genitor as for one who has shewn the greatest tenderness and parental piety. (16) II. We are next to consider the case of illegitimate children, or bastards: with regard to whom let us inquire, 1. Who are bastards. 2. The legal duties of the parents towards a bastard child. 3. The rights and incapacities attending such bastard children. 1. Who are bastards. A bastard, by our English laws, is one that is not only begotten, but born, out of lawful matrimony. The civil and canon laws do not allow a child to remain a bastard, if the parents afterwards intermarry: (i) and herein they differ most materially from our law; which, though not so strict as to require that the child shall be begotten, *yet makes it an indis[*455] pensable condition to make it legitimate, that it shall be born, after lawful wedlock. (17) And the reason of our English law is surely much superior to that of the Roman, if we consider the principal end and design of establishing the contract of marriage, taken in a civil light, abstractedly from any religious view, which has nothing to do with the legitimacy or illegitimacy of the children. The main end and design of marriage, therefore, being to ascertain and fix upon some certain person, to whom the care, the protection, the maintenance, and the education of the children should belong: this end is, undoubtedly, better answered by legitimating all issue born after wedlock, than by legitimating all issue of the same parties, even born before wedlock, so as wedlock afterwards ensues: 1. Because of the very great uncertainty there will generally be, in the proof that the issue was really begotten by the same man; whereas, by confining the proof to the birth, and not to the begetting, our law has rendered it perfectly certain what child is legitimate, and who is to take care of the child. 2. Because by the Roman law a child may be continued a bastard, or made legitimate, at the option of the father and mother, by a marriage ex post facto; thereby opening a door to many frauds and partialities, which by our law are prevented. 3. Because by those laws a man may remain a bastard till forty years of age, and then become legitimate, by the subsequent marriage of his parents; whereby the main end of marriage, the protection of infants, is totally frustrated. 4. Because this rule of the Roman law admits of no limitations as to the time or number of bastards so to be legitimated; but a dozen of them may twenty years after their birth, by the subsequent marriage of their parents, be admitted to all the privileges of legitimate children. This is plainly a great discouragement to the matrimonial state; to which one main inducement is usually not only the desire of having children, but also the desire of procreating lawful heirs. Whereas our constitutions guard against this indecency, and at the same time give sufficient allowance to the frailties of human nature. For, if a child be begotten while the parents are single, and they will endeavour to make an early reparation for the offence, by *marrying within a few [*456] months after, our law is so indulgent as not to bastardize the child, if it be born, though not begotten in lawful wedlock; for this is an incident that can happen but once, since all future children will be begotten, as well as born, within the rules of honour and civil society. Upon reasons like these we may suppose the peers to have acted at the paliament of Merton, when they refused to enact that children born before marriage should be esteemed legitimate. (k) (18) (i) Inst. 1. 10, 13. Decret. 1. 4, t. 17, c. 1. (k) Rogaverunt omnes episcopi magnates, ut consentirent quod nati ante matrimonium essent legitimi, sicut illi qui nati sunt post matrimonium, quia ecclesia tales habet pro legitimis. Et omnes comites ct barones una voce responderunt, quod nolunt reges Angliæ mutare. quæ hucusque usitatæ sunt et approbatœ. Stat. 20 Hen. III, c 9. See the introduction to the great charter, edit. Oxon. 1759, sub anno 1253. (16) The liability of a child to support a parent is purely statutory, and can only be enforced in the mode the statute has provided. Edwards v. Davis, 16 Johns. 