ceeding 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 rigour 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) 18 and, if she be, to keep her under proper restraint, till delivered; which is entirely conformable to the practice of the civil law: (0) but if the widow be upon due examination found not pregnant, the presumpive 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 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; [457] in this case he is said to be more than ordinary legitimate; for he may, when he arrives to years of discretion, choose which of the fathers he pleases. (4) To prevent this, among other inconveniences, the civil law ordained that no widow should marry infra annum luctus, (r) a rule which obtained so early as the reign of Augustus, (s) 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. (t) 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 bastards. (v) 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 praesumiter pro legitimatione. (w)' In a divorce a mensa et thoro, if the wife breeds children they 19 m Stiernhook de jure Gothor. I. S. c. 5. o Ff. 25. tit. 4. per tot. q Co. Litt. 8. s But the year was then only ten t Sit omnis vidua sine marito duodecim menses. LL. Ethelr. A. D. 1008. LL. Canut. c. 71. u Salk. 123. 3 P. W. 276. Stra. 925. w 5 Rep. 98. difference of one, two, or three weeks. 2. A child may be born alive, at any time from three months; but we see none born with powers of coming to manhood, or of being reared, before seven calendar months, or near that time; at six months it cannot be. 3. I have known a woman bear a living child, in a perfectly natural way, fourteen days later than nine calendar months; and believe two women to have been delivered of a child alive, in a natural way, above ten calendar months from the hour of conception. See further Runington on Ejectments, 1 ed. In a case where the wife was a lewd woman, and she was delivered of a child forty weeks and ten days after the death of the husband, it was held legitimate. Hale's MSS. Stark on Evid. part. 4. 221. n. a. So where the child was born forty weeks and eleven days after the death of the first husband. 18 Rich. II. Hale's MSS. Cro. Jac. 541. Godb. 281. See also 2 Stra. 925. Roll. Ab. 356. Chitty. (18) Where an estate was devised to a male child which might be born within forty weeks after the death of the testator of a married woman, whose husband had been long abroad, and if no such child, the estate was devised over, this writ de ventre inspiciendo was awarded against the woman on the petition of the subsequent devisee. 4 Bro. 90. See the proceedings under this writ. 2 P. Wms. 591. Christian. (19) Formerly, when the husband was living within the kingdom, access was presumed, unless strict proof was adduced that the husband and wife were all the time living at a distance from each other; but now, the legitimacy or illegitimacy of the child of a married woman, living in a notorious state of adultery, under all the circumstances, is a question for a jury to deternine. 4T. R. $56. and 251. And when the husband in the course of nature cannot have been 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 bastards. (y) Likewise in case of di vorce in the spiritual court a vinculo matrimonii. all the issue born [458] during the coverture are bastards; (2) because such divorce is always upon some cause, that rendered the marriage unlawful and null from the beginning, 20 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 be justly esteemed. The method in which the English law provides maintenance for them is as follows. (c) 21 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 23 z Co. Litt. 235. b Nov. 89. c. 15. 3 Car. I. c. 4. 13 & 14 Car. II. c. 12. 6 Geo. II. c. 31. the father of his wife's child, the child is by law considered a bastard; and lord Ellenborough said, that circumstances which shew a natural impossibility that the husband could be the father of the child of which the wife is delivered whether arising from his being under the age of puberty, or from his labouring under disability occasioned by natural infirmity, or from the length of time elapsed since his death, are grounds on which the illegitimacy of the child may be founded. And, therefore, where it was proved that the husband had only access one fortnight before the birth of a child, it was held to be illegitimate; but the court said that the case where the parents have married so recently before the birth of the child that it could not have been begotten in wedlock, it stands upon its own peculiar ground, the child in that case is legitimated by the recognition of the husband, 8 East, 193.; and as to proof of bastardy, see Stark. on Evid. part 4. 217 to 225. Chitty. (20) See ante 446. (21) At common law the putative father is not liable for the child's support, unless there ex· ists an express or implied promise to be so liable; and a contract may be implied from small circumstances of interference in the care of the child. 