been with child, the person shall be discharged (10): otherwise the sessions, or two justices out of sessions, 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 sustentation for that purpose. And if such putative father, or lewd mother, run away from the parish, the overseers by direction of two justices may seize their rents, goods, and chattels, in order to bring up the said bastard child. Yet such is the humanity of our laws, that no woman can be compulsively questioned 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.

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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 some

(10) Or he shall be discharged, if the justices at the sessions, upon hearing all the circumstances of the case, shall be of opinion that he is not the father of the child.

By the 6 Geo. II. c. 31. one magistrate may compel the person on whom the child is filiated, either to indemnify the parish by a bond with two sufficient sureties, or may bind him over to abide the order of the justices at the next sessions; but these can only, under the 18 Eliz. c. 3. make an order of maintenance upon him, they cannot compel him to give security for the performance of it. 6 T. R. 147. But if he disobeys this order, or the order of maintenance by two justices out of sessions, he may be punished by indictment for such disobedience.

It has been held at nisi prius, that the heir of the principal, or the heir of the surety, inheriting lands from his ancestor, may at any distance of time be sued upon the bond for the damages which the parish sustains by maintaining the bastard in his old age or his children, who have not obtained settlements in another parish or township.

times called filius nullius, sometimes filius populid (11). Yet he may gain a surname by reputations, though he has none by inheritance. All other children have their primary settlement in their father's parish; but a bastard in the parish where born, for he hath no fatherf. However, in case of

d Fort. de L.L. c. 40.

e Co. Litt. 3.

f Salk. 427.

(11) But though he is considered filius nullius with respect to inheritances and successions, yet the law takes notice of his connection with his natural parents for some other purposes, as it prohibits him from forming an incestuous union by marriage; and it has been decided that if a bastard marries under age by license, he must have the consent of his putative father, guardian, or mother, according to the 26 Geo. II. c. 33. 1 T. R. 96.

In the case of Horner v. Liddiard, which was decided in the consistorial court in London in Trinity Term 1799, the circumstances were these:

Miss Liddiard was a natural child, her father was dead, and he by his will had appointed her mother her guardian; but that circumstance was immaterial, as a putative father cannot appoint a guardian. Whilst she was under age, she was married by license, with the consent of her mother, to Mr. Horner. The husband afterwards instituted this suit to have the marriage declared void. Sir William Scott admitted that bastards were so far within the marriage act, that if the marriage had been solemnized by license with the consent of a guardian of the court of chancery, the marriage would have been valid; but he decided, that neither an illegitimate father nor mother were competent to give consent to a marriage by license, and that in the present case the marriage was therefore null and void. In delivering his judgment, that most learned judge was pleased to say; "I observe that the learned editor " of the last edition of the Commentaries has laid it down, that it has "been decided, that if a bastard marries under age by license, he must " have the consent of his putative father, guardian, or mother, accord"ing to the statute. If the observation is to be understood according "to this arrangement, I cannot agree that it has been so decided. For "what guardian can be so interposed between the natural father and " mother?" If my construction of the marriage act in note 8. p. 438. is erroneous, then the word guardian, ought to have been placed after another, and not before. But I meant only to state, that it had been 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 removeds: or, in the latter case, in the mother's own parish, if the mother be apprehended for her vagrancyh. Bastards also born in any licensed hospital for pregnant women, are settled in the parishes to which the mothers belongi. 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 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: but this doctrine seems now obsolete; and in all other respects, there is no distinction. between a bastard and another man (12). And really any other distinction, but that of

g Salk. 121.

h Stat. 17 Geo. II. c. 5.

i Stat. 13 Geo. III. c. 82.
k Fortesc. c. 40. 5 Rep. 58.

decided by the court of king's bench, that bastards were to be considered as legitimate children under the marriage act. As the courts of law not only in settlement cases, but in all claims of inheritance, prosecutions for polygamy, and wherever the validity of a marriage can be questioned, are as competent to construe the marriage act as the ecclesiastical courts, notwithstanding the very able arguments adduced to support the judgment in Horner v. Liddiard, I trust I do not speak irreverently when I predict that the subject will undergo much further discussion and investigation before that judgment will be adopted by the temporal courts. See Dr. Croke's case of Horner. Liddiard.

(12) Bastards are not favored in equity as legitimate children. The court will not supply the defect of a surrender of a copyhold in a conveyance or devise by a father to a natural child, as it will in favor of a legitimate child. Gilb. For. Rom. 256. 2 Ves. 582.

See farther concerning bastards, 2 vol. 247, & 506.

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 parents1. A bastard may, lastly, be made legitimate, and capable of inheriting, by the transcendent power of an act of parliament, and not otherwisem: as was done in the case of John of Gant's bastard children, by a statute of Richard the second.

CHAPTER THE SEVENTEENΤΗ.

OF GUARDIAN AND WARD.

THE only general private relation now remaining to be

discussed, 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 lawa; as it is always in our law with regard to minors, though as to lunatics and idiots it is commonly kept distinct.