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overfeei-s, by diiecliivi of two julliccs may feize theii- rents, 

 f^oodi, and chattels, in order to brinp; up the faid ballard 

 cliild. Yet Inch is the humanity of our laws, that no woman 

 can be compulftvely qiiellioned concerning the father of her 

 child, till one month after her delivery. Stat. i3 Eliz. c. 3. 

 7Jac.I.c.4. sCar.I. C.4. 13 & 14 Car. II. c. 12. 6 

 Geo. II. c. 31. 



As to the righti of a baftard, thoy are very few ; being 

 only fuch as he can acquire : for he can inherit nothing, be- 

 ing regarded as the fon of nobody ; and fomctimes called 

 «' lilius nuUius," foretimes " filiiis popiili." Forfefc. de L. L. 

 c. 40. Yet he may gain a furnan.e by repulatio.'i, though he 

 has none by inheritance. Co. Litt. 3. Where a remainder is 

 limited to' the eldtft fun of Jane S. whether legitimate or 

 illegitimate, and flic halh ilTue, a ballard (liall take this re- 

 mainder; becaufe he acquires the denomination. of her ilTue 

 by being born of her body. Noy. 35. All other children 

 have their primary Itltlement in their fatlisr's parifh ; but a 

 baftard in the parilh where bnri!, "or he hath no father. 

 Salk. 427. However, in cafe of fraud, as ifn woman be 

 lent either by order of jutHccs, or cor.;c3 to beg as a vagrant, 

 to a parifli to which (lie doi.5 not belong, and drops l.er baftard 

 llicre, the baftaid fliall, in the firft cafe, be fettled in the 

 parifh from which Ihe was illegally removed (Saik. 121); or, 

 in the latter cafe, in the motlier's own panfii, if tht mother 

 be apprehended for her vagrancy. I" Geo. II. c. j. Baf- 

 tards alfo born in any licenfed Jiofpital for pregnant women, 

 are fettled in the pariilies to wliich the mothers bel"ng. 

 13 Geo. III. c. Sz. When a parifli becomes charged with 

 the maintenance of a ballard, then, and not before, the au- 

 thority of the church-wardens and overfeers commences 

 CSay. 93); and they may acl without an order from the juf- 

 ticcs. 3 Term Rep. C. P. 253. It feems, however, that 

 until a baftard attain the age of feven years, it cannot be fe- 

 parated from its mother (Cald. 6.); but may be removed 

 to the place of her fettlcmtnt, while the age of nurture conti- 

 nues (Carth. 279.); and muft under thefe circumftances be 

 maintained by the parifli where it was born. Doug. 7. 



The incapacity of a baftard confifts principally in this, that 

 he cannot be heir to any one : neither can he have heirs, but 

 of his own body; for being " nulhus fihus," he is therefore 

 akin to nobody, and has no anceftor f.om whom any inheri- 

 table blood can be derived. As a baftard has no legal ancef- 

 tors, he can have no collateral kindred; and therefore if a 

 baftard purchafes land, and dies feiled thereof without iflue, 

 and inteftate, tlie land fliall efcheat to the lord of the fee. 

 Co. Litt. 244. Finch. Law. 117. 



By the Roman law, the mother inherited from her baftard 

 child, and vice verfa: but there was ?. great difference between 

 baftards, " nothi," and thofe they called " fpurious." The 

 law did not own the latter, nor aliow them fuftenance, be- 

 caufe they were born in common and uncertain proftitution. 

 " Is nou habet patiem, cui pater eft populus." The former 

 fort, born in concubinage, which rcfembles marriage, in- 

 herited from their mothers, and had a right to demand fuf- 

 tenance of their natural fathers. They were looked upon 

 as domeftic creditors, that ought to be treated the more 

 favourably, for being the innocent produiEl of their parents' 

 crimes. Solon would have it, that the parents ftiould be de- 

 prived of their paternal authority over their baftards; becaufe, 

 as they were only parents forpleafure, that ought to be their 

 only reward. 



Anciently, in Rome, natural children were quite excluded 

 from inheriting after their fathers ab inteftato : but they 

 might be appointed heirs in general. The emperors Arca- 

 dius ar.d Honorius made a reftiidion ; and when there were 

 legitimate children, the baftards fliould only come in for a 

 twelfth, to be fliared with their mother. Juftinian after- 



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wards ordered, that they might come in for half ; and fuc- 

 ceed ab inteftato for a fixth, when there were legitimates. 



