The old rule of Roman law that a Spu rius (offspring of promiscuous intercourse) could not be made a legitimate son, appears to have been always maintained. The Spurius took the gentile name of his mother. It is mentioned by Suetonius (Julius Omar, c. 52) as an unusual thing, that Caesar allowed his son by Cleopatra to be called by his name. The son, how ever, was not Spurius ; he was Pere grinus. In the fourth century the practice of legitimation was introduced by Con stantine the Great in favour of naturales, or men's children by concubines. The constitution,of Constantine is only known as quoted in a constitution of Zeno (Code, v. fit. 27, § 5), which declared that it renewed the constitution of the Divus Constantinus, and enacted that those who, at the time of this constitution being pub lished, were living with free women as concubines, and had begotten children of them, and had no wife and no legitimate children, might render all their children legitimate by marrying their concubines, and such children were to be on the same footing as after-born children of the mar riage. But the benefit of the law did not extend to any children by concubines who should be born after the date of the con stitution. The object of the law was to induce those who were then living in con cubinage to marry, but not to allow any favour to such alliances in future. The Emperor Theodosius the Younger intro duced a form of legitimating naturales, which was called Per Oblationem Curiae, which it is not necessary to describe par ticularly.
Justinian, after various legislative mea sures, finally established legitimation by subsequent marriage in all cases of na turales, and placed the children who were born befbre the marriage, and those who might be born after, on the same footing. Anastasius established the mode of legi timation by Adrogation. Naturales, as they were sui juris, could be adopted by the form of adrogation, pursuant to a con stitution of Anastasius. There seems to be no reason why this could not have been done according to the old Roman law; but there is probably no evidence that it was done. This constitution of Anastasius was repealed by Justin. Justinian esta blished the practice of legitimation by im perial rescript, and by testament. A consti tution of Justinian enacts (Code, vi. fit. 57, § 5) that if any woman of rank (illustris mulier) had a son born in matrimony and a bastard (spurius) also, she could give notning to the bastard, either by testa ment or gift, nor could he take the pro perty ab intestato, so long as there were children living. The constitution was published in order to settle a doubt as to the rights of spurii. But the children which a concubine who was a free wo man had by the commerce of concu binage with a free man, could succeed to the mother's property on the same footing as her legitimate children, if she had any.
It is important to form a right concep tion of the difference between children not begotten or born in lawftilag , in the respective systems of English an Roman law. Paternity, in the Roman law, could only be obtained on the condition of be getting a child in lawful marriage. If this condition wag not fulfilled, the male had no claim on the child who might be born fromshis connection with the mother; nor had the child or the•mother any claim upon him in respect of maintenance. The
child was the fruit of the mother, and it belonged to her in all cases, except when the father could claim it as the offspring of a legal marriage. The spurious child was a member of the mother's family. No child could be in the power of a mo ther ; and her child therefore would either be sui juris if she were so, or if she were in the power of her father, the child would be his grandson and in his power. This seems to be a strict consequence of the principles that have been here laid down as to the condition of spurii. The simplicity of the Roman system in this respect forms a striking contrast with the rules of English law as to children not born in lawful marriage. The Roman law declared that a spurius had a mother and no father, and it followed out this position to its strict consequence. The English law declares that a bastard is nobody's child, a position which it does not follow out to its consequences, simply because a doctrine so manifestly false never could be fully applied to practice.
This doctrine of a bastard being nulling Mins was apparently simply intended and adapted to deprive bastards of all capacity to inherit as heirs or next of kin, and consequently to favour escheat; and also to prevent any persons claiming as heirs or next of kin to them, in case of intestacy. Under the old law, and before the passing of the Statute of Wills, it must often have happened that the lands of bastards would escheat. The new rules of law as to bastardy at the present day have been solely framed with reference to the Poor Laws, for the purpose of saving the public, that is, the parish, from the charge of maintaining a bastard child. It is with this object that rules of law have been framed for ascertaining who has begotten the child and must contribute to its support; and for the purpose of settling the disputes between parishes as to the liability to maintain the child, it has been determined that for the purpose of settlement a bastard shall be considered his mother's child. But the old rules of law as to the incapacities of bastards still subsist, and according to these rules, a bastard has neither father, mother, sister or brother, or other remoter kin. His only kin are the children whom be begets in lawful wedlock. An English bastard is therefore the founder of a new stock, the creator of a family whose pedigree can never be traced beyond him ; a dis tinction which other people cannot have.
The Roman Law required children to be begotten in matrimony in order to be lawful children. The English law does not concern itself as to the conception, but only as to the birth, which must be in wedlock. The Roman law required that when a man obtained possession of a woman's person, he must do it with a matrimonial mind : the English Law cares not with what mind he obtains possession of the woman ; it is altogether indifferent about the origin of the connection. The old system combines, with a clear practi cal rule for determining the father, the condition of a marriage, an elevated no tion of the dignity of the marriage con nection. The modern system simply lays down a rule for determining paternity, subject to which it is regardless as to the freedom of ante-nuptial sexual connec tion.