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Abridgment of Ecclesiastical Laws

John Godolphin (1617-1678) · 342,258 words · 1521 min

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Section 9/13
. Stock, or Root) do grow again; by which are excepted Great Trees and Timber-Trees. So that of Sylva Caedua and Underwoods Tithes are payable; but not of Great Trees, or of twenty years growth, and that by the Statute of 45 Ed. 3. cap. 3. Whereby a Prohibition will lie, in case, &c. which Statute exempteth Wood of twenty years growth and upwards from the payment of Tithes, as Prescription doth such Wood as hath not been Fell'd in the Memory of man; yet Wood of the age aforesaid, not in use nor apt for Timber, is (under permission of the said Statute) Tithable Body and Bough, Felled or Lopped: And such Woods as are not Sylva Caedua nor Tithable, go under the notion of Gross Woods, or Great Wood, viz. such as are usually employed for the building of Houses, Mills, &c. as hath been Resolved , of which sort are Oak, Ash, Elm, Beech, Horn bean, and Asp : Yet if these be cut under 21 years growth, they are accuonted Sylva Caedua, and ought to pay Tithes. But the Loppings of great Oaks, Ashes, &c. though the Lops be under twenty years growth, shall not pay Tithes, being privileged by the Bodies ; nor are the Shoots and Underwood growing from the Roots and Stocks of such Timber-Trees Tithable, or from the Roots and Stocks of Trees above the growth of 20 years, which have been felled . Vid. Trees, Wood, Underwoods, and Timber.

T

TAres, or Green Tares, cut before they are Ripe, or mowed when they are green, for the Feeding of Cattle, when Suit hath been commenced in the Ecclesiastical Court for Tithes thereof, a Prohibition hath been granted upon a Suggestion grounded upon special Customs, that no Tithes ought to be paid for the same. Fetches, Tares, and other course Grain, eaten only by the Cattle which do the Husbandry-work in the place, pay no Tithe, except there be a Special Custom for it. Lane 16. Notwithstanding, whether they are Tithable or not, if cut for Horses is a Question; for where upon a Libel in the Ecclesiastical Court for Tithes of Green Tares cut for seeding of Labouring Horses, it was moved for a Prohibition, it was not granted upon such a general Suggestion, it being no ground for it: Otherwise, upon the Custom of the Parish, That no Tithe hath been paid in such case . It was Mead and Thurman 's Case, which is elsewhere Reported, That a Prohibition was prayed upon a Suggestion of this Custom, That for Tares cut or mown before they are ripe, and given to Plough-Cattle, Tithes ought not to be paid: And another Custom for Headlands sown with Corn, used to be fed with Plough-Cattle, or mowed or cut for that purpose, that the Owners should be discharged of Tithes. It was holden by the Court, That this Suggestion grounded upon a Special Custom was good: and the parties being sued for the Tithes of the Premises in the Sp. Court, the Court granted a Prohibition

Timber -Trees, that have been usually Top'd and Lop'd, such Toppings and Loppings are not Tithable; for the Law that doth privilege the Body of the Tree, doth privilege also the Branches thereof. The Law is the same, if the Tree become Rotten Dry, and Barren . Timber -Trees in all Counties, as Oak, Ash, and Elm, after twenty years growth, are not (as aforesaid) Tithable. Also Beech, Horn-Bean, Maple, Asp, and Hasel, may in some Counties, where there is scarcity of other Timber and an Usage accordingly, be computed as Timber -Trees, and not Tithaable. But any Timber -Wood, if it be cut within twenty years after the first planting thereof, is Tithable . But on the other hand, Timber -Trees once discharged of Tithes are forever discharged and quit of Tithes, though rotten dead. Whether a Parson may Prescribe to have Tithes of great Trees, contrary to the Common Law and the Statute of Sylva Caedua, Quaere, 9 H. 6. 56. It is said by Belknap , That of great Trees, or of Timber -Trees, Tithe was never demanded, and that by the Statute of 43 Ed. 3. But vid. Coke 11. par. in Liford 's Case, the words in that Statute, and in the Book of 50 E. 3. viz. Great Trees must be intended Oaks, Ash, and Elms, of all which as well before the said Statute as since, if they were of twenty years growth, it seems by the Common Law Tithes were not to be paid, because of their own nature they were only accounted Timber -Trees, and fit for Building. But of Sallows, Willows, Maples, and the like, although they be above twenty years growth, yet Tithes thereof shall be paid . Of other Trees of the age of twenty years growth or upwards, which are Timber -Trees, Tithes shall not be paid; but of Sylva Caedua and Underwoods, Tithes shall be paid, but not of great Trees by Statute . In a Prohibition the Question was, Whether Trees, which were above the age of 20 years growth become Rotten, and be cut down for Fuel, shall pay Tithe or not. It was the Opinion of the Court, that they shall not pay Tithes, for that Tithes are payable for all increase, and not for a decrease; and being privileged in regard of their high nature, this Privilege shall not be lost in regard of its decrease . So if Timber -Trees become Arida, Sicca, &c. yet because sometimes it was an Inheritance, which was discharged of Tithes, although it now become Dotard, Tithe shall not be paid of the same; for the quality remaineth, though the estate of the Tree be altered . If a Tree under the growth of 20 years be Top'd, and the Body thereof suffered to grow till it be past that age, and afterwards the Boughs being grown out again are Top'd and Lop'd again, Tithes thereof shall not be paid, although that the Tree was not Priviledg'd at the first cutting; which was the Opinion of the whole Court of Common-Pleas . Such Timber -Trees are in Law known by the name of Great Trees , and Gross woods .

Trades and Labors pay some Tithe by usage in the nature of Personal Tithes; and so Carpenters, Masons, &c. and all Handicraftsmen have paid Tithe. There was a Parson in Bristol that sued an Innkeeper there for the Tithes of the Profits of his Kitchen, Stable, and Wine-cellar; in a Prohibition moved for by Yelverton, the Case appeared to be this: The Defendant being Parson of a Parish in Bristol, did Libel in the Ecclesiastical Court against the Plaintiff, being an Innkeeper of the Bear in Bristol, to have Tithes of the Profits by him made, of his Kitchen, Stable, and Wine-cellar, and lays in his Libel there, That he made great gain in selling of his Beer (having bought it for 500 l. and sold the same for a 1000 l. ) and so Libels for the Third part of the Profits of the same, and sets forth in his Libel, That this is due unto him per Communem Legem Angliae; and sets forth in his Libel, That Negotiando and Traficando, he doth bargain and sell Beer in his Inn for 1000 l. which he bought for 500 l. and gained in his Sale 300 l. and better, of which gain he ought to have Tithe. Yelverton moved for a Prohibition, setting all this matter forth in his Suggestion; and further shown, That the Defendant had yearly of the Plaintiff 40 l. at the least. Doddridge Justice, The Defendant would have Tithe, as I think, also of the Kitchen-stuff. Clench Clerk of the Papers informed the Court, That there was a Parson, who Libelled for Tithes of the gains of 10 l. for an 100 l. put out at Interest, and a Prohibition was granted: In this principal Case, by the Rule of the Court a Prohibition was awarded.

Transaction differs from Composition only in this, that Transaction is an Agreement, touching Tithes, upon things litigious and doubtful; the other is Frank, gratuitous and voluntary, of things not contended for. See Composition.

Treble Dammages may be had in an Action grounded upon the Statute of 2 Ed. 6. for not setting forth of Tithes, which Action is to be sued in the Temporal Courts.

Trees of all sorts regularly and generally (except Timber-Trees, as aforesaid) Root and Branch, Body, Bark, and Fruit, used or sold by the Owner, are Tithable. Tithes shall be paid of Hasel, Willows, Holley, Alder, and Maple, although above twenty years growth. Mich. 5. Jac. B. Resolved, and Consultation granted accordingly. So that Trees of all kinds, not apt for Timber, though exceeding 20 years growth, nor ever cut before, may be Tithable. And all Trees under the notion of Sylva Caedua aforesaid, Underwoods and Coppices felled and preserved to grow again are Tithable to the Parson, when the Owner takes his Nine parts. But Trees cut only for Mounds, Plow-gear, Hedging, Fencing, Fuel, for maintenance of the Plough or Pail, be it Underwoods of Coppices, Parings of Fruit-Trees, or the like, are not Tithable; but Trees bearing Fruit of all sorts, are Tithable in their Annual increase: And therefore as to Fruit-Trees, as Apples, Pears, &c. the Tenth of the Fruit shall be set out and delivered, when they are newly gathered; for the omission whereof, if loss come to the Parson, the Owner is chargeable to him in the Treble Dammages. If a man pay Tithes for the Fruit of Trees, and after cut down the same Trees, and make them into Billets and Faggots, and sell them, he shall not pay Tithes for the Billets or Faggots; for that it is not any new Increase. Coke, Magna Charta, 652. 621. If Trees be Fell'd, no Tithes shall be paid of the Roots. Coke, Pasch. 29 Eliz. B. R. nor of the young Sprouts, that grow of such ancient Stock. M. 12 Jac. B. R. Stampe & Clinton. Roll. Rep. And as Fruit-Trees pay Tithes in their Fruit, so also may young Trees, which as yet bear no Fruit, pay Tithes in another kind; for where a Parson Libelled in the Ecclesiastical Court for the Tithes of young Trees planted in a Nursery, upon purpose to be rooted up, and sold to be planted in other Parishes: The Question was, Whether Tithes should be paid for them? It was said, they were of the nature of the Land, and Tithes should not be paid of them, no more than of the Mines of Coles, or Stones digged; or for Trees spent in Fuel in the House. But it was the Opinion of the whole Court, That forasmuch as he made a profit of such young Trees, Tithes thereof should be paid, when they are digged up and sold into another Parish, as well as of Corn and Carret, or other things of like nature .

Note by the Justices, If one cut Trees which are or may be Timber, although they be under the age of 20 years, no Tithes are due; and so it is of new Germins growing under that age. And where in a Prohibition, for that it was Libelled in the Ecclesiastical Court for Tithes of Timber- Trees, the Defendant said, the Trees were long since aridae, mortuae, & putridae: It was the Opinion of the Justices, That no Tithes should be paid of those Trees, for being above the growth of 20 years, they were discharged of Tithes. Also in Brook and Rogers Case, where a Parson sued in the Ecclesiastical Court for the Tithes of the Boughs of Trees, above the age of 20 years growth, and the Defendant prayed a Prohibition, and shown that the Trees were aridae, siccae, & in culminibus putridae: It was held by the better Opinion, that Tithes should not be paid of them.

In an Action upon the Case: Declared, whereas by the Statute of 45 Ed. 3. cap. 3. Tithes ought not to be paid for Gross Trees: That she had cut down such Timber- Trees, being above the growth of twenty years, and that the Defendant as Parson sued her for Tithes of them against the Statute; upon which it was Demurred. Resolved by the whole Court, That the Action did not lie; for none shall be punished for Suing in the Ecclesiastical Court for any matter which is properly demandable there, although perhaps, he hath no cause of Action: But if he Sues in the Ecclesiastical Court for matter, which appears by his Libel is not Suable there, nor the Court hath Jurisdiction thereof, there an Action upon the Case lieth.

Turkeys: Tithes shall not be paid of them, nor their Eggs, quia Ferae naturae .

Turves used for Fuel or Firing, do pay Tithe, and are Tithable as Predial Tithes; yet held that Tithes shall not be paid thereof. Hill. 14 Jac. B. R. per Houghton. Hill. 11 Jac. B. R. per Cur.

Tile -Stones, or Brick- Tile are not Tithable .

