My original post was about the use of the word "natural" in Wills. I am still
waiting for you to provide a definition of what "natural" meant in English Civil
Law from one of your Legal Dictionaries.
I do not wish to be sidetracked, but will make the following comments on your post.
'At one point the Child of Parents who married within 12 months of his Birth
was considered legitimate, but less legitimate than those born after
"I assume that Achwr is referring to Scots law, of which I know very little,
rather than English though he does not make it quite clear. Legitimation by
subsequent marriage was possible in Scotland because the law there was based
on canon law."
I was referring to England. The "Robert the Bastard" brought with him a Legal
System, that was based on Roman Law. It was modified gradually over the centuries, as the
interests of the English Monarchy and Ruling Classes required. This is still an ongoing
process. It was this "Roman Law" that allowed him although illegitimate to
inherit the Dukedom of Normandy.
It took several centuries to arrive at a position where precedence was given to a child
born within wedlock, compared with the child born to the same parents within the
proscribed period prior to marriage.
A Statute of Henry III:
Rot. Claus. 20 H. 3. Memb. 3. Dorso. The Law concerning the Preference of the Son born
after Marriage, to the Son
born of the same Woman before Marriage, or Bastard eigne & Mulier puisne.
The wording is that the Muiler puisne should be prefered over the Bastard Eigne.
"However if Achwr is referring to English rather than Scots law, one child
cannot be 'less legitimate' than another; like virginity, there are are no
degrees of legitimacy; one is either a bastard or not. A bastard is a child
both begotten and born out of lawful matrimony. A child begotten out of
lawful matrimony but born within it is legitimate."
As is often said The Law is an Ass. There are cases in medieval law, where a son was born
before the subsequent marriage of the parents, but the marriage took place within the
proscribed period. He was therefore in the eyes of the law considered legitimate. A
younger brother born after the marriage was also legitimate. The child born before
marriage known as a "Bastard Eigne" was considered legitimate enough to hold
offices in "Church" and "State" which a proper Bastard could not. He
however could not inherit lands or titles, this was the prerogative of the eldest son born
after the marriage, known as a "Mulier Puisne"
Both in the eyes of the law, were legitimate, but the one born after the marriage was
considered by the law to be "more legitimate" than the one born to the same
parents "prior to the marriage" but within the prescribed period.
A remnant of this is seen in the Laws relating to Succession to the English Throne. By law
an eldest son born to a Monarch by a woman who later became his wife, is legitimized by
the subsequent marriage. This child however cannot succeed to the throne.
An interesting aside, is that a Bastard was considered in law a free man. The male progeny
of Bond Tenants born out of Wedlock were considered to be Freemen, while their
half-siblings born in Wedlock were Bondsmen like their parents, and were the property of
'Conversely the offspring of a marriage, who's [sic] parents divorced were
therefore "Bastardised". '
Pike, Year Book, 11-12 Edw. III. pp. xx–xxii. The ultimate theory of English lawyers took
no heed of good or bad faith and made the legitimacy of the children depend on the fact
that their parents while living were never divorced.
I wonder whether the Divorce of Charles and Diana "bastardied" William and
Harry? Not that illegitimacy is anything new in the Royal Family, there are doubts about
the parentage of Elizabeth Bois-Lyons.
"Most definitely not in England and Wales."
The window of opportunity for it to have any effect in Wales, was rather small. The
concept of illegitimacy was unkown in Welsh law, and was no barr to inheritance equally
with legitimate offspring. It was only with the Act of Union that came into force in 1536,
that the English model, of primogeniture where only the eldest son could inherit land was
imposed on the Welsh.
The Statute of Wills enacted in 1540 did away with primogeniture. Prior to this Act only
personal property could be bequeathed by Will. A new instrument was created to allow for
land to be disposed of by Will at will. This was known as a "Testament". Hence
the term "Last Will and Testament", and is also probably the origin of the term
The introduction of English Law therefore did not necessarily put an end to the Welsh
Custom of dividing the land equally between the heirs, legitimate and illegitimate. It
simply offered the opportunity not to comply with the ancient tradition, if they were so