Abridgment of Ecclesiastical Laws, Treatise · Chapter 35

Abridgment of Ecclesiastical Laws · Treatise · Chapter 35

p. 477CHAP. XXXV.

Of Bastards and Baſtardy.

1. What Baſtard ſignifies; the derivation of that word.

2. The difference between Baſtard and Mulier; what Mulier ſignifies; and why ſo called.

3. Baſtardy diſtinguiſh'd at the Common Law into Special and General Baſtardy.

4. The Preſumptions of Law touching Baſtardy, in caſe of the Husbands obſence from his Wife.

5. Five Appellations of Baſtards for diſtinctions ſake at the Civil Law, with reſpect to the ſeveral qualities of the Perſons of whom they were begotten.

6. The different modes of proſecution of Baſtardy in the Temporal and Eccleſiaſtical Courts.

7. Limitation of Time in reference to Birth and Baſtardy by the Civil Law; The chaſt Widow of Paris, whoſe Child born the 14th Month after her Husbands death, was adjudged Legitimate.

8. Of a Child born before Marriage, or immediately after Marriage; or long after Marriage of a Woman whoſe Husband dyed without Bedding her, whether Baſtard or not?

9. The legal computations of Time touching the Birth of a Child, whether Legitimate or not, And of ſuch as are begotten after a Divorce.

10. The puniſhment of a Woman having a Baſtard, that may be chargeable to the Pariſh.

11. How the ſame Perſon may in divers reſpects be both a Baſtard or Nullius Filius, and yet a Son.

12. The Phyſicians report in Court, in a Caſe at Common Law, how long a Woman may go with Child.

13. The Biſhops Certificate requiſite in a Plea of Baſtardy, indiſability of a Plaintiff.

14. The power of the Juſtices of the Peace, and of the Seſſions, in reference to the reputed Fathers of Baſtards.

15. In an Action for ſaying ſuch an one had a Baſtard, a Prohibition to the Eccleſiaſtical Court, becauſe they admitted the Defendants, Confeſſion, but would not allow of his Juſtification.

16. Who are held as Baſtardiz'd at the Common Law.

17. What a Mulier is at Common Law.

p. 47818. Other Deſcriptions of Muliers and Baſtards.

19. The difference between the Civil and Common Law in point of Muliers and Baſtards.

20. What kind of Divorce ſhall Baſtardize the Iſſue.

21. Different Reſolutions touching Baſtardy.

22. A Man is Divorc'd Cauſa Frigiditatis, Marries again, hath Iſſue by the ſecond Wife, the firſt Living, Q. Whether that Iſſue be a Baſtard.

23. A Caſe of Remark touching this Subject adjudg'd in Ireland.

(1.) BASTARD, Baſtardus, Nothus, Spurius, Filius Naturalis, Filius Populi, Filius nullius, Inceſtuoſus— Adulterinus, illegitimo coitu Progenitus. Baſtard is a French word, Baſtardd Brittiſh; yet ſome are of opinion that the word [Baſtard] hath its derivation from two German words [Boes art] that is, Degeneris ingenii. Q. an non è Graec. Baſſaris. i. e. Meretrix vel Concubina. Baſtard and Filius Naturalis are both oneaaCoſſanae de Conſuet. Burgund. p. 1116.. Baſtard is that Male or Female that is begotten and born of any Woman not Married, ſo that the Childs Father is not known by order and judgment of Law, for which reaſon he is called Filius Populi bbTerms of Law. verb. Baſtard. St. 20. H. 3. 9. Mulier according to Vlpianus is a defiled Woman..

(2.) Baſtard and Mulier are oppoſed each to other at the Common Law, Otherwiſe at the Canon Law. For at the Common Law by Mulier is meant and underſtood one that is lawfully begotten and born, and therefore where they are compared together we ſhall find at that Law this addition to them Baſtard eigne or Elder, and Mulier puiſne or Younger) and by the Common Law he or ſhe that is born before Marriage, celebrated between the Father and Mother is called a Baſtard; and by that Law, a Child begotten and born of a Woman out of Marriage, by one who after Marrieth her, is ſaid to be not a Mulier but a Baſtard ccIbid. verb. Mulier & Lit. Tenures. lib. 3. cap. 6. Of Deſcents.. This word [Mulier] ſeems to be a word corrupt from Melior, or the French [Melieur] ſignifying at Common Law the lawful iſſue, preferr'd before an Elder Brother born out of MarriageddSt. 9. H. 6. c. 11. and Smith. de Rep. Angl. lib. 3. cap. 6.. But by Glanvile ſuch Lawful Iſſue ſeems rather Mulier than Melior, becauſe begotten à Muliere, and not ex Concubina; for he calls ſuch iſſue, Filios Mulieratos, oppoſing them to Baſtards eeGlanv. l. 7. c. 1. and Britt. c. 7. & skene de verb. fig. verb. Mulierarus filius. Vid. Co. on Litt. fol. 170. b. and 243. b., Quia Mulieris appellatione uxor continetur, l. Mulieris 13. & ibid. gloſs. De verb. ſign.

(3.) Baſtardy [Baſtardia] at the Common Law ſignifieth a defect of Lawful Birth objected to one begotten out of MarriageffBract lib. 5. cap. 19.. which Law doth diſtinguiſh Baſtardy into Special and General ggKitchin fol. 64.. The later whereof being only a Certificatehhd. Stat. 9 H. 6. 11.. from the Biſhop of the Dioceſs to the Kings Juſtices, after juſt enquiry made, whether p. 479the Party enquir'd of, be Baſtard or not; upon ſome queſtion of Inheritance; and the former being only a Suit commenced at Common Law againſt him that calls another Baſtard; This being called Baſtardy ſpecial, becauſe Baſtardy is the principal and ſpecial matter in Tryal: As the other is called Baſtardy General, becauſe Inheritance is there the chief thing under debate and in conteſt; By both theſe ſignifications Baſtardy at the Common Law ſeems to be taken only for an Examination or Tryal, whether a Mans Birth be illegitimate, and ſo does but rather imply what it is not, than expreſs what it isiiVid. Bro. tit. Baſtardy. nu. 29. Which (according to a better Definition) is an unlawful ſtate of Birth, disabling the Partie to ſucceed in Inheritance.

