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BastardsPolitics, Family, and Law in Early Modern France$
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Matthew Gerber

Print publication date: 2012

Print ISBN-13: 9780199755370

Published to Oxford Scholarship Online: May 2012

DOI: 10.1093/acprof:oso/9780199755370.001.0001

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Bastardy in Sixteenth-Century French Legal Doctrine and Practice

Bastardy in Sixteenth-Century French Legal Doctrine and Practice

(p.21) 1 Bastardy in Sixteenth-Century French Legal Doctrine and Practice

Matthew Gerber

Oxford University Press

Defining as “bastard” any child born outside of legitimate marriage, sixteenth-century French jurists alleged that all such offspring were tainted with a mark of criminal unworthiness stemming from their illicit origins. This mark, rather than uncertain paternity, was the basis for their exclusion from both paternal and maternal inheritance. Jurists grounded this doctrine on diverse elements of “French law”—a concept originating in this period—particularly the droit de bâtardise, the right of the king to confiscate the estates of extramarital offspring who died without legitimate descendants. The doctrine helped to protect lineal interests, complementing the contemporaneous efforts of the royal courts to assure parental control over marriage choice through the assertion of appellate jurisdiction over disputed nuptials. In spite of the doctrine, children born of parents free to marry continued to inherit from their mothers under the terms of Roman law in the south-eastern province of Dauphiné.

Keywords:   bastard, droit de bâtardise, French law, inheritance, marriage, customary law provinces, written law provinces, jurisprudence des arrêts, canon law, roman law

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