BASTARD

BASTARD, bastardus (fancifully derived from the Greek bastárpa, meretrix, but with more reason from the British bastard, nothus, spurious, or from the German bastart, composed of bas, low, and start, risen, Saxon steort, an upstart, homo novus), one whose father and mother were not lawfully married previous to his or her birth, or, as it has sometimes been loosely expressed, one born out of lawful wedlock.

The civil and canon laws do not allow a child to remain a bastard if the parents afterwards intermarry; and this is also the law of Scotland, in which the principle of legitimation by subsequent marriage has been often and solemnly recognized. But herein they differ most materially from the English law; which, though not so strict as to require that a child shall be begotten, yet makes it an indispensable condition that it shall be born after lawful wedlock. Blackstone thinks that the reason of the English law is in this respect much superior to that of the Roman or of the derivative systems, if the principal end and design of establishing the contract of marriage, taken in a civil light, be considered; but this opinion, however natural in an English lawyer, does not seem to be borne out by considerations either of principle or of expediency. For although the learned commentator may be perfectly correct in his estimate of the motives which actuated the parliament of Merton A.D. 1235, when they refused to enact that children born in bastardy should be legitimated by the subsequent marriage of their parents; yet the question still remains whether such an enactment would not have been highly beneficial on grounds of public policy, as well as for the protection of private morals, and whether the experience since acquired has not decided in its favour; points concerning which lawyers, in Scotland at least, have long ceased to entertain any doubt.

Be this, however, as it may, one thing is certain, that all children born before matrimony are bastards by our law; and so are all children born so long after the death of the husband, that by the usual course of gestation, they could not be begotten by him. But this being a matter of some uncertainty, the law is not exact as to a few days; and although the child is born some time after the usual period of forty weeks, this only affords presumption, not proof, of illegitimacy. But if a man dies, and his widow soon after

Bastard. marries again, and a child is born within such a time as that by the course of nature it might have been the child of either husband, in this case he is said to be more than ordinarily legitimate, for when he arrives at years of discretion, he may choose which of the fathers he pleases. To prevent this, among other inconveniences, however, the civil law ordained that no widow should marry infra, or more classically intra, annum luctus; a rule which obtained as early as the reign of Augustus, if not of Romulus himself; and the same constitution was probably handed down to our early ancestors from the Romans, during their stay in this island, since we find it established under both the Saxon and the Danish governments.

But as bastards may be born before the coverture or marriage state is begun, or after it is determined, so also children born during wedlock may in some circumstances be bastards; as if the husband be out of the kingdom of England, or, as the law loosely phrases it, extra quatuor maria, for above nine months, so that no access to his wife can be presumed, her issue during that period is to be accounted bastard. But generally during the coverture, access of the husband is presumed, unless the contrary be shown; which is such a negative as can only be proved by showing him to be elsewhere; for the general rule is, presumitur pro legitimacione.

The law of adulterine bastardy was recently commented on by the late Lord Langdale, Master of the Rolls, in the case of Hargrave v. Hargrave, 9 Beavan's Reports, 555. His lordship observes:—"A child born of a married woman is, in the first instance, presumed to be legitimate. The presumption established by law is not to be rebutted by circumstances which only create doubt and suspicion; but it may be wholly removed by proper evidence, showing that the husband was, 1. Incompetent; 2. Entirely absent, so as to have no intercourse or communication of any kind with the mother; 3. Entirely absent at the period during which the child must, in the course of nature, have been begotten; or, 4. Only present under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse. Such evidence as this puts an end to the question, and establishes the illegitimacy of the child of a married woman. It is, however, very difficult to conclude against the legitimacy, in cases where there is no disability, and where some society or communication is continued between husband and wife during the time in question, so as to have afforded opportunities of sexual intercourse; and in cases where such opportunities have occurred, and in which any one of two or more men may have been the father, whatever probabilities exist, no evidence can be admitted to show that any man other than the husband may have been, or probably was, the father of the wife's child. Throughout the investigation, the presumption in favour of the legitimacy is to have its weight and influence, and the evidence against it ought, as it has been justly said, to be strong, distinct, satisfactory, and conclusive."

In a divorce a mensa et toro, if the wife have children they are bastards, because the law presumes the husband and wife to live conformably to the sentence of separation, unless access be proved; but in a voluntary separation, by agreement, the law supposes access, unless the negative be shown. If a man or woman marry a second wife or husband, the first being living, and have issue by such second wife or husband, the issue is spurious. Again, if a man have issue a son by a woman before marriage, and afterwards marry the same woman and have issue a second son born after the marriage; the first of these, who would be legitimated per subsequens matrimonium in Scotland, is termed in England a bastard eigné, and, by the common law of that country, is as incapable of inheriting as if his father and mother had never married; the second, by a species of legal Hibernicism, is denominated a mulier, or mulier paisné, and succeeds to the exclusion of the bastard eigné. Again, if there

be an apparent impossibility of procreation on the part of the husband, as if he be only eight years old, or the like, then the issue of the wife is bastard. Likewise, in case of divorce in the spiritual court a vinculo matrimonii, all the issue born during the coverture is bastard; because such divorce is always upon some cause that rendered the marriage unlawful and null from the beginning.

