Illegitimacy in Medieval Scotland, 1100-1500

Thank you for agreeing to take part in this edition of the Herald, Dr Marshall. When did you first become interested in medieval history and what was it that hooked you? Would you please give us a summary of your studies to date?

I took a course in medieval history in my first year as an undergraduate. I found it wholly baffling. Much of the scholarship assumed a prior knowledge that I just didn’t have. The spread of topics falling under the heading of medieval history was vast, and even getting to grips with the specific areas covered by the course was daunting. I have a distinct memory of sitting in the library that first term, simultaneously overwhelmed and energised, feeling that I was trying to do a three-dimensional jigsaw puzzle with all the pieces coated in oil, and without knowing what the picture was meant to look like.

I persevered, did a huge amount of reading, and slowly began to make sense of it. The thing that became increasingly attractive was the simultaneous strangeness and familiarity of the medieval world. I knew I was hooked when I found myself becoming annoyed by popular culture’s use of the term ‘medieval’ as an insult.

I took other medieval history courses as part of my History degree, then after graduation I did an MLitt in Medieval Studies, followed by a PhD in a medieval history topic.

When did you start your book and do you remember exactly what inspired you to it?

I started the book an embarrassingly long time ago, but a combination of work and family events conspired to delay completion. Fortunately, the team at the Scottish Historical Review, which had accepted the book proposal for its monograph series, was very forbearing. I wanted to write it because there was no book on the topic, and as a student I would have been interested to read such a book. There were passing references to illegitimacy in the scholarship I was reading but very little exploration of what that meant. I’ve tried to write it in a way that doesn’t assume too much prior knowledge of either medieval history or of illegitimacy at that time.

Is it possible to estimate how widespread illegitimacy was in medieval Scotland? 

Medieval Scotland had neither birth nor marriage certificates, so knowing how many children were born at all, never mind how many were born in marriage and how many were not, is beyond our reach. Requests for papal dispensations to marry, or to have a union recognised as a marriage, sometimes include mention of children having been born to the couple concerned (without naming the children), but this evidence is too piecemeal to make any reliable estimate of the numbers involved across the country. And of course, if an unmarried couple with children did not seek or obtain a dispensation to marry, they didn’t leave those sorts of traces. 

Although we can’t quantify illegitimacy, the fact that canonists ensured Church law included a means of determining who was and was not legitimate; that secular legal systems addressed the rights of illegitimate people, and that references to illegitimacy appear in our narrative sources as well as in documentary records, suggests that it was not very unusual in Scottish society. Some references to illegitimacy in narrative sources such as chronicles are oblique or lacking in any detailed explanation. For example, Walter Bower in Scotichronicon refers to the mother of Henry VI having been ‘snatched from a nunnery’. He doesn’t go on to explain the implication of this, which is that, if she was a nun, then she was not legally able to marry, and so Henry VI can only be illegitimate, and therefore not entitled to the throne. Bower’s lack of such an explanation indicates that the relationship between legitimacy and inheritance rights was so well understood that no elucidation was necessary. This, and many other like examples, points to illegitimacy being a fact of life in the Scottish middle ages. 

If we look at illegitimate offspring of royalty first, what position might they expect to occupy at court and could they succeed to the throne?

Scotland had a king who was born illegitimate: his mother was called Elizabeth Mure and his father was Robert Stewart, later Robert II. They had a number of children before they eventually married each other and their eldest son, John, would inherit the throne on the death of his father. John took the regnal name of Robert, so is known as Robert III. The crucial point is that he was no longer illegitimate by then: because of the legal doctrine of legitimation by subsequent marriage, the fact that his mother and father married each other transformed his status. This would not have been the case in England, which did not accept legitimation by subsequent marriage until the twentieth century. John’s younger brothers, some of whom were also born before Robert and Elizabeth were wed, stood to inherit the throne if John died without issue (which didn’t happen).  

