[*459] *3. I proceed next to the rights and incapacities which appertain to a bastard. (The rights are very few, being only such as he can acquire; for he can inherit nothing, being looked upon as the son of nobody; and sometimes called filius nullius, sometimes filius populi g) (19). Yet he may gain a sirname by reputation (h), though he has none by inheritance (20). All other children have their primary settlement in their father's parish; but a bastard in the parish where born, for he hath no father (i). However, in case of fraud, as if a woman be sent either by order of justices, or comes to beg as a vagrant, to a parish where she doe not belong to, and drops her bastard there, the bastard shall, in the first case, be settled in the parish from whence she was illegally removed (j); or, in the latter case, in the mother's own parish, if the mother be apprehended for her vagrancy (k). Bastards also born in any licensed hospital

for pregnant women, are settled in the parishes to which the mothers belong (1). The incapacity of a bastard consists 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 ances tor from whom any inheritable blood can be derived (21).) A bastard was also, in strictness, incapable of holy orders; and, though that were dis pensed with, yet he was utterly disqualified from holding any dignity in the church (m): but this doctrine seems now obsolete; and, in all other respects, there is no distinction between a bastard and another man. And really any other distinction, but that of not inheriting, which civil policy renders necessary, 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, so boasted of for its equitable decisions, made bastards, in some cases, incapable even of a gift from their parents (n). { A bastard' may, lastly, be made legitimate, and capable of inheriting, by the transcendent power of an act of parliament, and not otherwise (o)) as was done in the case of John of Gant's bastard children, by a statute of Richand the second. 64

CHAPTER XVII.

OF GUARDIAN AND WARD.

THE only general private relation, now remaining to be discussed, is that of guardian and ward (1);(which bears a very near resemblance to the last, and is plainly derived out of it: the guardian being only a temporary parent, that is, for so long time as the ward is an infant, or under age.) In examining this species of relationship, I shall first consider the different kinds of guardians, how they are appointed, and their power and duty: next, the different ages of persons, as defined by the law and lastly, the privileges and disabilities of an infant, or one under age and subject 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 person, the curator the committee of the estate. But this office was frequently united in the civil law (a); as it is always in our law with regard to minors, though as to lunatics and idiots it is commonly kept distinct.

1

[*461] / *Of the several species of guardians, the first are guardians by nature; viz. the father, and, in some cases, the mother of the child. For if an estate be left to an infant, the father is by common law the guardian, and must account to his child for the profits (b) (2). And, with regard to daughters, it seems by construction of the statute 4 and 5 Ph. and Mar. c. 8, that the father might by deed or will assign a guardian to any woman-child under the age of sixteen; and, if none be so assigned, the mother shall in this case be guardian (c) (3). (There are also guardians for nurture (d); which are, of course, the father or mother, till the infant attains the age of fourteen years (e): and in default of father or mother, the ordinary usually assigns some discreet person to take care of the infant's personal estate, and to provide for his maintenance and education (f)) (4). Next are guardians in socage (5), (an appellation which will be fully explained in the second book of these Commentaries,) who are also called guardians by the common law. These take place only when the minor is entitled to some estate in lands, and then by the common law the guardianship devolves upon his next of kin, to whom the inheritance cannot possibly descendas, where the estate descended from his father, in this case his uncle by the mother's side cannot possibly inherit this estate, and herefore shall be the guardian (g). For the law judges it improper to trust the person of an infant in his hands, who may by possibility become heir to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust (h). The Roman laws proceed on a quite contrary principle, committing the care of the minor to him who is the next to succeed to the inheritance, presuming that the next heir would take the best care of an estate, to which he has a prospect of succeeding:

() Co. Litt. 88.

ic Rep. 39.

d) Co Lit. 88.

(e) Mo, 738. 3 Rep. 38.

(f) 2 Jones, 90. 2 Lev. 163.

(2) But an executor is not justified in paying to the father a legacy left to the child; and if he pays it to the father, and the father becomes insolvent, he may be compelled to pay it over again. 1 P. Wms. 285.

(3) See Bac. Ab. Guardian, A. 1. It has been considered, that the power of a father to appoint a guardian under the act 4 and 5 Ph. & M. c. 8. extends to natural children, 2 Stra. 1162; but according to 2 Bro. Ch. R. 583. it does not. However where the puta tive father by a will names guardians for his natural child, the court will in general appoint them to be so, without any reference to the master, unless the property be considerable. Id. ibid. 2 Cox, 46. Bac. Ab. Guardian, A. 1 Jac. & W. 106. 395 An appointment of a testamentary guardian by a mother is absolute. ly void. Vaughan, 180. 3 Atk. 519. A father's appointment by deed of a guardian may be revoked by will. Finch, 323. 1 Vern. 442. Any form of words indicative of the intent suffices. Swimh. p. 3. c. 12. 2 Fonbl. on eq. 5 ed. 246, 7. A guardian appointed by the father cannot delegate or continue the authority to another. Vaughan, 179. 2 Atk. 15. Nor is a copyholder within the act. 3 Lev. 395. (4) It might be questionable whether the ordinary would be permitted to interfere far

ther than to appoint ad litem. 3 Atkins, 631, Burr. 1436. For, where a legitimate child, even at the breast, is withheld from the custody of the father, habeas corpus may be brought. The king v. De Manneville, 5 East, 221. See also 1 Bl. R. 386; and 4 J. B. Moore, 366.

