Title XVII: Which Children Are Legitimate

Latin source headnote: A natural child, begotten of an unmarried man and an unmarried woman, is legitimated by the subsequent marriage of the parents, even as regards inheritance.

Alexander III.

H., bearer of the present letters, complained to us that, when he took as wife a certain woman, the niece of R., the aforesaid R., the woman’s paternal uncle, endeavors to disinherit her because she was born before the betrothal of her mother, although afterward, as is said, the father of the aforesaid woman took her mother as wife. Therefore, by commanding through apostolic writings we order your fraternity that, if it is so, notwithstanding any contradiction or appeal, you adjudge her to be legitimate, prohibiting the aforesaid R. on our part and yours from bringing molestation or burden upon the often-mentioned woman and her heirs concerning the paternal inheritance on this occasion. But if he presumes to act contrary to this, strike him with ecclesiastical severity with the remedy of appeal removed.

Latin source headnote: When a marriage contracted in the face of the Church is separated, children begotten or conceived before the sentence are legitimate.

The same.

Since a sentence of separation was canonically rendered between I. Vetus, your fellow citizen, and the woman T., their children, who were born before the sentence itself, and he who was then conceived, ought not to sustain loss from this, since their parents are known to have publicly contracted marriage with each other without contradiction of the Church. Therefore we decree that their children whom they had before the separation, and those who had been conceived before the sentence was rendered, are to be held no less legitimate, and that they succeed to the paternal goods by hereditary right and are nourished from the resources of their parents. Therefore, through apostolic writings we order your whole body that you not prohibit the aforesaid children of the aforementioned I. and the aforesaid woman from succeeding to the paternal goods and being nourished from them, nor permit molestation or burdens to be brought upon them by anyone on the occasion of the separation between their parents.

Latin source headnote: One stands by the word of a man and woman who deny that someone is their son, unless the contrary is proved by indications and witnesses.

The same, to the Archbishop of Rouen.

Your letters transmitted to us contained that, when N., your citizen, had nourished a certain boy until youth, his wife M., then not betrothed to him, cohabiting with him, afterward, as is said, he lawfully betrothed her and received sons from her. When these sought the paternal inheritance, the aforesaid young man contradicted them, conducting himself as son and heir, although he was called a bastard by the neighborhood, which believed him to be their son. But the aforesaid N. and his wife Matilda denied that the aforesaid young man was their bastard or lawful son, but said that they had nourished him from a regard for piety. But when the question had been moved before you, and the aforesaid young man was bound with the bond of excommunication because he was unwilling to stand by the law, you wished to consult us as to what you ought to do concerning this. Concerning this, therefore, We respond thus to your consultation: in such a case one must stand by the word of the man and woman unless it is established to you by certain indications and witnesses that the aforementioned young man is their son.

Latin source headnote: The offspring whom a wife conceived from adultery while her husband was living is illegitimate, whether she remains with the adulterer or with the husband.

The same, to the Bishops of Exeter and Winchester and the Abbot of Hereford.

The cause which—(And below: Compare chapter 17, On the Office of a Delegated Judge, I. 29.) If, after the parties have been summoned before your presence, it is lawfully established to you that the often-mentioned Agatha was born of the woman Anelina during the time of Alan, her husband, while she was remaining with him as with her husband, or while R., the father of the said Agatha, publicly kept A. herself while she still had a husband, adjudge that she was not the lawful daughter of the same R., because she could not be a wife who, staining the bed of her husband, presumed [both] to be joined and to cohabit with another while he lived. Moreover, etc. (Compare chapter 3, On Fraud and Contumacy, II. 14.)

Latin source headnote: A question of birth, opposed to one seeking an inheritance before a secular judge, is to be referred to an ecclesiastical judge. This is what it says, and the text is very noteworthy and capable of being cited.

The same, to the Bishop of Exeter and the Abbot of Hereford.

R., the bearer of the present letters, coming to our presence not without great danger to his body, set forth to us in his complaint that, although his grandfather had had two wives, from one of whom his father proceeded, while from the other he begot Hugh, his paternal uncle, the same [Hugh] violently detains forty acres of land which fell to him and to the father of the same R., and is unwilling to furnish to the same R., who ought to succeed to the paternal goods, the portion due. But when the same R. had drawn H. into a lawsuit before a secular judge concerning the inheritance of the grandfather of the same R., the father of the said H., he presumed to object to him that his father had not been born of a lawful marriage, and that therefore he could claim nothing [for himself] from the inheritance of his late grandfather by right of succession. But finally, when the question of birth had for a long time been treated before our venerable brother the Bishop of Norwich, an appeal was made to our hearing. But, when he came, the other party disdained to present himself to us either in person or through another. Therefore, being unwilling for the case itself to be prolonged any further, committing it to your experience, by apostolic writings we command your discretion that, after summoning both parties before your presence and more fully hearing and considering the arguments on each side, you terminate the case concerning the question of the birth of the father of the same R. within two months after the receipt of these letters, with the obstacle of appeal removed. But if within two months the aforesaid H. cannot lawfully prove what he objected to him concerning the paternal inheritance, then intimate to the secular lord, under whose judgment the case concerning the inheritance is being conducted, that on account of the question of birth he is not to omit to hear and decide the case concerning the inheritance.

