Bracton: Thorne Edition: English. Volume 3, Page 317

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Volume 3, Page 317

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[001] Henry Paynforere,’¹ concerning two persons below age, against whom an inquest
[002] [of bastardy] proceeded by the assise, where it was objected that they were bastards
[003] and the jurors so said, because they were born in adultery. But the two are not
[004] contrary, because here they were demandants and in the other case tenants. And that
[005] an inquest as to bastardy ought to proceed against a demandant within age on the
[006] objection that² his father never married his mother, [or that he was born before his
[007] mother was married,] [may be seen in the roll] of the last eyre of Martin of Pateshull
[008] in the county of Shropshire, [where] a jury proceeded on that question.³

If an inquest of bastardy is taken in such an assise.

[010] An inquest of bastardy is sometimes transferred to court christian, in the proper
[011] circumstances, that is, when the marriage or espousals are completely denied in the
[012] assise of mortdancestor. According as bastardy is raised by the demandant or tenant,
[013] let the inquest be taken by this writ: ‘The king to such a bishop, greeting. Know
[014] that when A. in our court etc. claimed against B. and C. his wife so much land with the
[015] appurtenances in such a vill by an assise of mortdancestor there summoned between
[016] them (or⁴ ‘against such a one so much land with the appurtenances in the same vill
[017] as his right’) the aforesaid C. said that she was the nearer heir of E., on whose death
[018] the said A. brought that assise. The said A. objected against the same C. that she
[019] could have no right in that land because she is a bastard. And since cognisance of a
[020] case of this kind belongs to the ecclesiastical forum, we order you, having summoned
[021] before you those who ought to be summoned, to enquire diligently into the truth of
[022] the matter, and to make known to us by your letters patent the inquest you hold
[023] thereon. Witness etc.’⁵ And what ought then to be done will be explained more fully
[024] below [of exceptions,]⁶ to which this may be added: if the tenant raises the objection
[025] of bastardy against the demandant and the demandant against the tenant, for
[026] demandant and tenant often quarrel with one another and say ‘If I am a bastard
[027] then you are too,’⁷ quaere which of them ought first to prove himself legitimate. It is
[028] clear that the demandant ought to do so, because if he does not possession will remain
[029] with the tenant, whether the tenant is a bastard or not. Thus the bastardy of the
[030] demandant must always be investigated before that of the tenant, because if the
[031] demandant has no right to claim, possession will remain undisturbed, as was said
[032] above.

Notes

1. B.N.B., no. 1780; infra iv, 297, 301

2. ‘super hoc quod pater’

3. Selden Soc. vol. 59, no. 1125; not in B.N.B.; supra 310

4. ‘vel’

5. Infra iv, 303

6. Infra iv, 305

7. ‘contendunt . . . similiter,’ from lines 29-30