(4.) It appears by what hath been ſaid, that a Baſtard is one that is born of any Woman, ſo as the Father be not known according to the order of LawkkC…. 8. 102. …. 65 ſup. Litt. 244.. So that if any Woman hath a Child before her Marriage, it is a Baſtard: And though the Father thereof after Marry the Mother, yet in the judgment of the Common Law it is ſtill a Baſtard, but at the Canon Law it is otherwiſe as aforeſaidllSt. 20. H. 3. c. 9. 1 H. 6. 31. Co. on Litt. 244.. If one Marry infra gradui Maritagii and hath thereby Iſſue, Q. whether it he a Baſtard or Mulier in caſe Divorce doth after thereupon enſuemm48 Ed. 4. 28. and Broo. Sect. 48. and 93. E. 3. 32.. If there be Iſſue by a ſecond Husband or Wife, the former then living, ſuch Iſſue is a Baſtardnn39 Ed. 3. 14. 7 H. 4. 9. 18. Ed. 4. 26. A Woman Eloping from her Husband, and Living in Avoutry (her Husband being beyond Sea that he cannot come at her) having Iſſue in this time, this Iſſue ſeems to be a Baſtard: But by the Common Law, if the Husband be infra quatuor maria (he) within the Juriſdiction of the King of England, and his Wife have Iſſue in his abſence, No proof is Admiſſable to prove the Child a Baſtard, unleſs there be an apparent impoſſibility of Procriation in the Husband, in which caſe ſuch Iſſue, albeit born within Marriage, is a Baſtard oo43 E. 3. 19. 7 H. 4. 9. 7 H. 5. 9. 44 E. 3. 10. 1 H. 6. 17. Co. on Lit. 244.. And by the Civil Law, if the Husband be ſo long abſent from his Wife, or by no poſſibility of Nature the Child can be his, or the Adulterer and Adultereſs be ſo known to keep company together, as that by juſt account of time, it cannot fall out to be any other Mans Child but the Adulterers himſelf, it is accounted to be a Baſtard: And yet in theſe very caſes within this Realm, unleſs the Husband be all the time of the impoſſibility of Procreation (as aforeſaid) beyond the Seas, the Rule of Law will hold true, Pater is eſt quem Nuptiae demonſtrant ppRid l. view of &c. par. 3 cap. Sect. 2..

Note in debt upon an obligation by Cook Chief Juſtice; And ſo was the Opinion of the Civilians, That a Diſagreement to the Marriage had under the Age of of Conſent, at the Age it ought to be publiſhed in Court; otherwiſe the Iſſue may be Baſtarded. For a Diſagreement in Writing is not a ſufficient Diſagreement, nor a good ProofqqSir Walter Sand. verſ. Adams and Cu…win. poſt dict. cale in Noy's Rep.

p. 480(5.) The Law hath given ſeveral Appellations for the diſtinction of Baſtards according to the different conditions of the perſons of whom they were begotten; As when they were begotten by perſons of a ſingle and unmarried Eſtate, and of ſuch as were kept as Concubines, the Civil Law called them Filii Naturales: if begotten of ſingle Women, not deſign'd for Concubines, for ſatisfaction of preſent Luſt, then they were called Spurii: if begotten of ſuch as the Law ſtyles Scorta, or common Harlots by publick profeſſion, than they were called Manzeres: if begotten of Married Women, then they were called Nothi: if begotten between Aſcendents and Deſcendents, or between Collaterals contrary to the Divine prohibition, then they are called Inceſtuoſi.

(6.) Baſtardy ſo ſtains the Blood, that the Baſtard can challenge neither Honour nor Arms; and ſo diſables him, that he cannot pretend to any ſucceſſion to inheritance. The Temporal and the Eccleſiaſtical Laws with us do not differ as to matter of Baſtardy, but ſomething as to the proſecution thereof: The Eccleſiaſtical Law brings it two ways to Judgment, Incidently and Principally; the Common Law makes two ſorts thereof, General and Special. Incidently at the Eccleſiaſtical Law, when it is pleaded in Bar to a claim of ſomething in right of Nativity: Principally, when by reaſon of ſome ſlanderous and reproachful ſpeeches, it is brought before the Court as the principal matter in Judgment to be alledged and proved, that thereupon Sentence may be pronounced accordingly by the Eccleſiaſtical Judge, Ad Curiam enim Regiam non pertinet agnoſcere de Baſtardia rrGlanvil. lib. 3. cap. 13.. General Baſtardy at Common Law, is ſo called becauſe it is in groſs objected in Barr againſt a Man to diſappoint him in the Principal matter of his Suit. Which, becauſe it is of Eccleſiaſtical Cognizance, is ſent by the Kings Writ to the Ordinary, to enquire whether the Party charged with Baſtardy were born in, or out of Lawful Matrimony; And as the Ordinary finds the truth of the matter upon due examination, ſo he pronounceth accordingly in his Conſiſtory, whereof he returns Certificate to the Temporal CourtsssRidley. ubi ſupra.. Special Baſtardy at the Common Law, ſeems to be only that, where the Matrimony is confeſt, but the Priority or Poſteriority of the Nativity of him, whoſe Birth is in queſtion, is controvertedttibid..

