name by reputation, though he has none by inheritance. All other children have their primary fettlement in their ⚫ Co. Litt. 3. In the cafe of Horner v. Liddiard, which was decided in the confiftorial court in London in Trinity Term 1799, the circumftances were thefe: Mifs 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 licence, with the confent of her mother, to Mr. Horner. The husband afterwards instituted this fuit to have the marriage declared void. Sir William Scott admitted that baftards were fo far within the marriage-act, that if the marriage had been folemnized by licence. with the confent 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 licence, and that in the prefent cafe the marriage was therefore null and void. In delivering his judgment that most learned judge was pleased to say; I obferve 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 "licence, he muít have the confent of his putative father, guardian, "C or mother, according to the statute. If the observation is to be "understood according to this arrangement, I cannot agree that it "has been fo decided. For what guardian can be so interpofed "between the natural father and mother?" If my conftruction of the marriage-act in note 8. p. 438. is erroneous, then the word guardian ought to have been placed after mother, and not before. But I meant only to state, that it had been decided by the court of king's bench, that baftards were to be confidered as legitimate children under the marriage-act. As the courts of law, not only in fettlement cafes, but in all claims of inheritance, profecutions for polygamy, and wherever the validity of a marriage can be questioned, are as competent to conftrue the marriage-act as the ecclefiaftical 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 un ·dergo father's parish; but a baftard in the parish where born, for he hath no father f. However, in cafe of fraud, as if a woman be fent either by order of juftices, or comes to beg as a vagrant, to a parish which she does not belong to, and drops her baftard there; the baftard fhall, in the first case, be fettled in the parish from whence she was illegally removed; or, in the latter cafe, in the mother's own parish, if the mother be apprehended for her vagrancy ». Bastards also born in any licensed hofpital 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 baftard was alfo, in ftrictness, incapable of holy orders; and though that were dispensed with, yet he was utterly disqualified from holding any dig f Salk. 427. 8 Ibid. 121. h Stat. 17 Geo. II. c. 5. dergo much further difcuffion and investigation before that judgment will be adopted by the temporal courts, See Dr. Croke's cafe of Horner v. Liddiard. This was the note in the last edition, and the editor's prediction has been fo far verified, that the cafe of Priestly v. Hughes upon this very point, fent by the mafter of the rolls, has been twice argued in the court of king's bench, and it is said that the ftill farther judgment of the houfe of lords will be taken upon it. On the first of March 1809, tlte chief juftice and two of the judges certified that they were of opinion that all marriages, whether of legitimate or illegitimate perfons, were within the provifions of the marriage-act, but that the consent of the natural mother to a marriage by licence of an illegitimate minor is not a fufficient confent to make a good and lawful marriage; Mr. Justice Grofe was of opinion, that the eleventh section of the act did not apply to illegitimate children, that it was cafus omiffus in the act, and that the marriage of an illegitimate minor was not affected by the statute, and that of confequence, either with or without the confent of the natural mother, it was good and lawful. nity in the church; but this doctrine feems now obfolete; and in all other respects there is no diftinction between a baftard and another man (12). And really any other diftinction but that of not inheriting, which civil policy renders neceffary, 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, fo boafted of for it's equitable decifions, made baftards in fome cafes incapable even of a gift from their parents'. A bastard may, laftly, 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 cafe of John of Gant's bastard children, by a ftatute of Richard the fecond. (13) (12) Baftards are not favoured in equity as legitimate children. The court will not supply the defect of a surrender of a copyhold in a conveyance or devife by a father to a natural child, as it will in favour of a legitimate child. Gilb. For. Rom. 256. 2 Vef. 582. And upon a devise by a testator generally to his children, a court of justice cannot decide that an illegitimate child shall take equally with lawful children. 5 Vef. jun. 530. See farther concerning baftards, 2 vol. 247. and 506. (13) The father of an infant legitimate child is entitled to the cuftody of it; but the mother of an illegitimate child in preference to the putative father. 5 Eaft, 221. 1 Bof. & Pull. N. R. 148. 7 Eaft, 579. CHAPTER THE SEVENTEENTH. OF GUARDIAN AND WARD. THE 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 eftate. 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 diftinct. Or the several species of guardians, the first are guardians by nature; viz. the father and (in fome cafes) 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 [ 461] any child for the profits b (1). And with regard to daughters, it feems by conftruction of the ftatute 4 & 5 Ph. & Mar. c. 8. that the father might by deed or will affign a guardian to woman-child under the age of fixteen; and, if none be fo affigned, the mother fhall in this cafe be guardian. There are also 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 discreet person to take care of the infant's perfonal estate, and to provide for his maintenance and education. 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. These take place only when the minor is entitled to fome eftate in lands, and then by the common law the guardianfhip devolves upon his next of kin, to whom the inheritance cannot poffibly defcend: as, where the estate descended from his father, in this cafe his uncle by the mother's fide cannot poffibly inherit this eftate, and therefore shall be the guardian”. For the law judges it improper to trust the perfon of an infant in his hands, who may by poffibility become heir to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his truft". The Roman laws proceed on a quite contrary principle, committing the care b Co. Litt. 88. 3 Rep. 39. d Co. Litt. 88. f Moor. 738. 3 Rep. 38. 2 Jones, 90. 2 Lev. 163. s Litt. § 123. Nunquam cuftodia alicujus de jure alicui remanet, de quo habeatur fufpicio, quod poffit vel velit aliquod jus in ipfa haereditate clamare. Glanv. l. 7. c. 11. (1) But an executor is not justified in paying to the father a legacy left to the child; and if he pays it to the father, and the father becomes infolvent, he may be compelled to pay it over again. 1 P. Wms. 285. Where a father leaves a legacy payable to a child at a future day, though he is filent refpecting the intereft, the court will allow a reasonable maintenance, as it prefumes that the father intended his child should be maintained, and receive a proper education, 11 Vef. jun. 1. of |