HAS 



12 



B A S 



having adopted much of the Roman and pontifical doctrines 

 of marriage and legitimacy. 



Thus, iu England, in the case of a divorce in tiro spiritual 

 court, ' d rin<-uto malnmuiiii,' the issue born during the 

 coverture are bastards. But agreeably to tlio judgment of 

 the canon*, Dfcrft. (Sreg., lib. iv., tit. 1 7, c. 14, the Scottish 

 writers, proceeding on the bona fides of the parties, incline 

 to a different opinion, in/avorem prolit; and it will be re- 

 collected that when Secretary Lelhington proposed to Mary 

 Queen of Scots a divorce from Darnley, .lames Earl of 

 Bothwoll, to quiet her fears for her son, allegit the 

 exampill of himself, that he ccissit not to succeid to hit 

 father's heritage, without any difficultie, albeit thair was 

 divorce betwixt him and his mother.' The point has not, 

 however, received a judicial determination, ana cannot there- 

 fore be regarded as settled, though of the tendency of the 

 law there can be little doubt. Even in the case of a mar- 

 riage between a party divorced for adultery and the adul- 

 terer, which by slat 1600, c. 20, following the civil law, is 

 declared ' null and unlawful in itself, and the succession to 

 oe gotten of sik unlawful conjunctions unliablc to succeid 

 as heires to their said parents ;' the issue are not accounted 

 bastards, 'though,' as Stair adds, b. iii., tit. 3, sect. !-'. 

 ' they may be debarred from succession.' Of course, tin- 

 issue of every legal marriage are lawful, and therefore the 

 children not only of marriages regularly solemnized, 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 intermarriage of their pa- 

 rents ; 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, they call legitima- 

 tion prr tubtequen* matrimonium, and legitimation per re- 

 tertfituin principit. 



The former of these was introduced into the Rumau 

 jurisprudence by a constitution of the Emperor Constan- 

 tine the Great, but did not become a permanent method of 

 legitimation till the time of Justinian. It was afterwards 

 taken up 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. 



Though the English law was preserved inviolate, yet the 

 ecclesiastics 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 i-land. The doctrine was cer- 

 tainly no part of the antient common law of Scotland any more 

 than of England ; but it is now settled law there, and its 

 rise and establishment are at once accounted for, when we, 

 consider the former strong or rather paramount influence of 

 the canon and civil laws in that country. The principle on 

 which the doctrine rests is the fiction of law that the parents 

 were married at their child's birth. If therefore the parents 

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

 has intervened between the birth and the intermarriage, 

 the fiction is excluded, and previous issue will not be legi- 

 timated by marriage. Further, it is held that if the child 

 was born, or if tin- intermarriage took place, in a country 

 w hndi does not acknowledge the doctrine of legitimation by 

 subsequent marriage, the child will remain a bastard; the 

 character of bastardy being in the one case indelible, and 

 the marriage in the other ineffectual to create legitimacy. 

 On the other hand, a child legitimated per tubsequeru ma- 

 Irim'iniiim is entitled to all the rights and privileges of 

 lawful issue, and will, as respects inheritance and the like, 

 take precedence of subsequent issue born in actual wedlock : 

 yet in England the judges liavc held, that a child born in 

 Scotland before marriage and legitimated in Scotland by 

 subsequent marriage, th mgh in point of fact the first-Irani 

 son, and in status and condition, by comity, legitimate 

 in England, will not succeed to land in England. (Set 

 Doe di-m. Birtwhistle v. Vardill, 5 Bam. and Cress. 438 ; 

 and opinions of the judges in dom. proc. 10th June, 

 1830.) 



