BASTARD. 7 s 3 
•She i(Tue the reputation of children ; and fo doth a fubfe- 
quent marriage of the parents. 6 Co. 65. Hugh's Abr. 363. 
If a man, in confideration of natural affefftion and love, 
covenants to (land feifed to the life of a baftard, this is not 
good ; for he is not dc fanguine patris ; but it is faid that a 
woman may give lands in frank-marriage with her baftard, 
becaufe he is of the blood of the mother; but he hath no 
father, but from reputation only. Dyer 374, And. 79. 6 
Co. 77. A court of equity will not fupply the want of a 
furrender of a copyhold eftate, in favour of a baftard, as 
it will for a legitimate child. Preced. Chan. 475. 
The incapacity of a baftard conftfts principally in this, 
that he cannot be heir to any one, neither can he have 
heirs but of his own body ; for being as well before faid 
nullivs filius, he is therefore of kin to nobody, and has no 
anceftor from whom any inheritable blood can be derived, 
But, though baftards are not looked upon as children to 
any civil purpofes, yet the ties of nature hold as to main¬ 
tenance, and many other purpofes; as particularly that a 
man (hall not marry his baftard fifter or daughter. 3 Salk. 
66, 7. Lcl. Raym. 68. Comb. 356. A baftard was, in ftrict- 
nefs of law, incapable of holy orders, and though that 
were difpenfed with, yet he was utterly dilqualificd from 
holding any dignity in the church. Fortefc. c. 40. 5 Rep. 
5-8. But this doftrine feems now obfolete ; and there is a 
very ancient dccifion that a felon fhould have the benefit 
of clergy, though he were a baftard. Bro. Clergy 20. In 
all other refpeCts therefore, except thofe mentioned, there 
is no diftinction between a baftard and another man. 1 Comm. 
439. A baftard may be made legitimate,- and capable of 
inheriting, by the power of an adt of parliament, and not 
otherwife. 4 Injl. 36 ; as was done in the cafe of John of 
Gaunt’s baftard children, .by flat. Rich. II. 
Baftardy in relation to pari(h expences, and the feveral 
manners of its trial, is diftingtiiftted into general , and Jpe- 
cial , baftardy. Till the ftat. of Merton, 20 Hen. III. the 
queftion, whether born before or after marriage, was ex¬ 
amined before the eccleliaftical judge, and his judgment 
was certified to the king or his juftices, and the king’s 
court either abided by it or rejected it at pleafure. But 
after the folemn proteft made by the barons at Merton, 
againftt the introduction of the dodtrine of the civil and 
canon law in this refpedt, (pedal baftardy has been always 
.triable at common law ; and general baftardy alone lias 
been left to the eccleliaftical judge, who in this cale agrees 
with the temporal. 2 Ind. 99. 
General baftardy, tried by the bifhop, in its notion-con¬ 
tains two things, ift, It fhould not be a baftard made le¬ 
gitimate by a fubfequent marriage. 2d 1 y, 1 hat it fhould 
be a point collateral to the original caufe of action. For¬ 
merly baftards had away in fuch iftuesto trick themfelves 
into legitimation ; for they ufed to bring feigned actions, 
and get fuborned witnefles before the bifhop to prove,their 
legitimation, and then got the certificate returned of re¬ 
cord, and after that their legitimation could never be con- 
t-efted ; for being returned of record as a point adjudged 
by its proper judges, and remaining among the memorials 
of the Court, all perfons were concluded by it; but this 
created great inconveniences, as fpecificd in the preamble of 
flat. 9 Hen. VI. c. 11, in the cafe of feveral perfons of qua¬ 
lity ; for the evidence of the contrary parties concerned 
.was never heard at the trial, and yet their intereft was 
concluded : to remedy this inconvenience without altering 
the rules of law, it was enaCfted, that, before any writ to 
the bifttop, theie (hould be a proclamation made in the 
court, where the plea depends, and, after that, the iftue 
fhould be certified into Chancery, where proclamation 
fhould be made once in every month for tiiree months, and 
then the chancellor fhould certify to the court where the 
plea depends, and afterwards it (hall be again proclaimed 
in the fame court, that all that are concerned may go to 
the ordinary to make their.allegations ; and without thefe 
circumftances,.any writ granted to the ordinary, and all 
proceedings thereupon, (Sail be utterly void. If the or¬ 
dinary certify or try baftardy without a writ from the king’s 
1 
temporal courts, it is void ; for the Cpiritual jurifdiction 
within thefe kingdoms is derived from the king, and there¬ 
fore it muft be exercifed in the manner the king hath ap¬ 
pointed ; for it would be injurious if they they (hould de¬ 
clare legitimation where the rights of inheritance are (o 
nearly concerned, without any apparent neceftity. 1 Rol, 
Abr. 361. 
