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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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therefore we will pause a little and make as it were a diuisiō in this table betweene them and the rest that ensue namely the branches that be further off Consider therefore of the concordance and difference of these catalogues hitherto first and then peruse the other These catalogues doe concurre togither in 16 persons wherein they differ not in name number nor degreee there the Leuiticall ceasseth in name and number and the English and canonicall go on accompanied still with the Leuiticall degree to the number of 14 persons more there ceasseth the English and the positiue canon goes on alone neuerthelesse accompanied with the 2 degree to the number of 12 persons more and there that degree resteth and leaueth the canon catalogue alone yet the catalogue resteth not but hath betakē it to outward degrees namely the 3 and 4 wherewith it goeth on to the number of persons mentioned in this table hereafter These the statute doth entend in An. 32. H. 8. cap. 38. to be meere humane and inuented for their lucre that deuised them namely the BB. of the sea of Rome commonly called the Popes who were enabled as the statute intēdeth to dispence with such by their power because they were outward and so the statute termeth them outward degrees and specifieth moreouer cosens germans and so to fourth and fourth degree Now Quere of the minde of the statute touching cosens germans viz. What germans they should be for the Pope could neuer dispence with germans in the 1 and 2 degrees if therfore the construction be of the statute of such dispensations that were reserued for so the statute mentioneth them viz. The dispensation whereof they alwaies reserued to themselues c. we looke amisse at what he did for what did hee not almost in the end dispence withall but our marke must be at what he might doe lawfully i. by his lawes for other reseruation had he none but thereby preheminence ouer them but neuer ouer the lawes of God nor of nature And that which is more so farre they were from dispensing in the 1 and 2 degrees that in the 3 and 4 degrees they haue refused the same generally and to that vpon Question proposed to Gregorie by Faelix Messan of Scicilia was appealed to the whole dominon of Rome It is euident by this what the prohibition and reseruation haue been of the Popes law Touching the daughter of Zolophehad of whom mention hath been made in the 8 chap. of this treatise to this effect that they married to their fathers brothers sonnes this was because the inheritance of the children of Israel of whom the daughters of Zelophehad were should not remoue from tribe to tribe for so they were commanded that euerie one of the children of Israel should ioyne himselfe to the inheritance of the tribe of his fathers And that euerie daughter that possessed anie inheritance of the tribes of the children of Israel should be wife vnto one of the familie of the tribe of hir father that the children of Israel might enioy euery man the inheritance of their fathers and therefore the Lord commanded concerning the daughters of Zelophehad saying They shall be wiues to whom they thinke best onely to the familie of the tribe of their father shal they marry and so they did But this was a law of iudgement as other Iudicials were that belonged then to particular iustice and haue had their beginnings and endings To the rest of the canon catalogue 9. Section 3. Deg. The right ascending line and third degree Canon Con. 43 Great grandmother Aff. 44 Great grandfathers wife Aff. 45 VViues great grandmother 10. Section 3. Deg. The right descending line and third degree Canon Con. 46 Sonnes neece Con. 47 Daughters neece Aff. 48 Sonnes nephewes wife Aff. 49 Daughters nephewes wife Aff. 50 VViues nephewes daughter Aff. 51 VViues neeces daughter 11. Section 3. Deg. The vnequall collaterall line ascending and third degree Canon Con. 52 Grandfathers sister Con. 53 Grandmothers sister Aff. 54 Grandfathers brothers wife Aff. 55 Grandmothers brothers wife Aff. 56 VViues grandfathers sister Aff. 57 VViues grandmothers sister 12. Section 3. Deg. The same line and third degree Canon Con. 58 Grandfathers brothers daughter Con. 59 Grandmothers brothers daughter Con. 60 Grandfathers sisters daughter Con. 61 Grandmothers sisters daughter Aff. 62 Grandfathers brothers sonnes wife Aff. 63 Grandmothers brothers sonnes wife Aff. 64 Grandfathers sisters sonnes wife Aff. 65 Grandmothers sisters sonnes wife Aff. 66 Wiues grandfathers brothers daughter Aff. 67 Wiues grandmothers brothers daugh Aff. 68 Wiues grandfathers sisters daughter Aff. 69 Wiues grandmothers sisters daughter 13. Section 3. Deg. The equall collaterall line and third degree Canon Con. 70 Grandfathers brothers neece Con. 71 Grandmothers brothers neece Con. 72 Grandfathers sisters neece Con. 73 Grandmothers sisters neece Aff. 74 Grandfathers brothers nephews wife Aff. 75 Grandmothers brothers nephews wife Affi 76 Grandfathers sisters nephewes wife Affi 77 Grandmothers sisters nephewes wife Affi 