Tythes or Tithes are a Tenth, or otherwise a certain part or portion of the Fruit or lawful Increase of the Earth, Beasts, or Men's Labor and Industry; and are payable by every person having things Tithable, that cannot show a Special Exemption, either by Composition, Custom, Prescription, Privilege, or some Act of Parliament: And they are to be paid without any Diminution; for which reason the Owners of things Tithable ought not to have the Nine parts, till the Tenth be first severed there-from. And on the other side, the Tithe is in no case to be taken by the Parson or Vicar, before the same be severed from the Nine parts. The Parson de mero Jure is to have all the Tithes, if there be no Endowment of the Vicarage ; and a Vicar cannot have Tithes, but by Gift, Composition, or Prescription, for that all Tithes de jure do belong to the Parson . In Suit for Tithes it is not necessary to demand the very value, for the Duty is uncertain. Mich. 16 Jac. B. R. Case Pemberton & Shelton. Roll. Rep. If Tithes be payable by one who dies before he pays it, it must be paid by his Executor, if he hath Assets. But if the Parishioner setteth forth his Tithes, and they stand upon the Land two or three days, and afterwards he taketh or carrieth them away; this is not a setting forth of his Tithes within the Statute of 2 Ed. 6. . But if the Parson or Vicar shall suffer his Tithes (being severed) to lie long upon the Land to the prejudice of the Owner of the Ground, he may have his Action of the Case . And whoever taketh away the Tithes, not having Right thereto, is a Trespasser. Also an Action lieth against a Disseisor for the Tithes: or if one cut them, and another carrieth them away, an Action lieth against either of them . And although in the Ecclesiastical Courts no Plea is allowed in Discharge of Tithes ; yet Lands in the hands of Ecclesiastical persons may be Discharged of Tithes, and now since the Statute of 31 H. 8. in the hands of the Kings Patentees also, by Suspension, Privilege, or Unity . And since in the Ecclesiastical Courts no Plea (as aforesaid) is allowed in Discharge, it is nothing strange that the Common Law holds, that the Court Spiritual hath not Jurisdiction in matters of Tithes, where the Prescription is de non Decimando; otherwise, where it is de modo Decimandi . The manner of right Tithing is regularly thus, viz. That Tithes and all other Church-Duties, shall be yielded and paid according to the Usage and Custom of the place, where they are paid: And of Predial Tithes, the Tenth is to be set apart from the Nine parts in the place where they grow, before the said Nine parts are carried away; which Separation from the Nine parts is to be done in presence of the Parsons Servant, upon seasonable Notice given to the Parson by the Parishioner; and the Parson is to have reasonable time to take away his Tithe . And as for the Small Tithes, such as Plants, Herbs, Seeds of Woad, Flax, Hemp, &c. they are Tithable in kind, if not Compounded for. And Personal Tithes, such as are for Profit made by Trade and Manual Occupations (except Common Laborers) are to be paid, as they were used to be paid forty years before the Statute of 2 Ed. 6. and as of right they ought to be paid, as at or before Easter some small Sum of Money, according to the Custom of the place; but without a Custom nothing to be paid . The Tithes of one thing only cannot be in satisfaction of Tithes of the same, and other things of another kind . Nor is Tithe twice payable of one thing in one and the same year: Therefore if a Parson hath Tithe -Fruit of a Tree felled the same year, and made into Billets or Faggots, he shall not have Tithe thereof. Nor are Tithes payable by any, but such as have a Property in the thing Tithed, therefore they are not payable of things Stollen; nor shall things merely for Pleasure pay Tithes, nor the things that are in no man's property; only the King shall have the Tithes arising out of Ground not in any Parish. And if Tithe be paid to one that comes into the place by Simony, it is at his own peril, if afterwards he be forced to pay it again . Where Sale is or may be made of a thing Tithable, the equallest way is to lett the Parson or Vicar have the Tenth penny made of the thing sold. And although Tithe is not payable to the Simonaick Parson, yet an Incumbent wrongfully Collated by the Bishop, may be such a person as is capable of Tithes, and may Sue for the same . In Love and Piggots Case it was said, That if a Lessee for years be Sued in the Spiritual Court for Tithes, he in the Reversion may have a Prohibition. Pasch. 29. El. B. R. Cro. Rep. par. 1. And a Lay-man lawfully Interessed in Tithes, being disseized thereof, or wronged therein, may have his Remedy for them in the Kings Temporal Courts. This takes not away the ordinary Remedy for them in the Ecclesiastical Court; the Law (as to that) being as it was before the Statutes . Likewise, for refusal to pay Tithes, or not setting forth Predial Tithes, the Parson may Libel in the Ecclesiastical Court, or he or other Proprietor thereof may Sue at the Common Law, or for the Subtraction thereof, at their Election, and recover the Treble value of the Tithes . Yet where only the Right of Tithes doth come in debate, and not the right of Patronage, in such case it hath been held, That the Ecclesiastical, not the Temporal Jurisdiction, shall take cognizance thereof; yea, though both parties claim by Prescription, which in itself is a matter Triable at the Common Law . But where the parties Litigant are both Ecclesiastical persons, and the Claim of the one be for an Annual Pension out of the Parsonage of the other, although he claim the same by Temporal grounds, viz. by Prescription and Real Composition, he hath his Election to sue for the same either in the Ecclesiastical, or in the Temporal Court: And by the Statute of 34 H. 8. c. 16. Ecclesiastical persons may sue for Pensions in the Ecclesiastical Court; but if he brings a Writ of Annuity for the same, and declares upon the Prescription, he hath then determined his Election, that if afterwards he Sue for this Annuity in the Ecclesiastical Court, a Prohibition will lie . If Suit be in the Ecclesiastical Court between Parson and Vicar for Tithes, Prohibition hath always been denied, if there be not other matter determinable by the Common Law. Mich. 16 Jac. B. R. Roll. Rep. But where the Question is only between the Parson and the Vicar, it is to be decided in the Ecclesiastical Court . Yet it is said, That a Real Contract, though made between Ecclesiastical persons and of Ecclesiastical things, is only cognizable at the Common Law . But if a Custom of Tithing be agreed by and between both parties, it may be sued for in the Spiritual Court; but if the Custom be denied, a Prohibition may be awarded, till it be Tried at Common Law . But where there is a Modus Decimandi, be it of Lands, or a certain Annual Sum of money, or other profit time out of mind given to the Parson and his Successors, in full discharge of all Tithes in kind in such a place certain; if this Sum be not paid, yet may not the Parson sue for Tithe in kind, but for the Money in the Ecclesiastical Court: But yet the Modus itself is Triable at the Common Law, and not in the Spiritual Court . Likewise, after that the Tithes are carried away out of the Ground, it hath been held, Suit cannot then be commenced for them in the Ecclesiastical Court, because they are then become Lay-Chattels, and the Property thereof is altered . And for the not setting forth of Tithes, not only the Parson or Rector, but also the Farmer of the Rectory may sue upon the Statute . The bare severing or setting forth of Tithes doth not make them to become Lay-Chattels, but the carrying them away out of the Ground doth: And therefore if Tithes be severed, and set forth, and afterwards the Parson Lease out the Parsonage, not mentioning the Tithes, the Tithes set forth shall pass; for although they be divided and severed, yet they are as yet Spiritual Duties of the Parsonage: But if the Tithes be carried into the Barn, and afterwards the Parson Leaseth out his Parsonage, with all Profits, &c. those Tithes shall not pass to the Lessee, for that now they are become Lay-Chattels . It was Agreed clearly in Cannen 's Case, That if a Parishioner sever his Hay, and it be made into Reeks or Cocks, and after fell it, the Parson cannot sue the Vendee for the Tithes thereof, but him that severed it, and on this matter Prohibition was granted. H. 16. Jac. B. R. Roll. Rep. If a Parishioner doth not set forth his Tithes, or subtracteth them after they be once set forth, the Parson may Libel against him in the Spiritual Court; or else by the Statute of 2 Ed. 6. cap. 13. the Parson or other Proprietor of the Tithes may have their Action in the Kings Temporal Courts, for the not setting forth or subtracting of them at their Election, and shall recover the Treble value of the Tithes in an Action of Debt: for although the Treble value be not given to the Parson, or other Proprietor of the Tithes, by any express words of the Statute; yet forasmuch as he is the party grieved, and hath the Right of the Tithes in him, the Treble value is given to him. For wheresoever a Statute giveth a Forfeiture or penalty against any one, who wrongfully detaineth or dispossesseth another of his Right or Interest; in that case he that hath the wrong, shall have the forfeiture or penalty, and shall have his Action at the Common Law for the same, or he may Sue in the Ecclesiastical Court for the same . But in his Action at Common Law it seems, he shall recover no Costs, as hath been Adjudged . But if the Parson or other Proprietor will sue in the Ecclesiastical Court for the subtraction of the Tithes, he shall recover there but the double value of them; because in that Court he shall recover the Tithes themselves, which is equivalent to the Treble value at the Common Law . In another Case, where Debt upon the Statute of 2 Ed. 6. was brought, for not setting forth of Tithes; the Plaintiff shown, That Two parts of the Tithes did appertain to the Rectory, and a Third part to the Vicarage, and that he had a Lease for years of the Rectory, and another Lease of the Vicarage: And for not setting forth of the Tithes he demanded the Treble value: upon Non Debet, it being found for the Plaintiff, it was urged in stay of Judgment, that he ought to have brought several Actions, being grounded upon several Leases, as his Title is several. But it was Resolved, That the Action was well brought, in regard he had both Titles in him; and the Action is brought upon the wrong, because he did not set out the Tithes . Again, in Debt for not setting forth of Tithes upon the Statute of 2 Ed. 6. The Case was, Corn was growing upon the Glebe-Lands of the Vicar, which was discharged of Tithes being in his own use: It happened that the Vicar died before the Tithe was severed, and his Executors did cut and carry away the Corn; and he that had the Parsonage appropriate brought the Action: The Counsel of the Defendant prayed the Opinion of the Court, whether he might plead Nihil debet: But the Court refused to deliver their Opinion in it, because it hanged in Suit before them . In the Case of Mountford against Sidley it was said, That where Tithes are set out, the Parson hath a liberty for a convenient time to come and carry them away: And this convenience of Time is triable by a Jury; if he exceed this, he shall be subject to an Action, and then by Judgment of Law he shall be taken to be a Trespasser ab initio: Otherwise, it shall be of a License in Fact given by the Parson himself. And it was holden by the Court, if the Corn had continued over long, his Remedy had been by Action upon the Case And as a Parson ought to have convenient time to carry away his Tithes, so likewise he ought to have for that end free ingress, egress, and regress, to, through, and from the Land where the Tithes are, wherein if he meet with any obstruction, he ought to see how he Sues and lays his Action; for in a Case, where a Parson Libelled for Tithes in the Ecclesiastical Court, and set forth; That the Tithes were set forth, and that the Defendant did hinder him and stop him from carrying them away: But because he did not Sue there upon the Statute of 2 Ed. 6. for he did not mention the Double value as he ought, and it was Agreed by all the Justices, he ought to have done; nor mention the Statute, as he ought also to have done; a Prohibition in that Case was awarded . The Grant of a Tithe for Life to begin at a day to come, is not good. Yelvert. 131. If a man will lett a Lease of his Tithes, the Lease must be by Deed, and not by word only; therefore, if a Parson doth Demise his Rectory for years, the Tithes will pass inclusive, although the Lease be by word only; but if the Parson Lease his Tithes alone, they will not pass, unless the same be by Deed or Writing . Yet the Parson may Demise his Tithes to the Owner of the Land, for a year by word only, as hath been agreed by all the Justices ; but to a Stranger he cannot Demise them, otherwise than by Deed: And although Tithes will (as aforesaid) pass by Contract to the Owner of the Soil; yet may the Parson sue the Owner for Tithes in kind in the Spiritual Court, and (as it hath been holden) the Owner by reason of the Contract, shall not have a Prohibition . In which case the Ower of the Soil may sue the Parson upon the Contract in the Temporal Court, and recover as much in Dammages; but then in his Pleading he must not declare of a Verbal Contract, but must set forth the same to have been made in Writing, and so it hath been Adjudged . And in the Lord Shandois Case it was holden by the Court, That a Suggestion of an Agreement between him and the Parson, in consideration of a certain Sum to be yearly paid to the Parson during their Joynt-Lives, and his continuing Parson, that his Messuage and Lands in the Parish of D. and the Tenants thereof, should be discharged from the payment of Tithes thereof, showing, that the said yearly Sum was paid accordingly, and that notwithstanding the Defendant sued the Plaintiff, being his Farmer, for Tithes: In this Case it was held, That this was not a sufficient Surmize to maintain a Prohibition: For an Agreement to be discharged from Tithes, may be a year by word; but to have such an Agreement for life or years, cannot be without Deed . Likewise in an Ejectione Firme brought of a Lease of Tithes, the Plaintiff did not show, that the Lease was by Deed: and because Tithes cannot pass without Deed, after a Verdict found for the Plaintiff: It was Ruled to be ill, and Adjudged for the Defendant . To conclude, In the 19 El. B. R. it was debated whether Tithes were Jure divino, or by the Constitution of men only? The Judge. were all it seems of Opinion, That they were due as well by the Constitution of Kings as by the Law of God . And therewith doth Dr. & Stu. 166. if the Qu. be de Quota parte: For there it is held, that the 60 part is due only by man's Law. And the Opinion of Gerson the Divine, is cited in his Treatise, Entituled Regulae Morales, where it is said, Solutio Decimarum Sacerdotibus est jure Divino, quatenus inde sustentur; sed quoad hanc quam illam partem assignare, aut in alios reditus commutare, Positivi juris est. And elsewhere, Non vocatur portio Curatis Decima pars, imo est interdum vicesima, aut tricesima . And in He • sloe 's Case, Co. 9. par. it is said, That Tithes, Quatenus Tithes, were Spiritual things, and due ex jure Divino, and were not accounted as Temporal Inheritances . Hence it is, That where a Parson leased all his Glebe Lands, with all Profits and Commodities, rendering 13 s. 4 d. pro omnibus exactionibus & demandis; and afterwards Libelled in the Spiritual Court against his Lessees for the Tithes thereof. It was the Opinion of the Court, That Tithes are not things issuing out of Lands, nor any Rent or duty, but Spiritual; and if the Parson doth Release to his Parishioners, all Demands in his Lands, his Tithes thereby are not extinct; and therefore a Consultation was granted . And in the like case it hath been Adjudged, That the Lessee should pay Tithes to the Parson, for that they are jure Divino due, and cannot be included in Rent .

If a Parishioner sets forth his Tithes, and sever the Tenth part from the Nine parts justly and truly, although he doth not give Personal notice to the Parson, nor general notice in the Church of the time of setting forth his Tithes, whereby the Parson might be present at the setting of them forth, and to see that it be justly done; yet it is a good setting forth of the Tithes, as in the Case between Chase and Ware, in a Writ of Error upon a Judgment in an Action upon the Case against the Parson, for leaving his Tithe of Hay upon the Parishioners ground after notice of setting them forth, whereby the Parishioner lost his Grass there. But it was not alleged, that the Parson had notice of the time of setting them forth; and yet the Court affirmed the Judgment against the Parson.

A. Parson in Consideration of 20 s. yearly, promised to B. that B. should pay no Tithe for a certain Wood, per parol; and in Consideration thereof B. promised to pay the 20 s. yearly, and this Agreement was during their Lives. B. made a Lease at Will of the Wood; the Lessee had a Prohibition against him, for the Agreement was good; and Jermyn demanded, what Remedy against the Less for the 20 s. Doddridge, None; but he shall have Action on the Case against B. or his Executors; but the Lessee for years may have Action against the Parson, if he Sue him in the Ecclesiastical Court. For the Case was, There was an Agreement per parol made between S. Parson, and B. the Parishioner: B. promised to S. for himself, his Executors and Assigns, to pay him Ten load of Wood, and 10 s. for the Tithe of a Wood during the life of S. And S. promised not to Sue him, &c. for any other Tithe. B. dies, his Executor made a Lease at Will of the Wood; the Question is, whether the Tenant at Will, may take his Action against the Parson who sued him for other Tithes, &c.

In a Prohibition against a Parson who sued for Tithes, it was Surmized, That the Clerk of the Parish and his Predecessors, Assistants to the Minister, had used to have five shillings for the Tithe of the Lands, where, &c. It was the Opinion of the Court, That if this Special matter be shown in the Surmize, it might perhaps be good by reason of long continuance: But they held that by Common intendment, Tithes are not payable to a Parish-Clerk, and he is no party in whom a Prescription can be alleged, wherefore a Consultation was awarded.

The Parson of T. sued for Tithe -Wood of the Park of T. for a Prohibition it was surmized, That he and all those, &c. time out of mind, &c. had used to pay to the Vicar of T. ten shillings yearly for all Tithes of Wood growing in the place, and the proof was, That he paid ten shillings for discharge of Tithe -Wood in the Park and two other places: The Prohibition was denied, and a Consultation awarded, because the right of Tithes between the Parson and the Vicar came in question, and because the party failed in the proof of his Prescription.

In a Prohibition to stay Suit for Tithes, surmizing that he set forth his Tithes, and for some reasonable cause he detained part of them: And the Parson sued him in the Ecclesiastical Court; upon which it was Demurred; because by the fetting forth they were Lay-Chattels. But the Court held, That the Prohibition did not lie; for against the party himself, who setteth forth his Tithes, a Suit is maintainable in the Ecclesiastical Court, if he detains them, although he might have his Remedy for them at the Common Law: Otherwise, if they were taken away by a Stranger after they were set forth.

For a Prohibition it was Surmized, That he had used to pay the Tenth sheaf of Corn, the Tenth Cock of Hay, the Tenth Fleece of Wool (and so the like) in satisfaction of all Hay, Corn, Cattle, &c. And it was held, That it was no sufficient Surmize for a Prohibition, because that which he used to pay is but the Tenth in kind.

In Sands and Pruries Case the question was, whether Tithes were grantable by Copy: It was Objected they could not, because it is against the nature of Tithes, whereof none could have property before the Council of Lateran, and it was impossible there should be any Custom to demise them by Copy, when none had interest in them, and they cannot be parcel of a Manor, for they are of several natures, though united in one man's hands: But by the Court Resolved, they might be granted by Copy, so it had been time so out of mind.

A Parishioner severed his Tithes, but being in a Close, the Gate was locked, so as the Parson could not come at them: The question was, whether the Gate were locked or open, and thereupon a Prohibition brought. The Court was of Opinion, that although the Tithes were severed, yet they remain Suable in the Ecclesiastical Court, and then the other is but a consequent thereof, and Triable there, and the Prohibition denied.

In Sharington and Fleetwood 's Case it was Resolved, That if a Parson Libels for Tithes, and a Prohibition is granted, and after he Libelleth for the Tithes of another year, the first Suit not being determined, an Attachment upon the Prohibition lieth against him. And in the Case between Talentire and Denton, where the Bishop of Carlisle being seized in Fee of Tithes in right of his Bishopric, made a Lease of them for Three Lives, rendering the ancient Rent, the Tithes having been usually demised for the same Rent; It was Resolved, That the Lease was not good against his Successor, because he had not remedy for the Rent by Distress or Action of Debt: Otherwise it had been, if only a Lease for years, for there Debt lieth for the Rent.

In Leigh and Wood 's Case it was Resolved, That if the Owner sets forth his Tithe, and a Stranger takes them, no Suit shall be for the same in the Ecclesiastical Court; but if the Owner himself, after he hath once set forth his Tithes, takes them away again, the Parson may Sue him in the Ecclesiastical Court for the Tithes.

S. Libelled in the Ecclesiastical Court against H, for Subtraction of Tithes; the Defendant there pleaded, That he had divided the Tithes from the Nine parts. And then the Plaintiff made Addition to the Libel (in nature of a Replication) viz. That the Defendant divided the Tithes from the Nine parts, Quod praedict. the Plaintiff non fatetur, sed prorsus diffitetur; yet presently after the pretended Division, in fraudem Legis, he took and carried away the same Tithes, and converted them to his own use: and thereupon the Plaintiff obtained Sentence in the Ecclesiastical Court, and to recover the Treble value according to the Statute of 2 Ed. 6. cap. 13. And thereupon H. made a Surmize, that he had divided his Tithes, and that the Plaintiff ought to Sue in the Ecclesiastical Court for the Double value, and at the Common Law for the Treble value. But it was Resolved by the whole Court, That the said Division mentioned in the Libel, was not any division within the Statute of 2 Ed. 6. c. 13. For that Act provides, That all the Kings Subjects henceforth, shall truly and justly without Fraud, divide, set out, yield and pay all manner of other Predial Tithes in their proper Land: So as when he divides them to carry them away, he divides them not justly without fraud; and therefore the same is out of the Statute: and where the words of the Statute are [ divide, set out, &c. ] their Predial Tithes, &c. and if any person carry away his Corn and Hay, and other Predial Tithes, &c. And to make an evasion out of these words [ this Invention was devised ]; the Owner of the Corn by Covin sold his Corn, before Severance, to another, who as Servant to the Vendee reaped it, and carried it away without any Severance, pretending that neither the Vendor, because he did not carry them away; nor the Vendee, because he had no property in them, should be within the Statute: But it was Resolved, That the Vendor should be charged in that case with the penalty of the Statute, for he carried them away, and his fraud or covin shall not help him. Vid. 8 Ed. 3. 290. 9 H. 6. 41. 33 H. 6. 5. But it was Resolved, That the Plaintiff could not Sue in the Ecclesiastical Court for the Treble value, but for the Double value he might.

A Parson Libels in the Ecclesiastical Court upon the Statute of 2 Ed. 6. cap. 13. for Tithes. The Case was this, The Parishioner sets them out according to the Statute; but they being so set out, he would not suffer the Parson to come and take them away, thinking by this means, and this way to avoid the Statute: And upon this the Parson Libels in the Ecclesiastical Court for these Tithes; the Defendant there Surmizes, That he did not hinder him from the having of his Tithes, but saith, That he did hinder him in coming for his Tithes one way (which was the usual way) but that he might have come for them another way: And upon this a Prohibition was prayed, and granted, supposing that there was no question at all as touching the payment of Tithes, but as touching the Way to come for them; and upon this whole matter the Parson prayed a Consultation. The whole Court were clear of Opinion, That such a setting out of Tithes, as the same appeared here to be in this Case, without suffering the Parson to come and take away his Tithes, that this is a fraudulent and no good and sufficient setting forth of Tithes, according to the Statute, and as the Statute doth require, which ought to be a fruitful and effectual setting forth of his Tithes; for in so doing, he ought to set forth his Tithes, and also to suffer the Parson to come, have, and to take away his Tithes: otherwise, unless he do also perform this, the setting out of his Tithes here is to no purpose for to excuse him, and to the Surmize here made for the Way. The whole Court clear of Opinion, That this is no ways at all material, and so without any further motion or Arguments, by the Rule of the Court, a Consultation was granted. Vid. Bulstr. par. 1. fo. 108. Hill. 8 Jac.

V

VEnison, though not Tithable of itself, yet may be given as Modus Decimandi; Per Assisas Forestae, and other Records, it doth appear, that Tithes have been paid, even of Venison, in divers parts of England.

Vetches, Tares, and the like, eaten by the Cattle that do the Husbandry in the same Parish, be it eaten on the Ground or elsewhere, are not Tithable, unless the Parson hath a Special Custom for it.

Vine is Predial Tithe. Co. Magna Charta, 649.