281. See also Raymond v, Loyl, 10 Barb 483. (17) The rule of the civil law on this subject has been adopted by statute in some of the United States; the child being legitimated for all purposes by the marriage of the parents and the recognition of the child by the father as his own. (18) If the husband and wife are separated by a decree of a competent court, a child begotten during that period is presumed illegitimate, and the husband is not allowed by his own evi From what has been said, it appears, that all children born before matrimony are bastards by our law and so it is of all children born so long after the death of the husband, that, by the usual course of gestation, they could not be begotten by him. But, this being a matter of some uncertainty, the law is not exact as to a few days. (1) And this gives occasion to a proceeding at common law, where a widow is suspected to feign herself with child, in order to produce a supposititious heir to the estate; an attempt which the rigour of the Gothic constitutions esteemed equivalent to the most atrocious theft, and therefore punished with death. (m) In this case, with us, the heir presumptive may have a writ de ventre inspiciendo to examine whether she be with child, or not; (n) (19) and, if she be, to keep her under proper restraint till delivered; which is entirely conformable to the practice of the civil law: (0) but, if the widow be, upon due examination, found not pregnant, the presumptive heir shall be admitted to the inheritance, though liable to lose it again, on the birth of a child within forty weeks from the death of a husband. (p) But, if a man dies, and his widow soon after marries again, and a child is born within such a time, as that by the course of nature it might have been the child of either *husband; in this case [457] he is said to be more than ordinarily legitimate; for he may, when he arrives to years of discretion, choose which of the fathers he pleases.(g) To prevent this, among other inconveniences, the civil law ordained that no widow should marry infra annum luctus, (r) a rule which obtained so early as the reign of Augustus, (s) 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. (t) 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. (v) But, generally, during the coverture, access of the husband shall be presumed, unless the contrary can be shewn ; (w) which is such a negative as can only be proved by shewing him to be elsewhere: for the general rule is, præsumitur pro legitimatione. (x) (20) In a divorce, a mensa et thoro, if the wife breeds children, they are bastards; for the law will presume the husband and wife conformable to the sentence of separation, unless (1) Cro. Jac, 541. (m) Stiernhook de Jure Gothor. l. 3, c. 5. (n) Co. Litt. 8. Bract. 1.2, c. 32. A. D. 1003. LL. Canut. c. 71. Х dence to establish the fact of access. Patchett v. Holgate, 15 Jur. 308. Neither on the other hand, is the wife to be allowed to testify to non-access, and thus bastardize the issue when they are not thus separated. Parker v. Way, 15 N. H. 45; Commonwealth v. Shepherd, 6 Binn. 288; People v. Ontario, 15 Barb. 286. (19) [The writ is granted not only to an heir at law, but to a devisee for life, or in tail, or in fee; and whether his interest is immediate or contingent. See 4 Bro. 90. For the proceedings under this writ, see 2 P. Wms. 591. And in Moseley's Report of Aiscough's case, the same in 2 P. Wms. 591, a case of personal estate is cited. The writs direct, that, in the presence of the knights and women, the female tractari per urberem et ventrem; the presumed necessity of the case dispensing at once with common decency and with respectful deference to sex. ] (20) [It used to be held that when the husband was living within the kingdom, access was presumed, unless strict proof was adduced that the husband and wife were all the time living at a distance from each other; but now, the legitimacy or illegitimacy of the child of a married woman, living in a notorious state of adultery. under all the circumstances is a question for a jury to determine. 4 T. R. 356, and 251.] See also what is said by Lord Ellenborough in 8 East, 193; Heard v. Heard, 1 Sim. and Stu. 150; Cross v. Cross, 3 Paige, 139; Commonwealth v. Shepherd, 6 Binn. 286; Bury v. Philpot, 2 M. and K. 349. VOL. I.-39 305 access be proved; but in a voluntary separation by agreement, the law will suppose access, unless the negative be shewn. (a) 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 bastards. (b) Likewise, in case of divorce in the spiritual court, a vinculo matrimonii, all the issue born during the coverture are bastards; (c) 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. (d) The civil law, therefore, when it denied maintenance to bastards begotten under certain atrocious circumstances, (e) 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 ast follows. (ƒ) (21) When a women is delivered, or declares herself with child, of a bastard, and will by oath before a justice of peace charge any person as 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 seize 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. (22) *3. I proceed next to the rights and incapacities which appertain to a [*459] 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. (g) (23) Yet he may gain a surname by reputation, (h) though he has none by inheritance. (24) All other children. have their primary settlement in their father's parish; but a bastard in the (a) Salk. 123. (c) Ibid. 235. (e) Nov. 89, c. 15. 