931 



BASTARDY. 



BASTARDY. 



respectively 25th of March, 1835 and 1836, was 12,381 and 9686. 

 The practice of affiliation was therefore rapidly diminishing under the 

 Poor Law Amendment Act, but it was alleged that the putative 

 father was not punished, while the consequences fell solely upon the 

 woman. In 1839, therefore, an act was passed (2 & 3 Viet. c. 85) 

 which transferred the power of making orders in bastardy from the 

 quarter sessions to any two justices in petty sessions, and facilitated 

 instead of discouraged affiliations. Payments by putative fathers 

 under orders in bastardy, were, under 2 & 3 Viet. c. 85, "limited 

 to the cost of the relief actually given ; they have been made bond 

 fide to the parish, and therefore the parish has not been a purely 

 formal party to the proceeding, and a mere screen to the woman." 

 (Report of Poor Law Commissioners, Jan. 31st, 1844.) The law re- 

 specting bastardy has been still more recently the subject of legislation, 

 and by 7 & 8 Viet. c. 101, the principle of charging the putative father 

 is totally different from that of any previous law on the subject. 

 " Formerly the remedy was intended exclusively for the parish : now 



the mother alone can obtain it Formerly the chargeability of 



the child, either in fact or in prospect, was the ground of the remedy : 

 now the actual or probable chargeability of the child is made wholly 

 immaterial." (' Official Circular,' No. 39, Oct. 1, 1844.) The officers 

 of all parishes and unions are deprived of the power of applying for 

 orders of affiliation with regard to illegitimate children, and the 

 mother alone is entitled to apply, at the petty sessions, for such order ; 

 but in case of the death or incapacity of the mother, the guardians of 

 unions, or if there are no guardians the overseers, may enforce an 

 order although they cannot apply for one, and payments are to be 

 made to some person appointed by the justices to have the custody of 

 the child, and not to the parish officers ; and such person is to receive 

 the child on the condition that it is not to be chargeable. Parish 

 officers are guilty of misdemeanour for endeavouring to promote the 

 marriage of a mother of a bastard, by threats or promises respecting 

 any application to be made for maintenance. The mother of a bastard 

 may summon the putative father before the petty sessions within 

 twelve months after the birth of the child, for the purpose of affiliation, 

 or at any time on proof of money having been paid to her in respect 

 of such child. The justices may then make an order on the putative 

 father for maintenance of the child and other costs, and enforce the 

 same by distress and commitment ; but, not more than thirteen weeks' 

 arrears can be claimed. The sum paid for maintenance is to be paid to 

 the mother, and if she neglect or desert her offspring she may be 

 punished under the Vagrant Act (5 Geo. IV. c. 83). While unmarried 

 or a widow, the mother is liable for the maintenance of the child until 

 it is sixteen. Any person having the care of a bastard child under an 

 order of maintenance, who maltreats it, or misapplies moneys paid by 

 the putative father for its support, is liable to a penalty of 101. on con- 

 viction before two justices. The putative father may appeal to the 

 quarter sessions, as under the old law. The stat. 8 & 9 Viet. c. 10, 

 contains forms, and regulates the proceedings at petty sessions and on 

 appeal. All orders for the maintenance of a bastard cease after it has 

 attained the age of thirteen, or on the marriage of the mother. 



In the Savings Bank Act (7 & 8 Viet. c. 83) there is a clause under 

 which the deposits of illegitimate persons who die intestate may be 

 paid to their heirs, as if they had been legitimate ; but in other 

 respects the law relating to the succession and inheritance of bastards 

 remains the same. By 6 Will. IV. c. 22, the incapacity of bastards in 

 England to dispose of their moveable estates by will was removed. 



The late Mr. Rickman was the first who attempted to ascertain the 

 number of illegitimate births in England. During the progress of the 

 census of 1831, he obtained from the ministers of churches and chapels 

 the number of bastards born in their parishes or chapelries in 1830. 

 The number returned was 20,039. Under the Registration Act (6 & 7 

 Will. IV. c. 86) no specific reference is made to illegitimate children, 

 but the penalty for making a false statement combined with the local 

 knowledge of the registrars, in most cases prevents such children being 

 registered as born in wedlock. Still there is no doubt that the regis- 

 trar's returns will give something less than the real number of illegiti- 

 mate children born. Of the births which escape the vigilance of the 

 registrars, it is most probable that the proportion of those which are 

 illegitimate is greater than in the total registered births. Still-born 

 children are not registered in England, and here again the proportion 

 is higher for illegitimate births than for births in wedlock. In Saxony 

 the proportion of still-born children to 10,000 illegitimate births is 

 616, in 10,000 other births 464. Whatever may be the number of 

 illegitimate births as they appear on the face of the register, it may 

 safely be assumed that they are below the actual number. If the 

 mortality of illegitimate children were the same as that of children 

 born in wedlock, the number of illegitimate persons living would 

 exceed one million for England and Wales. It is both a social and 

 political evil when so large a proportion of persons exist in any society 

 With ties of a different nature from those of the majority of the popu- 

 lation. The condition of an illegitimate child is very frequently a 

 hard one from the moment of its birth. 



BASTARDY. The Scottish law of bastardy differs considerably 

 from the English, chiefly in consequence of its having adopted much of 

 the Roman and pontifical doctrines of marriage and legitimacy. 



