Definition
Bastardy carries two related but distinct legal meanings in historical sources:
1. The condition of being born outside lawful wedlock; the legal status of a bastard. At common law, a child born to parents not married to each other was a bastard and suffered significant civil disabilities, including the inability to inherit from either parent, claim kindred, or bear a surname by right. This status attached at birth and, under strict common law rules, could not be removed by subsequent marriage of the parents.
2. The offense or proceeding concerned with the begetting of a bastard child. "Bastardy proceedings" — sometimes called bastardy cases or bastardy actions — were quasi-criminal or civil actions brought, typically by public authorities or the mother, to compel an alleged father to acknowledge paternity and contribute to the child's support. These proceedings served both a public interest (reducing the burden on parish or county poor relief) and a private interest (support of the child).
The two meanings track distinct legal functions: the first concerns status, the second concerns liability and support. Historical sources often treat them together under a single head, which can obscure the difference for the modern researcher.
Common Language
Modern common usage (Wiktionary): The condition of being illegitimate, of being born to an unmarried woman and man or as the fruit of adultery.
Historical common usage (Webster's 1913): The state of being a bastard; illegitimacy. The procreation of a bastard child.
The gap between common and legal usage is modest but real. Ordinary usage treats bastardy as a descriptive status label. Legal usage adds a procedural dimension — bastardy proceedings were a formal legal mechanism with defined evidentiary rules, burden of proof, and remedies. A researcher encountering "bastardy" in a historical court record should determine whether the source is describing a person's status or a legal proceeding, as the two command very different research paths.
Common Confusion
Bastardy is sometimes conflated with modern paternity actions, but they are not equivalent. Bastardy proceedings were often quasi-criminal in character — the putative father could be bound over, fined, or jailed for failure to give surety — while modern paternity proceedings are civil actions focused on establishing legal parentage and support obligations. The social stigma and civil disabilities that defined the status of bastardy at common law have been substantially abolished by statute across most jurisdictions. Researchers should not read modern assumptions about parentage law backward into historical bastardy records.
Why It Matters in Research
The Law Mind corpus spans a long arc during which the legal meaning and social weight of bastardy shifted dramatically. Several research traps follow from this:
First, the term operates at two levels simultaneously — status and proceedings — and historical sources switch between them without always signaling which they mean. Burrill's entry is the most useful here, noting the term's application to pleas of illegitimacy, suits for calling one a bastard, and any examination of whether a birth was legitimate. That breadth reflects actual practice in the older reports.
Second, the civil disabilities of bastard status at common law were sweeping and well-documented in treatises, but statutory reforms began in the nineteenth century and accelerated through the twentieth. Uniform Parentage Acts and constitutional decisions — particularly the line of U.S. Supreme Court cases beginning in the late 1960s addressing the rights of nonmarital children — effectively dismantled the common law framework. Researching bastardy in sources after approximately 1970 requires awareness that the term may appear in historical discussion or in jurisdictions with lagging statutory reform.
Third, bastardy proceedings generated their own procedural vocabulary: examinations before magistrates, bonds of indemnity, orders of filiation, warrants of commitment. These terms appear in local court records and treatises and are essential for navigating primary source material.
Fourth, the corpus connections run through poor law administration as much as family law proper. Much bastardy litigation in English and early American records arose because parish or county authorities sought reimbursement for supporting an illegitimate child. Researchers working on poor law, welfare administration, or local government history will encounter bastardy proceedings in that context.
Historical Dictionary Support
Black's (1st ed.), Black's (2nd ed.), and Bouvier's are in near-verbatim agreement: bastardy is the offense of begetting a bastard child and the condition of a bastard. The agreement is so close as to suggest common sourcing. None of these entries captures the procedural richness of actual bastardy practice.
Burrill's entry is the most substantive. By citing Bracton (fol. 405, 416) and Cowell, Burrill grounds the term in the deep common law record and flags its application across multiple procedural contexts — pleas, defamatory suits, and general status inquiries. His phrase "a defect of birth, objected to one begotten out of wedlock" conveys something the other entries miss: that bastardy was not merely a descriptive category but a legal objection that could be raised by opponents in litigation to defeat an adversary's claim.
What the historical dictionaries collectively miss: the procedural mechanics of bastardy proceedings, the poor-law backdrop, the evidentiary rules (including the presumption of legitimacy), and the arc of reform that renders the term largely obsolete in modern practice. Researchers should treat these entries as entry points, not endpoints.
Jurisdictional Note
Bastardy proceedings existed in both English and American law but diverged in procedure. American states developed their own statutory frameworks, some quasi-criminal and some civil, with significant variation in burden of proof and available remedies. The term "bastardy" persisted in American statutory codes well into the twentieth century in some states before being replaced by "paternity" or "parentage" terminology.