a natural child, or one begotten and 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 herein they differ most materially from our law; which though not so strict as to require that the child shall be begotten, yet makes it an indispensible condition that it shall be born, after lawful wedlock. And the reason of our law is surely much superior to that of the Roman, if we consider the principal end and design of establishing the contract of marriage, taken in a civil light; abstractedly from any religious view, which has nothing to do with the legitimacy or illegitimacy of the children. The main end and design of marriage, therefore, being to ascertain and fix upon some certain person, to whom the care, the protection, the maintenance, and the education of the children, should belong; this end is undoubtedly better answered by legitimating all issue born after wedlock, than by legitimating all issue of the same parties, even born before wedlock, so as wedlock afterwards ensues: 1. Because of the very great uncertainty there will generally be, in the proof that the issue was really begotten by the same man; whereas, by confining the proof to the birth, and not to the begetting, our law has rendered it perfectly certain, what child is legitimate, and who is to take care of the child. 2. Because by the Roman law a child may be continued a bastard, or made legitimate, at the option of the father and mother, by a marriage ex post facto; thereby opening a door to many frauds and partialities, which by our law are prevented. 3. Because by those laws a man may remain a bastard till 40 years of age, and then become legitimate by the subsequent marriage of his parents; whereby the main end of marriage, the protection of infants, it totally frustrated. 4. Because this rule of the Roman law admits of no limitation as to the time, or number, of bastards to be so legitimated; but a dozen of them may, 20 years after their birth, by the subsequent marriage of their parents, be admitted to all the privileges of legitimate children. This is plainly a great encouragement to the matrimonial state; to which one main inducement is usually not only the desire of having children, but also the desire of procreating lawful heirs. Whereas our constitution guards against this indecency, and at the same time gives sufficient allowance to the frailties of human nature. For if a child be begotten while the parents are single, and they will endeavour to make an early reparation for the offence, by marrying within a few months after, our law is so indulgent as not to bastardize the child, if it be born, though not begotten, in lawful wedlock; for this is an incident that can happen but once; since all future children will be begotten, as well as born, within the rules of honour and civil society.

From what has been said it appears, that all children born before matrimony are bastards by our law: and so it is of 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. But if a man dies, and his widow soon after 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 he may, when he arrives to years of discretion, choose which of the fathers he pleases. To prevent this, among other inconveniences, the civil law ordained that no widow should marry infra annum luctus; a rule which obtained so early as to the reign of Augustus, if not of Romulus; and the same constitution was probably handed down to our early ancestors from the Romans, during their stay in this island; for we find it established under the Saxon and Danish governments.

As bastards may be born before the coverture or marriage-state is begun, or after it is determined, so also to 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 loofly phraes it, extra quatuor maria) for above nine months, so that no access to his wife can be presumed, her issue during that period shall be bastards. But generally during the coverture, access of the husband shall be presumed, unless the contrary shall be shown; which is such a negative as can only be proved by showing him to be elsewhere; for the general rule is, praesumitur pro legitima. In a divorce a mensa et thoro, if the wife breeds children, they are bastards; for the law will presume the husband and wife conformable to the sentence of separation, unless access be proved: but in a voluntary separation by agreement, the law will suppose access, unless the negative be shown. So also, if there is an apparent impossibility of procreation on the part of the husband, as if he be only eight years old, or the like, there the issue of the wife shall be bastard. Likewise, in case of divorce in the spiritual court a vinculo matrimoni, all the issue born during the coverture are bastards; because such divorce is always upon some cause that rendered the marriage unlawful and null from the beginning. As to the duty of parents to their bastard children, by our law, it is principally that of maintenance. For though bastards are not looked upon as children to any civil purposes; yet the ties of nature, of which maintenance is one, are not so easily dissolved: and they hold indeed as to many other intentions; as particularly that a man shall not marry his bastard sister or daughter. The method in which the English law provides maintenance for them is as follows: When a woman is delivered, or declares herself with child, of a bastard, and will by oath before a justice of the peace charge any person having got her with child, the justice shall cause such person to be apprehended, and commit him till he gives security, either to maintain the child, or appear at the next quarter-sessions to dispute and try the fact. But if the woman dies, or is married, before delivery, or miscarries, or proves not to have been with child, the person shall be discharged: otherwise the sessions, or two justices out of sessions, upon original application to them, may take order for the keeping of the bastard, by charging the mother or the reputed father with the payment of money or other sustenance for that purpose. And if such putative father, or lewd mother, run away from the parish, the overseers by direction of two justices may seize their rent, goods, and chattels, in order to bring up the said bastard child. Yet such is the humanity of our laws, that no woman can be compulsively questioned concerning the father of her child till one month after her delivery: which indulgence is however very frequently a hardship upon parishes, by giving the parents opportunity to escape.

