B A S 



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Whereas our con.litiitioiis jjiiard againil this indecency, and 

 at the faoie time afford fufiicicnt allowance to the frailties of 

 human nature, lor if aciiildbe begotttn while the parents 

 are iingic, and they will endeavour to make an early repara- 

 tion for the ufFtncc by inariying within a few moiilhs after, 

 our law is fu indulgent as not to baftardize tilt child, if it 

 be born, though not begotten, in lawful wedlock ; for this 

 is an incident that can happen but once, fince all future 

 cjiildren will be begotten, as well as born, withhi the rules 

 of honour and of civil fociety. Upon reafons like tfiefe, 

 Blackftone fuppofcs the peers to have a£^ed at the parlia- 

 ment of Merton, wlien they refi:ftd to enaft that children 

 born before marriage fiiould be eileemed legitimate. Stat. 

 20 Hen. III. c. 9. See the introducfien to the great 

 charter, edit. Oxon. 1759, fub anno 1253. 



Hence it appears, that all children born btfore matrimony 

 are bailards by our law. But if a man marries a woman 

 grofsly big with child by another, and within three days after, 

 fhe is delivered, the child is no baftard. i Danv. Abridg. 

 729. If a child is born within a day after marriage between 

 parties of full age, if there be no apparent inipoliibility that 

 the hufband (houldbe the father of it, the child is no baftard, 

 but fuppofcd to hi the child of the hufband. i Roll. Abr. 

 358. Moreover, all children born fo long after the death of 

 the hufband, that by the ulual coiirfe of gellation they could 

 not be begotten by him, are baftards. But this being a 

 matter of fome uncertainty, the law is not exaft as to a few 

 days. It appears, upon the whole, that what is commonly 

 confideredasthe ufuaipLriod is 40 weeks or 280 days ; but if 

 the child be born fome time after, it only affords prefiimption, 

 not proof, of illegitimacy. Tfiis uncertainty of the period of 

 geila,tion has given occafion to a proceeding at common law, 

 where a widow is fufpeifled to feign herfelf with child, in 

 order to produce a fuppofititious heir to the eftate ; an at- 

 tempt which the rigour of the Gothic conftitutior.s efteemed 

 equivalent to the mofl atrocious theft, and therefore punifhed 

 with death. In this cafe, with us, the heir prefumptive may 

 have a writ " de ventre infpiciendo," to examine whether 

 file be with child or not ; and if fhe be, to keep her under 

 proper reltraint till delivered ; which is entirely con- 

 formable to the praftice of the civil law : but if the widow 

 be, upon due examination, found not pregnant, the prefump- 

 tive heir fhall be admitted to the inheritance, though liable 

 to lofe it again on the birth of a child within forty weeks 

 from the death of a hufband. But if a mari dies, and his 

 widow foon after marries again, and a child is born withm 

 fuch a time, as that by the courfe of nature it might have 

 been the child of either hufband ; in this cafe, he is faid to 

 be more than ordinarily legitimate : for he may, when he 

 arrives to years of difcretion, choofe which of the fathers he 

 pleafes. (Co. Litt. 8.) To prevent this, among other in- 

 conveniences, the civil law ordained that no widow fhould 

 asarry " infra annum luclus ;" a rule which obtained fo 

 early as the reign of Augullus, if not of Romulus : and the 

 fame conflitution was probably tranfmitted to our early an- 

 ceflors from the Romans, during their flay in this ifland ; 

 for we find it eilablifhed under the Saxon and Danifh govern- 

 ments. L. L. Ethelr. A.D. 1008. L. L. Canut. c. 71. 



As badards may be bom before the coverture or marriage 

 ilate is begun, or after it is determined, fo alfo children born 

 during wedlock may in fome circumftances be baflards. As 

 if the hufband be out of the kingdom of England, or as the 

 law fomewbat loofely phrafes it, " extra quatuor maria," 

 for above nine months, fo that no accefs to his wife can be 

 prefumed, her iffue during that period fhall be baftards. 

