Commentaries, Commentary on Judges · Chapter 11 · Excursus 1
¶Of baſtardes and children vnlawfully borne.
A diuiſion of children.BVt to make the thing more plaine, we wil thus deuide children: namely that there are ſome which are lawfull, and not naturall, as they that are adopted. Other ſome there are which were naturall, and not lawfull, as they whiche are born of Concubines. (But here I ſpeake of Concubines after the manner of the Romaynes: For as touching the Hebrewes, they which wer born of them, wer legitimate).What childe is called a baſtard And there are other which are both legitimate and natural, as they which are borne in iuſt matrimony. Laſtly, ther are ſome which ar neyther legitimate nor naturall, as are baſtardes. A baſtard is he, whiche can not tell who is his father, or if he can tell, it is one, whom it is not lawefull for him to hauehave to his father, as it is written in the Digeſtes de ſtatu perſonarum, in the lawe Vulgo concepti. There is a greate difference betweene the condicions of children: but we, as touching this matter that we hauehave in hand, will neyther entreate of children adopted, nor of children legitimate naturall, but onelyonly of naturall children, and baſtardes, which ſeme to be more obſcure then the other.
Children natural not legitimate, may be made legitimate, as it is in the Code de Naturalibus filiis. Legē Anaſtaſii. And the wayes how they might be made, ar deſcribed in ye ſame Code, in ye law Si quis. But baſtards could not be made legitimate. If we wil ſpeak of the childrē of Cōcubines after ye maner of the Iewes, they wer legitimate, as we hauehave before taught. But the Romaynes counted thē not as legitimate, onelyonly this they ordeined, that they might be made legitimate. Farther, baſtards are not in the fathers power, neither can they be: but they that are naturall, may be, if they be made legitimate. Theſe things I ſpeake, that we mighte vnderſtande in howe greate a miſerye baſtardes are. Wherefore Iiphtah could not atteyne to the inheritaunce of his father. And theſe lawes were made, that men might be plucked from whoredome, if it were but onelyonly for the ignominy of theyr children.Chriſoſtome. For when they do beget baſtardes, they hurt them without hope of recouery. Wherfore Chriſoſtome vponupon the epiſtle to the Romayns (whē he enterpreteth theſe wordes: Now is the houre for vsus to riſe from ſleepe) vehemently inueygheth agaynſt whoremongers. Why doſt thou ſowe (ſayth he) that which is not lawfull for thee to reape? Or if thou doo gather, it is ignominious vntounto thee? For infamy wil therby come, both to him which ſhalbe borne, and to thee alſo. For he as long as he liueth, ſhalbe ful of ignominy, and thou, both whē thou art liuing and when thou art dead, ſhalt alwaies be noted of filthy luſt, &c. Wherfore it is ordeined by the lawes, that baſtardes ſhould not be admitted to the inheritance of theyr fathers.
The father when he dieth, may geue ſomewhat vntounto natural childrē, yea they ſuccede, though they be not put in the will, when there ar no other children. But yet they ſuccede not in the whole, but onelyonly in two twelue partes, as appeareth in the Code de Naturalibus liberis, The eccleſiaſticall cannons.in the law Licet patri. But the baſtard was ſo farre of from ſucceding the father, yt he could not deſire of him ſo much as ſhould ſerue to finde him, as it is in Code de inceſtis nuptiis, in the law ex cōplexu. But the Eccleſiaſticall Cannons deale ſomewhat more gentlye: for they permitte that a baſtard ſhould hauehave ſomewhat geuen him to find hym withall, as it is: Extra, of him which maried her, whom before he had polluted with aduoutry in the chapter Cum haberet. And herein both the lawes of god and man do agree. Neyther as I hauehave before ſayd, were theſe lawes written of hatred or cruelty agaynſt baſtardes, but that at the leaſt by this meanes the filthy luſtes of men ſhould be kepte vnderunder.
