English and Welsh bastardy laws
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A bastard (also called whoreson) in the law of England and Wales is a person whose parents, at the time of his birth, are not married to each other.
Unlike many other systems of law, there was no possibility of post hoc legitimisation of a bastard.
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Terminology
The words "bastard" (or "bastardy") are widely considered pejorative, especially because of their informal meanings, which refer to people thought to be obnoxious. However, these words were always considered offensive, even before the informal meaning emerged. In informal terms, the word "whoreson" is used as an abusive term for only men thought to be vicious.
Etymology
In Italian, Spanish, and Portuguese, "bastardo" is an offensive term for a boy or man born of unmarried parents, or offensive informal terms for a vicious man. In Latin, "bastardus" was an offensive term to a boy or man born of unmarried parents. In informal Latin, "bastardus" refers to a man thought to be vicious. "Bastarda" is an offensive term for a girl or woman born of unmarried parents, and, in informal terms, an offensive term for a vindictive woman. When you want to offend a group of people, born out unmarried parents or not, you say "los bastardos." This is similar to how "bastard" is offensive to both sexes.
Common law origin
Bastardy was not a status, like villeinage, but the fact of being a bastard had a number of legal effects on an individual.
One exception to the general principle that a bastard could not inherit occurred when the eldest son (who would otherwise be heir) was born a bastard but the second son was born after the parents were married.
The Provisions of Merton 1235 (20 Hen. 3 c. IX), otherwise known as the Special Bastardy Act 1235, provided that except in the case of real actions the fact of bastardy could be proved by trial by jury, rather than necessitating a bishop's certificate.
Reform
Post-hoc legitimisation was introduced under the Legitimacy Act 1926 (16 & 17 Geo. 5 c. 60) and the Family Law Reform Act 1969 (c. 46) allowed a bastard to inherit on the intestacy of his parents.
In Medieval Wales
In Medieval Wales, prior to its conquest by and incorporation in England, a "bastard" was defined solely as a child not acknowledged by his father. All children acknowledged by a father, whether born in or out of wedlock, had equal legal rights including the right to share in the father's inheritance. This legal difference between Wales and England is often referred to in the well-known "Brother Cadfael" series of Medieval detective mysteries, and provides the solution to the mystery in one of them.
See also
References
- William Blackstone, Commentaries on the Laws of England, York City, Legal Publish Press, 1960.
