Lancaster University: Working Paper (2013)
Theory and Practice in Scotland and Elsewhere Medieval Scotland’s law on bastardy is set out in the lawbook Regiam Majestatem (c.1320): ‘No bastard or other person not born in lawful wedlock can be an heir’; ‘a person begotten or born before his father subsequently marries his mother … cannot under any circum- stances be treated as an heir or allowed to claim the inheritance’; and ‘a bastard … can have no heir except the heir of his body born in wedlock’. Regiam was copying the English Tractatus de legibus et consuetudinibus regni Anglie (c.1185)2 – and of course both texts are stating the rules that became standard across most of Western Europe in the twelfth century, following both the tightening of marriage laws imposed by Gregorian Church Reform, and the ‘feudal’ shift in succession practice away from kin-groups towards primogeniture (including female inheritance).
Before the new rules, bastards were not necessarily disadvantaged within their male kinship groups, any of whose senior members could become head of their kin; but after lay society’s ‘Gregorianization’ they were excluded from the inheritance networks of their paternal houses or domus, and also from those of their siblings and other collaterals. In a sense, bastards were made kinless – and indeed came to be regarded in theory as polluted offspring of corrupt stock, ‘a kind of monstros-ity’.