Commentaries on the Laws of England Part 42

[Footnote f: Potter's Antiq. b. 4. c. 15.]

[Footnote g: Sp. L. l. 26. c. 5.]

OUR laws agree with those of Athens with regard to the first only of these particulars, the case of spurious issue. In the other cases the law does not hold the tie of nature to be dissolved by any misbehaviour of the parent; and therefore a child is equally justifiable in defending the person, or maintaining the cause or suit, of a bad parent, as a good one; and is equally compellable[h], if of sufficient ability, to maintain and provide for a wicked and unnatural progenitor, as for one who has shewn the greatest tenderness and parental piety.

[Footnote h: Stat. 43 Eliz. c. 2.]

II. WE are next to consider the case of illegitimate children, or b.a.s.t.a.r.ds; with regard to whom let us inquire, 1. Who are b.a.s.t.a.r.ds. 2.

The legal duties of the parents towards a b.a.s.t.a.r.d child. 3. The rights and incapacities attending such b.a.s.t.a.r.d children.

1. WHO are b.a.s.t.a.r.ds. A b.a.s.t.a.r.d, 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 b.a.s.t.a.r.d, 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 indispensable condition that it shall be _born_, after lawful wedlock. And the reason of our English law is surely much superior to that of the Roman, if we consider the princ.i.p.al 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 laws a child may be continued a b.a.s.t.a.r.d, 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 b.a.s.t.a.r.d 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 laws admits of no limitations as to the time, or number, of b.a.s.t.a.r.ds 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 const.i.tutions 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 months after, our law is so indulgent as not to b.a.s.t.a.r.dize 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 parliament of Merton, when they refused to enact that children born before marriage should be esteemed legitimate[k].

[Footnote i: _Inst._ 1. 10. 13. _Decretal._ _l._ 4. _t._ 17. _c._ 1.]

[Footnote 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 et barones una voce responderunt, quod nolunt leges Angliae mutare, quae hucusque usitatae sunt et approbatae._ Stat. 20 Hen. III. c. 9.

See the introduction to the great charter, _edit. Oxon._ 1759. _sub anno_ 1253.]

FROM what has been said it appears, that all children born before matrimony are b.a.s.t.a.r.ds 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[l]. 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 supposit.i.tious heir to the estate: an attempt which the rigor of the Gothic const.i.tutions 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]; which is entirely conformable to the practice of the civil law[o]: and, if the widow be upon due examination found not pregnant, any issue she may afterwards produce, though within nine months, will be b.a.s.t.a.r.d. 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 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[p]. To prevent this, among other inconveniences, the civil law ordained that no widow should marry _infra annum luctus_[q]; a rule which obtained so early as the reign of Augustus[r], if not of Romulus: and the same const.i.tution 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[s].

[Footnote l: Cro. Jac. 541.]

[Footnote m: Stiernhook _de jure Gothor._ _l._ 3. _c._ 5.]

[Footnote n: Co. Litt. 8.]

[Footnote o: _Ff._ 25. _t.i.t._ 4. _per tot._]

[Footnote p: Co. Litt. 8.]

[Footnote q: _Cod._ 5. 9. 2.]

[Footnote r: But the year was then only _ten_ months. Ovid. Fast. I.

27.]

[Footnote s: _Sit omnis vidua sine marito duodecim menses._ _LL.

Ethelr._ _A.D._ 1008. _LL. Canut._ _c._ 71.]

AS b.a.s.t.a.r.ds 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 circ.u.mstances be b.a.s.t.a.r.ds. 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 b.a.s.t.a.r.d[t].

