3. I PROCEED next to the rights and incapacities which appertain to a bastard. The rights are very few, being only such as he can acquire; for he can inherit nothing, being for the purpose of that inquiry; and, if she pleases, she may depose to the father of the child. When she does, the magistrate may proceed against the father much in the manner described in the text; but the 49 G.3. c. 68. provides for the more easy respite or discharge of the recognizances without the man's personal appearance at the sessions, when the proceedings there must be postponed, or are become wholly unnecessary, either by reason of the child not being yet born, or having died, or in consequence of the marriage of the parties before the birth, or any such circumstance. If the putative father when before the magistrates agrees to indemnify the parish, the security given is by the 54 G.3. c.70. vested in the overseers of the poor of the parish for the time being, who are constituted a corporate body for that purpose, and may sue as such upon the instrument. Indemnity, however, is all that the parish is entitled to, and, therefore, whatever the penalty of the bond may be, if the child dies, or in any way ceases to be a charge before that sum is expended, the father is only liable for the expense actually incurred; he cannot be liable to more than the penalty, he may be to less. So, if in compliance with a very reprehensible custom, the father has paid a gross sum of money to the parish for his entire discharge, and the child should die, or cease to be a burthen, before that sum is expended; the father may recover back the difference; if he could not, it would be the interest of the parish officers to neglect the child, as they would be gainers by its early death. Where the child is actually born, when the examination of the woman is taken, the two justices out of sessions either make or refuse to make an order of filiation and maintenance: and as far as regards the latter, it is made either on the father alone, or on the father and mother both, in such proportions as under the circumstances the justices think proper. In order to determine their discretion they are to hear evidence on both sides. If they make the order, the putative father may appeal to the sessions against it; if they refuse to make it, the parish officers may apply to that court for an original order. The order, whenever made, may direct the father to pay the reasonable charges of the birth, the costs of apprehension and making the order (not exceeding 107.), the costs of maintenance already incurred, and a weekly sum so long as the child remains chargeable to the parish. It may also, as I have before stated, impose payment of a weekly sum on the mother for the same period. Disobedience to the order is punished by imprisonment. Where the father or mother run away, the proceedings of the parish officers in seizing their rents, &c. are subject to the same controul, as in the case of a parent running away, and leaving his family chargeable. See ante, p. 448. n. (3)., and the statutes and cases collected and arranged in Burn's Justice, title, Bastard. as looked upon as the son of nobody; and sometimes called filius nullius, sometimes filius populi . Yet he may gain a sur[459] name by reputation, though he has none by inheritance. All other children have their primary settlement in their father's parish; but a bastard in the parish where born, for he hath no father'. However, in case of fraud, as if a woman be sent either by order of justices, or comes to beg a vagrant, to a parish which she does not belong to, and drops her bastard there; the bastard shall, in the first case, be settled in the parish from whence she was illegally removed; or, in the latter case, in the mother's own parish, if the mother be apprehended for her vagrancy ".(14) Bastards also born in any licensed hospital for pregnant women, are settled in the parishes to which the mothers belong. (15) 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; 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 distinc d Fort. de LL. c. 40. e Co. Litt. 3. f Salk. 427. Ibid. 121. Stat. 17 Geo. II. c. 5. i Stat. 13 Geo. III. c. 82. (14) The 3 G. 4. c. 40. which repealed the 17 G. 2. c. 5. contained a clause to the same effect as that stated in the text, without the condition annexed of the mother's apprehension. But this act was repealed by the 5 G.4. c. 83., which, whether intentionally or not, contains no similar provision; the bastard child of a vagrant will therefore now be settled where born. (15) The rule is the same where the mother is delivered in any prison or house of correction; or in the house of industry of any hundred or other district incorporated by act of parliament for the relief and employment of the poor; or, in any lunatic asylum, she being lunatic, insane, or a dangerous idiot. So also, where an order has been made for the removal of the mother, but the execution is suspended under the 35 G. 3. c.101., the mother communicates her settlement to the child born during the suspension; and the law is the same where the child is born in any place in which the mother is residing as member of any friendly society established under the regulations of the 33 G. 3. c. 54. tion 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 bastards in some cases incapable even of a gift from their parents. A bastard may, lastly, be made legitimate, and capable of inheriting by the transcendent power of an act of parliament, and not otherwise m; as was done in the case of John of Gaunt's bastard children, by a statute of Richard the second. 1 Cod. 6. 57. 5. m 4 Inst. 36. [461 ] 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 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. 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. Or 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 seems by construction of the statute 4 & 5 Ph. & Mar. c. 8. that the father might by deed or will assign a guardian to any a Ff. 26. 4. 1. b Co. Litt. 88. 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 to provide for his maintenance and education. (1) Next are guardians in socage (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 guar-dian. 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". The Roman laws proceed on a quite contrary principle, committing the care of the minor to him who is the next to succeed to the inheritance, presuming that the next heir would take the best care of an estate to which he has a prospect of succeeding: and this they boast to be "summa providentia." But in the mean time they seem to have forgotten, how much it is the guardian's interest to remove the incumbrance of his pu- [462] pil's life from that estate for which he is supposed to have so great a regard. And this affords Fortescue', and sir Edward (1) This power of the ecclesiastical court to appoint guardians is questionable; lord Hardwicke expressly denied it, and lord Mansfield seems to have considered it as limited to the appointment of a guardian ad litem, where an infant was a party to a suit in the court. 5 Atkins, 631. 3 Burr. 1436. |