General Baſtardy ought to be Tryed by the Biſhop, and not by the Countryll18 E. 3. 40.. But Baſtardy in this ſenſe cannot be tryed by the Ordinary otherwiſe than by vertue of the Kings Writ, on ſome Suit depending in the Temporal CourtmmD. 1. Baſtardy 55. 39. E. 3. 31. b. per Thorp.. When Iſſue is joyn'd on Baſtardy, before it be awarded to the Ordinary to Try it, Proclamation thereof is made in the ſame Court, and after Iſſue it is certified into Chancery, where Proclamation is made once a p. 481Month for three Months, and then the Lord Chancellour certifies it to the Court where the Plea is depending; and after it is Proclaimed again in the ſame Court, that all ſuch whom the ſaid Plea concerns, may appear and make their Allegations before the Ordinary nn10 H. 6. cap. 11.; whoſe Certificate of Baſtardy is nothing to the purpoſe, unleſs it come in by Proceſs at the Suit of the Partiesoo7 H. 6. 32. b.. And this Baſtardy ought to be certified under the Seal of the Ordinary, for it is not ſufficient to certifie it under the Seal of the Commiſſarypp20 H. 6. 1.. And although the Defendant be certified a Baſtard by the Ordinary, yet the Certificate ſhall loſe its force, if the Plaintiff be afterwards Nonſuit, for then the Certificate is not of Recordqq18 E. 3. 34..

In the Caſe of Elborough againſt Allen, it was ſaid by Crook, that for calling one Baſtard generally, there is not any ſufficient Ground of Action at the Common Law, but if there be any ſpecial Loſs thereby, it ſhall be a good ground of Action at the Comon Law, as if a Man be upon Marriage, or in treaty for the ſale of Land, whereby his Title is diſparaged. Doderidge Juſtice ſaid, That the word Baſtard is generally of another Juriſdiction and belongs to the Eccleſiaſtical Court to determine what ſhall be Baſtardy, and their Judgement is given for the damage, which the party had in his birth, and for that their Entry is quia laeſis eſt natalitiis. And in this Caſe the Chief Juſtice ſaid, that generally to ſay J. S. is a Baſtard, J. S. hath not cauſe of Action given him thereby; but if there be a Temporal cauſe averr'd, the Common Law may proceed therein; for though Originally Baſtardy be of the Eccleſiaſtical Juriſdiction, not Triable at the Common Law; and therefore as in its general nature it is of the Spiritual Juriſdiction, ſo being by its generality no ground of Action at the Common Law, yet if one be to ſue for a Childs part, or ſue for the Adminiſtration of his Fathers Goods, and this be ſet forth in the Declaration, it will maintain an Action at Common Law. Doderidge Juſtice ſaid, That to ſay generally that one called him Baſtard, is not ground of Action, if he doth not ſhew ſome ſpecial Loſs thereby, as when a Woman brings her Action, and ſays that ſhe was in Treaty of Marriage, and that the Defendant called her Whore, this will not maintain an Action unleſs ſhe ſay withall, that by reaſon of theſe words ſhe loſt her preferment; but Chamberlain Juſtice ſaid, to call a Woman Whore is at this day a ſufficient cauſe of Action for her, for that it is puniſhable by the Statute; he alſo further ſaid, that if a Man Libel in the Eccleſiaſtical Court, that he hath Lands by deſcent, and that J. S. call'd him Baſtard, they may not proceed there; or if they do, a Prohibition lies, He further ſaid, that for calling a Man Baſtard generally, without ſpecial Loſs alledged, Action ſhall be maintained, and Cited a Caſe in 6 Eliz. Dyer. Where a Man recovered p. 482red great Dammages,Mich. 20. Jac. B. R. Elborough verſus Allen. Roll. Rep. for that the Defendant had ſaid that his Father was a Baſtard; And cited alſo one Nelſon and Stokes Caſe in 5 Jac. where the Plaintiff did not alledge any ſpecial cauſe of Action, and yet recovered:

(7.) By the Civil Law ſuch as were born in the beginning of the eleventh Month next after the deceaſe of their Mothers Huſband were to be accounted legitimate, but ſuch as were born in the end thereof, were to be accounted Baſtards Auth. Col. 4. yet the Gloſs there relates a matter of Fact contrary to this Law, and gives us an inſtance of a Widow in Paris, who was delivered of a Child the fourteenth Month after her Husbands death, yet the good repute of this Womans continency prevailed ſo much againſt the Letter of the Law, that the Court Judg'd the cauſes of Child-birth to be ſometimes extraordinary, the Woman to be chaſt, and the Child Legitimate. Hoc tamen in exemplum trahi facile non oportet, as the Gloſs there concludes.

(8.) By the Common Law, if a Child be born but an hour after the ſolemnization of Marriage, it ſhall be the Husbands, though it were begotten by another Man, who was not the Mothers Husband, and may be the Heir of him who Married the Mother but a Day before the Birth of ſuch ChilduuTerm of Law. Verb. Baſtardy. for in that Caſe he is not reputed a Baſtard, who cannot inherit Land as Heir to his Father, nor can any perſon inherit Land as Heir to him, but one who is Heir of his BodyxxLittl. Sect. 401. Fitz. B. 20.. Otherwiſe it is in caſe the Child were begotten by him who after the Birth of the Child doth Marry his Mother; For in that Caſe notwithſtanding ſuch Marriage ſubſequent to the Birth, the Child is reputed a Baſtard in the judgment of the Common Law, as being born out of Wedlock, though according to the Eccleſiaſtical Law the Child in that caſe is reputed as Legitimate yySt. 20. H. 3. 9. and 1 H. 6. 3. Co. on Lit. 244.. But if one Marry a Woman, and dye before Night, without ever bedding her, and ſhe after happen to have a Child, within poſſibility of conception in reſpect of time computable from ſuch Marriage,Quia ſubſequens matrimonium toltir culpam praecedentem. it ſeems it ſhall be accounted his Child, and Legitimate zzVid. Engl. Lawyer. 117..