Unity of Possession, or Unity of the Parsonage and Lands, which should pay Tithes, in the hands of Religious and Ecclesiastical persons: By this Unity of Possession Tithes are not now discharged in Right, though in Payment; so that it is not to be pleaded as a Discharge of Tithes, but as a discharge of the Payment of Tithes , This Unity hath been often Resolved to be a good Discharge of the payment of Tithes within the meaning of the Statute of 31 H. 8. . Originally this Unity was, where an Abbot, Prior, &c. time out of mind had been seized of Lands in themselves Tithable, and also of the Rectory of that Parish wherein such Lands did lie: So that Unity of the Parsonage and Lands, which should pay Tithes by Appropriation or otherwise, in the hands of Religious and Ecclesiastical persons, had discharged from the payment of Tithes: and now since the said Statute of 31 H. 8. such an Unity of Possession in the said Religious Houses, and Lands, and Persons, shall be a Discharge for the Kings Patentee for the Lands that came to the Crown by the said Statute. But then it was Resolved, That such an Unity must have been Justa, Libera, Aequalis, and Perpetua. It must have been Justa, claimed by Right, by good and lawful Title, and not by Disseisin, or other extortious and unlawful Acts; for such an Unity had not been a good discharge within the Statute. 2. It must have been Aequalis, that is, there must have been a Feesimple both in the Lands and in the Tithes, as well of the Lands upon which the Tithes are, as of the Parsonage or Rectory; for if those Religious persons had held but by Lease, that had not been such an Unity as the Statute intended. 3. It must have been Libera, free from the payment of any Tithes in any manner; for if their Farmers, Tenants at Will, or Years, had paid any manner of Tithes before the Dissolution, it may be a sufficient Bar to avoid the Unity pleaded in discharge of Tithes. 4. It must have been Perpetua, time out of mind, that such Religious Houses were Endowed, and such Religious Persons had in their hands both the Land and the Rectory before the memory of man, or as it seems (according to the Rules of Common Law) before the first of R. 1. Discharged of Tithes; or if the Appropriation were Ancient, as in the time of Ed. 4. such is said to be a good discharge of Tithes, either on the account of Perpetual Unity or of Prescription . And at this day such an Unity is said to be a good discharge of Tithes in the hands of the Kings Patentee, within the Statute of 31 H. 8. . There may be also (as appears at the Common Law) an Unity of Possession, different from the former, which shall likewise discharge from the payment of Tithes; but such Discharge is only pro tempore, and therefore though it be an Unity of Possession, yet it is not a Perpetual Unity in the sense aforesaid: As if a Parson of a Church purchaseth a Manor within his Parish, by this Purchase, and Unity of Possession, the Manor which before was Tithable, is now become Non Decimabilis, because he cannot pay Tithes to himself; but if he maketh a Lease of his Parsonage and Rectory to a Stranger, the Parson himself shall pay Tithes of his Manor to his Lessee; and so if the Parson maketh a Feoffment of his Manor, the Feoffee shall pay Tithe to the Parson, because Tithes are due by the Law of God ex Debito, and cannot be extinct, into whose hands the Lands come, unless they come to the hands of the Parson himself .

Underwood is Tithable, and of Underwoods digged up by the Roots Tithe shall be paid, and so of Hedge-rows ; likewise of Underwood sold standing the Tithe shall be paid, and that not by the Seller, but by the Buyer. But Underwood used for sencing of Corn or Pasture pays no Tithe . An Action of Trespass was brought by a Parson against a Vicar for Underwoods, and each of them did claim the Underwoods by Prescription as his Tithes, that (although their claim was by Prescription,) yet because the right of the Tithes was in debate only, the Temporal Court was ousted of the Jurisdiction of them . But if a Parson or Vicar claim a portion of Tithes by Prescription only, which is a Temporal thing, and sueth in the Spiritual Court; it was holden that a Prohibition lieth .

In a Prohibition to stay Proceedings in the Ecclesiastical Court, upon a Libel there by the Parson for Tithe of Underwood, by reason of a Prescription in Non Decimando, for the Wilde of Kent, this Wood growing in the Wilde of Kent. Henden moved the Court for this Prohibition, for these Reasons, (1) A whole Country generally may Prescribe in Non Decimando, in a particular place, and as a whole Country may so do, by the same reason a particular person may. A second Reason; The Statute of 2 Ed. 6. cap. 13. gives life unto this Prescription, for this particular place and precinct. Coke Chief Justice. By Lindwood, a whole Country may Prescribe in non Decimand • ; and so is Dr. & Stu. cap. ult. fo. 166. b. But it is with this Proviso, so that there is besides this Maintenance for the Parson; otherwise the same is not good. The Statute of 2 Ed. 6. cap. 13. aids you not at all in this Case, for a private man cannot in this manner Prescribe: And to say, that the Conqueror never conquered this place; this is but Historical and Apocryphal, for he was Conqueror by Composition had. It is true, that in former time, long since this place was not Tithable, because there was no Wood there but great Timber-Trees, which were not Tithable; but these being now cut down, wasted, and destroyed by the Iron-Mills, and as in many other places; now this place which was not Tithable before, being now Underwood, and converted into Tillage or Pasture, is now become Tithable, and Tithe shall be there paid; and if Waste and Barren Ground, for the which no Tithe hath ever been paid, if the same be now meliorated and converted into Tillage; now by the Common Law Tithes shall be presently paid for this, unless the same be within the Proviso of the Statute of 2 Ed. 6. of Exemption from payment of Tithes for a certain time after the melioration of the same, as appeareth in the Statute; otherwise Tithes shall be paid presently: No Tithes could formerly be paid here in this place, because there were only great Timber-Trees here growing; but now clearly they ought to pay Tithes for the Underwoods, and this is the only Demand here. The whole Court was clear of Opinion, That no Prohibition should be here granted in this Case, but that Tithe should be paid. Coke, Will you allow the Parson here in this place Tithe-Hay and Corn, and not Tithe-Wood? Doddridge, by Lindwood and Dr. & Stud. a whole Country may be discharged from payment of Tithes; but this at the first of necessity ought to have a lawful Commencement by way of Composition, or, &c. Coke agreed with him herein, and said unto Henden, Shew unto us an Ancient Writing, by way of a Composition for your Discharge of payment of Tithes; the Statute of 2 Ed. 6. makes against you there, though no Tithe was ever paid, yet upon the melioration of the Land Tithes shall be paid presently, if the Statute had not been made. The Court were all clear of Opinion against the granting of a Prohibition, and so no Prohibition awarded.

W

WAges of Servants of the Plough shall not pay any Tithe, as hath been Resolved, Pasch. 14 Jac. B. inter Parson Ellis and Drake; and Prohibition granted accordingly, although the Libel was but for the Tithe of a Third part of their Wages, leaving the rest free; for it was said, That by the same reason that the Cattle of the Plough are free of Tithe, the Wages of the Servants that follow the Plough are Tithe-free also.

Waste Pasture Lands, if Tithes in kind be paid for Lambs, Calves, &c. feeding and couching thereon, Tithes shall not afterwards in the same year be paid for Agistments on the same Waste Pastures. Waste Grounds, not certainly known in what Parish, and Cattle feeding thereon, the Tithe thereof belongs to the Parson of the Parish wherein the Owner of the Cattle doth dwell.

Wax of Bees is Tithable by the Tenth weight thereof. Tithes ought to be paid in kind de jure of Wax and Honey of Bees in the Hive. Mich. 15 Car. B. R. inter Barefoot & Norton, Adjudged in a Prohibition upon a Demurrer, and a Consultation granted.

Willows, growing in the soil of a Manor, felled, are not (as is said) Tithable, though it be waste to fell them . No Tithes shall be paid of Willows in a Country where they are used for Timber . Sed Q. as to the former; for a Record of a Prohibition was shown to the Court, where a Prohibition was awarded to the Spiritual Court for Tithes of Willows upon a Surmize, That they are of use as Timber in the County of Southampton. And in that Case it was said, If Willows grow within the Site of a House, it is Waste to fell them; yet if they be felled, that Tithes shall be paid of them .

Woad yields a Predial Tithe, and regularly to be computed inter Minutas Decimas; yet in some Cases may be Great Tithes in places where it is much sowed; as in Udall and Tyndale 's Case . The Case was, That in Trespass for taking of two Loads of Woad; the Jury found, That if they were Minutae Decimae, then the Jury found the Defendant guilty, if they were not Minutae Decimae, then for the Plaintiff: It was said for the Plaintiff, That without more Circumstances it shall not be intended Minutae Decimae; for it may be, That a great quantity of Woad may be sown, and the greatest part of the Commodity in the Parish may consist in it, for Minutae Decimae are but of small consideration in a Parish, as Herbs in a Garden, and such like: and therefore Woad sown in a Field is not Minutae Decimae. It was Resolved by the Court, That Woad growing in the nature of an Herb, the Tithe thereof ought to be accounted Minutae Decimae, and belong to the Vicar. And the Dean and Chapter of Norwich Case was vouched to prove it, That the Tithe of 40 acres of Land sowed with Saffron, did belong unto the Vicar, and not to the Parson, because they were Minutae Decimae. Hill. 1 Car. C. B. Sir Rich. Udal and the Vicar of Altons Case. Cro. 3. par. 20. vid. Hutton 77. the same Case.

Wood is computed among the Predial Tithes, as also among the Great Tithes; yet it hath been Resolved, That if a Vicar be only endowed with the Small Tithes, and hath by reason thereof always had the Tithe- Wood, that in such case it shall be accounted a Small Tithe; otherwise it is to be accounted among the Great Tithes . Wood, or a great Wood consisting for the most part of Underwoods, only some Great Trees here and there sparsim therein, the whole Wood is Tithable, unless they be specially exempted . But if the Wood for the most part consist of Timber-Trees, only some small parcel of Underwoods or Bushes in the same, no Tithe shall be paid for such Wood; the Timber-Trees do in that case privilege the rest of the Wood . Wood converted into Arable, shall not be discharged of Tithes, as Barren Land within the Statute of 7 E. 6. Trin. 12 Jac. B. R. Case Maschal & Price. Roll. Rep. The Tenth acre of Wood in a Coppice is a good payment of the Tithe, specially if such be the Custom of Tithing Wood in that Country; otherwise Wood in a Coppice or the like, cut and sold, the Tithe thereof is to be answered not by the Buyer, but the Seller, as some conceive; which by others is opposed, who hold, That the Buyer, not the Seller of Woods selled to be sold, shall answer the Tithe: the Reason is, because Tithes do follow the Fruits; yet the Parson for his Right, hath his Remedy against either: But Wood of Coppices or Trees that one cuts and spends in his own House-keeping, though he spend much, is not Tithable , unless the Parson can allege and prove a special Custom to the contrary ; for generally Wood used for Fuel in House-keeping is not Tithable , sed Qu. the Custom, it being not so per Legem terrae . Nor is there any Tithe to be paid for such Wood as is cut for Hoppoles, where Tithe is paid of the Hops . But where Wood is grubbed up, the Land that thereby is made fit for the Plough, shall pay Tithe presently. And if the Tithes of Wood, after the Inheritance thereof sold be subtracted, the Parson may by the Canon Law implead either the Buyer or the Seller at his choice, though he can recover but of one; but now by the Statute the Seller only unto Treble damages. If there be Parson and Vicar in one Church, and the Vicar hath the Tithe of Woods, and the Parson the Tithe of the Pasture, and Wood be felled for Fencing and enclosing the Pasture, the Vicar shall not have Tithe of the Wood . Woodlands converted into Arable or Tillage is not discharged of Tithes as Heath, Waste, or other Barren Grounds, within the Statute of 7 Ed. 6. Trin. 12 Jac. B. R. Case Maschall verse. Price, in fin. Roll. Rep. A Prohibition in another Case was granted to stay a Suit for Tithe- Wood, upon a Surmize, That the Wood was spent in his House for Firing, and shows, that the Custom in the same Parish is, That the Owners of any House and Land in the said Parish, who pay Tithes to the Parson, ought not to pay Tithe of Wood spent for Fuel in their Houses: And Issue being upon this Custom, it was found for the Defendant. It was moved in Arrest of Judgment, That although it be found there is no such Custom, that yet he ought not to pay Tithe for Wood spent in his house, nor for Fencing-stuff for Hedges, but per Legem terrae ought to be discharged of them: But it was Resolved by the Court, That it is not de jure per Legem terrae, that any be discharged of them; for it is usual in Prohibitions, to allege Customs, or by reason of other Lands whereof he pays Tithes, that he is discharged of that Tithe, but not to allege, that per Legem terrae he is discharged: And in this Case, the Plaintiff in the Prohibition having alleged a Custom, and it being found against him, it was Adjndged for the Defendant, that a Consultation should be awarded . By Custom Tithes may be paid for Wood spent in a man's own House. Mich. 14 Jac. B. Watley and Hanberry, Agreed. And albeit there are some Trees, of what age or bigness soever they be, are regularly to pay Tithes, as Willows, Hasels, Hollies, Maples, Birch, Alders, Thorns, &c. ; yet if they are cut for Fencing of Grounds, or for Fuel to be spent in the Houses of the Owner within the same Parish, no Tithes shall be paid thereof, unless it hath been otherwise by Custom . Also Wood cut for Burning of Bricks, to be used for repair of the Owners Buildings in the same Parish, pay no Tithes: otherwise, if used for Bricks to sell, or for making Houses not of necessary habitation, so as the Wood in its own nature be Tithable . Likewise Tithe shall not be paid of the Roots of such Coppice-Wood, as paid Tithe at the cutting thereof, if such Roots were soon after the cutting such Wood, grubbed up to cleanse the Ground . If Woodlands be mixed with Woods partly Tithable, partly not Tithable; it hath been held, That if the Major part be not Tithable, it shall privilege the rest; but if the greater part be Tithable, then all that is Tithable shall pay Tithes . Touching the manner of Tithing of Wood and Trees, and how the Tithes thereof are to be paid and delivered, the Reader for his better satisfaction may consult the Authors in the Margent .

The Parson of Henley brought an Action of Debt for 600 l. upon the Statute of E. 6. for not setting forth Tithes of Wood, and shows, that the Defendant had cut down 200 Loads of Wood, to the value of 200 l. and saith, that the Tenth part of that did amount to 200 l, and so he brought his Action for 600 l. upon the Statute: And the Plaintiff was Non-suit for one fault in his Declaration; for whereas he declares the price of the Wood to be 200 l. it was mistaken, for it should have been 2000 l. for he demanded more for the Tenth part than the Principal is, by his own showing. If a man buy Wood Tithable, and burn it in his own House, he shall not pay Tithes thereof, as hath been Resolved. And no Tithes shall be paid for Wood cut and employed for the enclosures in the Husbandry. Also if a man cut Wood and burn it to make Brick for repairing of his Dwelling-house for himself and his Family within the Parish, no Tithes shall be paid for that Wood, in regard the Parson hath benefit by the labor of the Family: otherwise it is, in case the Bricks were only to enlarge his house within the Parish, and more than needful for his Family, as for his pleasure or delight. If a man sell Wood to me, and I burn it in my house, the Vendor shall stand charged for the Tithes thereof, and not the Vendee, for no Tithes are due for Wood burnt in the Parishioners house, as hath been Resolved. Pasch. 14 Jac. in B. Parson Ellis & Drakes Case, and Prohibition granted accordingly: Although it was said, That by the Civil (or rather Canon ) Law, the Parson hath his Election to Sue either of them; which is contrary to the Common Law.

In the Lord Clanrickard 's Case against Dame Denton, the Plaintiff surmized to the Court, That all the Vill. of Kent, which is a Precinct containig above forty Parishes time out of mind, &c. have been discharged of the payment of Tithes of Wood under the age of 20 years, and the Defendant had sued him in the Ecclesiastical Court, and hereupon had a Prohibition. And the Defendant Traversed the Custom, which a Jury was taken at the Bar to try; and for inducement of the Custom, Lindwood was produced in Cap. de Decimis, where it is said, That before that time Tithes were not paid for Wood, which is contrary to the Old and New Testament, and that Assertion is made by Stratford Archbishop of Canterbury, for that this was a Provincial Constitution, that at that time, viz. 17. E. 3. Tithes of Sylva caedua shall be paid; By which Constitution the Comminalty finding themselves grieved, exhibited a Bill in Parliament the same year 17 E. 3. reciting the Ancient Usage of not paying such Tithes, and the last Constitution to the contrary, and prayed a Prohibition to the contrary: To which Bill answer was made in this manner, viz. Be it done in this case, as it hath been done before this time: And the next year another Petition was made in Parl. for the same cause; to which it was answered also, That where Tithes of Wood have not been used to be paid by Custom, that a Prohibition shall be granted: And these Acts of Parliament the Plaintiffs Counsel produced out of the Parliament-Rolls. Crook Justice gave the Rule, viz. Quod de grossis a • boribus Decimae non dabuntur, sed de Sylva Caedua Decimae dabuntur. Vid. Dr. & Stu. 164. a. 169. b. Anscombe said, The Doctor and Student mistook the maker of that Constitution of Stratford Archbishop.

In a Prohibition for Tithes of Wood it was suggested, That in the Parish there is a Custom, that all the Parsons of the said Church, time out of mind Habuerunt & gavisi fuerunt such Lands, parcel of the Manner of F. in recompense of all Tithe- Wood within the Parish: It was the Opinion of the Justices, that it was a good Prescription; for it may be that at the beginning all the Land was parcel of the Manor, and then the allowance of the Profits of this Land was allotted in discharge of the Tithes of all the Woods within the Parish.

In Prohibition to stay a Suit in the Ecclesiastical Court for Tithes- Wood it was shown, that the Custom of the Parish is, That the Owners of any House and Land in the Parish, who pay Tithe to the Parson, ought not to pay Tithe for Wood spent for Fuel in their Houses: It being found for the Defendant, the Issue being upon the Custom; It was said, That notwithstanding there were any such Custom, yet Tithe ought not to be paid for Wood spent for Fuel, nor for Fencing-stuff, but per Legem terrae he ought to be discharged thereof. Resolved, It is not de jure per Legem terrae, that any one is discharged of them; for it is usual in Parishioners to allege a Custom, but not to allege that per Legem terrae he is discharged: And in this case the Plaintiff in the Prohibition having alleged a Custom, and it being found against him, a Cousultation was awarded.

A Composition was betwixt an Abbot and a Parson, that in recompense of the Tithes of all the Woods within the Manor, whereof the Abbot Owner, That he should have to him and his Successor 20 Loads of Wood every year in 20 Acres of the said Manor to burn and spend in his House: The Parsonage was Appropriate to the Abbey, and after the Abbey was dissolved; the King granted the Parsonage to one, and the 20 Acres to another. It was Resolved, That by the Unity the Estovers were not extinct; for it they be Tithes they are not extinct by this Unity of possession, for that Tithes run with the Lands: and Tithes de jure Divino & Canonica Institution do appertain to the Clergy.

