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be fhewn". So alfo 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. Likewife in cafe of divorce in the fpiritual court a vinculo matrimonii, all the iffue born during the coverture are baftards'; because fuch 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 their 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 maintenance is one, are not fo eafily diffolved: and they hold indeed as to many other intentions; as, particularly, that a man fhall not marry his baftard fifter or daughter. The civil law, therefore, when it denied maintenance to bastards begotten under certain atrocious circumftances', 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 hall 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 miscarries, or proves not to have been with child, the perfon fhall be difcharged: otherwife the feffions, or two juftices out of feffions, upon original application to them, may take order for the keeping of the baftard, by charging the mother or the reputed father with the payment

7 Salk. 123.

8 Co. Litt. 244.

9 Ibid.235.

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Nov. 89. c. 15.

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2 Stat. 18 Eliz. c. 3. 7. Jac.

I. c. 4. 3 Car. I. c. 4. 13 & 14

Lord Raym. 68. Comb. Car. II. c. 12. 6 Geo. II. c. 31.


ney or other fuftentation for that purpofe. And it fuch putative father, or lewd mother, run away from the parish, the overfeers by direction of two juftices may feize their rents, goods, and chattels, in order to bring up the faid 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 frequently a hardihip upon pariihes, bỵ giving the parents opportunity to escape.

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 he can inherit nothing, being looked upon as the fon of nobody, and fometimes called filius nullius, fometimes filius populi 3 (a). Yet he may gain a firname by reputation, though he has none by inheritance. All other children have their primary fettlement in their father's parith; but a bastard in the parish where born, for he hath no father 5. 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 fhe does not belong to, and drops her baftard there; the baftard fhall, in the firit cafe, be fettled in the parifh 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 7. Baftards alfo, born in any licenfed hofpital for pregnant woman, are settled in the parishes to which the mothers belong. 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,

3 Fort. de L. L. c. 40.

4 Co. Litt. 3.

5 Salk. 427.


Ibid. 121.

7 Stat. 17 Geo. II. c. 5.
8 Stat. 13 Geo. III. c. 82.

(a) Baftards are within the meaning of the marriage act 26 Geo. 2. c. 33. which requires the confent of the father, guardian, or mother, to the marriage of perfons under age, who are not married by banns. The King v Hodnett, Term. Rep. 95.The rule that a bastard is filius nullius applies only to the cafe of in

heritances. Ibid. 101.

he is therefore of kin to nobody, and has no ancestor from whom any inheritable blood can be derived. A baftard was alfo, in ftrictnefs, incapable of holy orders; and, though that were difpenfed with, yet he was utterly difqualified from holding any dignity in the church: but this doctrine feems now obfolete; and in all other refpects, there is no diftinction between a baftard and another man. And really any other diftinction, but that of not inheriting, which civil policy renders neceffary, would, with regard to the innocent offspring of his parents' crimes, be odious, unjuft, and cruel to the laft degree; and yet the civil law, fo boasted of for it's equitable decifions, made baftards in fome cafes incapable even of a gift from their parents. A baftard may, laftly, be made legitimate, and capable of inheriting, by the tranfcendent power of an act of parliament, and not otherwise1 as was done in the cafe of John of Gant's baftard children, by a statute of Richard the second. 4 Inft. 36.

Fortefc. c. 40. 5 Rep. 58. • Cod. 6. 57. 5.




HE only general private relation, now remaining to be difcuffed, is that of guardian and ward; which bears a very near refemblance to the last, 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 firft 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 fubject to guardianfhip.

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

I Ff. 26. 4. I.

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Of the feveral fpecies of guardians, the firft 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 child for the profits2 And, with regard to daughters, it seems by conftruction of the ftatute 4 and 5 Ph. & Mar. c. 8. that the father might by deed or will affign a guardian to any woman-child under the age of fixteen; and, if none be fo affigned, the mother fhall in this cafe be guardian 3. There are alfo guardians for nurture; which are, of courfe, the father or mother, till the infant attains the age of fourteen years 5 and in default of father or mother, the ordinary ufually afligns fome difcreet perfon to take care of the infant's personal 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. 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 eftate defcended from his father, in this cafe his uncle by the mother's fide cannot poffibly inherit this estate, 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 fufpicion of temptation, for him to abuse his truft. The Roman laws proceed on a quite contrary principle, committing the care of the minor to him who is the next to fucceed to the inheritance, prefuming that the next heir would take the beft care of an eftate, to which he has a profpect of fucceeding: and this they boaft to be "fumma proviNunquam cuftodia, alicujus de jure alicui remanet, de quo habeatur jufpicio, quod poffe vel velit aliquod jus in iffa haereditate ciamare. Glanv. i. 7. c. II.

2 Co Litt. 88.

3 3 Rep. 39.

4 Co. Litt. 88.

s Moor. 738. 3 Rep. 38. 62 jones 90. 2 Lev. 163. 7 Litt. §. 123.


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