The Life and Opinions of Tristram Shandy [129]
have been proved to have gone along with it.--Right, answered Kysarcius; and of this, brother Didius, we have an instance in a decree of the decretals of Pope Leo the IIId.--But my brother's child, cried my uncle Toby, has nothing to do with the Pope--'tis the plain child of a Protestant gentleman, christen'd Tristram against the wills and wishes both of his father and mother, and all who are a-kin to it.--
If the wills and wishes, said Kysarcius, interrupting my uncle Toby, of those only who stand related to Mr. Shandy's child, were to have weight in this matter, Mrs. Shandy, of all people, has the least to do in it.--My uncle Toby lay'd down his pipe, and my father drew his chair still closer to the table, to hear the conclusion of so strange an introduction.
--It has not only been a question, Captain Shandy, amongst the (Vide Swinburn on Testaments, Part 7. para 8.) best lawyers and civilians in this land, continued Kysarcius, 'Whether the mother be of kin to her child,'-- but, after much dispassionate enquiry and jactitation of the arguments on all sides--it has been adjudged for the negative--namely, 'That the mother is not of kin to her child.' (Vide Brook Abridg. Tit. Administr. N. 47.) My father instantly clapp'd his hand upon my uncle Toby's mouth, under colour of whispering in his ear;--the truth was, he was alarmed for Lillabullero--and having a great desire to hear more of so curious an argument--he begg'd my uncle Toby, for heaven's sake, not to disappoint him in it.--My uncle Toby gave a nod--resumed his pipe, and contenting himself with whistling Lillabullero inwardly--Kysarcius, Didius, and Triptolemus went on with the discourse as follows:
This determination, continued Kysarcius, how contrary soever it may seem to run to the stream of vulgar ideas, yet had reason strongly on its side; and has been put out of all manner of dispute from the famous case, known commonly by the name of the Duke of Suffolk's case.--It is cited in Brook, said Triptolemus--And taken notice of by Lord Coke, added Didius.--And you may find it in Swinburn on Testaments, said Kysarcius.
The case, Mr. Shandy, was this:
In the reign of Edward the Sixth, Charles duke of Suffolk having issue a son by one venter, and a daughter by another venter, made his last will, wherein he devised goods to his son, and died; after whose death the son died also--but without will, without wife, and without child--his mother and his sister by the father's side (for she was born of the former venter) then living. The mother took the administration of her son's goods, according to the statute of the 21st of Harry the Eighth, whereby it is enacted, That in case any person die intestate the administration of his goods shall be committed to the next of kin.
The administration being thus (surreptitiously) granted to the mother, the sister by the father's side commenced a suit before the Ecclesiastical Judge, alledging, 1st, That she herself was next of kin; and 2dly, That the mother was not of kin at all to the party deceased; and therefore prayed the court, that the administration granted to the mother might be revoked, and be committed unto her, as next of kin to the deceased, by force of the said statute.
Hereupon, as it was a great cause, and much depending upon its issue--and many causes of great property likely to be decided in times to come, by the precedent to be then made--the most learned, as well in the laws of this realm, as in the civil law, were consulted together, whether the mother was of kin to her son, or no.--Whereunto not only the temporal lawyers--but the church lawyers--the juris-consulti--the jurisprudentes--the civilians--the advocates--the commissaries--the judges of the consistory and prerogative courts of Canterbury and York, with the master of the faculties, were all unanimously of opinion, That the mother was not of (Mater non numeratur inter consanguineos, Bald. in ult. C. de Verb. signific.) kin to her child.--
And what said the duchess of Suffolk to it? said my uncle Toby.
The unexpectedness of my uncle
If the wills and wishes, said Kysarcius, interrupting my uncle Toby, of those only who stand related to Mr. Shandy's child, were to have weight in this matter, Mrs. Shandy, of all people, has the least to do in it.--My uncle Toby lay'd down his pipe, and my father drew his chair still closer to the table, to hear the conclusion of so strange an introduction.
--It has not only been a question, Captain Shandy, amongst the (Vide Swinburn on Testaments, Part 7. para 8.) best lawyers and civilians in this land, continued Kysarcius, 'Whether the mother be of kin to her child,'-- but, after much dispassionate enquiry and jactitation of the arguments on all sides--it has been adjudged for the negative--namely, 'That the mother is not of kin to her child.' (Vide Brook Abridg. Tit. Administr. N. 47.) My father instantly clapp'd his hand upon my uncle Toby's mouth, under colour of whispering in his ear;--the truth was, he was alarmed for Lillabullero--and having a great desire to hear more of so curious an argument--he begg'd my uncle Toby, for heaven's sake, not to disappoint him in it.--My uncle Toby gave a nod--resumed his pipe, and contenting himself with whistling Lillabullero inwardly--Kysarcius, Didius, and Triptolemus went on with the discourse as follows:
This determination, continued Kysarcius, how contrary soever it may seem to run to the stream of vulgar ideas, yet had reason strongly on its side; and has been put out of all manner of dispute from the famous case, known commonly by the name of the Duke of Suffolk's case.--It is cited in Brook, said Triptolemus--And taken notice of by Lord Coke, added Didius.--And you may find it in Swinburn on Testaments, said Kysarcius.
The case, Mr. Shandy, was this:
In the reign of Edward the Sixth, Charles duke of Suffolk having issue a son by one venter, and a daughter by another venter, made his last will, wherein he devised goods to his son, and died; after whose death the son died also--but without will, without wife, and without child--his mother and his sister by the father's side (for she was born of the former venter) then living. The mother took the administration of her son's goods, according to the statute of the 21st of Harry the Eighth, whereby it is enacted, That in case any person die intestate the administration of his goods shall be committed to the next of kin.
The administration being thus (surreptitiously) granted to the mother, the sister by the father's side commenced a suit before the Ecclesiastical Judge, alledging, 1st, That she herself was next of kin; and 2dly, That the mother was not of kin at all to the party deceased; and therefore prayed the court, that the administration granted to the mother might be revoked, and be committed unto her, as next of kin to the deceased, by force of the said statute.
Hereupon, as it was a great cause, and much depending upon its issue--and many causes of great property likely to be decided in times to come, by the precedent to be then made--the most learned, as well in the laws of this realm, as in the civil law, were consulted together, whether the mother was of kin to her son, or no.--Whereunto not only the temporal lawyers--but the church lawyers--the juris-consulti--the jurisprudentes--the civilians--the advocates--the commissaries--the judges of the consistory and prerogative courts of Canterbury and York, with the master of the faculties, were all unanimously of opinion, That the mother was not of (Mater non numeratur inter consanguineos, Bald. in ult. C. de Verb. signific.) kin to her child.--
And what said the duchess of Suffolk to it? said my uncle Toby.
The unexpectedness of my uncle