Sec. 168. Descent to eldest son.

"K. John. What art thou?

Rob. The son and heir to that same Faulconbridge.
K. John. Is that the elder, and art thou the heir?
You came not of one mother, then, it seems."

The seeming surprise of the king, that the younger son should be the heir of the father, if they came from one mother, is because of the rule of the English law, which devolved the estate of the parent upon the eldest son." This was the rule of primogeniture, which gave the first born the estate of the parent.3

Sec. 169.

Bastard's right of inheritance.—

"Bast. Most certain of one mother, mighty king, That is well known; and, as I think, one father; But, for the certain knowledge of that truth, I put you o'er to heaven and to my mother; Of that I doubt, as all men's children may. Eli. Out on thee, rude man: thou dost shame thy mother,

Bast.

And wound her honour with this diffidence.

I, madam? no, I have no reason for it; That is my brother's plea and none of mine; The which, if he can prove, 'a pops me out At least from fair five hundred pounds a year; Heaven guard my mother's honour and my land. K. John. A good blunt fellow:-Why, being younger born,

Doth he lay claim to thine inheritance?

Bast. I know not why, except to get the land.
But once he slander'd me with bastardy:
But whe'r I be as true begot, or no,
That still I lay upon my mother's head;
But that I am as well begot, my liege,

(Fair fall the bones that took the pains for me:)
Compare our faces and be judge yourself.

1 King John, Act I, Scene I.

22 Bl. Comm. 214, 215.

Tiedeman, R. P. (3' ed.) Sec. 474.

K. John. Sirrah, speak, what doth move you to claim your brother's land?

Best. Because he hath a half-face, like my father; With that half-face, would he have all my land: A half-faced groat five hundred pounds a year." Phillip's reference to the claim of his brother to his land, because of his own bastardy, is a recognition of the legal basis for his suit. At common law a bastard had no inheritable blood. He was, in the eye of the law, nullius filius, and was incapable of inheriting, as an heir, either to his putative father, or his mother, or to any one else, nor could he have heirs, save of his own body.3 This rule was supposed to be founded in policy, to discourage illicit intercourse, but if the rule of law, instead of visiting the crime of the parent upon the issue of the illicit act, had prevented the mother from inheriting from the bastard, it would have better achieved this purpose, than it did, in permitting her to take of the bastard, but denying him, the innocent party, this right, as to her land or other property.*

5

While a man was held to be a bastard, although born during coverture, under circumstances where it was impossible for the husband of his mother to have been his father, the proof of such a fact had to be of a very strong and cogent nature to overcome the presumption of legitimacy, of a child born after lawful wedlock, hence the reference of this issue, by Phillip, to his mother, as the most competent witness on this issue, his father being dead."

4 Gilbert, Tenures, 20; 4 Kent's Comm. 417.

1 Bl. Comm. 458.

Gardner, Peerage Case, Le M. Rep; 1 Bl. Comm. 458.

'The evidence of the mother is not admissable to prove access or non-access, it is held, in the United States. 2 Kent's Comm. 212; 29 Pa. 420; 15 Ga. 160.

Sec. 170. Child begot when father not infra quatuor

maria.

"Rob. My gracious liege, when that my father liv'd, Your brother did employ my father much;

And once, dispatch'd.him in an embassy To Germany, there, with the emperor, To treat of high affairs, touching that time; The advantage of his absence took the king, And in the meantime sojourn'd at my father's; Where now he did prevail, I shame to speak; But truth is truth; large length of seas and shores, Between my father and my mother lay (As I have heard my father speak himself) When this same lusty gentleman was got. Upon his death bed he by will bequeath'd His lands to me; and took it on his death, That this, my mother's son, was none of his; And, if he were, he came into the world, Full fourteen weeks before the course of time. Then, good my liege, let me have what is mine, My father's land, as was my father's will."1 This verse presents the substance of Robert's claim to his brother's land, because of the bastardy of Phillip.

Edmond is made to say, in King Lear, regarding his inability to inherit, as a bastard, from his father: "Let me, if not by birth, have lands by wit: All with me's meet, that I can fashion fit." (Act I, Scene I.)

