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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	body_n	nature_n	reason_n	1,625	5	4.6916	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
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

ad vniuersaliter i. Vniuersallie For there be many Ordinaries according to the verse Illustris primus medius spectabilis imus but such an Ordinarie here by the title of Ordinarie we must vnderstand that is to say to whom is power giuen and auctoritie from the law or from the prince to render iudgement vniuersaly such be the BB. of euery prouince howbeit their iurisdiction is not in this cognisance ordinarie but delegata such as the iurisdiction is quae demandatur à principe specialiter ad vnam vel plures causas The vnder or inferiour Ordinaries principally such as be surrogates abroad in exempted iurisdictions we will not handle here but els where and there in their places Hi enim leuia tractant i. Their iurisdiction consisteth in lighter matters as did the potestates and defensores Ciuitatum and municipales magistratus whose cognisance exceeded not three hundred shillings Latissimè patet his office is exceeding spatious it is interposed sometime in place of principall actions as in case where auxilium ordinarium i. reliefe by way of ordinarie action is wāting but where ordinarie means may be had there is no recourse to his extraordinarie assistance and this either at or without the instance of any party aut cis inuitis sometime it is interposed incidenter incidently it reiecteth somtime the action sometime it detracteth from it quandoque deseruit ei i. It serueth other whiles the action or subiecteth it selfe vnto it this we cannot prosecute here particularlie It is generallie his office two-fold that is to say Noble or mere and mercenarie they differ thus these offices viz. His noble office is that Quod per se subsistit nulli actioni vel exceptioni deseruiens vel adhaerens sed sui solius nobilitate gaudens his Mercenarie that Quod adhaerit actioni vel exceptioni impotens stare per scipsum vnde famulando deseruit alij sicut faciunt mercenarij that is to say It subsisteth his noble office of it selfe relying neither to action nor exception but vpholden onely by the exellencie of it selfe the mercenarie that that serueth or subiecteth it selfe to the action not able to stand of it self but dependeth as mercenaries or hirelings do so termed Quia nomina esse debent consequentia rebus i. Names must be appliable to their things Touching their iurisdiction the worde comprehendeth generally merum mixtum imperium these be included in the offices we haue mentioned heere It comprehendeth also modicam cohertionem or simplicem iurisdictionem as much to say as that quae commissa intelligitur eo ipso quod causae alicuius commissio demandatur such is the cognisance of the trial of Bastardy that is to say Committed to the Ordinarie from the Prince Hence his iurisdiction in this triall is not ordinaria as I said before but delagata Neuerthelesse wee repute him generally namely the B. a perpetuall and naturall Ordinarie Here we will leaue the Ordinarie and his generall office and returne to the point viz. His office in the triall of Bastardie and his order in proceeding there but let no man vnderstand by order the order iudiciarie substantiall proces or regular solemnities required by the lawe all which be discoursed in their places in the Ordinarie according to that part of pollicie and maner of gouernment of this land without which a sentence or iudgment hath no validitie for that were nothing els in summarie causes such as this cognition is but to peruert order wee might speake of heere plenarie and summarie causes their natures cognisance and difference but because the argument will not endure heerein their discourse at large we will also amongst the rest leaue them to the tractat of the Ordinarie Officium vero ordinarij briefly the Ordinaries office is this viz. Conuocatis conuocandis c. that is to say The parties summoned that bee required to be called before him in this triall in their presence then and either of thē if they appeare that he proceed to a diligent and summarie inquisition according to the tenor of his writ the order and scope whereof the law comprehendeth in these wordes viz. Summariè de plano sine strepitu figura iudicij that is to say Summarily plainly sine strepitu i. Without noise of aduocates such as was the finishing of Salomons Temple wherein was neither hewing nor hammering heard Figura importeth as much in iudgement as a perfect similitude or likenesse doth in any thing els i. The verie apparant forme picture and face as it were of iudgement it selfe framed of that substantiall iudiciarie order and proces that wee haue mentioned Hereof viz. Of such summarie causes the plenarie cognition was reputed in the end a wastfull prorogation and grewe to be in proces of time both hurtfull and hatefull Such be the causes of Benefices Tythes Matrimonies and Vsuries from whence sprang the