Page:Encyclopædia Britannica, Ninth Edition, v. 3.djvu/443

sucli birth has been procured by fraud, or has happened under an order of removal, in a state of vagrancy, in the house of correction, or under certificate ; for in law he has no father. The incapacities attaching to a bastard consist principally in this, that he cannot be heir to p.ny one ; for being nullius filius, he is therefore of kin to nobody, and has no ancestor from whom an inheritable blood can be derived. Therefore, if there be no other claimant upon an inheritance than such illegitimate child, it escheats to the lord. And as bastards cannot be heirs themselves, so neither can they have any heirs but those of their own bodies ; for as all collateral kindred consists in being derived from the same common ancestor, and as a bastard has no legal ancestor, he can have no collateral kindred, and consequently no legal heirs, except such as claim by a lineal descent from himself. And hence, if a bastard purchase land, and die seised therefor without issue and intestate, the land escheats to the lord of the fee. Originally a bastard was deemed incapable of holy orders, and disqualified by the fact of his birth from holding any dignity in the church ; but this doctrine is now obsolete, and in all other respects there is no distinction between a bastard and another man. By the law of Scotland a bastard is not only excluded from his father s succession, because the law knows no father who is not marked out by marriage ; and from all heritable succession, whether by the father or mother, because he cannot be pronounced lawful heir by the inquest in terms of the brief; but also from the movable succession of his mother, because he is not her lawful child, and legitimacy is implied in all succession deferred by the law. But a bastard, although he cannot succeed jure sanguinis, may succeed by destination, where he is specially called to the succession by entail or testament. In Scot land, as in England, a bastard can have no legal heirs except those of his own body ; and hence, failing his lawful issue, the king succeeds to him as last heir. In Scotland bastards may be legitimized in two ways; either by the subsequent intermarriage of the mother of the child with the father, as already mentioned, or by letters of legitimization from the sovereign. With respect to the last, however, it is to be observed, that letters of legitimization, be their clauses ever so strong, cannot enable the bastard to succeed to his natural father ; for the king cannot, by any prerogative, cut off the private right of third parties. But, by a special clause in the letters of legitimation, he may renounce his right to the bastard s succession, failing descendants, in favour of him who would have been the bastard s heir had he been born in lawful wedlock, such renunciation encroaching upon no right competent to any third party. Formerly bastards in Scotland without issue of their own could not make a will, but this disability was removed by 6 Will. IV. c. 22. If bastards or other persons without kindred die intestate without wife or child, their effects go to the king as ultimus haeres ; but a grant is usually made of them by letters patent, and the grantee

becomes entitled to the administration.

The conflict of laws on the subject of legitimization by subsequent marriage yields some curious results. Thus, in the case of Burtwhistle v. Vardill, it was decided that a child born in Scotland of parents domiciled there, not married till after his birth, is legitimate by the law of Scotland, but cannot take real estate in England as heir. Again, a domiciled Scotchman had a son born in Scotland and then married the mother in Scotland. The son died seised of land in England, and it was held that the father could not inherit from the son. A domiciled Englishman, putative father of a child born in France of a French woman, having afterwards acquired a French domicile, married the mother and acknowledged the child as legi timate in the mode prescribed by the law of France. It was held that he could not legitimize the child so as to enable it to share in a bequest to his children by a person in England. The law of England, while admitting the general maxim that the status of legitimacy must be tried by the law of the country where it originates, holds that the succession to real property must be determined by the lex loci rei sitce ; so that, for example, a legitimized Scotchman would be recognized as legitimate in England, but not legitimate so far as to take lands as heir.

The statistics of illegitimacy present some striking differences and uniformities, but it is only in the case of Scotland that we can be reasonably certain of the accuracy of the figures. The status of the child is not recorded in the English system of registration, but is a matter of inference from the facts stated by the parents. In 1873 illegitimacy varied in Scotland as follows. The proportion of illegitimate births was—

In the Insular rural districts 5 4 per cent. ,, Mainland rural districts 10 8 ,, ,, Small towns 8 2 ,, ,, Large towns 7 ,, ,, Principal towns 9 1 ,,

In the counties the percentage varied from 4 in Shetland, Ross, and Cromarty, 5 in Nairn, and 6 5 in Sutherland, to ll l in Forfar, 11*4 in Roxburgh, 137 in Kincardine, 14 in Aberdeen, 15 8 in Banff, 15 8 in Elgin and Dumfries, and 13 4 in Wigtown. Similar variations are shown by English statistics for 1859. Compare the highest (Cum berland, 11-4; Norfolk, 107; Westmoreland, 9 7) with the lowest (Monmouth and Middlesex, 47; and Surrey, 5). The metropolis stands at 4 2. With these local variations may be contrasted the steadiness with which the general average of illegitimacy is maintained. In England, for example, during nineteen years (1841-1859) the percentage fluctuated between 6 3 7 and 7, and during the last thirteen years of the period between 6-4 and 6 - 8. The returns of the Registrar-General show rather more fluctuation in Scotland during the period for which we have statistics (1855-1873), 1he figures being 7 S in 1855, 8 - 5 in 185G, steadily rising to 10 in 1863, and 10 2 in 1866, and then steadily falling to 9-1 in 1872, and 9 in 1873. The statistics of different countries, so far as any proper comparison can be made between them, show differences equally remarkable. The order in which they stand, would be something like the following: Sardinia (illegitimates), 2 091 per cent.; Hol land, 3 96; Spain, 5 6; Switzerland, 5 9 ; Tuscany, 6 ; England, 6 5 ; Finland, Belgium, Sicily, France, 7 8; Prussia, 7 to 8 ; Austria, Norway, Scotland, 9 ; Denmark, Sweden, Hanover, Iceland, Saxony, 15; Wiirtemberg, Bavaria, 20 (from Mr Lumley s paper in the Journal of the Statistical Society for June 1862). It will be seen that these differences cannot be explained on any consideration of religious belief or education. An inquiry made in Prussia in 1849 yielded the following results. The proportion of illegitimate to legitimate births was—

Among Protestants 1 to 1078 ,, Catholics 1 to 16 35 ,, Mennonites 1 to 57 88 ,, Jews 1 to 40 English and Scotch returns show that the proportion of illegitimacy is smaller in the town than in the country districts, but the same feature is not observed in Con tinental towns, as appears from the following returns, which, however, can in most cases be regarded as approximations only:—

In London the proportion is 4 2 per cent. Birmingham, 1845 ,, 4 5 ,, Liverpool, ,, ,, 4 ,, Manchester, ,. ,, 67 ,,

Leeds, ,, 6 <i