Bracton: Thorne Edition: English. Volume 3, Page 373

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Volume 3, Page 373

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[001] belongs to the ecclesiastical forum, we order you, having assembled before you
[002] those who ought to be assembled, to enquire diligently into the truth of the matter,
[003] and to make known to our justices at Westminster by your¹ letters patent the
[004] inquest which you make. Witness etc.’

Of the duty of the ordinary.

[006] ²When the ordinary has received the letters of the lord king, he ought to proceed
[007] to hold the inquest³ in this way, according to the consultation of Martin. On this
[008] matter Peter des Roches, then bishop of Winchester, consulted the same Martin,
[009] who replied that no matter in what diocese he who puts forward the exception has
[010] his domicile, let such notice be given him by the ordinary that he may appear, if he
[011] wishes, on the day the ordinary has appointed for him, ready to speak, in whatever
[012] way seems most advantageous to him, in disproof of the marriage. Whether he then
[013] appears or not, let the witnesses the woman has produced on her own behalf to
[014] prove the marriage be admitted, those, that is, against whom no valid objection
[015] can be raised. When they have taken an oath, let their statement be made in public,
[016] and the truth having been inquired into without any great legal solemnity, so to
[017] speak, summarily,⁴ let the inquest be returned to the lord king or to his justices,
[018] according to the form of the mandate, nor will an appeal be allowed in this case any
[019] more than in an inquest of bastardy, because if such were permitted the affair could
[020] be protracted indefinitely and the woman, losing hope, would withdraw from
[021] her suit, her business unfinished. And because, the inquest is entrusted only to the
[022] persons and ordinaries named in the letters of the lord king, jurisdiction does not
[023] extend to other persons, least of all beyond the realm, for if a bishop, on an appeal
[024] made by either party to the lord pope, were to halt the proceedings [that] further
[025] inquiry be made,⁵ a situation prejudicial to the lord king would thereby be created,
[026] for in that way, in cases of this kind, the pope could judge of lay fee by reason of
[027] matrimony, without distinguishing the two and, as it were, indirectly,⁶ because the
[028] marriage is incidental, and not it but the lay fee is the principal matter. But since it
[029] is said⁷ that where there is no marriage there is no dower, and conversely, where
[030] there is marriage there is dower, and [where] there is a marriage at the outset, there
[031] is dower as long as the marriage lasts, and when it fails the exaction of dower fails,⁸
[032] we therefore must see the marriage from which an exaction of dower follows.
[033] [Suppose] that a man has a legitimate concubine and has issue by her in concubinage,
[034] and afterwards contracts a clandestine marriage with her, and then has a child by
[035] her, and then marries her publicly, in the face of the church, and endows her at the
[036] church door. In this case he will be legitimate who was born of the clandestine
[037] marriage,

Notes

1. ‘vestras’

2. Infra 385

3. ‘inquisitionem’

4. Infra iv, 305

5. ‘inquireretur’

6. Infra iv, 306

7. ‘dicitur’

8. Supra 372