Children born out of wedlock have until relatively recent times suffered serious legal, religious, and social disadvantages in most Western societies. Indeed, Professor Witte mentions in the introduction to this book his own perplexity and discomfort when as a youth he witnessed the public expulsion of an unwed mother and her bastard child from a Christian congregation to which he belonged. This “essay,” as Witte calls it, forms part of a series of studies on “The Child in Law, Religion, and Society” on which he is currently engaged.
Biblical references to illegitimacy contain mixed messages. Some passages, such as “the sins of the fathers shall be visited upon their children” might well be interpreted as authorizing the infliction of penalties upon bastard children, while both Jesus and St. Paul seem to draw analogies between bastards and those who rejected the message of the gospels (John 8:31–59; Galatians 4:21–31). Still other passages, however, forbid believers to “pervert the justice” that fatherless children deserve (for example, Deuteronomy 24:17 and 27:19 as well as Isaiah 9:17, among others) and declare that “the son shall not suffer for the iniquity of his father” (Ezekiel 18:19–20).
While pre-Christian Roman law had not treated illegitimacy as a moral or social problem, the Christian emperors stigmatized bastards as the shameful products of illicit intercourse and imposed a variety of penalties upon them—among other disabilities, they became ineligible to hold public office, and their parents were banned from giving them gifts or leaving legacies to them. Medieval canonists came to distinguish five types of illegitimates, subject to differing degrees of disability and with differing prospects for legitimation, and considerable portions of canon law found their way into Continental law codes during the eighteenth and nineteenth centuries.
English common law was especially hard on bastards. Illegitimate children could not secure legitimacy if their parents subsequently married, for example, and drastically limited their ability to dispose of their own property. English law also lacked any provisions for legal adoption (and continued to do so until the twentieth century), although this had long served as a means for securing legitimate status in Continental jurisdictions. Common law in the American colonies incorporated many provisions of the English law of bastardy but gradually modified them during the nineteenth and especially the twentieth centuries. By the end of the twentieth century, virtually all the earlier disabilities visited upon illegitimacy had disappeared, even if some obsolete laws still remain in the statute books. Witte's book closes with a plea that adoption be better administered and funded than it commonly is in the United States, in part at least as a way to remove the social stigmas still attached to illegitimate status.
Despite a couple of minor misstatements (recognition of the Corpus iuris canonici goes back to the Council of Basel, well before 1586 as Witte has it at page 75, and his treatment of the status of marriages of clerics in minor order at page 117 is not quite correct), Witte's book provides a short but comprehensive account of the history of illegitimacy. It is a well-written and welcome addition to the literature on the subject.
