Friday, May 25, 2012

Question from Kris - Illegitimacy and female inheritance

Hi~
I have a question about illegitimacy and female inheritance among the nobility. I have a story set in 1588 (in Ireland), and I have a barony that passes through the female line.

My question is this: would illegitimacy (out of wedlock birth) be an obstacle to inheriting the title, if the former title holder were a female? In other words, if a baroness (title holder in her own right) had a child out of wedlock, would that child (also a daughter) be able to inherit the title?

To the extent the problem with inheritance & illegitimacy is that you don't know if the title-holding male is the baby's father, that wouldn't be an issue if the title holder were a female, right? If the title holder is the woman, it's pretty certain the child is descended from the title holder, so would it still be an impediment to inheriting the title?

I'm guessing (hoping) it would be an impediment, but realized that's an assumption, and I should find out.

I love your blog--many thanks!

21 comments:

Anonymous said...

I would think it depends on the terms of the papers creating the title, not on female or male inheritance. When Anne Boleyn was created Marchioness of Pembroke, for example, title was vested in Anne "and her heirs male", not "and her heirs male, lawfully born" ... this meant that any illegitimate child she bore could inherit this title.

Esther

Anonymous said...

Hi Esther~

Thanks so much, and for the example of Anne Boleyn. I didn't realize you could tacitly or explicitly include illegitimate heirs. Very helpful! And sorry for my delay in replying. I sent a response last week, but must have done something wrong, because it didn't show up.

Thank-you!

PhD Historian said...

I am afraid I must challenge Esther's response. Anne Boleyn's grant to the Marquessate of Pembroke did not allow for the title Marquess of Pembroke to be inherited by an illegitmate child. English common law as it existed in the 16th century barred illegitimate issue from inheriting the property or titles of their parents, full stop. No patent of creation could legally contradict that common law practice. That remains true even into the modern period. See, for example, Blackstone's Commentaries on the Laws of England regarding the issue.

Mary R said...

PhD Historian, How did John of Gaunt's children (by Katherine Swynford) get around this? I realize that they were legitimized, but weren't some of them born before his second wife (Constance of Castille) died? Or were the laws different then?

Also wasn't there talk of making Henry Fitzroy legitimate at one time? Or is this just another legend?

I really appreciate your input!

Anonymous said...

Hello all:

That Anne Boleyn's title could descend to an illegitmate son is taken from Eric Ives' "Life and Death of Anne Boleyn" (Blackwell, 2005)at page. 167, with a note citing to BL Harlein MS 303, f. 1;
cf LP, v 1370(1).

Alison Weir says, in "Mistress of Monarchy" (Ballantine, 2010), p. 257, that Richard II legitimized Katherine Swynford's children by letters patent issued in 1397 ... and a special act guaranteed their inheritance rights, citing Froissart (but no page references given).

Esther

PhD Historian said...

Yes, Mary R, some modern historians have speculated that Henry VIII may eventually have tried to legitimate Henry Fitzroy as one part of a larger action intended to make Fitzroy heir to the crown. However, Fitzroy died before Henry VIII made up his mind, so we will never really know what the king actually had in mind. For my own part, I do believe Henry VIII would probably have tried that course of action, had Fitzroy lived and Edward VI not been born. But I rather doubt that the political leaders of the day (Lords, Privy Council, Parliament, etc) would have accepted Fitzroy as Henry IX after the death of Henry VIII. I believe they would have refused Fitzroy and elevated Mary instead, just as they chose Mary over Jane Grey despite Edward VI's clearly stated wishes. But that is just an opinion.

I do not have a copy of Ives's book at hand, so I do not know precisely what argument he presents to suggest that the patent of creation for the Marquessate of Pembroke allowed illegitimate children to inherit. If that is in fact what Ives argues, then with all due respect to Professor Ives, I must disagree. The laws of England are very clear regarding the barring of illegitimate issue from inheritance of titles, and equally clear that the monarch, when creating such titles, cannot violate the law by allowing such illegitimate inheritance. The King of England is subject to the laws of England just like everyone else, and thus was not empowered to create a title that allowed succession by illegitimate issue. There are dozens of examples from English history confirming this. The issue is moot, however, since Boleyn died without male issue.