Wool of Sheep is Tithable proportionably to the time they are in the Parish; as thus, viz. The Parson shall have Eight pound of Wool in Eighty, of Forty Sheep in the Parish a whole year: Four pound of Wool in Forty, if they were there but half the year: Two pound of Wool in Twenty, if they were there but Three months: and but the Tithe or Tenth of the Twelfth part of the Wool, if the lay and fed but One month in the Parish. The Wool of Sheep shorn and dying before Easter next following such shearing, is not Tithable, unless the Parson or Vicar can allege a special Prescription for it. Therefore Q. where by Prescription such Tithe is claimed . It is said also, That a Custom to pay a Halfpeny for the Wool de ovibus venditis, after shearing and before Michaelmass, is good; and that the Sheep discharged shall be Weathers as well as Ewes . Also Wool -locks and Flocks of Wool, after the Wool made, are likewise Tithable, if there be more than ordinary left, otherwise not: And if a Prescription be alleged to be discharged of Locks of Wool, it must be set forth of Wool casually lost . For Wool and Lamb, no Action lies upon the Statute for not setting out of Tithes, for they are no Predial Tithes: and no Action lies upon this Statute for Small Tithes. vid. Brownl. Rep. par. 1. Cases in Law, &c. yet Wool and Lamb are said to be Predial mixed Tithes. Mich. 8 Jac. B. By the Decree or Canon of the Provincial Constitutions the payment of the Tithe of Wool is regulated as the Tithe of Lambs, viz. That if the Parishioner hath under Seven Fleeces, he shall pay a Halspeny for every Fleece; and if there be Seven Fleeces and under Ten, then the Parson or Vicar is to allow a Halfpeny for everyone that is wanting of Ten. Lindw. cap. Quoniam propter. And albeit by the said Decree, Election is given to the Parson to receive his Tithe in manner aforesaid, or to let them run on till a Fleece in kind be due in the ensuing year; yet it seems by the Common Law Tithes must be paid annually . Although Tithe cannot be denied of Locks and Pelts of Wool, where there is much in quantity; yet it hath been Resolved, That where Tithe-Fleeces of Wool are paid, there shall be no Tithe paid of the Locks and Pelts of Wool . Also where the Custom is to shear the Necks of Sheep about Michaelmass, to prevent the tearing off of the same by Thorns by Briars in the Winter, if this be done without fraud, and not to deceive the Parson, then no Tithe shall be paid for the same . But for the Wool of Sheep dying of the Rot, or any other disease, or killed or sold by the Owner, Tithe shall be paid ratably for the same . And yet it hath been otherwise Resolved, and that Tithe shall not be paid of the Pelts and Fells of Wool of Sheep which die of the Rot, without a Special Custom for it: For where the Vicar of Kilmonsden in the County of Somerset, Libelled in the Ecclesiastical Court for Tithe of the Wool of Sheep, which died of the Rot, a Prohibition was granted . Nor shall Tithe be paid of the Wool of those Sheep, which after they be shorn, do die before the Feast of Easter next following: The Reasons are, (1) Because they are but of small or no value. (2) Because the Owner of the Sheep hath paid Tithes for them the same year, and there shall not be a double Tithe paid for one and the same thing in one and the same year. (3) Because Tithe shall be paid of the clear profit only; but if the Sheep do die before the Feast of Easter, all the profit of them is lost, for which reason to demand Tithes for the same, were Afflictionem addere Afflicto . Where a Prohibition was prayed, because the Parson Libelled in the Ecclesiastical Court for the Tenth part of a Bargain of Sheep, which had depastured in the Parish from Michaelmass to our Lady-day: the party Surmizing, That he would pay the Tenth part of the Wool of them, according to the Custom of the Parish. The Court would not grant a Prohibition, for that by this way the Parson might be defrauded of all, and the Sheep being now gone to another Parish, he cannot have any Wool at this time, because it was not the time or season of shearing. Note in that Case it was said, That de Animalibus Inutilibus, the Parson shall have the Third part of the Bargain for Depasture, as Horses, Oxen, &c. But de Animalibus Utilibus, he shall have Tithe in specie . Finally, to obtain a Prohibition a man alleged inter alia a Custom, That they used to clip the Wool from the Necks of their Sheep for the preservation of them, as aforesaid, and at Shearing they used to pay the Tenth Fleece, in consideration whereof they used to be discharged of the payment of Tithes of Neck- Wool: Issue being joined upon this and other Prescriptions then pleaded, and found against the Plaintiff. It was moved, That no Consultation might be awarded, but it was Adjudged for the Defendant; for the Prohibition is grounded upon the Prescription, and being found against it, that, &c. Wherefore being found for the Plaintiff, a Consultation was granted. Trin. 18 Jac. B. R. Jouce & Parker 's Case. Cro. 2. Par. 575. vid. Bulstr. 3. par. 242, 243. the same Case. Hughe 's Abridg. Dismes, Sect. 5. §. 23.

An Action of Debt brought upon the Statute of E. 6. for not setting forth of Tithes, and the Plaintiff declared as well for the Predial Tithes, for which he might well bring his Action, as for other Tithes, as of Wool and Lamb, for which no Action on that Statute would lie; and upon Trial the Jury found for all, as well for those that would, as would not bear an Action; and after a Verdict this Exception was taken, and Judgment arrested. If a man pay Tithe of Lamb at St. Marks-tide, and after at Midsomer he shear the rest of the Lambs, viz. the Nine parts, he ought to pay the Tithe of Wool for them, although there be but Two months between the time of payment of the Tithes of the Lamb that were not shorn, paid with their Fleeces, and the shearing of the rest, for it is a new increase; in this case Prohibition was therefore denied. But a man shall not pay any Tithe of Herbage of Sheep, for that he pays Tithe of the Wool, for otherwise he should pay Tithes twice of the same Increase. If a man shear his Sheep only about the Neck to preserve them from the Vermin, and not for the profit of the Wool, the Parson shall have no Tithes thereof; but otherwise it is, if they are much shorn by Covin for the benefit of the Wool: the Law is the same, if they are shorn about the Necks without fraud but two Months before and two Months after Michaelmass to preserve them and their Fleeces from the Brambles, no Tithes shall be paid thereof, for it appears that they were not shorn for the benefit of the Wool, it being done at that time before the Flecces are increased after their being shorn throughout. Likewise, if a Parishioner cut off the dirty Locks of his Sheep, for their better preservation from the Vermin, before the Shearing-time, and that without fraud, no Tithes shall be paid thereof; and Prohibition granted in this case. But if a man kill sheep, he shall yet pay Tithes of the Wool that comes of them, but not for their Skins.

For a Prohibition for suing for Tithes of Locks of Wool, it was suggested, he had paid the Tenth Fleece of Wool in satisfaction of all Locks and Tithes due for Wool: The Court held, that in this case the substance of the Prescription was good enough, because Locks be not of the same value with the Fleece: But in regard of a fault in the Suggestion, that it was not ( that they had usually paid ) which is issuable, a Consultation was awarded.

CHAP. XXXIII.

Of Banns.

  • 1. Whence the probable derivation of that word, and what it signifies.
  • 2. The manner and form of Publication of Banns according to the Provincial Constitutions.
  • 3. By whom Licences for Dispensation of Banns may be granted according to the Canons; Also to whom, and under what Conditions or Cautions.
  • 4. Requisites or Preparatories in Law unto such Licences.
  • 5. A Case at Common Law, with the Resolutions of the Court relating to Banns, with the power of the Ecclesiastical Jurisdiction therein.

(1.) BANNS (bannus vel bannum ) if Ban in the British Language signifies clamor, as Mr. Blount gives it in his Nomo-Lexicon, then we need seek no further for its Derivation: Bannos, Q. an non declinata voice à Greece. 〈 in non-Latin alphabet 〉 omne, 〈 in non-Latin alphabet 〉 innotescat. Mutatur enim facile 〈 in non-Latin alphabet 〉 in 〈 in non-Latin alphabet 〉 . For though the Word be frequently mentioned by the Feudists, and thence applied to other uses, as to that which we here in this Kingdom call a Proclamation, whereby anything is by Authority publicly Commanded, Permitted, or Forbidden, Vincen. de Franch. Decis. 521, & 360. yet in the Sence here meant and intended, it is not so properly a Proclamation as a Publication or a public Notice-giving. And therefore by the word Banns, as we use it, is intended that publishing of Matrimonial Contracts in the Church tempore Divnorum, before Solemnization of Marriage, to the end, That if any have ought material to object against the intended Marriage signified by such Publication, either in respect of Pre-contract or otherwise, they may seasonably make their Exception against it, consonant to the very Letter of the Canon Law, where Banna sunt proclamationes Sponsi & Spansae in Ecclesiis fieri solitae. c. 27. extr. de Spons. &c. ult. Qui Matrim. pos. &c. ult. de clandest. Despon. vid. Gothof. ad Nov. Leon. 89. in med. ibi. Hottoman is very confident that there is both bannns and bannum, and that they signify Two distinct things, and neither of them to our purpose; for according to his exposition, the one should signify an Edict what day their Vassals or Slaves furnished with Horse and shall encounter one another; the other a Sanction or Decree, that is, a Mulct or Fine imposed on him that does not obey the Edict. Hottom. in verb. Bannus. De verbis Feudalibus.

(2.) In the Provincial Constitutions Banna are public Proclamations or Denuntiations; Lind. Provin. Constit. de cland. Despon. c. 1. glos. verb. Bannorum. Others describe them to be Edicta publice proposita; Petr. de Anchor. in cap. cum in tua Ext. de Sponsal. By the said Provincial Constitutions the Banns ought to be Solemn Publications, that is, they ought to be thrice published in the Parochial Churches where the contracting Parties and their Parents dwell, on 3 Sabbath days or 3 Festival days (allowing some interval of time between each) at the time of Divine Service, when most of the Parishioners are assembled together, by the Parsons of the said Parishes respectively, or others in holy Orders, at such times and seasons wherein Solemnization of Marriage is not Canonically prohibited, glos. verb. Bannorum, ubi supra. Yet where three Festivals immediately succeed each other, such Publication in them made holds good in Law; Prov. Const. de Spons. glos. in verb. a se distantibus: As also shall the Marriage itself, when once solemnized, albeit such Publication of Banns, as aforesaid, did not precede the same. gl. in v. Solen. Edit. de cland Despon. ubi supra.

(3.) But by the Ecclesiastical Canons now in force, it is Ordained That no Licence for the Solemnization of Marriage shall be granted, without thrice open Publication of the Banns, according to the Book of Common Prayer, by any Person exercising any Ecclesiastical Jurisdiction, or claiming any Privileges in the right of their Churches; but shall be granted only by such as have Episcopal Authority, or the Commissary for Faculties, Vicars General of the Archbishops and Bishops seed plena, or seed vacante, the Guardian of the Spiritualties, or Ordinaries exercising of right Episcopal Jurisdiction in their several Jurisdictions respectively, and unto such Persons only as be of good State and Quality, and that upon good caution and security; which shall contain these four Conditions. (1) That therein is not any Impediment or Precontract, Consanguinity, Affinity, or other lawful Cause to hinder the said Marriage. (2) That there is not any Suit depending in any Court before any Ecclesiastical Judge, touching any Contract or Marriage of either of the said Parties with any other. (3) That they have the consent of their Parents or Guardians. (4) That they shall celebrate the said Marriage publicly in the Parish-Church or Chapel where one of them dwells, and that between the hours of 8 and 12 in the Forenoon. Pasch. 8. Car. B. R. case Matingley verse. Martyn. It was resolved, that if any Marry without the Proclamation of Banns, or Licence to dispence therewith, they are citable for the same in the Ecclesiastical Court, and no Prohibition lies in the case. Jones Rep.

(4.) Before any such Licence (as aforesaid) can be granted, it must appear to the Judge by the Oaths of two sufficient witnesses, that the Consent of the Parents or Guardians is thereunto obtained; and one of the Parties must personally swear, that he believes there is no Lett or Impediment of Precontract, Kindred, or Alliance, or of any other lawful Cause whatsoever, nor any Suit commenced in any Ecclesiastical Court, to hinder the said Marriage according to the Tenor of the said Licence; But in case the Parties be in Widowhood, then the Clause relating to the Parents Consent may be omitted; the penalty for offending in the Premises is six months suspension ab executione Officii in any Commissary for Faculties Vicars General or other the said Ordinaries, together with a vacating of every such Licence or Dispensation, and subjecting the Parties marrying to the punishments appointed for clandestine Marriages. The Syntagmatist tells us, that there is a Canon extant, made by John Metropolitan of Muscovy, who is held as a Prophet in Russia to this day, that Matrimonium non nisi publice in Ecclesiis contrahatur. Petrus Gregor. Tholos.

(5) In the case of Matingly against Martyn it was resolved (1) That the Cognuzance of all fornications, Adulteries, and suspected living in Adultery doth appertain to the Ecclesiastical Court, (2) That if any marry without proclamation of the Banns, & without a Licence to dispence therewith, they are citable in the Ecclesiastical Court for the same, and no Prohibition lies in that case (as aforesaid.) (3) That if any Licences to marry without Banns be granted by the Ordinary of the Diocese, or by Commissaries or Officials in their Jurisdictions, or by the Archbishop in his Province before the Stat. of 25. H. 8. The Cognuzance of the sufficiency of such Licence, of the form of the Dispensation, and of the Conditions and Provisoes of such Licence, and whether sufficient Notice thereof were given or not, are examinable only in the Ecclesiastical Court; and when the Licence is sufficient, and the Provisoes well and duly observed, and Notice thereof, and This be refused or rejected in the Ecclesiastical Court, yet no Prohibition lies, but the Party grieved must have his Remedy by way of Appeal, and not otherwise. (4) That where power is given by Act of Parliament to the Archbishop to grant Licence either de novo or in Confirmation of his Authority, yet the form of the Dispensation, and the observation of the Provisoes and Conditions thereof, and whether sufficient Notice were given or not, are examinable in the Ecclesiastical Court; and if they there adjudg in that case irregularly, no Prohibition lies, but the Remedy is only by way of Appeal: But if it come into question in the Ecclesiastical Court, whether the words of the Act of 25. H. 8. do give sufficient power to the Archbishop to grant a Licence, there if the Ecclesiastical Court doth judge against the power, a Prohibition lies, and not otherwise; but if they allow the Licence in point of power, and only insist upon the Form, and Notice, and other Circumstances, in such case a Prohibition doth not lie: For though a power to grant Licences be by Act of Parliament, which is a Temporal thing, yet the Licence itself remains an Ecclesiastical thing, and the examination of all these things (saving the Power) remains to the Ecclesiastical Court as it was before.

CHAP. XXXIIII.

Of Adultery.

  • 1. What Adultery is, why so called, and in what Court Cognizable.
  • 2. The Punishment of Adultery under the Levitical Law; and what it was anciently by the Civil Law.
  • 3. The several Punishments thereof anciently according to the Quality of the Offenders respectively.
  • 4. Adulterers compared to Idolaters; strange Punishments of Adultery among the ancient Pagans.
  • 5. The Severity of certain Ecclesiastical Laws in ancient times against Adultery.
  • 6. The Customs among the Arabians, Mohammedans, Tartars, Indians, Pagans, in punishing Adulterers.
  • 7. The Civil Law touching Jealousy, and second Marriage the former Husband then living.
  • 8. Adultery, what in sensu largo; how the punishment thereof is now mitigated at the Civil Law to what it was anciently; and how punished at the Canon Law.
  • 9. The diversity of punishments inflicted on Adulterers according to the divers Customs of Nations respectively.
  • 10. In what respect the Temporal Laws may take some Cognizance of Adultery.
  • 11. What the Saxons of old in this Kingdom called the Punishment of Adultery; the remarkable Case of Sr. Jo. de Camois.
  • 11. Adultery falls under a Threefold Consideration of Law; the History of the Adulterous Stork.

(1.) ADULTERY, or Adulterium, quasi [ ad alterius thorum ] where the Rights of lawful Matrimony are violated, Lindwood 's Const. de Offic. Archipresb. verb. tertium mandat. is the Incontinencie of Married persons, or of persons whereof the one at least is under the Conjugal Vow. This is properly cognizable within the Ecclesiastical Jurisdiction; the Conviction whereof is by Examination and other Legal proof requisite by the Law of the Church; which if committed by any of the Clergy, duly convicted thereof, he was punishable by Imprisonment at the discretion of the Bishop or Ordinary of that Diocese wherein he resides.

(2.) By the Levitical Law Adultery was punished with Death in both Sexes, yea Stoned to death. By the Civil Law also, which calls it the Violating of another man's Bed, the Punishment anciently was Death, both in the Man and in the woman: But afterwards the Punishment was mitigated by that Law as to the Woman, she being first whipt, and then shut up in a Monastery; but by the Canons other Laws are inflicted.

(3.) At the Synod in Ireland, held by St. Patrick and other Bishops an. 456. by the 19 th. Canon thereof the Adulterers were to be excommunicated. At the Council held at Berghamstead by Bertwald Archbishop of Canterbury, the Bishop of Hereford and others, in the fifth year of Withred King of Kent an. 697. several Laws were made against Adultery, according to the several qualities and conditions of the Persons offending respectively; beside Excommunication against all such; if the Adulterer were an Alien, he was to depart the Land, and to take his Sins and his Estate away with him: If a Soldier, then to be fin'd five pounds: If a Rustic or Country Husbandman (known in the Law by [ Paganus ]) then to pay fifty shillings: If a Priest, then to be inhibited from administering the Sacrament of Baptism.

(4.) Boniface Archbishop of Mainz, when he was the Popes Legate in Germany, an. 745. in his Epistle to AEthelbald King of Mercia, compares Adulterers to Idolaters; and moreover says, that the Greeks and Romans Compar'd Adultery to Blasphemy, when committed by or with one of religious Orders; and adds, that among the Pagans, in the time of the old Saxons the very pactice was, that if a Virgin Adulterously defiled her Fathers Family, or a Married woman plaid the whore, they were enforced to be their own Executioners, and by their own hands to reduce themselves by Strangling to dead Corps, which being after burnt, the Adulterer was hangd over the Ashes thereof; and at other times the Adulteresses were by those of their own Sex, out of their Zeal to Chastity, whipt from Village to Village, till they were whipt to death. In Antiqua Saxonia, ubi nulla est Christi cognitio, si Virgo in paterna domo maritata, sub Conjuge fuerit adulterata, manu propria strangulatam cremant, & supra fossam sepultae corruptorem suspendunt; aut cingulo tenus vestibus abscisis flagellant eam castae matronae, & cultellis pungunt, & de Villa in Villam inter se occurrunt novae flagellatrices, donec interimant. By the Laws of William the Conqueror the Adulterer was to be put to death. Si Pater deprehenderit Filiam in Adulterio in domo sua, seu in domo Generi sui, been licebit ei our ( lege forsan occire, occidere) Adulterium.

