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or number of bastards to be legitimated, which is a discouragement to the matrimonial state, one inducement to which is not only the desire to have children, but of procreating lawful heirs.
Leniency of English Law. The constitution of England guards against this indecency. For if a child be begotten, when the parents are single, and they endeavor to make an early reparation for the offence, by marrying within a few months thereafter, our law does not bastardize the child, if it be born, though not begotten, in lawful wedlock.
Posthumous Child. Children born before matrimony are bastards by our laws, 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. The law is not exact as to a few days.
Spurious Pregnancy. Where a widow is suspected of feigning herself with child, in order to produce a suppositious heir to the estate, this is an attempt, which the Gothic law esteemed equivalent to the most atrocious theft, and punished with death. In such case, the heir presumptive may have a writ de ventre inspiciendo, to examine whether she be with child or not, and if she be, to keep her under proper restrainst till delivered, which is conformable to the practice of the civil law. If the widow be found not pregnant, the presumptive heir shall be admitted to the inheritance, though liable to lose it again on the birth of a child within forty weeks from the death of a husband.
Doubtful Parentage. But if a man dies, and his widow soon after marries again, and a child is born within such a time, as 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 at years of discretion, choose which of the fathers he pleases. To prevent this, the civil law ordained, that no widow should marry for one year, and the same constitution was probably transmitted to our ancestors from the Romans, during their stay in Britain, for we find it established, under the Saxon and Danish governments.
Non-access Presumed. Under some circumstances, children born during wedlock may be bastards, as if the husband be out of the kingdom for above nine months, so that no access on his part can be presumed. But generally during coverture, , access of the husband shall be presumed, unless the contrary be
shown, which is such a negative, as can only be proved by showing him to be elsewhere. After a divorce a mensa et thoro, if the wife produces children, they are bastards, unless access be proved, but in a voluntary separation by agreement, the law will suppose access, unless the negative be shown. So also if there be an apparent impossibility of procreation on the part of the husband, the issue of the wife shall be a bastard. Likewise in case of a divorce a vinculo matrimonii, all the issue born during the coverture are bastards, because in England, such divorce is always upon a cause, that rendered the marriage unlawful and null from the beginning."
2. Duty of Parents to Bastards. This is principally that of maintenance. The civil law denied maintenance to bastards under certain circumstances.
Fornication and Bastardy. When a woman is delivered, or declares herself with child, and will upon oath charge fornication and bastardy against any one, the justice shall issue his warrant, and arrest the party, holding him to bail, or in default thereof commit him to prison. The bond is either to maintain the child, or to appear at the next quarter sessions court and have the facts tried. 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 may grant an order for the keeping of the bastard, by charging the mother or the reputed father with the payment of money, or other sustentation for that purpose.
Property Seized by the Overseers. If the parent run away from the parish, the overseers may seize his rents and goods, in order to maintain the said bastard child. No woman can be compulsorily questioned concerning the father of her child, till one month after her delivery, which necessarily gives such parent an opportunity to escape.
3. Rights and Incapacities of Bastards. The rights are very few, being only such as he can acquire. He can inherit nothing, being looked upon as nullus filius, no man's son. He may gain a surname 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 has no father. If he should be born in a licensed hospital, he has a settlement in the parish to which the mother belongs.
1 In the United States, this rule applies to total divorces or decrees of nul. lity for canonical causes only.
Disabilities. He cannot be heir to any one, neither can he have heirs, except of his own body. He has no ancestor, from whom any inheritable blood can be derived, for he is kin to nobody. Yet the civil law, so famed for its 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 an act of parliament, as was done in the case of John of Gaunt's bastard children, by a statute of Richard II.
CHAPTER XVII.-GUARDIAN AND WARD.
Divisions. 1. The different kinds of guardians, how they are appointed, their powers and duties.
2. The different ages of persons, as defined by the law.
3. The privileges and disabilities of an infant, or one under age, and subject to guardianship.
I. KINDS OF GUARDIANS, THEIR POWERS AND DUTIES.
Under the Roman Law. The guardian with us performs the office both of tutor and curator of the Roman laws; the former of whom had 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, as it is always in our law with regard to minors, though as to lunatics and idiots, it is commonly kept distinct.
By Nature. The father, and in some cases the mother, of the child, is the guardian by nature. If an estate be left to an infant, the father is, by common law, the guardian, and must account to the child for the profits. With regard to daughters, the father might, by deed or will, assign a guardian to any female child under the age of sixteen, and if none be so assigned, the mother shall in such case be guardian.
For Nurture. This of course is the father or mother, till
the infant attains the age of fourteen years. In default of parents, the ordinary usually assigns some discreet person to take care of the infant's personal estate, and to provide for its maintenance and education.
In Socage. Next are guardians in socage, who are also termed guardians by the common law. These exist, 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, an uncle on the mother's side cannot possibly inherit this estate, and therefore would be a suitable guardian. For the law jndges it improper to trust the son of an infant in his hands, who may by possibility become heir to him, that there may be no temptation for him to abuse his trust.
Guardians under Roman Law. The Roman law proceeded on a 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. They ignored the fact, that in such case, it would be the guardian's interest to remove the encuimbrance of his ward's life from the estate.
Discretion at Age of Fourteen. These guardians in socage, like those for nurture, continue only till the minor is fourteen years of age, for then he is presumed to possess sufficient discretion to select his own guardian.
Testamentary Guardians. This the minor may do, unless one be appointed by his father, under the statute of Charles II, which, considering the weakness of judgment in children of the age of fourteen, and the abolition of guardianship in chivalry, which lasted till the age of twenty-one, enacts, that a father may by deed or will, dispose of the custody of his child, born or unborn, to any person, either in possession or reversion, till such child attains the age of twenty-one years. These are called guardians by statute, or testamentary guardians. There are also special guardians by custom of London and other places.
1 Guardians ad litem may be appointed, to sue or defend actions, if the infant comes into court and desires it. The infant himself, on reaching the age of fourteen, may select his own guardian, with the consent of the court. The king, as the universal guardian of infants, deputes his powers to the chancellor, who may appoint guardians.
Account of a Guardian. When the ward comes of age, the guardian must furnish him an account of all that he has transacted on his behalf, and must answer for all losses for his own wilful default or negligence. To prevent disputes as to such accounts, it has become the practice to vouch such accounts before officers of the chancery court, on previous application made by the guardian. The lord chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as of idiots and lunatics. In case therefore, a guardian abuses his trust, the court will check and punish him, and for good cause, will remove him, and appoint another in his stead.
2. Age of Ward. Males. A male at twelve may take the oath of allegiance, at fourteen be at years of discretion, and therefore may consent or disagree to marriage, may choose his own guardian, and if his discretion be actually proved, may make his testament of his personal estate. At seventeen he may
be executor, and at twenty-one is at his own disposal, and may alien his lands, goods and chattels.
Females. A female at seven, may be betrothed or 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 she is at years of legal discretion, and may choose a guardian, at seventeen may be an executrix, and at twenty-one may dispose of herself and her lands.
Age of Majority. So the 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, until that time, is styled an infant in law. Under the Greeks and Romans, women were never of age, but subject to perpetual guardianship, unless when married, and when that perpetual tutelage was removed in time by the law, full age in females, as well as in men, was not until they had attained twenty-five years.
3. Privileges and Disabilities of Infants. Their very disabilities are privileges, to secure them from the harmful results of imprudent acts. An infant cannot be sued, but under the protection and by joining the name of his guardian," but he may sue,
1 In fact, he is sued in his own name alone, but his appearance on record is by his guardian. It is within the province of the court to appoint a guardian ad litem, in the particular action.