5 Esp. R. 131. If the father of a bastard has consented to pay an annual sum for its support, he must continue to do so, or provide for the child at his own expense, or give the most distinct notice of his inten. tion to discontinue the payment of such annual sum. 1 Carrington Rep. 268. (22) Or he shall be discharged if the justices at the sessions, upon hearing all the circumstances of the case, shall be of opinion that he is not the father of the child. It may be as well here to observe, that if the putative father of a bastard pay before its birth a fixed sum to the parish officers, to discharge him of all future liability for the maintenance of the child; after the birth and death of the child he may recover back such part of the money as remains unexpended, as had been received to his use, 1 Brod. & B. 1. 3 Moore, 211. S C. 1 Camp. 398. and 564.; and the parties receiving the money cannot discharge themselves by paying it over to their successors in office. 1 Camp. 396. By the 49 Geo. III. c. 68. 8. 1. the charges and costs attending both the apprehending the father, and the order of liation, are to be borne by the father, not exceeding the amount of 101. But these charges and costs are subject to the discretion and allowance of the magistrates, or the court of quarter sessions m king the order; and the payment of these costs may be enforced cording to the provisions of the 18 Eliz. c. 3. Id. sect 4. 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 The order must be made by two justices, but it is good if made by more. 2 Salk. 477. The sessions have an original power to make an order, Cro. Car. 470. Doug 632. and it seems that justices may at the same sessions quash upon appeal an order of bastardy made by two justices, and also make an original one upon another person for the same child, 1 Mod. 20. 1 Bulst. 255; but the sessions cannot order the father to give security for the performance of that order, 6 T. R. 147.; but if in such case the order be in other respects correct, the court will only quash that which is incorrect. Id. The order may be made at any time after the birth of the child. 1 Sess. Cas. 77. 1 Bott. 473. and see 6 Geo. II. c. 31. s. 3. No order can be made unless the child be born alive. 14 East, 277. It does not seem absolutely necessary that the complaint should be made by the parish officers. 1 Barnard, 261. 6 T. R. 148. 13 East, 55. The reputed father must be summoned to appear. 1 Sess. Ca. 179. A summons by a third justice will do. 2 Sess. Ca. 192. Ca. T. Hardw. 112. It is not necessary that the putative father be present at the examination. 1 Bott, 482. Burn J. tit. Bastards, 24 ed. 318, 9. The order cannot be made upon an affidavit of the facts, it must be upon viva voce examination of witnesses. Comb. 103. The examination of the woman must be by two justices. 2 Salk. 478. 2 Bla. Rep. 1017. The examination of a pregnant woman, taken by a justice under the 6 Geo. II. c. 31., is evi. dence sufficient to authorize the sessions to make an order of filiation on the putative father, though the woman be dead. 5 T. R. 373 3 East, 58. If the woman is dead, her examination, under the 6 Geo. II. c. 31. is sufficient. 5 T. R. 373. The order may be made on the mother. 3 Burr. 1679.; or upon the father as well as the mother. Comb. 232. The sum ordered to be paid must be reasonable; and in some cases the court of K. B. seem to have quashed an order, where the sum thereby required to be paid was either unreasonably small, or excessively large. 1 Sid. 363. 1 Vent. 210. The justices have power to order the parent to pay so far as is necessary to indemnify the parish for the expense of maintaining the bastard, but no farther; the payment therefore should be limited in the order to such time as the child shall be a burden on the parish. See 2 Nol. P. L. 4 ed. 305. 2 Salk. 475. Comb. 69. 13 East, 57. a. A form of the order itself will be found in Bura's J. tit. Bastards, 24. ed. 320. together with a variety of decisions as to such form; and see also 2 Nol. P. L. 4 ed. 298 to 309. As to the mode of enforcing the order, by the 18 Eliz. c. 3. sect. 2. if the party refuse to obey it, he may be committed to gaol, excepting upon security being given to perform it, or abide the order made at the next sessions. The security here mentioned means a recognizance. By the 49 Geo. III. c. 68. s. 3. if the party do not obey the order made by the quarter sessions, or made by two justices, and confirmed by the sessions, or where it has not been appealed against, a justice, where the offender shall be, ou complaint made by the overseer, and on proof on oath of the order, and of the money being unpaid, and of a demand and refusal to pay, or of the offender having avoided such demand, shall issue his warrant of apprehension; and if he shall still neglect to pay, without sufficient cause, the justice is to commit him to gaol, to be there kept at hard labour three months, unless he shall in the mean time pay the money due; and the like proceedings may be adopted on every subsequent breach of such order. Unless the party make default, the justices have no power to commit him, or to require sureties for the performance of the order, or for appearing at the sessions. 