Sivut kuvina

sumptive may have a writ de ventre inspiciendo, to examine whether she be with child or not ;" and, if she be, to keep her under proper restraint 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 presumptive 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. But if a man dies, and his widow soon after marries again, and a child is born within such a time as that, by the course of nature, it might have been the child of either husband, in this case he is said to be more than ordinarily legitimate; for he may, when he arrives to years of discretion, choose which of the fathers he pleases. To prevent this, among other inconveniences, the civil law ordained that [457] no widow should marry infra annum luctus, a rule which obtained so early as the reign of Augustus,s if not of Romulus; and the same constitution was probably handed down to our early ancestors from the Romans, during their stay in this island, for we find it established under the Saxon and Danish governments.t

As bastards may be born before the coverture or marriage state is begun, or after it is determined, so, also, children born during wedlock may, in some circumstances, be bastards. As if the husband be out of the kingdom of England (or, as the law somewhat loosely phrases it, extra quatuor maria) for above nine months, so that no access to his wife can be presumed, her issue during that period shall be bastards." But, generally, during the coverture access of the husband shall be presumed, unless the contrary can be shown ; which is such a negative as can only be proved by showing him to be elsewhere; for the general rule is præsumitur pro legitimatione.wa

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(20) Or a devisee over on failure of issue, 4 B. C. C., 90; see, also, 2P. Wms., 591, and Co. Litt., by Harg., 8, b, n. 3; 123, b, n. 1.

(21) Lord Coke's rule, Co. Litt., 244,
a, that the legitimacy can not be dis-
puted unless the husband were extra
quatuor maria, has been long denied;
see 2 Str., 925; 4 T. R., 251, 356.
In King v. Luffe (8 E. 93), it was
laid down, that where the vidence estab-
lished a "natural impossi ility" that the
husband could be the fa' er, the child is
a bastard; the court rer arking, that the

Salk., 123; 3 P. Wms., 276; Stra.,

w 5 Rep., 98.

case where the child is born so recently after the marriage of the parents that it could not have been begotten in wedlock, rests on its own peculiar grounds; such a child being legitimated by the recognition of the husband. So, also, in Morris v. Davis, 3 Car. & P., 218, 427, it was decided, that although access of the husband will still be presumed, yet, to rebut this presumption, it is not essential to show a physical impossibility of access either by absence of the husband extra quatuor maria, or any other circumstance; but the presumption will be repelled by any facts which prove, to

In a divorce a mensa et thoro, if the wife breeds children, they are bastards; for the law will presume the husband and wife conformable to the sentence of separation, unless access be proved; but in a voluntary separation by agreement, the law will suppose access, unless the negative be shown. So, also, if there is an apparent impossibility of procreation on the part of the husband, as if he be only eight years old, or the like, there the issue of the wife shall be bastards. Likewise, in case of divorce in the spiritual court a vinculo matrimonii, all the issue born during the coverture are bastards; because such divorce is always upon some cause that rendered the marriage unlawful and null from the beginning.

parents to

2. Let us next see the duty of parents to their bastard chil- 2. Duties of dren by our law, which is principally that of maintenance; for, their bas though bastards are not looked upon as children to any civil tards. purposes, yet the ties of nature, of which maintenance is one, [458] are not so easily dissolved; and they hold, indeed, as to many other intentions, as, particularly, that a man shall not marry his bastard sister or daughter. The civil law, therefore, when it denied maintenance to bastards begotten under certain atrocious circumstances,b was neither consonant to nature nor reason, however profligate and wicked the parents might justly be esteemed.

The method in which the English law provides maintenance for them is as follows: when a woman is delivered, or declares herself with child, of a bastard, and will by oath before a justice of peace charge any person as having got her with child, the justice shall cause such person to be apprehended, and commit him till he gives security, either to maintain the child, or appear at the next Quarter Sessions to dispute and try the fact. But if the woman dies, or is married before delivery, or miscarries, or proves not to have been with child, the person shall be discharged; 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 quesb Nov., 89, c. 15.

* Salk., 123.

y Co. Litt., 244. "Ibid., 235.

a Lord Raym., 68; Comb., 356.

the satisfaction of the jury, that no opportunity for sexual intercourse between the husband and wife existed within the possible limits of the epoch of conception; see, also, the Gardner Peerage

c Stat. 18 Eliz., c. 3; 7 Jac. I., c. 4; 3 Car. I., c. 4; 13 & 14 Car. II., c. 12; 6 Geo. II., c. 31.

case, reported by Le Marchant; the Ban-
bury Peerage case, Sir Harris Nicholas
on Adulterine Bastardy; Head v. Head,
1 T. & R., 138; Bury v. Philpot, 2. M.
& K. 349.