Latin source headnote: Natural children are legitimated through a subsequent marriage of their parents, but spurious children are not. This is what it says, by adhering to the words of the letter; and it is a famous chapter and is cited daily in both forums.

The same, to the Bishop of Exeter.

So great is the force of marriage that those who were begotten beforehand are held legitimate after the marriage has been contracted. But if a man, while his wife is living, has known another woman and has received offspring from her, although after the death of his wife he marries the same woman, the son will nevertheless be spurious and is to be repelled from the inheritance, especially if either of them contrived anything toward the death of the prior wife, since they could not contract a lawful marriage with one another.

Latin source headnote: The Church does not take cognizance of a civil case between laymen; it does take cognizance, however, of whether someone was born of a lawful marriage.

The same, to the Bishops of London and Worcester.

We some time ago committed to you for termination the case which is known to be conducted between R. and F. concerning the fact that the mother of the already-mentioned R. is said not to have been born of a lawful marriage. But because in our letters we caused it to be inserted that, before entry into the principal case, you were to cause the often-mentioned R. to be restored, with appeal ceasing, to possession of [their] entirety, of which he was possessor when his grandfather took up the journey of setting out for Jerusalem, if he had been despoiled of that possession through violence: we, considering that it pertains to the king, not to the Church, to judge concerning such possessions, lest we seem to derogate from the right and dignity of our dearest son in Christ Henry, king [and prince] of the English, who, as we have received, was moved and disturbed because we wrote concerning the possessions, since he asserts that judgment over them pertains to himself, will and, by apostolic writings, command your fraternity that, leaving judgment over the possessions to the king, you take fuller cognizance of the principal case, namely whether the mother of the aforesaid R. was born of a lawful marriage, and terminate a case of this kind according to the tenor of our other letters, with appeal removed; although it seems incongruous that the marriage of the mother of the aforesaid R. should be attacked, which, as is said, was not attacked while she was living.

Latin source headnote: If a woman, separated from the first man by a judgment of the Church, contracts with a second while the first is living, the offspring whom she received from the second will be legitimate.

The same, to the Bishop and Archdeacon of Vicenza.

It has been brought to our hearing that, when H., son of the late Lazarus, had crossed to the regions of Constantinople and, remaining there for ten years and more, did not return to I., his wife, she lodged a complaint against him before I., formerly Bishop of Vicenza, of good memory, and alleged likewise that she could not wait for him any longer. But the bishop, as a provident and discreet man, commanded the parents of the aforesaid man to send for him and recall him to his own country. And when, after a long space of time had elapsed, the aforesaid man did not return to his own country, the bishop, in the sight of the Church and after hearing the arguments of the woman, promulgated a sentence of separation between them and granted the woman full faculty to marry another man. Therefore, because the truth of this matter is not established to us, by apostolic writings we command your discretion that you diligently investigate the matter itself, and, if it is established to you that the bishop pronounced a sentence of separation between them, you adjudge legitimate her sons whom she begot of the other man, to union with whom she passed by authority of the aforesaid bishop without question and contradiction by the Church, not permitting them to be excluded from the inheritance on this occasion. And if anyone wishes to strive against this, by apostolic authority you are to impose perpetual silence upon him.

Latin source headnote: Children born of a clandestine marriage approved by the Church are legitimate. This is what it says, by adhering to the letter.

The same, to the Bishop of Beauvais.

What to us—(And below: [Compare chapter 2, On Clandestine Betrothals, IV. 3.]) But if any have been begotten of a clandestine marriage afterward approved and held ratified by the Church, adjudge them legitimate children and heirs.

Latin source headnote: Those born of a marriage contracted contrary to the justice of public propriety are illegitimate and are to be excluded from the inheritance of their parents. And hold this case in mind, because it often happens through ignorance.

Celestine III, to the Archbishop of York.

