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A18994 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. Clerke, William, fl. 1595. 1594 (1594) STC 5411; ESTC S108078 57,457 127

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shall not blemish him at all if vertue beares him vp for if themselues if conuerts afterwards their former life destroys not much more their off-spring decked with his proper vertue shines and shall not be eclipsed with the oprobrious liues of his parents and why Non est eius culpa qui nascitur It is answered thus it is not his default that is borne but his that doth beget him the seed it selfe is not reputed euill for nature receiuing hir owne shee bestowes it she frames it next a bodie the seruing members ensue Et inter illas sacri ventris angustias dei manus semper operatur Hence is the flesh wilt thou condemne it now looke at the fleshly meanes Non peccat terra quae confouet non semen quod in sulcis iacitur non humor vel calor quibus temperata frumenta in germen pullulant sed verbigratia fur latro Temper thy iudgement therfore in this behalfe Quia non in seminibus sed in voluntate nascentis causa vitiorum est atque virtutum And if a law were made that such might inherit the vertuous I meane in the one before the vitious other why should not that law be iust the other I call not vniust but yet it is but temporall and within the libertie of Princes iustly to be altered by the times though iustly they cannot stand in one common wealth together for that that is in present beeing bridles now the parent to be father of Legitimation and the other should bridle if it were the sonne to furnish himselfe with vertues least happily his father shuld haue begotten a better sonne abroad than all the world can finde at home I would be loath in mouing a charitable iudgement in the sonne to seeme to giue hope to the father or libertie to offend Godforbid The happiest off-springs they be and nearer vnto hope let all mentake me so that be borne De legitima parentum coniunctione approbata perleges whereof more at large in this treatise for leauing the adulterous bedde or knowledge had without solemnised marriage which also we haue touched in the same that knowledge had in marriage in consanguinitie and affinitie haue been is and wilbe in all christian ages to come reputed for no lesse for sundrie reasons And first because that naturallie a man doth owe a certaine honour reuerence and feare to his parents and therefore vnto others of his kinne which come verie nigh of the same in so much that in old time as Valerius Maximus sheweth it was not lawful for the sonne to bath in one place with his father least he should see him naked Secondlie such persons must needes be conuersant and in companie together if nature therefore abhorred not knowledge in such they should haue too much opportunitie to licentious liuing whose neerenesse remooueth all suspition from the world And behold the heathen Philosopher here Where saith he a man doth loue his kinswoman by nature if there should be put to this the loue of bodily medling there should be too much heat and feruentnesse of loue and too great prouocation to fleshly lust which is contrarie to the chastitie of marriage Thirdly such marriages shall hinder that mutuall loue and friendship that is both profitable and honest to human societie for when a man doth take a wife that is a stranger to him all the kinred of his wife be knit vnto him by a certaine league of friendship and loue as if they were his owne this hath nature ordeined alreadie in blood Hence proceeded the prohibitiō of the Canons That men and women to whom loue and concord was thought both profitable and honest should be knit together by sundry degrees of kinred and not that one shuld haue many in one sed singulae spargerētur in singulos the Canons tearme them necessitudines which they would haue dispersed In the treatise of the determinations of the most famous and most excellent vniuersities c. fourth Chap. after the authour whosoeuer he was had cited touching such vnlawfull marriages the doctours of the church of Christ that were of greatest authoritie fame and renowne he descended to others which though not of so great authoritie yet their iudgements for their credit learning and grauitie was receiued worthely amongst whom he affirmed to this effect of an Archbishop in this land viz. being asked by what reason the forbidding we should not marrie in cōsanguinitie nor affinitie had so great strength and power in the church answered The laws and Canons of the church be full of this commandement and there be many decrees of the old fathers also that we should not marrie with any of our blood c. and as for the cause and reason of this commaundement albeit I might say that the simple and plaine reason is to obey the power and authoritie of them to whom Christ said It is not you your selfe that speaketh but the spirit of your father which speaketh in you c. yet for all that by the consideration and marking also of holy scripture I am woont to thinke thus with my selfe amongst the old ancient people of the Iews it was not lawful