BASTARD (bas or boat, abject, low, base, aerd, nature).
One born of an illicit connection, and be fore the lawful marriage of its parents.
One begotten and born out of lawful wed lock. 2 Kent 208.
One born of an illicit union. La. Civ. Code, arts. 29, 199.
The second definition, which is substantially the same as Blackstone's, is open to the objection that it does not include with sufficient certainty those cases where children are born during wedlock but are not the children of the mother's husband.
The term is said to include those born of parties under disability to contract mar riage, as slaves. Timmins v. Lacy, 30 Tex. 115.
A child is a bastard if born before the marriage of his parents, but he is not a bas tard if born after marriage, although begot ten before; 1 Bla. Com. 455, 456; 8 East 210 ; State v. Herman, 35 N. C. 502. By the civil law and by the statute law of many of the states, a subsequent marriage of the par ents legitimates children born prior thereto. The rule prevails substantially in Arkansas, Alabama, Georgia, Illinois, Indiana, Ken tucky, Louisiana, Maine, Maryland, Massa chusetts, Mississippi, Missouri, New Hamp shire, Ohio, Pennsylvania, Texas, Vermont, and Virginia, with somewhat varying provi sions in the different states; 2 Kent 210; but under the common law this is not so; Brock v. State, 85 Ind. 397 ; Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321. See HEIR.
A child is a bastard if born during cover ture under such circumstances as to make it impossible that the husband of his mother can be his father ; Nich. Adult. Bast. 249; Hall v. Com., Hard. (Ky.) 479; Patterson v. Gaines, 6 How. (U. S.) 550, 12 L. Ed. 553 ; 2 M. & K. 349 ; State v. Britt, 78 N. C. 439 ; Herring v. Goodson, 43 Miss. 392 ; Bussom v. Forsyth, 32 N. J. Eq. 277; Kleinert v. Ehlers, 38 Pa. 439 ; Caujolle v. Ferrie, 23 N. Y. 90; but in England the presumption of legitimacy holds if the husband had any op portunity of sexual access during the natu ral period of gestation, and the question for the jury is not—was the husband the father, but could he have been; 1 Broom & H. Com.
562 ; and such is the rule in the United States; Van Aernam v. Van Aernam, 1 Barb. Ch. (N. Y.) 375; Dennison v. Page, 29 Pa. 420, 72 Am. Dec. 644 ; Watts v. Owen, 62 Wis. 512, 22 N. W. 720 ; Chase's Bla. Com. 172, n. 13. If there were opportunities for intercourse, evidence is generally not allowed to establish illegitimacy ; 2 Gr. Ey. §§ 150, 151 and n.; Inhabitants of Abington v. In habitants of Duxbury, 105 Mass. 287. See 9 Beay. 552; 1 Whart. Ey. § 608; 2 id. 1298; 1 Bish. Mar. & Div. §§ 1170, 1179. It is, how ever, held that a strong moral impossibility, or such improbability as to be beyond a rea sonable doubt is sufficient ; Stegall v. Ste gall, 2 Brock. 256, Fed. Cas. No. 13,351; Cross v. Cross, 3 Paige Ch. (N. Y.) 139, 23 Am. Dec. 778; Wright v. Hicks, 15 Ga. 160, 60 Am. Dec. 687 ; State v. Herman, 35 N. C. 502. The presumption of legitimacy of a child born in wedlock is so strong that it cannot be overcome by proof of the adultery of the wife while cohabiting with her hus band, much less by the mere admission of the adulterer ; Grant v. Mitchell, 83 Me. 23, 21 Atl. 178; [1903] P. 141; 1 Moo. & Rob. 269, where Alderson, B., said: "The law will not under such circumstances, allow a bal ance of evidence, as to who is most likely to have been the father." As to who may be admitted to prove non access, see 3 E. L. & Eq. 100; Bowles v. Bingham, 2 Munf. (Va.) 442, 5 Am. Dec. 497; People V: Overseers of Poor, 15 Barb. (N. Y.) 286 ; Parker v. Way, 15 N. H. 45 ; Dennison v. Page, 29 Pa. 420, 72 Am. Dec. 644 ; 1 Bla. Com. 458; Gardner Peerage Case, Le Mar chant's report ; 5 C. & F. 163 ; Dejol v. John son, 12 La. Ann. 853. Neither husband nor wife are competent for this purpose ; Mink v. State, 60 Wis. 583, 19 N. W. 445, 50 Am. Rep. 386 ; Tiogo County v. South Creep Tp., 75 Pa. 436; Corson v. Corson, 44 N. H. 587; B. 444 ; 5 Ad. & E. 180; but see State v. McDowell, 101 N. C. 734, 7 S. E. 785, and see ACcEsa.