(9.) If a Child be born within the tenth Month (computing thirty days to the Month) next after a Mans death, it ſhall be reputed his Child as a Mulier; but the moſt natural time is nine Months and ten days (computing twenty eight days to the Month) which is forty Weeks; or any day in the tenth Month may be natural enough aaCo. ſup. Litt. 123. Arſop's Caſe. M. 17. Jac. B. R.. Alſo the Children begotten under a ſecond Marriage after a Lawful divorce from a former, are Legitimate, and not BaſtardsbbCo. 4. 29.. And the Child wherewith the Mother is viſibly big when ſhe taketh a ſecond Husband, ſhall be reputed the Child of the former Husband, though born after Marriage with p. 483the ſecond. Otherwiſe, if at her ſecond Marriage ſhe were ſo privlly with Child as that it could not be diſcerned; underſtand it with this limitation, if by poſſibility of nature it may be ſocc21 Ed. 3 39.. And if a Widow take another Husband within ten days next after the death of her former, and be delivered of a Child eleven days before or after forty Weeks from the death of the ſaid former Husband, it ſhall be reputed the Child not of the former, but of the later Husband dd18 Ed. 1. Com. Bedf. Caſe. R. 13. B. R.. And in one Thecker and Duncombes Caſe it was adjudged, that a Woman may have a Child in thirty eight Weeks, and that by cold and hard uſage, ſhe may go with Child above forty Weeks; which was mention'd by the Court in the Caſe of one Owen againſt Jevon in an Action of the Caſe for ſaying, This is the Whore that my Man C. begat a Baſtard on; and upon a Verdict for the Plaintiff it was moved in arreſt of Judgement, that the words are not Actionable, becauſe there is no ſpecial loſs or dammage alledged by the Plaintiff, and that in one Lightfoots Caſe againſt Pigot it had been ruled that an Action lies not for ſaying a Woman had a Baſtard: but it being argued on the other ſide, that the words are Actionable, becauſe if they were true, the Party of whom they are ſpoken is puniſhable by the Statute of 7 Jac. with corporal puniſhment, Judgement was given for the Plaintiff, Niſi. eeTrin. & Paſch. 1651. rot. 211. B. R. Owen verſ. Jevon Styl. Rep..

(10.) The puniſhment of a Woman that hath a Baſtard, that may be chargeable to the Pariſh, is the Houſe of Correction for one year by the Statuteff77 Jac. cap. 4.Jas 4.

(11.) Although in the judgement of the Common Law a Baſtard be reputed quaſi nullius Filius ggLittl. 41. b., inſomuch that, if being ſeized of Lands in his own right, he dye without Iſſue of his Body, they may Eſcheat; yet even by that Law the Baſtard in reſpect of his Mother is ſaid to be a SonhhVid. 11. H. 4. 75.. But in reſpect of the the Father he is ſaid to be nullius Filius, and therefore in the Caſe of Ralph Haward and the Lady Anne Powes his Wife in a Writ of Partition, it was held, that if the Mother diſpoſe of all her Lands holden in Knights Servive, to her Baſtard-daughter by conveyance in her lifetime, that the ſame is out of the Statute of 32 H. 8. becauſe ſhe is but a meer Stranger to the Father, becauſe nullius Filia; and the ſaid Statute ſpeaks of Lawful generation. And in the 39 Ed. 3. 42. in a Praecipe, where a Baſtard was named Filius J. S. the Writ for that reaſon did abateiiVid. 13. Eliz. Dyer. 296. and 14 Eliz. Dyer. 313. Hugh. Abridg. verb. Baſtard.. For the ſame reaſon alſo it is, that in a conveyance by a Father to his Baſtard-ſon, natural affection is not a ſufficient conſideration; for that he is a Stranger in Law, although he be a Son in NaturekkMich. 23. Eliz. Dyer. 374. Werſel… Caſe. And yet it ſeems if a Grant be made to a Baſtard by the Sirname of him who is ſuppoſed to beget him, it is good, if he be known by ſuch Name, and yet in truth he is nullius filius. And if Husband and Wife divorced cauſa Praecontractus, p. 484the Iſſue hath loſt his Sirname, for Cognomen Majorum eſt ex ſanguine tractum; and the Iſſue now is Baſtard and nullius filius: yet becauſe he had once a Lawful Sirname, it is a good ground of reputation, to make him a reputed Son, which is a good Name of purchaſellCo. 6. par. 65. in Sr. Moile Finch's Caſe.. And it hath been reſolved that a Child begotten by a ſecond Husband (living the former) of a Woman divorced from the former cauſa Praecontractus, is legitimate and no Baſtard mmMich. 28. El. Coke par. 4. 29. Banti…g and Lepingwells Caſe.; But in another caſe, that a Child begotten after Marriage ſolemniz'd infra annos nubiles, and for that cauſe after divorced, is illegitimate and a BaſtardnnCo. 7. par. 42, 43. …enns Caſe..

(12.) A. takes B. to Wife and dies. B. after forty Weeks and ten Days is delivered of a Daughter. The queſtion is, whether the Daughter ſhall be Heir to her Father, or a Baſtard? The Affirmative prevails, and ſuch a Child may be lawful Daughter and Heir to her Father; for a Poſt-natus, that is born after the forty Weeks, may as well be an Heir as an Ante-natus that is born at the end of ſeven Months; And a Child may be legitimate, although it be born the laſt day of the tenth Month after the conception thereof, computing the Months per menſes ſolares & non lunares; according to the report given upon Oath by the learned Phyſicians in Alſop's CaſeooMich. 17. Jac. B. R. Alſop and Bowtrels Caſe Cr. 2. par. 321. Godb. 281. the ſame caſe., If a Man hath Iſſue born by his Wife forty Weeks and eight Daies after his death, as if he dye the three and twentieth of March, and the Iſſue is born the ninth of January next following, that Iſſue ſhall be held Legitimate, for it may be Legitimate by nature, and it ſeems the Common Law doth not limit any certain time for Legitimate Infants to be born: ^p upon evidence at the Barr which concern'd the Heir of one Andrews, Mich. Jac. B. R.it was reſolved by the Court, that Dr. Paddey and Dr. Momford, Phyſicians, ſhould (being firſt ſworn) in that caſe inform the Court upon their Oaths, whether according to Nature ſuch Iſſue may be Legitimate, and they ſaid that the exact time of the birth of an Infant is 280. dayes from the conception, viz. nine Months and ten Days after conception, accounting it by the Solar months, viz. 30. days to each month; but it is Natural alſo if he be born any time of 10 Months, viz. in 40 Weeks, for by ſuch account 10 Months and 40 Weeks, or all one, but by accident an Infant may be born after the 40 Weeks, or before: Si partus naſcatur poſt mortem Patru (qui dicitur Poſthumus) per tantum tempus, quod non ſit veriſimile quod poſſit eſſe defuncti filius & hoc probato talis dici poterit Baſtardus.Bract. lib. 5. f. 417. b.