for any person to marry with any out of his tribe and when I doubted and sought a reason why so the daughters of Zelophehad came to my remembrance c. But in this case Moses gaue an answere to their carnalities That they should not marrie out of their tribe but the goodnesse and perfection of vs that be Christian folke is not on this fashion for seeing our heritage is God of whom it is spoken God is loue and charitie as the Iewes vsed a law agreeable to their heritage so we ought to maintaine a law for ours which is the law of loue and charitie There is light darknesse good and euill there be lawfull and expedient lawfull not expedient nor lawfull nor expedient marriages these be seen in diuers families in outward degrees in nigh kinred with this I commend to the reader the admonition of the English church that is to consider in contracts of matrimonie what is lawfull what honest what expedient Gregor Nazian de bono Coniugij COniugium radix fulcrum nobile vitae Coniugium praestat si sis sine robore vires Sic sumus inter nos auresquè manusquè pedesquè Mutua sic duros emollit cura labores Mutua sic gemina dulcedine gaudia crescunt Quin desiderium concesso limite claudit Coniugium custosquè aeternùm obsignat amores Vt sunt carne simul iuncti sic mente cohaerent Inter sequè pijs miscent incendia Flammis Et quia praesidij est rerumquè hic maior egestas Foemina virquè deo maiori pectore fidunt ❧ A Table of the contents of this Booke CHAP. I. OF possessions and natiuities their cognisance and triall fol. 1 CHAP. II. The canonicall and secular computations in consanguinitie their confusion The sequel The Lateran synod The answere of the Prelates to
third affinitie together So it is said to be Primum genus i. The first kind of affinitie Quia primo emanat de consanguinitate vel quiae vna persona mediante contr ahitur Secundum i. The second kind of affinitie Quia secundo loco emanat post primum vel quia duabus personis mediantibus contrahitur Tertium i. the third kind of affinitie Quia in tertio loco vel quia tribus personis mediantihus emanat The effect we haue explaned hereof in these three seueral kindes already briefly they be so called the first of one the second of two the third of three but we prosecute onely the first for the other we haue related them to manifest the better this first as also to giue a light as I haue sayd of the former Canons and otherwise they haue no being here Touching therefore this first kind of affinitie it is to be noted and so it may be gathered by that we haue sayd before viz. It is contracted inter sp onsum consanguineas sponsae and againe inter sponsam consanguineos sponsi as much to say It is contracted this first kind of affinitie reciprocally i. between the husband and consanguines of the wife and è conuerso betweene the wife and consanguines of the husband howbeit betweene the consanguines themselues by this marriage there is no affinitie contracted more than was betweene Hobson and Iobson by looking through a hedge when they spyed one another somewhat nearer but Hoc aliquid nihil est i. so far from this attinencie that it hath no consequence at all Hence it is that the father and sonne may contract and consumate marriage with the mother daughter as widdows widdowers do may do their sons and daughters such as be so prouided for their children when they couenant for themselues hence may also two brothers contract and consumate marriage with two sisters the like of the vncle and nephew Many attinencies may hereby be sprung between the same persons this may be seen in children of diuers families that be sons either of them to their mothers to their husbands sons and brothers and vncle and nephew to themselues And thus it falleth out I marrie a wife that hath a sonne that marrieth with my mother tearme me for examples sake Ambrose my wife Mary who had to sonne Theodor who married as I did his with Martha my mother I haue issue Peter he hath issue Iohn these attinencies happen here between Peter and Iohn for first sonnes they be reciprocallie that is to say to their mothers Iohn to Martha mother to Ambrose and Peter to Mary mother to Theodor and so they be sonnes to their husbands Iohn to Theodor Peter to Ambrose brothers to the same i. either to others father Iohn to Ambrose father to Peter Peter to Theodor father to Iohn for so it is in this example Iohn and Ambrose had one mother Martha and Peter and Theod. the same mother Mary hence they be brothers Peter is therefore Iohns brothers sonne and Iohn Peters brothers sonne consequently Iohn shalbe vncle to Peter and Peter vncle to Iohn how they be nephewes it followeth by this Conclude them therefore briefly eache others mothers sonne eache others fathers brother eache others vncle eache others nephew The figure may be formed as followeth in the page next ensuing Peter Marye had T. O. sonne Theodor. who married w t Martha Iohn Martha had T o sonne Ambros. who married w t. Marye The computatiō it hath of degrees I meane this affinitie it borroweth of Consanguinitie before Non habet suam specialem computationem graduum It hath no computation of it selfe in degrees this we haue