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 bastards". But, generally during the coverture, access of the husband shall be presumed, unless the contrary can be shewn "; which is such a negative as can only be proved by shewing him to be elsewhere for the general rule is praesumitur pro legitimatione". (12) 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 *. 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 bastards. Likewise in case of divorce in the spiritual court a vinculo matrimonii, all the issue born during the coverture are bastards; because such divorce is always upon some cause, that rendered the marriage unlawful and null from the beginning. 2. LET us next see the duty of parents to their bastard children by our law; which is principally that of maintenance. ✓ Co. Litt. 244. "Salk. 128.-3 P. W. 276. Stra.925. w 5 Rep. 98. * Salk. 123. (12) This doctrine was considered by the court of K. B. in the case of the King v. Luffe; and the principle laid down, that where the evidence establishes a natural impossibility that the husband could be the father, the child is a bastard; even if he has been within the four seas, or had access to the wife during the period of gestation. 8 East.195. Although in this case the expression used was "natural impossibility," and lord Ellenborough said, that " upon the ground of improbability, however strong, he should not venture to proceed;" yet it seems that legitimacy is like any other question (not concluded by a legal presumption), which must be proved or disproved by evidence, satisfying those who have to decide it; and, therefore, that where so strong an improbability is shewn on one side, as to satisfy the minds of the court or jury, they may and ought to decide accordingly. Goodright v. Saul, 4T. R. 356. Banbury Peerage, 2 Selw. N. P. 746. 6th edition. For, though bastards are not looked upon as children to any civil purposes, yet the ties of nature, of which maintenance [458] 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. The civil law, therefore, when it denied maintenance to bastards begotten under certain atrocious circumstances, was neither consonant to nature nor reason; however profligate and wicked the parents might justly be esteemed. THE method in which the English law provides maintenance for them is as follows. 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 as 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 giving the parents opportunity to escape, (13) a Lord Raym. 68. Comb. 356, 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. (13) As the statute 35 G.3. c.101. has made an unmarried woman with child actually chargeable, she may be compelled to go before a magistrate, even before delivery, in order to her removal to her last place of settlement. She must then, of course, answer such questions as are necessary for 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, 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 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; or, in the latter case, in the mother's own parish, if the mother be apprehended for her vagrancy h.(14) Bastards also born in any licensed hospital for pregnant women, are settled in the parishes to which the mothers belong 1. (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. d Fort. de LL. c. 40. e Co. Litt. 3. f Salk. 427. Ibid. 121. And really any other distinc Stat. 17 Geo. II. c. 5. iStat. 13 Geo. III. c. 82. k Fortesc. c. 40. 5 Rep. 58. (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 es tablished 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. 86. |