constitution in the canons Dispendiosam in manner and forme ordained as followeth viz. Dispendiosam prorogationem litium quam interdum ex subtili ordinis iudiciarij obseruatione causarum docet experientia prouenire restringere in subscriptis casibus cupientes statuimus vt in causis super electionibus postulationibus vel prouisionibus aut super dignitatibus personatibus officiijs canonicatibus vel prebendis seu quibusuis beneficijs ecclesiasticis aut super decimis ad quarum etiam prestationem possunt qui tenentur ad eas premoniti censura ecclesiastica coerceri nec non super matrimonijs vel vsuris eas quoquo modo tangentibus ventilandis procedi valeat de cetero simpliciter de plano ac sine strepitu iudicij figura volentes non solum ad futura negotia sed ad presentia adhuc etiam per appellationem pendentia hoc extendi I must not omit the question and doubt that arose in those times touching these wordes summarie de plano sine strepitu figura iudicij The question and doubt was great the Decretall therefore intituled Sepe contingit ensued heereupon to manifest and explane the constitution the question and doubtes Sed adhuc per ipsum decretalem writeth a learned doctor of the lawe non fuit plenè consultum seu succursum auribus causidicorum Neither saith he is that any maruaile and his reason is Quia ipsorum natura ad lites querendas est inclinata semper cogitant lites ex litibus suscitare The regular solemnities were abrogated in such summarie causes and reserued so farre forth as they bee mentioned to be in that decretall abrogated and reserued and not otherwise The Iudge is therefore freed from in these cognitions the obseruation of iudiciall order and forme required in other causes in the bodie of the lawes Canonici and Municipalis Neuerthelesse hee continueth as also the decretall forbiddeth not that obseruation in iudgement in these causes still that nature and naturall reason ordained citation for example is one obserued

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

the kings writ of Bastardie Their instance The conclusion of he nobles at Merton fol. 7 CHAP. III. The transmission or writ of certificat to the Ordinarie The Statutarie antecedents to the same fol. 24 CHAP. IIII. The Ordinarie His office and order in proceeding fol. 31 CHAP. V. Of matrimonie and legitimate issue fol. 39 CHAP. VI. Of consanguinitie or bloud The figure and declaration thereof fol. 51 CHAP. VII Of affinitie or alliance by marriage The figure and declaration thereof fol. 58 CHAP. VIII Of the prohibition Leuiticall fol. 67 CHAP. IX Of the prohibition Canonicall fol. 71 CHAP. X. Of the succession of the statutes in marriage and their force at this day fol. 77 Faults escaped in the printing Pag. 15. line 26. for that is descended read from whom is descended Pag. 41. line 17. for excesse read accesse Pag. 48. line 24. in the note for Patrimonium read Matrimonium Pag. 21. line 3. in the note for A2 28. read an 25. cap. 19. The Triall of Bastardie CHAP. I. Of possessions and Natiuities their cognisance and triall THe issue of the defiled bed before we come to handle it either in it selfe or the contrary least happily the readers should some of them looke for another issue here than I know they be likely to finde I meane a relation of pleadings in possessions after the common lawes I aduertise them before hand howsoeuer this may seeme to fit the argument Haec non iudicantur in Ecclesia The church hath no cognisance of them The possession of Radulphus and Agatha his mother left them by Radulphus the father and grandfather to Agatha and hir sonne when he went to Ierusalem impeached afterwards by F. great vncle to Radulphus the sonne in that he obiected this Agatha was begotten by Radulphus hir father of Au●line the wife of Alan in the time of Alex. 3. manifesteth as much in the Canons For when the incidēt question of hir natiuitie arose before the secular Iudges it came in the end to the audience of Alexander who in his commission in that cause of the Iurisdiction of the church to the BB. of London Worcester hauing touched the possessory Iudgement of the king countermaunded immediatly againe his former rescript in these wordes viz. Causam quae inter R. F. super eo quod mater dicti R. dicitur non fuisse de legitimo matrimonio nata agitari dinoscitur vobis commisimus terminandam verū quod literis nostris inseri fecimus v●praefato R. possessionem omnium quorum possessor extitit quando Auus suus proficiscendi Hierosolimam iter arripuit ante principalis causae ingressum faceretis restitui si eadē possessione fuisset per violentiam spolitatus Nos attendentes quod ad Regem pertinet non ad ecclesiam de talibus possessionibus iudicare ne videamur iuri regis Anglorum detrahere qui ipsarum iudicium ad se assorit pertinere f. v. mandamus quatenus regi possessionum iudicium relinquētes de causa principali videlicet vtrum mater predicti R. de ligitimo sit matrimonio nata plenius cognoscatis causam huiusmodi terminetis c. that is to say The cause or question notoriously knowne to