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.

CHAP. II.

The Canonicall and secular Computations (in consanguini∣tie) their confusion. The sequell. The Lateran synod. The answere of the Prelates to the kinges writ of Bastar∣die. Their Instance. The conclusion of the Nobles at Merton.

IN the Romane Ciuill and Ca∣non supputatiō 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 vio∣lence too, to the Lawes, to the Canons, and either so to other: howbeit not in them∣selues, but their application and practise: like a well tuned Instrument vnskilfully handled. Hence indu∣red 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) Computatiō must first be considered of (in degrees of consangui∣nitie or bloud) & how it is distinguished by Canoni∣call and Legal: the computation canonicall is decla∣red in the chapter of consanguinitie hereafter, the le∣gal or secular computation we haue briefly related

here, and that for two causes, the one (hauing occa∣sion to speak of the preiudice to the canons) it is deri∣ued 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 en∣suing of consanguinity it may ad the greater light vn∣to 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, igno∣rant both of the lawes and Canons, confounded them; what violence grew by this to the Canons en∣sueth, 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 terminū Nuptialia iura, numerationem sanctorū patrum, & antiquam Ecclesiae cōputationem: per∣uersa 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 cōputation of the church: and besides their strange, prophane, and erronious cōputation, which they grounded vpon the secular lawes, they deter∣mined their Genealogie in the sixt legal degree, affir∣ming there the Legal computation determined. But what Iustinian defined, and vnto what degree, (his se∣cular computation) I leaue to Iustinianistes to define, onely to aunswere this error, his wordes be these, Hactenus ostendisse sufficiat, quemadmodum gradus cog∣nationis

numer entur: namque ex his, palam est intelligere, quemadmodum vlteriores gradus numerentur: generata quippe persona, gradum adijcit. When Iustinian had ex∣tended 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 nūber the rest that be further off; forasmuch as a person be∣gotten, begetteth a degree, &c. This touching their errour in determining the Legal computation onelie.

For their confusion, I meane of both computati∣ons 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 Genealo∣gie was legal: their computation legal, to the sixt de∣gree: 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 ther∣fore had) doth it determine or not determine con∣sanguinitie 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, falsi∣dici erunt isti qui vltra illum sextum gradum nolunt com∣putare consanguinitatem: igitur aut leges erunt falsae, aut

isti qui sic finiunt generationem: sed vi verdicae leges, & veraces sunt Canones, dicamus id quod veritas habet, scili∣cet 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 com∣mand succession in bloud in the tenth degree: but if it determineth not cōsanguinitie in the sixth degree, they shalbe false sayers, that refuse (in consanguinitie) to make their computation beyond the said sixt de∣degree: 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 con∣sanguinitie 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 approo∣ued with the secular lawes i. the law of their nation so called the Romane ciuil law, as also (after the re∣uerend 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 certai∣ner 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 re∣lation 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 imperi∣ti excitantes, eosdem propinquitatis gradus contra sacros canones, & ecclesiasticum morem numerare nituntur: no∣uo & 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 consi∣storio, conuocatis ad hoc opus episcopis & clericis atque iu∣dicibus diuersarum prouinciarum: Denique diù ventilatis legibus, & sacris canonibus, distincte inuenimus: ob aliam atque aliam causam: alteram legum fieri, alteram cano∣num 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 consanguine∣orum nuptijs sit abstinendum. Ibi prescribitur vt heredi∣tas propinquis more legitimo conferatur: hic vero vt ritè & canonice inter fideles nuptiae celebrentur. In legibus ai∣stinctè non numerantur gradus, nisi vsque ad sextam: in canonibus autem vsque ad septimam distinguitur generati∣onem. 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'apo∣stolique 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 affir∣ming, 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 deter∣mine it, &c. Now we in a synod holden in the Late∣ran consistorie, assembled thereunto, the Bishops, Clergie, and Iudges of diuerse prouinces, haue had care to discusse this question: and after long exami∣nation 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 succes∣sion 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: de∣grees in the laws, are not in names and tearmes di∣stinguished, 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 pro∣uided

to appoint in singular persōs, singular degrees: but that mariages consist not but of two, the sacred Canons haue therefore in one degree ordained two.

M. Beza reproueth this numeratiō of the Canons, because the Canons number (as he saith) by the * 1.1 persons, and not their generations; and therefore affirmeth, that Multo planius & rectius loquuntur, qui generationes, non personas enumerādas 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 de∣gree. * 1.2 Indeed there were certaine Canonists, before the Lateran sinod, and Legists too, that numbred so, whose ignorance was condempned there, but ne∣uer since but in earthly successions, and so they num∣ber still, that is to say, the degrees by the persons, to conferre their inheritance to the next; but by the ge∣nerations, the Canons number the degrees in mari∣age 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 ma∣keth two brethren two generations, & their children foure, & so in the residue where their generatiōs be, & so he affirmeth thē to be eiusdem, euen of the same * 1.3 speciei & seriei, by the order & course of nature, & ther∣fore do the Canons make thē the same generations, and the same degrees, and so his wordes many seeme to import no lesse where he saith, Natura enim ipsa o∣stendit 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 generatiōs: neuer∣thelesse

