Bracton: Thorne Edition: English. Volume 4, Page 294

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Volume 4, Page 294

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[001] proved, and when raised, where determined, and who ought to sue. We must also see
[002] what the duty of the ecclesiastical judge is and what that of the secular judge. Also
[003] who ought to be called legitimate and who a bastard with respect to succession, according
[004] to English law and custom. Also what the law is if both are bastards, the
[005] demandant and the tenant. And what the law is if, when legitimacy has been proved,
[006] he who has proved it dies before he comes to the royal court with his proof.

Of the exception of bastardy in causes of bastardy, because no bastardy is unqualified and each has its definite cause.

[008] We must first see how bastardy ought to be raised. It is sometimes put forward with
[009] the addition of the reason why he is a bastard, sometimes without the reason. But
[010] since where no reason is given doubt and uncertainty may result, because from that
[011] answer¹ the forum to which cognisance ought to belong cannot be ascertained, [and]
[012] since it does not matter whether one does not answer at all, ²<just as it does not matter
[013] whether an [action] is not put forward at all or obscurely or incompletely,³ and what
[014] is said of an action must be said of an exception, that it ought not to be put forward
[015] obscurely or incompletely so that it cannot be known of what kind the bastardy is,>
[016] or answers obscurely,⁴ as where the tenant merely says that the demandant has no
[017] right in the thing claimed because he is a bastard, and that he is prepared to prove
[018] the bastardy where and when he ought, [If the proof of that answer is committed at
[019] once to court christian, which in some matters is contrary to the law and custom of
[020] England, then every proof may be made in court christian,⁵ which ought not to be,
[021] since to transmit an inquest touching bastardy so obscurely phrased to court
[022] christian is nothing other than to act contrary to the law and custom of England.]⁵
[023] the reason must therefore, be added, as where the tenant says ‘Brother, you have
[024] no right in the land claimed because you are a bastard, because your father never
[025] married your mother.’ Cognisance of bastardy of that kind belongs properly to the
[026] ecclesiastical judge, since the marriage is directly denied, because it is not within
[027] the province of a secular judge to decide whether there was a marriage or not, when
[028] he against whom the objection is made says the contrary. And so if he says,

Notes

1. ‘ex tali responsione,’ as below

2. Supra i, 419

3. Infra 352

4. Drogheda, 122: ‘nihil tamen interest an quis non respondeat an obscure respondeat,’; D. 11.1.11.7; infra 298, 352

5. Om: ‘Ad talem . . . tollendum,’ a connective; infra 295-6