3 Car. I, c. 4. 13 and 14 Car. II, c. 12. 7 Geo. II, c. 31. Litt. 3. (21) The law upon this subject was very materially altered by the 4 and 5 Wm. IV, c. 76, but the principle that the parents shall support a bastard child, and imdemnify the parish against such support, is the foundation of the new statute as it was of the former ones. The statutes now regulating this subject are 7 and 8 Vic. c. 101, and 8 and 9 Vic. c. 10. (22) [In the technical treatises on the poor laws will be found the cases occurring as to the right of custody, whether it be in the father or in the mother of the bastard. And the right of the mother to such custody seems recognized and established. 5 East, 221; see also 1 B. and P. N. R. 148; 7 East, 579.] (23) In some of the United States it is provided by statute that a bastard child shall inherit from the mother, and the mother from him. The crime of incest does not at common law depend upon the legitimacy of the parties to the sexual intercourse, or of either of them. People v. Jenness, 5 Mich. 305. (24) [ A bastard having gotten a name by reputation, may purchase by his reputed or known name to him and his heirs: Co. Litt. 3 b; but this can only be to the heirs of his own body. A conveyance to a man who is a bastard, and his heirs, though his estate is in its descent confined to the issue of his body, yet gives him a fee simple, and confers an unlimited power parish where born, for he hath no father. (i) 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 where she does not belong, and drops her bastard there, the bastard shall, in the first case, be settled in the parish from whence she was illegally removed; (j) or, in the latter case, in the mother's own parish, if the mother be apprehended for her vagrancy. (k) Bastards also born in any licensed hospital for pregnant women, are settled in the parishes to which the mothers belong. (1) 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: (m) 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 its equitable decisions, made bastards, in some cases, incapable even of a gift from their parents. (n) A bastard may, lastly, be made legitimate, and capable of inheriting, by the transcendent power of an act of parliament, and not otherwise: (o) as was done in the case of John of Gant's bastard children, by a statute of Richard the Second. (25) CHAPTER XVII. OF GUARDIAN AND WARD. THE only general private relation, now remaining to be discussed, is that of guardian and ward: (1) which bears a very near resemblance to the last, and is plainly derived out of it; the guardian being only a temporary parent, that is, for so long time as the ward is an infant, or under age. In examining this species of relationship, I shall first consider the different kinds of guardians, (i) Salk. 427. (7) Stat. 13 Geo. III, c. 82. (0) 4 Inst. 36. (k) Stat. 17 Geo. II, c. 5. (n) Cod. 6, 57, 5. of alienation; and any person deriving title from him or his heirs, may transmit the estate in perpetual succession. The rule as to a bastard's taking by his name of reputation, must be understood as giving a capacity to take by that name merely as a description, not as a child by a claim of kindred; therefore a bastard cannot claim a share under a devise to children generally, though the will was strong in his favor by implication. 5 Ves. 530, and see 1 Ves. and B. 434, 469; 6 Ves. 43; 1 Maddox, 430. A limitation cannot be to a bastard en ventre sa mere, for bastards cannot take till they gain a name by reputation. 1 Inst. 3 b; 6 Co. 68; 1 P. Wms. 529; 17 Ves. 528; 1 Mer. 151; 18 Ves. 288; H. Chitty's Law of Descents, 29, 30. If a bastard die seized of a real estate of inheritence, without having devised it, and without issue, the estate will escheat to the king, or other immediate lord of the fee. 3 Bulstr. 195; 1 Ld. Raym. 1152; 1 Prest. Est. 468, 469; post, book 2, 249; 2 Cruise's Dig. 374. But, as there might in many cases be much apparent hardship in the strict enforcement of this branch of the royal prerogative, it is usual in such cases to transfer the power of exercising it to some one of the family, reserving to the crown a small proportion, as a tenth of the value of both the real and the personal estate. 1 Wood. 397, 308. And so likewise in the case of personal estate, where a bastard dies intestate and without issue, the king is entitled and the ordinary of course grants administration to the patentee or grantee of the crown. Salk. 37; 3 P. Wms. 33. (25) [The father of an infant legitimate child is entitled to the custody of it; but the mother of an illegitimate child in preference to the putative father. 