78 Wiues grandfathers brothers neece Affi 79 Wiues grandmothers brothers neece Affi 80 Wiues grandfathers sisters neece Affi 81 VViues grandmothers sisters neece 14. Section 3. Deg. The vnequall collaterall line descending and third degree Canon Con. 82 Fathers brothers neece Con. 83 Fathers sisters neece Con. 84 Mothers brothers neece Con. 85 Mothers sisters neece Affi 86 Fathers brothers nephews wife Affi 87 Fathers sisters nephewes wife Affi 88 Mothers brothers nephews wife Affi 89 Mothers sisters nephews wife Affi 90 VViues fathers brothers neece Affi 91 VViues fathers sisters neece Affi 92 VViues mothers brothers neece Affi 93 VViues mothers sisters neece 15. Section 3. Deg. The same line and third degree Canon Con. 94 Brothers neece Con. 95 Sisters neece Affi 96 Brothers nephewes wife Affi 97 Sisters nephews wife Affi 98 VViues brothers neece Affi 99 VViues sisters neece 16. Section 4. Deg. The right ascending line and fourth degree Canon Con. 100 Great grandfathers mother Aff. 101 Great grandfathers fathers wife Aff. 102 Wiues great grandfathers mother 17. Section 4. Deg. The right descending line and fourth degree Canon Con. 103 Sonnes nephews daughter Con. 104 Sonnes neeces daughter Con. 105 Daughters nephews daughter Con. 106 Daughters neeces daughter Aff. 107 Sonnes nephews sonnes wife Aff. 108 Sonnes neeces sonnes wife Aff. 109 Daughters nephews sonnes wife Aff. 110 Daughters neeces sonnes wife Aff. 111 Wiues sonnes nephews daughter Aff. 112 Wiues sonnes neeces daughter Aff. 113 Wiues daughters nephews daughter Aff. 114 Wiues daughters neeces daughter 13. Section 4. Deg. The vnequall collateral line descending and fourth degree Canon Con. 115 Great grandfathers sister Con. 116 Great grandmothers sister Aff. 117 Great grandfathers brothers wife Aff. 118 Great grandmothers brothers wife Aff. 119 Wiues great grandfathers sister Aff. 120 Wiues great grandmothers sister 19. Section 4. Deg. The same line and fourth degree Canon Con. 121 Great grandfathers brothers daughter Con. 122 Great grandfathers sisters daughter Con. 123 Great grādmothers brothers daughter Con. 124 Great
suspend in these times not the beginning nor ratification of matrimonie but the accessorie solemnities onely and the consumation of the contract neither can I finde it so strict this temporall prohibition as it is for the most part interpreted to be for thus I find it qualified viz. Haec autem seruanda sunt si vxor consensum adhibere voluerit the glosse addeth contra that is to say This abstinence taketh place if the wife shall consent thereunto and likewise if the husband for they haue not power of their bodies in themselues but either ouer other in due beneuolence this the canons terme Debitum coniugale wherin they be prohibited to defraud one another except it be by consent for a time no reason then the Church should defraud them both Let me not offend in shewing the significations I haue read of these prohibited times to marrie leauing the same vnto them that best be able to iudge them The time of Aduent represented Tempus absentiae sponsi i. The absence of the bridegrome in the which his spouse most of all desireth Aduentum i. The comming of hir husband and which shee importuneth daily This she inquireth of passengers too and fro abandoning all delightes so saith a father Sponsa ecclesia tempore aduentus querit in lectione prophetarum quos tunc legit qui de hoc certam habuerunt reuelationē Ideo in memoriam sponsi absentis sed desiderati ecclesia tunc temporis ordinat filios suos a nuptijs abstinere The spouse saith hee the Church euen seeketh so this time the comming of her bridegrome in the Prophets which then she readeth and who haue had thereof certaine reuelation and therefore shee hath this time of Aduent in remembrance of hir absent but most desired bridegrome ordained that her sonnes should abstain from marriage The second prohibition represented Tempus luctus in quo lugemus casum Ad●… casum nostrum in ipso The second prohibition that is to say the time of lent it represented a time of mourning wherein we bewailed the fall of Adam and in him our owne and the dangers consequētly herein we haue fallen into We should not therefore in these dangers reioyce but lament rather and pray it hath not therefore in this time the Church wherin she bewailed hir sinnes in dread of such imminent dangers giuen libertie to hir children to marrie Here they haue inferred that Noah whilest he was in the Arke knew not his wife nor his sonnes theirs but liued there apart yea and all other creatures besides both male and female for hauing continued in the arke by the space of a yeare they are not read any of thē to haue multiplied Againe the scripture speaking of the entrance of Noah into the Arke mentioneth it thus Noah entred and his sonnes and afterwardes as though they went apart and his wife and his sons wiues but otherwise of his going forth viz. Go forth of the Arke thou and thy wife and thy sons thy sons wiues with thee So that the words which were in their entrāce vsed apart were vsed togither in their going forth Hence Hierome writeth vpon Zacharie Temporibus tribulationis