(5.) In the Ecclesiastical Laws of Keneth King of Scots, an. 840. By the 14 th. and 15. Canon thereof it is ordained, That he who deflowrs a Virgin, shall die for it, unless she desires him for her Husband; and that he who Adulterates another man's Wife not dissenting, Both shall suffer the severest punishment, unless she were under a force, in which case she shall be acquitted. By the Ecclesiastical Laws of Hoel Dak King of Wales, an. 940. it was a sufficient cause of Divorce, if a Woman did but kiss any other man than her Husband. l. 18. Yea she must lose her Dower and all her Rights by that Law, and only for a kiss; and by the same Law Adultery in the Man was held as a kind of Hostility. In the time of the latter Saxons by the Ecclesiastical Laws of King Edmund, an. 944. Adulterers and Murderers had one and the same punishment, and both alike denied Christian Burial. After him, by the Ecclesiastical Laws of King Knute, an. 1032. Adulterers and such as violated the Chastity of a Widow or a Virgin, were to be banished and their Estates confiscate: And in case a Wife played the Strumpet, her Husband living, he was to possess himself of all her Estate Real as well as Personal, and she to have her Nose and Ears cut off, and an indelible Blot with perpetual Infamy to remain upon her Family.

(6.) The Arabians (as Strabo relates) though they used Incestuous Copulation with Sister and Mother, yet punished Adultery with death; but that only was Adultery in their account, which was out of the same Linage or Kindred, for otherwise All of the same Blood to use the same Woman, was but their ( Incestuous ) Honesty. And by the very Quran not only is an unchaste Look on another man's Wife forbidden, but also if a Wife be convicted of Adultery by the testimony of four Women, she is confined to perpetual Imprisonment in her own house till she dies, and none suffered to come at her: And in some parts of the Grand Signiors Territories the Turks have a custom to thrust the Adulterers head into a Dung-Wallet of the Panch of a Beast new killed, and so to carry him through the Streets; but for a Christian to have Carnal knowledge of any of their women, is death, unless he turn Turk. And with the Tartars their Women are so chaste, as that Adultery is seldom heard of among them, but when it happens to be committed, they punish it also with death. Among the very Pagan Indians as at Dominica, Cuiana, Bantam, Japan, and other parts of the Indies Adultery is punished with death: Likewise the Javans and Chinois or Chinesses inflict the same punishment of death on Adulterers; and at Pequin, the City where the King of China makes his Residence, the Dowries or Joyntures of convicted Adulteresses are bestowed on the Hospitals of Female Orphans; and at Petane, a Province joining to Chinas their Noble Personages are for Adultery even by their own Parent either strangled or stabbed to death, at their own choice which. At Brazil, the Husband might kill his Adulterous Wife, and at Mexico or New Spain Adultery was death; also by the Laws of the Inguas, the ancient Lord's of Peru, Adultery and Incest with Ascendents or Descendents in the Direct Line was punished with death; yet they held it no Adultery to have many Wives, whereof one only was principal, with whom Marriage was contracted, whom they wedded and received with a particular Matrimonial Ceremony, She only was held as the Adulteress, and with the Adulterer died for it; the others being rather Concubines than Wives, were not understood by them as capable of this offense or punishment. Indeed in the Kingdom of Angola in AEthipia and at Bengala in the Indies Adultery is but the loss of the Adulterers Nose, and in Guinea it is in the Woman but a Divorce and Banishment from her house, and in the Adulterer but a forfeiture of 24 Peso 's of gold to the King; and among the Jews, now since the Sword and Scepter departed from Judah, it is but a Penalty instead of a punishment, and but a standing up to the Chin in cold water to quench the Flames of Lust. These Presidents are not here quoted for Laws, but only to let us see what Constructions even Pagans and Mohammedans have made of Adultery.

(7) By the Civil Law, a man jealous of his wife, may accuse her before a Competent Judge of Adultery, if after three admonitions, in the presence of three credible Persons, given to the Person suspected of too much Familiarity with her, he refrain not from her company and communication with her. Auth. Coll. 9. By which Law also both Sexes are punished as guilty of Adultery; if a Woman, whose Husband is abroad in the Warrs, or otherwise absent, marry again, before she hath certain intelligence of his death either from the Commander under whom he served, or from the Governor of the place where he died; for without such certain intelligence, if she presume to marry again (how long soever her Husband is otherwise absent from her) both she and he who married her shall be punished as Adulterers; and if her former Husband after such her second Marriage return back again, she also shall return back again to her former Husband, if he will receive her, otherwise she shall live apart from them both, Auth. Coll. ibid. Blackden married one within age, and after disagreed, so that they might Marry elsewhere; and the first wife had Issue by other Husbands, and died; and Blackden was sued in the Ecclesiastical Court by an Informer, supposing he had married a woman, living his other wife, and Blackden there proves the disagreement, by which he had Sentence for him against the Informer, and yet he was taxed to give the Informer 20 Marks for costs, which he refused to pay, and moved for a Prohibition, which was granted: For it was Injustice to allow costs to one who had vexed him without cause, and when Sentence had been given against the Informer.

(8.) This Adultery or Adulterium, quasi [ad alterum ] being (as aforesaid) an unlawful access ad alterius thorum, although it properly refers to one or both such as is or are in a Matrimonial State, yet by abuse of words it is also commonly understood of corrupting or violating the Chastity of a Virgin or a Widow; as when we usually say, such or such natural things are adulterated, when by reason of some Artifice they are corrupted and become not truly natural; and such Wares and Merchandises are adulterated, when there is some Fraud in the case, and so Adultery is repugnant to the very Nature of Matrimony, which of Two makes One, when as the other of One makes Two: The punishment whereof was anciently by the Civil Law, Capital as to the Man: But by the latter Laws of the Authenticks, the Women are first whipt, then thrust into Monasteries; and by the Canon Law it is Excommunication.

(9.) Plato made a Law, that whoever killed an Adulterer, should go unpunished. The Inhabitants of Arabia Felix punished it with death. Seleucus, otherwise Nicanor, King of Syria, that succeeded Alexander in the Government of that part of the Empire, decreed that whoever was apprehended in Adultery should be exoculated, or have his eyes plucked out, which afterwards happened to be impartially first executed on his own Son . And albeit according to the proper Construction of words there is a difference put between Adulterium and Stuprum, the former referring to persons married, the other to Widows or Virgins. Modestin. in l. inter Stuprum ff. de verb. Sig. Yet by the Julian Law the word [Adultery] is used indifferently in reference to both: Id. Modest. in L. Stuprum. Ad L. Jul. de Adult. But to speak properly, they are not Termini convertibiles, for though all Adultery be Whoredom, yet every Whoredom is not Adultery; each of which have their respective punishments according to the Laws and Customs of the place where they are committed. Grotius out of Lessius affirms, that the Adulterer and Adulteress are not only obliged to indemnifie the innocent party as to all charges of Alimentation of the unlawfully begotten, but also to make good what damage the Legitimate Children may thereby suffer in their Inheritance, and whoever doth lessen the Reputation of a Virgin either by force or insinuations, shall refund to her as much as she is thereby fallen in value, upon the hopes or expectation of her Preferment in Marriage: But if by his Sollicitations he hath obtained the use of her body under a promise of Marriage, he is obliged to marry her accordingly. Grot. de jur. bel. lib. 2. cap. 17. §. 5. & Less. lib. 11. cap. 10. Dub. 6.

(10.) Although this Sin of Adultery, is properly and of right belonging to the Cognizance of the Ecclesiastical Jurisdiction, yet it will not be denied, but that as it is an offense against the peace of the Realm (for which reason some are of opinion that Avoutry or Bandry is an offense Temporal as well as Spiritual) the Justices of the Peace may out of their Sessions require Surety for the good Behaviour of such as offend therein, as also of such as by Common Fame are reputed Resorters to houses suspected of maintaining Adultery or Incontinency, of such as keep such houses, of lewd Women found in such houses, of common Whoremongers and common Whores; And upon Information given to a Constable, that a Man and a Woman be in Adultery or Fornication together (or that a Man and woman of evil Fame or Report are gone to a suspected house in the night) the Officer may take company with him, and if he find them so, he may carry them to Prison, or before a Justice of Peace to find Sureties for the good Behaviour.

(11. The Punishment of Adultery is diversified according to the Laws and Customs of several Nations respectively as forementioned, and the Penalty thereof with the Saxons of old in this Kingdom was called Lairwite or Lecherwite, and Legergeldum, from two Saxon words signifying it seems concumbere and mulcta, a Fine or Custom of punishing offenders of that kind; which Priviledg is said to have belonged anciently to the Lord's of some Manors, in reference to their Villains and Tenants. And by Statute Law, as also by the law of the Land, a Wife that clopes, and departs from her Husband with an Adulterer, and refuses to be reconciled to him, loseth or forfeits her Dower or Jointure, yea though she departed from him with his own consent, to which purpose remarkable is that Case of Sr. John de Camois, Son of the Lord Ralph Camois, in the time of Ed. the first, who of his own voluntary Will gave and demised his own Wife Margaret, a Daughter and Heir of John de Gaidesden unto Sr. William Pannell Kt. and together with her gave, granted released, and Quit-claimed all her Goods and Chattels &c. so that neither himself nor any other in his name, should ever after make any claim, or challenge any interest in the said Margaret, or to or in her Goods or Chattels, &c. Whereupon, she demanding her Dower in part of the Lands of Sr. John Camois there happened a Suit at Law, wherein she was overthrown by Judgment given, That she ought to have no Dower out of his Estate, upon the Stat. of Westm. 2. Quia recessit à Marito suo in vita sua, & vixit ut Adultera cum praedicto Gulielmo, &c.

(12.) There are of the Church of Rome, who hold that Adultery in conjugato cum soluta is minus peccatum quam in conjugata cum soluto; the reason they give for it is, for that it is far more repugnant to the Law of Nature that one Woman should be joined to two Men, than e contra, and suppose that Bigamy in the Patriarchs of old is an impregnable Fortification of that Reason; the Feminine Sex will give them but little thanks for this Opinion: But leaving them to enjoy the one and the other, we hold that This, as to the Inquiry and Punishment thereof, is properly within the Ecclesiastical Cognizance, it being most consonant to Reason, that in what Jurisdiction Matrimonial Causes are controvertible, in the same should the Violation of Conjugal Rights be discussed; to which end, as well the Civil as Canon Law (though that especially) are furnished with great variety of Constitutions, to obviate all manner of circumstances relating to this Subject. Pasch. 8. car. B. R. Case Matingly verse. Martyn. It was resolved, that the cognizance of all Fornications, Adulteries, and of persons suspected to live in Adultery, doth belong to the Ecclesiastical Court. Jones Rep. So then Adulterium being quasi Accessio ad alterius thorum, is the violation of another's Bed; whence it is required, that either both, or one of the Parties, be under the Matrimonial Vow; for that conjugal circumstance, either in the Male or Female, is as the causa sine qua non, that the luxurious Act falls under the notion of Adultery, in distinction from acts of the same kind under other circumstances: For the Law holds, that it may be committed in a threefold manner, either ex parte viri, vel feminae, vel utrius{que} always supposing that one or both are Matrimonializ'd, and both living. The Penalty of Adultery hath varied according to the Laws and Customs of several Nations, and of several Ages in the same Nation; as appears by what hath been said on this Subject; The punishment of this epidemical evil, the very Brutes and mere Animals have given us a president of, if credit may be given to such as have made report of the Stork, of which Lessius writes out of another Author, as being a Creature of strange abhorrency and revenge of Adultery, that by the very instinct of Nature the jealous Animal, impatient of vindicating his defiled Nest, summoned others of the same Feather to advise in the Case, Testifying that in his own time a certain Stork being as it were convicted of Adultery per olfactum masculi sui or the smelling of her Male, he convened a Flock of other Storks, before whom he so prosecuted ( Nescio qualiter, says the Author) the Indictment against the Female Stork, that she was first deplum'd, then torn in pieces, by the rude Multude of the other Storks, as if in a solemn Council they had all unanimosly sentenced her to death as an Adulteress. If the report seems improbable, yet the Moral is very applicable.

CHAP. XXXV.

Of Bastards and Bastardy.

  • 1. What Bastard signifies; the derivation of that word.
  • 2. The difference between Bastard and Mulier; what Mulier signifies; and why so called.
  • 3. Bastardy distinguished at the Common Law into Special and General Bastardy.
  • 4. The Presumptions of Law touching Bastardy, in case of the Husbands obsence from his Wife.
  • 5. Five Appellations of Bastards for distinctions sake at the Civil Law, with respect to the several qualities of the Persons of whom they were begotten.
  • 6. The different modes of prosecution of Bastardy in the Temporal and Ecclesiastical Courts.
  • 7. Limitation of Time in reference to Birth and Bastardy by the Civil Law; The chaste Widow of Paris, whose Child born the 14 th Month after her Husbands death, was adjudged Legitimate.
  • 8. Of a Child born before Marriage, or immediately after Marriage; or long after Marriage of a Woman whose Husband died without Bedding her, whether Bastard or not?
  • 9. The legal computations of Time touching the Birth of a Child, whether Legitimate or not, And of such as are begotten after a Divorce.
  • 10. The punishment of a Woman having a Bastard, that may be chargeable to the Parish.
  • 11. How the same Person may in divers respects be both a Bastard or Nullius Filius, and yet a Son.
  • 12. The Physicians report in Court, in a Case at Common Law, how long a Woman may go with Child.
  • 13. The Bishops Certificate requisite in a Plea of Bastardy, indisability of a Plaintiff.
  • 14. The power of the Justices of the Peace, and of the Sessions, in reference to the reputed Fathers of Bastards.
  • 15. In an Action for saying such an one had a Bastard, a Prohibition to the Ecclesiastical Court, because they admitted the Defendants, Confession, but would not allow of his Justification.
  • 16. Who are held as Bastardiz'd at the Common Law.
  • 17. What a Mulier is at Common Law.
  • 18. Other Descriptions of Muliers and Bastards.
  • 19. The difference between the Civil and Common Law in point of Muliers and Bastards.
  • 20. What kind of Divorce shall Bastardize the Issue.
  • 21. Different Resolutions touching Bastardy.
  • 22. A Man is Divorc'd Causa Frigiditatis, Marries again, hath Issue by the second Wife, the first Living, Q. Whether that Issue be a Bastard.
  • 23. A Case of Remark touching this Subject adjudged in Ireland.

(1.) BASTARD, Bastardus, Nothus, Spurius, Filius Naturalis, Filius Populi, Filius nullius, Incestuosus— Adulterinus, illegitimo coitu Progenitus. Bastard is a French word, Bastardd British; yet some are of opinion that the word [ Bastard ] hath its derivation from two German words [ Boes art ] that is, Degeneris ingenii. Q. an non e Graec. Bassaris. i. e. Meretrix vel Concubina. Bastard and Filius Naturalis are both one . Bastard is that Male or Female that is begotten and born of any Woman not Married, so that the Childs Father is not known by order and judgment of Law, for which reason he is called Filius Populi .

(2.) Bastard and Mulier are opposed each to other at the Common Law, Otherwise at the Canon Law. For at the Common Law by Mulier is meant and understood one that is lawfully begotten and born, and therefore where they are compared together we shall find at that Law this addition to them Bastard eigne or Elder, and Mulier puisne or Younger) and by the Common Law he or she that is born before Marriage, celebrated between the Father and Mother is called a Bastard; and by that Law, a Child begotten and born of a Woman out of Marriage, by one who after Marrieth her, is said to be not a Mulier but a Bastard . This word [ Mulier ] seems to be a word corrupt from Melior, or the French [Melieur ] signifying at Common Law the lawful issue, prefer'd before an Elder Brother born out of Marriage . But by Glanvile such Lawful Issue seems rather Mulier than Melior, because begotten à Muliere, and not ex Concubina; for he calls such issue, Filios Mulieratos, opposing them to Bastards , Quia Mulieris appellatione uxor continetur, l. Mulieris 13. & ibid. gloss. De verb. sign.

(3.) Bastardy [Bastardia ] at the Common Law signifieth a defect of Lawful Birth objected to one begotten out of Marriage . which Law doth distinguish Bastardy into Special and General . The later whereof being only a Certificate . from the Bishop of the Diocese to the Kings Justices, after just enquiry made, whether the Party inquired of, be Bastard or not; upon some question of Inheritance; and the former being only a Suit commenced at Common Law against him that calls another Bastard; This being called Bastardy special, because Bastardy is the principal and special matter in Trial: As the other is called Bastardy General, because Inheritance is there the chief thing under debate and in contest; By both these significations Bastardy at the Common Law seems to be taken only for an Examination or Trial, whether a Mans Birth be illegitimate, and so does but rather imply what it is not, than express what it is Which (according to a better Definition) is an unlawful state of Birth, disabling the Partie to succeed in Inheritance.

(4.) It appears by what hath been said, that a Bastard is one that is born of any Woman, so as the Father be not known according to the order of Law . So that if any Woman hath a Child before her Marriage, it is a Bastard: And though the Father thereof after Marry the Mother, yet in the judgment of the Common Law it is still a Bastard, but at the Canon Law it is otherwise as aforesaid . If one Marry infra gradui Maritagii and hath thereby Issue, Q. whether it he a Bastard or Mulier in case Divorce doth after thereupon ensue . If there be Issue by a second Husband or Wife, the former then living, such Issue is a Bastard A Woman Eloping from her Husband, and Living in Avoutry (her Husband being beyond Sea that he cannot come at her) having Issue in this time, this Issue seems to be a Bastard: But by the Common Law, if the Husband be infra quatuor maria (he) within the Jurisdiction of the King of England, and his Wife have Issue in his absence, No proof is Admissable to prove the Child a Bastard, unless there be an apparent impossibility of Procriation in the Husband, in which case such Issue, albeit born within Marriage, is a Bastard . And by the Civil Law, if the Husband be so long absent from his Wife, or by no possibility of Nature the Child can be his, or the Adulterer and Adulteress be so known to keep company together, as that by just account of time, it cannot fall out to be any other Mans Child but the Adulterers himself, it is accounted to be a Bastard: And yet in these very cases within this Realm, unless the Husband be all the time of the impossibility of Procreation (as aforesaid) beyond the Seas, the Rule of Law will hold true, Pater is est quem Nuptiae demonstrant .

