Common Places, Part 2 · Chapter 11 · Section 2
Of Baſtards, and children vnlawfullie borne.
13 Whereas Ieptha had a noble man to his father, yet it did profit him nothing; In Iudg. 11. at the beginning.bicauſe he was baſe borne, and not borne in lawfull marriage. Wherefore by the ciuill lawe of the Hebrues, Baſtards had no place in the Common-weale of Iſrael. Deut. 23, 2.it was not lawfull for him to hauehave place in the congregation of Iſraell. For in Deuteronomie it is written, Manzer ſhall not enter into the congregation or aſſemblie. Zur, is in Hebrue A ſtranger; and a baſtard is ſo called, bicauſe he perteineth not vntounto the familie of the father. She that bare Ieptha was no wife but an harlot. This Hebrue word Zonah, ſignifieth two things. Firſt A vitler, that is, ſuch a one as ſelleth things perteining to victuals: for Zon ſignifieth To féed or nouriſh. It ſignifieth alſo A harlot, perhaps for this cauſe; namelie, for that vitlers are ſometimes ill ſpoken of for chaſtitie, as appéereth by a certeine lawe of Conſtantine, which is extant in the Code Ad legem Iuliam de adulterijs. And vndoubtedlie, either ſignification may be aptlie applied to this place. Some of the Hebrues thinke, The mother of Ieptha was no concubine.that Ieptha was not the ſonne of an harlot; but onelie the ſonne of a concubine, which was not eſpouſed with a lawfull contract, and dowrie. But that ſéemeth not verie well to agrée: for the Hebrues called not a concubine Zonah. Neither had it béene lawfull for Iepthas brethren to hauehave expelled him as a ſtranger, if he had béene the ſonne of a concubine: for the hauing of concubines, of that ſort, was with the Iewes true matrimonie. Further we muſt knowe that the Hebrues had an other word. But whie would not God hauehave a baſtard to come into the congregation? Not bicauſe he had béene the woorſe man, ſo that he had liued well; but that the people might know, that God deteſteth whooredome.
What was, not to enter into the congregation.And not to enter into the congregation, was nothing elſe, but to be made vnfit for the executing of an office, either ciuill or ſacred: although otherwiſe he had to his father either a prieſt or a ruler. So then it was not lawfull for baſtards to execute the office, either of a tribune, or pretor, or magiſtrate, or prieſt. Whie therefore dooth God now make a baſtard ruler ouer his people? Bicauſe he preſcribed the lawe vntounto men, and not vntounto himſelfe. An other cauſe is, leaſt they, which are ſo borne, ſhould therfore ſtraitwaie be diſcouraged. Further, to the intent they might remember, that they be not excluded for their owne fault, but for their fathers fault. And now, to returne vntounto Ieptha: his brethren could not hauehave thruſt him out, except he had béene borne of an harlot. Otherwiſe, a concubine was a lawfull wife. And the children of Iacob, which were borne of his concubines, abode with their other brethren, and were inheritors togither with them. Gen. 21, 14.But thou wilt ſaie, that Abraham caſt out Iſmael. That was doone before the lawe, and by the ſpeciall will of God; to the intent the whole and perfect inheritance might come to Iſaac. Otherwiſe, by the ordinarie law of the Hebrues the children of concubines were not vtterlie excluded from all inheritance.
14 And that the matter may be made more plaine, A diſtinction of children.it ſéemeth good thus to diſtinguiſh children. Some be legitimate and not naturall, as thoſe be, which are adopted and choſen. Otherſome there be, which are naturall, and not legitimate, as they which are borne of concubines. But I ſpeake héere of concubines after the Romane maner: for as touching the Hebrues, they which were borne of them were legitimate. And there be other, which be both legitimate and naturall; as they, which are borne in iuſt matrimonie. Laſtlie, there be ſome, which are neither legitimate, nor yet naturall; as baſtards be. And a baſtard is he, What child is called a baſtard.which cannot tell who is his father: or elſe, if he can tell, it is one, whom it is not lawfull for him to hauehave for his father. As it is written in the Digeſts Deſtatu perſonarum, in the lawe Vulgò concepti. There is a great difference in the ſtate of children. But we (as concerning this matter, which we hauehave in hand) will neither intreat of children adopted, nor yet of children naturallie legitimate: but onelie of naturall children and baſtards, who ſéeme to be more obſcure than the reſt. The children, which are naturall, and not legitimate, may be made legitimate: as it is in the Code, De naturalibus filijs, in the lawe Anaſtatij. And the waies how they might be made, are deſcribed in the ſame Code, in the lawe Si quis. But baſtards could not be made legitimate.
