BASTARDS and BASTARDY. Bastards, as described by Blackstone, are such children as are not born either in lawful wedlock, or within a competent time after its determina tion. The Scotch lawyers, again, true to their peculiar law of marriage, define a bastard as a child born of a woman, who was not married to the father at the tune of conception, and who teas never thereafter married to him. It was at one time the law of England, when divorces a mensa et thoro were adjudged by the ecclesiastical courts, that if the wife had children during the legal separation occasioned by the former kind of divorce. such children were prink/ facie bastards—for the law presumed the parties to live con formably to the sentence of separation. But in modern times, the presumption has changed, and now always favors legitimacy.
Bastards are incapable of inheriting real property; nor can they claim any share of personal estate as next of kin to a party dying intestate. They are said to he Pi/ nullinx, or flif populi, the sons of nobody, or the sons of the people, having no inheritable blood in them. As laid down, however, in many authorities, and among others in the last (4th) edition of Stephen's Commentaries, there is an exception to this rule in the ease of a hast.trd eigne and mutter puisni, and where, it may be observed, the principle of the Scotch law of legitimation appears to some extent to be admitted. Thus, where a man has a bastard son, called a bastard eigne (q.v.), and afterwards marries the mother, end by her has a !!:gitimate son, who, in the language of the law, is called a =tiller if the father dies, and the bastard eigne enters upon his land, and enjoys it to his death, and dies seized thereof, whereby the inheritance descends to his issue, the moiler puism% and all other heirs are totally barred of their light, because the laws of England pay such a regard to a person in the situation of the bastard eigne;, that after the land had descended to his issue, they would not unravel the matter again, and suffer his estate to be shaken. But this indulgence was shown to no other kind of bastard; for if the mother was never married to the father, such bastard could have no colorable title at 2111. And the above exception would almost appear to be the law of England at the present day. But a recent statute renders this opinion somewhat doubtful, for by the 3 and 4 Will. IV. c. 27, s. 30, it is enacted that no descent cast, after the 31st day of December 1833, shall defeat any right of entry or action for the recovery of land. By descent
cast is meant an heir of a party who had contrived illegally to enjoy the land with out challenge during his life, and was thereby enabled to transmit it to his heir, who :henceforward had a title which could not be impeached either by the original rightnu owner, or by any of his descendants. The above statute, however, has cut off the rights in this behalf of all such descents cast, and the true owner can now, under the provisions of the net, always recover. But is the son of a bastard eigne such a " descent cast" as is contemplated by the 3 and 4 Will. IV. c. 27? It may be doubted whether he is. The expression "descent cast" is genetally applied iu law-books to the case of a stramjer who, under a forcible, wrongful, and illegal entry on the land, had succeeded In diverting the inheritance from the direct and original channel. But such is not the position of a bastard eigail, He is not, in any sense of the word, a stranger; nor is the above privilege or favor allowed him and his family at all in respect of his position towards, or of anything that can be called his title to the land. hut such privilege and favor are given him solely because of his peculiar bastardy. In fact, it is just because he is not a stranger, but his father's eldest son by birth, that the law from ancient times decided that he should not be altogether deprived of what otherwise would have been his natural rights. The rule, as we have sug gested, appears to be founded on the principle of the Scotch law of subsequent legitimation ; and the intention probably was to give effect to the good feeling of the second or other legitimate son, who, from a regard to his mother's character, as well as his brother's position, might find himself excused from asserting his claims. Whether the above statute can, by its general terms, be understood arbitrarily to alter such a reasonable and natural law of family succession, is a question for lawyers and law-courts. The point, however, is important for popular explanation. In all other cases, the law of England appears to be as distinct as it is severe. It has even been decided that a child born before wedlock in a foreign country, and accord ing to whose law such child was legitimate, could not inherit land in England where his bastardy was indelible.