(13.) It is agreed on all hands that Bawardy is an Eccleſiaſtica Cauſe, and of Eccleſiaſtical Cognizance, and therefore if Baſtardy be pleaded in diſability of a plaintiff, the ſa… … be tried by the Certificate of the Biſhop, whether it be in Real Action relating to Inheritance, or Perſonal relating to … otherwiſe p. 485where Action on the Caſe will lie: But if it be pleaded, that the Plaintiff was born at ſuch a place before the Marriage ſolemnized, and ſo he is a Baſtard: This the Common Law cals a Special Baſtardy, and ſhall be tried by Jury at the Common Law, where the Birth is alledged;rrVid. Co. 8. par. Caſe of the abbot of Strata Marcella. So in the Duke of Suffolk's Caſe of Partition, where Special Baſtardy was pleaded, and Iſſue thereupon taken, the Trial was awarded to be by a Jury of London. ssVid. 7. E. 6. Dyer. 79.And where in an Action, upon the Caſe brought for calling one Baſtard, the Defendant juſtified that he was a Baſtard; it was awarded, that it ſhould be tried by the Countrey, and not by the Ordinary.ttTrin. 14. Jac Hob. Rep. Which ſeems ſomthing Paradoxical, that if Baſtardy be pleaded in Diſability of a Plaintiff, then it ſhall be tried by the Biſhops Certificate; but if it be pleaded, that the Plaintiff was born in ſuch a place before the Marriage, then by a Jury: The former whereof is ſaid to be a general Baſtardy; the other a ſpecial Baſtardy; whereas in truth they both ſeem to differ only in this, that the former ſeems to be a general relating to the Plaintiffs condition in reſpect of his Diſability, the other ſeems to be a ſpecial relating to the circumſtances of Place and Time of his Nativity, but both referring to his Baſtardy.

(14.) If a man, that is ordered by two Juſtices of the Peace to keep a Baſtard-Child (he being according to the ſaid Order the reputed Father) ſhall appeal from the ſaid Order to the next Quarter Seſſions according to the Stat. of 18. Eliz. and being there diſcharged, and the ſaid Order repealed, ſhall yet afterwards at another Quarter-Seſſions of the Peace upon re-examination of the matter be ordered according to the firſt Order; in that caſe it hath been held by the Court, that the ſecond Seſſions had no power to alter the Diſcharge made by the former Seſſions.^v And in another Caſe it hath been reſolved,Trin. 9. Car. B. R. 248. that before the Statute of 3. Car. c. 4. the Juſtices at the Seſſions had no Authority to intermeddle in the Caſe of Baſtardy,Cro. 1. par Pidgeons Caſe. ibid. 255. acc. till the two next Juſtices according to the Stat. of 18. Eliz. had made an order therein; As alſo that by the Stat. 3. Car. the Juſtices of their ſeveral Limits are to make an Order in Caſe of Baſtardy.

(15.Paſch. 19. Car. B. R. Slaters Caſe. Cro. 1. par. 337.) C. commenced an Action in the Spiritual Court againſt W. for ſaying that he had a Baſtard. W. the Defendant alledged in the ſaid Court, that the Plaintiff was adjudged the reputed Father of a Baſtard by two Juſtices of the Peace according to the Statute, whereupon he ſpake the words. The Spiritual Court accepted of his Confeſſion, but would not allow of his Juſtification; whereupon he prayed a prohibition, and it was grantedyyPaſch. 17. Jac. B. R. Webb and C…oke Caſe. Cro. 2. par. 5, 5. and 625.. It is not denied, but that if the Spiritual Court try a thing that is of Temporal Cognizance, a Prohibition may lie, although all the Cauſe were originally Spiritual, as was reſolved p. 486in Kenns CaſezzCook. 7. par. 44. acc. Kenns Caſe., in which Caſe it was likewiſe reſolved, that where the Cauſe is Spiritual, there the Spiritual Court hath Jurisdiction; and in the Caſe between Banting and Lepingwell it was reſolved, that the Judges of the Common Law ought (that is the word in the Report) to give Faith & Credit to the Proceedings of the Spiritual Court, albeit it be againſt the Reaſon of their LawaaMich. 28. Eliz. Cook. 4. par. 29. Banting and Lepingwith Caſe. Hugh. Abr. ver…. Baſtard. Caſ. 6.

(16.) If a man having a wife, take another wife, and hath Iſſue by her, living the former wife, ſuch Iſſue is a Baſtardbb18. H. 6. 31. 18. E. 4. 30. b. Co. 7. Kenn. 44., for the ſecond Marriage is voidcc38. Aſſ. 24. Adjudg.. If a man marry one within the Degrees prohibited, the Iſſue between them is not (by the Common Law) a Baſtard, until there be a Divorce, for by that Law the Marriage is not till then voiddd18. H. 6. 34. b.. (So it is although the Brother Marry the Siſter)ee18. H. 6. 32. 39. E. 3. 31. b. If a Man hath Iſſue by A. and after Marries her, yet the Iſſue is a Baſtard at the Common Lawff47. E. 3. i 14 b. 11. H. 4. 84. 18. E. 4. 30. 39. E. 3. 31. b. 38. Aſſ. 24., An Ideot may conſent to Marriage (by the Common Law) though he were an Ideot from his birth, and his Iſſue by that Law is LegitimateggTrin. 3. Jac. B. R. inter Stile & Weſt. If the Husband be caſtrated, ſo that it is apparent that he cannot by any poſſibility beget any Iſſue, and his Wife have Iſſue divers years after, it ſhall be a Baſtard, although it be begotten under Marriage, for that it is apparent that it could not be LegitimatehhHill. 14. Jac. in Camera Stellata inter Done & Egerton Plaintiffs, and two Hintons and Starkey Defendants ſo held by the Chancellor, and Montacule but Hobart e contra..

