Illegitimacy in so Many Words
Illegitimacy cannot exist without legitimacy, the thing that it is not. It is a concept defined by deviation from the spectrum of words and ideas pertaining to rightness, authority, regularity, propriety, legality, reason, and truth. It is ancient and it is problematic, “a problem as old and unsolved as human existence itself” (Davis 1939, 215). Illegitimacy traditionally evokes all manner of forbidden practices: extramarital sex, prostitution, interreligious trysts, rape, incest, usurpation, heresy, and treason. It crosses from individual bodies to entire political systems. The earliest use of the word in English, according to the OED, concerns not being born in lawful wedlock or recognised as lawful offspring, marking its historical identity as a legal doctrine. However, its dictionary cognates spill over into a more general vocabulary of impropriety: “unauthorized, unwarranted, spurious; irregular, improper; not in accordance with rule or reason; not correctly deduced or inferred; naturally or physiologically abnormal”. In the Western tradition, the legal doctrine of illegitimacy was sanctioned by Christian theology. The Bible contains several particularly vehement passages which caught the attention of jurists and theologians, notably Deuteronomy 23.2: “A bastard shall not enter into the congregation of the Lord; even to their tenth generation shall they not enter into the congregation of the Lord”. Similarly, the Book of Genesis describes how Ishmael, the illegitimate son of Abraham, was condemned in utero: “And he will be a wild man; his hand will be against every man, and every man’s hand against him” (16.12).1 The notion of the sins of the fathers being visited upon their children unto the third and fourth generation is also found in Exodus (20.5, 34.7), Numbers (14.18), and Deuteronomy (5.9). A more clement view of illegitimacy also exists, however, in the Bible:
Deuteronomy, Jeremiah, and Ezekiel all explicitly prohibit visiting the sins of the parents upon children […] Matthew includes five bastards in the genealogy of Christ, and Hebrews counts the child of a harlot on the roll of the righteous. The Bible repeatedly calls God’s people to do justice and mercy to the fatherless and the orphan. (Witte 2009, 46)
John Witte observes that the Church Fathers “reduced the sting of illegitimacy by expanding the texts that count, and reading them inventively”, for example, the sins of the fathers passages are “about God’s mercy in postponing punishment for three or four generations, in hopes that later generations will repent” (46). However, he describes how a combination of the Roman laws on illegitimacy and increasingly severe views on extramarital sex from the church councils and Church Fathers from the first to the sixth centuries created the Western rules about illegitimacy that exclude illegitimate offspring. Sara McDougall disagrees:
Witte and the specialist scholarship he draws on miss a real and dogged fidelity to the teaching of the Fathers on the part of many leading ecclesiastical officials, and ongoing insistence that the sins of the fathers not be visited upon the children. Careful attention to the period, particularly the often obscure tenth, eleventh, and early twelfth centuries, reveals a very different history of illegitimacy, a host of different ideas and practices concerning marriage, legitimacy, and a child’s rights to inherit. (2017, 11)
Even at this early stage, it seems that illegitimacy was subject to interpretation; the idea of the Church Fathers reading it inventively, subjecting it to a creative approach, is fascinating and lays the foundations for one of the central points of this book: to tell a different story of illegitimacy, to see and to value illegitimacy as story.
Illegitimate figures are symbolic as well as literal products of lines and laws, and their overspills and transgressions, and with that comes a fluidity of interpretation. Richard Adair describes it as a “culturally-specific concept, meaning different things in different ages to different status groups” (1996, 4). Lisa Zunshine also questions the usefulness of a blanket concept of illegitimacy when applied across social classes and geographical regions, calling it “anything but monolithic” (2005, 5). Underpinning illegitimacy with notions of legitimacy also presupposes that legitimacy is a stable thing when in reality, as David Beetham argues “legitimacy in the wide sense always depends on the ability of dominant political and social systems to underscore formal legal conventions with the dual authority of ideal normative principles and broad social consent; but it is extremely seldom that these elements are unproblematically aligned” (Finn et al. 2010, 4).
