Such legislation might well be copied in substance by the States of this country.

American statutes modifying the rules of the common law as to illegitimacy. Statutes have been passed in some of the States which, while they recognize in general the disabilities of illegitimacy, to some extent modify them. The statutes of New York provide that if an illegitimate person die without descendants, his estate shall descend to his mother, and if she be dead, to the relatives of the intestate on the part of the mother, as if the intestate had been legitimate, and, further, that illegitimate children, in default of lawful issue, shall take by succession from their mother both real and personal property, as if they had been legitimate.2 (a) In some instances special statutes are enacted making a specified illegitimate person legitimate, while the general law remains unaffected. Such a law, if passed with the father's consent, would apparently be constitutional if vested rights were not affected, as, for example, if an illegitimate son were legitimated before his father's death. The legitimate children could not legally complain because a prospective heir had been added to their number by legislative act.3

riage valid, where the woman had previously gone through a ceremony of marriage with a man whose wife was living at the time. Shilson v. Atty-Gen'l., 22 W. R. 831.

It cannot decide upon a claim to a title of honor, such as a baronetcy. Frederick v. Atty-Gen❜l., L. R. 3 P. & D. 196. It may declare a foreign divorce to be void, and as a consequence a later mar. riage between the same parties to be invalid. Shaw v. Atty-Gen'l., L. R. 2 P. & D. 156.

1 1 R. S. 753, § 14.

whose right to be deemed a natural-born subject depends wholly or in part on his legitimacy or on the validity of a marriage, being domiciled in England or Ireland, or claiming property situated in England, may apply by petition to the court of divorce praying for a decree that the petitioner is the legitimate child of his parents and that the marriage of his father and mother or of his grandfather and grandmother was a valid marriage. He is also allowed to ask for a decree that his own marriage is valid. Notice of the application must be given to the Attorney-General, who is deemed to be 2 Laws of 1855, ch. 547, modifying 1 R. a respondent in the proceeding. The court S. 754, § 19; Ferrié v. Pub. Adm., 3 Bradf. has power to order such persons to be 249. summoned to attend the proceedings as it may see fit. The decree is not binding upon persons not cited or made parties, though the representatives of persons cited are bound. An appeal lies to the House of Lords. See 22 & 23 Vict. c. 61, § 7. The court has no jurisdiction under this act to declare the petitioner to be the heir of another person. Mansel v. Atty-Gen'l., L. R. 2 P. D. 265. It may declare a mar

8 Beall v. Bealls, 8 Ga. 210. In this case the father's consent was presumed from the circumstances of the case. One of the methods of legitimation in the Roman law was by "imperial rescript" at the solici tation of the father. This usually occurred only when the father could not enter into marriage with the mother and there were no legitimate children. Mackeldey, Rom. Law, § 599.

(a) See Bunce v. Bunce, 27 Abb. N. C. 61.

The common law provides no mode whereby children can be legally adopted. Such modes are established by the Roman law and are sufficiently stated in Book I. of the Institutes of Justinian, title eleven. There were two methods recognized in that system; one by imperial rescript, and the other .by judicial order. The former was resorted to when the person to be adopted was independent of paternal authority; the latter when he was dependent, or under power (potestas). In this last case the adopted person still remained under the power of his father, though he was entitled to share in the succession of his adopting father, if he died intestate. The adoption of a person not being under the power of a parent was called "arrogation," which was always to be made under certain conditions showing the propriety of the act, while security must be given to a public agent that if the adoptee died within the age of puberty, the adopter would return the property received with him to the persons who would have been entitled to succeed to his estate in case no adoption had taken place. The adoptee was in most respects in the same position as if he had been a legitimate child of the adopter. The fiction of parentage was consistently carried out. The adopter must be older than the adoptee, as it would be "unnatural" for a son to be older than his father. He must even be eighteen years older, since that age was assumed to be the time at which he could have been father. A person might adopt a person as "grandson" without having had either a son or an adopted son, though the consent of the father of the proposed grandson would be requisite.2

Persons who were impotent could adopt, but not those who had been mutilated. Women could not adopt except to comfort them for the loss of children who had been taken from them.

The leading principles of the Roman law of adoption have been borrowed in a number of the American States, New York being one of them. A brief sketch of the New York law is given below. 3

1 The translation by J. B. Moyle is very faithful and clear. Vol. II. p. 15 (Clarendon Press, Oxford, 1883).

Mackeldey's Roman Law (Dropsie's ed.), §§ 592, 594.

