Fin. de con. & aff. Sequatur matrimonium affinitas , veluti si quis postquamvxorem duxerit , eius consanguineam nouit : extali affinitate Sponsalia quidem praecedentia dirimentur . c. 2. de eo cog . cons. vx . Matrimonium autem , vel ( de presenti ) sponsalia . cap. discretionem eod. vel praesumptum c. Fin. eod. non dirimitur . Inter maritum & vxorem nulla orritur affinitas , hij enim vna caro sunt , & causa affinitatis , non affines .

CHAP. X.

Of the succession of the statutes in marriage : and their force at this day .

TOuching the succession & their force , ( of the Statutes ) it followeth as it was enacted in An. xxv . of king Hen. 8. cap 22. viz. Since many inconueniences haue fallen aswell within this Realm , as in others , by reason of marrying within the degrees of mariage prohibit by Gods laws , i. The son to marrie the mother or the stepmother , The brother the sister , the father his sons daughter , or his daughters daughter , or the son to marry the daughter of his father , procreate and borne by his stepmother , or the sonne to marrie his aunt , being his father or mothers sister , or to marrie his vncles wife , or the father to marrie his sonnes wife , or the brother to marrie his brothers wife , or any man to marrie his wiues daughter , or his wiues sonnes daughter , or his wiues daughters daughter , or his wiues sister , which marriages albeit they be plainly prohibited , and detested by the laws of almighty God , yet neuerthelesse at some times they haue proceeded vnder coloures of dispensations by mans power , which is but vsurped , and of right ought not to be graunted , admited , ne allowed , for no man , of what estate degree or condition soeuer he be , hath power to dispence with Gods laws , as all the cleargie of this realme , and the most part of all the famous vniuersities of Christendome , and we also do affirme and thinke .

Be it therefore enacted by auctoritie , aforefaied , that no person or persons , subiects or resiants of this Realme , or in any your dominions of what estate , degree or dignitie soeuer they be , shal from henceforth marrie within the sayd degrees afore rehearsed , what pretence soeuer shal be made to the contrarie thereof .

And in case any person or persons of what estate , dignitie , degree , or condition , soeuer they be , hath beene heretofore , married within this Realme or in any the kings dominions , within any the degrees aboue expressed , and by any of the Archbishops , Bishops , or ministers of the church of England , be separate from the bonds of such vnlawfull marriage , that then euerie such separation shal be good , lawful , firme , and permanent for euer , and not by any power auctoritie or means to be reuoked or vndone hereafter . And that the children proceeding or procreate vnder such vnlawfull marriage , shall not be lawfull ne legitimate : any forreine laws , licences , dispensations , or other thing or things to the contrarie therof notwithstanding . And in case there be any person or persons , within this Realm , or in any the kings dominions , already married within any the said degrees aboue specified , and not yet separate from the bonds of such vnlawfull marriage , that then euerie such person so vnlawfullie married , shal be separate by the definitiue sentence & iudgements of the Archbishops , Bishops , and other ministers of the church of England , and in other your dominions within the limits of their iurisdictions and authorities , and by none other power or authoritie .

And that all sentences and iudgements giuen , and to be giuen , by any Archbishops , Bishops , or other minister of the church of England , or in any other the kings dominions , within the limits of their iurisdictions and authorities , shal be diffinitiue , firme , good , and effectuall to all intents , and be obserued and obaied without suing any prouocations , appeals , prohibitions , or other processe from the court of Rome , to the derogation thereof , or contrarie to the Acte made since the beginning of this present Parlement , for the restraint of such prouocations , appeals , prohibitions , and other processes .

And Anno xxviij . of king Hen. 8. Chap 7. it was enacted to the same effect , and in the same forme of wordes with this addition onely , viz.

And further to dilate and declare the meaning of these prohibitions , it is to be vnderstood , that if it chaunce any man to know carnallie any woman , that then all and singular persons being in any degree of consanguinitie or affinitie as is aboue written to any of the parties so carnallie offending , shal be deemed and adiudged to bee within the cases and limmits of the said prohibition of marriage .

There ensued after this Anno , xxxij . Hen. 8. cha. 38. an act concerning precontracts of marriages , and touching degrees of consanguinitie , the occasion whereof ( as by the proheme of that Statute appeareth ) was this , viz.

It was supposed that no marriage so surelie could be knit & bounden , but that it should lie in either of the ●●

and administration thereof , by the vetuous and most noble Queene Elizabeth , natural & legitimate daughter to king Hen. of famous memorie the eight , the author is imperfect , whose weakenesse if thy skil shall supply , or thy patience beare for a season , he craues no more , in the meane time his labours he commendeth vnto thee , and thy selfe to the author of all perfection .

FINIS .