Vulgar words in Commentaries on the Laws of England - Book the First (Page 1)
This book at a glance
~ ~ ~ Sentence 331 ~ ~ ~
This appears on the one hand from the spleen with which the monastic writers[e] speak of our municipal laws upon all occasions; and, on the other, from the firm temper which the nobility shewed at the famous parliament of Merton; when the prelates endeavoured to procure an act, to declare all bastards legitimate in case the parents intermarried at any time afterwards; alleging this only reason, because holy church (that is, the canon law) declared such children legitimate: but "all the earls and barons (says the parliament roll[f]) with one voice answered, that they would not change the laws of England, which had hitherto been used and approved."
~ ~ ~ Sentence 3,088 ~ ~ ~
For, besides that he claimed under a descent from John of Gant, whose title was now exploded, the claim (such as it was) was through John earl of Somerset, a bastard son, begotten by John of Gant upon Catherine Swinford.
~ ~ ~ Sentence 5,932 ~ ~ ~
~ ~ ~ Sentence 6,559 ~ ~ ~
First, with regard to his person; as if he be a bastard, an outlaw, an excommunicate, an alien, under age, or the like[c].
~ ~ ~ Sentence 7,686 ~ ~ ~
The issue of such marriage, as is thus entirely dissolved, are bastards[b].
~ ~ ~ Sentence 7,830 ~ ~ ~
CHILDREN are of two sorts; legitimate, and spurious, or bastards: each of which we shall consider in their order; and first of legitimate children.
~ ~ ~ Sentence 8,014 ~ ~ ~
~ ~ ~ Sentence 8,016 ~ ~ ~
The legal duties of the parents towards a bastard child.
~ ~ ~ Sentence 8,018 ~ ~ ~
The rights and incapacities attending such bastard children.
~ ~ ~ Sentence 8,019 ~ ~ ~
1. WHO are bastards.
~ ~ ~ Sentence 8,020 ~ ~ ~
A bastard, by our English laws, is one that is not only begotten, but born, out of lawful matrimony.
~ ~ ~ Sentence 8,021 ~ ~ ~
The civil and canon laws do not allow a child to remain a bastard, if the parents afterwards intermarry[i]: and herein they differ most materially from our law; which, though not so strict as to require that the child shall be _begotten_, yet makes it an indispensable condition that it shall be _born_, after lawful wedlock.
~ ~ ~ Sentence 8,026 ~ ~ ~
Because by the Roman laws a child may be continued a bastard, or made legitimate, at the option of the father and mother, by a marriage _ex post facto_; thereby opening a door to many frauds and partialities, which by our law are prevented.
~ ~ ~ Sentence 8,028 ~ ~ ~
Because by those laws a man may remain a bastard till forty years of age, and then become legitimate, by the subsequent marriage of his parents; whereby the main end of marriage, the protection of infants, is totally frustrated.
~ ~ ~ Sentence 8,030 ~ ~ ~
Because this rule of the Roman laws admits of no limitations as to the time, or number, of bastards so to be legitimated; but a dozen of them may, twenty years after their birth, by the subsequent marriage of their parents, be admitted to all the privileges of legitimate children.
~ ~ ~ Sentence 8,049 ~ ~ ~
FROM what has been said it appears, that all children born before matrimony are bastards by our law; and so it is of all children born so long after the death of the husband, that, by the usual course of gestation, they could not be begotten by him.
~ ~ ~ Sentence 8,052 ~ ~ ~
In this case with us the heir presumptive may have a writ _de ventre inspiciendo_, to examine whether she be with child, or not[n]; which is entirely conformable to the practice of the civil law[o]: and, if the widow be upon due examination found not pregnant, any issue she may afterwards produce, though within nine months, will be bastard.
~ ~ ~ Sentence 8,078 ~ ~ ~
~ ~ ~ Sentence 8,079 ~ ~ ~
As if the husband be out of the kingdom of England (or, as the law somewhat loosely phrases it, _extra quatuor maria_) for above nine months, so that no access to his wife can be presumed, her issue during that period shall be bastard[t].
