Among old English writers it is applied to a child not born in lawful wedlock ; and as such he is technically distinguished from a mailer (Julius mulieratus), who is the legitimate offspring of a nattier or married woman.
The civilians and canonists distinguish illegitimate children into four or five classes not recognised in the English law ; it may, however, be worth while to re mark, that the familiar term natural, ap plied by us to all children born out of wedlock, is in that classification confined to those only who are the offspring of unmarried parents, living in concubinage, and who labour under no legal impedi ment to intermarriage. Children of the last-mentioned class are, b7 the civil and canon law, capable of legitimation by the subsequent union of the parents, or by other acts which it is needless here to particularize. (Heineccius, Syntag, vol. i. p. 159; Rid13's View, &c., p. 350, ed. 1675; Godol in's Repertorium Canoni cum, chap. 35.) The English very early adopted strict notions on the subject of legitimacy ; and when the prelates of the 13th century were desirous of establishing in this coun try the rule of the canon law, by which bastard children are legitimated upon the subsequent intermarriage of their parents, the barons assembled at Merton (A.D. 1235) replied by the celebrated de claration, "that they would not consent to change the laws of England hitherto used and approved." It has been observed that this sturdy repugnance to innovation was the more disinterested, inasmuch as the lax mo rality of those days must probably have made the proposition not altogether un palatable to many to whom it was ad dressed. The opposition, therefore, seems to have been prompted by a jealousy of ecclesiastical influence, which was at that time ever watchful to extend the au thority of the church by engrafting on our jurisprudence the principles of the canon law.
On another point our ancestors were less reasonable : for it was very early re ceived for law, not only that the fact of birth after marriage was essential to legi timacy, but that it was conclusive of it.
Hence it was long a maxim that nothing but physical or natural impossibility, such as the continued absence of the husband beyond seas, &c., could prevent the child so born from being held legitimate, or justify an inquiry into the real paternity.
Their liberality in the case of posthu mous children was also remarkable : for in the case of the Countess of Gloucester, in the reign of Edward II., a child born one year and seven months after the death of the father, was pronounced legi. timate ; a degree of indulgence only ex ceeded by the complaisance of Mr. Ser jeant Rolfe, in the reign of Henry VI., who was of opinion that a widow might give birth to a child at the distance of seven years after her husband's decease, without wrong to her reputation. (Coke
upon Littleton, 123 b. note by Mr. Har grave; Rolle's Abridgment, " Bastard ;" and Le Merchant's Preface to the case of the Banbury Peerage.) The law now stands on a more reason able footing, and the fact of birth during marriage, or within a competent time after the husband's death, is now held to be only a strong presumption of legiti macy, capable of being repelled by satis factory evidence to the contrary.
Another curious position of doubtftil authority is also found in our old text writers ; namely, that where a widow marries again so soon after her husband's decease that a child born afterwards may reasonably be supposed to be the child of either husband, then the child, upon at taining to years of discretion, shall be at liberty to choose which of the two shall be accounted his father. When a man dies, and his wife alleges that she is with child, those who may be entitled to the property in case there is no child born, or in case the child who is born is illegi timate, that is, not the child of the hus band, may have a writ De Ventre Inspi ciendo, the object of which is to ascertain if the woman is pregnant. [VENTRE IN BPICIENDO, DE; Weir.] The legal incapacities under which an illegitimate child labours by the law of England are few, and are chiefly con fined to the cases of inheritance and suc cession. He is regarded for most pur poses as the son of nobody, and is there fore heir-at-law to none of his reputed ancestors. He is entitled to no distribu. tive share of the personal property of his parents, if they die intestate ; and even under a will he can only take where he is distinctly pointed out in it as an object of the testator's bounty, and not under the general description of 'son,' daughter,' or child,' by which legitimate children alone are presumed to be designated. He can also take under a will before his birth, if he is particularly described. He may, however, acquire property him self, and thus become the founder of a fresh inheritance, though none of his lineal descendants can claim through him the property of his reputed relations. If he dies without wife, issue, or will, his lands and goods escheat to the crown, or lord of the fee. In the former event it is usual fbr the crown to resign its claim to the greater part of the property on the petition of some of his nearest quasi kindred. There is a clause (§ 11) in the new Savings Banks Act (7 & 8 Viet. c. 83) which allows the sum invested by a depositor, being illegitimate and dying intestate, to be paid to such person or persons as would be entitled to the same provided the depositor had been legiti mate.