Chapter

Bastardy in Sixteenth-Century French Legal Doctrine and Practice

Matthew Gerber

in Bastards

Published in print February 2012 | ISBN: 9780199755370
Published online May 2012 | e-ISBN: 9780199932603 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199755370.003.0001
Bastardy in Sixteenth-Century French Legal Doctrine and Practice

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Defining as “bastard” any child born outside of legitimate marriage, sixteenth-century French jurists alleged that all such offspring were tainted with a mark of criminal unworthiness stemming from their illicit origins. This mark, rather than uncertain paternity, was the basis for their exclusion from both paternal and maternal inheritance. Jurists grounded this doctrine on diverse elements of “French law”—a concept originating in this period—particularly the droit de bâtardise, the right of the king to confiscate the estates of extramarital offspring who died without legitimate descendants. The doctrine helped to protect lineal interests, complementing the contemporaneous efforts of the royal courts to assure parental control over marriage choice through the assertion of appellate jurisdiction over disputed nuptials. In spite of the doctrine, children born of parents free to marry continued to inherit from their mothers under the terms of Roman law in the south-eastern province of Dauphiné.

Keywords: bastard; droit de bâtardise; French law; inheritance; marriage; customary law provinces; written law provinces; jurisprudence des arrêts; canon law; roman law

Chapter.  13383 words. 

Subjects: Early Modern History (1500 to 1700)

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