Note in debt upon an obligation by Cook Chief Justice; And so was the Opinion of the Civilians, That a Disagreement to the Marriage had under the Age of of Consent, at the Age it ought to be published in Court; otherwise the Issue may be Bastarded. For a Disagreement in Writing is not a sufficient Disagreement, nor a good Proof

(5.) The Law hath given several Appellations for the distinction of Bastards according to the different conditions of the persons of whom they were begotten; As when they were begotten by persons of a single and unmarried Estate, and of such as were kept as Concubines, the Civil Law called them Filii Naturales: if begotten of single Women, not designed for Concubines, for satisfaction of present Lust, then they were called Spurii: if begotten of such as the Law styles Scorta, or common Harlots by public profession, than they were called Manzeres: if begotten of Married Women, then they were called Nothi: if begotten between Ascendents and Descendents, or between Collaterals contrary to the Divine prohibition, then they are called Incestuosi.

(6.) Bastardy so stains the Blood, that the Bastard can challenge neither Honor nor Arms; and so disables him, that he cannot pretend to any succession to inheritance. The Temporal and the Ecclesiastical Laws with us do not differ as to matter of Bastardy, but something as to the prosecution thereof: The Ecclesiastical Law brings it two ways to Judgment, Incidently and Principally; the Common Law makes two sorts thereof, General and Special. Incidently at the Ecclesiastical Law, when it is pleaded in Bar to a claim of something in right of Nativity: Principally, when by reason of some slanderous and reproachful speeches, it is brought before the Court as the principal matter in Judgment to be alleged and proved, that thereupon Sentence may be pronounced accordingly by the Ecclesiastical Judge, Ad Curiam enim Regiam non pertinet agnoscere de Bastardia . General Bastardy at Common Law, is so called because it is in gross objected in Barr against a Man to disappoint him in the Principal matter of his Suit. Which, because it is of Ecclesiastical Cognizance, is sent by the Kings Writ to the Ordinary, to inquire whether the Party charged with Bastardy were born in, or out of Lawful Matrimony; And as the Ordinary finds the truth of the matter upon due examination, so he pronounceth accordingly in his Consistory, whereof he returns Certificate to the Temporal Courts . Special Bastardy at the Common Law, seems to be only that, where the Matrimony is confessed, but the Priority or Posteriority of the Nativity of him, whose Birth is in question, is controverted .

General Bastardy ought to be Tryed by the Bishop, and not by the Country . But Bastardy in this sense cannot be tried by the Ordinary otherwise than by virtue of the Kings Writ, on some Suit depending in the Temporal Court . When Issue is join'd on Bastardy, before it be awarded to the Ordinary to Try it, Proclamation thereof is made in the same Court, and after Issue it is certified into Chancery, where Proclamation is made once a Month for three Months, and then the Lord Chancellor certifies it to the Court where the Plea is depending; and after it is Proclaimed again in the same Court, that all such whom the said Plea concerns, may appear and make their Allegations before the Ordinary ; whose Certificate of Bastardy is nothing to the purpose, unless it come in by Process at the Suit of the Parties . And this Bastardy ought to be certified under the Seal of the Ordinary, for it is not sufficient to certify it under the Seal of the Commissary . And although the Defendant be certified a Bastard by the Ordinary, yet the Certificate shall lose its force, if the Plaintiff be afterwards Nonsuit, for then the Certificate is not of Record .

In the Case of Elborough against Allen, it was said by Crook, that for calling one Bastard generally, there is not any sufficient Ground of Action at the Common Law, but if there be any special Loss thereby, it shall be a good ground of Action at the Comon Law, as if a Man be upon Marriage, or in treaty for the sale of Land, whereby his Title is disparaged. Doddridge Justice said, That the word Bastard is generally of another Jurisdiction and belongs to the Ecclesiastical Court to determine what shall be Bastardy, and their Judgment is given for the damage, which the party had in his birth, and for that their Entry is quia laesis est natalitiis. And in this Case the Chief Justice said, that generally to say J. S. is a Bastard, J. S. hath not cause of Action given him thereby; but if there be a Temporal cause aver'd, the Common Law may proceed therein; for though Originally Bastardy be of the Ecclesiastical Jurisdiction, not Triable at the Common Law; and therefore as in its general nature it is of the Spiritual Jurisdiction, so being by its generality no ground of Action at the Common Law, yet if one be to sue for a Childs part, or sue for the Administration of his Fathers Goods, and this be set forth in the Declaration, it will maintain an Action at Common Law. Doddridge Justice said, That to say generally that one called him Bastard, is not ground of Action, if he doth not show some special Loss thereby, as when a Woman brings her Action, and says that she was in Treaty of Marriage, and that the Defendant called her Whore, this will not maintain an Action unless she say withal, that by reason of these words she lost her preferment; but Chamberlain Justice said, to call a Woman Whore is at this day a sufficient cause of Action for her, for that it is punishable by the Statute; he also further said, that if a Man Libel in the Ecclesiastical Court, that he hath Lands by descent, and that J. S. called him Bastard, they may not proceed there; or if they do, a Prohibition lies, He further said, that for calling a Man Bastard generally, without special Loss alleged, Action shall be maintained, and Cited a Case in 6 Eliz. Dyer. Where a Man recovered red great Dammages, for that the Defendant had said that his Father was a Bastard; And cited also one Nelson and Stokes Case in 5 Jac. where the Plaintiff did not allege any special cause of Action, and yet recovered:

(7.) By the Civil Law such as were born in the beginning of the eleventh Month next after the decease of their Mothers Husband were to be accounted legitimate, but such as were born in the end thereof, were to be accounted Bastards Auth. Col. 4. yet the Gloss there relates a matter of Fact contrary to this Law, and gives us an instance of a Widow in Paris, who was delivered of a Child the fourteenth Month after her Husbands death, yet the good repute of this Woman's continency prevailed so much against the Letter of the Law, that the Court Judge'd the causes of Child-birth to be sometimes extraordinary, the Woman to be chaste, and the Child Legitimate. Hoc tamen in exemplum trahi facile non oportet, as the Gloss there concludes.

(8.) By the Common Law, if a Child be born but an hour after the solemnization of Marriage, it shall be the Husbands, though it were begotten by another Man, who was not the Mothers Husband, and may be the Heir of him who Married the Mother but a Day before the Birth of such Child for in that Case he is not reputed a Bastard, who cannot inherit Land as Heir to his Father, nor can any person inherit Land as Heir to him, but one who is Heir of his Body . Otherwise it is in case the Child were begotten by him who after the Birth of the Child doth Marry his Mother; For in that Case notwithstanding such Marriage subsequent to the Birth, the Child is reputed a Bastard in the judgment of the Common Law, as being born out of Wedlock, though according to the Ecclesiastical Law the Child in that case is reputed as Legitimate . But if one Marry a Woman, and die before Night, without ever bedding her, and she after happen to have a Child, within possibility of conception in respect of time computable from such Marriage, it seems it shall be accounted his Child, and Legitimate .

(9.) If a Child be born within the tenth Month (computing thirty days to the Month) next after a Mans death, it shall be reputed his Child as a Mulier; but the most natural time is nine Months and ten days (computing twenty eight days to the Month) which is forty Weeks; or any day in the tenth Month may be natural enough . Also the Children begotten under a second Marriage after a Lawful divorce from a former, are Legitimate, and not Bastards . And the Child wherewith the Mother is visibly big when she taketh a second Husband, shall be reputed the Child of the former Husband, though born after Marriage with the second. Otherwise, if at her second Marriage she were so privlly with Child as that it could not be discerned; understand it with this limitation, if by possibility of nature it may be so . And if a Widow take another Husband within ten days next after the death of her former, and be delivered of a Child eleven days before or after forty Weeks from the death of the said former Husband, it shall be reputed the Child not of the former, but of the later Husband . And in one Thecker and Duncombes Case it was adjudged, that a Woman may have a Child in thirty eight Weeks, and that by cold and hard usage, she may go with Child above forty Weeks; which was mentioned by the Court in the Case of one Owen against Jevon in an Action of the Case for saying, This is the Whore that my Man C. begat a Bastard on; and upon a Verdict for the Plaintiff it was moved in arrest of Judgment, that the words are not Actionable, because there is no special loss or damage alleged by the Plaintiff, and that in one Lightfoots Case against Pigot it had been ruled that an Action lies not for saying a Woman had a Bastard: but it being argued on the other side, that the words are Actionable, because if they were true, the Party of whom they are spoken is punishable by the Statute of 7 Jac. with corporal punishment, Judgment was given for the Plaintiff, Nisi. .

(10.) The punishment of a Woman that hath a Bastard, that may be chargeable to the Parish, is the House of Correction for one year by the Statute .

(11.) Although in the judgment of the Common Law a Bastard be reputed quasi nullius Filius , insomuch that, if being seized of Lands in his own right, he die without Issue of his Body, they may Escheat; yet even by that Law the Bastard in respect of his Mother is said to be a Son . But in respect of the the Father he is said to be nullius Filius, and therefore in the Case of Ralph Haward and the Lady Anne Powes his Wife in a Writ of Partition, it was held, that if the Mother dispose of all her Lands holden in Knights Servive, to her Bastard-daughter by conveyance in her lifetime, that the same is out of the Statute of 32 H. 8. because she is but a mere Stranger to the Father, because nullius Filia; and the said Statute speaks of Lawful generation. And in the 39 Ed. 3. 42. in a Praecipe, where a Bastard was named Filius J. S. the Writ for that reason did abate . For the same reason also it is, that in a conveyance by a Father to his Bastard-son, natural affection is not a sufficient consideration; for that he is a Stranger in Law, although he be a Son in Nature . And yet it seems if a Grant be made to a Bastard by the Sirname of him who is supposed to beget him, it is good, if he be known by such Name, and yet in truth he is nullius filius. And if Husband and Wife divorced causa Praecontractus, the Issue hath lost his Sirname, for Cognomen Majorum est ex sanguine tractum; and the Issue now is Bastard and nullius filius: yet because he had once a Lawful Sirname, it is a good ground of reputation, to make him a reputed Son, which is a good Name of purchase . And it hath been resolved that a Child begotten by a second Husband (living the former) of a Woman divorced from the former causa Praecontractus, is legitimate and no Bastard ; But in another case, that a Child begotten after Marriage solemniz'd infra annos nubiles, and for that cause after divorced, is illegitimate and a Bastard .

(12.) A. takes B. to Wife and dies. B. after forty Weeks and ten Days is delivered of a Daughter. The question is, whether the Daughter shall be Heir to her Father, or a Bastard? The Affirmative prevails, and such a Child may be lawful Daughter and Heir to her Father; for a Post-natus, that is born after the forty Weeks, may as well be an Heir as an Ante-natus that is born at the end of seven Months; And a Child may be legitimate, although it be born the last day of the tenth Month after the conception thereof, computing the Months per menses solares & non lunares; according to the report given upon Oath by the learned Physicians in Alsop 's Case , If a Man hath Issue born by his Wife forty Weeks and eight Daies after his death, as if he die the three and twentieth of March, and the Issue is born the ninth of January next following, that Issue shall be held Legitimate, for it may be Legitimate by nature, and it seems the Common Law doth not limit any certain time for Legitimate Infants to be born: p upon evidence at the Barr which concerned the Heir of one Andrew's, it was resolved by the Court, that Dr. Paddey and Dr. Momford, Physicians, should (being first sworn) in that case inform the Court upon their Oaths, whether according to Nature such Issue may be Legitimate, and they said that the exact time of the birth of an Infant is 280. days from the conception, viz. nine Months and ten Days after conception, accounting it by the Solar months, viz. 30. days to each month; but it is Natural also if he be born any time of 10 Months, viz. in 40 Weeks, for by such account 10 Months and 40 Weeks, or all one, but by accident an Infant may be born after the 40 Weeks, or before: Si partus nascatur post mortem Patru (qui dicitur Posthumus) per tantum tempus, quod non sit verisimile quod possit esse defuncti filius & hoc probato talis dici poterit Bastardus.

(13.) It is agreed on all hands that Bawardy is an Ecclesiastica Cause, and of Ecclesiastical Cognizance, and therefore if Bastardy be pleaded in disability of a plaintiff, the sa •• 〈◊〉 be tried by the Certificate of the Bishop, whether it be in Real Action relating to Inheritance, or Personal relating to 〈◊〉 otherwise where Action on the Case will lie: But if it be pleaded, that the Plaintiff was born at such a place before the Marriage solemnized, and so he is a Bastard: This the Common Law calls a Special Bastardy, and shall be tried by Jury at the Common Law, where the Birth is alleged; So in the Duke of Suffolk 's Case of Partition, where Special Bastardy was pleaded, and Issue thereupon taken, the Trial was awarded to be by a Jury of London. And where in an Action, upon the Case brought for calling one Bastard, the Defendant justified that he was a Bastard; it was awarded, that it should be tried by the Country, and not by the Ordinary. Which seems something Paradoxical, that if Bastardy be pleaded in Disability of a Plaintiff, then it shall be tried by the Bishops Certificate; but if it be pleaded, that the Plaintiff was born in such a place before the Marriage, then by a Jury: The former whereof is said to be a general Bastardy; the other a special Bastardy; whereas in truth they both seem to differ only in this, that the former seems to be a general relating to the Plaintiffs condition in respect of his Disability, the other seems to be a special relating to the circumstances of Place and Time of his Nativity, but both referring to his Bastardy.

(14.) If a man, that is ordered by two Justices of the Peace to keep a Bastard-Child (he being according to the said Order the reputed Father) shall appeal from the said Order to the next Quarter Sessions according to the Stat. of 18. Eliz. and being there discharged, and the said Order repealed, shall yet afterwards at another Quarter-Sessions of the Peace upon re-examination of the matter be ordered according to the first Order; in that case it hath been held by the Court, that the second Sessions had no power to alter the Discharge made by the former Sessions. v And in another Case it hath been resolved, that before the Statute of 3. Car. c. 4. the Justices at the Sessions had no Authority to intermeddle in the Case of Bastardy, till the two next Justices according to the Stat. of 18. Eliz. had made an order therein; As also that by the Stat. 3. Car. the Justices of their several Limits are to make an Order in Case of Bastardy.

(15. ) C. commenced an Action in the Spiritual Court against W. for saying that he had a Bastard. W. the Defendant alleged in the said Court, that the Plaintiff was adjudged the reputed Father of a Bastard by two Justices of the Peace according to the Statute, whereupon he spake the words. The Spiritual Court accepted of his Confession, but would not allow of his Justification; whereupon he prayed a prohibition, and it was granted . It is not denied, but that if the Spiritual Court try a thing that is of Temporal Cognizance, a Prohibition may lie, although all the Cause were originally Spiritual, as was resolved in Kenns Case , in which Case it was likewise resolved, that where the Cause is Spiritual, there the Spiritual Court hath Jurisdiction; and in the Case between Banting and Lepingwell it was resolved, that the Judges of the Common Law ought (that is the word in the Report) to give Faith & Credit to the Proceedings of the Spiritual Court, albeit it be against the Reason of their Law

(16.) If a man having a wife, take another wife, and hath Issue by her, living the former wife, such Issue is a Bastard , for the second Marriage is void . If a man marry one within the Degrees prohibited, the Issue between them is not (by the Common Law) a Bastard, until there be a Divorce, for by that Law the Marriage is not till then void . (So it is although the Brother Marry the Sister) If a Man hath Issue by A. and after Marries her, yet the Issue is a Bastard at the Common Law , An Ideot may consent to Marriage (by the Common Law) though he were an Ideot from his birth, and his Issue by that Law is Legitimate If the Husband be castrated, so that it is apparent that he cannot by any possibility beget any Issue, and his Wife have Issue divers years after, it shall be a Bastard, although it be begotten under Marriage, for that it is apparent that it could not be Legitimate .

(17.) By the Law of the Land a Man cannot be a Bastard who is born after the Espousals, unless there be some special matter in the case . If a Woman be big with Child by A. and after A. Marry her, and the Issue is born within the Espousals; in this Case by the Common Law the Issue is a Mulier, and not a Bastard , So if a Woman be big with Child by one Man, and after-wards another Marries her, and after the Issue is born, such Issue is a Mulier, for that he is born under Espousals, and cannot be held the Issue of him by whom she was with Child, because that cannot be certainly known ; and so it is although the Issue were born within three days after Marriage .

(18.) If a Woman Covert hath Issue in Avoutrie, yet if the Husband be able to get a Child, and be infra quatuor maria, the Issue is no Bastard If a Woman Elope and live in Avoutrie with another Man, during which Issue is born in Avoutrie, yet it is a Mulier by the Common Law But then the Husband must be infra quatuor maria, so as that by intendment he might come to his Wife, otherwise the Issue is a Bastard . But if a Woman hath Issue, her Husband being beyond sea for 7 years together before the Issue was born, such Issue is a Bastard at the Common Law . If a Feme Covert hath Issue, her Husband being beyond Sea for 6 years before the Issue is born, it is a Bastard at the Common Law . If a Woman hath Issue, her Husband being within 14 years of age the Issue is a Bastard at the common Law. quaere.

(19.) If A. hath Issue by B. and after they intermarry, yet the Issue is a Bastard by the Common Law; but it is a Mulier by the Civil Law . If the Parents be Divorced causa Consanguinitatis, they being ignorant thereof at their Marriage, the Issues they had before, are Bastards at the Common Law, and Muliers by the Civil Law . If a Man hath Issue by a Woman, and after marry the same Woman, the Issue by the Common Law is Bastard, and Mulier by the Ecclesiastical Law : Likewise if a man espouse a Woman bigg with Child by another Man, and within three days after she is delivered of Child, by the Common Law this is a Mulier, and by the Ecclesiastical Law a Bastard . If a Woman Elope and hath Issue in Adultery, such Issue is a Mulier at the Common Law, and a Bastard by the Ecclesiastical Law ; yet if the Woman continue in Adultery, and hath Issue, such Issue are Bastards even by the Common Law . But by the Law of the Land a man may not be reputed a Bastard who is born after Espousals, unless there be some special matter in the Case as aforesaid . But if a man who hath a wife, doth during her life take another wife, and hath Issue by her, such Issue are Bastards by both the Laws, for the second Marriage is void .