As for the children of John of Gaunt ... while it is true that Gaunt had Richard II issue letters patent legitimating the Gaunt children by Swynford, those letters were not really enforceable. An act of Parliament was also passed in order to legitimate Gaunt's 4 children by Swynford. The use of multiple avenues of legitimation is itself an indication of how doubtful any one avenue alone actually was. The children were finally properly legitimated by papal bull (the Church and canon law had final jurisdiction over the matter). The late 14th century is a bit outside of my time period, but I have to wonder whether inheritance was ever a real issue for the Gaunt-Swynford boys. John Beaufort was independently ennobled before his father's death. Henry and Thomas, as younger sons, were not entitled under primogeniture to inherit Gaunt's titles or the bulk of his estates as long as older brother John Beaufort was alive. The real issue for Gaunt, and the "inheritance" he was attempting to protect through his efforts to gain legitimation for the Swynford children, was their place in the line of succession to the crown. Everything else ... money, lands, etc ... could be gotten around by grants and gifts. But again, the issue was eventually moot, since Gaunt's indisputably legitimate son Henry Bolingbroke seized the throne and his sequestered paternal landed inheritance from Richard II by force of arms.

Returning to the original question, I can state categorically that no patent of creation for any English barony has ever allowed for inheritance of the baronial title by an illegitiamte child. No illegitimate child of a suo jure baroness would be able to inherit the mother's title.

Anonymous said...

Here's the link to the Letters and Papers site, scroll down to no. 1370.

http://www.british-history.ac.uk/report.aspx?compid=77493

Also, Chapuys's dispatches of June 6, 1536 and July 8, 1536 indicate that Henry had the council's permission to leave his crown to Richmond, without legitimizing him ... they refused to reinstate Mary in the succession because they preferred Henry's male bastard to the female ones.

Esther

Mary R said...

Good stuff, Esther! I have to wonder, though, if the council's approval would have been enough. Hadn't the council at that time been purged of everyone but Henry's sycophants?

As PhD Historian said, Parliament (and in my opinion, the people) might not have taken kindly to Henry's bastard. If I remember correctly, the members of a later council knelt before Jane Grey and called her queen, for all the good that did her:)

Kris, I think I owe you an apology! Your question kind of got hijacked, didn't it? Still, when you get a bunch of Tudor buffs/historians together, this is the inevitable result!

Anonymous said...

Mary R~

But I am loving this, hijacked or not! And, PhD Historian did bring it back to topic, with her (or his! ) conclusion about inheritance for a barony that follows the female line. :)

So, for purposes of fiction, it sounds as though there would be serious concerns about inheritance of a girl born out of wedlock, even if the title followed the female line, and that conflict/confusion is exactly what I need. I can delve into the sources mentioned here to flesh it on in-story.

I think you and PhD are correct, Mary, that Parliament and the people would not have taken kindly to Henry's bastard. It would have the potential to set precedent for their own titles, and I can't see them wanting that.

Many thanks for the thoughtful debate!

~Kris

PhD Historian said...

As calendared in the L&P of Henry VIII, the grant of the Pembroke marquisate was restricted to male heirs ("in tail male") of her body. That can NOT be read to include illegitimate issue. As I noted above, because English common law barred illegitimate issue from inheriting, the wording assumes that the future inheritance of the title will conform to that common law ... thus removing any need to explicitly state "in tale male legimitately born." Any interpretation of the phrase so as to allow it to include illegitimate issue is simply incorrect.

Chapuys's correspondence is useful, but must be corroborated by other evidence. Chapuys was very often incorrect in the information that he communicated to his Spanish and Imperial masters. I am not aware of any surviving written document in which the Privy Council "gave permission" for Henry to leave the crown to Fitzroy ... though as I said above, I do strongly believe that both Henry and the PC were leaning in that direction prior to the death of Fitzroy and the birth of Edward. Chapuys was reporting on rumors and gossip, not legally binding documents and statute laws.

Mary R ... No, the "approval" of the PC is NOT sufficient, then or now, to alter the succession. That is why Henry VIII went to the trouble of having Parliament pass three Succession Acts. Only Parliament could/can alter the succession. When Jane Grey was made queen, it was done by the PC alone, and that quickly proved insufficient. Even if the monarch, PC, and the House of Commons all supported an alteration of the succession, it still required the support of the vast majority of the nobility (i.e., "House of Lords", in modern parlance). In other words, altering the succession was a complex matter that no single sub-group or branch of government could bring about. It required the consensus of many different individuals and groups, from King and Council to Parliament to the Lords not active in Parliament to the Mayor and Aldermen of the City of London, the Guilds, and even the "common people." That's why attempts to alter the succession seldom occur and often fail.

Anonymous said...

PhD Historian:

According to the historians I cited (Ives, etc.), other grants were restricted to "heirs male, lawfully born", whereas Anne Boleyn's grant was to her "heirs male"; the rights of illegitimate sons were created by the absence of the restriction "lawfully born". Is it true that other grants specified that the heirs be "lawfully born"?

Esther

PhD Historian said...