3. Rights

bilities of


tioned 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 apperand incapa- tain 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. Yet he may gain a surname by reputa[459] tion, 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 father.f 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 ; 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 can not 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, in

d Fort., De LL., c. 40.
e Co. Litt., 3.
Salk., 427.

Salk., 121.

h Stat. 17 Geo. II., c. 5.
iStat. 13 Geo. III., c. 82.

(22) So much of these and other stat- petty sessions for an order on the putautes as relate to the liability and punish- tive father, and the court may make ment of the putative father and the pun- such order on the testimony of the ishment of the mother of bastard children mother, if corroborated by other eviwere repealed by sect. 89 of the Poor dence; but such order shall in no case Law Amendment Act (4 & 5 Wm. IV., continue in force after the child shall c. 76); by sect. 71 of which act it was have attained seven years of age; see, enacted, that the mother of every child, also, s. 73–76, and 78. By 2 & 3 Vict., born a bastard after the passing of the c. 85, s. 3, the putative father may, by act, should be liable to maintain such entering into recognizances to appear at child as part of her family until it attain and abide by the judgment of Quarter sixteen years of age, or, being a female, Sessions, transfer the case from the petty marry; but if such mother should sub- to the Quarter Sessions; see, further, 1 sequently marry, then her liability is, by M. & W., 129; 1 Tyr. and Gr., 358; 7 sect. 57, transferred to her husband. But, A. & E., 819. by sect. 72, if such child shall become chargeable to the parish, the guardians of the poor or the overseers (where no guardians are appointed, 2 & 3 Vict., c. 85) may, within three months after such chargeability, apply to any special or

(23) But now, by sect. 71 of the Poor Law Amendment Act (4 & 5 Wm. IV., c. 76), every bastard born after the passing of that act shall have and follow the settlement of its mother.

* In New York, by statute, if a bastard die intestate without descendants, leaving his mother living, his property descends to her; and if she be dead, it descends to her relatives, the same as if the intestate had been legitimate.—(1 R. S., 753, § 14.)

capable 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." And really any other distinction but that of not inheriting, which civil policy renders necessary, would, with regard to the innocent offspring of his parent's 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. A bastard may, lastly, be made legitimate, and capable of inheriting, by the transcendent 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.

Fortesc., c. 40; 5 Rep., 58.

(24) This observation is not quite correct; for the law makes many other distinctions than those in the text between bastards and others. Thus, his father's natural affection is not sufficient to support a use to him; see Dyer, 374; Co. Litt., 133, a. So equity will supply a defect in a surrender of a copyhold (2 Ves., 332); or in the execution of a power (Sugd. Pow., ii., 100) in favor of a legitimate, but not in favor of an illegitimate child; nor will the latter ever be entitled under the description "children" in a will unless the words be otherwise senseless; see the cases cited, 1V. & B., 452. And where by apt words their parent has provided for them in his

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will, such benefit is taxed by a legacy duty of ten per cent., while a legacy to a legitimate child only pays one per cent. The custody of the person of a bastard infant belongs to the mother, at least as against the father; see 5 E., 221; 7 E., 579; 1 B. & P. N. R., 148. With regard to the marriage of bastards, the law considers their actual parents so far as to prevent an illegitimate child from marrying a relation within the Levitical degrees (Ld. Raym., 68; Comb., 356; 1 T. R., 96), but does not require the consent of parents (but of guardians appointed specially for that purpose by the Court of Chancery) to the validity of the marriage; see 11 E., 1.




and ward.

1. Different kinds of guardians:

by nature;


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 a 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.

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, 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, the first are guardians [461] 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. And with regard to daughters, it seems by the construction of the statute 4 & 5 Ph. & Mar., c. 8, that the father might, by deed or will, assign a guardian to any womanchild under the age of sixteen; and, if none be so assigned, the mother shall in this case be guardian. There are also guardfor nurture; ians for nurture,d' which are, of course, the father or mother

a Ff., 26, 4, 1.

b Co. Litt., 88.

(1) This guardianship confers no right to intermeddle with the property of the infant; but is a mere personal right in the father or other ancestor to the custody of the person of his heir-apparent or presumptive until attaining twenty-one years of age; see 5 Mod., 224; Co. Litt., 88, n. 63-71. As to the question whether this guardianship now in strictness exists, see M'Pherson on Infants, p. 58.

c 3 Rep., 39.
d Co. Litt., 88.

By the operation of 3 & 4 Wm. IV., c. 106, their number has been much diminished; see Chambers on Infancy, p. 63.

(2) This statute was repealed by 9 Geo. IV., c. 31, s. 1.

(3) This guardianship, like that by nature, has no reference to the property of

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