Definition
A special bastard is a child born out of wedlock to parents who subsequently marry one another. The distinction lies in the sequence: conception and birth occur before the marriage, but the parents do later wed. This separates the special bastard from an ordinary illegitimate child whose parents never marry.
The term carries historical legal significance because, under English common law, the subsequent marriage of the parents did not legitimate a child already born before that marriage. The child was born a bastard, remained a bastard, and could not inherit as a legitimate heir — regardless of the parents' later union. This harsh rule stood in stark contrast to civil law systems (and Scots law), which recognized legitimation by subsequent marriage, treating the child as if born legitimate once the parents wed.
Common Language
Modern common usage (Wiktionary): "Bastard" in contemporary general usage is either a vulgar insult or an informal term for a person born to unmarried parents, often used without precise legal intent.
Historical common usage (Webster's 1913): Webster's defines "bastard" as "a natural child; a child begotten and born out of wedlock; an illegitimate child."
The legal term "special bastard" has no meaningful common language counterpart. Ordinary usage does not distinguish between types of illegitimate children based on whether the parents later married. The legal distinction is entirely a creature of English inheritance law and has no resonance in everyday speech. Researchers should not expect to find this phrase outside legal and historical sources.
Common Confusion
Special bastard is frequently confused with ordinary bastardy (sometimes called "general bastardy" in historical texts), but the distinction matters. An ordinary bastard is born to parents who do not subsequently marry; a special bastard is born before marriage to parents who do later wed. The confusion is compounded by civil law and Scots law sources, which treated both categories the same way — legitimating the child upon the parents' marriage — while English common law treated them oppositely. Researchers reading cross-jurisdictional sources without awareness of this divide will misread the legal status of the child and the inheritance consequences that follow.
Why It Matters in Research
This term is almost exclusively a historical legal term. Modern researchers are unlikely to encounter it in any contemporary statutory or case law context, as the common law rule against legitimation by subsequent marriage has been abolished or substantially modified throughout the United States, England, and most common law jurisdictions. Its importance is entirely in reading historical sources — particularly property, inheritance, and probate records and decisions from the colonial period through the nineteenth century.
Several research traps apply:
First, jurisdiction is everything. When you encounter "special bastard" in a historical text, you must determine whether the source is applying English common law, civil law, or Scots law. The outcome for the child is reversed depending on which system applies. A treatise writer citing civil law authority is describing a child who becomes legitimate; one applying common law is describing a child who does not.
Second, American reception of this doctrine varied by state. Some states early on adopted the civil law rule by statute, legitimating children upon subsequent marriage of the parents. Others adhered to the common law position. Reading a nineteenth-century American case on point requires knowing which rule that jurisdiction followed at the relevant time.
Third, this term appears in historical bastardy proceedings and probate litigation, often as a term of art in pleadings challenging heirship. Researchers working in these areas should watch for the term as a signal that inheritance rights — not merely status — are in dispute.
Fourth, "special bastard" sits in an interconnected web of historical terms. It cannot be fully understood without reference to legitimation, putative marriage, and the doctrine of legitimacy by subsequent marriage in civil law. Corpus researchers will find the term most productive when traced alongside those related concepts.
Historical Dictionary Support
Black's Law Dictionary defines the special bastard as "one born of parents before marriage, the parents afterwards intermarrying." Black's immediately flags the civil and Scots law contrast — that such a child would be legitimated under those systems — which confirms the term's function as a common law term of distinction rather than a universal legal concept.
The entry is brief because the term itself carries a precise, narrow meaning. Historical legal dictionaries are largely in agreement on the core definition. What they tend to understate is the practical consequence: under English common law, the special bastard's subsequent legitimation by the parents' marriage was not recognized for purposes of inheritance from the father, a rule attributed to the Statute of Merton (1235), where the English barons famously refused to alter the common law to conform to canon law's legitimation-by-subsequent-marriage rule. Historical dictionary entries typically state the definition without placing this political history in view, which can leave researchers unclear on why the category existed at all as a point of distinction.
Jurisdictional Note
American states diverged significantly on whether to follow the English common law rule or the civil law rule permitting legitimation by subsequent marriage. Many states adopted legitimation by subsequent marriage by statute during the nineteenth century, effectively abolishing the legal significance of the special bastard category. Researchers should consult the statutory history of the relevant jurisdiction before applying any common law authority on this point.