months after, our law is fo 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, fince all future children will be begotten, as well as born, within the rules of honour and civil fociety. Upon reafons like thefe we may suppose the peers to have acted at the parliament of Merton, when they refufed to enact that children born before marriage fhould be efteemed legitimate. FROM what has been faid it appears, that all children born before matrimony are baftards by our law: and fo it is of all children born fo' long after the death of the husband, that, by the ufual course of gestation, they could not be begotten by him. But, this being a matter of fome uncertainty, the law is not exact as to a few days. And this gives occafion to a proceeding at common law, where a widow is fufpected to feign herself with child, in order to produce a fuppofititious heir to the estate: an attempt which the rigor of the Gothic conftitutions esteemed equivalent to the most atrocious theft, and therefore punifhed with death ". In this cafe with us the heir prefumptive may have a writ de ventre infpiciendo, to examine whether the be with child, or not " (7); and, if she be, to keep her under proper restraint, till delivered; which is entirely conformable to the practice of the civil law; but, if the wi k Rogaverunt omnes epifcopi magnates, at confentirent quod nati ante matrimonium effent legitimi, ficut illi qui nati funt poft matrimonium, quia ecclefia tales babet pro legitimis. Et omnes comites et barones una voce refponderunt, quod nolunt leges Angliae mutare, quae bucufque ufitatae funt et approbatae. Stat. 20 Hen. III. c. 9. n (7) In a cafe, where an estate was devifed to a male child which might be born within forty weeks after the death of the teftator of a married woman, whofe hufband had been long abroad, and if no fuch child, the estate was devifed over, this writ de ventre infpiciendo was awarded against the woman on the petition of the fubfequent devifee. 4 Bro. 90. See the proceedings under this writ, 2 P. Wms. 591. dow Book 1. dow be upon due examination found not pregnant, the prefumptive 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 P. But if a man dies, and his widow foon 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 [457] than ordinarily legitimate; for he may, when he arrives to years of difcretion, choose which of the fathers he pleases 1. To prevent this, among other inconveniencies, the civil law ordained that no widow fhould marry infra annum luctusTM, a rule which obtained fo early as the reign of Auguftus, if not of Romulus and the fame conftitution 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'. As baftards may be born before the coverture or marriage ftate is begun, or after it is determined, so alfo children born during wedlock may in fome circumstances be baftards. As if the husband be out of the kingdom of England, (or, as the law fomewhat loosely phrases it, extra quatuor maria) for above nine months, fo that no accefs to his wife can be prefumed, her iffue during that period shall be bastards v. But, generally, during the coverture accefs of the husband shall be prefumed, unless the contrary can be fhewn"; which is fuch a negative as can only be proved by fhewing him to be elsewhere for the general rule is, praefumitur pro legitimatione (8). In a divorce, a menfa et thoro, if the wife breeds W (8) It used to be held, that, when the husband was living withia the kingdom, accefs fhould be prefumed, unless ftrict proof was adduced that the hufband and wife were all the time living at a distance children, they are baftards; 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 fuppofe 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 baftards. Likewife, in cafe of divorce in the fpiritual court a vinculo matrimonii, all the issue born during the coverture are bastards; because such divorce is always upon fome cause, that rendered [458] 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 fo easily diffolved: and they hold indeed as to many other intentions; as, particularly, that a man fhall not marry his baftard fifter or daughter 2. The civil law, therefore, when it denied maintenance to baftards begotten under certain atrocious circumftances, was neither confonant to nature, nor reafon; however profligate and wicked the parents might justly be efteemed. THE method in which the English law provides maintenance for them is as follows. When a woman is delivered, or declares herfelf with child, of a baftard, and will by oath before a juftice of peace charge any person as having got her * Salk. 123. y Co. Litt. 244. z Ibid. 235. a Lord Raym, 68. Comb. 356. b Nov. 89. c. 15. 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. distance from each other; but the courts have relaxed that rule, and have gone the length of holding that the legitimacy or illegi macy of the child of a married woman, living in a notorious state of adultery, under all the circumftances, is a queftion for a jury to determine. 4 T. R. 356. and 251, [ 459 ] with child, the juftice fhall caufe fuch perfon to be apprehended, and commit him till he gives fecurity, either to maintain the child (9), or appear at the next quarter feffions to dispute and try the fact. But if the woman dies, or is married before delivery, or mifcaries, or proves not to have been with child, the person shall be discharged (10): otherwise the feffions, 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 pay ment 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 juftices may seize their rents, goods, and chattels, in order to bring up the faid baftard child. Yet fuch is the humanity of our laws, that no woman can be compulfively 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 (11). Yet he may gain a fir d Fort. de L. L. c. 40. (9) If he gives a bond to indemnify the parish, and neglects to provide maintenance for the child, the parish officers may relieve it without an order from a juftice, and may recover the money advanced in an action upon the bond. H. Bl. 253. (10) Or he shall be discharged, if the juftices at the feffions, upon hearing all the circumftances of the cafe, fhall be of opinion that he is not the father of the child. (11) But though he is confidered filius nullius with respect to inheritances and fucceffions, yet the law takes notice of his connection with his natural parents for fome other purposes, as it has been decided that if a baftard marries under age by licence, he must have the consent of his putative father, guardian, or mother, according to the 26 Geo. II. c. 33. 1 T. R. 96. name name by reputation, though he has none by inheritance. All other children have their primary fettlement in their father's parish; but a baftard 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 beg as a vagrant, to a parish which fhe does not belong to, and drops her bastard there; the baftard fhall, in the first case, be fettled in the parish from whence the was illegally removed ; or, in the latter cafe, in the mother's own parish, if the mother be apprehended for her vagrancy. Bastards also born in any licensed hofpital for pregnant women, are fettled 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 also, in strictness, incapable of holy orders; and, though that were difpenfed 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 (12). 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 some cases 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 m: as was done in the cafe of John of Gant's baftard children, by a statute of Richard the second. e Co. Litt. 3. f Salk. 427. g Ibid. 121. h Stat. 17 Geo. II. c. 5. i Stat. 13 Geo. III. c. 82. 1 Cod. 6. 57. 5• m 4 Inft. 36. (12) Baftards are not favoured in equity as legitimate children. The court will not fupply the defect of a furrender of a copyhold in a conveyance or devife by a father to a natural child, as it will in favour of a legitimate child. Gilb. For: Rom. 256. 2 Vej. 582. See farther concerning bastards, 2 vol. 247, & 506, |