Of the more ‘traditional’ kind of illegitimate royal offspring, that is, a child born of a king’s clearly extra-marital liaison in which there is no prospect of him marrying the mother, none succeeded to the throne. Once being born of a lawful marriage became a prerequisite for heirship, the chances of such offspring becoming king were pretty much zero. Indeed, in the later middle ages, the claim that a reigning king was not born in marriage was used by political enemies as a means of attacking his right to the crown. 

If we think about the fact that being illegitimate depended on whether or not your parents’ relationship conformed to the rules defining lawful marriage, and that these rules not only took a long time to develop, but were fraught with possible impediments, we begin to realise that it was not always straightforward to say who was and wasn’t legitimate. Furthermore, it is not obvious that canonical legitimacy was correlated to throne-worthiness in Scotland before the twelfth century, and even, perhaps, during it. Donnchad II, who died in 1094, was later said to be illegitimate. This may have been a lie, intended to undermine the efforts of his descendants to claim the throne, or he may in fact have been the product of a marriage which was invalid by the standards of the Church, but not by the standards of contemporary society.

Looking at the obviously illegitimate offspring of kings, there was no hard and fast rule concerning their involvement with the royal court: it seems to have depended on the royal parent concerned. Certainly, William the Lion kept his only known illegitimate son, Robert of London, close to him, and Robert was an important figure in his father’s government. Robert I’s illegitimate son Robert of Liddesdale fought in his father’s campaigns and was handsomely provided for in terms of estates. James IV seems to have been genuinely fond of children, and devoted considerable resources to his illegitimate offspring, who grew up in his court. With his wife he had several children, but only one survived infancy; he had better luck with his mistresses.  

And what about illegitimacy within the nobility, were they treated any differently? Could they inherit?

The law said that illegitimate people could not be heirs. The legal disability of bastardy, as we call it, was a problem for parents who wanted to ensure their illegitimate offspring received some portion of the family wealth. The easiest way around this was for the parent to make a gift of land or property to the offspring concerned while they were able to do so before they died. But limits and exclusions applied, so even among the nobility, not everyone was in a position to take advantage of this. Noble families sometimes used tailzies, which stipulated who should inherit their estate, and provided, in ranked order, the names of those to whom the estate should pass in the event of the failure of the first named line. We sometimes find an illegitimate son or three included somewhere in that list, though usually after a legitimate heir. 

One advantage the nobility may have had is the means to seek a royal legitimation, by which the status of a bastard could be permanently altered. These appear to have been fairly unusual until late on in the middle ages, but typically they specified that the recipient was fully able to inherit. By the end of the fifteenth century the royal chancery was doing a roaring trade in these.  

What did the law have to say about such things? Was it followed or were the lives of the illegitimate shaped more by their families and communities than by the law?

It might be argued that laws reflect the values and priorities of a society, which can’t be separated from the communities of which that society is comprised. In terms of inheritance, it would be too simplistic to say that something called ‘the law’ was forcing an unwilling population to make their non-marital children unable to inherit. Inheritance had to be regulated somehow, and since marriage was, mostly, seen as an important constituent of social organisation, it made sense to restrict inheritance to children born in wedlock. Those were the rules and people understood and mainly accepted them. But the law also included mechanisms by which offspring excluded from inheritance could be provided for if their families had the means to do so, suggesting that society simultaneously recognised marriage as the right context for procreation, while seeking to accommodate the fact that parents loved their children, whether born in marriage or not. 

The fact that the law deemed bastards non-heirs created opportunities for some people to dispute inheritances, by claiming that the person expected to inherit (or who had already done so) was in fact illegitimate. Usually, of course, the person raising the dispute would be a member of the same family, who stood to gain the estate if the person thought to be the heir was found to have been born of a non-marital liaison. We can imagine the potential for ill-feeling occasioned by such a move. It was sometimes difficult to ascertain the truth about someone’s birth circumstances, and this may have led to spurious claims of bastardy by those hoping to dislodge an heir. 