 (Co. Litt. 244.) But, generally, during the coverture ac- 

 cefs of the hufband fhall be prefumed, unlefsthe contrary be 

 fhewn; (Salk. 123. 3 P. Wins. 276. Stra. 295.) which is 



fuch a negative as can only be proved by fhcwing him to bs 

 elfewhere ; for the general rule is, " prasfumitur pro legiti- 

 matione." There are fome determinations by which it ap- 

 pears, that the child of a married woman may be proved a 

 hallard by other circumflantial evidence befides that of the 

 hufhand's non-accefs. 4Tcrm. Rep. 251. 356. 



In a divorce " a menfa et t'loro," it the wife breeds chil- 

 dren, they are baftards ; for the law will prtfume the huf- 

 band a:;d wife conformable to the fentence of fcparation, 

 unlefs accefs be proved ; but in a voluntary- feparation by 

 agreement, liie law will fuppofe accefs unlefs the negative 

 be fiicwn. (Salk. 123.) Su alfo if there be an apparent tm- 

 pofFibility of procreation on the part of the huibaiid, as if he 

 be only eight years old, or the like, the iffue of the wife fhall 

 be baftard. (Co. Litt. 244.) Likev.ife, in cafe of divorce 

 in the fpiritual court, " a vinculo matrimonii," all the iffue 

 born during the coverture are baftards ; becaufe fuch divorce 

 is always upon fome caufe that rendered the marriage un- 

 lawful and null from the beginning. Co. Litt. 23 j. 



If a man or woman marry a fecond wife or hufljand, the 

 firft. being hving, and have iffue by fuch fecond wife or 

 hufband, the iffue is a baftard. (Bott. 397. pi. 521.) Before 

 the flatute 2 & 3 Ed. VI. c. 2 1, one was adjudged a baftard 

 " quia filius facerdotis." 



If a man hath iifue, a fon, by a woman before marriage, 

 and afterwards marries the fame woman, and hath iffue, 

 a fecond fon, born after the marriage ; the firft of thefe is 

 termed in lavi-a " baftard eigne," and the fecond a "mulier," 

 or " mulier puifne." By the common law, a " baftard 

 eigne" is as incapable of inheriting as if the father and 

 mother had never married. However, tliere is one cafe in 

 which his iffue was let into the fuccefCon, and that was by 

 the confent of the lord and perfon legitimate ; as if upon 

 the death of the father the " baftard eigne" enters, and the 

 " muher" during his v/hole hfe never difturbs him, he cannot 

 upon the death of the " baftard eigne" enter upon his iffue. 

 In this cafe the " mulier puifne," and all other heirs, are 

 totally barred of their right. This indulgence, however, 

 is fhewn to no other kind of baftard ; for if the mother was 

 never married to the father, fuch baftard could have no 

 coloui-^ible title at all. (Lit. feft. 399, 400. Co. Litt. 245.) 

 To exclude the " mulier" from the inheritance, there raufl 

 not only be an uninterrupted polfefTion of the " baftard 

 eigne" during his life, but a defcent to his iffue. Co. Litt. 

 244. I Rol. Abr. 624. 



The duty of parents to their baftard children, by our law, 

 is principally that of maintenance. The method in which 

 the Englifh law provides maintenance for illegitimate 

 children is as follows. When a woman is delivered, or de- 

 clares herfelf with child, of a bailard, and will by oath 

 before a juftice of peace charge any perfon as having got 

 her with child, the juftice fhall caufe fuch perfon to be ap- 

 prehended, and commit him till he gives fecurity, cither to 

 maintain the child, or appear at the next quarter fcffions to 

 difpute and try the faft. But if the woman dies or is 

 mairied before deliver)-, or mifcarries, or proves not to have 

 been with child, the perfon fhall be dilcharged ; otherwife, 

 the feflions, or two juftices out of feflions, upon original 

 apphcation to them, may make an order for the keeping of the 

 baftard, by charging the mother or the reputed father with 

 the payment of money or other fuftentation for that pur- 

 pofe ; and if the party difobey fuch order, he or fhe may 

 be committed to gaol, until they give fecurity to perform it, 

 or to appear at the feflions. The juftices may commit the 

 mother of a baftard, hkely to become chargeable, to the 

 houfe of correction for a year; or, for a fecond offence, till 

 fhe give fecurity for her good behaviour. And if fuch pu- 

 tative father, or lewd'mothcr, run away from the panlh, the 



2 ovcrfeers, 



