in any part of it's body, yet if it hath human ſhape, it may be heir[1]. This is a very antient rule in the law of England[2]; and it's reaſon is too obvious, and too ſhocking, to bear a minute diſcuſſion. The Roman law agrees with our own in excluding ſuch births from ſucceſſions[3]: yet accounts them, however, children in ſome reſpects, where the parents, or at leaſt the father, could reap any advantage thereby[4]; (as the jus trium liberorum, and the like) eſteeming them the misfortune, rather than the fault, of that parent. But our law will not admit a birth of this kind to be ſuch an iſſue, as ſhall intitle the huſband to be tenant by the curteſy[5]; becauſe it is not capable of inheriting. And therefore, if there appears no other heir than ſuch a prodigious birth, the land ſhall eſcheat to the lord.
5. Bastards are incapable of being heirs. Baſtards, by our law, are ſuch children as are not born either in lawful wedlock, or within a competent time after it's determination[6]. Such are held to be nullius filii, the ſons of nobody; for the maxim of law is, qui ex damnato coitu naſcuntur, inter liberos non computantur[7]. Being thus the ſons of nobody, they have no blood in them, at leaſt no inheritable blood; conſequently, none of the blood of the firſt purchaſor: and therefore, if there be no other claimant than ſuch illegitimate children, the land ſhall eſcheat to the lord[8]. The civil law differs from ours in this point, and allows a baſtard to ſucceed to an inheritance, if after it's birth the mother was married to the father[9]: and alſo, if the father had no lawful wife or child, then, even if the concubine was never married to the father, yet ſhe and her baſtard ſon were admitted each to one twelfth of the inheritance[10], and a baſtard was like-
- ↑ Co. Litt. 7, 8.
- ↑ Qui contra formam humani generis converſo more procreantur, ut ſi mulier monſtroſum vel prodigioſum enixa ſit, inter liberos non computentur. Partus tamen, cui natura aliquantulum addiderit vel diminuerit, ut ſi ſex vel tantum quatuor digitos habuerit, bene debet inter liberos connumerari: et, ſi membra ſint inutilia aut tortuoſa, non tamen eſt partus monſtroſus. Bracton. l. 1. c. 6. & l. 5. tr. 5. c. 30.
- ↑ Ff. 1. 5. 14.
- ↑ Ff. 50. 16. 135. Paul. 4 ſent. 9. §. 63.
- ↑ Co. Litt. 29.
- ↑ See book I. ch. 16.
- ↑ Co. Litt. 8.
- ↑ Finch. law. 117.
- ↑ Nov. 89. c. 8.
- ↑ Ibid. c. 12.