The fluidity of illegitimacy is evident in law codes from medieval Spain. Alfonso X’s fourth Partida (IV.15) defines illegitimacy in accordance with ancient descriptions of it, as children born outside of a legal marriage, “Naturales e non legítimos llamaron los sabios antiguos á los fijos que non nascen de casamiento segunt ley” (1807, 87) (The wise men of old called children who are not born of a lawful marriage natural and illegitimate). There are a number of subcategories of illegitimates, namely “fornecinos” (born of adultery, or from a relative or a woman in holy orders), “manzeres” (the children of prostitutes), “spurii” (born of women kept as concubines outside the man’s house), and “notos” (born as a result of adultery) (1807, 87–88).2 The code reserves its most damning judgement for the “manzeres”, connecting the word to the Latin “mania” and “scelus” meaning infernal sin. However, illegitimacy is not a permanent state. Emperors, kings, and popes, in accordance with their temporal and spiritual jurisdictions, have the power to legitimise; a cleric cannot regulate “cosas temporales” (temporal matters), nor can an emperor or king influence “las cosas espirituales” (89) (spiritual matters).3 Similarly, the Fuero Real (Royal Law Code) describes how a “fijo que no es de bendicion” (son who is not from a marriage) may not inherit, unless the king decides to legitimise him, which is a power over worldly affairs that the monarch possesses: “como el apostóligo puede legitimar a aquel que non es legitimo pora aver ordenes e beneficio, asi lo puede legitimar el rey para heredar e para las otras cosas temporales” (Alfonso X 1836, vol. 2, 82) (just as the apostle may legitimise he who is not legitimate to take orders and benefice, so the king may legitimise him to inherit and for other temporal matters). According to the fourth Partida, a father can make his son legitimate by devoting him to the service of his emperor, king, or ruling council, by his will being submitted for the king’s consent, or by providing a written document recognising his son as such (1807, vol 2., 89–90). A woman can become legitimate by dint of her father marrying her to an official in an important office (91) The principal benefit of legitimacy is the right to inherit the property of one’s father or one’s share of it if there are other legitimate offspring (91); a further advantage is becoming eligible for honours, “pueden seer cabidos á todas las honras et á todos los fechos temporales” (91) (they can be admitted to all honours and all temporal affairs).
The Alfonsine description of illegitimacy highlights some of its most important features in the thirteenth century. Illegitimacy appears correctible, reversible, a mixture of accepted categories and subjective notions. Illegitimacy is also closely understood in relation to public knowledge of it, or not. Alfonso’s code repeatedly refers to the role of speech is rendering a child legitimate. For example, a father wanting to make his son legitimate by devoting him to political service, must publicly speak some lines: “et dixere publicamente ante todos: este es mio fijo que he de tal muger, et dolo á servicio deste concejo; por estas palabras lo face legítimo” (89) (and say in public in everyone’s presence: “this is my son born of such a woman, and I present him to serve this council”; with these words he makes him legitimate). The role of the speech act is reiterated in an ensuing section, “deciendo concejeramiente ante todos como es fijo de tal home, nombrándolo” (91) (stating in front of everyone that he is the son of such a man, naming him). Similarly, a will must specifically state “quiero que fulan et fulan mios fijos que hobe de tal muger, que sean mios herederos legítimos” (90) (it is my wish that these sons of mine that I had with such a woman be my legitimate heirs), and any written document recognising a child must mention him explicitly as his son, must not mention that he is a natural one, and must be witnessed by three reliable men:
Instrumento ó carta faciendo algunt home por su mano mesma, ó mandándola facer á alguno de los escribanos públicos, que sea firmada con testimonio de tres homes bonos, en que diga que algunt fijo que ha, nombrándolo señaladamiente, que lo conosce por su fijo; esta es otra manera en que se facen los fijos naturales legítimos: pero en tal conoscencia como esta non debe decir que es su fijo natural ca si lo dixiere non valdrie la legitimacion. (90)
(If a man writes an instrument or letter with his own hand or orders it to be done by a public scribe, it should be signed with the testimony of three good men, and it should say that the child in question, naming him specifically, is recognised as his child; this is another way in which natural children are made legitimate but, in recognising this, it should not say that the child is a natural one because if it does the legitimisation will be worthless.)
In all these cases, legitimacy is about convertin...