(17.) By the Law of the Land a Man cannot be a Baſtard who is born after the Eſpouſals, unleſs there be ſome ſpecial matter in the caſe ii40. E. 3. 16. b. 21. E. 3. 89. 39. E. 3. 31. 31. Aſſ. pl. 10. 2. E. 3. 29. per Herle and Yond.. If a Woman be big with Child by A. and after A. Marry her, and the Iſſue is born within the Eſpouſals; in this Caſe by the Common Law the Iſſue is a Mulier, and not a Baſtard kk14. E. 3. 12. b. 45 E. 3. 28., So if a Woman be big with Child by one Man, and after-wards another Marries her, and after the Iſſue is born, ſuch Iſſue is a Mulier, for that he is born under Eſpouſals, and cannot be held the Iſſue of him by whom ſhe was with Child, becauſe that cannot be certainly knownll1 H. 6. 3 contra. 44. Ed. 3. 12. b. 45. E. 3. 28. cont. 18. H. 6. 31. b.; and ſo it is although the Iſſue were born within three days after Marriagemm18. E. 4. 3.

(18.) If a Woman Covert hath Iſſue in Avoutrie, yet if the Husband be able to get a Child, and be infra quatuor maria, the Iſſue is no BaſtardnnHill. 14. Jac. Cam. Stellat. ubi ſupra If a Woman Elope and live in Avoutrie with another Man, during which Iſſue is born in Avoutrie, yet it is a Mulier by the Common Lawoo1 H. 6. 3. 43 E 3. 18. b. 20. 81. E. 4. 30. Hill. 18. Jam ibid. Cam. Stellat. But then the Husband muſt be infra quatuor maria, ſo as that by intendment he might come to his Wife, otherwiſe the Iſſue is a Baſtardpp40. E. 3. 20. Aſſ. 8.. But if a Woman hath Iſſue, her Husband being beyond ſea for 7 years together before the Iſſue was born, ſuch Iſſue is a Baſtard at the Common Lawqq18. H. 6. 17.. If a Feme Covert hath Iſſue, her Husband being beyond Sea for 6 years before the Iſſue is born, it is a Baſtard at the Common Lawrr18. H. 6. 34.. If a Woman hath Iſſue, her Husband being within 14 years of age the Iſſue is a Baſtard at the common Law.ss1. H. 6. 3. b. quaere.

p. 487(19.) If A. hath Iſſue by B. and after they intermarry, yet the Iſſue is a Baſtard by the Common Law;nn47. E. 3. 14. b. 11. H. 4. 84. but it is a Mulier by the Civil Lawoo11. H. 4. 84. Bracton. l. 5 f. 4 6, 617.. If the Parents be Divorced cauſa Conſanguinitatis, they being ignorant thereof at their Marriage, the Iſſues they had before, are Baſtards at the Common Law, and Muliers by the Civil Lawpp18. E. 4. 24. b.. If a Man hath Iſſue by a Woman, and after marry the ſame Woman, the Iſſue by the Common Law is Baſtard, and Mulier by the Eccleſiaſtical Lawqq18. E. 4. 30.: Likewiſe if a man eſpouſe a Woman bigg with Child by another Man, and within three dayes after ſhe is delivered of Child, by the Common Law this is a Mulier, and by the Eccleſiaſtical Law a Baſtardrribid. 1. H. 6. 3.. If a Woman Elope and hath Iſſue in Adultery, ſuch Iſſue is a Mulier at the Common Law, and a Baſtard by the Eccleſiaſtical Lawss18. E. 4. 30. 43. E. 3. 19. b. 20.; yet if the Woman continue in Adultery, and hath Iſſue, ſuch Iſſue are Baſtards even by the Common Lawtt40. E. 3. 16.. But by the Law of the Land a man may not be reputed a Baſtard who is born after Eſpouſals, unleſs there be ſome ſpecial matter in the Caſe as aforeſaid uuibid.. But if a man who hath a wife, doth during her life take another wife, and hath Iſſue by her, ſuch Iſſue are Baſtards by both the Laws, for the ſecond Marriage is voidxx18. E. 4. 30. b. Co. 7. Kenn 44. 18. H. 6. 31..

(20.) A Divorce cauſa Praecontractus doth Baſtardize the Iſſue, yy47. E. 3. pl. 78. 18. H. 6. 34.ſo alſo doth a Divorce cauſa Conſaguinitatis zz47. E. 3. 78. cont. 29. E. 1. Baſtardy. 21. cur.likewiſe if the Divorce be Cauſa Affinitatis, it doth Baſtardize the Iſſue;aaib. 47. E. 3. and the Law is the ſame, in caſe the Divorce be cauſa Frigiditatis. bbib. 47. E 3. 78.A Man hath Iſſue a Baſtard, and after marries the ſame Woman, and hath Iſſue by her divers Sons; and then deviſeth all his Goods to his Children. Q. whether the Baſtard ſhall take by the deviſe? But if the Mother of the Baſtard make ſuch a deviſe, it is clear the Baſtard ſhall take becauſe he is known to be Child of the MotherccMore's Rep..

(21.) B. contracted himſelf to A. afterwards A. was Married to F. and cohabited with him, whereupon B. ſued A. in the Court of Audience, and proved the contract, and Sentence was there pronounced, that ſhe ſhould Marry the ſaid B. and cohabit with him, which ſhe did, and they had Iſſue C. B. and the Father died: It was argued by the Civilians, that the Marriage betwixt B. and A. was void, and that C. B. was a Baſtard. But it was reſolved by the Juſtices. that C. the Iſſue of B. was legitimate and no BaſtardddMich. 26. and 27. Eliz. Bantings Caſe. More's Rep..