be moued betweene R. and F. touching that that the mother of the sayd R. is affirmed not to be borne in lawfull matrimonie we haue committed to you to be determined howbeit where we caused to be inserted in the same our letters that you should see the possession of all things restored to the aforesaid R. that he possessed when his grandfather tooke his iourney to Hierusalem before your entrance to the principall busines if violently first he he had beene spoiled of the same weighing that the Cognisance of such possessions appertaineth not to the church but to the king least we should seem to derogate from the right of the king of England who claimeth they pertain to himself we require you leauing the possessorie iudgement to the king that you take absolute knowledge of the principall cause that is to say whether the forenamed R. his mother bee borne in lawfull matrimonie determine the same The politique bodie of this land considered as it is compacted of all sortes and degrees of people deuided onely in tearmes and by names of spiritualtie and temporaltie hauing auctoritie the one part commonly called the English Church to declare interprete and shew any cause question or doubt of the Law diuine or spirituall learning and to administer such offices and dueties as to their roomes spirituall doth appertaine the other the lay or temporall Iudges for triall of propertie of landes secular contentions as also the conseruation of the people of this Realme in quiet and peace and howe they doe both their auctorities and iurisdictions conioyne together in the due administration of iustice the one to helpe the other appointed so ordained and instituted to that purpose and end that the kings queens of the same according to their plenarie power from God might be furnished of themselues to render iustice and finall determination to all subiects and in all causes as they haue and doe at this day hold of God to themselfe and by their sword their people and crowne acknowledging no superiour on earth without restraint or prouocation to any pope prince or potentate in the world may giue a light to that we haue said of the spirituall and secular powers before For howsoeuer they may seeme to be distinguished in themselues they be but one body hauing but one onely head the royall and kingly maiesty of this land where the Aristocraticall gouernmentes and Democraticall haue been euermore strange vnto vs for deuided in times past into many sundry kings reigning ech absolutly in his country not vnder the subiection of other till by fighting the vanquished alwaies falling to the augmentation of the vanquisher it grew at the last into one Monarchy neuer did any take inuestiture at the Emperors hand of Rome or any other superior forraigne prince or Potentate but held as I sayd before and as they haue doe and will hold of none but of God their people and crowne Hence it is taken for an Empire in the world wherof as did Vlpian de publico romanorum iure I may as boldly write viz. Huius sacrosanctae Augustae ciuitatis status in sacris sacerdotibus magistratibus consistit that is to say The state of this imperiall common-wealth consisteth in holie thinges and in priests and magistrates for so we repute no lesse the magistrate thā the priesthood to be ordained of God as the apostle teacheth whereof Duarenus dilateth thus viz. Sunt cnim magistratus sacerdotium velut vnius corporis id est ecclesiae duo membra precipua quorum alterum alterius auxilio eget Verily they are saith Duarenus the magistracie and priesthood as it were of one bodie that is to say two principall members of the Church hauing need the

or goeth before or after another such be brothers and their brothers or sisters children and others apparant in this present figure as also in the Legal figure before easely discerned by their equal or vnequal distance by relation from thēselues to their cōmon stocks Common stocks vnderstand such as be placed in this figure frō ✚ vpwardes in the ascending line A. B. C. D. there is proceeding from these on eyther side a generation manifest in this figure such be Collaterals equall or vnequall distinguished by their places for example Let vs make A the first stocke in the ascending line for so it falleth out by order and course of nature ✚ is descended from him who pointeth at his equall collaterals b 1. b 1. on either side behold then the discent from b 1. is c 1. from thence d 1 from thence e 1 now b 1 is in the first degree to ✚ c 1 in the second d 1 in the third e 1 in the fourth these be all from the stocke A. viz. b 1 c 1 d 1 e 1 collaterals vnto ✚ i. one equall on either side at whome hee pointeth equilaterally namely b 1 the other three vnequall eache further distant from him than other for so they exceed first the equall collateral line of ✚ and next they exceed themselues in descending as they goe The second stock is B A is descended from him in this figure and c 2. on eyther side from c 2. is descended d 2 from d 2 e 2 from e 2 f 2. B is here in the second degree ascending