(20.) A Divorce causa Praecontractus doth Bastardize the Issue, so also doth a Divorce causa Consaguinitatis likewise if the Divorce be Causa Affinitatis, it doth Bastardize the Issue; and the Law is the same, in case the Divorce be causa Frigiditatis. A Man hath Issue a Bastard, and after marries the same Woman, and hath Issue by her divers Sons; and then deviseth all his Goods to his Children. Q. whether the Bastard shall take by the devise? But if the Mother of the Bastard make such a devise, it is clear the Bastard shall take because he is known to be Child of the Mother .

(21.) B. contracted himself to A. afterwards A. was Married to F. and cohabited with him, whereupon B. sued A. in the Court of Audience, and proved the contract, and Sentence was there pronounced, that she should Marry the said B. and cohabit with him, which she did, and they had Issue C. B. and the Father died: It was argued by the Civilians, that the Marriage betwixt B. and A. was void, and that C. B. was a Bastard. But it was resolved by the Justices. that C. the Issue of B. was legitimate and no Bastard .

(22.) The Case was wherein a Man was divorced causa Fridigitatis, and afterwards took another Wife and had Issue; it was argued by the Civilians, and also by the Justices, whether the Issue were Bastard or not, it was adjudged that the Issue by the second Wife was not a Bastard; For that by the Divorce the Marriage was dissolved à vinculo Matrimonii, and each of them might Marry again: But admit that the second Marriage was voidable, yet it good till it be dissolved, and so by consequence the Issue born during the Coverture is a lawful Issue. .

(23.) Upon an information in the Castle-chamber in Ireland against the Bishop of K. and C. B. and others, that by Practice and Combination, and by undue course of proceedings they endeavored to prove the said C. B. (who was ever before reputed a Bastard) to be the legitimate or lawful Son and Heir of G. B. Esq to the disherison and defamation of E. B. who was the sole Daughter and Heir of the said G. B. And upon Oier of this cause the Case appeared to be this, viz. About twenty six years before the exhibiting of this Bill, the said G. B. had Issue the said C. B. on the Body of one J. D. who during the life of G. B. was not reputed his Wife, but his Concubine: and the said C. B. for all the time aforesaid, was only accounted the natural Son of G. B. but not for legitimate. Afterwards, viz. sixteen years after the birth of C. B. (his Mother being then living) G. B. took to Wife a Lady of good Estate and Reputation, with the assent of her Friends, by whom he had Issue the said E. B. and died. After the death of the said G. B. the said C. B. his reputed Son (nor his Mother who was yet living) said nothing by the space of nine years, but at last they practiced and combined with the said Bishop of K. being of their Kin, and with many others, to prove the legitimation of the said C. B. by an irregular and undue course, to the intent to bastardize and disinherit the said E. B. according to which practice and combination, the Bishop without any Suit commenced or moved in any of the Kings Temporal Courts, or any Writ directed to him, to certify Bastardy or Legitimation in that Case, and (which is more) without any Libel exhibited in his Ecclesiastical Court touching that matter, of his own will and pleasure, privately, and not convocatis convocandis, nine years after the death of the said G. B. took the depositions of many Witnesses to prove that the said G. B. twenty nine years before had lawfully Married and took to Wife the said J. D. Mother of the said C. B. and that the said C. B. was the legitimate and lawful Son and Heir of the said G. B. And these depositions so taken, the said Bishop caused to be engross'd and reduced into the form of a solemn Act; and having put his Signature and Seal to that Instrument, delivered the same to C. B. who published it, and under color of that Instrument or Act declared himself to be the Son and lawful Heir of the said G. B. &c. And for this practice and misdemeanor the said Bishop of K. and others were censured; and thereupon these points were resolved (1.) That although all Matrimonial causes have of a long time been determinable in the Ecclesiastical Courts, and are now properly within the jurisdiction and cognizance of the Clergy, yet ab initio non fuit sic: For causes of Matrimony as well as cause Testamentary were heretofore civil Causes and appertaining to the civil Magistrate, as is well known to all Civilians, until the Christian Emperors and Kings, as an honor to the Prelates of the Clergy, did grant and allow unto them the cognizance and jurisdiction of these Cases. And therefore the King of England, who is, and of right ever was the Fountain of all Justice and Jurisdiction in all Causes, as well Ecclesiastical as Civil, within his own Dominions, although that he allow the Prelates of the Church to exercise their several Jurisdictions in those Causes which properly appertain to their cognizance, yet by the Rules of the Common Law, he hath a superintendency over their proceedings, with power of direction how they shall proceed, and of restraint and correction, if they do not proceed duly in some cases: as is evident by the Writs of several natures directed to Bishops, by which the King commands them to certify Bastardy, Excommunication, Profession, Accouplement en Loyal Matrimony, De admit. Clericis, de Cautione admittenda, &c. as also by the Writs of Prohibition, Consultation, and Attachment upon a Prohibition. (2.) It was resolved, that the question of Bastardy or Legitimacy ought to be first moved in the Kings Temporal Court, and thereon Issue ought to be joined there; and then it ought to be transmitted by the Kings Writ to the Ecclesiastical Court, to be examined and tried there: and thereupon the Bishop shall make his Certificate to the King's Court; to which Certificate being made in due form of Law such credit is given, that the whole World shall be bound and stopped thereby. But on the other side, if any Suit to prove Bastardy or Legitimacy be first commenced in the Ecclesiastical Court, before any Question of that matter hath been moved in he Kings Temporal Court, in that Case Prohibition lies to restrain such Suit. To this purpose was Corbet 's Case cited, 22 Ed. 4. Fitz. Consultation 6. Sir Robert Corbet had Issue two Sons, Robert and Roger, Robert the eldest Son, being within the age of fourteen years, took to Wife Matild, with whom he cohabited till he came of full Age, and they publicly known and reputed for Husband and Wife; yet afterwards Robert the eldest Son doth dismiss the said Matild, and she living, doth Marry one Lettuce, and having Issue a Son by the said Lettuce, dies: after his death Lettuce doth publish and declare openly, that she is the lawful Wife of Robert, and that his Son was a Mulier and legitimate. Whereupon Roger the younger Son of Sir Robert Corbet doth commence a Suit in the Ecclesiastical Court to reverse the Marriage between Lettuce and Robert, and to put Lettuce to silence, &c. wherefore Lettuce doth purchase a prohibition; Whereupon Roger sets forth the whole matter, and prays a consultation, which was denied him, and for this reason chiefly, viz. for that the Suit in the Ecclesiastical Court was to Bastardize the Issue between Lettuce and Robert, and to prove Roger to be Heir to Robert; and the Original Action of Bastardy shall not be first moved in the Ecclesiastical Court, but in the Temporal Court, &c. And to make this point yet the more clear, two Cases put by Bracton. lib. 5. tit. de exceptionib. c. 6. were remembered (1). B. having Issue of the Body of a Feme-Inheretrix born before Marriage, under color whereof he claimed to be Tenant by the Courtesie, but being for that cause bar'd in an Assize brought by him against A. he obtained the Popes Bull, and by authority thereof commenced his Suit in the Ecclesiastical Court, to prove his Issue legitimate, quod facere non debuit, as Bracton there saith; and therefore prohibition was granted to stay the Suit, showing the whole matter, Et quod praedictus B. ad deceptionem Curiae nostrae, & ad infirmandum judicium in curia nostra factum, trahit-ipsum A. in placitum coram vobis in Curia Christianitatis, authoritate Literarum domini Papae, ad praedictum puerum legitimandum, &c. Et cum non possint Judices aliqui de legitimatione cognoscere, nisi fuerit loquela prius in curia nostra incepta per breve, & ibi Bastardia objecta, & postea ad Curiam Christianitatis transmissa, vobis prohibemus, quod in placito illo ulterius non procedatis, &c. And in the same Chapter Bracton hath the form of another Prohibition, which makes the difference before put more evident, Rex talibus judicibus, &c. Ostensum est nobis ex parte A. &c. quod in causa successionis, & haereditatis petitione, debet prius moveri placitum in curia nostra, & cum ibi objecta fuit Bastardia, tunc deinde transmitti debet recordum loquelae & cognitio Bastardia ad curiam Christianitatis, ut ibi ad mandatum nostrum de legitimitate inquiratur: quod quidem in hac parte non est observatum. Et cum hoc sit manifest contra Consuetudinem Regni nostri, &c. vobis prohibemus, &c. whereby it is very evident, that if the Ecclesiastical Court proceed to the examination of Bastardy or Legitimation without direction of the Temporal Court, it is to be restrained by a Prohibition. (3.) As the Ecclesiastical Judge may not inquire of Bastardy or Legitimation without special direction or command of the King: so when he hath received the Kings Writ to make such Inquisition, he ought not to surcease for any Appeal or Inhibition, but ought to proceed until he hath certified it into the Kings Court; and this also appears by Bracton in the forecited place, c. 14. Cum autem Judex Ecclesiasticus Inquisitionem fecerit, non erit ab eo appellandum, nec à petente nec à tenente: à petente non, quia talem Jurisdictionem & talem judicem elegit; à tenente non, qui sic posset causam in infinitum protrahere de judice in judicem us{que} ad Papam, & sic posset Papa de Laico feodo indirecte cognoscere. See also to this purpose 39 E. 3. 20. a. in a Writ of Dower, where Ne unques occouple en loyal Matrimony was pleaded, and Issue thereupon join'd, the Writ issued to the Bishop to certify, who certified that he could do nothing by reason of an Inhibition which came to him out of the Arches. This return was held insufficient, for it was there said, that he ought not to surcease from doing the Kings command by reason of any Inhibition (4.) Lastly, it was said, that the very cause and reason why the Ecclesiastical Judge may not inquire of Legitimation or Bastardy, before that he hath received direction, or a mandate out of the Kings Temporal Court, doth consist in this, that the Ecclesiastical Court never hath Jurisdiction or power to intermeddle with Temporal Inheritance, directly or indirectly; It being observed that Christ himself refused to meddle with a Cause of that nature, when upon request made to him, Luke 12. Magister, dic fratri meo, ut dividat mecum haereditatem, he answered, Quis me constituit judicem aut divisorem super vos? And therefore in the time of King H. 3. when the usurped Jurisdiction of the Pope was elevated much higher than ever before or since in the Dominions of the King of England, Pope Alex. the third, having granted a Commission to the Bishops of Winchester and Exon to inquire de Legitima nativitate of one Agatha, the Mother of one Robert de Ardenna, and if she were found legitimate, then to restore to the said Robert the possession of certain Lands whereof he was dispossess'd, being informed that the King of England was greatly offended at the said commission, he revoked and countermanded it in the point of the restitution of possession, knowing and confessing that the establishment of Possessions belonged to the King, and not to the Church. Which Case is reported in the Canon Law, Decretal. Antiq. Collect. 1. lib. 4. tit. Qui filii sunt legitimi. cap. 4. and cap. 7. where in the 4 th Chapt. the Commission, and in the seventh Chapt. the revocation or countermand appears in express terms.

CHAP. XXXVI.

Of Divorce; as also of Alimony.

  • 1. What Divorce is, the causes thereof; the difference between the Civil and Canon Law touching the proof of impotency, frigidity, or disability; and what manner of proof the Law requires thereof.
  • 2. What time of absence in the Husband may cause a Divorce.
  • 3. Whether Divorce by reason of Adultery dissolves the Marriage à vinculo? or whether the innocent party may remarry altera existente?
  • 4. What the Canon in Concilio Arelatense provides in that Case.
  • 5. The opinion of some eminent Common Lawyers in this point.
  • 6. The different Opinions of Divines and Lawyers, and of each among themselves touching this matter.
  • 7. The Opinion in summa Hostiens. as also of Suarez, touching the legality of second Marriage after Divorce.
  • 8. The Canon of the Council of Trent concerning Matrimony; also the Opinion of some of the Ancient Fathers, and a Decree of one of the Popes touching second Marriage after a Divorce
  • 9. Decrees and Histories of great Antiquity relating to this Subject.
  • 10. What the Pontifical Law, what Justinian, what Baldus, and what Grotius says in this matter.
  • 11. Opinions in this point take their diversification much from the cause of the Divorce, as whether ex causa praecedenti vel subsequenti.
  • 12. Judgments at the Common Law, that a Divorce for Incontinency, is only à Thoro & mensa, non à vinculo.
  • 13. What the Law intends by Alimony, and what Elopement signifies; no Alimony due to her that Elopes.
  • 14. In what Cases the Law will allow Alimony, or not.
  • 15. How the Civil Law provides in that Case of Alimony.
  • 16. The Ecclesiastical Court is the proper Court for Alimony.
  • 17. Whether the High Commission-Court had power of Alimony, or not?
  • 18. Prohibition denied to the Husband sued in the Ecclesiastical Court by the Wife for Alimony in causa saevitiae.
  • 19. Whether the Ecclesiastical Court may take Bond for Alimony, or Imprison for non-payment thereof.

(1.) A Divorce is a Sententence pronounced by an Ecclesiastical Judge, whereby a Man and Woman formerly Married to each other, are separated and parted . The word Divortium or Repudium is often taken promiscuously, both for a Total and Perpetual Divorce, & à vinculo Matrimonii; as also for a Partial and Temporal Divorce, or Separation à Cohabitatione, vel à thoro & mensa. The causes of this Divorce, whereof some are precedent, others subsequent to the Marriage, are many in the Law; Thomas Aquinas reckons up no less than a dozen of them, and thinks he hath Poetically comprised them all in four Verses, viz.

Error. Conditio. Votum. Cognitio. Crimen.
Cultus Disparitas. Vis. Ordo. Ligamen. Honestas.
Si sis Affinis. Si forte Coire nequibis;
Haec Socianda vetant Connubia, Facta retractant.

. But the Causes of Divorce in the Law as now commonly practicable, may be reduced to these few. (1.) The Levitical Degrees within which it is prohibited to Marry. (2.) Precontract; And so if a Man Marry one precontracted, and have Issue by her, it is the Fathers Child until there be a Divorce upon the precontract, and then it is Nullius Filius, a Bastard . (3.) Impuberty or Minority; And so if two be Married infra annos nubiles, and after full age are Divorced for the same, the Woman may bring an Assize against the Man for Land given her in Frank-marriage which proves that the Divorce is by that Law from the very Bond of Matrimony (4.) Frigidity in the Man, or Impotency in the Woman, termed Arctitudo in the Law; but the word [ Impotency ] is promiscuously used in both Sexes, for it is said, that if after a Man be Divorced for Impotency, he take another Wife and have Children by her, these shall not be Bastards, because a Man may be habilis & inhabilis diversis temporibus . But in this Case the Civil Law hath made other provision, for that Law in causa Frigiditatis requires three years Cohibitation for Trial of the Disability before it doth upon other legal evidence and proof conclude any Married persons either Frigid or Impotent; Indeed the Canon Law expects present proof, and in case of such Impotency or Frigidity, not Accidental but Natural and Incurable, concludes that the Matrimony was never a Matrimony. The evidence of which Disability depends on the Oaths of able Physicians, as also of aged and grave Matrons experienced in such affairs; nor is it to be alleged till after a Triennial experience of each other post Matrimonium Consummatum; and is a just cause of Divorce, for that it frustrates one of the chief ends of Marriage, viz. Procreation of Issue, if it be sufficiently proved by Inspection of the Body, Triennial Cohabitation and the Oaths aforesaid. Consil. Matrim. To. 2. Consil. 8. nu. 1. And in Cases doubtful whether it did precede the Marriage or not, the Law will presume it to antecede the Marriage, and consequently nulls it, in case it be Natural; otherwise, both as to the presumption and operation, in case it be only Accidental. Sanch. lib. 7. disp. 103. nu. 4. And where the Impotency doth sufficiently Constare to be Perpetual by the Oaths aforesaid upon Inspection, there the Triennial probation ceases. Ut cum Glossae. cap. Fraternitatis. De Frigidis & Maleficiis. & Panor. nu. 11. Pope Sixtus 5 th in his Bull An. 1587. declared that Matrimonia cum spadonibus, vel eunychis prorsus eviratis, seu utro{que} testiculo carentibus, cum quibuslibet Mulierihus, seu defectum praedictum ignorantibus, seu scientibus, esse semper{que} fuisse irrita. Antonini •• ana resolutiones morales. Tract. 4. Miscelan. resol. 75. p. 190.

(2.) There are also other seeming causes of Divorce than what are forementtoned; for the Civil and Canon Law do allow of Divorce after a long absence, but are not agreed touching the Time of that Absence; for in one place it is after Two years Absence, in another after Three years; in another after Four. Cod. lib. 5. tit. 1. l. 2. post biennium. tit. 27. post tres an. l. 27. post Quatuor an. others hold that the Civil Law requires Five years Absence before there may be a Divorce on that account. In the Council of Lateran a Sentence was allowed by the whole Council, which was given by a Bishop, pronouncing a Divorce for a Woman, complaining that her Husband had been absent Ten years, giving also leave to the Woman to Marry again. In Council. later. par. 50. cap. 23. But the truth is, no absence, be it for any time whatever, doth properly cause a Divorce in Law; Indeed Seven years Absence without any tidings or intelligence of or from the Absent Party, will so far operate in Law towards what is equivalent to a Divorce, as to indempnifie the Woman from the penalty of Polygamy, if in that case she Marry again. Also the Canon Law hath decreed, that if the Wife refuse to dwell with her Christian Husband, he may lawfully leave her. Causa 28. q. 1. c. 4. And some of the Imperial Laws allow Homicide, Sacrilege, Theft, Man-stealing, &c. for causes of Divorce, Cod. lib. 5. tit. 17. l. 8. But the Canon Law decrees otherwise. In the time of Ed. 1. William de Chadworth was Divorced, because he carnally knew the Daughter of his Wife before he Married her Mother . The Stat. of 1 Jac. cap. 11. is the first Act of Parliament that was made against Polygamy. Polygamia est plurium simul virorum, uxorumve connubium, The difference between Bigamy, or Trigamy, &c. and Polygamy is, Quia Begamus seu Trigamus, &c. est, qui diversis temporibus, & successive duas, seu tres, &c. uxores habuit. Polygamus, qui duas vel plures simul duxit uxores. And if the Man be above the Age of fourteen (which is his Age of Consent) and the Woman above the Age of twelve (which is her Age of Consent) though they be within the Age of twenty one, yet they are within the danger of the Stat. of 1 Jac. cap. 11.— Co. Inst Par. 3. Cap. 27. vid. Instit. par. 1. Sect. 104.