When it was reported to us—(And below:) We respond in this manner to your fraternity: because the justice of public propriety prohibited it, marriage could not be contracted between them, and the marriage contracted ought to have been separated; and through this, since the children are excused neither by permission of the Church nor by paternal ignorance, they do not seem in any respect to be admitted to the succession of the paternal goods.

Latin source headnote: To prove offspring illegitimate, it does not suffice to prove an impediment to the marriage, if the marriage was contracted in the face of the Church.

The same.

It has indeed come to us from the representation of the widow L. that, although a marriage had been lawfully celebrated between G., her father, and A., her mother, and they remained peaceably for as long as they lived, after their death certain persons, asserting that she had been received from an unlawful marriage, attempt to remove her from the paternal inheritance as illegitimate. Therefore, by apostolic writings, we command your discretion that, if it is so, by our authority you declare the said widow legitimate.

Latin source headnote: One stands by the statement of witnesses who prove someone legitimate, although the report of the neighborhood and the treatment by the parents holds the contrary.

Innocent III.

Through your letters you intimated to us that R., having received offspring from a certain woman whom, according to the opinion of the greater part of the neighborhood, he kept as a concubine, afterward married one woman and, when she had died, another; and she from whom he had received offspring joined another man to herself. But in the course of time the same R., in the presence of many, affirmed by his own oath that he had first pledged as wife the woman whom he had seemed to keep as a concubine before he had begotten a son of her; and afterward, when he had lived for six years and more, while he was at the point of death, instituting in his testament as heir the one whom he had received from her, he called him his legitimate son. But when it had been committed to your inquiry and decision whether the son so received was a legitimate heir of R. himself and was to be admitted to his patrimony, you—besides the fact that from a certain decretal of Pope Alexander, our predecessor of good memory, you believed that the word of the man and woman was to be stood by concerning this—after receiving witnesses produced by the son of the same R., through whom he lawfully proved that the aforesaid R. had pledged his mother in the chapel of Saint Sergius, adjudged him to be the legitimate heir of R. himself. But we, considering that what is done in truth is of greater weight than what is conceived in pretense, although the already-mentioned R., when, having dismissed her whom he had kept as a concubine, he passed to other vows, seems by that very deed to have denied the marriage that had been celebrated between them, nevertheless, because the betrothal proved through lawful witnesses shows that they had been joined matrimonially, whether the betrothal itself was of the present, so that through lawful consent expressed by words of the present the bond of marriage was celebrated between them, or was through words of the future followed by carnal union, relying not so much on the decretal of our said predecessor, which speaks in a dissimilar case, as on the proofs introduced, we respond that you proceeded lawfully, confirming your sentence by apostolic authority, and we fortify it by the protection of the present writing, by apostolic authority enjoining upon you by the present letters that, a warning having been premised, through ecclesiastical censure you cause the sentence itself to be inviolably observed. [Given at Rieti, on the third day before the Nones of August, 1198.]

Latin source headnote: In the lands of the Church the Pope can freely legitimate illegitimate persons, but in the lands of others he cannot, unless for very arduous causes, or unless in spiritual matters; then, however, he is understood indirectly and by a certain consequence to legitimate them also with respect to temporal matters. Yet this last point is not without scruple. This is what it says according to the understanding that pleases Panormitanus, and it is a difficult and very famous chapter.

The same, to the nobleman G. of Montpellier.

