See Bussorah.

Bastard, bastardus (fancifully derived from the Greek βαστάζειν, meretriz), but with more reason from the British bastard, nothus, spurius, 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 recognised. 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 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.

But be this 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 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 intra annum luctus; a rule which obtained as early as the reign of Augustus, if not of father 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 quaestum 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, praemittur pro legitimatione. In a divorce a mensa et toro, if the

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1 According to information furnished by the late celebrated anatomist Dr John Hunter, it appears, 1st, That the usual period of gestation is nine calendar months, or from 270 to 280 days; but there is very commonly a difference of one, two, or three weeks daily. That a child may be born alive at any time three months after conception, but none are born with powers of being reared or attaining manhood before seven calendar months or thereby. 2ndly, That he, Dr Hunter, had known a woman bear a living child, in a perfectly natural way, fourteen days beyond the completion of nine calendar months; and he believed that two women had each been delivered of a living child, in a natural way, above ten calendar months from the hour of conception. It is owing to these natural irregularities that the law has been obliged to admit of considerable latitude in the application of the ordinary rule. wife has children they are bastards, because the law presumes the husband and wife conformable 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 has issue a son by a woman before marriage, and afterwards marries the same woman and has issue a second son born after the marriage; the first of these, who would be legitimated per subsequens matrimoniom 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 mutier or mutier puisné, 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 matrimoni, 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 provisions of the law of England on this head are numerous; but those of most importance may be very briefly enumerated. Two justices of the peace may make an order on the mother or reputed father of a bastard, to maintain the infant by weekly payments or otherwise; and if the party on whom the order is made disobey, he or she may be committed to jail until they give security to perform it. The reputed father of a bastard is chargeable with the expenses incident to the birth, and of his own apprehension, and of the order of filiation; and although no legal relationship subsists between the putative father and the bastard, the former is so far considered its natural guardian, as to be entitled to the custody of it for its maintenance and education.

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. 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.

By the statute of 18 Elizabeth, c. 3, two justices may take order for the punishment of the mother and reputed father of a bastard; but what that punishment shall be is not therein ascertained, although, according to the contemporary exposition, a corporal punishment was intended. By statute 7 Jac. I. c. 4, a specific punishment, namely, commitment to the house of correction, was inflicted on the woman only. But in neither case could the penalty be inflicted, except the bastard became chargeable to the parish; for otherwise the maintenance of the child was considered a sufficient punishment. By the last-mentioned statute, however, the justices may commit the mother to the house of correction, there to be punished and set to work for one year, and, in case of a second offence, till she find sureties never to offend again; a condition with which, in most cases, it would be no easy matter for the offending party to comply.

By 43 Geo. III. c. 58, which repealed the statute 21 Jac. I. c. 27, it was enacted that any person administering any deadly poison or other noxious and destructive substance, with intent to cause or procure the miscarriage of a woman quick with child, shall be guilty of felony without benefit of clergy; that the causing or procuring of abortion in the case of women not quick with child, or at least not proved to be so, shall be punishable with fine, imprisonment, the pillory, whipping, or transportation for fourteen years; that the trials of women charged with the murder of their bastard children shall proceed and be governed by the like rules of evidence and presumption as in other cases of murder; and that if the jury acquit the woman of the murder, they may nevertheless find that, by secret burying or otherwise, she had endeavoured to conceal the birth of her child, in which case she may be imprisoned for two years. It was further provided that this act should extend to Ireland. Scottish act of William and Mary, session 2, parliament 1, which provided that any woman concealing her pregnancy during the whole space, and not calling for help at the birth, the child being found dead or missing, should be held as the murderer of the child, was repealed by the 49 Geo. III. c. 14. But in the second section of the same statute it was enacted, that any woman in Scotland concealing her pregnancy during the whole time, and not calling for help at the birth, if the child were found dead or missing, should be imprisoned in the common jail for a period not exceeding two years. If a man, however, procure a woman with child to destroy her infant when born, and a child be born, and the woman, in consequence of such procurement, kill her infant, this is murder in the mother, and the procurer is accessory, or art and part, in the commission of the crime.