If we ſhall ſpeake of the children of concubines, after the maner of the Iewes, they were legitimate; as we hauehave taught before. But the Romans counted them not as legitimate: onelie this they ordeined; that they might be made legitimate. Moreouer, baſtards be not in the fathers power, neither yet can they be. This I ſaie, to the intent that we may ſée in how great a miſerie baſtards are. So Ieptha could not atteine to the inheritance of his father. And theſe lawes were made, that men might be withdrawne from whooredome, if it were but onelie for the ignominie of their children: for when they beget baſtards, they hurt them without hope of recouerie. Wherevpon Chryſoſtome, Chryſoſt.vponupon the epiſtle to the Romans, Rom. 13, 11.when he interpreteth theſe words (Now is the houre for vsus to riſe from ſleepe) earneſtlie inueigheth againſt whooremoongers: Whie dooſt thou ſowe (ſaith he) that which is not lawfull for thée to reape; or if thou dooſt gather it, it is reprochfull vntounto thée? For infamie will ariſe thereof, both to him which ſhall be borne, and to thée alſo. For he, ſo long as he liueth, ſhall be full of ignominie; & thou, as well when thou art liuing, as when thou art dead, ſhalt alwaies be noted of ſhamefull luſt, &c. Therefore it hath béene ordeined by lawes, that baſtards ſhould not be admitted to the inheritance of their fathers.
15 The father, when he dieth, may giuegive ſomwhat vntounto naturall children; yea, they inherit, though the father die inteſtate, when there are no other children: yet they ſuccéed not in the whole, but onelie in two twelue parts; as appéereth in the Code. De naturalibus liberis, in the lawe Licet patri. But the baſtard was ſo far from inheriting to his father, as he might not ſo much as demand food of him: as it is in the Code De incestis nuptijs, in the lawe Ex complexu. The canons Eccleſiaſticall.Howbeit, the Eccleſiaſticall canons deale ſomewhat more gentlie: for they permit, that a baſtard ſhould hauehave ſomewhat giuen him to find him withall: as may be ſéene in the Extrauagants, of him that married hir, whom before he had polluted with adulterie; in the chapter Cùm haberet. And thus both the lawes of GOD and man doo agrée. Neither (as I hauehave ſaid before) were thoſe lawes made for hatred or crueltie againſt baſtards; but that at the leaſt, by this meanes, the ſhamefull luſts of men ſhould be reſtreined. Notwithſtanding, I will not ouerpaſſe this, that by the lawes of Rome a baſtard might ſuccéed his mother: as we hauehave in the Digeſts Ad ſenatuſconſultum, Tertullian lib. 1. He may alſo complaine of his mother, if ſhe leaue him out of hir will; as we hauehave in the Digeſts De mofficioſo testamento, in the lawe 29. where this is to be vnderſtood; Except the mother be a noble woman.
And why baſtards are not reputed in the place of children, and are depriued of their fathers inheritance; Auguſtine.Auguſtine, beſides theſe reaſons, which I hauehave brought, bringeth alſo another reaſon out of the holie ſcripture. In the 22. of Leuiticus it is written; verſe. 20.He that commeth to the wife of his vncle, ſhall die without children. But (ſaith he) manie are borne alſo of inceſt, whoſe parents are not childleſſe. He anſwereth, that the Lord ſo ſpeaketh in the lawe, bicauſe ſuch are not counted for children: wherefore their fathers are iuſtlie ſaid to be without children, although they hauehave children; bicauſe it is all one, as if they had none. And bicauſe ſuch children are contemned of their father, neither are they rightlie brought vp nor chaſtiſed; oftentimes they prooue woorſe than the other. Chryſoſt.Chryſoſtome, vponupon the epiſtle to the Hebrues, the twelfe chapter, in his 29. homilie, exhorteth the people to thinke, that God dooth like a father, when he chaſtiſeth vsus. For the father neglecteth vnlawfull begotten children and baſtards: therfore God, when he chaſtiſeth, dooth the part of a true and lawfull father. Plutarch.Plutarch, in his Problems, the 130. Probleme, ſaith; that The Romans had foure ſurnames; ſo that ſome were called Cnaei, and other ſome Caij: and thoſe names they noted by two letters onelie, or by thrée. Wherefore he demandeth, why Spurius, that is A baſtard, was written by theſe two letters Sp. Bicauſe (ſaith he) the firſt letter S. ſignifieth Sine, that is, Without, and P. Patre, that is, A father; bicauſe he was borne of an vnknowen father: although the ſame may alſo be applied vntounto thoſe that are borne after their father is dead. But to them it was no reproch to be called baſtards: for Sp. Melius, Sp. Caſſius, and other of that name, were noble citizens. We hauehave heard the lawe of God, and alſo the ciuill lawe: now it remaineth that we ſearch the canons.
