John Fortescue (1385-1479) on the subject of illegitimate children inheriting or having rights of succession to their father’s estate or patrimony:
“The civil [Roman] law [followed on the Continent] legitimates children born before matrimony as well as after, and causes them to succeed to the parental inheritance. But the law of England does not allow children born out of wedlock to succeed, proclaiming them merely natural and not legitimate. The civilians extol their law in this point, because they say that thereby the sin, through which otherwise the souls of the two parties would perish, is absolved by the sacrament of marriage. . . .
“These are answered by those learned in the law of England thus: in the first place they say that the sin of the first intercourse in such a case is not purged by subsequent marriage, though the punishment of the offenders is deservedly mitigated in some measure. They say, also, that these sinners repent by so much the less, the more they consider the laws favourable to such transgressions. By such a consideration they are rendered all the more disposed to commit the sin, and thereby neglect the commands not only of God but also of the Church. So this [civil Roman] law not only participates in the guilt of the offenders, but also deviates from the very nature of a good law since law is a holy sanction commanding what is honest and forbidding the contrary; for this law does not forbid but rather invites wavering minds to do dishonest acts. . . .
“But the law of England in this case operates to a far different effect, for it does not encourage sin, nor favour sinners, but deters them, and threatens them with punishment lest they sin. For indeed, the allurements of the flesh need no encouraging; they need rather restraints. . .
“Hence the [English] law which punishes the progeny of the offender prohibits the sin more effectively than the law which punishes only the guilty. From this you may observe how zealously the law of England prosecutes illicit intercourse when it not only judges the offspring thereof illegitimate but also forbids them to succeed to the parental patrimony. Is not then this a chaste law? Does it not more powerfully and firmly repulse sin than the said civil law, which quickly and almost without penalty remits the sin of lust?”
“And since such a child has not a father at the time of his birth, nature knows not how he can obtain a father after the fact. . . . Therefore it would appear inconsistent that a son born in wedlock to the same woman, whose procreation could not be dubious, should have no share in the inheritance, and the son who does not know his father should displace him in the succession to his father and mother, especially in the kingdom of England, where the elder son alone succeeds to the paternal inheritance. Moreover, a fair arbiter would consider it no less inappropriate, if the son born of disgrace should participate equally in the inheritance, which by the civil law is divided among the males, with a son born of a lawful marriage-bed. . . .
“Moreover, holy scripture reproves all illegitimate offspring, saying in a metaphor, ‘The shoots of the spurious shall not take deep roots nor lay a firm foundation’, Book of Wisdom [Vulgate], chapter iv. The Church also reproves them and it rejects them from holy orders, and though it gives dispensation to them, yet it does not permit them to be of any dignity in the Church of God. It is fitting, therefore, that the law of men should deprive of the benefits of succession those whom the Church judges unworthy of holy orders and rejects from all prelacy, and those whom holy scripture deems inferior in birth to those legitimately procreated.”
Citation: Excerpts from JohnFortescue, De laudibus legum Anglie, secs. XXXIX and XL, written between 1468-1471; not published until 1538.
NOTE: As a citizen of the modern world, I DO NOT personally agree with the sentiments expressed above, but Fortescue was the leading legal authority of the 15th century. He was writing De laudibus as a “treatise” to instruct Henry VI’s son, Edward, while they were living in exile in France, in preparation for Henry VI’s re-adeption to the English crown. In part, Fortescue was attempting to inspire Prince Edward to remain essentially English and not to acquire any of the customs or practices from the Continent.
Fortescue’s analysis has so many implications for the lawfulness and legitimacy of the Beaufort line, and for the arguments that would be raised in 1483 when it was determined that Edward IV was not lawfully married to Elizabeth Woodville, his queen. Sermons preached in 1483 used the same refrain quoted by Fortescue from the Bible – bastard slips shall not take root – undoubtedly adopting his position in terms of whether the illegitimate offspring of Edward IV by Woodville could be in line for succession to the crown. In Fortescue’s learned opinion, they could not under settled English law.