Legitimacy (family law)



Legitimacy, in traditional Western common law, is the status of a child born to parents who are legally married to each other, and of a child conceived before the parents obtain a legal divorce. Conversely, illegitimacy, also known as bastardy, has been the status of a child born outside marriage, such a child being known as a bastard, a love child, a natural child, or illegitimate. In Scots law, the terms natural son and natural daughter carry the same implications. (The terms bastard and illegitimate are now considered pejorative.)

Legal and political

 * The mother is always certain.
 * principle
 * principle


 * Bastardus est qui nascitur ante matrimonium. Nothus, natus ex patre nobili et matre ignobili: Spurius, natus ex matre nobili et patre ignobili.
 * Sir Edward Coke, Institutes, 243
 * Reported in: William Bradbrook, The Parish Register (1910), p. 34
 * Reported in: William Bradbrook, The Parish Register (1910), p. 34


 * Bastardus est triplex; Manser, incestuose natus
 * Sir Edward Coke, Institutes, 244
 * Reported in: Michael Dalton, The Country Justice (1690), Chap. XI
 * Reported in: Michael Dalton, The Country Justice (1690), Chap. XI


 * Cui pater est populus, pater est fibi nullus & Omnis. Cui pater est populus, non habet ille patrem.
 * Much more of Foundlings, where neither Father nor Mother are known.
 * Reported in: Michael Dalton, The Country Justice (1690), Chap. XI


 * Those which were begotten of married women were called Nothi because they seem to be his children whom the marriage dothshow, but are not: . . . . . pater est quem nuptiæ demonstrant.
 * Sir Thomas Ridley, A View of the Civile and Ecclesiasticall Law (1634), Chap. VII


 * Nothus and Spurius are certainly not used in parish registers in the strict sense above defined, in fact, the terms used varied more according to the righteous wrath of the recording parson, who, perhaps, thereby expressed his disgust at the offence; mark the gentleness of this:   William, son of Lord Talbot, per Dutchess of Beaufort, ut asseritur, born Nov. 1st, 1743, bapt. Mar. 24th, 1743/4. (St. Pancras.) And the severity of these:—    1590. John, the son of a strumpet born at Ockleys, bapt. May 28th. (Kington, Worc.)    1697. May 10th. Wm. son of Mary Hewett, the whore, bapt. (Stony Stratford.)    1774. May 22nd. Mary, the beast boarn dautr. of Mary More was bapt. (Huddington.)    1788. Sarah, dau. of Jane Beament (prostitute), Oct. 5th bapt. (Tarrant Hinton.) Other methods of expression are:—    1560. Bridget and Elizabeth, the daughters of adultery, bapt. Jan. 1st. (Chesham.)    1567. Alice, daught. of Margery Meretrix, bapt. Dec. 25th. (Chesham.)    1615. Arthur Cuthbert filius cuiusdam circumforanei, bapt. April 15th. (Woughton.)    1625. June 29th. Lucia f. (ut putatur) Thos. Cock and Eliz. Henbury, alias Pierse, alias Vaughan, meretricis eius et impurissimi scorti, bapt. (Hopton Castle.)    1669. Margaret, the daughter (spuria) of David de la Hay and Jane his concubine, was bapt. Sept. 12th. (Glasbury.)    1702. Dec. 20th. Sarah, illeg. child of Hugh Isaack's wid. by an anonymous father, bapt. (Selattyn.) Particulars about paternity are very common, for sharp search was always made by parish officers after the fathers of illegitimate children to prevent expense to the rates.    1603. Hughe Pigot, a Bastard son of Margaret Pigot begotten as she sayeth by Michael Harrison an hostler dwelling wth one Mr. ffroome in London near Newgate att the signe of the seriante Head xped xxxj Julie. (Mark Fryston.)    Katheren Heath, ye daughter of Geoffry Heath yf ye mother of ye child hath fathered it right, was babt. 22nd August, 1613. (Banstead.)    1634. Ann, ye daughter of Joane Money & John Bayley ye supposed father begotten in fornication was baptized March 15th. (Morden.)    1704. 26th Sept. Jane, ye dautr. of Susannah Newman, ye father unknown, bap. (Bere Hacket.)    1787. Oct. 28th. Mary, illeg. daugh. of Mary Webb was bapt. (P). Her Mother said she was then fourteen years old. (Canon Frome.)    1766. Mar. 3rd. Sarah, the Bastard Dau. of Sarah Smallwood of Baton, Widow, aged about 50 years was bapt. (Bletchley.) The above examples are selections only from the numberless entries of similar nature; the forms, words and expressions used are of very great variety. On the whole, as the average entry of a "bastard" contains more detail than that of the legitimate, the genealogist should pay careful attention to these cases and see if the child died, for the mortality among illegitimate infants was much higher than the general infant death rate.
 * William Bradbrook, The Parish Register (1910), pp. 35–37


