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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.
(k) Fortesc. c. 40;
Rep. 58.
(1) Cod. 6. 57. 5.


neral description of children.
kinson v. Adams, 1 Ves. & Bea. 468;
Bagley v. Mollard, 1 Russ. & Mylne,
586). It may be different if the parent
was dead when the will, making a be-
quest to his, or her, "children," in the
plural number, was executed, and the
testator well knew there was but one le-

gitimate child, but another who, though
not legitimate, had been recognised
by the deceased parent as his, or her,
child. (Gill v. Shelley, 2 Russ. &
Mylne, 342).

(28) But see ante, p. 458, n. 24.
(29) See Vol. 3, pp. 247, 249, 505.

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).




Of the relation of
guardian and

1. The guardian
performs the

office of tutor
and curator.

Natural guar-

THE only general private relation now remaining to be dis-
cussed, is that of guardian and ward; 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.

Of the several species of guardians (1), the first are guar-
dians 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,

(a) Ff. 26. 4. 1.

(1) See ante, p. 453, n. 19, and the
note there referred to, in Vol. 2.

(2) But an executor is not justified
in paying to the father a legacy left

(b) Co. Lit. 88.

to the child; and if he pays it to the
father, and the father becomes insol-
vent, he may be compelled to pay it
over again. (1 P. Wms. 285).-Cн.



it seems, by construction of the statute 4 & 5 Ph. & 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 as-
signed, the mother shall in this case be guardian (c). There Guardians for
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 in-
fant's personal estate, and to provide for his maintenance and
education (f). Next are guardians in socage, (an appellation Guardians in
which will be fully explained in the second book of these
Commentaries (3)), who are also called guardians by the com-
mon 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 in-
heritance cannot possibly descend; as, where the estate de-
scended from his father, in this case his uncle by the mother's
side cannot possibly inherit this estate, and therefore 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 sus-
picion 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 succeed-
ing and this they boast to be "summa providentia” (i).
But in the meantime they seem to have forgotten how much
it is the guardian's 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),

(c) 3 Rep. 39.

(d) Co. Lit. 88.

(e) Moor, 738; 3 Rep. 38.

(f) 2 Jones, 90; 2 Lev. 163.
(g) Lit. s. 123.

(h) Nunquam custodia alicujus de
jure alicui remanet, de quo habeatur
suspicio, quod possit vel velit aliquod jus
in ipsa hæreditate clamare.
1. 7, c. 11).


(i) Ff. 26. 4. 1.

(k) The Roman satyrist was fully
aware of this danger, when he puts
this private prayer into the mouth of a
selfish guardian:

-pupillum o utinam, quem proximus

Impello, expungam. (Pers. 1, 12).
(1) C. 44.

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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.


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).

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