Esther,
I can only repeat what I have previously said, with all due respect to Professor Ives: "Heirs" of either sex must, by definition, be lawfully born. That is, an illegimately born person cannot be an "heir" under English common law, full stop. Nothing short of a formal act of Parliament can "legitimate" (i.e., make legal) the ability of an illegitimate person to inherit from his birth parents. No grant of nobility can violate English common law. The wording of other grants ... whether or not they included the totally superfluous phrase "lawfully born" ... is moot since no illegitimately born child has ever automatically inherited a title of nobility. Several have been newly ennobled, but none have automatically inherited their title. The inclusion or exclusion of the phrase "lawfully born" is largely dependent upon the individual who wrote out the original grant, but that inclusion/exclusion can never be construed in a manner that violates English common law. Professor Ives is simply incorrect on this issue.

PhD Historian said...

I decided to contact Professor Ives in regard to the question of illegitimate children of Anne Boleyn inheriting the Pembroke marquessate. In response, he stated, "Bastards could not inherit from their father, since in law they did not have one. They could inherit only from their mother. Hence the words 'heirs male' would make it possible for an illegitimate son to inherit from Anne. As you say, normally peerages can only pass down the legitimate male line, but grants to women are so rare that each is something of a 'one off'."

It makes sense that an illegitimate child might inherit the goods and chattels of the mother (a point I had not considered before), but I do still have to wonder whether that would extend to her real property (lands) and titles. Never-married women seldom had independent control over the lands they owned, those lands instead being placed in a wardship or trusteeship under the complete control of some male specifically assigned to the task. All too frequently, the estates became forever "alienated" to that male guardian and his descendants. And the social scandal that would have attached to an unmarried woman giving birth to a child would have been such that any title of nobility would very likely have been forfeit on account of her being deemed "unfit." Of course, when the woman was the paramour of the king, she would have been less vulnerable to such censure.

Were the woman married, it would be very difficult, technically, for her to have an illegitimate child. The law assumes any child born of a married woman to have been sired by the woman’s husband. A child could be declared illegitimate, but only after a complicated legal process in which the woman’s husband claims and proves in court that the woman had committed adultery. In such cases, her adultery, itself a serious crime in both civil and canon law, would very likely have resulted in forfeiture of her title and estates.

So, returning to the original question, I must modify my original answer and say: Yes, Kris, illegitimate birth would indeed have been an obstacle to a child inheriting lands and titles from the mother, in *most* (99%) circumstances. Only when the mother was the mistress of the king himself might the child *potentially* inherit lands and titles from the mother. But the issue of a never-married mistress of the king being ennobled suo jure and then bearing an illegitimate child is an untried one, in the strictest legal sense, and there is no precedent on which to base a judgment. But in Kris’s non-royal original scenario, the child could not and would not inherit, illegitimacy being an absolute impediment in actual practice. Again, no illegitimately-born English person has ever inherited a title of nobility from his/her mother ... nor from his/her father, for that matter.

Foose said...

It might be useful to take a look at the ennobled but unmarried mistresses of Charles II and examine the titles of their offspring. I don't believe any of his illegimate children inherited their mothers' titles (but I could be wrong; some of them got their new titles under subsequent monarchs).

It's possible that although the terms of Anne Boleyn's patent may have implied to many observers that an illegitimate son would inherit the Pembroke title, Henry might have separately endowed his bastard by her with an entirely different title.

Anonymous said...

Foose:

According to wikipedia, Barbara Palmer's son by Charles II inherited her title (she was Duchess of Cleveland; he became Duke of Cleveland). However, there was special language in the grant allowing this to happen.

Esther

Foose said...

Yes, but Barbara's situation was complicated a bit by the fact that she was married when she bore children to Charles II. Her husband was the Earl of Castlemaine but the rights of inheritance were restricted to Barbara's children.

I'm more interested in what happened with the children of the unmarried mistresses - probably the best case would be Louise de Keroualle (Duchess of Portsmouth) - since they might be a better analogy for an unmarried Marquess of Pembroke having illegitimate children.

PhD Historian said...