8 Laws of 1873, ch. 830, as amended by Laws of 1887, ch. 703; Laws of 1888, ch. 485, and Laws of 1889, ch. 58, concerning

the adoption of children in orphan asylums and charitable institutions. See Laws of 1884, ch. 438.

Adoption is defined to be a legal act whereby an adult person takes a minor into the legal relation of child. The leading rules are,

I. Any minor child may be adopted by

Adoption without legal authority creates simply a voluntary relation between the parties, which may be terminated at will. The adopting parent, while the relation continues, cannot demand payment for the child's support, nor can the latter make any claim for services.1 The transaction may assume, under special circumstances, such a form that the father of the child cannot even, without the aid of a statute, revoke the consent given to the adoption without legal reason.2

any adult, except that neither husband nor wife can adopt without the other's consent unless they have been lawfully (1) The adoptee takes the name of the separated. adopter. The two henceforth sustain the II. The consent of the minor of over legal relation of parent and child, and twelve years of age is necessary.

CHAPTER VII.

GUARDIAN AND WARD.

THE title "guardian" is now appropriated to the case of one who has legal charge of an infant or a minor. The term frequently includes the parents, but is more specifically used to designate one who acts in the place of a parent, and who is either designated by him, or appointed by a court, or recognized as such by some rule of law.

The relation of guardian and ward was recognized and well defined in the Roman law. Its rules are instructive, and are stated in a preliminary section.

SECTION I. Rules of Roman Law as to Guardianship.- The Roman law distinguished between two classes of persons intrusted with the care of others who were not able to take care of themselves: one, tutors, and the other, curators. Tutorship applied to immature persons, such as boys under fourteen years of age, and girls under twelve. Curatorship extended to all other persons who, for special reasons, needed care, such as idiots, the insane, the deaf, dumb, and blind, and prodigals. Thus the tutor answered closely to our present guardian, while the curator corresponded with the "committee" or "conservator" of a lunatic or habitual drunkard of the present time. Our present concern is with the "tutor" or guardian, and the topics to be referred to may be arranged under the following heads: I. His appointment; II. The general character of his duties; and, III. His accountability.

I. His appointment. - A tutor could be appointed by the will of a parent in the same manner as a father can now create a testamentary guardian. The appointment could be made to include children born after the execution of the will (called postumi). An imperfect appointment of this kind could in some cases be confirmed by the proper magistrate, though this would after all appear to be a case of public appointment. A tutor could be appointed conditionally, or for a specified time, or for a specific purpose, such as to aid his ward in contracting a marriage, or in carrying forward a particular law suit. The

later jurists thought that such a special appointment was inelegans or in "bad form," and inclined to the opinion that the appointment must be general. Statutes commencing as early as the Twelve Tables gave the power of appointment to magistrates or other public officers.

-

II. The general character of his duties. A ward could do some acts without the guardian's consent, as where the act would improve his condition, but not where it would make it worse. In other words, the ward could acquire rights, but could not incur liabilities. Accordingly, he could not, without the sanction of his guardian, enter into bilateral contracts, nor undertake the performance of a trust. Assuming that the sanction of the guardian was necessary, it should be made to accompany the ward's act, and not be a subsequent ratification. The guardian, having thus important powers, was required to give security, to be approved by the proper authority, for the performance of his duties. The magistrate, if of inferior rank, was made personally liable if he allowed him to act without sufficient security. This rule was not extended to testamentary guardians, as the confidence which the testator had reposed in them was considered a sufficient guarantee of their capacity and fidelity.

It is interesting to trace in the law the progress of ideas in regard to this relation. It was at first deemed rather the right of a particular person to be a guardian. Finally, it came to be regarded as a trust, and a public duty or office, which one appointed to was bound to accept, unless exempted in the same general way as certain classes of persons were exempted from holding office. It was a branch of this notion of trust that the guardian could not represent the ward in any conflict of interest between them, but a special person should be appointed in such a case to act for the ward.

1

III. His accountability. — Accountability to the ward was rigidly exacted. The guardian could be made to render an account before the proper magistrate. If it appeared that he had wilfully wasted the assets, he could be punished criminally. His act in that case was infamous. It was not so if he had acted negligently.

The guardian could be removed on "suspicion" even before he commenced his administration. Want of faithfulness to his trust was a sufficient ground, even though he were perfectly solvent, or offered to give security. No guardian could be removed simply because he was poor, provided that he was faithful and diligent. It was a sufficient charge to show that, having means, he did not provide the ward with a sufficient