In King Lear, Gloster speaks of his legitimate son, as his heir, or son, "by order of law," in the following lines:

"Glo. But I have, sir, a son by order of law, some year elder than this, who yet is no dearer in my account." (Act I, Scene I.) Gloster tells Edmund, in King Lear: "Loyal and natural boy, I'll work the means to make thee capable," meaning that he will remove the legal impediment, because of his bastardy, so he can inherit land. (Act II, Scene I.)

Tarquin taunts the honest Lucrece that after his crime her children or issue shall be "blurr'd with nameless bastardy." (521.) A bastard did not know his father and hence, could have no name, and was known at law as without an inheritance, or nullius filius.

'King John, Act I, Scene I.

The embassy of his father is mentioned to bring his case within the rule of law, that to establish bastardy against one born of lawful wedlock, it must be shown that the husband of the mother was where he could have had no access to her during the period of gestation. From the time of the Year Books, until the early part of the last century, the issue of a married woman was made legitimate, except on proof of the impotency of the husband or that he was "beyond the four seas," during the period of gestation. In other words, if the claim had been presented by other than hearsay evidence, on Robert's part, in establishing that his father was not infra quatuor maria, when Phillip was begot, he established a prima. facia case, at common law, to the land of his father, which the bastardy of his brother would have prevented him from inheriting."

1

1 Coke, Litt., 244; 1 Bl. Comm. 456, 457. 21 Bl. Comm. 455.

Ever since the case of Pendrell vs. Pendrell, Str. 925, the doctrine of issue born of lawful wedlock, is illegitimate if the husband was infra quatuor maria, has been exploded, and the fact of access or non-access is to be determined like any other fact in the case, by competent evidence. See Nicholas, Treatise on Law of Adulterine Bastardy, 1836.

In urging the false accusation of King Edward's bastardy, against his own mother, to accomplish the overthrow of the children of his dead brother, King Richard III said to Buckingham: “Glo... Tell them, when that my mother went with

child,

Of that insatiate Edward, noble York,

My princely father, then had wars in France;
And, by just computation of the time,
Found, that the issue was not his begot.,'

(Act III, Scene V.)

Richard asks Buckingham, touching his false circulation of the bastardy of his dead brother, Edward: "Glo. Touch'd you the bastardy of Edward's children?" And Buckingham replies: "Buck. . . his own bastardy, As being got, your father then in France; And his resemblance, being not like the duke." (King Richard III, Act III, Scene VII.)

Sec. 171. Legitimacy of child born during lawful wedlock.

"K. John. Sirrah, your brother is legitimate;

Your father's wife did, after wedlock, bear him: And, if she did play false, the fault was hers; Which fault lies on the hazards of all husbands That marry wives. Tell me, how, if my brother, Who, as you say, took pains to get this son, Had of your father claimed this son for his? In sooth, good friend, your father might have kept This calf, bred from his cow, from all the world; In sooth, he might: Then, if he were my brother's, My brother might not claim him; nor your father, Being none of his, refuse him: This concludes,My mother's son did get your father's heir; Your father's heir must have your father's land." The decision as to the legitimacy of Phillip was strictly according to the legal standards existing at the time this play was written. The rule of law was formerly very strict in favor of the legitimacy of a child born of a married woman. While the point was not necessary to the decision of the cases and the remarks on this head were more or less obiter, it was decided in two early English cases, that there must be non-access established during the whole period of pregnancy, in order to bastardize the issue. Rolle, states the law then to be, "By the law of the land no man can be a bastard who is born after marriage, unless for special matter," and Mr. Justice Blackstone, speaking of the old doctrine says: "If the husband be out of England, (or as the law somewhat loosely phrases it, extra quatuor maria) for above nine months, so that no access to his wife can be presumed, her issue during that period shall be bastards. But generally, (he adds, with reference to the latter determination, engrafted on the old rule,) during the coverture, access of the

'King John, Act I, Scene I.

'Regina vs. Murray, Salk. 122; Rex vs. Albertson, 1 Lord Ray, 395; Salk. 484; Carth, 469.

'1 Rol. Abr. 358, tit. Bastard, letter B.