But, generally, during the coverture access of the husband shall be presumed, unless the contrary can be shewn[u]; which is such a negative as can only be proved by shewing him to be elsewhere: for the general rule is, _praesumitur pro legitimatione_[w]. In a divorce _a mensa et thoro_, if the wife breeds children, they are b.a.s.t.a.r.ds; for the law will presume the husband and wife conformable to the sentence of separation, unless access be proved: but, in a voluntary separation by agreement, the law will suppose access, unless the negative be shewn[x]. 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 b.a.s.t.a.r.d[y]. Likewise, in case of divorce in the spiritual court _a vinculo matrimonii_, all the issue born during the coverture are b.a.s.t.a.r.ds[z]; because such divorce is always upon some cause, that rendered the marriage unlawful and null from the beginning.

[Footnote t: Co. Litt. 244.]

[Footnote u: Salk. 123. 3 P.W. 276. Stra. 925.]

[Footnote w: 5 Rep. 98.]

[Footnote x: Salk. 123.]

[Footnote y: Co. Litt. 244.]

[Footnote z: _Ibid._ 235.]

2. LET us next see the duty of parents to their b.a.s.t.a.r.d children, by our law; which is princ.i.p.ally that of maintenance. For, though b.a.s.t.a.r.ds 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 b.a.s.t.a.r.d sister or daughter[a]. The civil law therefore, when it denied maintenance to b.a.s.t.a.r.ds begotten under certain atrocious circ.u.mstances[b], was neither consonant to nature, nor reason, however profligate and wicked the parents might justly be esteemed.

[Footnote a: Lord Raym. 68. Comb. 356.]

[Footnote b: _Nov._ 89. _c._ 15.]

THE method in which the English law provides maintenance for them is as follows[c]. When a woman is delivered, or declares herself with child, of a b.a.s.t.a.r.d, and will by oath before a justice of peace charge any person 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 b.a.s.t.a.r.d, 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 b.a.s.t.a.r.d 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 suffering the parents to escape.

[Footnote c: Stat. 18 Eliz. c. 3. 7 Jac. I. c. 4. 3 Car. I. c. 4. 13 & 14 Car. II. c. 12. 6 Geo. II. c. 31.]

3. I PROCEED next to the rights and incapacities which appertain to a b.a.s.t.a.r.d. The rights are very few, being only such as he can _acquire_; for he can _inherit_ nothing, being looked upon as the son of n.o.body, and sometimes called _filius nullius_, sometimes _filius populi_[d].

Yet he may gain a sirname by reputation[e], though he has none by inheritance. All other children have a settlement in their father's parish; but a b.a.s.t.a.r.d in the parish where born, for he hath no father[f]. 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 which she does not belong to, and drops her b.a.s.t.a.r.d there; the b.a.s.t.a.r.d shall, in the first case, be settled in the parish from whence she was illegally removed[g]; or, in the latter case, in the mother's own parish, if the mother be apprehended for her vagrancy[h]. The incapacity of a b.a.s.t.a.r.d consists princ.i.p.ally 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 n.o.body, and has no ancestor from whom any inheritable blood can be derived. A b.a.s.t.a.r.d 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[i]: but this doctrine seems now obsolete; and in all other respects, there is no distinction between a b.a.s.t.a.r.d 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 it's equitable decisions, made b.a.s.t.a.r.ds in some cases incapable even of a gift from their parents[k]. A b.a.s.t.a.r.d may, lastly, be made legitimate, and capable of inheriting, by the transcendent power of an act of parliament, and not otherwise[l]: as was done in the case of John of Gant's b.a.s.t.a.r.d children, by a statute of Richard the second.

[Footnote d: _Fort. de LL._ _c._ 40.]

[Footnote e: Co. Litt. 3.]

[Footnote f: Salk. 427.]

[Footnote g: Salk. 121.]

[Footnote h: Stat. 17 Geo. II. c. 5.]

[Footnote i: Fortesc. _c._ 40. 5 Rep. 58.]

[Footnote k: _Cod._ 6. 57. 5.]

[Footnote l: 4 Inst. 36.]

CHAPTER THE SEVENTEENTH.

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 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.

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.

[Footnote a: _Ff._ 26. 4. 1.]

OF the several species of guardians, the first are guardians _by nature_: viz. the father and (in some cases) the mother of the child.