Chapter THE TENTH (4)

IN case of divorce _a mensa et thoro_, the law allows alimony to the wife; which is that allowance, which is made to a woman for her support out of the husband's estate; being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. This is sometimes called her _estovers_; for which, if he refuses payment, there is (besides the ordinary process of excommunication) a writ at common law _de estoveriis habendis_, in order to recover it[i]. It is generally proportioned to the rank and quality of the parties. But in case of elopement, and living with an adulterer, the law allows her no alimony[k].

[Footnote i: 1 Lev. 6.]

[Footnote k: Cowel. tit. Alimony.]

III. HAVING thus shewn how marriages may be made, or dissolved, I come now, lastly, to speak of the legal consequences of such making, or dissolution.

BY marriage, the husband and wife are one person in law[l]: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and _cover_, she performs every thing; and is therefore called in our law-french a _feme-covert_; is said to be _covert-baron_, or under the protection and influence of her husband, her _baron_, or lord; and her condition during her marriage is called her _coverture_. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely _personal_. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her[m]: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage[n]. A woman indeed may be attorney for her husband[o]; for that implies no separation from, but is rather a representation of, her lord. And a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death[p]. The husband is bound to provide his wife with necessaries by law, as much as himself; and if she contracts debts for them, he is obliged to pay them[q]: but for any thing besides necessaries, he is not chargeable[r]. Also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries[s]; at least if the person, who furnishes them, is sufficiently apprized of her elopement[t]. If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together[u]. If the wife be injured in her person or her property, she can bring no action for redress without her husband's concurrence, and in his name, as well as her own[w]: neither can she be sued, without making the husband a defendant[x]. There is indeed one case where the wife shall sue and be sued as a feme sole, viz. where the husband has abjured the realm, or is banished[y]: for then he is dead in law; and, the husband being thus disabled to sue for or defend the wife, it would be most unreasonable if she had no remedy, or could make no defence at all. In criminal prosecutions, it is true, the wife may be indicted and punished separately[z]; for the union is only a civil union. But, in trials of any sort, they are not allowed to be evidence for, or against, each other[a]: partly because it is impossible their testimony should be indifferent; but principally because of the union of person: and therefore, if they were admitted to be witnesses _for_ each other, they would contradict one maxim of law, "_nemo in propria causa testis esse debet_;" and if _against_ each other, they would contradict another maxim, "_nemo tenetur seipsum accusare_." But where the offence is directly against the person of the wife, this rule has been usually dispensed with[b]: and therefore, by statute 3 Hen. VII. c. 2. in case a woman be forcibly taken away, and married, she may be a witness against such her husband, in order to convict him of felony. For in this case she can with no propriety be reckoned his wife; because a main ingredient, her consent, was wanting to the contract: and also there is another maxim of law, that no man shall take advantage of his own wrong; which the ravisher here would do, if by forcibly marrying a woman, he could prevent her from being a witness, who is perhaps the only witness, to that very fact.

[Footnote l: Co. Litt. 112.]

[Footnote m: _Ibid._]

[Footnote n: Cro. Car. 551.]

[Footnote o: F.N.B. 27.]

[Footnote p: Co. Litt. 112.]

[Footnote q: Salk. 118.]

[Footnote r: 1 Sid. 120.]

[Footnote s: Stra. 647.]

[Footnote t: 1 Lev. 5.]

[Footnote u: 3 Mod. 186.]

[Footnote w: Salk. 119. 1 Roll. Abr. 347.]

[Footnote x: 1 Leon. 312. This was also the practice in the courts of Athens. (Pott. Antiqu. b. 1. c. 21.)]

[Footnote y: Co. Litt. 133.]

[Footnote z: 1 Hawk. P.C. 3.]

[Footnote a: 2 Haw. P.C. 431.]

[Footnote b: State trials, vol. 1. Lord Audley's case. Stra. 633.]

IN the civil law the husband and wife are considered as two distinct persons; and may have separate estates, contracts, debts, and injuries[c]: and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband[d].

[Footnote c: _Cod._ 4. 12. 1.]

[Footnote d: 2 Roll. Abr. 298.]