(3.) This matter of Divorce hath often ministered occasion for high debates and altercations touching second Marriages, As whether a Divorce by reason of Adultery in either of the Married Parties, doth so dissolve the Marriage à vinculo, as that it may be lawful for the Innocent Party to Marry again during the others life? By the 107 th Canon, It is provided, that in all Sentences for Divorce security be given and Bonds taken for not Marrying during each others life . By enjoining such security to be given, and such Bonds to be taken, This seems to be a Penal Canon, viz. pecuniarily Penal; whoever therefore breaks the Law incurs the penalty, and whoever suffers the penalty doth answer and satisfy the Law which before he had infring'd; a penalty expressed or implied, provided for in, and annexed unto a Law that is in itself prohibitory, seems to create some qualification of that legal prohibition, Prohibitio vim suam exercere potest per poenam vel expressam vel arbitrariam: Et hoc genus Leges Imperfectas vocat Ulpianus, quae fieri quid vetant, sed factum non rescindunt, So Grotius. Grot. de jure Bel. & Pacis. lib. 2. cap. 5. Sect. 16. But to speak a little nigher to the point in hand, it is Grotius again in the same place, Si Lex humana conjugia inter certas personas contrahi prohibeat, non ideo sequitur irritum fore Matrimonium, si re ipsa contrabatur: sunt enim diversa prohibere, & irritum quid facere. The Laws whether Ecclesiastical or Temporal are not of any private interpretation; yet to speak herein only hypothetically, if this be interpretative as a penal Canon by virtue of the said Security and Bond, then apposit and observable is that which Grotius hath in another place, in Casu Legis Paenalis, his words are these, viz. Rex qui est Auctor Legis, & ubi Regni ipsius personam & auctoritatem sustinet, qua talis est, potest legem etiam totam tollere; quia Legis humanae natura est, ut à voluntate humana pendeat, non in Origin tantum sed & in duratione. Sicut autem totam Legem tollere potest, ita & vinculum ejus circa personam aut factum singular, manente de caetero lege. Dei ipsius exemplo. Qui (Lactantio teste) legem cum poneret, non uti{que} ademit sibi omnem potestatem, sed habet ignoscendi licentiam. Imperatori, inquit Augustinus, Licet revocare sententiam, & Reum mortis absolvere & ipsi ignoscere: Causam explicat, Quia non est Subjectus Legibus, qui habet in potestate Leges ferre. Grot. ibid. de Paenis. cap. 20. Sect. 24. How far the power of Princes may extend itself in this matter, is not before us; But clear it is, that all such as acknowledge the Regal Supremacy, will withal confess, that his Majesty hath more right to dispence with Canons within his own Dominions ex plenitudine potestatis Regalis, than was here formerly exercised ex usurpatione potestatis Papalis. In all Laws that are both Prohibitory and Penal, as they are of the more force by reason of their Prohibitory quality, so they seem to abate of that force by reason of the annexed penalty; for he that suffers the penalty, satisfies the Law, though he transgress the Command. The Statute of primo Jacobi hath a Proviso or exception to second Marriages by persons legally Divorced; . no Caitons or Constitutions prevail or are executable, in repugnancy to the Kings Prerogative, or to the Laws or Statutes of this Realm . That Statute of primo Jacobi prohibiting second Marriages during the Life of each other, doth not only not extend to persons legally Divorced, but as to such it is with an exception, limitation or proviso as aforesaid. Sir Ed. Coke taking notice hereof in Porters Case, reports that that Statute extends only to persons which are Divorced by Sentence in the Spiritual Court ; And that distinction of Total and Partial Divorce, Or that vel à vinculo vel à Mensa & Thoro, will not it seems satisfy all Judgments, some alleging that ubi lex non distinguit, nec nos distinguere debemus, applying that Rule ad Evangelium also; and thence will not be persuaded but that the innocent party in Causa Divortii ob Adulterium may Marry again, altera parte existente, because though they know it to be otherwise by Text Canonical, yet know not where to find it so by Text Scriptural; and specially because they find a Proviso in the said Statute of primo Jacobi, that the parties Divorced by sentence, if he take another Wife, or she take another Husband, shall not be within the danger of the Statute; And that this extends to every manner of Sentence of Divorce, and not to any particular cause of Divorce. Cajetan, though of the Roman Church, yet on the 19 th of Matthew saith, Intelligo ex hac Domini Jesu Christi lege, licitum esse Christiano dimittere uxorem ob fornicationem carnalem ipsius uxoris, & posse aliam ducere: and soon after adds, Non solum miror, sed stupeo, quod Christo clare excipiente causam fornicationis, torrens Doctorum non admittat illam Mariti libertatem. This Question, Whether after Divorce for Fornication it be lawful to Mary again during the Lives of the parties Divorced, is at large handled by the learned Doctor Hammond in his Treatise of Divorces; where he says that Mat. 19. 9. and Mark 10. 6. are two places of such perspicuity (one Cause of Divorce allowed the Christians, that great Breach of the Conjugal Vow, and whosoever Divorces and Marries again, save in that one Case punctually named, committeth Adultery ) that as no Paraphrase can make them more Intelligible: So there is but one Question that can reasonably be started in them, viz. Whether he that puts away his Wife on this one authentic cause, be so perfectly freed from the Conjugal Vow and Bands, that he may Lawfully Marry some other Woman, and some other Man Marry that Divorced Adulterers Wife? In Mat. 19. 9. The words are, That whosoever shall put away his Wife, save for fornication, and shall Marry another, committeth Adultery; and he that shall Marry her that is put away, committeth Adultery: Which words (says that learned Author in Sect. 22.) are favorable to the affirmative, that it is Lawful for him in that one excepted Case to Marry again. The nature of a Divorce among the Jews was the rescinding of the Conjugal Bands, and by one supposition common to Jews and Romans, viz. That they who were duly Divorced might Marry again: So of the Jewish Divorced Wife, Deut. 24. 2. 'tis expressly said, she may Marry another; and of the Man, this was his only End of putting away his Wife in that place, that he might Marry another: Accordingly the Form of Divorce in Misna, tit. Gittin, Behold, thou art free, or at liberty for any Man, and this is the Bill of Divorce between me and thee, so that it is free for thee to Marry to any Man thou wilt. Idem. Sect. 27. yet on the other side (says that learned Author) it may be argued, that although in the Mosaical Law, Divorce was the rescinding the Conjugal Bands, to which it was consequent, as long as the Jewish polity lasted, that they who were duly Divorced (as in the one Case of Fornication ) might freely Marry again: yet in the acceptation of our Christian Courts, Divorce appears not to be anymore than the solemn Judicial separation from Conjugal Society, as that it seems to be rather the freeing the Husband and Wife from the Obligation to mutual conjugal duties, than the utter rescinding and dissolving the Bands. For if it were so, then that Husband and Wife could never come together again without a new Wedlock, which was never heard of in the Church; that Adultery, the efficient cause of Divorce (though a breach of the Conjugal Vow ) is yet no actual diss • lution of the Conjugal Bands, among us Christians, seems probable (says Doctor Hammond ) by these two evidences (1.) Because Adultery committed by the Husband, dissolves not Marriage, which yet it equally should, if that fault committed, and not the Sentence of Divorce rescinded the Conjugal Band, &c. In this a difference is observable between us and the Jews; for in case of Fornication, the Jew expected no Sentence of the Consistory, but the Man might put her away, give her from himself a Bill of Divorce, which was never allowed or practiced among Christians. 2. Because if this were so, if Adultery in the Wife dissolved the bands, then the Husband, that after the Wifes Adultery continued to live with her Conjugally, must be concluded to commit Fornication with her, the validity of the bands being it (and nothing else) which makes Conjugal Society Lawful. Accordingly hath the Opinion of the Church been anciently, as in Can. Apost. 48. If any Laic put away his Wife and Marry another, or Marry a Woman which hath been put away by another, let him be Excommunicate. So likewise at the Council of Arles, An. 314. Can. 10. De his qui Conjuges suas in adulterio deprehendunt, & iidem sunt Adolescentes Fideles, & prohibentur nubere, placuit ut in quantum possit, concilium iis detur, ne viventibus uxoribus suis, licet Adulteris, alias accipiant. Likewise in the Milevitan Council, An. 402. at which St. Augustine was present, it is decreed, that secundum Evangelicam & Apostolicam Doctrinam, ne{que} Dimissus ab uxore, neq. Dimissa à Marito, alteri conjungantur, sed ita maneant, aut sibimet reconcilientur. So also in the Codex Can. Eccl. African. Can. 102. 〈 in non-Latin alphabet 〉 . That they that are Divorced from Husbands or Wives, should remain unmarried. And what hath thus been defined by these Canons, is evidently received into the Ecclesiastical constitutions of this Church, which therefore hath decreed, that when Divorces are pronounced, Monitio & prohibitio fiat, ut à partibus ab invicem segregatis caste vivatur, nec ad alias Nuptias alterutra vivente convoletur. Constit. Eccl. An. 1597. upon these Arguments pro & con, Doctor Hammond in the forecited place doth conceive, that the Resolution may be made by these three propositions: (1.) That by the force of Christ's words in all the Evangelists, he that Marries again after any kind of Divorce, but that one for Fornication, doth commit an Unchristian sin. (2.) That by force of the Arguments first produced, for the interpreting Mark and Luke by Mat. 19. 5. vid. Doctor Hammond of Divorces, fol. 452, 453. it may be probably concluded that in that one case of Divorce for Fornication, the Marriage of the Innocent party shall not be Adulterous. (3.) That although this be granted, yet the words of St. Mark and Luke, especially the words of St. Paul, 1 Cor. 7. 39. do give such prejudices against Marriages after Divorce indefinitely, that the ancient Canons of the Church, and the Constitutions of our English reformation, have thought fit not to permit such liberty in any kind, and therefore that this may be the better observed, the decree of separation shall not be pronounced, till they that demand it, shall give sufficient security that they will do nothing against the Admonition and Prohibition, for our Constitution adds, Deni{que} quo illud firmius observetur, sententia separationis non antea pronunciabitur, quam qui eam postulaverint, Cautionem Fidejussoriam sufficientem interposuerint se contra monitionem & prohibitionem nihil commissuros, which if not observed by the Judge, he is punishable, and the Sentence of Divorce for such defect declared void. Constit. Eccl. an. 1597. Innocent the first, Bishop of Rome saith, Qui interveniente repudio, alii se Matrimonio copularunt, in utra{que} parte Adulteros esse manifestum est, &c. But the said Judicious Author conceives, that of this and the like Testimonies it may be observed, that most of them belong not to these Divorces, which are in case of Fornication, but (proportionably to Christ 's words in St. Mark ) to those which according to the Jewish or Imperial Laws, were allowed in other Cases, than what either Christ, or the Primogenial institution of Marriage had allowed of: And further saith, that it is evident and confessed by all Christians, that of These, that is, the Marriages (after such Divorces by the Jewish and Imperial Laws) are Adulterous, but not so of those other Marriages of the innocent parties after those other Divorces in that one Case of Adultery. Yea and some Canons have been made with this Temperament expressly ( except in the case of Fornication ) so in the second Canon of the Council of Vannes, eos qui relictis uxorihus suis, sicut in Evangelio dicitur, excepta causa Fornicationis, sine Adulterii probatione alias duxerint, statuimus, &c. They that have left their own Wives, as it is said in the Gospel, except for cause of Fornication, and without proof of Adultery shall have Married others, we judge them, &c. Notwithstanding which, the Law tells us of other Cases than that of Adultery or Fornication, wherein the Man after a Divorce may remarry during the Life of the Woman Divorced, as in the Case of Arctitude, which you may find in Summa Astensi, Lib. 8. De Divortio propter impotentiam. Tit. 37. fo. 233. Si Arctatio alligetur (subaudi quamcun{que} impotentiam Foeminae) statim potest Divortium Fieri hoc modo, viz. vocabuntur Matronae fide dignae, & in Nuptiali opere expertae,—Ar. F. de Ventr. inspect. l. 1. verb. igitur, &c. Et si Mulieres asserant eam non posse fieri Naturaliter Matrem, tunc statim potest Divortium fieri, et dabitur viro Licentia cum alia contrahendi. It will not be denied, but that in all Cases where the Marriage was ab initio Null, there it shall, after a legal Divorce, be free for either party convolare ad secundas Nuptias altera parte existente, which strictly and properly cannot be said to be a second Marriage, because precedent to it, there was duly and legally none; nor therefore can they be properly said to be Divorced, Separated, or put asunder, that never were de jure put together. Among the several kinds of these Null Marriages may be computed that which Panormitan speaks of in his Fourth Tract de Sacramentis. Resol. 201. Foemina (says he there) si commode non potest aptam se reddere viro, impedimentum censendum esse perpetuum, & Matrimonium declarandum Nullum; which holds true vice versa, and therefore it is likewise said, that Foemina per contractum Matrimonii jus suum tradit viro apto, non inepto, at{que} in non aptum nullum transfertur jus. The Canon Law is express in prohibiting these second Marriages after a Divorce, although Ex causa Fornicationis. So Tostatus, verb. Matrimonium, ubi voluit nullam esse Causam Repudii, nisi Fornicationem; Et istam non quidem simpliciter ad Dirimendum Matrimonium, sed ad tollendam Cohabitationem. ut patet, Extra. de Divort. c. Gaudemus. The Lawyers and Divines (says Adam Tannerus ) are of different opinions in this point, Juristae Divortii voice utuntur pro Dissolutione Matrimonii etiam quoad vinculum, ut constat. ex toto tit. F. De Divortiis. Theologi tamen ea voice Divortii solam significant separationem inter conjuge • , aut quoad Cohabitationem, aut quoad Thorum. Adam. Tannerus, Tom. 4. Dispute. 8. de Matrimonio. q. 5. Dub. 5. nu. 74. de Divortio.

(4.) In concilio Arelatensi, which was held in An. 314. at the command of Constantine the Great, under Pope Silvester in the first Year of his Papacy, it was Canoned, Ut is cujus uxor adulteravit, aliam illa vivente non accipiat. Sir Hen. Spelman gives the words of this Canon thus, viz. De his qui Conjuges suas in Adulterio deprehendunt, & iidem sunt Adolescontes Fid •• es & prohibentur Nubere, placuit ut in quantum possit, Consilium iis detur, ne viventibus uxoribus suis, licet Adulteris, alias accipiant If this Canon be not directly prohibitory, and against second Marriage after Divorce in Case of Adultery during the Life of the other Party, yet it provides that Counsel or Advice in the Case be given against it, and the Parties monished to the contrary.

(5.) Mr. Attorney Noy in Dame Powels Case reports, that a Divorce causa Adulterii is but à mensa & thoro, & non a vinculo Matrimonii; and the reason he gives is this, viz. Because (says he) the offense is after the just and lawful Marriage ; if for this Opinion of his any Anticanonist should dream, that he died in the Catholic Faith of Matrimonial Sacraments, let him consult Sir Edward Coke in the Third part of his Institutes, where he doth not only allow of that Member of the foresaid distinction, but withal says, that in the Case of Divorce à Mensa & Thoro the second Marriage is void, living the former Wife or Husband . Yet in Bury 's Case he reports it to have been adjudged, that by a Divorce the Marriage is dissolved à vinculo Matrimonii; and also resolved, that admitting a second Marriage to be voidable, yet it is adjudged that the same doth remain in force until it be dissolved; and that the Issue born during such second Coverture is a lawful Issue to inherit the Land .

6. Touching the kinds and effects of Divorce, whether Divorce à vinculo Matrimonii, or separation only à Mensa & Thori, with the causes thereof; the Divines and Lawyers are of different Opinions, and each of these divided among themselves; some conceive, that as there be Divorces Ex Causa praecedente, so there are some Ex Causa subsequente, as Causa Adulterii, and that Adultery dissolves the very Bond of Matrimony, which consisteth in their being one Flesh. And whereas it is written, That whosoever shall Marry her that is Divorced, committeth Adultery , they will have it to be meant only of such as shall Marry her who is Divorced for any other cause or reason, than for Fornication; which they infer from the former part of Mat. 5. 32. that whosoever shall put away his Wife, saving for the cause of Fornication, causeth her to commit Adultery; so that for the cause of Fornication it is lawful to put her away, and whosoever shall Marry her that is (say they) Divorced for any other cause, committeth Adultery; whence they would infer, that a Remarriage after Divorce for the cause of Fornication is not forbidden; And as for that Divorce or Separation à Thoro & Mensa, they look on it as no current Coin, not having (as they pretend) Caesar 's Image or Superscription thereon, but seem very positive in affirming that Pha • isaei interrogabant Christum de dimissione quoad vinculum, & non quoad Thorum & mensam. It is true indeed, by the Judicial Law a Woman Divorced from her Husband in causa Adulterii might be another Mans Wife ; which is no contradiction to Mat. 5. 22. if the Divorce there mentioned be à vinculo. But that which such as are for Post-repudiary Marriages much insist on, is that which the Reverend Mr. Beza hath on the like place, Qui hinc colligunt (says he) post Repudium Nullum esse secundo Matrimonio locum, altera parte existente, inepte colligunt; loquitur enim Christus de Repudiis apud Judaeos usitatis, inter quae numerari non potest Repudium ob Adulterium, cum Adulteros ex lege oportet Capitali poena plecti.

(7). If ingressus in Religionem be (as some understand it) a kind of Mors Civilis, then it should seem it might be for that reason that in such case it was lawful for the other Party convolare ad secundas Nuptias, for by the 118 Canon of Egbert Archbishop of York An. 750. called Canon Africa • ensis, in exceptionibus suis e Canonibus Patrum Concinnatis, it was Lawful so to do, the words of the Canon are, Si vir sive Mulier ex consensis Religionem ceperit, licet alterum accipere novum conjugium; But from hence no Argument can be drawn to prove the Lawfulness thereof in Causa Divortii. The Cardinal of Segutium in his summa Hostiensis seems to be of Opinion that it is Lawful in case of Divorce to Marry again, the words of that famous Canonist are,