1911 Encyclopædia Britannica/Bastard

BASTARD (O. Fr. bastard, mod. bâtard = fils de bast, “pack-saddle child,” from bast, saddle), a person born out of legal wedlock. Amongst the Romans, bastards were classified as nothi, children born in concubinage, and spurii, those not so born. Both classes had a right of succession to their mother, and the nothi, were entitled to support from their father, but had no rights of inheritance from him. Both, however, had in other respects most of the rights of citizenship. The Germanic law was based upon an entirely different principle. It recognized as legitimate only those whose parents were of the same social rank. All others were regarded as bastards, and took the status of the parent of inferior rank. The aim of all the Germanic codes was to preserve purity of race, not to improve morals, for incestuous unions are not censured. The influence of the Germanic law lasted throughout the early feudal period, and bastards were debarred rights of inheritance. In the 13th century the influence of Roman law tended again to modify this severity. An exception was probably made in the case of those whose fathers were of royal blood, in which case it even seems that no stigma was attached to the accident of their birth, nor did they suffer from the usual disabilities as to inheritance which attended those of illegitimate birth (Gregory of Tours, v. 25). Among the Franks we find Theodoric I., a natural son of Clovis, sharing the kingdom with the legitimate sons; Zwentibold, natural son of Arnulf, was created king of Lorraine by his father in 895; and even William the Conqueror actually assumed the appellation of bastard.

In English law a bastard still retains certain disabilities. His rights are 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. 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.

For poor-law purposes, all legitimate children take the settlement of their father, but a bastard takes the settlement of its mother. The mother of an illegitimate child is entitled to its custody in preference to the father, and consequently the responsibility of its support falls primarily on her. But the English law has always recognized the principle that to a certain extent the father must share in that responsibility. This, however, was imposed not with the idea of furnishing the woman with a civil remedy, nor to have a penal effect against the man, but solely to prevent the cost of maintenance of the bastard child from falling upon the parish. Indeed, the legislation upon the subject, which dates back to 1576, was until 1845 an intimate part of the poor law. The act of 1576, the basis of English bastardy law, empowered justices to take order for the punishment of the mother and reputed father of every bastard child left to the care of the parish, and to charge the mother and reputed father with the payment of a weekly sum or other needful sustenance. Other acts were passed in 1609 and 1733, enabling the mother of any child chargeable or likely to become chargeable to the parish to secure the apprehension, and even the imprisonment, of the father until he should indemnify the parish, provisions which were made somewhat more stringent by acts passed in 1809 and 1810. In 1832 a commission was appointed to inquire into the operation of the poor laws, and the commissioners in their report gave great attention to the subject of bastardy. They reviewed the various acts from 1576 downwards and gave examples of their operation. The conclusion to which the commissioners came was that the laws “which respect bastardy appear to be pre-eminently unwise,” and that they gave rise to many abuses. For example, the weekly payment recovered by the parish was usually transferred to the mother; even in many cases guaranteed. The commissioners recommended that the mother alone should be responsible for the maintenance of the child. “This,” they said, “is now the position of a widow, and there can be no reason for giving to vice privileges which we deny to misfortune.” Acting on the recommendation of the commissioners the Poor Law Amendment Act of 1834 endeavoured to discourage the principle of making the putative father contribute by introducing a somewhat cumbersome method of procedure. The trend of public opinion proved against the discouragement of affiliation, and an act of 1839 transferred jurisdiction in affiliation cases from quarter-sessions to petty-sessions. A commission of inquiry on the working of the bastardy acts in 1844 recommended “that affiliation should be facilitated,” and, accordingly, by the Bastardy Act of 1845 effect was given to this recommendation by giving the mother an independent civil remedy against the putative father and dissociating the parish altogether from the proceedings. Subsequently, legislation gave the parish the right of attaching, and in some cases suing for, money due from the putative father for the maintenance of the child. The existing law is set out under Affiliation.

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 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. Formerly bastards in Scotland without issue of their own could not make a will, but this disability was removed by a statute of 1835. If bastards or other persons without kindred die intestate without wife or child, their effects go to the king as ultimus haeres; but a grant is usually made of them by letters patent, and the grantee becomes entitled to the administration.

According to the common law, which is the law of England, a bastard cannot be divested of his state of illegitimacy, unless by the supreme power of an act of parliament. But in those countries which have followed the Roman or civil law, a bastard’s status may be provisional, and he can be made legitimate by the subsequent marriage of his parents. (See Legitimacy and Legitimation; and, for statistics, Illegitimacy.)

Authorities.—Bacquet, Traité de la bâtardise (1608); Du Cange, Gloss. Lat., infra “Bastardus”; L. G. Koenigswater, Histoire de l’organisation de la famille en France (1851), and Essai sur les enfants nés hors mariage (1842); E. D. Glasson, Histoire des droits et des institutions de l’Angleterre (6 vols., 1882–1883), Histoire du droit et des institutions de la France (1887); Pollock and Maitland, History of English Law (1898); Stephen’s Commentaries; Nicholls and Mackay, History of the English Poor Law (3 vols., 1898).