The duty of parents to their bastard children consists principally in maintaining them. For although bastards are not looked upon as children to any civil purpose, yet the ties of nature, of which maintenance is one, are not so easily dissolved; and these hold good even in other respects, as, for example, that a man shall not marry his bastard sister or daughter. The enactments relating to the maintenance and affiliation of bastards are numerous. The law is now regulated by the 7th and 8th Vict. cap. 101, as amended by the 8th and 9th Vict. cap. 10. The mother of a bastard is entitled to its custody in preference to the putative father, during the age of nurture; and by an earlier act (4th and 5th Will. cap. 76, § 71, amended by the 2d and 3d Vict. cap. 85) she was bound, so long as she remained unmarried or a widow, to maintain it as a part of her family until it attained the age of sixteen, or married, if a female; and by § 57 this liability attached, on the mother's marriage, to her husband, until her death or the child attained the age of sixteen. But under the 7th and 8th Vict. cap. 101, § 2, any single woman who may be with child, or who may be delivered of a bastard child, may either before, or within twelve months from, the birth of such child, or at any time thereafter, on proof of the payment of money by the alleged father for its maintenance within such period, obtain from a justice of the peace the issue of a summons to the petty sessions of such putative father. Thereupon the justices (or, in the metropolitan police district, a single magistrate, under the 8th and 9th Vict. cap. 10, § 9) may make an order for maintenance and costs, and enforce the same by distress and commitment. But it is necessary that the mother's evidence be corroborated in some material particular by other testimony to the satisfaction of the justices. The order by § 5 is determined upon the child attaining the age of thirteen years, or after the marriage of its mother, or after the death of the child; and the putative father is entitled under § 4 to appeal to the quarter sessions, upon entering into recognizances in the form provided by the 8th and 9th Vict. cap. 10, § 3. The 6th section declares the mother to be punishable for neglect or desertion of her bastard child as "an idle and disorderly person," and on a second conviction as "a rogue and vagabond," under the 5th Geo. IV. cap. 83 (amended by the 1st and 2d Vict. cap. 38), and any misapplication of moneys paid for the support of, or withholding proper nourishment from, or otherwise abusing and maltreating, such bastard child, is punishable under § 8 by a penalty of L.10.

The rights of a bastard are very few, being only such as he can acquire; for civilly he can inherit nothing, being looked upon as the son of nobody, and sometimes called filius nullius, sometimes filius populi. Yet he may gain a surname by reputation though he has none by inheritance, and may even be made legitimate and capable of inheriting by the transcendent power of an act of parliament. All other children have their primary settlement in their father's parish; but a bastard has his in the parish where he was born, unless such birth has been procured by fraud, or happened under an order of removal, in a state of vagrancy, in the house of correction, or under certificate; for in law he has no father. The incapacities attaching to a bastard consist principally in this, that he cannot be heir to any one; for being nullius filius, he is therefore of kin to nobody, and has no ancestor from whom an inheritable blood can be derived. Therefore, if there be no other claimant upon an inheritance than such illegitimate child, it escheats to the lord.

And as bastards cannot be heirs themselves, so neither can they have any heirs but those of their own bodies. For as all collateral kindred consists in being derived from the same common ancestor, and as a bastard has no legal ancestor, he can have no collateral kindred, and consequently no legal heirs, except such as claim by a lineal descent from himself. And hence, if a bastard purchase land, and die seised thereof without issue, and intestate, the land escheats to the lord of the fee. But under § 11 of the New Savings-Bank Act, 7th and 8th Vict. cap. 83, the trustees or managers are empowered to pay the money deposited by an illegitimate depositor to the persons who would have been entitled to the same, according to the statute of distributions, if he had been legitimate. Originally a bastard was deemed incapable of holy orders, and disqualified by the fact of his birth from holding any dignity in the church; but this doctrine is now obsolete, and in all other respects there is no distinction between a bastard and another man.

These are the principal incapacities attaching to bastardy in England. By the law of Scotland a bastard is not only excluded from his father's succession, because the law knows no father who is not marked out by marriage; and from all heritable succession, whether by the father or mother, because he cannot be pronounced lawful heir by the inquest in terms of the brief; but also from the movable succession of his mother, because he is not her lawful child, and legitimacy is implied in all succession deferred by the law. But a bastard, although he cannot succeed jure sanguinis, may succeed by destination, where he is specially called to the succession by entail or testament. In Scotland, as in England, a bastard can have no legal heirs except those of his own body; and hence, failing his lawful issue, the king succeeds to him as last heir. In Scotland bastards may be legitimated in two ways; either by the subsequent intermarriage of the mother of the child with the father, as already mentioned; or by letters of legitimation from the sovereign. With respect to the last, however, it is to be observed, that letters of legitimation, be their clauses ever so strong, cannot enable the bastard to succeed to his natural father; for the king cannot, by any prerogative, cut off the private right of third parties. But, by a special clause in the letters of legitimation, he may renounce his right to the bastard's succession, failing descendants, in favour of him who would have been the bastard's heir had he been born in lawful wedlock, such renunciation encroaching upon no right competent to any third party.

The number of illegitimate births (exclusive of still-born) registered during the year 1851 for England, appears from the fourteenth report of the Registrar-General, dated 24th June 1853, to have been 42,000 against 615,865 legitimate births, or a proportion of nearly 2 to 29. The following table, compiled (with the exception of the last item) from the Registrar-General's Sixth Report, and from Dr Stark's Vital Statistics of Scotland, exhibits the proportion of illegitimate births in various European states and one American.

It is a remarkable fact, as connected with the proportion of illegitimate children in the large towns, that in all the large towns in England the proportion of children born out of wedlock is much below what it is in the country districts. On the continent of Europe, on the other hand, the proportion of illegitimate births in the large towns greatly exceeds that of the country districts; and statisticians are pretty generally agreed that the existence of foundling hospitals in these towns has much to do with this result, encouraging and fostering bastardy as they do. The following table, compiled from the Registrar-General's Sixth Annual Report exhibits these facts.

BASTARDS is also an appellation given to a kind of faction or troop of banditti, who rose in Guienne about the beginning of the fourteenth century, and joining with some English parties, ravaged the country, and set fire to the towns. They are supposed to have derived this name from having been headed by the illegitimate sons of noblemen, who were excluded from the rights of inheritance.