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should marry infra annum luctus, a rule which obtained so early as the reign of Augustus, 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.**

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 shewn ;" which is such a negative as can only be proved by shewing him to be elsewhere: for the general rule is, præsumitur pro legitimatione. In a divorce, a mensa et thoro, if the wife breeds children, they are bastards;

r Cod. 5. 9. 2.

s But the year was then only ten months. Ovid. Fast. I. 27.

t Sit omnis vidua sine marito duodecim menses. L. L. Ethelr. A. D. 1008. L. L. Canut. c. 71.

v Co. Litt. 244.

u Salk. 123. 3 P. W. 276. Stra. 925.

w 5 Rep. 98.

Savigny has discussed this point in his history of the Roman law during the middle ages (vol. 2, ch. 10, 58); but the civilian does not share Blackstone's belief that the law of Canute was a survival of the Roman dominion. After referring not only to this (Ll. Canute, 271, Ancient Laws, Thorpe's ed. vol. 1, p. 74), of which he says that it is clearly taken from the Theodosian Code, lib. 3, tit. 8, section 1, brev. de sec. nuptiis, its penalties differing entirely from those of the code of Justinian de sec. nuptiis, but also the other proofs of the knowledge, or use of the Roman law in the Anglo-Saxon period given by different writers, he concludes that all taken together prove some acquaintance with the Roman law among the clergy, but not the preservation of any such law from the period of Roman rule in the island. When it is considered that the law of marriage was in the hands of the clergy, whose councils and synods preserved an almost unbroken line of descent from those of christian Rome, the wonder must be, not that we find an occasional trace of Roman law here, but that these are so very few and slight.

t-t Quoted, 9 Serg. & R. 291.

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 shewn. 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 bastard. Likewise, in case of divorce in the spiritual court a vinculo matrimonii, all the issue born during the coverture are bastards [see note 41, page 800]; because such divorce is always upon [458] some cause, that rendered the marriage unlawful and null from the beginning.*

2. Let us next see the duty of parents to their bastard children, by our law; which is principally that of maintenance. For, though bastards are not looked upon as children to any civil purposes, yet the ties of nature, of which maintenance is one, 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, 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

x Salk. 123.

y Co. Litt. 244.

z Ibid. 235.

a Lord Raym. 63. Comb. 356.

b Nov. 89. c. 15.

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.

*Cited, 3 Hen. & M. 228; 2 Bland, 209; 20 Am. Dec. 377.

+ Cited, 19 Wend. 406; 7 How. (Miss.) 112; 40 Am. Dec. 57.

person 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 seise 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.

[459] 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 sometimes called filius nullius, sometimes filius populi.d* Yet he may gain a sirname by reputation, though he has none by inheritance. All other children have their primary 2 settlement in their father's parish; but a bastard in the parish where born, for he hath no father. 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

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*-* Quoted, 82 Ill. 506; 112 IN 138. Cited, 1 N. H. 262; 5 Conn. 232

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 8 Bastards also, born in any licenced hospital for pregnant women, are settled in the parishes to which the mothers belong.i8 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. 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, so boasted of for it's 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.? g Ibid. 121.

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

i Stat. 13 Geo. III. c. 82.

k Fortesc. c. 40. 5 Rep. 58.

1 Cod. 6. 57. 5.

m 4 Inst. 36.

*- Quoted, 45 Ala. 413. Cited, 1 Jones Eq. 245; 7 How. (Miss.) 112. + Cited, 1 Strob. 295; 47 Am. Dec. 536.

- Quoted, 2 Swan, 453.

Cited as to sirname, 2 Swan, 453. Cited as to settlement, 8 Cush. 75; 19 Vt. 96; 10 Ired. 352. Cited, 7 How. (Miss.) 112; 40 Am. Dec. 57; 7 Ga. 513; 8 Ga. 215.

NOTES OF THE AMERICAN EDITOR TO CHAPTER XVI.

(37) Children are of two sorts, legitimate and spurious, page 446.

Adoption of children is now by statute the law of the majority of states, though only of late years, none of the statutes being earlier than 1850. Upon the interpretation of those statutes see note in 14 Am. Law Reg. 682, annexed to Barnhizel v. Ferrer, 47 Ind. 335, 1875, and article on The Law of Adoption (reviewing Sewell v. Roberts, 116 Mass. 262), in 9 Am. Law Rev. 74, 336. Adoption was unknown to the common law. (Coke, 2 Inst. 97.) Even the passage of Bracton referred to by Coke has an entirely different sense. (Lib. 2, c. 29, fol. 636; also in Coxe's trans. of Guterbock's Bracton, p. 83, n. g.)

(38) The nuptials must be precedent to the birth, page 446.

Many American states adhere to the strict commonlaw rule, by which the only legitimate children are those born in wedlock, or within such a period after it as to justify the presumption that they were conceived within it. But Virginia set the example soon after the Revolution, of adopting the civil and canon law principle of legitimacy by the subsequent marriage of the parents and added a rule which is found also in Code Napoleon, legitimizing the issue of null and void marriages. Many of the newer states have followed that example, and enacted both rules, or at least the former. (Virginia Code of 1873, c. 119, ?? 6, 7; Ash v. Way's Adm'r, 2 Gratt. 203; Stone v. Keeling, 5 Call, 143.)

Difficult questions must arise in the interpretation of both rules, for which no answer can be found in common-law precedents. Some of them have already been resolved by the consensus of civilians, and these will no doubt be decided in the same way, upon the familiar

1 BLACKST. — 67.

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