and neglect that duty, so that he becomes chargeable to a parish, she is liable, by 7 & 8 Vict. c. 101, s. 6, to be punished under the provisions of the Vagrant Act (i). If, on the other hand, the mother be not of sufficient ability, the law affords her the means of compelling the father of the bastard to supply a fund for its maintenance. For by 7 & 8 Vict. c. 101, (amended by 8 & 9 Vict. c. 10,) any single woman with child, or delivered of a bastard child (k), may, either before the birth, or at any time within twelve months from the birth, make application to a justice of the peace, charging a person by name as the father of her child; and where the alleged father has within the twelve months paid money for its maintenance, such application may be made at any subsequent period whatever, and without limitation in regard to time. Upon this, the person charged is then summoned to appear (either in person or by counsel or attorney) before the justices in petty session (1), who are to

(i) As to the Vagrant Act, viz. 5 Geo. 4, c. 83, amended by 1 & 2 Vict. c. 38, vide bk. vI. c. XII.

(k) The act of 7 & 8 Vict. c. 101, applies to the case of pregnancy or birth after the passing of the act, or within six calendar months before, and to the bastards of married as well as single women; Queen v. Collingwood, 12 Q.B. 681. For the former law as to maintenance of bastards, vide 6 Geo. 2, c. 31; 49 Geo. 3, c. 68; 54 Geo. 3, c. 170; 4 & 5 Will. 4, c. 76, ss. 69-76; 2 & 3 Vict. c. 85. By the law as it once stood, an order of filiation and maintenance might be obtained on the application of the overseers of the parish, and on the unsupported evidence of the woman herself. But by 4 & 5 Will. 4, c. 76, it was required (as it now is), that the mother's evidence should be corroborated by

hear the evidence on both

some other testimony. The following are among the more recent cases on the subject of filiation and maintenance in bastardy:-Queen v. Shipperbottom, 10 Q. B. 514; Queen v. Whittles, 13 Q. B. 248; Queen v. Justices of Leicestershire, 15 Q. B. 88; Queen v. Justices of Cheshire, 3 D. & L. 337; Queen v. Rose, ibid. 359; Queen v. Justices of Flintshire, ibid. 537; Queen v. Lowe, ibid. 737 ; Queen v. Robinson, 6 D. & L. 295; Queen v. Justices of Huntingdonshire, 1 L. M. & P. 78; Ex parte Jones, ibid. 357; Queen v. Green, &c., 2 L. M. & P. 130; Queen v. Pilkington, 2 Ell. & Bl. 546; Kendall v. Wilkinson, 4 Ell. & Bl. 680.

(1) In cases arising within the metropolitan police district, a single magistrate may act. 8 & 9 Vict. c. 10, s. 9.

sides; and if the evidence of the mother be corroborated in some material particular by other testimony, to the satisfaction of the justices, they may adjudge the man to be the putative father of such bastard child; and may also (if they see fit under the circumstances) make an order on such putative father for the payment to the mother (or to some other person to be appointed for the custody of the child in the case of her death, insanity, imprisonment, or transportation,) of a weekly sum of money for its maintenance; which order shall be in force until the child attain the age of thirteen, or die, or the mother be married. The party charged, however, is entitled to appeal from this order to the justices at quarter sessions, upon entering into recognizance to try the appeal and pay such costs as shall be adjudged thereon; and, before the latter jurisdiction, the case is then to be tried de novo, in the manner already stated in regard to the proceedings before the justices in petty session.

Though maintenance is thus provided for illegitimate children, they labour, on the other hand, under several incapacities and disadvantages, all founded on the general doctrine that a bastard is, for legal purposes, filius nullius, or, as it is sometimes expressed, filius populi (m). He is therefore not entitled to the name either of his reputed father or mother (n), though he may acquire for himself a surname by reputation; nor can he take property by the mere description of child of his reputed parent, until he has acquired the reputation of standing in that relation to him (o). So, with respect to the acquisition of property jure sanguinis, he is in a different position from othersfor he can neither be heir to any one, nor have an heir, the issue of his own body excepted-because being nullius filius, he has no ancestor from whom inheritable blood can be derived, and no collateral relations. If therefore he purchase land, though he may take in fee, so far as the (0) Wilkinson v. Adam, 1 Ves. & B. 452.

