BOOK I. the rules of honour and civil fociety. Upon reasons like thefe we may fuppofe the peers to have acted at the parliament of Merton, when they refused to enact that children. born before marriage fhould be efteemed legitimate *. FROM what has been faid it appears, that all children born before matrimony are bastards by our law and fo it is of all children born fo long after the death of the hufband, that, by the ufual course of geftation, they could not be begotten by him. But, this being a matter of fome uncertainty, the law is not exact as to a few days'. And this gives occafion to a proceeding at common law, where a widow is fufpected to feign herfelf with child, in order to produce a fuppofititious heir to the estate: an attempt which the rigor of the Gothic conftitutions esteemed equivalent to the most atrocious theft, and therefore punished with death ". In this cafe with us the heir prefumptive may have a writ de ventre infpiciendo, to examine whether fhe be with child, or not "; and, if fhe be, to keep her under proper reftraint, till delivered; which is entirely conformable to the practice of the civil law: but, if the widow be upon due examination found not pregnant, the prefumptive heir shall be admitted to the inheritance, though liable to lose it again, on the birth of a child within forty weeks from the death of a husband P. But if a man dies, and his widow foon after marries again, and a child is born within fuch a time, as that by the course of nature it might have been the child of either husband; in this cafe he is faid to be more than ordinarily legitimate; for he may, when he arrives to years of difcretion, choose which of the fathers he pleases. To prevent this, among other inconveniencies, the civil law ordained that no widow fhould marry infra annum luctus', a k Rogaverunt omnes epifcopi magnates, ut confentirent qued nati ante matrimonium effent legitimi, ficut illi qui nati funt poft watrimonium, quia eccl.fia tales habet pro Igtimis. Et omnes comites et barnes una woce refponderunt, quod nolunt leges Angliae mutare, quae hucufque ufitatae funt et approbatae. Stat. 20 Hen. III. c. 9. See the introduction to the great char ter, edit. Ox:n. 1759. fub anno 1253. Cre. Jac. 541. m Sticrnhook de jure Gothor. 1. 3. c. 5. n Co. Litt. 8. Bract. 1. 2. c. 32. о Ff. 25. tit. 4. per tot. P Britton. c. 66. pag. 166. Cod. 5.9.2. rule which obtained fo early as the reign of Augustus, if not of Romulus and the fame conftitution was probably handed down to our early ancestors from the Romans, during their ftay in this island; for we find it established under the Saxon and Danish governments '. As baftards may be born before the coverture or marriage ftate is begun, or after it is determined, fo alfo children born during wedlock may in fome circumstances be bastards. As if the hufband be out of the kingdom of England, (or, as the law fomewhat loosely phrafes it, extra quatuor maria) for above nine months, fo that no accefs to his wife can be presumed, her issue during that period shall be bastards v. But, generally, during the coverture accefs of the husband shall be prefumed, unlefs the contrary can be fhewn"; which is such a negative as can only be proved by fhewing him to be elsewhere for the general rule is, praefumitur pro legitimatione". In a divorce, a menfa et thoro, if the wife breeds children, they are baftards; for the law will prefume the hufband and wife conformable to the fentence of feparation, unless accefs be proved: but, in a voluntary feparation by agreement, the law will fuppofe accefs, unlefs the negative be fhewn. So alfo if there is an apparent impoffibility of procreation on the part of the husband, as if he be only eight years old, or the like, there the iffue of the wife fhall be bastard. Likewife, in cafe of divorce in the fpiritual court a vinculo matrimonii, all the issue born during the coverture are bastards 2; becaufe fuch divorce is always upon fome caufe, that rendered the marriage unlawful and nuil from the beginning. 2. LET us next fee the duty of parents to their bastard children, by our law; which is principally that of maintenance. For, though bastards are not looked upon as children to any civil purposes, yet the ties of nature, of which maintenance is one, are not fo eafily diffolved: and they hold indeed as to many other intentions; as, particularly, u Salk. 123. 