As to the rights and incapacities which appertain to a bastard: The former are very few, being only such as he can acquire; for 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. All other children have their primary settlement in their father's parish; but a bastard in the parish where born, for he hath no father. However, in case of fraud, as if a woman either be sent by order of justices, or comes to beg as a vagrant, to a parish which she does not belong to, and drops her bastard there; the bastard shall, in the first case, be settled in the parish from whence she was illegally removed; or in the latter case, in the mother's own parish, if the mother be apprehended for her vagrancy. Bastards also, born in any licensed hospital for pregnant women, are settled in the parishes to which the mothers belong.—The incapacity of a bastard consists 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 any inheritable blood can be derived: Therefore, if there be no other claimant upon an inheritance than such illegitimate child, it shall escheat 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 can have no legal heirs, but such as claim by a lineal descent from himself. And therefore, if a bastard purchases land, and dies seised thereof without issue, and intestate, the land shall escheat to the lord of the fee. A bastard was also, in strictness, incapable of holy orders; and though that were dispensed with, yet he was utterly disqualified from holding any dignity in the church; but this doctrine seems now obsolete; and in all other respects, there is no distinction between a bastard and another man. And really any other distinction but that of not inheriting, which civil policy renders necessary, would, with regard to the innocent offspring of his parent's crimes, be odious, unjust, and cruel to the last degree; and yet the civil law, so boastful of its equitable decisions, made bastards in some cases incapable even of a gift from their parents. A bastard may, lastly, be made legitimate, and capable of inheriting, by the transcendant power of an act of parliament, and not otherwise: as was done in the case of John of Gaunt's bastard children, by a statute of Richard II.

As to the punishment for having bastard children: By the statute 18 Eliz. c. 3. two justices may take order for the punishment of the mother and reputed father: but what that punishment shall be, is not therein ascertained: though the contemporary exposition was, that a corporeal punishment was intended. By statute 7 Jac. I. c. 4. a specific punishment (viz. commitment to the house of correction) is inflicted on the woman only. But in both cases, it seems that the penalty can only be inflicted, if the bastard becomes chargeable to the parish; for otherwise the very maintenance of the child is considered as a degree of punishment. By the last mentioned statute the justices may commit the mother to the house of correction, there to be punished and set on work for one year; and in case of a second offence, till she find sureties never to offend again.

He that gets a bastard in the hundred of Middleton in Kent, forfeits all his goods and chattels to the king.*

If a bastard be got under the umbrage of a certain oak in Knollwood in Staffordshire, belonging to the manor of Terley-castle, no punishment can be inflicted, nor can the lord nor the bishop take cognizance of it†.

It is enacted by statute 21 Jac. I. c. 27. that if any woman be delivered of a child, which if born alive should by law be a bastard; and endeavours privately to conceal its death, by burying the child or the like; the mother so offending shall suffer death, as in the case of murder, unless she can prove by one witness at least that the child was actually born dead. This law, which favours pretty strongly of severity, in making the concealment of the death almost conclusive evidence of the child's being murdered by the mother, is nevertheless to be also met with in the criminal codes of many other nations of Europe; as the Danes, the Swedes, and the French: but it has of late years been usual with us, upon trials for this offence, to require some sort of presumptive evidence that the child was born alive, before the other contrained presumption (that the child, whose death is concealed, was theretofore killed by its parent) is admitted to convict the prisoner.

Concerning bastards in Scotland, see Law, Part III. No. clxxiii. 3, 4, and clxxii. 33.

respect of artillery, is applied to those pieces which are of an unusual or illegitimate make or proportion. These are of two kinds, long and short, according as the defect is on the redundant or defective side. The long bastard again, are either common or uncommon. To the common kind belong the double culverin extraordinary, half culverin extraordinary, quarter culverin extraordinary, falcon extraordinary, &c. The ordinary bastard culverin carries a ball of eight pounds.

BASTARDS are 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 city of Xaintes.—Mezeray supposes them to have consisted of the natural sons of the nobility of Guienne, who being excluded the right of inheriting from their fathers, put themselves at the head of robbers and plunderers to maintain themselves.

Bastard Flower-suce. See Adenanthera.—The flowers of this plant bruised and steeped in breast-milk are a gentle anodyne; for which purpose they are often given in the West Indies to quiet very young children. The leaves are used instead of senna in Barbadoes and the Leeward Islands. In Jamaica, the plant is called senna.

Bastard-Hemp. See Datisca.

Bastard-Rocket, Dyers-weed, or Wild Woad. See Reseda.

Bastard Star-of-Bethlehem. See Albuca.

Bastard-Scarlet is a name given to red dyed with bale-madder, as coming nearest the bow dye, or new scarlet.

BASTARDY is a defect of birth objected to one born out of wedlock. Euclatius will have bastards among the Greeks to have been in equal favour with legitimate children, as low as the Trojan war; but the course of antiquity seems against him. Potter and others show, that there never was a time when bastardy was not in disgrace.

In the time of William the Conqueror, however, bastardy seems not to have implied any reproach, if we may judge from the circumstance of that monarch himself not scrupling to assume the appellation of bastard. His epistle to Alan count of Bretagne begins, Ego

Du Cange. Willielmus cognomento bastardus†.