Howebeit this I will not ouerpaſſe, that by the lawes of the Romaines, the baſtarde myght ſuccede his mother, as it is had in the Digeſts ad Senatus conſultum Tertul. L. 1. he may alſo complayne of his mother, if ſhe leaue him out of her wil, as it is had in the digeſts de inofficioſo Teſtamēto. L. 29. which is to be vnderſtand, except the mother be noble. And why baſtardes are not counted in the ſteede of children, and ar depriued of their fathers inheritance:Auguſtine. Auguſtine beſides theſe reaſons which I hauehave before brought, bringeth alſo an other out of the holy ſcriptures. For it is writtē in Leuit. the .20. chap. He yt commeth to the wyfe of his vncle, ſhall dye wythout children. But (ſayth he) many ar born alſo of inceſt, whoſe parents are not childles. He aunſwereth, that the Lord ſo ſpeaketh in the lawe, bycauſe ſuch ar not counted for children. Wherfore theyr fathers are iuſtly ſayd to be without children, althoughe they hauehave children: bicauſe it is al one, as if they had none. And bicauſe ſuch children are contēned of the father,Baſtardes proue oftentimes worſe then other children. Chriſoſtome. Plutarche. neyther are they rightly brought vp nor chaſtiſed, oftentimes they proue worſe then the other. Chriſoſtome vponupon the Epiſtle to the Hebrewes the .12. chapter, in his 29. Homely, exhorteth the people, to think that god doth like a father when he chaſtiſeth vsus: for the father neglecteth vnlawfullye begotten children and baſtardes. Wherefore god when he chaſteneth, doth part of a true and lawfull father. Plutarch in his Problemes the .103. Probleme, ſaythe that the Romaynes had foure ſurnames, ſo that ſome were called Cnei, and other ſome Caii, and thoſe names they noted by two letters onelyonly, or by three. Wherefore he demaundeth, whye Spurius yt is a baſtard, was written by theſe two letters Sp. bicauſe ſayth he, the fyrſt letter S, ſignifyeth Sine, that is without, & P, Pater that is, a father, bycauſe he was borne of an vnknowen father. Althoughe that maye alſo be applied vntounto Poſthumos, that is ſuch as ar borne after theyr father is dead: but to them it was not cōtumelius to be called Spurii. For. Sp. Melius, Sp. Caſsius and other of that name were very notable citiſens. We hauehave harde the law of God, and the ciuill law, now let vsus ſee the Cannons.
In the decrees diſtinction .56. chapter. Preſbiterorum, What the Cannons decree of baſtardes. Chriſoſtome.baſtardes are not ſuffred to be admitted vntounto holy orders, vnles they wer firſt brought vp in monaſteries, as though by this meanes they might be amended. But the Canons which afterward follow, are ſomewhat more gentle. Chriſoſtome vponupon Mathewe in hys .4. Homely, as it is in the ſame place recited, chapter Nunquam, teacheth yt ſo to be borne, ought not to be hurtful vntounto the children. For if a man hauehave bene a thiefe, a whoremonger, or a murtherer, and then repent him, his former life ſhal not be hurtefull vntounto him: much leſſe oughte the ſinne of the father to be hurtefull vntounto the child, yea rather if the child behaue himſelfe wel, he ſhal be ſo much the more notable, and worthye of more prayſe, in that he hath not followed the ſteppes of his father.Ierome. Ierome in his Epiſtle contra Ioannem Hieroſolomitanum ad Pammachium, as in the ſame decrees appeareth in the chapter Naſcitur. Baſtardes ſayth he, are not to be contemned: for they hauehave the hande of god to make them,Gregory neyther did god diſdayne to make them, and to geue them a ſoule. &c. Gregory alſo in the ſame place in the chapter Satis peruerſum, ſayth, that it is a thinge vnworthy, that the child ſhould be ſo puniſhed, for the pleaſure of the father, that he ſhoulde not be promoted vntounto the holye miniſterye. Ierome in the ſame place chapter Dominus. If Chriſt in his genealogy vouchſafed to reckē baſtards, why ſhall not we then admitte them to the miniſterye. &c?
