Gambar halaman
PDF
ePub

need of assistance. Upon this principle proceed all the duties of children to their parents, which are enjoined by positive laws.

II. We are next to consider the case of illegitimate children; with regard to whom let us inquire, 1. Who are illegitimate. 2. The legal duties of the parents towards a natural child. 3. The rights and incapacities attending such children.

1. An illegitimate child, 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 illegitimate, if the parents afterwards intermarry. All children, therefore, born before matrimony, are illegitimate by our law.

2. The duty of parents to their natural children, by our law, is principally that of maintenance.

3. I proceed next to the rights and incapacities which appertain to an illegitimate child. 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. Yet he may gain a sirname by reputation, though he has none by inheritance. All other children have their primary, settlement in their father's parish; but a natural child in the parish where born, for he hath no father. Natural children, born in any licensed hospital for pregnant women, are settled in the parishes to which the mothers belong. The incapacity of an illegitimate child 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. An illegitimate child may be made legitimate, and capable of inheriting, by the transcendent power of an act of parliament; and not otherwise; as was done in the place of John of Gaunt's natural children, by a statute Richard II.

of

CHAPTER XVII.

OF GUARDIAN AND WARD.

THE only general private relation, now remaining to be discussed, is that of guardian and ward; 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 a 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, 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.

Of the several species of guardians, the first are guardians by nature; 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 guar

dian, and must account to his child for the profits. And, with regard to daughters, it seems, by construction of the statute, 4 & 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. There are also guardians for nurture; which are, of course, the father or mother, till the infant attains the age of fourteen years and in default of father or mother, the ordinary usually assigns some discreet person to take care of the infant's personal estate, and provide for his maintenance and education. Next are guardians in socage, 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 on 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. 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 the kind for him to abuse his trust. These guardians in socage, like those for nurture, continue only till the minor is fourteen years of age; for then, in both cases, he is presumed to have discretion, so far as to chuse his own guardian. This he may do, unless one be appointed by his father, till he has attained the age

of twenty-one.

These are called guardians by

statute, or testamentary guardians. There are also special guardians by custom of London, and other places; but they are particular exceptions, and do not fall under the general law.

The power and reciprocal duty of a guardian and ward are the same, pro tempore, as that of a father and child; and therefore I shall not repeat them but shall only add, that the guardian, when the ward comes of age, is bound to give him an account of all that he has transacted on his behalf, and must answer for all losses by his wilful default or negligence. In order, therefore, to prevent disagreeable contests with young gentlemen, it has become a practice for many guardians, of large estates especially, to indemnify themselves by applying to the court of chancery, acting under its direction, and accounting annually before the officers of that court. For the lord chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; that is, of all such persons as have not discretion enough to manage their own concerns. In case therefore any guardian abuses his trust, the court will check and punish him; nay, sometimes will proceed to the removal of him, and appoint another in his stead.

2. Let us next consider the ward or person within age, for whose assistance and support these guardians are constituted by law; or who it is that is said to be within age. The ages of male and female are different for different purposes. A male at

twelve years old may take the oath of allegiance; at fourteen is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his discretion be actually proved, may make his testament of his personal estate; at seventeen may be an executor; and at twenty-one is at his own disposal, and may aliene his lands, goods, and chattels. A female also at seven years of age may be given in marriage; at nine is entitled to dower; at twelve is at years of maturity, and therefore may consent or disagree to marriage, and, if proved to have sufficient discretion, may bequeath her personal estate; at fourteen is at years of legal discretion, and may choose a guardian; at seventeen may be executrix; and at twenty-one may dispose of herself and her lands. So that full age in male or female is twenty-one years, which age is completed on the day preceding the anniversary of a person's birth; who till that time is an infant, and so stiled in law.

:

3. Infants have different privileges, and various disabilities but their very disabilities are privileges; in order to secure them from hurting themselves by their own improvident acts. An infant cannot be sued but under the protection, and joining the name, of his guardian; for he is to defend him against all attacks as well by law as otherwise; but he may sue either by his guardian, or prochein amy, his next friend who is not his guardian. This prochein amy may be any person who will undertake the infant's cause; and it frequently happens, that an infant, by his prochein amy, institutes a suit in

« SebelumnyaLanjutkan »