The certificate muft be under the feal of the ordinary, 
and not under the feal of the commiftary only ; for the 
command is to the bifhop himfelf to certify, and therefore 
the execution of the command muft appear to be by the 
bifhop in proper perfon. If a man be certified baftard, 
this binds perpetually, though the perfon lo adjudged a 
baftard is not party to the action, for all perfons are ef- 
topped to (peak againft the memorial of any judicatory ; 
becaufe the act of the public judicatory under which any 
perfon lives, is his own aft; and, were he not thus bound, 
there might be contradiction in certificates. If a man be 
certified baftard, that doth not bind a ftranger till return¬ 
ed ot record, becaufe it is no judicial act till recorded in 
the place appointed for fuch tranfaCtioivs ; nor doth it bind 
the party to the action till judgment thereon, becaule if 
he avoid the adtion he avoids all confequences of the ac¬ 
tion; and therefore if the defendant be certified baftard 
by the ordinary, yet if the plaintiff be non-fuit they can¬ 
not go to trial, and the bi(hop’s certificate never appears 
of record, and therefore is not binding. If a man be cer¬ 
tified mulier, no man is eftopped to baftardize him, for, 
though he may be a mulier by the fpiritual law, yet he 
may be a baftard by our law; and therefore any man, not- 
withftanding the certificate, may plead the iftue of fpe- 
cial baftardy. 1 Rol. Abr. 362. 
Special baftardy, is two fold : ift, Where the baftardy 
is the gift of the aCtion, and the material part of the ilfue, 
2dly, Where thofe are baftards by the common law that 
are midiers-by the fpiritual law. 1 NcwAbr. 314. Co.Lit. 134. 
If a man receives any temporal damage by being called a 
baftard, and brings his aCIiOiT in the temporal courts, and 
the defendant juftifies that the plaintiff- is a baftard, this 
muft be tried at common law, and not by writ to the bi¬ 
fhop ; for otherwife you fuppofe an adtion brought in a 
court w hich hath not a capacity to try the caufe of aftion. 
1 Brozonl. 1. Hcb. 179, Gcdol. 479. If it be found by an 
aflife taken'at large that a man is a baftard, the temporal 
courts are judges of it; for the jury cannot be eftopped to 
fpeak truth, which may fall within their own knowledge, 
and what they find becomes the- record of the temporal 
courts, and lo within their conuzance. Bro. Bajlardy 97. 
By flat iS Eliz, c. 3, two juftices of peace may make an 
order on the- mother or reputed father of a baftard to main¬ 
tain the infant by weekly payments or otherwife : and, if 
the party difobey fuch order, he or file may be committed 
to gaol, until they give fecurity to perform it ; or to ap¬ 
pear at the feftions. By ftat. 7 Jac. 1 . c. 4, the juftices 
may commit the mother of a baftard, likely to become 
chargeable, to the houfe of correction for a year ; or for 
a fecond offence till (he give fecurity for her good beha¬ 
viour. By ftat. 13 and 14 Car. II. c. 12, if the putative 
father or lew d mother run away from the parifh, the over- 
feers may, by authority .of two juftices, feize, and by order 
of the feftions (ell, the effefts of the father or mother to 
maintain the child. By ftat. 6 Geo. II. c. 31, the mother-- 
of a baftard may, before or after it is born, fwear it to any 
perfon ; and tire putative father (hall then on application 
by the overfeer or the parifh be apprehended and commit¬ 
ted ; uniefs he give fecurity to indemnify the parifh ; or 
to appear at the next feftions : but if the woman die or 
marry before delivery, or mifearry, or prove not to be 
with child, the reputed father (hall be difeharged. Any 
juftice near the parifh, on application of the reputed fa¬ 
ther in cuftody, (hall fummon the overfeer to (hew caufe 
againft his being difeharged ; and if no order be made in 
purfuance of ftat. 43 Eliz. c. 2, (for the'maintenance of 
the child,) within fix weeks after, the woman’s delivery, he 
(hall be difeharged. By the laid ftat. 6 Geo, II. c. 31,. ir 
is- 