we must count thē so, (saith he) as we respect Ordinem numerandi, and make them so by the order and course of numbering, two generatiōs: 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 re∣proueth also, viz. the rule of Vna dempta, and yet hee * 1.4 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 frō 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 persōs do spread thēselues, or nature rather spreadeth the persōs on either side. Here is their dif∣ference in the equilaterals only where M. Beza giueth libertie to marrie within the prohibition of the Ca∣nons, but his prohibition is the same with the Ca∣nons in the the rest, so far as the Canon prohibition reacheth, except in the persons that be not collateral or vice-parents & childrē the one to the other: & the same their rules with his of the collateral or vice-pa∣rent, & 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 thē 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, Cū naturae hone∣state 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 prohibi∣tion. 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 Ma∣rie 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 Mar∣tin

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 daugh∣ter he may not marrie by the former rule? I will not determine between so reuerēd 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 ne∣phewes neece, and the yonger Martin should marrie with his graund-fathers neece? onely I may cite S. Ambrose, who affirmed plainly they might not * 1.5 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 ano∣ther that writeth thus, Quia vero Beza, hanc iuris cano∣nici computationem ridet & improbat ideo sciendum & ob∣seruandum * 1.6 est quod in consistorijs harum terrarum (non ob∣stante consideratione Bezae) computatio iuris canonici obser∣uetur, & 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 ob∣serued, that in the consistories of these prouinces of ours, the computation of the canon law must be ob∣serued, 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, notwithstan∣ding 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 in∣sueth; 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 gar∣den of Eden, and set the cherubins there, and the blade of a sword, to keepe the way of the tree of life, * 1.7 hath said, That bloud shalbe vpon thee: and though thou tarriest (i. Thou diest not the death) because the * 1.8 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 descen∣ding 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 con∣fusion 〈2 pages missing〉〈2 pages missing〉

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 1.9 Non sunt legi∣timi 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 con∣trarie obserued custome in this land. The Arch-Deacon (for example) of Yorke o 1.10 vnlawfully first ele∣cted to that dignitie in the church of Worcester, touched in his natiuitie, many things induced (espe∣cially concurring) his despensation in the Canons, viz. Literarum scientia, morum honestas, vitae virtus; fa∣ma personae, concors capitulielectio, petitio populi, assensus principis, suffraganeorum suffragia, humilis denotio confi∣tētis, that is to say, His knowledge in learning, his ho∣nsty in maners, the vertue of his life, the report of his person, his agreeable choyse of the chapter, the peo∣ples request, the prince his assent, the suffagranes voi∣ces, 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 allow∣ance

such, & disallowance (by the lawes of the land) as shall be their practise and excercise spirituall or Lay. p 1.11

To end in a word this generall and obscure trans∣mission to the ordinary, note by the way, what a sub∣till fallation ensued, viz. a certificate to the secular court, neyther true nor false: for so, & verum rescriba∣tur, & 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 preiu∣dice to the laws.

Touching now the king, the prelats, his obie∣ction, 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 grea∣test part of the earles and barrons of this land assem∣bled 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 an∣swere vnto it, because it was directly against the com∣mon order of the church, and all the Bishops instaun∣ted 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 hol∣den 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, Exce∣ster, 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 solemni∣sed) there should be sent Loquela (as much to say, as that transmission we haue mentioned) to the ordina∣rie, 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 vnder∣standing.

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

[illustration]

[illustration]

[illustration]

THE LEGAL FIGVRE·

The signification of the com∣passes and characters of this Figure.

• ... [ 6F6] 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
• ... [ 5E5] 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
• ... [ 4D4] 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
• ... [ 3C3] 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
• ... [ 2B2] 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
• ... [ 1H1] 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 ascen∣ding 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 pō∣derous thing, that falleth downewards) in a right, or collaterall line, neuer ascending the way it came a∣gain, but laterally or sideward, for want of descēding 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, down∣ward, or collaterally, on the fathers or the mothers side; this is made manifest in the 6. chap. of this trea∣tise, 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, ca∣pitall 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 vn∣to ✚ whose ascending stock he is; there is also writ∣ten 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 decla∣red in the figure.

Notes

• * 1.1

  De repud. pag. 25.
• * 1.2

  De repud. pag. 26.
• * 1.3

  Pag. 26.
• * 1.4

  Pag. 15
• * 1.5

  Ambr. lib. 8. Epist. 66.
• * 1.6

  Ioachim. a Beust in ad∣monitione de grad pag. 230.
• * 1.7

  Gen. chap. 3.
• * 1.8

  Leuit. chap. 20
• n 1.9

  De acqui∣rend. rerum dom. cap. 29
• o 1.10

  Cap. inno∣tuit. De elect.
• p 1.11

  H. 8. Aa. 28. cap.