luctus non debere sapientem inserutre operibus nuptiarum that is to say That they ought not the actes of marriage to be yeelded to of him that his wife in the times of tribulation and mourning Plangent terrae c. And the Prophet writeth thus of the siege of Iudah against Hierusalē In that day shall there be a great mourning in Hierusalem c. And the land shall bewaile euerie familie apart the familie of the house of Dauid apart and their wiues apart the familie of the house of Nathan apart and their wiues apart the familie of the house of Leui apart and their wiues apart the familie of Shimei apart and their wiues apart all the families that remaine euerie familie apart and their wiues apart The third prohibited time including the Ascention and Penticost hereunto were added the 8 daies after Easter represented Tempus glorificationis wherin saith the Lord we shalbe Sicut angeli Dei i. Equall with the angels of God which neither marry nor are married Briefly the first prohibited time mentioned here represented the time of reconciliation the second of tribulation the third of glorification This for the prohibitiōs I haue read of the times but where we haue mentioned De legitima parentum coniunctione approbata per leges in the beginning of this chapter that is to say Of the lawful coniunction of man and woman approoued by the laws it resteth of the prohibition of the persons for so wee shall iudge of lawfull coniunctions and so of lawfull issue And touching these persons sithens they be in nearenesse in thēselues discerned by consanquinity and affinitie consequently whether prohibited there to marrie or not we haue next declared consanguinitie and affinitie in their orders to manifest the prohibitions the better CHAP. VI. Of consanguinitie or bloud the figure and declaration thereof COnsanguinitie is a bond or linke of persons descended of the same stocke deriued from carnall propagation so called Consanguinitas quasi sanguinis vnitas That is to say Consanguinitie of the vnitie or communitie of bloud And this whether it be lawfully contracted or otherwise that is to say Carnall knowledge and issue had in fornication equally contracteth consanguinitie with matrimoniall knowledge touching the prohibition of marriage Now to discerne prioritie or neerenesse in bloud two things must be regarded principally so called Linea and Gradus as much to say as the line and degree whose vses the figure here ensuing shall declare at large viz. to be the one of them namely the line that that gathereth togither the persons conteining their degrees and distinguishing them in their numbers this is called Collectio personarum the other the state or condition of the distant persons shewing them how neere they be or how farre asunder in themselues from their common stocke or either from other This is called Habitudo distantium personarum dicitur gradus ad similitudinem scalarum graduum siuè locorum procliutum quia ita gradimur de proximo ad proximum It is also to be noted this line to be threefold that is to say Ascending Descending and Collateral The ascending line is from me to my father to my grand-father great graund-father and so vpwardes in this figure from ✚ to A. B. C. D. Contrariwise the descending line from me to my sonne nephew his sonne downwards in this figure likewise from ✚ to a. b. c. d. The collateral line is placed on either side this is also noted to be twofold viz Equall vnequall The equal colleteral is that where equally they differ the persons from their common stocke as brothers and sisters be equally distant from their father as also be brothers sisters children from their graundfather The vnequall where one precedeth
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
D 4 e Great vncles vncle The same aunt iiij 5 f his hir sonne daughter iiij 6 g his hir nephew neece iiij 7 h his hir nephews neeces sonne daughter iiij 8 Great grandfather Mother iiij C 3 d Great vncle The same aunt iiij 4 e his hir sonne daughter iij. 5 f his hir nephew neece iij. 6 g his hir nephews neeces sonne daughter iiij 7 Grandfath grandmo ij B 2 c Vncle. Aunt ij 3 d his hir sonne daughter ij 4 e his hir nephew neece iij. 5 f his hir nephews neeces sonne daughter iiij 6 Father mother j A 1 b Brother Sister j. 2 c his hir sonne daughter ij 3 d his hir nephew neece iij. 4 e his hir nephews neeces sonne daughter iiij 5 THE FIGVRE OF AFFITIE   The fist kinde of affinitie prohibited at this day to marry The first kinde of affinitie prohibited at this day to marry Thesbe be added for ornament only and demonstration of the kinde of affinitie but they be not prohebited to marrie first deg brother sisters husband sister brothers wife brothers wiues husbande sisters husbands wife second deg brothers sonne sisters daughters husb sisters daughter brother sonnes wife     third deg Brothers nephew Sisters neeces husband Sisters neece Brothers nephewes wife     four deg brothers nephews sonne Sist nee daughter hus-bād Sisters neeces daughter bro. nep sonnes wife     This figure sheweth onely the first kinde of affinitie in the first collaterall descendents by carnall addition that is to