5 East, 221; 1 Bos. and P. N. R, 148; 7 East, 579.] (1) For the details of the law on this subject, see the several works on equity jurisdiction and practice, and particularly Reeve on the Domestic Relations, and Shouler on the same subject, how they are appointed, and their power and duty: next, the different ages of persons, as defined by the law; and lastly, the privileges and disabilities 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 person, 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 lunatics and idiots it is commonly kept distinct. *Of the several species of guardians, the first are guardians by nature; [*461] 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 must account to his child for the profits. (b) (2) And, with regard to daughters, it seems by construction of the statute 4 and 5 Ph. and Mar. c. 8, that the father might by deed or will assign a guardian to any woman-child under the age of sixteen; and if none be so assigned, the mother shall in this case be guardian. (c) (3) There are also guardians for nurture; (d) which are of course, the father or mother, till the infant attains the age fourteen years: (e) and in default of father or mother, the ordinary usually assigns some discreet person to take care of the infant's personal estate, and to provide for his maintenance and education. (f) (4) Next are guardians in socage, (5) (an appellation which will be fully explained in the second book of these Commentaries,) who are also called guardians by the common law. These take place only when the minor is entitled to some estate in lands, and then by the common law the guardianship devolves upon his next of kin to whom the inheritance cannot possibly descend; as, where the estate descended from his father, in this case his uncle by the mother's side cannot possibly inherit this estate and therefore shall be the guardian. (g) For the law judges it improper to trust the person of an infant in his hands, who may by possibility become heir to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust. (h) The (b) Co. Litt. 88. (c) 3 Rep. 39. (d) Co. Litt. 83. (g) Litt. 123. (a) Ff. 26, 4, 1. (e) Moor. 738. 3 Rep. 38. (f)2 Jones, 90. 2 Lev. 163. (h) Nunquam custodia alicujus de jure alicui remanet, de quo habeatur suspicio, quod possit vel velit aliquod jus in ipsa hæreditate Clamare. Glanv. l. 7, c. 11. (2) But a guardian by nature cannot lease the lands of the ward. May v. Calder, 2 Mass. 55: Combs v. Jackson, 2 Wend. 153; Kendall v. Miller, 9 Cal. 592. Nor can an executor discharge himself by making payment to such guardian. Genet v. Tallmadge, 1 Johus. Ch. 3; Miles v. Boyden, 3 Pick. 213; Williams v. Storrs, 6 Johns. Ch. 353. The mother becomes guardian by nature on the death of the father. Freto v. Brown, 4 Mass. 675. (3) [An appointment of a testamentary guardian by a mother is absolutely void. Vaughan, 180; 3 Atk. 519. A father's appointment by deed of a guardian may be revoked by will. Finch, 323; 1 Vern. 442. Any form of words indicative of the intent suffices. Swimb. p. 3, c. 12; 2 Fonbl. on Eq. 5th ed. 246, 247. A guardian appointed by the father cannot delegate or continue the authority to another. Vaughan, 179; 2 Atk. 15.] The grandfather has no power to appoint a testamentary guardian. Hoyt v. Hilton, 2 Edw. Ch. 202; Fullerton v. Jackson, 5 Johns. Ch. 278. (4) [It might be questionable whether the ordinary would be permitted to interfere farther than to appoint ad litem. 3 Atkins. 631; Burr. 1436. For, where a legitimate child, even at the breast, is withheld from the custody of the father, habeas corpus may be brought. The King v. De Manneville, 5 East, 221. See, also, 1 Bl. R. 386: and 4 J. B. Moore, 366. But, of an illegitimate child, the mother appears to be the natural guardian. 4 Taunt. 498, ex parte Knee, 1 N. R. 148. And habeas corpus lies at her instance. See The King v. Hopkins, 7 East, 579; 5 id. 224, n; also 5 T. R. 278.] See to the same point, Somerset v. Dighton, 12 Mass. 383. Guardians for nurture were for those children who were not heirs; and as all legitimate children are heirs equally in America, this species of guardianship is here obsolete. 2 Kent, 221. (5) A widow is guardian in socage to her daughters until they are fourteen years old, as well of freehold as of copyhold. 10 East, 491: 2 M. and S. 504. She has a right as such to elect whether she will let the estate, or occupy it for their benefit. Such a guardian has not a mere office or authority, but an interest in the ward's estate; she may maintain trespass and ejectment; avow damage feasant, make admittance to copyhold, and lease in her own Ibid} name. |