Thus, in England, in the case of a sentence of nullity of a 

 marriage, the issue born during the cohabitation are bastards. But 



agreeably to the judgment of the canons, ' Decret. Greg.,' lib. iv. 

 tit. 17, e. 14, the Scottish writers, having regard to the iiona fides 

 of the parties, incline to a different opinion, in favarem prolis ; and it 

 will be recollected that when Secretary Lethington proposed to Mary 

 Queen of Scots a divorce from Daruley, James Earl of Bothwell, to 

 quiet her fears for her sou, " allegit the exampill of himself, that he 

 ceissit not to succeid to his father's heritage, without any difficultie, 

 albeit thair was divorce betwixt him and his mother." The point has 

 not, however, received a judicial determination, and cannot therefore 

 be regarded as settled, though of the tendency of the law there can be 

 little doubt. Even in the case of a marriage where one of the parties 

 is, unknown to the other, already married to another person, still in 

 life, the weight of authority inclines strongly to the side of the legi- 

 timacy of the offspring, in favour of the bona fides of one of the parents. 

 Of course, the issue of every legal marriage is lawful, and therefore the 

 children not only of marriages regularly solemnised, but also of every 

 union acknowledged by the law as a marriage, are alike legitimate. The 

 same may be said of children legitimated by the subsequent inter- 

 marriage of their parents ; but the situation of these is, as we shall 

 immediately see, somewhat anomalous. 



The Scottish law has adopted two species of legitimation, which, in 

 the language of the civil law, it calls legitimation per subsegiiens matri- 

 monimn, and legitimation per rescriptum principis. 



The former of these was introduced into the Roman jurisprudence 

 by a constitution of the Emperor Constantino the Great, but did not 

 become a permanent method of legitimation till the time of Justinian. 

 It was afterwards adopted by the Roman pontiffs and disseminated by 

 the ecclesiastics throughout Europe. At the parliament of Merton, 

 however, the doctrine met with a repulse from the barons of England ; 

 but though the English law was preserved inviolate, yet the eccle- 

 siastics did not cease to press the point among the people, and to this 

 day we may remark traces of the custom in some of the remoter 

 districts of the island. 



The doctrine was certainly no part of the ancient common law of 

 Scotland any more than of England ; but it is now settled law there, 

 and its rise and establishment are unquestionably to be referred to the 

 influence of the canon and civil laws in that country. The principle 

 on which the doctrine rests was once supposed to be a fiction of law, 

 that the marriage of the parents related back to their child's birth. If 

 the parents could not then have legally married, or if a mid impediment 

 intervened between the birth and the marriage, it was thought that 

 the fiction was excluded, and that the previous issue would not be 

 legitimated by marriage. But in one of these cases this theory has 

 been overruled, and it has been decided that an intervening marriage 

 of one of the parties to another person does not prevent the sub- 

 sequent marriage of the two parents from legitimating their children 

 born previously in bastardy. The sole restriction now admitted is 

 that which was established simultaneously with the first introduction 

 of the principle in the civil law, namely, that the parents must have 

 been capable of contracting marriage with each other at the time of the 

 birth of the offspring. It is not, however, decided whether, in the case 

 of an intervening marriage of the father to another woman, by whom 

 he has issue, the subsequent legitimation of bastards whom he had 

 prior to that marriage will give them the rights of primogeniture over 

 its issue. It is thought it would not, although, in the general case, a 

 child legitimated takes precedence of its full brothers and sisters born in 

 subsequent wedlock. If the father is domiciled in a country which 

 does not admit the doctrine, legitimation will not follow from sub- 

 sequent marriage ; but the circumstance of the marriage taking place 

 in such a country will not prevent legitimation from taking effect, if 

 the father is domiciled in Scotland. In England the judges have held, 

 that a child born in Scotland before marriage, and legitimated in Scot- 

 land by subsequent marriage, though in point of fact the first-born son, 

 and in status and condition, by comity, legitimate in England, will not 

 succeed to land in England. 



Legitimation per rescriptum principis proceeds on a less abstract and 

 more generally-acknowledged principle than the preceding. Though, 

 therefore, it is said to have been invented by Justinian, and copied by 

 one of the popes of Rome, yet concessions in the nature of letters of 

 legitimation are not peculiar to the Roman law. The form of these 

 letters seems to have been borrowed by the Scots immediately from 

 the old French jurisprudence : their clauses are usually very ample, 

 capacitating the grantee for all honours and offices whatsoever, and to 

 do all acts in judgment or outwith, and, in short, imparting to him all 

 the public rights of lawful children and natural-born subjects, together 

 with a cession of the crown's rights by reason of bastardy ; but as the 

 crown cannot affect the rights of third persons without their consent, 

 letters of legitimation do not carry a right of inheritance to the 

 prejudice of lawful issue. 



As, in the Mosaic law, a bastard was debarred from the congregation, 

 so, according to the canons, he is, in strictness, incapable of holy orders; 

 and, indeed, it has been the policy of most nations to incapacitate 

 bastards in divers ways, that if men will not be deterred from 

 immorality by a sense of the injury accruing to themselves, they 

 may by a consideration of the evils resulting to their offspring. But 

 whatever may be the operation of those incapacities, they are felt by 

 all to be wrongs inflicted on the innocent ; and as Justinian properly 

 observed, when he made legitimation per tubsequens matrimoniwi a 



