Paternity, presumption and precedent: common lawyers and the construction of illegitimacy

From the medieval period to the twentieth century, important legal consequences flowed from the designation of a person as legitimate or as a ‘bastard’. Land rights, wealth, reputation and chances in life could all be affected by the imposition of one label or the other. Around the idea of the ‘bastard’, the common law built a vast jurisprudential edifice.
This paper will argue that the treatment of ‘bastardy’ by common lawyers, has been over-simplified and under-explored. Following the ‘fatherly’ lead of Sir Edward Coke in particular, common lawyers fashioned from medieval and early modern case law a model of uniform and straightforward rules, cut off from complications of pleading, the role of the Church and the vastly different contexts (from status as serf or free person, through maintenance of ‘paupers’, to succession to land and titles) in which a decision on ‘bastardy’ might be made. The robust independence of the common law from the pernicious influence of ‘foreign’ ideas (e.g. about legitimation by subsequent marriage) was also part of this construction.[i]
Aside from the interest of the development of the law on ‘bastardy’ in and of itself, and as an important aspect of social history, an analysis of this area has broader implications for common law. Simplification and misinterpretation of older legal materials, in the process of using them as precedents in an adversarial process, is far from unique to ‘bastardy’ law, and continues to be a feature of the common law today. Furthermore, ‘the common law mind’ has, into relatively recent times, resorted to metaphors of reproduction, and the legitimacy of that reproduction, when engaged in making choices about the formulation and application of doctrine.[ii] For all its jarring attitudes and apparent marginality to modern life, the old law on bastardy grew up with and in the developing common law itself, and formed an important part of legal doctrine, and of the self-image of common lawyers. It is, it seems to me, one of the special tasks of Legal History not to allow legal scholarship and practice to pass over their more problematic offspring.


[i] See, e.g., Denis Le Marchant, Report of the Proceedings on the Claim to the Barony of Gardner (London: Henry Butterworth, 1828), xxx: ‘In England the sturdy independence of our ancestors soon checked the encroachments of the priesthood. Neither the civil nor the canon law ever formed part of the law of the land.’
[ii] See the ‘piling up’ of metaphors by Bagnall J in Cowcher v. Cowcher [1972] 1 All E.R. 943, 94: ‘[E]quity is [not] past childbearing: [but] its progeny must be legitimate – by precedent out of principle.’