BUT, though our law in general considers man and wife as one person, yet there are some instances in which she is separately considered; as inferior to him, and acting by his compulsion. And therefore all deeds executed, and acts done, by her, during her coverture, are void, or at least voidable; except it be a fine, or the like matter of record, in which case she must be solely and secretly examined, to learn if her act be voluntary[e]. She cannot by will devise lands to her husband, unless under special circumstances; for at the time of making it she is supposed to be under his coercion[f]. And in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses her[g]: but this extends not to treason or murder.

[Footnote e: Litt. Sec. 669, 670.]

[Footnote f: Co. Litt. 112.]

[Footnote g: 1 Hawk. P.C. 2.]

THE husband also (by the old law) might give his wife moderate correction[h]. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds[i]; and the husband was prohibited to use any violence to his wife, _aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet_[k]. The civil law gave the husband the same, or a larger, authority over his wife; allowing him, for some misdemesnors, _flagellis et fustibus acriter verberare uxorem_; for others, only _modicam castigationem adhibere_[l]. But, with us, in the politer reign of Charles the second, this power of correction began to be doubted[m]: and a wife may now have security of the peace against her husband[n]; or, in return, a husband against his wife[o]. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their antient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour[p].

[Footnote h: _Ibid._ 130.]

[Footnote i: Moor. 874.]

[Footnote k: F.N.B. 80.]

[Footnote l: _Nov._ 117. _c._ 14. & Van Leeuwen _in loc._]

[Footnote m: 1 Sid. 113. 3 Keb. 433.]

[Footnote n: 2 Lev. 128.]

[Footnote o: Stra. 1207.]

[Footnote p: Stra. 478. 875.]

THESE are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favourite is the female sex of the laws of England.

CHAPTER THE SIXTEENTH.

OF PARENT AND CHILD.

THE next, and the most universal relation in nature, is immediately derived from the preceding, being that between parent and child.

CHILDREN are of two sorts; legitimate, and spurious, or bastards: each of which we shall consider in their order; and first of legitimate children.

I. A LEGITIMATE child is he that is born in lawful wedlock, or within a competent time afterwards. "_Pater est quem nuptiae demonstrant_," is the rule of the civil law[a]; and this holds with the civilians, whether the nuptials happen before, or after, the birth of the child. With us in England the rule is narrowed, for the nuptials must be precedent to the birth; of which more will be said when we come to consider the case of bastardy. At present let us enquire into, 1. The legal duties of parents to their legitimate children. 2. Their power over them. 3. The duties of such children to their parents.

[Footnote a: _Ff._ 2. 4. 5.]

1. AND, first, the duties of parents to legitimate children: which principally consist in three particulars; their maintenance, their protection, and their education.

THE duty of parents to provide for the _maintenance_ of their children is a principle of natural law; an obligation, says Puffendorf[b], laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave the children life, that they might afterwards see them perish. By begetting them therefore they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect _right_ of receiving maintenance from their parents. And the president Montesquieu[c] has a very just observation upon this head: that the establishment of marriage in all civilized states is built on this natural obligation of the father to provide for his children; for that ascertains and makes known the person who is bound to fulfil this obligation: whereas, in promiscuous and illicit conjunctions, the father is unknown; and the mother finds a thousand obstacles in her way;--shame, remorse, the constraint of her sex, and the rigor of laws;--that stifle her inclinations to perform this duty: and besides, she generally wants ability.

[Footnote b: L. of N. l. 4. c. 11.]

[Footnote c: Sp. L. l. 23. c. 2.]

THE municipal laws of all well-regulated states have taken care to enforce this duty: though providence has done it more effectually than any laws, by implanting in the breast of every parent that natural [Greek: storge], or insuperable degree of affection, which not even the deformity of person or mind, not even the wickedness, ingratitude, and rebellion of children, can totally suppress or extinguish.

THE civil law[d] obliges the parent to provide maintenance for his child; and, if he refuses, "_judex de ea re cognoscet_." Nay, it carries this matter so far, that it will not suffer a parent at his death totally to disinherit his child, without expressly giving his reason for so doing; and there are fourteen such reasons reckoned up[e], which may justify such disinherison. If the parent alleged no reason, or a bad, or false one, the child might set the will aside, _tanquam testamentum inofficiosum_, a testament contrary to the natural duty of the parent. And it is remarkable under what colour the children were to move for relief in such a case: by suggesting that the parent had lost the use of his reason, when he made the _inofficious_ testament. And this, as Puffendorf observes[f], was not to bring into dispute the testator's power of disinheriting his own offspring; but to examine the motives upon which he did it: and, if they were found defective in reason, then to set them aside. But perhaps this is going rather too far: every man has, or ought to have, by the laws of society, a power over his own property: and, as Grotius very well distinguishes[g], natural right obliges to give a _necessary_ maintenance to children; but what is more than that, they have no other right to, than as it is given them by the favour of their parents, or the positive constitutions of the municipal law.

