Bracton: Thorne Edition: English. Volume 4, Page 305

Harvard Law School Library

Bracton Online -- English

Volume 4, Page 305

Next

Go to Volume: Page:

[001] (as above).’ If one believes that another is a bastard since he was born [before the
[002] marriage of his parents was celebrated in the face of the church, and the other answers
[003] that they were married] at the time of the interdict, such ceremony being observed
[004] as was then possible, whether it was in the face of the church or not, such
[005] cognisance must be transmitted to the ecclesiastical forum by this writ.

Writ that he was born before marriage.

[007] ‘The king to such a bishop, greeting. Know that when A. in our court etc. claimed
[008] against B. so much land with the appurtenances in such a vill as his right, the same
[009] B. came into the same court and objected against the same A. that he had no right
[010] in that land because he is a bastard, because he was born so long a time before the
[011] marriage between his father and mother was solemnly contracted in the face of the
[012] church [and] the aforesaid A. replied that he is legitimate and born after a marriage
[013] contracted between his father and mother at the time of the interdict, every ceremony
[014] being observed that was then possible. And since cognisance of such etc. (as
[015] above).’

When the [inquest] has been transmitted to court christian, the plea remains in the king's court until the inquest arrives.

[017] When the plea and inquest has been transmitted to court christian, the plea in the
[018] court of the lord king will remain sine die until the inquest comes to the court, after
[019] the bastardy has been decided in court christian.

Of the duty of the ordinary.

[021] The duty of the ordinary will be this: after calling the parties together, in their
[022] presence, if they wish to be present, let him make a diligent and summary enquiry,¹
[023] according to the form of the writ, whether there were espousals or marriage, or there
[024] were none at all, or there was a marriage but an unlawful one. We must therefore see
[025] [something] of marriage, of which we have spoken above in the tractate ‘who is a
[026] lawful heir,’² where it is said that he is the lawful heir whom lawful nuptials prove
[027] to be such,³ whether the marriage is secret or public,⁴ by words de praesenti or de
[028] futuro,⁵ as long as it cannot be dissolved, or [if] contracted under a prohibition,⁶ has
[029] not been dissolved in the lifetime of the contracting parties, since espousals or
[030] marriage is the joining together of a man and a woman holding to a single tenor of
[031] life.⁷ By this it may easily be ascertained who is legitimate and who a bastard.
[032] When the ecclesiastical judge has made the inquest, there is to be no appeal from
[033] him by anyone,

Notes

1. Supra iii, 184, 373

2. Supra ii, 185

3. Glanvill, vii, 12

4. Supra ii, 266, iii, 373-4

5. Supra iii, 374

6. ‘prohibitione’ for ‘condicione’; supra ii, 185, 266

7. Decretum: C.27, qu.2, ca.1; supra iii, 363