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paration for the offence, by marrying within a few months after, our law is fo indulgent as not to barftardize the child, if it be born, though not begotten, in lawful wedlock: for this is an incident that can happen but once; fince all future children will be begotten, as well as born, within the rules of honour and civil fociety. Upon reafons like thefe we may fuppofe the peers to have acted at the parliament of Merton, when they refused to enact that children born before marriage thould be efteemed legitimate*.
FROM what has been faid it appears, that all children born before matrimony are baftards by our law: and so it is of all children born fo long after the death of the hufband, that, by the usual course of geftation, they could not be begotten by him. But, this being a matter of fome uncertainty, the law is not exact as to a few days. And this gives occafion to a procceding at common law, where a widow is fufpected to feign herself with child, in order to produce a fuppofititious heir to the estate: an attempt which the rigor of the Gothic conftitutions efteemed equivalent to the moft atrocious theft, and therefore punished with death". In this cafe with us the heir prefumptive may have a writ de centre infpiciendo, to examine whether the be with child, or not"; and if the 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 prefumptive heir fhall be admitted to the inheritance, though liable to lofe it again, on the birth of a child within forty weeks from the death of the hufband". But if a man dies, and his widow foon after marries again, and a child is born within fuch a time, as that by the courfe of nature it might have becn the child of cither huiband; in this cafe he is faid to be more than
than ordinarily legitimate; for he may, when he arrives to years of difcretion, choose which of the fathers he pleafes". To prevent this, among other inconveniences, the civil law ordained that no widow should marry infra annum luctus'; a rule which obtained fo early as the reign of Auguftus', if not of Romulus: and the fame conftitution was probably handed down to our early ances tors 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 ftate is begun, or after it is determined, fo alfo children born during wedlock may in fome circumstances be bastards. As if the husband be out of the kingdom of England (or, as the law fomewhat 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 bastard'. But, generally, during the coverture accefs of the hufband fhall be prefumed, unless the contrary can be fhewn"; which is such 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 baftards; for the law will prefume the husband and wife conformable to the sentence of separation, unless accefs be proved: but, in a voluntary separation by agreement, the law will fuppofe accefs, unless the negative 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 spiritual court a vinculo matrimonii, all the iffuc born during the coverture are bastards'; because such divorce is always upon fome cause, that rendered the marriage unlawful and null from the beginning.
Co. Litt. 8.
r Cod. 5. 9. 2.
s But the year was then only ten months. Ovid. Faft. I. 27.
t Sit omnis vidua fine marito duodecim menfes. LL. Ethelr, A. D. 1008. LL. Canut. c. 71.
v Co. Litt. 244.
u Salk. 123. 3 P. W. 276. Stra. 925.
w 5 Rep. 98.
* Salk. 123.
y Co. Litt. 344.
z Ibid. 235.
2. LET us next fee 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 purpofes, yet the ties of nature, of which maintenance is one, are not fo easily 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 baftards begotten under certain atrocious circumftances, was neither confonant to nature, nor reafon; however profligate and wicked the parents might juftly 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 perfon having got her with child, the justice 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 feflions to difpute and try the fact. But if the woman dics, or is married before delivery, or mifcarries, or proves not to have been with child, the perfon fhall be difcharged: otherwise the feflions, or two juftices out of feffions, 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 fuftentation for that purpose. And if 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 said bastard child. Yet fuch is the humanity of our laws, that no woman can be compulfively 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.
3. I PRO
c Stat. 18 Eliz. c. 3. 7 Jac. J. c. 4. 3 Car. (. c. 4. 13 & 14 Car. II. 6. 12. 6 Geo. II. c. 31.
a Lord Raym. 68. Comb. 356. b Nov. 89. c. 15.
3. I PROCEED next to the rights and incapacities which appertain to a bastard. The rights are very few, being only fuch as he can acquire; for he can inherit nothing, being looked upon as the son of nobody, and fometimes called filius nullius, fometimes filius populi. 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 parifh; but a baftard in the parish where born, for he hath no father'. However, in case 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 bastard there; the baftard fhall, in the first case, be fettled in the parish from whence he was illegally removed; or, in the latter cafe, in the mother's own parish, if the mother be apprehended for her vagrancy". The incapacity of a bastard 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 bastard was also, in ftrictnefs, incapable of holy orders; and, though that were dispensed 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 bastard and another man. And really any other distinction, but that of not inheriting, which civil policy renders neceffary, would, with regard to the innocent offspring of his parents crimes, be odious, unjust, and cruel to the laft 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 baftard may laftly, be made legitimate, and capable of inheriting, by the tranfcendent power of an act of parliament, and not otherwife': as was done in the cafe of John of Gant's baftard children, by a ftatute of Richard the fecond.
CHAPTER THE SEVENTEENTA,
OF GUARDIAN AND WARD,
HE only general private relation, now remaining to be difcuffed, is that of guardian and ward; which bears a very near refemblance 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 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, lastly, the privileges and disabilities of an infant, or one under age and fubject 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 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.
a Ff. 26. 4. 1.