Baftards might be legitimated by fubfcquent marriage, or 

 by the empero"r's letters. The emperor Anaftafius allowed 

 fitthers to legitimate their baftards by adoption alone : but 

 this was abolilhed by Juftin and Juftinian, left by this indul- 

 gence they Ihould authorife concubinage. The pope has 

 fometimes legitimated baftards. Nay, the holy fee has on 

 fome occafions difpenfed not only with illegitima'-es, but with 

 the offspring of adulterv, as to fpiritual coniiderations, in 

 allowing of their promotion to epifcopacy. 



Accordincrly the civil law differs from cirs in this point, 

 and allows a baftard to fucceed to an inhentawce, if after its 

 birth the mother was married to the father (Nov. 89, c. 8.) ; 

 and alfo, if the father has no lawful wife or cliild, then, even 

 if the concubine was never married to the father, yet fhe and 

 her baftard fon were admitted each to one twelfth of the in- 

 heritance (Ibid. c. 12); and a baftard was likewil'e capable of 

 fucceeding to the whole of the mother's eftate, although fhe 

 was never married ; the mother being fufficiently certain, 

 though the father is not. But our law, in favour of mai^ 

 riage, is much lefs indulgent to baftards. 



An attempt was once made to introduce the civil law here- 

 in this refpeft, by declaring children legitimated by a fuh- 

 fequeiit marriage; but it vv.is rejected : and it was upon this 

 occaficn that the barons of England aficrf-bled in the paiHa- 

 ment of Merton, A.D. 1272, made that famous anfwcr, 

 " Nolumus leges Aiiglise mutare." 20 Hen. III. c. 5. 



But though baftards ai c not looked upon as children to any 

 civil purpofes, yet the ties of nature liold as to niaintenairce, 

 and many other intentions; as,particularly,thata tnan fhallnot 

 marry his baftard fifter or daughter. L. Raym. 6'";.Coiiib. 356. 



A baftard was, in ftriftnefs of law, incapable of holy 

 orders; and though that were difpenfed with, yu he was 

 utterly difqualificd from holding any dign'ly in the church. 

 Fortefc. c. 40. 5 Rep. 58. But this do>:trine feems now 

 obfolete ; and there is a very ancient decifion, that a felon 

 fhould have benefit of clergy, though he were a baftard. 

 Bro. Clergy 20. In all other refpefts, there is no diftinftion 

 between a baftard and another man ; whereas the civil law, 

 which has been extolled for its equitable decifions, made 

 baftards in fome cafes incapable even of a gift from their pa- 

 rents. Cod. 6. 57.5. A baftard may even be made legitimate, 

 and capable of inheriting, by tlie tranfcendent power of an 

 acl of parliament, and not othcrwife (4 Inft. 36.); as was 

 done in the cafe of John of Gaunt's baftard children, by a 

 ftatute of Richard II. 



Baftardy with regard to the feveral modes of its trial, is 

 dillinguiflied into general and fpecial baftardy. Till tlie ftatute 

 of Mei ton already recited, the queftion whether born before 

 or after marriage, was examined before the eccleliaftical judge, 

 and his judgment was certified to the king or his juftices, 

 and the king's court either received or rejefted it at plea- 

 fiire. But after the folemn proteft of the barons at Merton 

 agalnft the introdu£iion of the civil and canon law in this re- 

 (peft, fpecial batlardy has been always triable at common law; 

 and general baftardy has alone been left to the judgment 

 of the ccclefiaftical judge, who in this cafe agrees with the 

 temporal. (2 Inft. 29. Reeves's Hift. Eng. Law. 85. 20/.) 

 General baftardy, tried by the bifhcp, comprehends two 

 things. I. It fhould not be a baftardj' made legitimate by a 

 fubfrquent marriage. 2. That it fhould be a point collateral 

 to the original canfc of aftion If the ordinary certify r r try 

 baftardy without a writ from the king's temporal couits, 't is 

 vc'd ; and tlie certificate muft be under the feal of the ordi- 

 nary. I Rol. Abr. 361,362. 



Special baftardy is two-fold: ift. Where the baftardy is the 

 gift of the aftion, and the material part of the ilTue; zdly, 



Where 



