Bastard. A bastard is a child not born in lawful wedlock, as distinguished from the legitimate offspring of married persons. The term "natural" is also applied to all children born out of wedlock.
By the English law a child born during the marriage of its parents is legitimate, even if the child be begotten before matrimony. The fact of birth after marriage is conclusive of legitimacy. In Scotland the subsequent marriage of the parents legitimatises ipso facto previous offspring.
An illegitimate child, or bastard, is regarded for most purposes as the son or daughter of nobody, and is therefore not heir-at-law to any of his reputed ancestors. He is entitled to no distributive share of the personal property of his parents if they die intestate; and under a will he cannot take under the general description of "son, daughter, or child," by which legitimate children alone are presumed to be designated. But he can take under a will made even before he was born, if he is therein particularly described. He may acquire property, and thus become the founder of a fresh inheritance, though none of his lineal descendants can claim through him the property of his reputed kin. 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 for 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 special clause in the Savings' Bank Act allowing 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 legitimate.
A bastard has no surname until he has acquired one by reputation, and in the meantime he is properly called by that of his mother; and she is, generally speaking, entitled to the custody of the child, notwithstanding that the putative father is able and willing to maintain it in better circumstances. The wishes of the child will, however, be consulted.
The putative father is liable to contribute to the support of his illegitimate child to an extent not exceeding 5s. per week, under what is known as an "affiliation order" (obtained from the magistrates, on proof of parentage), until the child arrives at the age of 13 years - or, at the discretion of the magistrates, 16 years - or obtains a settlement in its own right.
The rules of law as to bastardy have been hitherto mainly framed with reference to the Poor Law, for the purpose of saving the public (that is, the parish) from the charge of maintaining a bastard child. It is for this object the inquiries are instituted as to who has begotten the child and should contribute to its support; and for the purpose of settling disputes between parishes as to liability for its maintenance, it has long been decided that, for the purpose of settlement, a bastard shall be considered its mother's child. But the old rules of law as to the incapacities of bastards still subsist, and according to those rules a bastard has neither father, mother, sister, or brother, or other remoter kin. 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 distinction which other people cannot have.
The Roman law required children to be begotten in matrimony in order to be legitimate. The English law does not concern itself as to the conception, but only as to the birth, which must be in wedlock. The old Roman law required on the man's part in intercourse with a woman a "matrimonial mind." The English law does not care with what mind the intercourse is initiated; it is altogether indifferent about the origin of the connection. The old system combines with a clear practical rule for determining the father, an elevated notion of the dignity of the marriage connection. The English system lays down a clear rule for determining paternity, subject to which it is regardless as to the freedom of ante-nuptial sexual connection. The later Roman law gave a man the power of legitimatising his illegitimate child, which the English law does not.
In Scotland one important variation to the law of England has been noticed, viz. that the subsequent marriage of the parents legitimatises their children born before marriage. Another is that the mother has the legal custody of her illegitimate child only until the age or 10 years, the father being bound for maintenance up to that age, when he becomes entitled to the custody of the child.