say to thy brother a wife tothy sister a husband and so to the fourth degree The same affinitie thou hast that is to say in the first kinde by the same addition to euery other person in this figure of consanguinitie The degrees shall be more or lesse according to the distance of the persons they be added vnto but alwaies in the first kinde the which the prohibition of the Canons at this day exceedeth not CHAP. VIII Of the Prohibition Leuiticall HAc itaquè consuctudine quae ab ipso exordio humanae propagationis originem habuit quam nulla lex contra iubendo euacuauerat excusantur Abraam Isaac Iacob ceteri qui de propria cognatione ducebant vxores The questiō of their ages prouoked in their times the makers of the positiue canon lawes to answere such obiections had against the Patriarches and others that had married in their kindreds and tribes of the families of their fathers They concluded therefore they were excused Abraham Isaac and Iacob by that custome that had growen from the beginning of humane propagation and that which no law then had abolished The premisses or reasons that they vsed before were these viz. They were not prohibited that Idolatry might be auoided that the Church might be instituted in the peculiar people of God Deus enim sic ab initio salutem humani generis dispensauit vt primitiuam ecclesiam in illo populo institueret qui sibi carnis consanguinitate erat propinquus Hence the Apostles were chosen first of the Iewish nation whom God appointed then the foundation as it were of the Church Deinde in cecitate suae perfidiae Iudaica plebe relicta It was translated afterwardes the preaching of the gospel vnto strangers Tam fide quam cognatione carnis à Christo Despising as it were the companie and conuersation of his cōsanguine chose him a wife of another familie fulfilling these prophecies In peccatis vestris dimisi matrem vestram quasi adulteram repudiatam c. Vocabo plebem meam non plebem meam The canons haue enferred hence that they were permitted first these marriages but now prohibited What the Lord commaunded concerning the daughters of Zelophehad Mahlah Tirzah Hoglah Milah and Noah they did that is to say they married to their fathers brothers sonnes But this was after the commandements and laws which the Lord had commanded by the hand of Moses vnto the children of Israel in the plaine of Moab by Iorden towardes Iericho these be handled more at large in the table at the end of this treatise Sect. 8. we leaue them therfore here and to our purpose the Leuiticall prohibition viz. 6 None shall come neere to anie of the kindred of his flesh to vncouer hir shame I am the Lord. Leuit. 18. 20. 7 Thou shalt not vncouer the shame of thy father nor the shame of thy mother for she is thy mother thou shalt not discouer hir shame 8 The shame of thy fathers wife thou shalt not discouer for it is thy fathers shame 9 Thou shalt not discouer the shame of thy sister the daughter of thy father or the daughter of thy mother whether she be borne at home or born without thou shalt not discouer their shame 10 The shame of thy sonnes daughter or of thy daughters daughter thou shalt not I say vncouer their shame 11 The shame of thy fathers wiues daughter begotten of thy father for she is thy sister thou shalt not I say discouer her shame 12 Thou shalt not vncouer the shame of thy fathers sister for she is thy fathers kinswoman 13 Thou shalt not discouer the shame of thy mothers sister for she is thy mothers kinswoman 14 Thou shalt not vncouer the shame of thy fathers brother that is Thou shalt not goe into his wife for she is thine aunt 15 Thou shalt not discouer the shame of thy daughter in law for she is thy sonnes wife therefore shalt thou not vncouer hir shame 16 Thou shalt not discouer the shame of thy brothers wife for it is thy brothers shame 17 Thou shalt not discouer the shame of the wife of hir daughter neither shalt thou take hir sonnes daughter nor hir daughters daughter to vncouer hir shame for they are thy kinsfolkes and it were wickednesse 18 Also thou shalt not take a wife with her sister during hir life to vexe hir in vncouering hir shame vpon her These in the glosse be briefly collected thus viz. Nata Soror Neptis Matertera Fratris ' vxor Et patrui Coniux Mater Priuigna Nouerca Vxoris quae soror Priuigni Nata Nurusquè Atque soror patris Coniungi lege vetantur As much in effect amongst the residue in the admonition or table of prohibited marriages set forth by the most reuerend father in God Mathew Archbishop of Canturburie primate of England and Metropolitan An. 1563. as followeth that is to say A man may not marrie his Mother The right ascending line and first degree Stepmother Wiues mother Sonnes daughter The right descēding line and second degree Daughters daughter Wiues sonnes daughter Wiues daughters daughter Daughter The right descending line and first degree Wiues daughter Sonnes wife Sister The equall collateral line and first degree Wiues sister Brothers wife Fathers sister The vnequall collaterall line and second degree Mothers sister Fathers brothers wife 30 Therfore shall ye keepe mine ordinances that ye doe not any of the