Through our venerable brother the Archbishop of Arles, coming to the Apostolic See, your humility supplicated us that we should deign to adorn your sons with the title of legitimation, so that the objection of their birth would not harm them so as to prevent them from succeeding you. That the Apostolic See has full power concerning this, however, appears from the fact that, after consideration of various causes, it has dispensed with certain persons begotten less than legitimately—not only natural children, but also adulterine children—thus legitimating them for spiritual acts so that they can be promoted as bishops. From this it is believed more likely and reckoned more probable that it is able to legitimate them for secular acts, especially if besides the Roman Pontiffs they recognize among men no other superior who has the power of legitimating; because, since greater providence as well as authority and fitness is required in spiritual matters, what is granted in the greater seems to be lawful also in the lesser. This also seems capable of being proved through a similar case, since by the very fact that someone is raised to the summit of episcopal dignity, he is exempted from paternal power. Moreover, even if a mere bishop knowingly ordained another’s slave as a priest, although the ordainer would be bound to make satisfaction to the master according to the canonical form, the ordained man would nevertheless escape the yoke of servitude. Indeed, it would seem monstrous that one who was made legitimate for spiritual actions should remain illegitimate with respect to secular acts. Hence, when a dispensation is made in spiritual matters, consequently a dispensation in temporal matters is understood. The Apostolic See, however, can freely effect this in the patrimony of blessed Peter, in which it both exercises the authority of the Supreme Pontiff and executes the power of the supreme prince. Therefore, since from these things the authority of legitimating seemed to reside with the Roman Church not only in spiritual matters but also in temporal matters, the same archbishop was humbly requesting on your behalf that we grant your sons grace concerning this, on account of your merits and those of your progenitors, who have always persisted in devotion to the Apostolic See. But he seemed to draw greater boldness for requesting from the fact that he was not compelled to seek an example far away, but was able to allege in favor of a petition of this kind what he said that we ourselves had done in a similar case. For since our dearest son in Christ Philip, the illustrious king of the French, dismissed our dearest daughter in Christ I., the illustrious queen of the French, and afterward received a boy and a girl from another woman brought in over her, and you similarly, after the lawful wife had been excluded, brought in another woman over her, from whom you received sons, it was believed that the benignity of the Apostolic See should dispense with yours just as with the sons of the same king, especially since greater necessity commended it, and you are more specially subject to us: for the king of the French received from the queen of the French, formerly of illustrious memory, a lawful heir, who is hoped and believed to be about to succeed him upon the throne of the kingdom; but you do not have from your lawful wife a male heir who may succeed you both in devotion to us and in your own inheritance. Moreover, since the king himself is subject to us in spiritual matters, you are subject to us both in spiritual and in temporal matters, since you possess part of your land from the Church of Maguelone, which it temporally recognizes through the Apostolic See; wherefore the same archbishop asserted that, with the Church of Maguelone mediating, you are temporally subject to us. But if the truth is diligently inspected, not a similar but a very dissimilar matter is found. For the king himself was separated from the aforesaid queen by sentence through the Archbishop of Reims, of good memory, legate of the Apostolic See; but you separated your wife from yourself, as is said, by your own rashness. He also brought in another woman before the prohibition against contracting with another had reached him, from whom he is known to have received twin offspring; but you attempted to bring in another woman in contempt of the Church, on account of which the Church itself exercised against you the sword of ecclesiastical vengeance. Moreover, the king himself objected against the marriage of the aforesaid queen an impediment of affinity and introduced witnesses before the aforesaid archbishop; because his sentence was quashed solely on account of the judicial order not having been observed, after the restoration of the [aforesaid] queen we considered that other judges should be deputed to him concerning this. But you objected to your wife nothing as is asserted that would induce a separation, since, even if fidelity of the bed is one of the three goods of marriage, nevertheless its violation would not have violated the conjugal bond. Therefore, as long as the question of the affinity objected is pending, it can not without reason be doubted whether the sons of the same king were legitimate or illegitimate. For if the affinity is proved, it will appear that the aforesaid queen is not the wife of the king, and by consequence the other woman will seem to have been lawfully joined to him and to have borne him legitimate sons. But concerning yours, neither do you yourself propose that they were born legitimate, nor is this presumed by any reason. Moreover, since the king himself recognizes no superior at all in temporal matters, without injury to another’s right he was able to submit himself in this matter to our jurisdiction, and did submit himself. In this it perhaps would seem to some that he was able to dispense by himself, not as a father with sons, but as a prince with subjects. But you are known to be subject to others. Hence, perhaps without injury to them, unless they furnished assent to us, you could not submit yourself to us in this matter, nor are you of such authority that you have the faculty of dispensing concerning these things. Therefore, induced by these reasons, when requested we granted grace to the king, drawing a cause both from the Old and from the New Testament that, not only in the patrimony of the Church, over which we bear full power in temporal matters, but also in other regions, after consideration of certain causes, we incidentally exercise temporal jurisdiction—not because we wish to prejudice another’s right, or to usurp power not due to us, since we are not ignorant that Christ answered in the Gospel: “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.” For which reason, when asked to divide an inheritance between two, he said, “Who appointed me judge over you?”—but because, as is contained in Deuteronomy: “If you perceive that a judgment with you is difficult and ambiguous, between blood and blood, cause and cause, leprosy and non-leprosy, and you see words of judgment varying within your gates: arise and ascend to the place which the Lord your God shall choose; you shall come to the priests of the Levitical stock and to the judge who shall be at that time, and you shall inquire of them, who shall indicate to you the truth of the judgment; and you shall do whatsoever those who preside over the place which the Lord has chosen shall say, and you shall follow their sentence and shall not turn aside to the right hand or to the left. But he who acts proudly, being unwilling to obey the command of the priest who at that time ministers to the Lord your God, shall die by the decree of the judge, and you shall remove the evil from Israel.” Indeed, since Deuteronomy is interpreted as the second law, by the force of the word it is proved [in this] that what is decreed there ought to be observed in the New Testament. For the place which the Lord chose is recognized to be the Apostolic See, in such a way that the Lord founded it upon himself [as] the cornerstone. For when Peter, fleeing the city, had gone out, the Lord, wishing to recall him to the place which he had chosen, when asked by him, “Lord, where are you going?” answered, “I come to Rome to be crucified again”; understanding that this had been said for him, he immediately returned to the place itself. The priests of the Levitical stock are our brothers, who by Levitical right exist as our coadjutors in the execution of the priestly office. But the priest or judge over them is he to whom the Lord says in Peter: “Whatsoever you shall bind upon earth shall be bound also in heaven, and whatsoever you shall loose upon earth shall be loosed also in heaven.” He is the vicar of the one who is a priest forever according to the order of Melchizedek, appointed by God judge of the living and the dead. Indeed, he distinguishes three judgments: the first between blood and blood, by which the criminal and the civil are understood; the last between leprosy and leprosy, by which the ecclesiastical and the criminal are denoted; the middle between cause and cause, which is referred to both, ecclesiastical as well as civil. In these, when something is difficult or ambiguous, recourse is to be had to the judgment of the Apostolic See; he who proudly disdains to observe its sentence is commanded to die, and the evil to be removed from Israel, that is, through a sentence of excommunication to be separated, as if dead, from the communion of the faithful. Paul also, that he might expound the plenitude of power, says in writing to the Corinthians: “Do you not know that you shall judge angels? How much more secular matters?” Moreover, the office of secular power is sometimes accustomed to execute its function in itself in some matters, but sometimes in others through other persons. Although, therefore, we considered that a dispensation should be made with the sons of the often-mentioned king of the French, concerning whom it is doubted whether they were legitimate from the beginning, nevertheless, because both the Mosaic and the canonical law detest offspring received from adultery—the Lord testifying that mamzers and spurious persons shall not enter the Church down to the tenth generation, while the canon forbids such persons to be promoted to sacred orders, and secular laws also not only repel them from the paternal succession but even deny them maintenance—we did not consider that assent should be given to your petition, until, if it can be done, both a lighter fault and a freer jurisdiction are shown, although we embrace your person with the arms of special affection and wish to exhibit special grace to you in those things in which we can do so with God and with honor.