After theſe Cannons whiche are ſomewhat fauorable vntounto baſtardes,What the father hindereth baſtardes, is brought out a ſtronge argument on the contrarye parte. Whoremongers (ſaye they) do ſeme to poure in a certayne power into the ſeede, whiche power paſſeth alſo into the children, wherof follow euill inclinations, and therof are they iudged to be worſe then other, bycauſe when they ar children, they are not corrected. Wherfore if they be promoted vntounto the holy miniſtery, the churche ſhall receaue dammage. Yet at the laſt it is added, in the chap. Cenomanenſis, if there be any that are notable, they maye be admitted vntounto holye orders: but yet not that it ſhoulde be a generall rule of all, but onelye a priueledge. And theſe thinges are written in the decrees.
But in the decretalles de filiis preſbiterorum it is had, that baſtardes if they be made Monkes, may come vntounto orders, but in ſuche ſorte that they be not promoted vntounto dignities, and be not made eyther Abbottes or Priors. But if they liue without the monaſtery, the biſhop may ordeyne them, and geue them ſmall benefites, but that is by his authority, and (as they commonly cal it) by diſpenſacion. But eccleſiaſticall dignities muſt not be geuen them, but by the Pope: for that power he kepeth to himſelfe alone.The iudgment for promotinge of baſtardes muſt be left vntounto the church. But ſuche releaſinges of Popes and biſhops tend onelyonly to gayne. The iudgemente of theſe thinges ſhoulde hauehave beene left vntounto the churche: which ought herein to hauehave a reſpect to two thinges, to her owne neceſſitye, and to the excellent vertues of him whome it will promote. If the Church ſhall hauehave greate neede, and he excell in vertues, the manner of his byrth ſhall nothing let him.
For Paule to Timothy and to Titus, when he diligently writeth of the election of biſhops and prieſtes, forbiddeth nothing of thys kynd of men. But thou wilt ſay, in the olde lawe baſtardes were excluded from the miniſterye. I graunte that, but we ar not now bound to that law, & it was made onelyonly for the deteſtation of aduoutry. But nowe if they can much profite the churche, theyr election is not to be prohibited. And it is vayn which is writtē in the decretals, that legitimates maye be choſen,A trifling diuiſion of the decretals. but baſtards oughte to be reiected, except with diſpenſation, as it is had in the title de electionibus. For theſe couloures and deceates the Romayne Byſhoppes hauehave inuented to amplyfye theyr dominion. But the ſentence whiche I hauehave allowed, agreeth with charitye: and we may gather the like of it out of the ciuil law, wher it is entreated of Decuriones, for theſe wer ciuill Iudges for priuate cities and townes.Baſtardes might be made Decuriones. Wherfore it is decreed that baſtardes might be made Decuriones, if neceſſity ſo required. In the Digeſts de Decurionibus in the lawe generaliter, paragrapho. Debet enim. The lawe therefore woulde hauehave that order namely of Decuriones to be ful. Howbeit if an other legitimately borne, were a ſuter to gether for the ſame, he ſhoulde be preferred before the baſtard. So thinke I muſt we do in the churche, that if anye man be as good and as apte for the miniſtery, being legitimately borne, let vsus hauehave no regard vntounto the baſtarde, who muſte geue place in that lawefull caſe. It is added in the lawe: If they be honeſt and good, the faulte of the byrth nothinge hindereth them. In the ſame tytle in lawe Spurios, and in the lawe followinge. Theſe thynges hauehave I therefore mencioned that we myghte vnderſtande, by what ryghte Iiphtah was of hys bretherne thruſte oute, and to ſee howe the Cyuyll lawes agree with the law of God.