(m) Fortesc. de Leg. c. 4. (n) Co. Litt. 3 b.

power of alienation in fee to others is concerned, it is not, while it remains in his own seisin, a fee in the sense of being descendible to heirs generally, but its descent is confined to the heirs of his own body (p). And if he die seised of such estate without having devised it, and without lawful issue, it will escheat to the crown, or other lord of the fee (q). And upon the same principle, he cannot claim any share of personal estate under the statute of distribution, as next of kin to a party dying intestate; and on the other hand, if he himself die intestate, and without wife or lawful issue, the crown is entitled to the administration of his personal estate (r). But the royal claim to the real or personal estate of a bastard under such circumstances is not strictly enforced; and upon a proper petition, the crown's right will in general be transferred to the nearest member of his family (s). There are some other points, also, as to which a bastard is peculiarly circumstanced. Thus he does not follow (as legitimate children do) his father's place of parochial settlement under the laws relating to the poor, but his primary settlement is in the parish where he was born (t). Again, to authorize his marriage under twenty-one, the consent of his father or mother is not required, and is of no avail (u); but a guardian may be appointed by the Court of Chancery for the purpose, or a licence may be granted upon oath made that there is no person authorized to give consent (x). And to this we may add, that though in general

(p) Ld. Raym. 1152; 1 Prest. Est. 468.

(9) Vide sup. vol. 1. p. 435.

(r) Megit v. Johnson, Doug. 542; Toller, Ex. 107. Vide 47 Geo. 3, st. 2, c. 24, enlarging the powers of the crown to abandon its rights in the case of escheated estates.

(s) Megit v. Johnson, ubi sup.; Toller, Ex. 107.

(1) Hard's case, Salk. 427. But VOL. II.

if born since 11th January, 1834 (the date of the Poor Law Amendment Act, 4 & 5 Will. 4, c. 76), such bastard child has and follows the settlement of its mother till it attains the age of sixteen, or acquires a settlement in its own right (sect. 71). (u) Priestley v. Hughes, 11 East, 1. (x) 4 Geo. 4, c. 76, s. 14; 6 & 7 Will. 4, c. 85, s. 12.

X

a father may by deed or will appoint a guardian for his infant child, in the event of his decease, he has no such privilege if the child be illegitimate (y). The laws relative to incest apply to a bastard, with equal force as to others, the principle of his being nullius filius having no effect in that particular (z). And it may be stated generally, that, except in the several points above enumerated, the legal position of a bastard is the same with that of another man. A bastard too is capable, by the transcendent power of an act of parliament, of being made legitimate to all purposes, even that of inheriting land, [as was done in the case of John of Gaunt's bastard children, by a statute of Richard the second.]

(y) Vide post, p. 317.

(z) 3 Salk. 66; 1 Ld. Raym. 68.

CHAPTER IV.

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,] the guardian being always either the parent of the ward, or (at least) in loco parentis, and the ward being always an infant or person under age, and consequently standing in need of protection. In examining this subject we shall take occasion to consider, first, the condition of an infant (or minor), for the sake of whom the relation itself is established; next, the different species of guardianship recognized in the law of England; and, lastly, the rights and duties of guardians in general..

I. As to infancy or minority; by which we mean, the period of life which precedes the attainment of the age of legal capacity. Though that age is in general fixed by law at twenty-one, it arrives, for some purposes, much earlier. [In criminal cases, a person of the age of fourteen years may be capitally punished for any capital offence (a), but under the age of seven he cannot. The period between seven and fourteen is subject to much uncertainty, for the infant shall, generally speaking, be judged primâ facie innocent; yet if he were 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 or death, though he hath not attained to years of puberty

(a) 1 Hale, P. C. 28.