Bastards may be made legitimate by statute. ritance. All other children have their primary settlement in their father's parish; but a bastard in the parish where born (28), for he hath no father (ƒ). 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 which she does 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 (g); or, in the latter case, in the mother's own parish, if the mother be apprehended for her vagrancy (h). Bastards also born in any licensed hospital for pregnant women, are settled in the parishes to which the mothers belong (i). 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 (29); for, being nullius filius, he is therefore of kin to nobody, and has no ancestor from whom any inheritable blood can be derived. A bastard was also, in strictness, incapable of holy orders; and, though that were dispensed with, yet he was utterly disqualified from holding any dignity in the church (k): 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 (1). A bastard may, lastly, be made legitimate, and capable of inheriting, by the transcendent (ƒ) Salk. 427. (g) Ibid. 121. (h) Stat. 17 Geo. II. c. 5. (i) Stat. 13 Geo. III. c. 82. (Wil neral description of children. gitimate child, but another who, though (28) But see ante, p. 458, n. 24. power of an act of parliament, and not otherwise (m): as was done in the case of John of Gant's bastard children, by a statute of Richard the Second (30). (m) 4 Inst. 36. (30) The father of an infant legitimate child is entitled to the custody of it; but the mother of an illegitimate child in preference to the putative father. (5 East, 221; 1 Bos. & Pull. N. R. 148; 7 East, 579). 460 CHAPTER XVII. OF GUARDIAN AND WARD. Of the relation of 1. The guardian office of tutor Natural guar- THE only general private relation now remaining to be dis- 1. The guardian with us performs the office both of the Of the several species of guardians (1), the first are guar- (a) Ff. 26. 4. 1. (1) See ante, p. 453, n. 19, and the (2) But an executor is not justified (b) Co. Lit. 88. to the child; and if he pays it to the nurture. socage. it seems, by construction of the statute 4 & 5 Ph. & Mar. c. 8, (c) 3 Rep. 39. (d) Co. Lit. 88. (e) Moor, 738; 3 Rep. 38. (f) 2 Jones, 90; 2 Lev. 163. (h) Nunquam custodia alicujus de (Glanv. (i) Ff. 26. 4. 1. (k) The Roman satyrist was fully -pupillum o utinam, quem proximus Impello, expungam. (Pers. 1, 12). [ *462 ] 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) (4). 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 twentyone (5), 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 (m) 1 Inst. 88. (n) See stat. Hibern. 14 Hen. III. This policy of our English law is warranted by the wise institutions 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 Cha (4) 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 having 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 rondas, 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. Leg. Att. 1. 6, t. 7). 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 custody of the infant's person. (See Mr. Hargrave's notes to Co. Lit. 88. b., where these different kinds of guardianship are with great learning and perspicuity discriminated and discussed).-CH. (5) Though the guardianship in chivalry was abolished by the statute of 12 Cha. II. c. 24, yet, it appears from the case of The King v. Thorpe, which was decided thirty-six years afterwards, by Chief Justice Holt, that the guardianship of the father is still continued, with respect to his eldest son, until such heir-apparent attain the age of twenty-one years. (See Carthew, 384). |