Legitimation of Children
Church authorities had long maintained their right to determine the circumstances under which illegitimate children could be legitimized and thus, as Peter of Ravenna put it, transformed from nonpersons into persons.
Secular authorities during this period asserted an increased interest in gaining control of this process, and the result was jurisdictional conflict over such matters.[2025] In practice a great deal depended on the interest of the fathers. Some fathers clearly felt a personal concern for their illegitimate offspring and took pains to see that they were properly reared and given the advantages that their parents’ status could afford.[2026] These were probably exceptional, however, and bastard children commonly suffered considerable economic and social disadvantages as a result of the circumstances of their birth.[2027]Among legal writers, the canonists seem to have been more solicitous to improve the lot of bastard children than were civic authorities. Thus, for example, Simone da Borsano (d. 1381) maintained that illegitimate boys had as much right to be promoted to the academic rank of doctor as their legitimate siblings, since “Knowledge is a gift of the Holy Spirit, who bloweth where he Iisteth. ”[2028] The city fathers of Novara, however, barred bastards from membership in the skilled craft guilds of their city and forbade them admission to the city council or to other positions of trust and honor in the town.[2029] Canonists were also more apt than civilians to insist that the child of a married woman, even a prostitute, was presumed to be legitimate. The child of a married woman who lived as the public concubine of a man other than her husband, however, was presumed to be a bastard.2®1 Paulus de Castro remarked with apparent approval on the case of an unmarried woman who bore a son to her lover. The womans mother raised the child and refused to allow the natural father to see him, in order to bring pressure on the boys father to marry her daughter.
Whether this stratagem succeeded, however, Paulus does not tell us.[2030] [2031] [2032] [2033] [2034] [2035] The fourteenth-century records of the Officialis of the diocese of Paris contain a number of cases in which the ecclesiastical courts issued support orders requiring the fathers of natural children to contribute to their support, and other cases have been reported from England in this period.233The city of Lucca enacted unusually detailed provisions for limiting the portion of an estate that illegitimate children could inherit. The wording of the statute shows that the influence of Roman law on this matter was still very much alive.234 Both customary law and statutes often limited the rights of bastards to make valid wills and otherwise to dispose of property, although there was considerable diversity in the way that this matter was handled. In France one group of customs allowed bastards virtually complete freedom to devise property by testament. A second group of customs limited the testamentary rights of bastards to the disposition of certain kinds of property, while a third group of customs, mainly in the south, severely curtailed their testamentary rights—one or two customary law jurisdictions denied bastards the right to make wills at all, but this was exceptional.233 English common law was more inflexible than any of the French customs. The common law, according to the rule confirmed by the Statute of Merton (1236) held that once a bastard, always a bastard, and refused to recognize canonical legitimation.236