[1130] Glanville, Tractatus, lib. vii, c. 13: Phillips, II, 402. Idem, c. 14: Phillips, II, 402, gives the form of writ by which a question of valid marriage is referred to the archbishop.
[1131] See, however, Friedberg, op. cit., 51: "Lag aber die Frage vor, haben die Parteien wie Mann und Frau zusammen gelebt, haben sie sich verlobt, war mithin über das Recht der Ehe ['the right of marriage'] keine Entscheidung zu fällen, sondern allein über den factischen Thatbestand, so urtheilte der weltliche Richter." But this led to strange embarrassments. Thus it was in doubt whether a compulsory marriage belonged to the spiritual or to the temporal court: Rolle, Abridgment (1688), I, 340; and "still greater was the doubt in case of the question, whether a second marriage were invalid if the first still existed": Friedberg, op. cit., 51 n. 2; Year Book, 49 Ed. III., 18.
[1132] Pollock and Maitland, op. cit., II, 378. Cf. Friedberg, op. cit., 56. "The canonists themselves having made marriages all too easy, and valid marriages all too difficult, had been driven into a doctrine of possessory marriage." In a case where a valid or canonical marriage could not be proved by the plaintiff, he was given a possessory action, actio spolii, and "in this the defendant will not be allowed to set up pleas which dispute, not the existence of a de facto marriage, but its validity," while the "plaintiff must prove a marriage celebrated in face of the church": Pollock and Maitland, op. cit., II, 379. Cf. Esmein, op. cit., II, 15 ff.
[1133] On the divergence of the temporal and ecclesiastical laws as to legitimacy see Glanville, Tractatus, lib. vii, c. 15: Phillips, II, 403. Compare Swinburne, Of Spousals, 15, 233 ff.
[1134] Friedberg, Eheschliessung, 50; Pollock and Maitland, op. cit., II, 372; Bracton, De leg. et consuetud., foll. 302-4; idem, Note Book, placita 891, 1669, 1718, 1875, Maitland's ed., II, 688; III, 517, 559, 659.
[1135] Ap. Bracton, De leg. et consuetud., fol. 92; Note Book, pl. 891, 1669, 1718, 1875, Maitland's ed., II, 688; III, 517, 559, 659.
[1136] Pollock and Maitland, op. cit., II, 372, 373.
[1137] Glanville, op. cit., lib. vii, c. 15: Phillips, II, 403. For an interesting case, showing that the spiritual court could determine only the question of the validity of marriage, and not that of inheritance, which belonged to the king's courts, see Corpus juris can., c. 17, x, 1, 29; c. 4, x, 4, 17; c. 7; quoted by Friedberg, op. cit., 50 n. 2.
[1138] On "putative" marriages see Esmein, op. cit., II, 33-37; Freisen, Geschichte des can. Eherechts, 857-62; especially Pollock and Maitland, op. cit., II, 373-77.
[1139] "To this agreement between church and state there was the one well-known exception: our temporal courts would not allow to marriage any retroactive power; the bastard remained incapable of inheriting land even though his parents had become husband and wife and thereby made him capable of receiving holy orders and, in all probability, of taking a share in the movable goods of his parents.... But about all other matters the church could have, and apparently had, her way.... 'You are a bastard, for your father was a deacon': that was a good plea in the king's court, and the king's court did nothing to narrow the mischievous latitude of the prohibited degrees."—Pollock and Maitland, op. cit., II, 375, 376. On legitimation through subsequent marriage by the canon law see Esmein, op. cit., II, 37 ff.; Swinburne, Of Spousals, 233 ff.