sufficiently mentioned in this chapter alreadie only we may describe the figure the better to conceiue it formed First there be placed in the same in the middest foure compasses with seuerall superscriptions viz. In the first the first degree in the second the second degree in the third the third in the fourth the fourth On the right side to these be placed likewise foure compasses written in the first brother in the second brothers sonne in the third brothers nephew in the fourth brothers nephews sonne againe on the same side of these be placed foure other compasses written in the first brothers wife in the second brothers sonnes wife in the third brothers nephewes wife in the fourth brothers nephewes sonnes wife On the left side of the first foure middle cōpasses be placed likewise foure other compasses with seuerall superscriptions viz. In the first sister in the second sisters daughter in the third sisters neece in the fourth sisters neeces daughter Likewise on the same side of these be foure other compasses and written in the first Sisters husband in the second sisters daughters husband in the third sisters neeces husband in the fourth sisters neeces daughters husband There be added to these two other compasses on the rightside one on the left side another the rightside compasse conteineth Brothers wiues husband the left Sisters husbands wife In these the doctors agree they be added for ornament and demonstration besides of the not prohibited kindes in affinitie to marrie at this day they are not otherwise of the substance of the figure There be yet obserued two bending lines one beginneth at the compasse of brother and endeth at the compasse of sisters husband wherein is written The first kind of affinitie prohibited at this day to marry The other beginneth at the compasse of sister and endeth at the compasse of brothers wife wherein is written the same This forme was first inuented as also the figures of consanguinitie before by the famous learned doctor Iohan. Andre and autenticall in the canons for after diuers contentions in his time had touching the naturall forme of the figure and the description thereupon of Iohan. de Deo Hispan who seemed by his metrical rules to open thereunto the right vnderstanding indeed howbeit the multitude of the same and obscuritie hee begat in his rules and verses brought forth another effect Attendens ipse Iohan. Andr. For so he writeth of himselfe Antiquorum scripta c. Recounting with the canons the auncient and autenticall writers hee composed it handling therewithall these three points besides amongst the rest viz. The necessitie of it the authoritie the often repetition For the first Probatio ad oculum as much to say as an eie witnesse the necessitie of it appeareth both in the lawes and canons this wee haue touched in the second chapter before For the second the canons we haue cited here alreadie of Isidor and Alexander viz. 35 Q. Cap. 1. 2. vlt. may suffice And for the third that I may vse my learned authors words nomini venit in dubium id satis esse validum satisque famosum quod repitita lectio probat Let this suffice for affinitie the figure whereof ensueth THE CANONICAL FIGVRE OF CONsang Great grandfathers father The same mother iiij
grandmothers sisters daughter Aff. 125 Great grandfathers brothers sons wife Aff. 126 Great grandfathers sisters sonnes wife Aff. 127 Great grandmothers brothers sonnes wife Aff. 128 Great grandmothers sisters sons wife Aff. 129 Wiues great grandfathers brothers daughter Aff. 130 Wiues great grandfa sisters daughter Aff. 131 Wiues great grandmothers brothers daughter Aff. 132 Wiues great grandmothers sisters daughter 20. Section 4. Deg. The same line continued still and fourth degree Canon Con. 133 Great grandfathers brothers neece Con. 134 Great grandfathers sisters neece Con. 135 Great grandmothers brothers neece Con. 136 Great grandmothers sisters neece Aff. 137 Great grandfathers brothers nephews wife Aff. 138 Great grandfathers sisters nephews wife Aff. 139 Great grandmothers brothers nephews wife Aff. 140 Great grandmothers sisters nephews wife Aff. 141 VViues great grandfathers brothers neece Aff. 142 Wiues great grādfathers sisters neece Aff. 143 Wiues great grandmothers brothers neece Aff. 144 VViues great grandmothers sisters neece 21. Section 4. Deg. The Equall collaterall line and fourth degree Canon Con. 145 Great grādfathers brothers nephews daughter Con. 146 Great grandfathers brothers neeces daughter Con. 147 Great grandmothers brothers nephews daughter Con. 148 Great grandmothers brothers neeces daughter Aff. 149 Great grādfathers brothers nephews sonnes wife Aff. 150 Great grandfathers brothers neeces sonnes wife Aff. 151 Great grādmothers brothers nephews sonnes wife Aff. 152 Great grandmothers sisters nephews sonnes wife Aff. 153 VViues great grandfathers brothers nephews daughter Aff. 154 VViues great grandfathers brothers neeces daughter Aff. 155. VViues great grādmothers brothers nephews daughter Aff. 156 VViues great grādmothers brothers neeces daughter 22. Section 4. Deg. The vnequall collaterall line descending and sourth degree Canon Con. 157 