 * I rejoice to think that since the days of Queen Elizabeth, our laws have been so far humanized that a bastard child is no longer a mere thing to be shunned by an overseer,—whose existence is unrecognised until it becomes a pauper, and whose only legitimate home is a workhouse, that it is no longer permissible to punish its unfortunate mother with hard labour for a year, nor its father with a whipping at the cart's tail; but that even an illegitimate child may find itself a member of some honest family, and that the sole obligation now cast upon its parents is that each may be compelled to bear his and her own fair share of the maintenance and education of the unfortunate offspring of their common failing.
 * Sir Henry Hawkins, Hardy v. Atherton (1881). L.R. 7 Q.B. 269
 * See 18 Eliz. c. 3
 * Reported in: J. W. Norton-Kyshe, Dictionary of Legal Quotations (1904), p. 18


 * All sorts of terms are used to indicate this condition, but the word "bastard" is not used anything like so often as its various synonyms; this is as it should be, as the word (of doubtful etymology) is more properly applied to the "bye-blows" of the great than to the produce of proletarian promiscuity. The earliest known application of the term is to the Conqueror, who styled himself, "Ego Wilhelmus Cognomine Bastardus."
 * William Bradbrook, The Parish Register (1910), p. 34


 * S IR : One of your correspondents says the illegitimate child will always be an outcast under moral law; which sounds pretty bad for moral law. It is worth remembering that good men have repeatedly told us that there are no illegitimate children, but only illegitimate parents. And it requires no superhuman vision and no superlative righteousness for anyone to see that an ideal which determines always to punish forever an innocent human being for that of which he is in no respect guilty is a detestable sham and a reproach to any “society” or “civilization.”What “we call” virtue or what “we call” vice is of very little consequence in comparison with the rights of a human soul and a human body—and complacent artificial codes to the contrary notwithstanding. Every child of illegitimate parents should receive from society more than a just measure of consideration, help and respect. There is nothing in the Christian religion to forbid this, whatever there may be in so-called moral and legal statutes. We are surely to be pitied, if with every variety of evil all about us, we are persuaded that the “immorality” of existence of any human life is something for us to persecute and oppress.
 * John Hutchinson, "Humanity and Outcasts", The New Republic (5 May 1917), p. 24


 * There may be illegitimate parents—there can be no illegitimate child.
 * , quoted in Standards of Legal Protection for Children Born out of Wedlock (U.S. Department of Labor; Children's Bureau, 1921), p. 7

Literary

 * K ENT Is not this your son, my lord?G LOUCESTER His breeding, sir, hath been at my charge: I have so often blushed to acknowledge him, that now I am brazed to it.K ENT I cannot conceive you.G LOUCESTER Sir, this young fellow's mother could: whereupon she grew round-wombed, and had, indeed, sir, a son for her cradle ere she had a husband for her bed. Do you smell a fault?K ENT I cannot wish the fault undone, the issue of it being so proper.G LOUCESTER But I have, sir, a son by order of law, some year elder than this, who yet is no dearer in my account: though this knave came something saucily into the world before he was sent for, yet was his mother fair; there was good sport at his making, and the whoreson must be acknowledged.
 * Shakespeare, King Lear, act I, scene 1


 * E DMUND Thou, nature, art my goddess; to thy law My services are bound. Wherefore should I Stand in the plague of custom, and permit The curiosity of nations to deprive me, For that I am some twelve or fourteen moon-shines Lag of a brother? Why bastard? wherefore base? When my dimensions are as well compact, My mind as generous, and my shape as true, As honest madam's issue? Why brand they us With base? with baseness? bastardy? base, base? Who, in the lusty stealth of nature, take More composition and fierce quality Than doth, within a dull, stale, tired bed, Go to the creating a whole tribe of fops, Got 'tween asleep and wake? Well, then, Legitimate Edgar, I must have your land: Our father's love is to the bastard Edmund As to the legitimate: fine word,—legitimate! Well, my legitimate, if this letter speed, And my invention thrive, Edmund the base Shall top the legitimate. I grow; I prosper: Now, gods, stand up for bastards!
 * Shakespeare, King Lear, act I, scene 2

Metaphorical

 * Russian Communism is the illegitimate child of Karl Marx and Catherine the Great.
 * Clement Attlee, speech at, 11 April 1956
 * Reported in: Brewer's Dictionary of Modern Phrase & Fable, 2nd ed. (2009)


 * For further I could say, “This man’s untrue”, And knew the patterns of his foul beguiling; Heard where his plants in others’ orchards grew, Saw how deceits were gilded in his smiling; Knew vows were ever brokers to defiling; Thought characters and words merely but art, And bastards of his foul adulterate heart.
 * Shakespeare, A Lover’s Complaint