(22.) The Caſe was wherein a Man was divorced cauſa Fridigitatis, and afterwards took another Wife and had Iſſue; it was argued by the Civilians, and alſo by the Juſtices, whether the Iſſue were Baſtard or not, it was adjudged that the Iſſue by the ſecond Wife was not a Baſtard; For that by the Divorce the Marriage was diſſolved à vinculo Matrimonii, and each of them might Marry again: But admit that the ſecond Marriage was voidable, yet it p. 488good till it be diſſolved, and ſo by conſequence the Iſſue born during the Coverture is a lawful Iſſue.bbMich. 28. Eliz. in Cor. Warder. Morris and Webber… Caſe. Moore's Rep. Mich. 9. Jac. En le Court de Caſtle-Chamber en …land Danis Rep..

(23.) Upon an information in the Caſtle-chamber in Ireland againſt the Biſhop of K. and C. B. and others, that by Practice and Combination, and by undue courſe of proceedings they endeavoured to prove the ſaid C. B. (who was ever before reputed a Baſtard) to be the legitimate or lawful Son and Heir of G. B. Eſq to the diſheriſon and defamation of E. B. who was the ſole Daughter and Heir of the ſaid G. B. And upon Oier of this cauſe the Caſe appear'd to be this, viz. About twenty ſix years before the exhibiting of this Bill, the ſaid G. B. had Iſſue the ſaid C. B. on the Body of one J. D. who during the life of G. B. was not reputed his Wife, but his Concubine: and the ſaid C. B. for all the time aforeſaid, was only accounted the natural Son of G. B. but not for legitimate. Afterwards, viz. ſixteen years after the birth of C. B. (his Mother being then living) G. B. took to Wife a Lady of good Eſtate and Reputation, with the aſſent of her Friends, by whom he had Iſſue the ſaid E. B. and died. After the death of the ſaid G. B. the ſaid C. B. his reputed Son (nor his Mother who was yet living) ſaid nothing by the ſpace of nine years, but at laſt they practiced and combined with the ſaid Biſhop of K. being of their Kin, and with many others, to prove the legitimation of the ſaid C. B. by an irregular and undue courſe, to the intent to baſtardize and diſinherit the ſaid E. B. according to which practice and combination, the Biſhop without any Suit commenced or moved in any of the Kings Temporal Courts, or any Writ directed to him, to certifie Baſtardy or Legitimation in that Caſe, and (which is more) without any Libel exhibited in his Eccleſiaſtical Court touching that matter, of his own will and pleaſure, privately, and not convocatis convocandis, nine years after the death of the ſaid G. B. took the depoſitions of many Witneſſes to prove that the ſaid G. B. twenty nine years before had lawfully Married and took to Wife the ſaid J. D. Mother of the ſaid C. B. and that the ſaid C. B. was the legitimate and lawful Son and Heir of the ſaid G. B. And theſe depoſitions ſo taken, the ſaid Biſhop cauſed to be engroſs'd and reduced into the form of a ſolemn Act; and having put his Signature and Seal to that Inſtrument, delivered the ſame to C. B. who publiſhed it, and under colour of that Inſtrument or Act declared himſelf to be the Son and lawful Heir of the ſaid G. B. &c. And for this practice and miſdemeanour the ſaid Biſhop of K. and others were cenſured; and thereupon theſe points were reſolved (1.) That although all Matrimonial cauſes have of a long time been determinable in the Eccleſiaſtical Courts, and are now properly within the jurisdiction and cognizance of the Clergy, yet ab initio non fuit ſic: For cauſes of Matrimony as well p. 489as cauſe Teſtamentary were heretofore civil Cauſes and appertaining to the civil Magiſtrate, as is well known to all Civilians, until the Chriſtian Emperors and Kings, as an honour to the Prelates of the Clergy, did grant and allow unto them the cognizance and juriſdiction of theſe Caſes. And therefore the King of England, who is, and of right ever was the Fountain of all Juſtice and Juriſdiction in all Cauſes, as well Eccleſiaſtical as Civil, within his own Dominions, although that he allow the Prelates of the Church to exerciſe their ſeveral Juriſdictions in thoſe Cauſes which properly appertain to their cognizance, yet by the Rules of the Common Law, he hath a ſuperintendency over their proceedings, with power of direction how they ſhall proceed, and of reſtraint and correction, if they do not proceed duly in ſome caſes: as is evident by the Writs of ſeveral natures directed to Biſhops, by which the King commands them to certifie Baſtardy, Le courſe del Trial de Legitimation and Baſtardy.Excommunication, Profeſſion, Accouplement en Loyal Matrimony, De admit. Clericis, de Cautione admittenda, &c. as alſo by the Writs of Prohibition, Conſultation, and Attachment upon a Prohibition. (2.) It was reſolved, that the queſtion of Baſtardy or Legitimacy ought to be firſt moved in the Kings Temporal Court, and thereon Iſſue ought to be joyned there; and then it ought to be tranſmitted by the Kings Writ to the Eccleſiaſtical Court, to be examined and tried there: and thereupon the Biſhop ſhall make his Certificate to the King's Court; to which Certificate being made in due form of Law ſuch credit is given, that the whole World ſhall be bound and ſtopt thereby. But on the other ſide, if any Suit to prove Baſtardy or Legitimacy be firſt commenced in the Eccleſiaſtical Court, before any Queſtion of that matter hath been moved in he Kings Temporal Court, in that Caſe Prohibition lies to reſtrain ſuch Suit. To this purpoſe was Corbet's Caſe cited, 22 Ed. 4. Fitz. Conſultation 6. Sir Robert Corbet had Iſſue two Sons, Robert and Roger, Robert the eldeſt Son, being within the age of fourteen years, took to Wife Matild, with whom he cohabited till he came of full Age, and