rule which obtained fo early as the reign of Auguftus 3, if not of Romulus and the fame conftitution was probably handed down to our early ancestors from the Romans, during their ftay in this ifland; for we find it established under the Saxon and Danish governments '. : As baftards may be born before the coverture or marriage ftate is begun, or after it is determined, so also children born during wedlock may in fome circumftances be baftards. As if the hufband be out of the kingdom of England, (or, as the law fomewhat loosely phrafes it, extra quatuor maria) for above nine months, fo that no accefs to his wife can be presumed, her iffue during that period shall be bastards v. But, generally, during the coverture access of the husband shall be prefumed, unless the contrary can be fhewn"; which is such a negative as can only be proved by shewing 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 bastards; for the law will presume the hufband and wife conformable to the fentence of feparation, unless accefs be proved: but, in a voluntary feparation by agreement, the law will suppose access, unless the negative be fhewn. 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 iffue of the wife fhall be baftard". Likewife, in cafe of divorce in the spiritual court a vinculo matrimonii, all the iffue born during the coverture are bastards 2; becaufe fuch divorce is always upon fome caufe, that rendered. the marriage unlawful and null from the beginning. 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 purposes, yet the ties of nature, of which maintenance is one, are not so easily diffolved: and they hold indeed as to many other intentions; as, particularly, u Salk. 123. 3 P. W. 276. Stra. But the year was then only ten months. Ovid. Faft. I. 27. t Sit omnis vidua fine marito duodecim menfes. L. L.Ethelr. A. D. 1008. L. L. Canut. c. 71. y Co. Litt. 244· that a man shall not marry his bastard fister or daughter a. The civil law, therefore, when it denied maintenance to baf tards begotten under certain atrocious circumstances", was neither confonant to nature, nor reafon; 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 perfon as having got her with child, the juftice 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 feffions to difpute 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 fef fions, 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 justices may seize their rents, goods, and chattels, in order to bring up the faid bastard child. Yet fuch is the humanity of our laws, that no woman can be compulsively queftioned 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 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 fon of nobody, and fometimes called filius nullius, fometimes filius populi (a). Yet he may gain a fir a Lord Raym. 68. Comb. 356. b Nov. 89. c. 15. c Stat. 18. Eliz. e. 3. 7 Jac. I. c.4. 3 Car. I. c. 4. 13 & 14 Car. II. c. 12. 6 Geo. II. c. 31. d Fort. de L. L. c. 40. (a) Baftards are within the meaning of the marriage act 26 Geo. 2. c. 33. which requires the confent of the father, guardian, or mother, to the marriage of perfons under age, who are not married by banns. The King v. Hodnett, Term. Rep. 96.-The rule that a bastard is filius nullius applies only to the cafe of inheritances. Ibid. 101. name by reputation, though he has none by inheritance. All other children have their primary fettlement in their father's parish; but a bastard in the parish where born, for he hath no father f. However, in cafe of fraud, as if a woman be fent either by order of juftices, or comes to bèg as a vagrant, to a parish which she does not belong to, and drops her baftard there; the baftard fhall, in the first cafe, be fettled in the parifh from whence fhe was illegally removed; or, in the latter cafe, in the mother's own parish, if the mother be apprehended for her vagrancy 1. Baftards alfo, born in any licensed hofpital for pregnant women, are settled in the parishes to which the mothers belong. The incapacity of a baftard 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 baftard was alfo, in ftrictness, 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 feems now obfolete; and in all other refpects, there is no diftinction between a baftard and another man. And really any other diftinction, 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, so boasted of for it's equitable decifions, made bastards in fome cafes incapable even of a gift from their parents'. A bastard may, lastly, 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 bastard children, by a statute of Richard the fecond, e Co. Litt. 3. f Salk. 427. g Ibid. 121. h Stat. 17 Geo. II. c. 5. i Stat. 13 Geo. III. c. 82. CHAPTER THE SEVENTEENTH. OF GUARDIAN AND WAR D. HE only general private relation, now remaining to d; 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 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 laftly, 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 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 distinct. a Ff. 26. 4. 1. OF 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 guardian, and must account to his child for the profits. And, with regard to daughters, it feems by conftruction of the ftatute 4 and 5 Ph. & Mar. c. 8. that the father might by deed or will affign a guardian to any woman-child under the age of fixteen; and, if none be fo affigned, the mother shall in this cafe 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 affigns fome discreet person to take care of the infant's perfonal estate, and to provide for his maintenance and education f. Next are guardians in focage, (an appellation which will be fully explained in the second book of these commentaries) who are also called guardians by the common law. Thefe take place only when the minor is entitled to fome estate in lands, and then by the common law the guardianship devolves upon his next of kin, to whom the inheritance cannot poffibly defcend; as, where the estate defcended from his father, in this cafe his uncle by the mother's fide cannot poffibly inherit this eftate, and therefore shall be the guardian. For the law judges it improper to truft the person of an infant in his hands, who may by poffibility become heir to him; that there may be no temptation, nor even fufpicion of temptation, for him to abuse his truft h. The Roman laws proceed on a quite contrary principle, committing the care of the minor to him who is the next to fucceed to the inheritance, prefuming that the next heir would take the best care of an eftate, to which he has a profpect of fucceeding: and this they boast to be "fumma providentia i." But in the mean time they feem to have forgotten, how much it is the |