[Footnote d: _Ff._ 25. 3. 5.]

[Footnote e: _Nov._ 115.]

[Footnote f: _l._ 4. _c._ 11. Sec. 7.]

[Footnote g: _De j.b. & p._ _l._ 2. _c._ 7. _n._ 3.]

LET us next see what provision our own laws have made for this natural duty. It is a principle of law[h], that there is an obligation on every man to provide for those descended from his loins: and the manner, in which this obligation shall be performed, is thus pointed out[i]. The father, and mother, grandfather, and grandmother of poor impotent persons shall maintain them at their own charges, if of sufficient ability, according as the quarter sessions shall direct: and[k] if a parent runs away, and leaves his children, the churchwardens and overseers of the parish shall seise his rents, goods, and chattels, and dispose of them towards their relief. By the interpretations which the courts of law have made upon these statutes, if a mother or grandmother marries again, and was before such second marriage of sufficient ability to keep the child, the husband shall be charged to maintain it[l]: for this being a debt of hers, when single, shall like others extend to charge the husband. But at her death, the relation being dissolved, the husband is under no farther obligation.

[Footnote h: Raym. 500.]

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

[Footnote k: Stat. 5 Geo. I. c. 8.]

[Footnote l: Styles. 283. 2 Bulstr. 346.]

NO person is bound to provide a maintenance for his issue, unless where the children are impotent and unable to work, either through infancy, disease, or accident; and then is only obliged to find them with necessaries, the penalty on refusal being no more than 20_s._ a month. For the policy of our laws, which are ever watchful to promote industry, did not mean to compel a father to maintain his idle and lazy children in ease and indolence: but thought it unjust to oblige the parent, against his will, to provide them with superfluities, and other indulgences of fortune; imagining they might trust to the impulse of nature, if the children were deserving of such favours. Yet, as nothing is so apt to stifle the calls of nature as religious bigotry, it is enacted[m], that if any popish parent shall refuse to allow his protestant child a fitting maintenance, with a view to compel him to change his religion, the lord chancellor shall by order of court constrain him to do what is just and reasonable. But this did not extend to persons of another religion, of no less bitterness and bigotry than the popish: and therefore in the very next year we find an instance of a Jew of immense riches, whose only daughter having embraced christianity, he turned her out of doors; and on her application for relief, it was held she was intitled to none[n]. But this gave occasion[o] to another statute[p], which ordains, that if jewish parents refuse to allow their protestant children a fitting maintenance, suitable to the fortune of the parent, the lord chancellor on complaint may make such order therein as he shall see proper.

[Footnote m: Stat. 11 & 12 W. III. c. 4.]

[Footnote n: Lord Raym. 699.]

[Footnote o: Com. Journ. 18 Feb. 12 Mar. 1701.]

[Footnote p: 1 Ann. st. 1. c. 30.]

OUR law has made no provision to prevent the disinheriting of children by will; leaving every man's property in his own disposal, upon a principle of liberty in this, as well as every other, action: though perhaps it had not been amiss, if the parent had been bound to leave them at the least a necessary subsistence. By the custom of London indeed, (which was formerly universal throughout the kingdom) the children of freemen are entitled to one third of their father's effects, to be equally divided among them; of which he cannot deprive them. And, among persons of any rank or fortune, a competence is generally provided for younger children, and the bulk of the estate settled upon the eldest, by the marriage-articles. Heirs also, and children, are favourites of our courts of justice, and cannot be disinherited by any dubious or ambiguous words; there being required the utmost certainty of the testator's intentions to take away the right of an heir[q].

[Footnote q: 1 Lev. 130.]

