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eenlury were desirous of establishing in this country the I is then made, in which the male offender is adjudged to be 



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rule of the canon law, by which spurious children are legi- 

 timated upon the subsequent intermarriage of their parents, 

 the barons assembled at Merton (A.D. 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 in- 

 novation was the more disinterested, inasmuch as the lax 

 morality of those days must probably have made the pro- 

 position 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 was very early received for law not only that the fact of 

 birth after marriage was essential to legitimacy, but that it 

 was conclusive of it. Hence it was long a maxim that no- 

 thing but physical or natural impossibility, such as the con- 

 tinued absence of the husband beyond seas, &c., could pre- 

 vent 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 remarkable : for in the case of the Countess of Glou- 

 cester, in the reign of Edward II., achild 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. Serjeant Rolfe, in th<f 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. (See Coke upon 

 Littleton, 123, b. note by Mr. Hargrave ; Rolle's Abridg- 

 ment, Bastard; and Le Marchant'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 

 wi.luw marries again so soon after her husband's decease 

 that a child born afterwards may reasonably be supposed to 

 be the child of either husband, then the child, upon attaining 

 ' i vrars of discretion, shall be at liberty to choose which of 

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

 this embarrassing state of things that the civil law prescribed 

 an ' annum luclus,' or year of grief, during which the widow 

 was prohibited from contracting a second marriage ; and 

 our own law provided the now obsolete proceeding on a writ 

 de venire inspiciendo. 



The legal incapacities under which an illegitimate child 

 labours by the law of England are few, and are chiefly eon- 

 fined to the cases of inheritance and succession. He is re- 

 garded 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 parents, 

 if they die intestate ; and even under a will he can only take 

 where he is 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. Ho 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 quasi 

 kindred. 



Stri'-tly speaking, 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 mainten- 

 ance of illegitimate children, is the 18th of Elizabeth, cap. 3, 

 which confers mi justices of the peace the power of punishing 

 the parents, and of requiring from one or both of them a 

 weekly or other payment for their support. Under this and 

 later acts of parliament, the usual practice has been for the 

 mother to apply for relief to the parish offlcera, by whom 

 she is carried before certain magistrates to be interrogated 

 respecting the paternity of the child. An order of filiation 



the reputed father, and is ordered to contribute a weekly 

 payment, or is bound to indemnify the parish against the 

 future expenses of maintenance. 



In this state of things, the commissioners lately appointed 

 by his Majesty to inquire into the administration of the 

 poor-laws, recommended the total abolition of punishment, 

 and the exemption of the reputed father from all liability 

 to the support of the child. The proposal was supported 

 by arguments not devoid of plausibility, and is said to be 

 sanctioned by the favourable experience of other countries ; 

 it was however strenuously opposed in both Houses of Par- 

 liament, and was eventually so modified as to leave the law 

 nearly as it stood before the passing of the late act. (See 

 the Report of the Commissioners, p. 165, 343, 8vo. ed., and 

 stat. 4 and 5 Will. IV., chap. 76.) 



According to late official tables, the proportion of illegiti 

 mate to legitimate births was in the year 1830 as one t 

 twenty in England ; the proportion in France is as one to 

 thirteen, and in Paris alone as one to three. The proportion 

 in Wales was as one to thirteen in the year 1830; but in 

 no city or town in the British islands is the proportion com- 

 parable with that of Paris. In Denmark the illegitimate 

 are one in ninety-six ; in Norway one in fourteen ; and 

 in Hamburgh one in five. (Reports of Poor-Law Com 

 mi.moners.) 



The civilians and canonists distinguish illegitimate child- 

 ren into four or five classes not recognised in 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 wed- 

 lock, is in that classification confined to those only who are 

 the offspring of unmarried parents, living in concubinage, 

 and who labour under no legal impediment to intermarriage. 

 Children of the last-mentioned class are oy tne civil and 

 canon law, capable of legitimation by the subsequent union 

 of the parents, or by other acts which it is needless here to 

 particularize. (See Heineccius, Syntag, vol. i., p. 159 ; Rid- 

 ley's View, &c., p. .350, ed. 1675 ; Godolphin'o Repertorium 

 Canonicum, chap. 35.) 



By the Athenian law (passed in the archonship of Eu- 

 cleides, B.C. 403), as quoted by Demosthenes {Against 

 Macartalus, cap. 12), illegitimate children were cut out from 

 all inheritance and succession ; nor could a man, who had 

 legitimate male offspring, leave his property to other per- 

 sons, and consequently not to his illegitimate children. A 

 previous law of Pericles (see his Life by Plutarch, cap. 37) 

 declared that those 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. 

 (Athcnicus, 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 others the distinction between 

 base and legitimate birth appears to have been 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 Bretagne by the words, 

 I, William, surnamed 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. Accordingly, 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, how- 

 ever, very improbable that in any state of society where the 

 institution of marriage has prevailed, children born in con- 

 cubinage and in lawful wedlock should ever have been re- 

 arded by the law with exactly equal favour. (See Ducange, 

 Glossary, tit. Bastardus.) 



Those who may bo 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) ; Pasquier 

 Recherches, chap. ' De quelques memorables bStards ;' and 

 Pontus Heuterus de Liberu Ilnmiuii Xatiritate. See also 

 Shakspcare's Lear, act 1, scene 2 ; and the observations of 

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

 notes to chap. 40. 



BASTARDY. The Scottish law of Bastardy differs con- 

 siderably from the English, chiefly in consequence of its 



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