vnto ✚ and b in the second degree descending vnto him vnto whom vpwards and downwards he pointeth directly he pointeth also at d2 and d2 collaterally these be all from the stocke B. viz. c2 c2 d2 d2 e2 e2 f2 f2 collaterals vnto ✚ as the other were in the stock before that is to say d2 and d2 equals c2 and c2 extend not to his line and e2 e2 f2 f2 exceed it Here is likewise one equal collateral vnto ✚ on either side three vnequals exceeding as the other did themselues in their descending as they goe And they be thus in degree vnto ✚ viz. c2 and c2 in the second degree d2 and d2 in the same second degree e2 and e2 in the third f2 and f2 in the fourth not encreasing in the collaterals from the stocke til they exceed the equall collaterall line of ✚ such be from the first stocke c1 d1 e1 which encrease in euery person from the equal line vnto ✚ one degree Such be also from the second stocke e2 f2 from the third stocke g3 The fourth generation determineth in this figure at the collateral equal line viz. h4 from the fourth and last stocke in the fourth degree vnto ✚ This is after the Canons and not the secular lawes whose reason and difference we haue handled in the second chapter before neuerthelesse it shall not be superfluous to deliuer as they tearme them such Magistral rules as the autenticall maisters fathers and doctors of the law haue determined in these lines to distinguish as well the degrees as to shew the difference we haue mentioned betweene the lawes and the Canons the first wherof is this viz. In the right or straight ascending and descending lines how many persons there be computation had of themselues the persons that be placed betwixt them whose distance is demaunded substracting but one there be so many degrees For example if thou wilt know how many degrees D. differeth in this figure from ✚ thou shalt find with themselues and those together betwixt them fiue persons conclude there be foure degrees and that they differ consequentlie ✚ and D either from other in the fourth degree The same conclusion is of ✚ and his descending d. for there be numbred likewise fiue persons and so concluded foure degrees If thou wouldst know how they differ D. from d thou shalt finde there be numbred nine persons conclude eight degrees that they differ consequentlie D. and d. either from other in the eight degree the rule holdeth in this line in the residue all one here after the laws and Canons onely their difference is in the Collaterals whose Magistral rules be these viz. Collaterals in the equall line how many persons there be from either of them to their common stock so far they differ either frō other from ✚ for example to D. there be foure persons from h4 likewise to the same stocke D be foure persons ✚ and h4 shall differ therfore and be distant from themselues in the fourth degree This is after the Canons After the laws it is otherwise viz. collaterals in the equal line how far they differ either of thē from their stock in number of persons in that number doubled they be distant from thēselues this is apparant in the Legal figure in the 2. Chap. before for example ✚ in that Legal figure differeth as it doth here in the same number of persons from D and from h 4 to the same D there there be numbred likewise foure persons either of these numbers doubled from the persons to their common stocke that is to say either from ✚ to D or h 4 to the same D in that Legal figure maketh the number of eight so many degrees shall the persons be a sunder and this diuersitie ariseth as we haue touched in the 2. Chap. before in that euery person addeth a degree in the collaterals after the laws as two brothers make two Legal degrees which after the Canons do make but one Their computations be diuers as also their causes be diuers whose reasons and difference we referre to the said 2. chapter before only this differēce we may note in this place because it is not mentioned there viz. In the equal collaterall line whether the line consisteth of euen or odde numbers the degree falleth alwaies out in number to be euen after the lawes this may be seen in the Legal figure in the 2. and 4. and 1. and 3. stocks there for 2. make 4. and 4. make 8. in the equal collateral line as also do 1 make 2 3 6 in the same collateral line this appeareth in this Canonicall figure otherwise for 1 maketh one 3 three 5. fiue c. The rule remaineth now to be spokē of touching collaterals in the vnequall line which after the Canons is this viz. Collaterals in the vnequal line how far they differ the furdest of thē from their stocke so farre they be either of them distant from themselues for example D is the stocke to ✚ and f4 in this figure to know their distance in bloud we must make our computation from the furthest this appeareth in the figure to be ✚ which differeth in the fourth degree from D so many degrees therefore shall hee differ from f4 and consequently ✚ and f4 either from other The same in the other descending collaterals vnto ✚ Vsquè ad lineam aequalitatis that is to say