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22.10.07 Marshall, Illegitimacy in Medieval Scotland, 1100-1500

22.10.07 Marshall, Illegitimacy in Medieval Scotland, 1100-1500

Illegitimacy was an important issue in the Middle Ages. An individual born outside of marriage could be at a legal disadvantage throughout their entire life. Given the importance of cultural variation in the medieval era, it is necessary to understand whether the implications of illegitimacy varied across regions. Susan Marshall takes up this challenge with her study on illegitimacy in medieval Scotland. While others have studied illegitimacy in the Middle Ages, [1] none have focused primarily on Scotland. Marshall argues that the thirteenth century was a key era for the issue of illegitimacy in Scotland. With the Church’s encouragement, the Scots began to see illegitimacy as a legal hindrance to kingship and heirship. But illegitimate Scots were not completely shut out. They could still be legitimated and inherit property. Illegitimacy was one factor among many when marriage and inheritance were concerned, and it could be overcome.

Marshall begins by examining how marriage and legitimacy was treated in the canon law. Because legitimacy/illegitimacy was inextricably linked to marriage, the Church successfully claimed jurisdiction over both issues from the twelfth century onwards. While Gratian’s Decretum avoided delving into the issue of legitimacy, the Decretals of Gregory IX did. Building upon Roman law, canon law recognized two categories of illegitimate children: those born to parents who had a legal impediment which prevented them from marrying (spurii) and those born to parents who could marry but had not done so (naturales). With the decretal Tanta in 1172, canon law recognized children conceived before the marriage of their parents were legitimate if their parents married before they were born--provided that the marriage was not clandestine. Papal dispensation could also make children born from illicit liaisons legitimate, primarily those children born to parents who married without knowledge of a legal impediment preventing their union. The cost for such a dispensation was large--in 1465-1471 it cost most Scottish couples six florins g.c.--but seems to have fluctuated depending on the circumstances of each case. The Church sought to extend legitimacy of children whenever possible if the law concerning marriage was followed.

Marshall next examines the relationship between illegitimacy and inheritance in medieval Scottish law. In theory, illegitimate children could not inherit or hold high office in Scotland. Furthermore, a bastard could only pass on property to their own legitimate children. She focuses on the Regiam Majestatem, the earliest extant Scottish law treatise, dating to the fourteenth century. It stated that an illegitimate offspring could not inherit even if the parents married later, departing from canon law. It also held that the secular courts were to base the legitimacy/illegitimacy of an individual upon the findings of ecclesiastical courts. Marshall disputes that the Regiam Majestatem was reflective of Scottish legal practice, in contrast to a long line of previous historians. Based upon her analysis of medieval law records, she argues that Scottish legal practice most likely accepted canon law’s legitimization of children if their parents married later. Extant bastardy cases rarely delve into the grounds on which an individual’s legitimacy was considered doubtful. Additionally, Scottish legal terminology does not distinguish between the two types of bastards outlined in the Regiam Majestatem. This leads Marshall to posit that Scottish legal culture allowed illegitimate children to escape the legal consequences of their illegitimate status to a much greater extent than English legal culture. Both the king and pope could make an illegitimate person legitimate. The king could also authorize an illegitimate person to inherit lands or bequeath them to heirs.

The next two chapters discuss illegitimacy and royal succession, examining the implications for individuals. Chapter 3 focuses on the centuries before the Great Cause while chapter 4 examines from the Great Cause to James I. Marshall uses examples to analyze what role illegitimacy played in succession to the throne of Scotland. Based on examples involving Mael Coluim III, William the Lion, and Alexander II, she argues that the meanings attached to illegitimacy changed from the twelfth to the mid-thirteenth centuries. At the beginning of the era, illegitimacy did not disqualify a candidate from succeeding to the throne. By the mid-thirteenth century, it could. The Scottish succession crisis of the early fourteenth century was a defining moment which illustrates that legitimacy of birth mattered in determining who could become king. Contenders for the throne recognized that bastardy could hinder their claims and subsequently omitted the illegitimacy of their ancestors in their petitions. Marshall claims that though legitimacy mattered for succession, it was not necessarily the most important issue. Contemporaries seem to have recognized that it still might be possible for illegitimate sons to claim the throne. She suggests that there seems to have been a deliberate policy of ensuring illegitimate sons did not establish lineages which might lay claim to the throne someday, using Robert I’s eldest son Robert Bruce of Liddesdale as an example. She also points out that Robert II’s eldest son John, born before the marriage of his mother and father and legitimated through papal dispensation, was recognized by royal decree and the Scottish parliament as heir to the throne. Even the assassination of James I needed to be grounded on something more substantial than the simple claim that legitimated sons could not inherit. Legitimacy of birth was not the most important issue in inheriting the throne.

