“whosoever bulleth my cow, the calf is mine”

Yesterday we posted a case concerning DNA testing for historical illegitimacy. If DNA is used widely it may prove some long held rumours that noble houses passed via Bastard children – that being said in the United Kingdom there have been numorous Royal Bastards; leading to the foundation of a society open to individuals who can prove descent from an illegitimate child, grandchild or great-grandchild of a king of England, Scotland, Wales, Great Britain or the United Kingdom.

Bastardy had a number of legal effects on an individual, principally it restricted the ability to inherit titles. The Provisions of Merton 1235 known as the Special Bastardy Act 1235, provided that in most circumstances it was not required that bastardy be proved by ecclesiastical courts; however it was not until the nineteenth century that bastardy  was completely removed from  Ecclesiastical jurisdiction.

There is strong evidence that King Edward IV, who reigned from 1461 to 1483, was conceived when his parents were 100 miles apart. Edward’s supposed father, Richard, 3rd Duke of York, was said to be fighting the French near Paris, while his mother, Lady Cecily Neville, was at court in Rouen.

It was said that Lady Cecily was spending a great deal of time with an archer named Blaybourne leading to rumours they were having an affair. King Louis XI of France is said to have once claimed about King Edward:

“His name is not King Edward – everybody knows his name is Blaybourne.”

There is an argument that the Crown should have passed to George Plantagenet, 1st Duke of Clarence and brother of Edward IV, then down the Plantagenet line to Simon Abney-Hastings of Wangaratta the 15th Earl of Loudoun; and rightful King.

However there were differences between the ecclesiastical and common law findings of illegitimacy. Ecclesiastical law bastardised children born from an adulterous relationship, but the common law had a strong presumption against a finding of illegitimacy for a child born to a married woman. Therefore in the situation outlined above it was presumed that a child born to a married couple was legitimate.

The ‘four seas’ test held that as long as the husband was not impotent and he was in the kingdom at any time at all during the pregnancy then the child was legitimate. This was expressed rather inelegantly as “whosoever bulleth my cow, the calf is mine”. This test was used until 1732 when it was abandoned “on account of its absolute nonsense”.

In reality the succession to the English throne is governed by the Act of Settlement 1701 providing that, inter alia, anyone who became a Catholic, or who married one, became disqualified to inherit the throne. This law has been amended to exclude any possible future descendants of Edward VIII from the line of succession; replacing male preference primogeniture under which male descendants take precedence over females in the line of succession with absolute primogeniture; and ending the disqualification of those married to Catholics.

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