1902 Encyclopedia > Bastard


BASTARD is a person born out of lawful wedlock, i.e., whose parents have not been married previous to his birth. The rules by which legitimacy is determined vary chiefly as to the effect to be assigned to the subsequent marriage of the bastard's parents. The law of Scotland, and of most Continental countries, following the rules of the civil and canon law, legitimizes the bastard whose parents afterwards marry. The same principle was at one time advocated by the clergy in England, but summarily rejected by the famous statute of Merton (20 Hen. III. c. 9). The English law, however, takes no account of the interval between the marriage and the birth; provided the birth happens after the marriage, the offspring is legitimate. The presumption of law is in favour of the legitimacy of the child of a married woman, and at one time it was so strong that Lord Coke held that " if the husband be within the four seas, ».«., within the jurisdiction of the king of England, and the wife hath issue, no proof shall be admitted to prove the child a bastard unless the husband hath an apparent impossibility of procreation." It is now settled, however, that the presumption of legitimacy may be rebutted by evidence showing non-access on the part of the husband, or any other circumstance showing that the husband could not in the course of nature have been the father of his wife's child. If the husband had access, or the access be not clearly negatived, and others at the same time were carrying on a criminal intercourse with the wife, a child born under such circumstances is legitimate. If the husband had access intercourse must be presumed, unless there is irresistible evidence to the contrary. Neither husband nor wife will be permitted to prove the non-access directly or indirectly. Children born after a divorce a mensa et thoro will be presumed to be bastards unless access be proved. A child born so long after the death of a husband that he could not in the ordinary course of nature have been its father is illegitimate. The period of gestation is presumed to be about nine calendar months; and if there were any circumstances from which an un-usually long or short period of gestation could be inferred, special medical testimony would be required. A marriage between persons within the prohibited degrees of affinity was before 1835 not void, but only voidable, and the ecclesiastical courts were restrained from bastardizing the issue after the death of either of the parents. Lord Lyndhurst's Act declared all such existing marriages valid, but all future marriages between persons within the pro-hibited degrees of consanguinity or affinity were made null and void, and the issue illegitimate. (See MAEBIAOE.) By 21 and 22 Vict. c. 93, application may be made to the Court of Divorce and Matrimonial Causes (in Scotland to the Court of Session by action of declarator) for a declara-tion of legitimacy and of the validity of a marriage.

The law relating to the maintenance of bastard children is governed by a considerable number of statutes passed during the present reign, the Acts of 1872 and 1873 being the last. The mother of a bastard may summon the putative father to Petty Sessions within twelve months of the birth (or at any later time if he is proved to have contri-buted to the child's support within twelve months after the birth), and the justices, after hearing evidence on both sides, may, if the mother's evidence be corroborated in some material particular, adjudge the man to be the putative father of the child, and order him to pay a sum not exceed-ing five shillings a week for its maintenance, together with a sum for expenses incidental to the birth. No such order is to be valid after the child is dead or reaches the age of thirteen, but the justices may in the order direct the payments to be continued until the child is sixteen years of age. The putative father may appeal to Quartor Sessions. Should the child afterwards become chargeable to the parish, the sum due by the father may be received by the parish officer. When a bastard child, whose mother has not obtained an order, becomes chargeable to the parish, the guardians may proceed against the putative father for a contribution. The mother of an illegitimate child is entitled to its custody in preference to the father.

The rights of a bastard are only such as he can acquire; for civilly he can inherit nothing, being looked upon as the son of nobody, and sometimes called jUius nullim, sometimes filius populi. This,.however, does not hold as to moral purposes, e.g., he cannot marry his mother or bastard sister. 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 has 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 therefor 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. 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 Scot-land, 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 legitimized in two ways; either by the subsequent intermarriage of the mother of the child with the father, as already mentioned, or by letters of legitimization from the sovereign. With respect to the last, however, it is to be observed, that letters of legitimization, 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. Formerly bastards in Scotland without issue of their own could not make a will, but this disability was removed by 6 Will. IV. c. 22. If bastards or other persons without kindred die intestate without wife or child, their effects go to the king as ultimus kceres; but a grant is usually made of them by letters patent, and the grantee becomes entitled to the administration.

