Bracton: Thorne Edition: English. Volume 2, Page 186

Harvard Law School Library

Bracton Online -- English

Volume 2, Page 186

Next

Go to Volume: Page:

[001] before the final judgment of divorce was pronounced, shall nonetheless be held
[002] legitimate and shall succeed to the paternal property by hereditary right and be
[003] supported by parental resources.’¹

How bastards are legitimized.

[005] ²Now we must see how bastards are made legitimate. It is clear that if a man has
[006] natural children by a woman and then marries her, such children are legitimized
[007] by the subsequent marriage³ and considered fit for all lawful acts.⁴ But only for
[008] acts that pertain to the spiritual sphere. In secular matters they are not legitimate,
[009] nor, because of a custom of the realm to the contrary,⁵ are they regarded as heirs
[010] capable of succeeding their parents. ⁶Illegitimates born of unlawful intercourse, of
[011] persons between whom there could be no marriage, are completely excluded from
[012] every benefit.⁷ They are also sometimes legitimized, by a sort of adoption, with
[013] the consent and by the wish of the parents, as where a wife has had a child by
[014] someone other than her husband, and where, though this is in fact true, the husband
[015] has taken the child into his house, avowed him and raised him as his son, or if he
[016] has not avowed him expressly has not turned him away; he will be adjudged
[017] legitimate and his father's heir, whether the husband does not know that the child
[018] is not his or knows or is in doubt, because he is born of the wife,⁸ [that is], provided
[019] it can be presumed that he could have fathered him. The same may be said of a
[020] supposititious child, and thus common opinion sometimes is preferred to truth.⁹

Of the presumption that the issue ought to be legitimate because born of the wife.

[022] But if, in cases such as those above, there is a strong presumption to the contrary,
[023] as where the husband is shown not to have cohabited with his wife for a long time,
[024] because of some serious illness, or if he is frigid or impotent,¹⁰ or if it is proved
[025] that he was out of the realm or province for two years or more (so that it can
[026] confidently be assumed he could not have had access to his wife) and on his return
[027] has found his wife pregnant or with an infant in arms less than a year old,¹¹ such a
[028] son, whether the husband avows and raises him or not, will not undeservedly be
[029] excluded from the succession, for he can be neither son nor heir. But on the other
[030] hand, where the husband is sound and unimpaired and has always been together
[031] with his wife in the province, sharing one roof and one bed, and, whether the issue
[032] was fathered by another or is supposititious, has raised him and taken him as his
[033] son, or even disavowed and ejected him, if he later recognized him as his son in the
[034] presence of honest men who may prove his action if necessary, he can no longer
[035] disavow him¹² and he will be the legitimate son and heir. On this matter may be
[036] found [in the roll] of

Notes

1. X. 4.17.2, cited by Raymund; G’terbock, 62, 127

2-3. Raymund, iv, 24, 2; Richardson in E.H.R., lix, 380

4. Raymund, iv, 24, 3

5. Glanvill, vii, 15

6-7. Raymund, iv, 24, 3; infra 187

8. Infra 204, 255

9. Infra 204

10. D. 1.6.6: ‘si constet maritum aliquamdiu cum uxore non concubuisse infirmitate interveniente vel alia causa, vel si ea valetudine pater familias fuit ut generare non possit, hunc qui in domo natus est, licet vicinis scientibus, filium non esse.’; supra 35, infra 204, iii, 311, iv, 299

11. Ibid.: ‘sed si fingamus afuisse maritum verbi gratia per decennium reversum anniculum invenisse in domo sua placet nobis Iuliani sententia hunc non esse mariti filium.’

12. Infra 204, iv, 299