The English maxim that a bastard is nullius thus is not so good as that of the Roman law, which considers him to he the son of his mother, as indeed the English law does for some purposes and yet not for others. In a case in Lord Raymond's Reports,' p. 65, there are some remarks on the maxim of a bastard being nullius filius, and they form a good example of the absurdity of the maxim. The English law also, though it calls a bastard pains filius, admits him to be the son of his pu tative father for some purposes and not for others.
The expression natural children, natu rales filii, is borrowed from the Roman law. In the later Roman law naturales filii are described as the offspring of a concubine, or of a maid or widow whom a man has debauched. But the older sense of naturalis filius, naturalis pater, was that of natural son, natural father, as opposed to a son or father by adoption, as we see in Cicero and in Livy (xlii. 52 ; xliv. 4). The word is also used in the same sense in Gains (i. 104), and by Ulpian (Dig. 37, tit. 8, a. 1, § 2). The context will show in any case whe ther it is the object of the writer to con trast natural-born children with adopted, or illegitimate children with legitimate.
Children who were the sons of a con cubine, or of a woman whom a man had seduced, were apparently called naturales because they were known to be the chil dren of a man's body, and not adopted children, nor yet children begotten of pro miscuous interourse.
As already observed, the mother of a child may generally be ascertained, but the father cannot be certainly known, even when the woman is a married woman. However, it was a rule of Roman law that the husband must be presumed to be the father of his wife's child (Dig. 2, tit. 4, s. 5). This was only a legal presumption, and not an absolute rule. In certain cases the law provided precautions against a child being passed off as the husband's, when it was not his child. If a woman on the death of her husband declared that she was pregnant by him, those who were interested in the property in case the hus band left no child, might apply to the Praetor for an order De Ventre Inspici endo, the object of which was to ascertain the fact of pregnancy, and to secure the woman so that no fraud should be prao.
tised by her as to the birth of a child (Dig. 25, tit. 4). In case of divorce, the same process might also be used when the wife declared herself pregnant, and the husband would not admit the fact.
The word " legitimate " (legit; mum) in Latin means anything that is consistent with Law, whether it be customary law or positive enactment. A child begotten
between two persons who were not in the relation of husband and wife, as a Roman citizen and a slave for instance, was said to be conceived illegitimately (illegitime concipi); and the status of such persons was determined by the status of the mother at the time of the birth. Accord ingly, if the mother was a slave at the time of conception, but had been made free before the birth, the child was free. The status of children who were begotten according to law (legitime), was deter mined by the status of the mother at the time of the conception (Gains, i. 89). The Roman terms legitimate and illegiti mate in the earlier law, as applied to children, therefore did not correspond to our use of the terms. To take an instance from Gains : if a Roman woman, a citi zen, was pregnant, and in that state was subjected to the interdict of fire and water, by which she lost her citizenship and was reduced to the condition of an alien (pe regrina), it was the general opinion that if the child was begotten in lawful mar riage it was a Roman citizen ; if it was begotten from promiscuous intercourse, it was an alien. All this shows that though those children only who were begotten in a legal Roman marriage were in the father's power and had the full rights of Roman citizens, all children otherwise be gotten did not correspond to our bastards; they might be slaves, or peregrini, or natu rales, or spurii. In the instance just given from Gains, it appears that a child born of a woman who was a Roman citizen, but not begotten in lawful marriage, was spurins a child so born of a woman who was not a Roman citizen was Peregrinus. The Ro man law did not concern itself about the status of legitimacy or illegitimacy, in our sense, of those who were not the children of Roman citizens ; such children were either Peregrini (aliens) or servi (slaves), as appears by another instance from Gains (i. 91). This other instance is as follows :— Pursuant to a Senatusconsul tum passed in the time of the Emperor Claudius, a woman, who was a Roman citizen, and cohabited with another man's slave, against the will of the owner, and contrary to notice from him, might be reduced to a servile condition. ..f a wo man in a state of pregnancy was reduced to a servile condition on account of such cohabitation, the child that was born was a Roman citizen in case the woman con ceived in lawful marriage, that is, if she was a married woman ; if the pregnancy was the result of promiscuous intercourse, the child was a slave.