FROM the duty of maintenance we may easily pass to that of _protection_; which is also a natural duty, but rather permitted than enjoined by any municipal laws: nature, in this respect, working so strongly as to need rather a check than a spur. A parent may, by our laws, maintain and uphold his children in their lawsuits, without being guilty of the legal crime of maintaining quarrels[r]. A parent may also justify an assault and battery in defence of the persons of his children[s]: nay, where a man's son was beaten by another boy, and the father went near a mile to find him, and there revenged his son's quarrel by beating the other boy, of which beating he afterwards died; it was not held to be murder, but manslaughter merely[t]. Such indulgence does the law shew to the frailty of human nature, and the workings of parental affection.

[Footnote r: 2 Inst. 564.]

[Footnote s: 1 Hawk. P.C. 131.]

[Footnote t: Cro. Jac. 296. 1 Hawk. P.C. 83.]

THE last duty of parents to their children is that of giving them an _education_ suitable to their station in life: a duty pointed out by reason, and of far the greatest importance of any. For, as Puffendorf very well observes[u], it is not easy to imagine or allow, that a parent has conferred any considerable benefit upon his child, by bringing him into the world; if he afterwards entirely neglects his culture and education, and suffers him to grow up like a mere beast, to lead a life useless to others, and shameful to himself. Yet the municipal laws of most countries seem to be defective in this point, by not constraining the parent to bestow a proper education upon his children. Perhaps they thought it punishment enough to leave the parent, who neglects the instruction of his family, to labour under those griefs and inconveniences, which his family, so uninstructed, will be sure to bring upon him. Our laws, though their defects in this particular cannot be denied, have in one instance made a wise provision for breeding up the rising generation; since the poor and laborious part of the community, when past the age of nurture, are taken out of the hands of their parents, by the statutes for apprenticing poor children[w]; and are placed out by the public in such a manner, as may render their abilities, in their several stations, of the greatest advantage to the commonwealth. The rich indeed are left at their own option, whether they will breed up their children to be ornaments or disgraces to their family. Yet in one case, that of religion, they are under peculiar restrictions: for[x] it is provided, that if any person sends any child under his government beyond the seas, either to prevent it's good education in England, or in order to enter into or reside in any popish college, or to be instructed, persuaded, or strengthened in the popish religion; in such case, besides the disabilities incurred by the child so sent, the parent or person sending shall forfeit 100_l._ which[y] shall go to the sole use and benefit of him that shall discover the offence. And[z] if any parent, or other, shall send or convey any person beyond sea, to enter into, or be resident in, or trained up in, any priory, abbey, nunnery, popish university, college, or school, or house of jesuits, or priests, or in any private popish family, in order to be instructed, persuaded, or confirmed in the popish religion; or shall contribute any thing towards their maintenance when abroad by any pretext whatever, the person both sending and sent shall be disabled to sue in law or equity, or to be executor or administrator to any person, or to enjoy any legacy or deed of gift, or to bear any office in the realm, and shall forfeit all his goods and chattels, and likewise all his real estate for life.

[Footnote u: L. of N. b. 6. c. 2. Sec. 12.]

[Footnote w: See page 414.]

[Footnote x: Stat. 1 Jac. I. c. 4. & 3 Jac. I. c. 5.]

[Footnote y: Stat. 11 & 12 W. III. c. 4.]

[Footnote z: Stat. 3 Car. I. c. 2.]

2. THE _power_ of parents over their children is derived from the former consideration, their duty; this authority being given them, partly to enable the parent more effectually to perform his duty, and partly as a recompence for his care and trouble in the faithful discharge of it. And upon this score the municipal laws of some nations have given a much larger authority to the parents, than others. The antient Roman laws gave the father a power of life and death over his children; upon this principle, that he who gave had also the power of taking away[a]. But the rigor of these laws was softened by subsequent constitutions; so that[b] we find a father banished by the emperor Hadrian for killing his son, though he had committed a very heinous crime, upon this maxim, that "_patria potestas in pietate debet, non in atrocitate, consistere_." But still they maintained to the last a very large and absolute authority: for a son could not acquire any property of his own during the life of his father; but all his acquisitions belonged to the father, or at least the profits of them for his life[c].

[Footnote a: _Ff._ 28. 2. 11. _Cod._ 8. 47. 10.]

[Footnote b: _Ff._ 48. 9. 5.]

[Footnote c: _Inst._ 2. 9. 1.]

