1. Who are bastards. 1. Who are bastards. 2. The legal duties of the parents towards a bastard child. 3. The rights and incapacities attending such bastard children. 1. Who are bastards. A bastard, by our English laws, is one that is not only begotton, but born, out of lawful matrimony. The civil and canon laws do not allow a child to remain a bastard, if the parents afterwards intermary;k 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 indispensable condition, to make it legitimate, that it shall be born, after lawful wedlock. And the reason of our English 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 [455] 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 forty years of age, and then become legitimate, by the subsequent marriage of his parents; whereby the main end of marriage, the protection of infants, is totally frustrated. 4. Because this rule of the Roman law admits of no limitations as to the time or number of bastards so to be legitimated; but a dozen of them may, twenty years after their birth, by the subsequent * Inst, 1, 10, 13. Decret. l. 4, t. 17, c. 1. marriage of their parents, be admitted to all the privileges of legitimate children. This is plainly a great discouragement 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 constitutions guard against this indecency, and at the same time give 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 [ 456 ] and civil society. Upon reasons like these we may suppose the peers to have acted at the parliament of Merton, when they refused to enact that children born before marriage should be esteemed legitimate. The Scotch law, however, conforms to the civil law in this respect, but a bastard, though thus legitimized in Scotland cannot inherit lands in England.m From what has been said it appears, that all children By our law. born before matrimony are bastards by our law: 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." And this gives occasion to a proceeding at common law, where a widow is suspected to feign herself with child, in order to produce a supposititious heir to the estate: an attempt which the rigor of the Gothic constitutions esteemed equivalent to the most atrocious theft, and therefore punished with death. In this case, with us, the heir presumptive may 1 Rogaverunt omnes episcopi magnates, ut consentirent quod nati ante matrimonium essent legitimi, sicut illi qui nati sunt post matrimonium, quia ecclesia tales habet pro legitimis. Et omnes comites et barones una voce re sponderunt, quod nolunt leges Anglia mutare quæ hucusque usitata sunt et approbate. Stat. 20 Hen. III. c. 9. • Stiernhook de jure Gothor. l. 3, c. 5. have a writ de ventre inspiciendo, to examine whether she be with child, or not; P and, if she be, to keep her under proper restraint, till delivered; which is entirely conformable to the practice of the civil law : but, if the widow be upon due examination found not pregnant, the presumptive heir shall be admitted to the inheritance, though liable to lose it again, on the birth of a child within forty weeks from the death of a husband." 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,t [457] a rule which obtained so early as 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. What children born in bastards. As bastards may be born before the coverture or marriage wedlock are 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 somewhat 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 shall be bastards." But, generally, during the coverture access of the husband shall be presumed, unless the contrary can be shown; which may however be proved either by showing him to be elsewhere, or that access did not take place, or was impossible: for the general rule is, præsumitur pro legitimatione. 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 matrimonii, all the issue born during the coverture are bastards;a because such divorce is always upon some cause, that rendered the marriage unlawful and null from the beginning. of parents to their bastard children. 2. Let us next see the duty of parents to their bastard 2. The duty children, by our law; which 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. [ 458 ] The civil law, therefore, when it denied maintenance to bastards begotten under certain atrocious circumstances, was neither consonant to nature, nor reason; however profligate and wicked the parents might justly be esteemed. The method in which the English law provides mainte- By our law. nance for them has been recently greatly altered. By the former law, when a woman was delivered, or declared herself with child, of a bastard, and would by oath before a justice of peace charge any person as having got her with child, the justice was to cause such person to be apprehended, and commit him till he gave security, either to maintain the child, or appear at the next quarter-sessions to dispute and try the fact. But if the woman died, or was married before delivery, or miscarried, or proved not to have been with child, the person was discharged: otherwise the sessions, or two justices out of sessions, upon original application to them, might have taken order for the keeping of the bastard, by charging the mother or the reputed father with y Salk. 123. z Co. Litt. 244. ■ Ibid. 235. Lord Raym. 68. Comb. 356. e Nov. 89, c. 15. the payment of money or other sustentation for that purpose. And if such putative father, or lewd mother, ran away from the parish, the overseers by direction of two justices might seize their rents, goods, and chattels, in order to bring up the said bastard child. Yet such was the humanity of the law, that no woman could be compulsively questioned concerning the father of her child, till one month after her delivery which indulgence was however very frequently a hardship upon parishes, by giving the parents opportunity to escape. But by the Poor Law Act, 4 & 5 Wm. IV. c. 76, ss. 69 & 70, all previous statutes on this subject are repealed; and by s. 71, it is enacted, that every child which shall be born a bastard, after the passing of the act, shall follow the settlement of the mother until he shall attain sixteen, or shall acquire a settlement in his own right, and such mother shall be bound to maintain such child as part of her family, until sixteen; and such liability is to cease on marriage. By s. 72, if such child shall become chargeable to the parish the overseers or guardians may, after diligent inquiry as to the father, apply to the quarter-sessions for an order on the putative father, and the court may make such order, provided the evidence of the mother be corroborated by other testimony, but such order shall in no case continue in force after the child shall attain seven years. Provision is also made by the act for enforcing the order, (ss. 73-78.) 3. I proceed next to the rights and incapacities which cities of bas- appertain to a bastard. The rights 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.d Yet he may gain a [459] surname by reputation, though he has none by inheritance.f All other children have their primary settlement in their father's parish; but a bastard, by the old law, was settled in the parish where born, for he hath no father. However, in case of fraud, as if a woman were sent either by order of justices, or came to beg as a vagrant to a parish which she did not belong to, and dropped her bastard there; the bastard, in the first case, was settled in 3. The rights and incapa tards. |