HAST A HI >. 



BASTARDY. 



word are varioun and un*aUfa<Ttory. IU root ban been ought in 

 WTwml Unjruagm the Greek, Saxon, German, Webb, Icelandic, and 

 Fenian. For the ground* on which the nratoaajon* of all the*e lan- 

 guage* are respectively mpported, we refer the curiotu to the glo*arie* 

 ol Duoange and Spelman, the more recent one of Boucher, and to the 

 note* on the title ' Bactard ' in Bacon'* ' Abridgment' 



Among English writer* it i* applied to a child not bom in lawful 

 wedlock, and a* such he ia technically di*tinguished frum a mu/i'ir (Mini 

 who i* the legitimate offspring of a mtJicr or married 



Our ancestor* very early adopted strict notion* on the subject of 

 legitimacy ; and when the prelate* of the 13th century were desirous 

 of establishing in this country the rule of the canon law, by which 

 children born bastards are legitimated upon the subsequent inter- 

 marriage of their irents, the baron* assembled at Merton (1235) 

 replied by the celebrated declaration, " that they would not consent to 

 change the laws of England hitherto used and approved." 



It has been observed, that this sturdy repugnance to innovation was 

 the more disinterested, inasmuch as the lax morality of those days 

 must probably have made the proposition not altogether unpalatable 

 to many to whom it was addressed. The opposition therefore seems to 

 have been prompted by a jealousy of ecclesiastical influence, which was 

 at that time ever watchful to extend the authority of the church by 

 engrafting on our jurisprudence the principles of the canon law. 



On another point our ancestors were less reasonable ; for it waa very 

 early received for law, not only that the fact of birth after marriage 

 was emmnriil to legitimacy, but that it was conclusive of it. Hence it 

 was long a maxim that nothing but physical or natural impossibility, 

 such a* the continued absence of the husband beyond scan, &c., could 

 prevent the child so born from being held legitimate, or justify an 

 inquiry into the real paternity. 



Their liberality in the case of posthumous children was also remark- 

 able ; for in the case of the Countess of Gloucester, in the reign of 

 Edward II., a child born one year and seven months after the death of 

 the duke was pronounced legitimate; a degree of indulgence only 

 exceeded by the complaisance of Mr. Sergeant Rolfe, in the reign of 

 Henry VI., who was of opinion that a widow might give birth to a 

 child at the distance of seven years after her husband's decease without 

 wrong to her reputation. (Coke upon Littleton, 123, b. note by 

 Mr. Margrave ; Hollo's 'Abridgment' Bastard; Le Mai-chant's ' Preface 

 to the case of the Banbury Peerage.') 



The law now stands on a more reasonable footing, and the fact of 

 birth during marriage, or within a competent time after the husband's 

 death, is now held to be only a strong presumption of legitimacy, 

 capable of being repelled by satisfactory evidence to the contrary. 



Another curious position of doubtful authority is also found in our 

 old text writers ; namely, that where a widow marries again so soon 

 after her husband's decease that a child born afterwords may reasonably 

 be supposed to be the child of either husband, then the child, upon 

 attaining to years of discretion, shall be at liberty to choose which of 

 the two shall be accounted his father. It was to obviate this embar- 

 rassing state of things, that the civil law prescribed on ' annum luct&x,' 

 or year of grief, during which the widow was prohibited from contract- 

 ing a second marriage ; and our own law provided the now obsolete 

 proceeding on a writ tie mitre intpiciendo. 



The legal incapacities under which an illegitimate child labours by 

 the law of England are few, and are chiefly confined to the cases of 

 inheritance and succession. He is regarded for most purposes as the 

 son of nobody, and is therefore heir-at-law to none of his reputed 

 ancestors. He is entitled to no distributive share of the personal 

 property of his parent*, if they die intestate ; and even under a will he 

 can only take where he i* distinctly pointed out in it as an object of 

 the testator's bounty, and not under the general description of ' son,' 

 'daughter,' or ' child,' by which legitimate children alone are presumed 

 to be designated. He may however acquire property himself, and thus 

 become the founder of a fresh inheritance, though none of his lineal 

 descendants can claim through him the property of his reputed 

 relations. If he dies without wife, issue, or will, his lands and goods 

 escheat to the crown, or lord of the fee. In the former event, it is 

 usual for the crown to resign its claim to the greater part of the 

 property on the petition of some of his nearest rjiuui kindred. 



Strictly Hjicaking, a bastard has no surname until he has acquired 

 one by reputation, and in the meantime he is properly called by that 

 of his mother. 



The first English statute which provides for the maintenance of ille- 

 gitimate children is the 18th of Elizabeth, cap. 3, which confers on 

 justice* of the peace the power of punishing the parent*, ami of 

 requiring from one or both of them a weekly or other payment for 

 tin ir support. Under this and later Act* of Parliament, the usual 

 practice wa* for the mother to apply for relief to the parish officers, by 

 whom ahe was carried before certain magistrates to bo interrogated 

 respecting the paternity of the child. An order of filiation wo* then 

 made, and the male adjudged to be the reputed father, and ordered to 

 contribute a weekly payment, or to indemnify the parish against the 

 future expense* of maintenance. (Blackst. Com.,' Mr. Kcrr'* od., voL i. 



The commijMtoneni appointed in 1832 to inquire into the adminis- 

 tration of the Poor-Law*, recommended the exemption of the reputed 



father from all liability to the support of the child. The proposal was 

 s'i|.|..rtod by arguments -not devoid of plausibility, and is said i )* 

 Kinctioned by the favourable experience of other countries; it wa* 

 however rtrenuouitly opposed in both Houses of Parliament, and was 

 eventually *o modified a* to leave the law nearly as it stood before. 