Grandfathers brothers nephewes daughter Con. 158 Grandfathers sisters nephews daughter Con. 159 Grandmothers brothers nephewes daughter Con. 160 Grādmothers sisters nephews daughter Aff. 161 Grandfathers brothers nephews sonnes wife Aff. 162 Grandfathers sisters nephews sonnes wife Aff. 163 Grādmothers brothers nephews sons wife Aff. 164 Grandmothers sisters nephews sons wife Aff. 165 Wiues grādfathers brothers nephews daughter Aff. 166 Wiues grandfathers sisters nephews daughter Aff. 167 VViues grandmothers brothers nephews daughter Aff. 168 VViues grādmothers sisters nephews daughter 23. Section 4. Deg. The same line continued still and fourth degree Canon Con. 169 Fathers brothers nephews daughter Con. 170 Fathers sisters nephews daughter Con. 171 Mothers brothers nephews daughter Con. 172 Mothers sisters nephews daughter Aff. 173 Fathers brothers nephews sons wife Aff. 174 Fathers sisters nephews sonnes wife Aff. 175 Mothers brothers nephews sons wife Aff. 176 Mothers sisters nephews sonnes wife Aff. 177 Wiues fathers brothers nephewes daughter Aff. 178 Wiues fathers sisters nephews daughter Aff. 179 VViues mothers brothers nephews daughter Aff. 180 VViues mothers sisters nephewes daughter 21. Section 4. Deg. The same line continued still and fourth degree Canon Con. 181 Brothers nephews daughter Con. 182 Sisters nephews daughter Aff. 183 Brothers nephews sonnes wife Aff. 184 Sisters nephews sonnes wife Aff. 185 VViues brothers nephewes daughter Aff. 186 VViues sisters nephewes daughter Note that their neeces daughters and neeces sons wiues not mentioned as well as their nephewes daughters nephews sonnes wiues mentioned in this Section be also parcell of this Catalogue And likewise in the 21. 22. 23 Sections before where they bee not mentioned in their particular tearmes yet neuerthelesse be of the same Catalogue line and degree with their Section such be in the 21. Section great grandfathers and mothers sisters nephewes and their sisters neeces daughters and in the 22. 23. Section grandfathers and mothers and fathers and mothers brothers neeces and their sisters neeces daughters This vnderstood the Canon Catalogue ceaseth Of the necessarie parts of this treatise to the vnderstanding of the reason of the Computation in the Catalogues of this Table IF thou commest Christian Reader to this Table not hauing read the treatise before nor read nor excercised in the Canon ciuill lawes both it will seeme somwhat strange vnto thee why the second degree in the 2 Section of this table should not encrease in the eight Section following and likewise why the third degree in the 11. Section should not encrease in the 12. 13. Sections of the same and that the 4. degree in the 18. Section should continue the fourth so manie Sections after These computations be verily naturall and yet without industrie more than common reason can reach vnto such be the secrets of bloud Now if thou wilt be idle thou maist wonder stil otherwise this treatise is but small it selfe in the whole but much lesse that part of the same by many degrees that is the totall sum to resolue thee To the vnderstanding therefore or thy vnderstanding of this Computation readily in the Catalogues of this table first confer with the same parte of the 2. Chapter viz. from these wordes A new found Question fol. 12. to these words that follow viz. Haue therefore in one degree c. fol. 13. there thou hast the Lateran synod Secondly the 6. chap. in all there is described the collection state and condition of euerie person his line and degree by the laws by the Canons Thirdly I commend thee to the figure and declaration of Consanguinitie or blood at the end of the 7. chap. this appertaineth to the 6 chapter that to this either giuing light vnto other but both a manifestation to the diligent reader Last I referre thee to this consultation viz. In contracts of matrimonie what is lawfull what honest and what expedient Some small helps if these shall not minister vnto thee with some little labor of thine owne they shall somewhat prepare thee at the least to consult with the Learned FINIS Hierom. in Epist cont Ruph● dist 56. c. nasci Arist lib. 2. polit a Cap. causam quae Qui sil sunt legit b 24. H. 8. cap. 12. in prohem ad idem de repub Anglo c Rom. 13. d De sacris ecclesiae minist ac benefic lib. 1. cap. 1. e Nouel 6. f Euseb lib. 1. Hist Eccles c. 5. c. cleros 21. Dist g It is and was of anciēt time due to the imperiall crowne of this realme to haue the soueraignty and rule ouer all maner persōs borne within the same whether ecclesiasticall or lay but the kings and queenes neither haue doe nor will challenge authoritie and power of ministerie of diuine offices in the church Jniunct an 1. Eliz. tit Admonition h De repub Anglo lib. 2. cap. 12. i Infra ca. 3. De repud pag. 25. De repud pag. 26. Pag. 26. Pag. 15 Ambr. lib. 8. Epist 66. Ioachim a Beust in admonitione de grad pag. 230. Gen. chap. 3. Leuit. chap. 20 n De acquirend rerum dom cap. 29 o Cap. innotuit De elect p H. 8. Aa 28. cap. q 36. Q. 1. I. ex illa Aliud est fornicatio aliud stuprum aliud a dulteriū aliud incestus aliud raptus ſ Delegi● consuet ang