The conflict of laws on the subject of legitimization by subsequent marriage yields some curious results. Thus, in the case of Burtwhistle v. Vardill, it was decided that a child born in Scotland of parents domiciled there, not married till after his birth, is legitimate by the law of Scotland, but cannot take real estate in England as heir. Again, a domiciled Scotchman had a son born in Scotland and then married the mother in Scotland. The son died seised of land in England, and it was held that the father could not inherit from the son. A domiciled Englishman, putative father of a child born in France of a French woman, having afterwards acquired a French domicile, married the mother and acknowledged the child as legi-timate in the mode prescribed by the law of France. It was held that he could not legitimize the child so as to enable it to share in a bequest to his children by a person in England. The law of England, while admitting the general maxim that the status of legitimacy must be tried by the law of the country where it originates, holds that the succession to real property must be determined by the lex loci rei sitae; so that, for example, a legitimized Scotchman would be recognized as legitimate in England, but not legitimate so far as to take lands as heir.
The statistics of illegitimacy present some striking differences and uniformities, but it is only in the case of Scotland that we can be reasonably certain of the accuracy of the figures. The status of the child is not recorded in the English system of registration, but is a matter of inference from the facts stated by the parents. In 1873 illegitimacy varied in Scotland as follows. The proportion of illegitimate births was—

In the Insular rural districts 5 "4 per cent.
,, Mainland rural districts 10'8 ,,
,, Small towns 8'2 „
,, Large towns 7'0 „
„ Principal towns 9'1 ,,

In the counties the percentage varied from 4 in Shetland, Ross, and Cromarty, 5 in Nairn, and 6 '5 in Sutherland, to 11 "1 in Forfar, 114 in Roxburgh, 13-7 in Kincardine, 14 in Aberdeen, 15*8 in Banff, 15-8 in Elgin and Dumfries, and 18-4 in Wigtown. Similar variations are shown by English statistics for 1859. Compare the highest (Cum-berland, 11-4; Norfolk, 10-7; Westmoreland, 9-7) with the lowest (Monmouth and Middlesex, 4'7; and Surrey, 5). The metropolis stands at 4-2. With these local variations may be contrasted the steadiness with which the general average of illegitimacy is maintained. In England, for example, during nineteen years (1841-1859) the percentage fluctuated between 6'37 and 7, and during the last thirteen years of the period between 6-4 and 6-8. The returns of the Registrar-General show rather more fluctuation in Scotland during the period for which we have statistics (1855-1873), the figures being 7-8 in 1855, 8"5 in 1856, steadily rising to 10 in 1863, and 10'2 in 1866, and then steadily falling to 9-1 in 1872, and 9 in 1873. The statistics of different countries, so far as any proper comparison can be made between them, show differences equally remarkable. The order in which they stand, would be something like the following:—Sardinia (illegitimates), 2-091 per cent.; Hol-land, 3'96; Spain, 5-6; Switzerland, 5'9; Tuscany, 6; England, 6-5; Finland, Belgium, Sicily, France, 7'8; Prussia, 7 to 8; Austria, Norway, Scotland, 9; Denmark, Sweden, Hanover, Iceland, Saxony, 15; Wiirtemberg, Bavaria, 20 (from Mr Lumley's paper in the Journal of the Statistical Society for June 1862). It will be seen that these differences cannot be explained on any consideration of religious belief or education. An inquiry made in Prussia in 1849 yielded the following results. The proportion of illegitimate to legitimate births was—

Among Protestants 1 to 10 '78
„ Catholics 1 to 16'35
,, Mennonites 1 to 57'88
,, Jews 1 to 40

English and Scotch returns show that the proportion of illegitimacy is smaller in the town than in the country districts, but the same feature is not observed in Con-tinental towns, as appears from the following returns, which, however, can in most cases be regarded as approximations only:—

In London the proportion is 4 2 per cent.
Birmingham, 1845 ,, 4'5 ,,
Liverpool, „ „ 4 „
Manchester, „ „ 67 „
Leeds, „ „ 6 4 „
In Glasgow,
1861 the proportion is 1873
Edinburgh, j \f7l
Paris S1851 "
rans' j 1858
St Petersburg, 1828-29 „
Stockholm, 1831-35,
Vienna, 1851, ,,
Milan, ,, „
Prague, „ „

(E. R.)

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