THE power of a parent by our English laws is much more moderate; but still sufficient to keep the child in order and obedience. He may lawfully correct his child, being under age, in a reasonable manner[d]; for this is for the benefit of his education. The consent or concurrence of the parent to the marriage of his child under age, was also _directed_ by our antient law to be obtained: but now it is absolutely _necessary_; for without it the contract is void[e]. And this also is another means, which the law has put into the parent's hands, in order the better to discharge his duty; first, of protecting his children from the snares of artful and designing persons; and, next, of settling them properly in life, by preventing the ill consequences of too early and precipitate marriages. A father has no other power over his sons _estate_, than as his trustee or guardian; for, though he may receive the profits during the child's minority, yet he must account for them when he comes of age. He may indeed have the benefit of his children's labour while they live with him, and are maintained by him: but this is no more than he is entitled to from his apprentices or servants. The legal power of a father (for a mother, as such, is entitled to no power, but only to reverence and respect) the power of a father, I say, over the persons of his children ceases at the age of twenty one: for they are then enfranchised by arriving at years of discretion, or that point which the law has established (as some must necessarily be established) when the empire of the father, or other guardian, gives place to the empire of reason. Yet, till that age arrives, this empire of the father continues even after his death; for he may by his will appoint a guardian to his children. He may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then _in loco parentis_, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.

[Footnote d: 1 Hawk. P.C. 130.]

[Footnote e: Stat. 26 Geo. II. c. 33.]

3. THE _duties_ of children to their parents arise from a principle of natural justice and retribution. For to those, who gave us existence, we naturally owe subjection and obedience during our minority, and honour and reverence ever after; they, who protected the weakness of our infancy, are entitled to our protection in the infirmity of their age; they who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring, in case they stand in need of assistance. Upon this principle proceed all the duties of children to their parents, which are enjoined by positive laws. And the Athenian laws[f] carried this principle into practice with a scrupulous kind of nicety: obliging all children to provide for their father, when fallen into poverty; with an exception to spurious children, to those whose chastity had been prostituted by consent of the father, and to those whom he had not put in any way of gaining a livelyhood. The legislature, says baron Montesquieu[g], considered, that in the first case the father, being uncertain, had rendered the natural obligation precarious; that, in the second case, he had sullied the life he had given, and done his children the greatest of injuries, in depriving them of their reputation; and that, in the third case, he had rendered their life (so far as in him lay) an insupportable burthen, by furnishing them with no means of subsistence.

[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 bastards; with regard to whom let us inquire, 1. Who are bastards. 2. The legal duties of the parents towards a bastard child. 3. The rights and incapacities attending such bastard children.

1. WHO are bastards. A bastard, 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 bastard, 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 principal 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 bastard, 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 bastard 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 bastards 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 constitutions 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 bastardize 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 bastards 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 supposititious heir to the estate: an attempt which the rigor of the Gothic constitutions 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 bastard. 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 constitution 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. _tit._ 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 bastards 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 circumstances be bastards. 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 bastard[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 bastards; 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 bastard[y]. Likewise, in case of divorce in the spiritual court _a vinculo matrimonii_, all the issue born during the coverture are bastards[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 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 dissolved: and they hold indeed as to many other intentions; as, particularly, that a man shall not marry his bastard sister or daughter[a]. The civil law therefore, when it denied maintenance to bastards begotten under certain atrocious circumstances[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 bastard, 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 bastard, 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 bastard 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 bastard. 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_[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 bastard 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 bastard there; the bastard 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 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[i]: 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 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 bastards in some cases incapable even of a gift from their parents[k]. A bastard 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 bastard 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. 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[b]. 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 woman-child under the age of sixteen, and if none be so assigned, the mother shall in this case be guardian[c]. There are also guardians _for nurture_[d], which are, of course, the father or mother, till the infant attains the age of fourteen years[e]: 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[f]. 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 guardian[g]. 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[h]. 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_[i]." But in the mean time they forget, how much it is the guardian's interest to remove the incumbrance of his pupil's life from that estate, for which he is supposed to have so great a regard[k]. And this affords Fortescue[l], and sir Edward Coke[m], an ample opportunity for triumph; they affirming, that to commit the custody of an infant to him that is next in succession, is "_quasi agnum committere lupo, ad devorandum_[n]." 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 choose his own guardian. This he may do, unless one be appointed by father, by virtue of the statute 12 Car. II. c. 24. which, considering the imbecillity of judgment in children of the age of fourteen, and the abolition of guardianship _in chivalry_ (which lasted till the age of twenty one, and of which we shall speak hereafter) enacts, that any father, under age or of full age, may by deed or will dispose of the custody of his child, either born or unborn, to any person, except a popish recusant, either in possession or reversion, till such child attains the age of one and twenty years. These are called guardians _by statute_, or _testamentary_ guardians. There are also special guardians _by custom_ of London, and other places[o]; but they are particular exceptions, and do not fall under the general law.