~ ~ ~ Sentence 8,081 ~ ~ ~
In a divorce _a mensa et thoro_, if the wife breeds children, they are bastards; for the law will presume the husband and wife conformable to the sentence of separation, unless access be proved: but, in a voluntary separation by agreement, the law will suppose access, unless the negative be shewn[x].
~ ~ ~ Sentence 8,082 ~ ~ ~
So also if there is an apparent impossibility of procreation on the part of the husband, as if he be only eight years old, or the like, there the issue of the wife shall be bastard[y].
~ ~ ~ Sentence 8,083 ~ ~ ~
Likewise, in case of divorce in the spiritual court _a vinculo matrimonii_, all the issue born during the coverture are bastards[z]; because such divorce is always upon some cause, that rendered the marriage unlawful and null from the beginning.
~ ~ ~ Sentence 8,100 ~ ~ ~
LET us next see the duty of parents to their bastard children, by our law; which is principally that of maintenance.
~ ~ ~ Sentence 8,101 ~ ~ ~
For, though bastards are not looked upon as children to any civil purposes, yet the ties of nature, of which maintenance is one, are not so easily dissolved: and they hold indeed as to many other intentions; as, particularly, that a man shall not marry his bastard sister or daughter[a].
~ ~ ~ Sentence 8,102 ~ ~ ~
The civil law therefore, when it denied maintenance to bastards begotten under certain atrocious circumstances[b], was neither consonant to nature, nor reason, however profligate and wicked the parents might justly be esteemed.
~ ~ ~ Sentence 8,110 ~ ~ ~
When a woman is delivered, or declares herself with child, of a bastard, and will by oath before a justice of peace charge any person having got her with child, the justice shall cause such person to be apprehended, and commit him till he gives security, either to maintain the child, or appear at the next quarter sessions to dispute and try the fact.
~ ~ ~ Sentence 8,111 ~ ~ ~
But if the woman dies, or is married before delivery, or miscarries, or proves not to have been with child, the person shall be discharged: otherwise the sessions, or two justices out of sessions, upon original application to them, may take order for the keeping of the bastard, by charging the mother, or the reputed father with the payment of money or other sustentation for that purpose.
~ ~ ~ Sentence 8,112 ~ ~ ~
And if such putative father, or lewd mother, run away from the parish, the overseers by direction of two justices may seize their rents, goods, and chattels, in order to bring up the said bastard child.
~ ~ ~ Sentence 8,129 ~ ~ ~
I PROCEED next to the rights and incapacities which appertain to a bastard.
~ ~ ~ Sentence 8,132 ~ ~ ~
All other children have a settlement in their father's parish; but a bastard in the parish where born, for he hath no father[f].
~ ~ ~ Sentence 8,133 ~ ~ ~
However, in case of fraud, as if a woman be sent either by order of justices, or comes to beg as a vagrant, to a parish which she does not belong to, and drops her bastard there; the bastard shall, in the first case, be settled in the parish from whence she was illegally removed[g]; or, in the latter case, in the mother's own parish, if the mother be apprehended for her vagrancy[h].
~ ~ ~ Sentence 8,134 ~ ~ ~
The incapacity of a bastard consists principally in this, that he cannot be heir to any one, neither can he have heirs, but of his own body; for, being _nullius filius_, he is therefore of kin to nobody, and has no ancestor from whom any inheritable blood can be derived.
~ ~ ~ Sentence 8,135 ~ ~ ~
A bastard was also, in strictness, incapable of holy orders; and, though that were dispensed with, yet he was utterly disqualified from holding any dignity in the church[i]: but this doctrine seems now obsolete; and in all other respects, there is no distinction between a bastard and another man.
~ ~ ~ Sentence 8,136 ~ ~ ~
And really any other distinction, but that of not inheriting, which civil policy renders necessary, would, with regard to the innocent offspring of his parents' crimes, be odious, unjust, and cruel to the last degree: and yet the civil law, so boasted of for it's equitable decisions, made bastards in some cases incapable even of a gift from their parents[k].
~ ~ ~ Sentence 8,137 ~ ~ ~
A bastard may, lastly, be made legitimate, and capable of inheriting, by the transcendent power of an act of parliament, and not otherwise[l]: as was done in the case of John of Gant's bastard children, by a statute of Richard the second.