the reign of Auguftus, if not of Romulus: And the fame constitution was probably handed down to our early ancestors from the Romans, during their stay in this inland; for we find it established under the Saxon and Danish governments t. As bastards may be born before the coverture or marriage ftate is begun, or after it is determined, fo alfo children born during wedlock may, in fome circumftances be baftards. As if the hufband be out of the kingdom of England (or, as the law fomewhat loosely phrafes it, extra quatuor maria) for above nine months, fo that no access to his wife can be prefumed, her iffue during that period fhall be baftards v. But, generally, during the coverture, accels of the husband fhall be prefumed, unless the contrary can be fhewn "; which is fuch a negative as can only be proved by fhewing him to be elsewhere: For the general rule is, praefumitur pro legitimatione. In a divorce, a menfa et thoro, if the wife breeds children, they are bastards; for the law will préfume the husband and wife conformable to the fentence of feparation, unless access be proved: But, in a voluntary separation by agreement, the law will fuppofe accefs, unless the negative be fhewn *. So also, if there is an apparent impoffibility of procreation on the part of the husband, as if he be only eight years old, or the like, there the iffue of the wife fhall be baftard v. Likewife, in cafe of divorce in the fpiritual court a vinculo matrimonii, all the iffue born during the coverture are baftards z; because such divorce is always upon fome caufe, that rendered the marriage unlawful and null from the beginning. 2. Let us next fee the duty of parents to the baftard children, by our law, which is principally that of maintenance. For, though baftards are not looked upon as children to any civil purposes, yet the ties of nature, of which s But the year was then only ten months. Ovid. Faft. 1. 27. t Sit omnis vidua fine marito duodecim menfes. L. L. Etheir. A. D. 1008. L. L. Canut. c. 71. v Co. Litt. 244. u Salk. 123. 3 P. W. 276. w 5 Rep. 98. x Salk. 123. which maintenance is one, are not so easily diffolved: And they hold indeed as to many other intentions; as, particularly, that a man fhall not marry his bastard fifter or daughter. The civil law, therefore, when it denied maintenance to bastards begotten under certain atrocious circumstances, was neither confonant to nature, nor reafon; however profligate and wicked the parents might juftly be efteemed. 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 baftard, and will, by oath, before a juftice of peace, charge any perfon as having got her with child, the juftice fhall caufe fuch perfon to be apprehended, and commit him till he gives fecurity, either to maintain the child, or appear at the next quarter feffions to difpute and try the fact. But if the woman dies, or is married before delivery, or mis, carries, or proves not to have been with child, the perfon fhall be difcharged: Otherwise the feffions, or two juftices out of feffions, upon original application to them, may take order for the keeping of the bastard, by charg ing the mother, or the reputed father, with the payment of money or other fuftentation for that purpose. Ánd if fuch putative father, or lewd mother, run away from the parifh, the overfees, by direction of two juftices, may feize their rents, goods, and chattels, in order to bring up the laid baftard child. Yet fuch is the humanity of our laws, that no woman can be compulfively queftioned concerning the father of her child, till one month after her delivery: Which indulgence is, however, very fiequently a hardfhip upon parishes, by giving the parents opportunity to efcape. 3. I proceed next to the rights and incapacities which appertain to a baftard. The rights are very few, being only fuch as he can acquire; for her can inherit nothing, being looked upon as the son of nobody, and fometimes called filius nullius, fometimes filius populid. Yet he a Lord Raym. 68. Comb. 356. b Nov. 89. c. 15. may 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. 3L. d Fort. de L. L. 6. 40. may gain a firname by reputation, though he has none by inheritance. All other children have their primary fettlement 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 juftices, or comes to beg as a vagrant, to a parish which fhe does not belong to, and drops her bastard there, the baftard fhall, in the first cafe, be fettled in the parish from whence fhe was illegally removed; or, in the latter cafe, in the mother's own parish, if the mother be apprehended for her vagrancy h. Baftards also born in any licensed hofpital for pregnant women, are fettled in the parishes to which the mothers belong i. The incapacity of a baftard confifts 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 baftard was also in ftri&tnefs, incapable of holy orders; and, though that were difpenfed with, yet he was utterly dif qualified from holding any dignity in the church : But this doctrine feems now obsolete; and in all other respects, there is no diftinction 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, fo boasted of for its equitable decifions, made baftards, in fome cafes, incapable even of a gift from their parents 1. A bastard may, lastly, be made legitimate, and capable of inheriting by the transcendent power of an act of parliament, and not otherwifem: As was done in the cafe of John of Gaunt's bastard children, by a statute of Richard II. e Co. Litt. 3. f Salk. 427. Ibid. 121. h Stat. 17. Geo. II. c. 5. CHAPTER i Stat. 13 Geo. III. c. 82. m 4 Inft. 36. CHAPTER THE SEVENTEENTH. OF GUARDIAN AND WARD. THE only general private relation, now remaining to be difcuffed, is that of guardian and ward; which bears a very near resemblance to the laft, and is plainly derived out of it: The guardian being only a temporary parent; that is, for fo long time as the ward is an infant, or under age. In examining this fpecies of relationship, I fhall first confider the different kinds of guardians, how they are appointed, and their power and duty; next, the different ages of perfons, as defined by the law; and, laftly, the privileges and difabilities 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 perfon, 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 lunaticks and idiots it is commonly kept diftinct. a Ff. 26. 4. 1. Of 2 Of the several species of guardians, the firft 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 muft account to his child for the profits. And, with regard to daughters, it seems, by construction of the statute 4 & 5. Ph. & Mar. c. 8. that the father might, by deed or will, affign a guardian to any woman child under the of fixteen; and, if none be fo affigned, the age mother hall in this cafe be guardian c. There are alfo guardians for nurtured; which are, of course, the father or mother, till the infant attains the age of fourteen years: And, in default of father or mother, the ordinary ufually affigns fome difcreet perfon to take care of the infant's perfonal eftate, and to provide for his maintenance and education f Next are guardians in focage, (an appellation which will be fully explained in the fecond book of these Commentaries), who are alfo called guardians by the common law. Thefe take place only when the minor is entitled to fome eftate in lands, and - then, by the common law, the guardianship devolves upon his next of kin, to whom the inheritance cannot poffibly defcend; as, where the estate defcended from his father, in this case, his uncle by the mother's fide cannot poffibly inherit this eftate, and therefore fhall be the guardian 8. For the law judges it improper to truft the perfon of an infant in his hands, who may by possibility become heir to him; that there may be no temptation, nor even fufpicion of temptation, for him to abuse his trufth. The Roman laws proceed on a quite con. trary principle, committing the care of the minor to him who is the next to fucceed to the inheritance, presuming that the next heir would take the best care of an estate, to which he has a prospect of succeeding: And this they boast to be "fumma providentia i.” But in the mean time, they seem to have forgotten, how much it is the guardian's 1 b Co. Litt. 88. d Co. Litt. 88. e Moor, 738. 3 Rep. 38. h Nunquam cuftodia alicujus de ju re alicui remanet, de que babeatur fufpicio, quod poffit vel velit aliquod jus in ipfa baereditate clamare. "Glany. 1.7. c. II. i Ff. 26. 4. I. |