[Footnote b: Co. Litt. 88.]

[Footnote c: 3 Rep. 39.]

[Footnote d: Co. Litt. 88.]

[Footnote e: Moor. 738. 3 Rep. 38.]

[Footnote f: 2 Jones 90. 2 Lev. 163.]

[Footnote g: Litt. Sec. 123.]

[Footnote h: _Nunquam custodia alicujus de jure alicui remanet, de quo habeatur suspicio, quod possit vel velit aliquod jus in ipsa hereditate clamare._ Glanv. _l._ 7. _c._ 11.]

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

[Footnote k: The Roman satyrist was fully aware of this danger, when he puts this private prayer into the mouth of a selfish guardian;

_Pupillum o utinam, quem proximus haeres
Impello, expungam._ Perf. 1. 12.]

[Footnote l: _c._ 44.]

[Footnote m: 1 Inst. 88.]

[Footnote n: This policy of our English law is warranted by the wise institutions of Solon, who provided that no one should be another's guardian, who was to enjoy the estate after his death. (Potter's Antiqu. l. 1. c. 26.) And Charondas, another of the Grecian legislators, directed that the inheritance should go to the father's relations, but the education of the child to the mother's; that the guardianship and right of succession might always be kept distinct. (Petit. _Leg. Att._ _l._ 6. _t._ 7.)]

[Footnote o: Co. Litt. 88.]

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 it's 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 proceed to the removal of him, and appoint another in his stead[p].

[Footnote p: 1 Sid. 424. 1 P. Will. 703.]

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 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_ 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[q]; who till that time is an infant, and so stiled in law. Among the antient Greeks and Romans _women_ were never of age, but subject to perpetual guardianship[r], unless when married, "_nisi convenissent in manum viri_:" and, when that perpetual tutelage wore away in process of time, we find that, in females as well as males, full age was not till twenty five years[s]. Thus, by the constitutions of different kingdoms, this period, which is merely arbitrary, and _juris positivi_, is fixed at different times. Scotland agrees with England in this point; (both probably copying from the old Saxon constitutions on the continent, which extended the age of minority "_ad annum vigesimum primum, et eo usque juvenes sub tutelam reponunt_[t]") but in Naples they are of full age at _eighteen_; in France, with regard to marriage, not till _thirty_; and in Holland at _twenty five_.

[Footnote q: Salk. 44. 625.]

[Footnote r: Pott. Antiq. l. 4. c. 11. Cic. _pro Muren._ 12.]

[Footnote s: _Inst._ 1. 23. 1.]

[Footnote t: Stiernhook _de jure Sueonum._ _l._ 2. _c._ 2. This is also the period when the king, as well as the subject, arrives at full age in modern Sweden. Mod. Un. Hist. xxxiii. 220.]

3. INFANTS have various 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[u]: 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 equity against a fraudulent guardian. In criminal cases, an infant of the age of _fourteen_ years may be capitally punished for any capital offence[w]: but under the age of _seven_ he cannot. The period between _seven_ and _fourteen_ is subject to much incertainty: for the infant shall, generally speaking, be judged _prima facie_ innocent; yet if he was _doli capax_, and could discern between good and evil at the time of the offence committed, he may be convicted and undergo judgment and execution of death, though he hath not attained to years of puberty or discretion[x]. And sir Matthew Hale gives us two instances, one of a girl of thirteen, who was burned for killing her mistress; another of a boy still younger, that had killed his companion, and hid himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil; and in such cases the maxim of law is, that _malitia supplet aetatem_.

[Footnote u: Co. Litt. 135.]

[Footnote w: 1 Hal. P.C. 25.]

[Footnote x: 1 Hal. P.C. 26.]

WITH regard to estates and civil property, an infant hath many privileges, which will be better understood when we come to treat more particularly of those matters: but this may be said in general, that an infant shall lose nothing by non-claim, or neglect of demanding his right; nor shall any other _laches_ or negligence be imputed to an infant, except in some very particular cases.