Legitimation per rficriptiim principit 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'1/.-tters of legitimation 

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

 seems to have been borrowed by the Scots immediately nut 

 of the old French jurisprudence : their clauses arc usually 



very ample, capacitating the grantee for all honours and 



ottVos VMtsoever, ;m<l to dual! acts iii judgmi'iit or outwith, 

 and, in short, imparting to him all the pulil;. nyiiis of lawful 

 children and natural born subject-., 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 tin 

 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 

 incapable of holy orders ; and, indeed, it has been the \ 

 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 . 

 deration of the evils resulting to their offspring. But w hat- 

 ever may be the operation of those incapacities, they are 

 felt by all to be wrongs indicted on the innocent, and at 

 Justinian properly observed when he made legitimation ; 

 subsequent matrimonium a perpetual ordinance, ' indigni 

 non sunt qui alieno vitio laborant.' Accordingly the doc- 

 trine is now obsolete in England and ne 

 land. The only remaining incapacity in Scotland M-. 

 be want of power to make a testament in the particular 

 of the bastard having no lawful issue. Letters of legitima- 

 tion were former!) m-ec-^ary in all cases : but it is now held 

 that as the crown's right of succession i- excluded by the 

 existence of issue, a bastard who has lawful issue ma 

 pose of his goods by testament in any way lit- tliinl. 

 With the above exception only, then, there ; 

 between a bastard and another man ; and so lie may dispose 

 of his heritage IB liege pniulie, and of his movcablcs inter 

 vivo*, and (if he has lawful issue) by testament, and he 

 may succeed to any estate, real or personal, by .-| 

 filiation. To his lawful children also lie may appoin 

 tamentary guardians; and his widow has her pr,i\isions 

 like other relicts. It is to be noted, however, that i 

 eye of law a bastard is ntiliiti* Ji/ini ; and being thus of km 

 to nobody, he cannot be heir-at-law to any one, n< 

 he have such heirs save his o\vn lawful i- ore a 



1 die*, k-axiin: no heir, the crown, as nllimiiK lucres, 

 takes up his properly, which, if it be land holdcn in capitc, is 

 at once cmiMilidated with the superiority : but if it be holden 

 of a subject, the crown appoints a donatary, who. to com- 

 plete his title, must ul ; 



a process in the nature of the English trrit f r.w/nv . 

 thereupon he is presented by the king to the superior us 

 his va- 



But though bastards are legally nullitis ftlii, yet the law 

 takes IK. lice of their natural relationship to several purposes, 

 and particularly to enforce the natural duties of their 

 parents. These duties are comprised under the teria 

 aliment, which here, as in the civil law, comprehends both 

 maintenance and education ; including under this latter term, 

 as Lord Stair says (b. 1, tit. 5, sec. G), 'the breeding of them 

 for some calling and employment according to their car 

 and condition.' These were at least the principles on u hich 

 the courts proceeded in awarding aliment to children. In 

 determining who is the father of a bastard, the Scots 

 courts again proceed on the principles of the civil law. In 

 Scotland there must first be semi-plenary evidence qf the 

 paternity, and then, when such circumstantial or other 

 proof of that fact is adduced as will amount to srmiptena 

 probatio, the mother is admitted to her oath in supplement. 

 The whole aliment is not due from one parent but from 

 both parents. This is the principle : and therefore in de- 

 termining what shall be payable by the father, the ability 

 of the mother to contribute is also considered. The 

 lute amount of aliment, however, is in the discretion of the 

 court, as is likewise its duration. Where, the parlies arc 

 paupers, the bastard's settlement is not the father's but the 

 mother's parish, and if that is unknown, the parish of 

 its birth. 



The mother of a bastard is entitled i ly during 



its infancy ; and it would seem that afterwards the father 

 die tho rearing of the child into liis own bund, and 

 also, pt'ih;-.;'-, Humiliate to ii tutors and curators. This last 

 power has been denied if it docs not exist it ought to bo 

 now bestowed by act of parliament, and by the same means 

 the lost remnant of a bastard's civil incapacity removed by 

 his being |>crniitted to make a testament, though he have 

 no lawful issue. 



HASTKNM'.S, a village in France, in the department 

 of Landcs and in the canton of Amou, which is a small 