 (' Report of the Commissioner*/ pp. 105, 343, 8vo. ed. ; stat 4 4 5 

 Will. IV. e. 76 ; 2 4 3 Viet. c. 88.) 



The proceedings to affiliate a child are now, except in certain oases, 

 exclusively at the instance of the mother (74* Viet. o. 101 ; - 

 c. 10), who is bound in any case to maintain the child, and in case of 

 neglect to do no, may be punished as a rogue and a vagabond. 

 (6 Geo. IV. c. 83.) 



The civilians and canonist* distinguish illegitimate children into 

 four or five classes not recognised hi the English law ; it may however 

 be worth while to remark, that the familiar term natural, applied by 

 us to all children born out of wedlock, is in that classification confined 

 to those only who are the offspring of unmarried parent* living in con- 

 cubinage, and who labour under no legal iiui>ediment to intermarriage. 

 Children of the last-mentioned clam are, by the civil and canon law, 

 capable of legitimation by the subsequent union of the parents, or l.y 

 other acts which it ia needless here to particularise. (Heineocius, 

 ' Syntag.' v. L, p. 159 ; Ridley's View,' Ac., p. 350, ed. 1675 ; ' 

 phin'a ' Repertorium Canonicum,' cap. 35.) 



By the Athenian law (passed in the archonship of Eucleides, B.C. 403), 

 as quoted by Demosthenes (' Against Macartatus,' cap. 12), Ulegitim .! 

 children were cut out from all inheritance and succession ; nor could .1 

 man who had legitimate main offspring leave his property to other per- 

 sons, and consequently not to his illegitimate children. A ): 

 law of Pericles (' Life ' by Plutarch, cap. 37) declared that thorn only 

 were legitimate and Athenian citizens who were born of two Athenian 

 parents. This law, which was repealed or violated in favour of a son 

 of Pericles, was re-enacted in the archonship of Eucleides. (Athemcus, 

 xiii. 577; Demosthenes 'Against Eubulides,' cap. 10.) 



The repute in which spurious children have been held has varied in 

 different ages and countries. In some they have been subjected to a 

 degree of opprobrium which was inconsistent with justice ; in 

 the distinction between base and legitimate birth appears to ha\ 

 but faintly recognised, and the child of unlicensed love has avowed his 

 origin with an indifference which argued neither a sense of shame nor 

 a feeling of inferiority. When the Conqueror commenced his missive 

 to the Earl of Bretngne by the words, " I, William, surnauiod the 

 Bastard," he can have felt no desire to conceal the obliquity of his 

 descent, and little fear that his title would be defeated by it. '.\ 

 ingly, history presents us with many instances in which the succession 

 not only to property, but to kingdoms, has been successfully claimed 

 by the spurious issue of the ancestor. It is however very improbable 

 that, in any state of society where the institution of marriage has pre- 

 vailed, children bom in concubinage and in lawful wedlock ghoul 

 have been regarded by the law with exactly equal favour. (Ducange, 

 ' Glossary,' tit. ' Bostardus.') 



Those who may be curious to learn what fanciful writers have urged 

 in proof of the superior mental and physical endowments of illegitimate 

 issue, may refer to Burton's ' Anatomy of Melancholy," vol. ii. p. 16 

 (ed. 1821); Posquier ' Recherches,' chap. 'De quelqucs mem. 

 bfttards ; ' and Pontus Heuterus 'de Libert Hominis Nativitate. 

 also Shakspere's ' King Lear,' act. 1, scene 2 ; and the observations of 

 Dr. Elliotson in his edition of Blumenbach's ' Physiology,' in n 

 chap. 40. 



BASTARDY. Under the act of Elizabeth and later acts of par- 

 liament, down to the passing of the Poor Law Amendment Act in l - I . 

 the usual practice was for the mother to apply for relief to the parish 

 officers, by whom she was carried before the magistrates in petty 

 session to be interrogated respecting the paternity of the child. An 

 order of affiliation was then made, and the reputed father was ordered 

 to contribute a weekly payment, or was bound to indemnify the parish 

 against the future expenses of maintenance. " In form, the proceeding 

 was against the putative father for the indemnification of the parish ; 

 but in substance it was a proceeding of the mother against the pu 

 father, the benefit of which accrued to her, and to which the parish 

 was little more than a nominal party, except when it made good the 

 father's default. It was in truth on action of the mother against the 

 putative father, for a contribution towards the expenses of their common 

 child, in which by a fiction of law, the parish was plaintiff." (' On tin: 

 law concerning the maintenance of bastards, by the Poor Law cni 

 missioners,' Parl. paper, No. 31, session 1834.) In this state of things 

 the Commissioners of Poor Law Inquiry (1834) recommended tli 

 mother of a bastard should bo rendered liable for its maintenance, but 

 that *he should be exempted from the punishment under 30th 

 Oeo. III. c. 61, and that all enactment* charging the putative father 

 should bo repealed. The Bill for amending the Poor Law, brought in 

 in 1834, as it ultimately passed (4 4 6 Will. IV. c. 70, ss. 7276), 

 enacted that the parish might still apply for an order upon tin 1 putative 

 father, but this was to be done at the quarter sessions instead 

 petty sessions; and corrobor.it r. .i.l.-ncc wa* required; and other 

 difficulties and onerous conditions were thrown in the way, which 

 showed that " the object of the legislature was to impede rather than 

 encourage the applications to quarter sessions." The number of 

 bastards affiliated in England and Wales, in the years ending 