But, of an illegitimate child, the mother appears to be the natural guardian, 4 Taunt. 498, ex parte Kuee, 1 N. R. 148. And habeas corpus lies at her instance. See the king v. Hopkins, 7 East, 579; 5 Id. 224, n. Also 5 T. R. 278.

The guardian upon record is liable to the costs of the suit, 2 Est. 473.

(5) A widow is guardian in socage to her daughters until they are fourteen years old, as well of freehold as of copyhold, 10 East, 491. 2 M. & S. 504., and by residing on the ward's estate for forty days gain a settlement in the parish, and cannot be removed from the possession of it at any time. Id. ibid. She has a right as much to elect whether she will let the estate, or occupy it for their benefit. Id. ibid. Such a guardian has not a mere office or authority, but an interest in the ward's estate: she may maintain trespass and ejectment avow damage feasant, make admittance t copyhold and lease in her own name

Id. ibid

and this they boast to be “summa providentia" (i). But in the mean time they seem to have forgotten, how much it is the guardian's [462] interest to remove the incumbrance of his pupil's life from that estate for which he is supposed to have so great a regard (k). And this affords Fortescue (1), and Sir Edward Coke (m), an ample opportunity for triumph; they affirming, that to commit the custody of an infant to him that is next in succession is "quasi agnum committere lupo, ad devorandum” (n) (6). (These guardians in socage, like those for nurture, continue only till the minor is fourteen years of age; for then, in both cases, he is presumed to have discretion, so far as to choose his own guardian. This he may do, unless one be appointed by the father, by virtue of the statute 12 Car. II. c. 24, which, considering the imbecility of judgment in children of the age of fourteen, and the abolition of guardianship in chivalry (which lasted till the age of twenty-one, and of which we shall speak hereafter), enacts, that any father, under age or of full age, may by deed or will dispose of the custody of his child, either born or unborn, to any person, except a popish recusant, either in possession or reversion, till such child attains the age of one-and-twenty years (7). These are called guardians

(6) Lord Chancellor Macclesfield has vehemently condemned the rule of our law, that the next of kin, to whom the land cannot descend, is to be the guardian in socage; and has declared, that "it is not grounded upon reason, but prevailed in barbarous times, before the nation was civilized." 2 P. Wms. 262. But as the law has placed the custody of the infant under the care of one who is just as likely to be in a near degree of kindred as the heir; one who probably will have the same affection for his person, without hav ing any interest in even wishing his death, and therefore removed from all suspicion, however ill-founded; I cannot but think there is more wisdom in placing the infant under the guardianship of such a relation, than under that of the next heir.

A socage guardian can only be where the infant takes lands by descent. If he has lands by descent both ex parte paterna and ex parte materna, then the next of kin on each side shall, respectively, be guardians by socage of these lands; and of these two claimants the first occupant shall retain the custo. dy of the infant's person. See Mr. Hargrave's notes to Co. Litt. 88. b. where these different kinds of guardianship are with great learning and perspicuity discriminated and discuss ed.

In New-York the custody of a lunatic's person and of his estate real and personal, may be committed to his next of kin though his heir at law, 1 Johns. C. R. 436. Tenure in socage is abofished in New-York, but the common law and statutory rights and duties of a guardian in soVOL. 1.

tutions of Solon, who provided that no one should be another's guardian, who was to enjoy the estate after his death. (Potter's Antiq. b. 1, c. 26.) And Charondas, another of the Grecian legislators, directed that the inheritance should go to the father's relations, but the education of the child to the mother's; that the guardianship and right of succession might always be kept distinct. (Petit. Legg. Att. 1. 6, t. 7.)

cage over an infant holding any estate in lands, devolve first on the father, next on the mother; and if there be no father or mother, then to the nearest and eldest relative of full age, not be ing under any legal incapacity: males being preferred to females as between relatives of the same degree. 1 R. S. 718-9. No person under 21 years of age can be admitted to act as executor, 2 R. S. 69. though males of 18, and females of 16, may make a will of personal estate. Id. 60. So also by 38 Geo. III. c. 88. in England, see book 2, p. 503. note.

(7) By this statute the father may dispose of the guardianship of any child unmarried under the age of twenty-one, by deed or will, executed in the presence of two or more witnesses, till such child attains the age of twen ty-one, or for any less time. And the guar dian so appointed has the tuition of the ward, and the management of his estate and proper ty.

The mother cannot appoint a guardian un der this act, Vaugh. 180. 3 Atk. 519; nor can a guardian already appointed by the father. Vaugh. 179. 2 Atk. 15. A copyholder is not within the act. 3 Lev. 395.

A disposition of this nature by deed may be revoked by will, Finch, 323; but not so if the deed contain a covenant not to revoke. 1 Vern. 442.

A will appointing a guardian for this pur pose, need not be proved in the spiritual court. 1 Vent. 207.

No material form of words is necessary to create the appointment. Swinb. p. 3. c. 12 53

by statute, or testamentary guardians. There are also special guardians by custom of London, and other places (o); but they are particular exceptions, and do not fall under the general law (8).

The power and reciprocal duty of a guardian and ward are the same, pro tempore, as that of a father and child) and therefore I shall not repeat them (9), but shall only add, that the guardian, when the ward 心

(0) Co. Litt. 88.