How families and communities responded to illegitimate members probably depended on their own traditions, practices, and attitudes, which varied across time and place. The Gaelic west in particular seems to have been less inclined to regard illegitimate sons as non-heirs. Beyond the inheritance issue, the Church taught that sex outside of marriage was wrong. While its application of a range of penances and legal responses to fornication, adultery, and other sexual conduct issues tends to suggest they had an uphill battle in getting everyone to agree that it was so very terrible, the message was received. Illegitimate children were proof of sexual misconduct and if you as an illegitimate person lived in a community which took a dim view of this you might experience stigma. At the same time, it seems clear that many elite men were far from embarrassed or ashamed of their extra-marital offspring. Where people had little say in who they married, non-marital relationships were more likely to be based on attraction, affection, and even love; it would not be surprising if the children resulting from these liaisons were welcomed by their parents. Our sources suggest that illegitimacy elicited a range of responses, depending on the circumstances or individuals concerned and the perspective of the writer. Compassion, disapproval, amusement, indifference, censure, and esteem are all represented.

Were women treated differently to men? And what of mothers of the illegitimate? What position could they hope to maintain?

There is a fair amount of evidence that women were subject to different standards to men in respect of their sexual conduct, but it is also clear that illegitimate children were born to women in all ranks of society – so, while there may have been greater pressure on women to behave chastely, not all women were compliant in this regard. (Not forgetting, of course, that some children are born as the result of encounters not willingly entered into by their mothers.) Papal petitions for marriage dispensations include examples of women who were in sexual relationships with their consorts over a period of time, often living with the men concerned, and not unusually having children with them, before marriage. There are also examples of women who believed themselves to be married, having gone through a formal marriage ceremony, and only afterwards discovered that because of a legal impediment of which they were unaware at the time, they were not lawfully married at all. Canon law came to allow that as long as one or both parties to the marriage were ignorant of the impediment, and providing they obtained a papal dispensation setting it aside, the children were deemed legitimate. Naturally, requests for such dispensations stated that one or both spouses had been wholly ignorant of the obstacle, but their claims don’t always ring true: it’s probable that in some, perhaps many, cases, the couple knew they couldn’t marry legally but took a chance on the impediment not coming to light.  

Elite women who were unmarried were under the guardianship of their fathers, brothers, or another male relative, and the marriages of such women were organised by male authority figures whose concerns in doing so were political and economic. Clandestinely seducing such a woman, therefore, risked compromising her value as a bride, of which her virginity was a significant component, and giving offence to her male kin. It is likely that some guardians were prepared to allow their female relatives to have affairs in the right circumstances, that is, if there were compensating advantages, which may be negotiated in advance. A daughter or sister who had a child with a man thereby linked their two families and if he was of higher rank, and especially if he was royal, then benefits of various kinds might accrue to the child’s mother and her family. 

The most notable mother of an illegitimate child we know about is Margaret Stewart, daughter of James II and sister of James III. She had been betrothed to the brother-in-law of the English king but, scandalously, became pregnant by a Scottish noble. This ruined any chance she had of marrying her high-ranking fiancé, or, it seems, of marrying anyone. Her child, also called Margaret, grew up in the Scottish royal court, where she had two illegitimate children herself, with a man who was secretary to her cousin, James IV, before going on to marry four times.  

One chapter of the book is devoted specifically to women, but that does not mean they are absent from the rest of the work: they are, after all, core to the subject of illegitimate birth. It is well known that the lives of women are generally more obscure in our sources for medieval Scotland, but of course they played as active a role in society as men, even if much of it went unrecorded. 

Your book covers a great length of time. What made you settle on such a span and did it present any particular problems?

Yes, it presented problems in that when you try to cover a wide time-span you have to sacrifice some level of detail, otherwise you would end up with an 800-page doorstop. I wanted to tackle the long span because without it, you don’t get the sense of change over time. In many early medieval societies, including Scotland, heirship was not necessarily tied to being born within a relationship defined by the Church as a marriage. Between the twelfth century and the end of the thirteenth, the meaning attached to marriage, and the consequences of being born outside it, had both changed significantly. From then, we see Scottish society both accommodating and resisting these changes. So there isn’t a single time period within the period 1100 to 1500 that isn’t important to the story of Scottish illegitimacy. 