I spoke with Professor Ives at greater length today, and he further clarified his argument that Anne's potential illegitimate children might have been able to inherit her Pembroke marquessate. Here is his reasoning in full:
Henry created Anne Marquess (notably not Marchioness) of Pembroke in September 1532. It appears that by that time, the couple may have already consummated their relationship sexually, in anticipation of Henry's eventual divorce/annulment from Katherine of Aragon. There was thus the possibility that Anne might become pregnant before the divorce was settled and before Henry and Anne could legally marry. Any child conceived prior to Henry’s divorce and prior to their marriage would, under canon law, have been irrevocably illegitimate, even if Anne later married Henry and even if Henry acknowledged paternity (the child could not be legitimated because the conception would have been the result of an adulterous act on Henry’s part ... an absolute bar to legitimation). By eliminating the phrase “lawfully begotten”, Henry hoped that any potential illegitimate child of his by Boleyn might still be able to inherit, especially since he anticipated that the child would be his own (i.e., that Anne would not marry someone else).
Anne did indeed conceive, in January 1533, before the couple could legally marry. Though they married late in January 1533, Henry was not legally free to marry until the divorce/annulment was finalized in May 1533. His marriage to Anne was potentially bigamous. Archbishop Cranmer even had to take the unusual step of declaring Henry’s marriage to Anne valid (and how could he do otherwise???) late in May 1533.
The upshot seems to be that Henry desperately wanted in Anne’s knickers before he was divorced from Katherine, and was willing to do whatever it took to convince Anne to oblige him. One of his tactics was an attempt to protect the inheritance of any child they might conceive. Whether that attempt would have worked had Henry utterly failed to obtain a divorce is unknowable. Henry did succeed, so any child of Anne would inherit the crown and not “need” the Pembroke marquessate. The title would simply absorb back into the crown’s honor and titles ... had the marriage endured and had Henry not divorced Anne, remarried, and declared their child illegitimate.
The circumstances remain unique in English history. No unmarried female has since been created a suo jure peer with right of inheritance granted to her illegitimate children. Foose points out the case of Barbra Palmer, suo jure Duchess of Cleveland. But unlike Anne, Barbara was married when she became the king’s mistress. As such, her children were *legally* her husband’s, even though Charles II acknowledged them. Charles also ennobled each before Barbara died, so that the Cleveland inheritance was secondary, making it less worthy of challenge from any disaffected legalist.

Anonymous said...

Kris here. I'm reading and GREATLY appreciating. Many, many thanks for the thoughtful debate and consideration. I'll keep listening.

Anonymous said...

Not an expert by any means in either canon or English law of the time period, but I vaguely recall learning in law school that, historically, illegitimate children legally were the children of no one...that is, legally, they had neither mother nor father, and therefore had no inheritance rights from either parent. Certainly, you could will things that could be willed...but titles and associated lands were not controlled by will, but rather were entailed. So I'm still not sure I'm buying into Professor Ives argument.

Foose said...

Charles II created Louise de Keroualle duchess of Portsmouth for life only. She was careful to secure a separate ennoblement for her illegitimate son by the king as the Duke of Richmond. I don't know whether Charles' limiting of her patent and bestowing another title on his son was because he knew the child was ineligible to succeed by the laws of England. I'm also not sure whether his action represents a startling innovation in the history of nobility creation. Henry's ennoblement of Anne Boleyn, of course, contains no such limitation.

Louise's position is somewhat complicated by her efforts to secure a French duchy as well - Aubigny, which had also fallen vacant on the death of Charles II's cousin Richmond without heirs. Louis XIV was reluctant to recognize her as the Duchess of Aubigny with automatic rights of inheritance to "a nameless bastard," so another arrangement was worked out: She received a donation of the ducal estate with the disposal of it after her death going to "such of Charles II's sons by her as he should name."

It seems like pretty much the same thing but satisfied Louis XIV's sense of propriety (Louise did not receive the ducal tabouret) and exercise of authority over the ranks of French nobility. She finally got the full title in 1684, with reversion to her son; perhaps her staying power had impressed the French king. I'm not sure what the French law had to say about her illegitimate son's right of inheritance.

Possibly Francois I might have been induced to contribute some sort of similar arrangement to the gratification of an influential, Francophile Marquess of Pembroke.

J. F. Hawthorne said...

Hi Kris,

This is an interesting discussion and I thought I'd add something that no one seems to have mentioned.

There's an appendix in Paul Friedmann's bio of Anne Boleyn called 'The Birth & Early Life of Anne Boleyn' (Appendix A). Friedmann writes, 'From the fact that Mary Boleyn inherited her father's estates Lord Hunsdon seems to have inferred that she was the eldest daughter; but she was her father's 'sole heir', not as his eldest daughter, but as his only surviving descendant; Elizabeth being at that time considered a bastard, and legally non-existent.'

This appears to be somewhat relevant to your question. Elizabeth had been bastardized, but you'd think that's no reason she couldn't have inherited her mother's share (maybe a half-share) of Thomas Boleyn's estate when he died without a male heir. After all, Thomas Boleyn's mother and sister were co-heiresses of an Earl of Ormonde when he died without a male heir. What I've read has led me to understand that the inheritance was split between the two daughters, even though the title itself was in dispute (the original patent, which would have stated whether the title could be inherited by heirs general or only heirs male, was lost).

Why shouldn't Elizabeth have got her mother's half share of Thomas Boleyn's estate? Logically you'd think she should have since there was no doubt who her mother was. But according to Friedmann she got nothing, since she was legally non-existent. That would suggest that in your fictional case an illegitimate daughter might not have been able to inherit a title through her mother even when no one could legally dispute that she was her mother's daughter.

Complicated case; hope I've added to the discussion.