—NOW, quoth _Didius_, rising up, and laying his right hand with his
fingers spread upon his breast——had such a blunder about a
christian-name happened before the Reformation——[It happened the day
before yesterday, quoth my uncle _Toby_ to himself]—and when baptism
was administer’d in _Latin_—[’Twas all in _English_, said my
uncle]——many things might have coincided with it, and upon the
authority of sundry decreed cases, to have pronounced the baptism null,
with a power of giving the child a new name—Had a priest, for instance,
which was no uncommon thing, through ignorance of the _Latin_ tongue,
baptized a child of Tom-o’stiles, _in nomine patriæ & filia & spiritum
sanctos_—the baptism was held null.——I beg your pardon, replied
_Kysarcius_——in that case, as the mistake was only the _terminations_,
the baptism was valid——and to have rendered it null, the blunder of the
priest should have fallen upon the first syllable of each noun——and
not, as in your case, upon the last.
My father delighted in subtleties of this kind, and listen’d with
infinite attention.
_Gastripheres_, for example, continued _Kysarcius_, baptizes a child of
_John Stradling_’s in _Gomine_ gatris, &c. &c. instead of _in Nomine
patris_, &c.——Is this a baptism? No—say the ablest canonists; in as
much as the radix of each word is hereby torn up, and the sense and
meaning of them removed and changed quite to another object; for
_Gomine_ does not signify a name, nor _gatris_ a father.—What do they
signify? said my uncle _Toby_.—Nothing at all——quoth _Yorick._——Ergo,
such a baptism is null, said _Kysarcius._——
In course, answered _Yorick_, in a tone two parts jest and one part
earnest.——
But in the case cited, continued _Kysarcius_, where _patriæ_ is put for
_patris, filia_ for _filii_, and so on——as it is a fault only in the
declension, and the roots of the words continue untouch’d, the
inflections of their branches either this way or that, does not in any
sort hinder the baptism, inasmuch as the same sense continues in the
words as before.——But then, said _Didius_, the intention of the
priest’s pronouncing them grammatically must 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[17]
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.”_[18] 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[19] kin to her child.——
And what said the duchess of _Suffolk_ to it? said my uncle _Toby_.
The unexpectedness of my uncle _Toby_’s question, confounded
_Kysarcius_ more than the ablest advocate——He stopp’d a full minute,
looking in my uncle _Toby_’s face without replying——and in that single
minute _Triptolemus_ put by him, and took the lead as follows.
’Tis a ground and principle in the law, said _Triptolemus_, that things
do not ascend, but descend in it; and I make no doubt ’tis for this
cause, that however true it is, that the child may be of the blood and
seed of its parents——that the parents, nevertheless, are not of the
blood and seed of it; inasmuch as the parents are not begot by the
child, but the child by the parents—For so they write, _Liberi sunt de
sanguine patris & matris, sed pater & mater non sunt de sanguine
liberorum._
——But this, _Triptolemus_, cried Didius, proves too much—for from this
authority cited it would follow, not only what indeed is granted on all
sides, that the mother is not of kin to her child—but the father
likewise.——It is held, said _Triptolemus_, the better opinion; because
the father, the mother, and the child, though they be three persons,
yet are they but (_una caro_[20]) one flesh; and consequently no degree
of kindred——or any method of acquiring one _in nature._——There you push
the argument again too far, cried _Didius_——for there is no prohibition
_in nature_, though there is in the Levitical law——but that a man may
beget a child upon his grandmother——in which case, supposing the issue
a daughter, she would stand in relation both of——But who ever thought,
cried _Kysarcius_, of laying with his grandmother?——The young
gentleman, replied _Yorick_, whom _Selden_ speaks of——who not only
thought of it, but justified his intention to his father by the
argument drawn from the law of retaliation.—“You laid, Sir, with my
mother,” said the lad—“why may not I lay with yours?”——’Tis the
_Argumentum commune_, added _Yorick._——’Tis as good, replied
_Eugenius_, taking down his hat, as they deserve.
The company broke up.
[17] Vide Swinburn on Testaments, Part 7. §8.
[18] Vide Brook Abridg. Tit. Administr. N. 47.
[19] Mater non numeratur inter consanguineos, Bald. in ult. C. de
Verb. signific.
[20] Vide Brook Abridg. tit. Administr. N .47.