Latin source headnote: If a married man, while the first wife is living, contracts with a second woman in the face of the Church while she is ignorant of this, their offspring will be legitimate.

The same, to H. and R., Canons of Benevento.

From the tenor of your letters it became known to us that, when the widow G. sought to have the inheritance of R., her late husband, restored to herself and her ward son by Landulf of Granno and his nephews, together with the fruits received from it, in your presence, you who by our delegation were taking cognizance of the same case, the adverse party was endeavoring to exclude her petition on the ground that it asserted that the same R., husband of the widow herself, had been begotten of adultery, proposing that the father of the said Robert, while his lawful wife was living, brought in over her a certain other woman named Marucia, from whom he begot the aforesaid Robert, husband of the widow herself. But on the contrary the widow’s party responded that, since the aforesaid Marucia, not knowing that the father of the said Robert had another wife, had contracted with him in the face of the Church, the son whom he received from her ought to be held legitimate, since those who are not born of a knowing adulteress ought not to be reputed illegitimate. And when litigation concerning this had continued for a rather long time in your presence, and the opinions of certain prudent men whose counsel you sought disagreed with one another in this matter, you considered that the Apostolic See should be consulted. Therefore we, having understood these and the other things which you intimated to us through your letters, after diligent discussion with our brothers, understanding that the father of the aforesaid R. married his mother in the face of the Church while she was entirely ignorant that he had matrimonially joined another woman to himself, and that while she was considered his lawful wife he received the said R. from her, incline rather in favor of the offspring, reputing the aforementioned R. legitimate with respect to this. Therefore, by apostolic writings we command your discretion that [also] you repute him legitimate, being about to proceed in other matters according to the tenor of our letters, with reason going before. [Given at Rome at Saint Peter’s, on the Ides of October, 1205.]

Latin source headnote: The offspring of infidels who are afterward converted is legitimate, even if the parents are in a degree prohibited by canon law.

The same, to the Bishop of Tiberias.

We rejoice—(And below: [Compare below 8, On the Separation of Spouses, IV. 19.]) Moreover, offspring born of the unions of infidels who contracted with marital affection in the second, third, or a further degree according to their opinion, after the reception of the faith we wish, at the urging of public utility, to be reputed legitimate. [But those who, etc. Compare chapter 8, On the Separation of Spouses, IV. 19.]