3 P. W. 276. Stra. But the year was then only ten months. Ovid. Faft. I. 27. Sit omnis vidua fire marito ducdecim merfes. L. L.Etbelr. A. D. 1008. L.L. Canut. c. 71. Y Co. Litt. 244. that a man fhall not marry his baftard fifter or daughter. The civil law, therefore, when it denied maintenance to baftards begotten under certain atrocious circumftances, was neither confonant to nature, nor reafon; however profligate and wicked the parents might juftly be esteemed. THE method in which the English law provides maintenance for them is as follows. When a woman is delivered, or declares herfelf with child, of a baftard, and will by oath. before a juftice of peace charge any perfon as having got her with child, the justice shall caufe fuch perfon to be apprehended, and commit him till he gives fecurity, either to maintain the child, or appear at the next quarter fefsions to difpute and try the fact. But if the woman dies, or is married before delivery, or mifcarries, or proves not to have been with child, the perfon fhall be difcharged: otherwife the feffions, or two juftices out of feffions, upon original application to them, may take order for the keeping of the bastard, by charging the mother or the reputed father with the payment of money or other fuftentation for that purpofe. And if fuch putative father, or lewd mother, run away from the parish, the overfeers by direction of two juftices may feize their rents, goods, and chattels, in order to bring up the faid baftard child. Yet fuch is the humanity of our laws, that no woman can be compulfively queftioned concerning the father of her child, till one month after her delivery: which indulgence is however very frequently a hardship upon parishes, by giving the parents opportunity to escape. 3. I PROCEED next to the rights and incapacities which appertain to a baftard. The rights are very few, being only fuch as he can acquire; for he can inherit nothing, being looked upon as the fon of nobody, and fometimes called filius nullius, fometimes filius populi (a). Yet he may gain a fir a Lord Raym. 68. Comb. 356. v Nov. 89. c. 15. c Stat. 18. Eliz. c. 3. 7 Jac. I. c.4. d 3 Car. I. c. 4. 13 & 14 Car. II. c. 12. 6 Geo. II. c. 31. Fort. de L. L. c. 40. (a) Bastards are within the meaning of the marriage act 26 Geɔ. z. c. 33. which requires the confent of the father, guardian, or mother, to the marriage of perfons under age, who are not married by banns. The King v. Hodnett, Term. Rep. 96.-The rule that a bastard is filius rullius applies only to the cafe of inheritances. Ibid. 101. name by reputation, though he has none by inheritance. All other children have their primary fettlement in their father's parifh; but a baftard in the parish where born, for he hath no father. However, in cafe of fraud, as if a woman be fent either by order of juftices, or comes to beg as a vagrant, to a parish which she does not belong to, and drops her baftard there; the bastard fhall, in the first cafe, be fettled in the parifh from whence fhe was illegally removed; or, in the latter cafe, in the mother's own parish, if the mother be apprehended for her vagrancy. Baftards alfo, born in any licensed hofpital for pregnant women, are fettled in the parishes to which the mothers belong. The incapacity of a bastard confifts principally in this, that he cannot be heir to any one, neither can he have heirs, but of his own body; for, being nullius filius, he is therefore of kin to nobody, and has no ancestor from whom any inheritable blood can be derived. A baftard was alfo, in ftrictnefs, incapable of holy orders; and, though that were difpenfed with, yet he was utterly disqualified from holding any dignity in the church but this doctrine feems now obfolete; and in all other refpects, there is no diftinction between a bastard and another man. And really any other diftinction, but that of not inheriting, which civil policy renders neceffary, would, with regard to the innocent offspring of his parents' crimes, be odious, unjust, and cruel to the last degree : and yet the civil law, fo boasted of for it's equitable decifions, made bastards in fome cafes incapable even of a gift from their parents'. A baftard may, lastly, be made legitimate, and capable of inheriting, by the tranfcendent power of an act of parliament, and not otherwife : as was done in the cafe of John of Gant's baftard children, by a ftatute of Richard the fecond. e Co. Litt. 3. Salk. 427. g Ibid. 121. h Stat. 17 Geo. II. c. 5. iStat. 13 Geo. III. c. 82. 1 Cod. 6. 57. 5. m 4 Inft. 36. VOL. I. G g CHAPTER THE SEVENTEENTH. OF GUARDIAN AND WAR D. HE only general private relation, now remaining to ΤΗ be difcuffed, is that of guardian and ward; which bears a very near refemblance to the last, and is plainly derived out of it: the guardian being only a temporary parent, that is, for fo long time as the ward is an infant, or under age. In examining this fpecies of relationship, I fhall first confider the different kinds of guardians, how they are appointed, and their power and duty: next, the different ages of perfons, as defined by the law: and lastly, the privileges and difabilities of an infant, or one under age and fubject to guardianship. 1. THE guardian with us performs the office both of the tutor and curator of the Roman laws; the former of which had the charge of the maintenance and education of the minor, the latter the care of his fortune; or, according to the language of the court of chancery, the tutor was the committee of the perfon, the curator the committee of the eftate. But this office was frequently united in the civil law; as it is always in our law with regard to minors, though as to lunatics and idiots it is commonly kept distinct. a Ff. 26. 4. I. OF |