Amicus reipublicæ. = The Common-Wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. With many other things very considerable for the good of the publick. All which are fully controverted and debated in law. By John March of Grayes-Inne, barister.

Whether it be a just and reasonable Law, that a Child born before marriage; and shortly after mar∣riage

happening, should be a Ba∣stard, or not?

THis is a case, in which the Common-Law differs from the Civil and Cannon-Laws; the Common-Law saith, that such a Child is a Bastard, the other Laws, that it is Legitimate. I shall give you the reasons of both sides, and then you may judge which is most reasonable. This very case is de∣bated by Fortescue, cap. 39. The Ci∣vilians say, that maritagium subse∣quens tollit peccatum precedens; that is, that by means thereof, the State of Matrimony coming in place, ex∣tinguisheth the former sin, whereby else the Souls of two persons should have perished; And it is to be pre∣sumed, say they, that they were at their first copulation so minded, as the marriage after declareth.

The Canonists also say, that Ma∣trimonium subsequens legitimos facit quod sacerdotium.

Say we, the sin by the inter-marri∣age is somewhat abated; not purged, or taken away; & besides this would be a great increase of that sin, and an incouragement to it, if such Chil∣dren should be legitimate, and the parties would be less penitent, be∣cause so favoured.

And Fortescue being much for our Law in this point, puts this case; saith he, If a woman should have two Children of two Fornicators, & the one marries her, whether of these two children should be by this Mar∣riage Legitimate?

For my part, I do conceive, un∣der correction of better judgements, that the Cannon and Civil Laws are most reasonable in this point; though I do not conceive, that the

sin is purged, or taken away by the inter-marriage, for that cannot be o∣therwise, than by true repentance for the sin committed: for which, this seems to me to be a great sign, otherwise I doubt whether they would have married or no. And I do conceive it ought to be intended, that they resolved upon marriage before, or otherwise it is not to be presumed that they would have married after: men usually hate those women they have carnally known, being pricked in conscience for the sin committed and therefore not likely to marry such, unless there were some former tye or obligation upon them, which mitigates the of∣fence, and makes them perform their ingagement: and if it were not so, who in such case would so marry, knowing his issue to be Bastard by the common Law.

To that that is said, that it would be an increase and incouragement to commit that sin, if the Law should be so taken, that the issue should in such case be legitimate.

To this I answer, that I rather conceive the contrarie, that it would very much lessen and abate the com∣mitting of that sin; for it will make them the rather eschew it, and take up resolutions of marriage; for, as I have said, men seldom marrie that woman they have carnally known, especially having issue before hand, being the more frightened from it, by this hard Law of Bastardy.

For that objection, that if such issue should be legitimate, the parties would be less penitent, because so favoured.

To that I answer, that certainly it would make them much more peni∣tent, when they shall live together

in the state of Matrimonie; and put them more in mind of their former offence, which certainly they would less think of were they divided; and I think a greater sign of penitence can∣not be, than the subsequent Matri∣monie.

Besides, by legitimating of such issue, this great convenience would follow, that it would much abate and take off the scandal and reproch of the World, and incourage men in such case to Matrimonie; whereas otherwise they usually add sin to sin, one Bastard begets more, so that once having under-gone the reproch and shame, they never consider the sin, but are more hardned in it.

For the case put by Fortescue, of two Fornicators having got several Children by one Woman, and the one after marrying her, which shall be legitimate. This I conceive may

receive a very short answer; for if the party that got the Child be known, we may easily judge which shall be legitimate.

My Lord Cook upon Litt. saith, fol. 244. that if the issue be born within a Moneth or a day after mar∣riage, between parties of full Law∣full age, the Child is legitimate; by which we may conclude, that if it be born so short a time after marri∣age, that it is legitimate, for cer∣tainly the same reason for both.

Now I say this, that if we may go so near Bastardy, and yet be legi∣timate, I know no reason; that co∣ming so near legitimation, it should be a bastard, and this in favour of le∣gitimation.

But besides, the sins are equal, and therefore I know no reason but the punishment should be so too, a day doth not aggravate the sin, why

then should a day bastardise the issue.

Cook upon Littleton, fol. 245. Ma∣trimonium subsequens legitimos facit quòad sacerdotium, non quoad successio∣nem, propter consue••udinem regni quod se habet in contrarium.

And therefore at a Parliament holden, 20. H. 3. for that to certifie upon the Kings Writ, that the Son born before marriage is a Bastard, was contra commanem formam Ec∣clesiae, rogaverunt omnes Episcopi; Magnates, ut consentirent, quod nati ante Matrimonium essent legitimi, sicut illi, qui nati sunt post Matrimoni∣um, quoad successionem haereditariam, quia Ecclesia tales habet prolegitima: Et omnes Comites & Barones una voce responderant, quod nolune leges An∣gliae mutare, quae haec usque usitat••e sunt & approbatae.

And I do confess that the Statute

of Merton 20. H. 3. cap. 9. confirmeth this opinion. Had there been a rea∣son given in this Statute▪ or by the Lords, to make good the use and ap∣probation; it had been somewhat to convince a man of the Justice of this Law, but since there is none, I hope that a nolunt mutare, shall not make the Law one whit the more reasona∣ble: it is not what we will not do, but what ought to be done that ought to poize in judgement. Nevertheless, I submit all to graver judgements. The next thing that I question, is;