they publickly known and reputed for Husband and Wife; yet afterwards Robert the eldeſt Son doth diſmiſs the ſaid Matild, and ſhe living, doth Marry one Lettice, and having Iſſue a Son by the ſaid Lettice, dies: after his death Lettice doth publiſh and declare openly, p. 490that ſhe is the lawful Wife of Robert, and that his Son was a Mulier and legitimate. Whereupon Roger the younger Son of Sir Robert Corbet doth commence a Suit in the Eccleſiaſtical Court to reverſe the Marriage between Lettice and Robert, and to put Lettice to ſilence, &c. wherefore Lettice doth purchaſe a prohibition; Whereupon Roger ſets forth the whole matter, and prays a conſultation, which was denied him, and for this reaſon chiefly, viz. for that the Suit in the Eccleſiaſtical Court was to Baſtardize the Iſſue between Lettice and Robert, and to prove Roger to be Heir to Robert; and the Original Action of Baſtardy ſhall not be firſt moved in the Eccleſiaſtical Court, but in the Temporal Court, &c. And to make this point yet the more clear, two Caſes put by Bracton. lib. 5. tit. de exceptionib. c. 6. were remembred (1). B. having Iſſue of the Body of a Feme-Inheretrix born before Marriage, under colour whereof he claimed to be Tenant by the Courteſie, but being for that cauſe barr'd in an Aſſize brought by him againſt A. he obtain'd the Popes Bull, and by authority thereof commenced his Suit in the Eccleſiaſtical Court, to prove his Iſſue legitimate, quod facere non debuit, as Bracton there ſaith; and therefore prohibition was granted to ſtay the Suit, ſhewing the whole matter, Et quod praedictus B. ad deceptionem Curiae noſtrae, & ad infirmandum judicium in curia noſtra factum, trahit-ipſum A. in placitum coram vobis in Curia Chriſtianitatis, authoritate Literarum domini Papae, ad praedictum puerum legitimandum, &c. Et cum non poſſint Judices aliqui de legitimatione cognoſcere, De Legiti…tate.niſi fuerit loquela prius in curia noſtra incepta per breve, & ibi Baſtardia objecta, & poſtea ad Curiam Chriſtianitatis tranſmiſſa, vobis prohibemus, quod in placito illo ulterius non procedatis, &c. And in the ſame Chapter Bracton hath the form of another Prohibition, which makes the difference before put more evident, Rex talibus judicibus, &c. Oſtenſum eſt nobis ex parte A. &c. quod in cauſa ſucceſſionis, & haereditatis petitione, debet prius moveri placitum in curia noſtra, & cum ibi objecta fuit Baſtardia, tunc deinde transmitti debet recordum loquelae & cognitio Baſtardia ad curiam Chriſtianitatis, ut ibi ad mandatum noſtrum de legitimitate inquiratur: quod quidem in hac parte non eſt obſervatum. Et cum hoc ſit manifeſte contra Conſuetudinem Regni noſtri, &c. vobis prohibemus, &c. whereby it is very evident, that if the Eccleſiaſtical Court proceed to the examination of Baſtardy or Legitimation without direction of the Temporal Court, it is to be reſtrained by a Prohibition. (3.) As the Eccleſiaſtical Judge may not enquire of Baſtardy or Legitimation without ſpecial direction or command of the King: ſo when he hath received the Kings Writ to make ſuch Inquiſition, he ought not to ſurceaſe for any Appeal or Inhibition, but ought to proceed until he hath certified it into the Kings Court; and this p. 491alſo appears by Bracton in the forecited place, c. 14. Cum autem Judex Eccleſiaſticus Inquiſitionem fecerit, non erit ab eo appellandum, nec à petente nec à tenente: à petente non, quia talem Juriſdictionem & talem judicem elegit; à tenente non, qui ſic poſſet cauſam in infinitum protrahere de judice in judicem uſ que ad Papam, & ſic poſſet Papa de Laico feodo indirecte cognoſcere. See alſo to this purpoſe 39 E. 3. 20. a. in a Writ of Dower, where Ne unques occouple en loyal Matrimony was pleaded, and Iſſue thereupon joyn'd, the Writ iſſued to the Biſhop to certifie, who certified that he could do nothing by reaſon of an Inhibition which came to him out of the Arches. This return was held inſufficient, for it was there ſaid, that he ought not to ſurceaſe from doing the Kings command by reaſon of any Inhibition (4.) Laſtly, it was ſaid, that the very cauſe and reaſon why the Eccleſiaſtical Judge may not enquire of Legitimation or Baſtardy, before that he hath received direction, or a mandate out of the Kings Temporal Court, doth conſiſt in this, that the Eccleſiaſtical Court never hath Juriſdiction or power to intermeddle with Temporal Inheritance, directly or indirectly; It being obſerved that Chriſt himſelf refuſed to meddle with a Cauſe of that nature, when upon requeſt made to him, Luke 12. Magiſter, dic fratri meo, ut dividat mecum haereditatem, he anſwer'd, Quis me conſtituit judicem aut diviſorem ſuper vos? And therefore in the time of King H. 3. when the uſurped Juriſdiction of the Pope was elevated much higher than ever before or ſince in the Dominions of the King of England, Pope Alex. the third, having granted a Commiſſion to the Biſhops of Wincheſter and Exon to enquire de Legitima nativitate of one Agatha, the Mother of one Robert de Ardenna, and if ſhe were found legitimate, then to reſtore to the ſaid Robert the poſſeſſion of certain Lands whereof he was dispoſſeſs'd, being informed that the King of England was greatly offended at the ſaid commiſſion, he revoked and countermanded it in the point of the reſtitution of poſſeſſion, knowing and confeſſing that the eſtabliſhment of Poſſeſſions belonged to the King, and not to the Church. Which Caſe is reported in the Canon Law, Decretal. Antiq. Collect. 1. lib. 4. tit. Qui filii ſunt legitimi. cap. 4. and cap. 7. where in the 4th Chapt. the Commiſſion, and in the ſeventh Chapt. the revocation or countermand appears in expreſs terms.