h

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 populid. Yet he may gain a firname by reputation, though he has none by inheritance. All other children have a fettlement in their father's parish; but a bastard in the parish where born, for he hath no fatherf. However, in case of fraud, as if a woman be fent 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 cafe, be fettled in the parish from whence she was illegally removed; or, in the latter cafe, in the mother's own parish, if the mother be apprehended for her vagrancy. The incapacity of a bastard 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 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 diftinction between a bastard and another man. And really any other diftinction, 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, fo boafted 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 tranfcendent power of an act of parliament, and not otherwise': as was done in the case of John of Gant's bastard children, by a statute of Richard the second.

d Fort. de LL. c. 40.

• Co. Litt. 3.

Salk. 427.

Salk. 121.

h Stat. 17 Geo. II. c. 5.

Fortesc. c. 40. 5 Rep. 58.

* Cod. 6.57.5.

1

4 Inft. 36.

CHAPTER THE SEVENTEENTH.

OF GUARDIAN AND

WARD.

T

HE only general private relation, now remaining to be difcussed, 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 confider the different kinds of guardians, how they are appointed, and their power and duty : next, the different ages of perfons, 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 perion, 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.

Ff. 26.4.1.

OF

OF the several species of guardians, the first are guardians by nature: viz. the father and (in some cafes) 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 affign a guardian to any woman-child under the age of fixteen, and if none be so affigned, the mother shall in this case be guardian. There are also guardians for nurtured, 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 affigns some difcreet person to take care of the infant's perfonal estate, and to provide for his maintenance and education. Next are guardians in focage, (an appellation which will be fully explained in the fecond book of these commentaries) who are alfo 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 poffibly defcend; as, where the eftate defcended from his father, in this cafe his uncle by the mother's fide cannot poffibly inherit this estate, and therefore fhall be the guardians. For the law judges it improper to trust the perfon of an infant in his hands, who may by poffibility become heir to him; that there may be no temptation, nor even fufpicion of temptation, for him to abuse his trufth. The Roman laws proceed on a quite contrary principle, committing the care of the minor to him who is the next to fucceed to the inheritance, prefuming that the next heir would take the best care of an eftate, to which he has a profpect of succeeding: and this they boast to be “fumma providentia." 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 fo great a regard. And this affords Fortescue', and fir Edward Coke", an ample opportunity for triumph; they affirming, that to commit the cuftody of an infant to him that is next in fucceffion, is "quafi agnum committere lupo, ad devoran"dum"." These guardians in focage, like those for nurture, continue only till the minor is fourteen years of age; for then, in both cafes, he is prefumed to have difcretion, 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, confidering 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 perfon, except a popish recufant, either in poffeffion or reversion, till fuch child attains the age of one and twenty years. These are called guardians by ftatute, or testamentary guardians. There are also special guardians by custom of London, and other places; but they are particular exceptions, and do not fall under the general law.

THE power and reciprocal duty of a guardian and ward are the fame, 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 difagreeable 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 fupreme guardian of all infants, as well as idiots and lunatics; that is, of all such persons as have not difcretion enough to manage their own concerns. In cafe therefore any guardian abuses his truft, the court will check and punish him; nay sometimes proceed to the removal of him, and appoint another in his stead P.

2. LET us next confider the ward, or person within age, for whose assistance and support these guardians are conftituted 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 difcretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his difcretion be actually proved, may make his teftament of his personal estate; at feventeen 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 fufficient discretion, may bequeath her personal estate; at fourteen is at years of legal difcretion, and may choose a guardian; at feventeen 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; who till that time is an infant, and so stiled in law. Among the antient Greeks and Romans women

D

: Sid. 424. 1 P. Will. 703.

9 Salk. 44.625.