16 In the Decrées, What the canons hauehave d… creed touching baſtards.the diſtinction 56. in the chapter Presbyterorum: they ſuffer not baſtards to be admitted to holie orders, vnleſſe they hauehave béene firſt brought vp in Monaſteries; as though by this meanes they might be amended. But the canons which afterward followe, be ſomwhat milder. Chryſoſtome, vponupon Matthew, Chryſoſt.in his 4. homilie (as it is in the ſame place recited, in the chapter Nunquam) teacheth that ſuch maner of births ought not to be hurtfull vntounto the children. For if a man hauehave béene a théefe, a whooremonger, or a murtherer, and then be repentant; his former life ſhall not be hurtfull vntounto him. Much leſſe ought the ſinne of the father to be hurtfull vntounto the child: naie rather, if the child behaue himſelfe well, he ſhall be ſo much the more notable, and woorthie of more praiſe; in that he hath not followed the ſteps of his father. Ierom, Ierom.in his epiſtle vntounto Pammachius, againſt Iohn biſhop of Ieruſalem, as in the ſame decrées appéereth, in the chapter Naſcitur: Baſtards (ſaith he) are not to be contemned; for they had God the worker of them, neither did God diſdaine to make them, and to giuegive them a ſoule, &c. Gregorie alſo in the ſame place, Gregorie.in the chapter Satis peruerſum, ſaith; that It would be an vnméet thing, that the child ſhould ſo be puniſhed for the pleaſure of his father, as he might not be preferred to the holie miniſterie. Ierom in the ſame place, in the chapter Dominus; If Chriſt vouchſafed that baſtards be reckoned in his genealogie, why ſhall not we then admit them to the miniſterie, &c?
After theſe canons, which be more fauourable vntounto baſtards, is brought a ſtrong argument on the contrarie part. What harm is brought by parents vntounto the baſtards.Whoormongers (ſaie they) doo ſéeme to powre in a certeine force into the ſéed, which paſſeth alſo into the children; whereof followe euill inclinations: and thereby are they iudged to be woorſe than other, eſpeciallie when they be not corrected in their childhood. Wherefore, if they be promoted vntounto the holie miniſterie, the church ſhall be indamaged. Yet at the laſt it is added in the chapter Cenomanenſis: If there be anie that are notable, they may be admitted vntounto holie orders; but yet not that it ſhould be a generall rule for all, but a priuilege onelie. And theſe things be written in the Decrées. But in the Decretals, De filijs preſbyterorum, we read; that Baſtards, if they be made moonkes, may come into orders; yet ſo neuertheleſſe, as they may not be promoted vntounto dignities, nor be made either abbats or priors. Howbeit, if they liue without the monaſterie, the biſhop may giuegive them orders, and beſtow ſmall benefices vponupon them: but that is by interpoſing his owne authoritie, & (as they commonlie call it) by diſpenſation. But the eccleſiaſticall dignities ſhall not be giuen them, of anie other than of the Pope; for that power he kéepeth to himſelfe alone: albeit ſuch diſpenſations of Popes and biſhops hauehave reſpect to gaine onelie. The iudgement of theſe things ſhould hauehave béene left vntounto the church, which héerein ought to hauehave regard vntounto two things; namelie, to the neceſſitie of the church, and to the excellent vertues of him whom it would promote. If the church ſhall hauehave a great néed, and he excell in vertues, the maner of his birth ſhall be no let vntounto him. 1. Tim. 3, 2. Titus. 1, 6.For Paule, in his epiſtles to Timothie and to Titus, when he diligentlie writeth of the election of biſhops and prieſts, did forbid none of this kind of men.
But thou wilt ſaie, that in the old lawe baſtards were excluded from the miniſterie. I grant it: neuertheles, we are not now bound to that law; & it was made onlie for the deteſtation of adulterie. Yet now, if they be able to profit the church greatlie, their election muſt not be forbidden. A vaine difference put by the Decretals.And it is vaine, which is written in the Decretals, that legitimates maie be choſen, but baſtards ought to be reiected; except with diſpenſation, as we hauehave in the title De electionibus. For theſe counterfeit colours and deceits, the Romane biſhops hauehave inuented, to amplifie their dominion. But the iudgement, which I hauehave allowed, agréeth with charitie; and we may gather the like of it out of the ciuill lawe; where it treateth De decurionibus, that is, of capteines ouer ten ſoldiers; ſith theſe were ciuill iudges for priuate cities and townes. Wherefore it is decréed, Baſtards might be made decuriones.that baſtards might be made Decuriones, if neceſſitie ſo required. In the Digeſts De decurionibus, in the lawe Generaliter, in Paraph Debet enim. The lawe therfore would hauehave that order; namelie of Decuriones, to be full. Howbeit, if another borne legitimate, were a ſuter togither for the ſame, he ſhould be preferred before the baſtard. So thinke I that we muſt doo in the church; that if anie man be as good, and as apt for the miniſterie, being a legitimate borne; let conſideration be had to him, before the baſtard, who muſt giuegive place in that caſe vntounto him that is legitimate. It is added in the lawe; If they be honeſt and good, the blemiſh of birth ſhall nothing hinder them: in the ſame title, in the lawe Spurios, and in the lawe following. Theſe things hauehave I therefore mentioned, that we might vnderſtand, by what right Ieptha was by his brethren thruſt out, and that the agréement of the ciuill lawes with the lawe of God might be perceiued.