Bastard (law of England and Wales)
This article needs additional citations for verification. (April 2007) (Learn how and when to remove this template message)
A bastard (also historically called whoreson, although both of these terms have largely dropped from common usage) in the law of England and Wales is an illegitimate child, that is, one whose parents were not married at the time of his or her birth. Unlike in many other systems of law, there was previously no possibility of post factum legitimisation of a bastard. This situation was changed in 1926.
The word bastard is from the Old French "bastard," which in turn was from medieval Latin "bastardus." In the modern French bâtard, the circumflex (â) merely represents the loss of the 's' over time. According to some sources, "bastardus" may have come from the word "bastum," which means packsaddle, the connection possibly being the idea that a bastard might be the child of a passing traveller (who would have a packsaddle). In support of this is the Old French phrase "fils de bast" loosely meaning "child of the saddle," which had a similar meaning. A more defined possibility is that such a traveller was a member of the "corps de bast", referring to the division of an army who arrived in town with their packsaddles the night before the troops, and left the day after, so that they may deal with all of the provisions of an army, and even do advanced scouting. This meant that for two days, they had unfettered access to all of the women in town, and were therefore the ones most likely to be the cause of the town's illegitimate offspring. (This explanation is apocryphal, but no attempt at dispute seems to have been proffered.)
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.
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.
- "Bastard". World Dictionary. Oxford University Press. Retrieved 12 September 2011.
- William Blackstone, Commentaries on the Laws of England, York City, Legal Publish Press, 1960.
- Given-Wilson C. & Curteis A., The Royal Bastards of Medieval England, London, 1984