After spending so much time on illegitimate men, Marshall turns to illegitimacy and women. Sybilla, daughter of Henry I of England, was the only illegitimate daughter to become a queen of Scotland when she married Alexander I in the twelfth century. Marshall asserts that in later centuries the value of illegitimate royal daughters decreased. Although they might not be able to marry a king, they could still expect to marry nobles of high rank. The illegitimate daughters of William the Lion, Robert I, and James IV married into noble families in Scotland and England. Regardless of the century, illegitimate royal daughters were still valuable in furthering political alliances and influence. The sexual conduct of queens and princesses was, however, very important. An illegitimate child could ruin the prospects of an unmarried royal woman. This seems to have been the case with Margaret Stewart’s illegitimate pregnancy. She never married and lived at a Cistercian nunnery for years.

The next chapter examines how illegitimacy impacted ecclesiastical careers and “sacrilegious bastards.” Marshall begins with a good introduction on how canon law treated illegitimacy and clerical careers. Canon law saw illegitimacy as an impediment to ordination and the exercise of sacred ministries. However, it also recognized three types of papal dispensations for illegitimacy: ex defectu natalium, de uberiori, and ubi pater. They respectively allowed for an illegitimate son to be ordained, to progress to a higher ecclesiastical office, and to minister in the same clerical institution as their parent. It is by tracking dispensations that Marshall identifies illegitimate sons who became bishop in Scotland. She finds that there were nine known Scottish bishops in the thirteenth century who were illegitimate, one in the fourteenth century, and eleven in the fifteenth century. She suggests that the discrepancy for the fourteenth century may have been due to concerns by the Scots that the papacy would reject nominations for episcopal office that were illegitimate. Marshall also discusses the illegitimate offspring of priests, monks, and nuns. She finds that secular clergy who fathered illegitimate children might continue their ecclesiastical careers--even becoming bishop in some instances.

The last chapter examines illegitimacy in political life. Marshall attempts to provide a roughly chronological organization to the chapter. She states that the spread of legitimate primogeniture in the thirteenth century displaced some illegitimate individuals who could have inherited. Nevertheless, in the fourteenth century being from noble blood was still more important than illegitimacy--several illegitimate individuals held earldoms. The situation changed a bit in the fifteenth century. The few illegitimates with earldoms were all members of the royal family.

Numerous tables are provided throughout the book showing lineages of Scottish royalty or claimants to the throne. This is a welcome addition since it is quite helpful in ensuring that the reader understands the family dynamics under discussion. Marshall also includes two appendices documenting the illegitimate offspring of Scottish kings. These are also useful. A timeline of key events concerning Scottish illegitimate children is also provided at the end of the book.

The strongest parts of Marshall’s study are the first two chapters. Marshall provides an understandable overview of illegitimacy in medieval canon law. This will be useful to any scholars approaching the subject for the first time, regardless of whether they study medieval Scotland. Perhaps the most interesting and compelling argument is that the Regiam Majestatem was not reflective of actual Scottish practice. It challenges decades of scholarship and shows that the legal implications of illegitimacy in Scotland were fundamentally different than in England. This is a finding which is of great importance.

The weaker aspects of Marshall’s study are her arguments based upon the suspected or possible illegitimacy of claimants to the Scottish throne. While Marshall is quite careful in her discussion concerning contemporary sources, there is simply not enough known information concerning the legitimacy/illegitimacy of certain individuals, such as Domnall Bán mac Uilleim, to make a strong argument. This means that part of her argument depends upon certain assumptions. Furthermore, Marshall’s discussions upon illegitimacy and succession neglects to fully take into account the role of politics. There was undoubtedly much political maneuvering, and illegitimacy was likely of less importance than force. A much less convincing argument concerns the decrease in bishops from illegitimate backgrounds during the fourteenth century. Marshall suggests that the Scots refrained from nominating illegitimate men to bishoprics due to concerns that the papacy would reject them because of their illegitimacy. It seems improbable that it would last a whole century when illegitimate men became bishop in the thirteenth and fifteenth centuries. Marshall seems to recognize this and calls for other investigations into the matter (194). Ultimately, much of these criticisms are due to a lack of written historical records. Marshall attempts to do too much with too little.

Overall, Marshall’s study provides insight into illegitimacy in medieval Scotland. While some of its points are more convincing than others, it explores an issue which has often been based on assumptions. Marshall contributes much to our understanding of illegitimacy.



1. Sara McDougall, Royal Bastards: The Birth of Illegitimacy, 800-1230 (New York: Oxford University Press, 2017); Chris Given-Wilson and Alice Curteis, The Royal Bastards of Medieval England (London: Routledge & Kegan Paul, 1984).