In addition, I was interested in establishing when it was that legitimation by subsequent marriage became fully effective, including for inheritance purposes, in Scotland. At one time historians thought that the naming of Robert III as heir to the throne in 1371 was the turning point, but that did not seem right to me, and so I wanted to look at what the evidence suggested before and after the fourteenth century.  One consequence of accepting the change came in the late fourteenth century is that it lends credence to the argument that James I was assassinated in 1437 because his father, Robert III, was not the rightful heir, and the crown should instead have passed in 1391 to Robert III’s half-brother, one of the assassination conspirators. Although that theory has been debunked by historians, they have done so by presenting other motivations for the murder, not by examining in detail the plausibility of the theory concerning legitimacy and inheritance of the throne.

How, if at all, did the effect of illegitimacy on a person’s life and career prospect change over the period you cover?

In terms of career prospects, factors such as family status and connections mattered a lot, and no doubt innate ability played a role too, throughout the time period. We know that some illegitimates held high office in medieval Scotland. You might argue that illegitimate people, being unable to inherit, were therefore thrown back on their own resources, and so learned to deploy ingenuity and determination to get ahead. This may have accounted for the success of some in public life, but is difficult to prove in any given case because motivation and resilience are factors personal to the individual concerned and not a matter of public record.   

In the Church, which may have been a natural career destination for sons whose fathers were themselves clerics (because clergy couldn’t marry, all clerical offspring were illegitimate), the requirement to declare not only the fact of their illegitimacy, but the type of relationship between their parents – adultery? Incest? Or just plain old fornication? – implies that illegitimacy could be a hindrance to career prospects, and this impression is strengthened when you consider that one papal grace, probably available only to wealthier priests, was the right to omit any mention of illegitimacy when petitioning for benefices (Church positions). That said, many illegitimate men did attain positions of considerable authority in the Church. 

In all your research did you uncover anything that particularly surprised or shocked you?

I don’t find anything in the middle ages particularly shocking; there is much that delights or appals, but all of it is recognisable human experience.  

Surprise is a different matter. I was indeed surprised to discover that illegitimate bishops, of which there were many in the Scottish middle ages, all but disappeared for a period of time between the second half of the thirteenth century and the late fourteenth century. Were all the bishops during that time legitimately-born, or did some lie about their origins? Was there some special stigma or problem attached to being illegitimate in the Church then, and if so, why? 

What do you think is next for you? Is there more for you to do in this field or do you have new projects planned?

There is certainly lots more to do in this field, and I hope that the book prompts students and others to turn their thoughts in that direction. As with any area of study, no one book is going to answer, or even pose, all the questions there may be concerning it.  

As part of my research, I looked at the ways illegitimacy and illegitimate people are represented in chronicles, poetry and other literary works, but little of that made its way into the book, and so I’d like to explore that a bit further.

We like to finish with the same question to all our contributors. Naturally, we hope you have stayed well throughout the last year but how has your work been affected by lockdowns and restricted access to libraries and archives?

The book was mostly written by the time the pandemic struck, though there were a few things I struggled to get material on when I was making last-minute revisions. I know some researchers have had their work seriously disrupted, not only by losing access to libraries and archives, but also by having less time to do their work because of schools and nurseries being closed, or by the need to provide more support to vulnerable family members. I am grateful that no-one close to me has died of Covid, and try to remember that when I’m missing the people in my family I haven’t seen for over a year. 

As a medievalist, when the pandemic was declared my thoughts immediately turned to the experience of the Black Death, which carried off something between a third and a half of affected populations in the fourteenth century. The terrible fear engendered by the disease, and the distress, sorrow and anger experienced by people as it went on, are captured in our sources. Medieval people, living in a world without antibiotics or advanced medical care, were used to death, but this was a shocking and desperate novelty. At the end of it, we had a society riven by grief on a momentous scale. Social, economic, and cultural change was an inevitable outcome. Covid-19 has been less devastating in terms of the proportion of people dying (though each death may be privately devastating to those left behind) but its impact is likely to be long-lasting, in ways we can’t yet predict. I wonder what future historians will make of it.