2 Lord Ray. 858. 3 Salk. 66. Where an order of filiation is made, and the time for the appeal is past, it cannot be enforced by commitment under the 18 Eliz. c. 3. for refusal to comply with it; but the magistrate must proceed under the 49 Geo. III. c. 68. s. 3. by commitment for three months, this being the third case mentioned in 49 Geo. III. c. 68. s. 3. viz. "an order against which no appeal has been made." 1 B. & C. 87. Under this act the magistrate cannot commit the offender until he shall pay a sum due for the maintenance of the child, and the legal accustomed fees, or until he shall be otherwise delivered by due course of law. 3 B. & A. 493. If an order is removed into the king's bench, and is confirmed there, an attachment lies for the nonperformance of it; and, therefore, that court will not take security of the party for the performance: but if the original order had been at the sessions not removed into the king's bench, the court would take security of the party to appear there. 2 Lord Raym. 858. 3 Salk. 66. Besides these methods of enforcing obedience to the order, the party disobeying it may be indicted at common law, 2 Burr. 799. 4 T. R. 205.; but the party should be first requested to comply with the order. 1 T. R. 316. The defendant has his election either to appeal against the order, or remove it into the court of K. B. by writ of certiorari to quash it. As to the appealing against an order of filiation and maintenance, by the 18 Eliz. c. 3. the reputed father may appeal to the next general sessions of the peace. This act does not in express terms give the right of appeal; but as the party may, by the act, by putting in sufficient surety 366 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. 33 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. 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; [459] for he can inherit nothing, being looked upon as the son of nobody; and sometimes called filius nullius, sometimes filius populi. (d) 21 d Fort. de LL. c. 40. personally to appear at such sessions, it has the operation to that effect. It will be observed, that this act does not give the parish any power of appeal. C. T. Hardw. 301. The 49 Geo. III. c. 68. s. 5. gives an appeal to any person aggrieved by the order of filiation, not originating in sessions, to the next sessions, on giving notice to the justices, or one of them, and to the overseers on whose behalf the order is made, or one of them, teu clear days before the quarter sessions, of the intention to appeal, and the cause and matter thereof; and entering into a recognizance within three days after such notice, before some justice for the county, with sufficient surety conditional to try such appeal, and abide the judgment and order of, and pay such costs as shall be awarded by the sessions, who are empowered to hear and determine the appeal, and give relief and costs to either party in their discretion; and by sec. 7. no appeal, without such notice, and entering into recognizance, shall be heard. The appeal cannot be entered at the quarter sessions, unless there be such notice and recognizance as is required by the 49 Geo. III., and a notice of recognizance intended for any adjourn ed sessions is insufficient. See 3 B. & C. 548. The ten days' notice of appeal required by the 49 Geo. III. c. 68. s. 5. are to be exclusively both of the day of serving the notice and the day of holding the sessions. 3 B. & A. 581. It should seem that the entering into the recognizance required by the 49 Geo. III. c. 68. s. 5. before the justices who make an order of bastardy, does not dispense with the necessity of giving such justices notice of appeal against the order, the statute requiring the party to give notice of bringing such appeal, "and of the cause and matter thereof;" but in such case parol notice of such appeal, and of the cause and matter thereof, would be sufficient. 4 B. & A. 626. and see 5 B. & A. 539. The notice of appeal must specify the cause and matter of appeal, and the objections in particular which the party charged intend to make to it. 1 B. & C. 279. 2 D. & R. 426. S. C. The right to appeal to the next general quarter sessions, means such sessions after the notice of the order, 3 Keb. 551. 2 Nol. P. L. 310, 1. See 3 T. R. 496.; and the sessions must be of that part of the county where the order was made, and not the sessions in any county at large. 1 Sid. 149. 2 Nol. P. L 310, 1. Although there is no appeal against the order at the sessions, yet it may be removed into the court of K. B. by certiorari. Cald. 172. In order to quash the order of maintenance, the reputed father must be personally present on the motion for that purpose. 2 Salk. 475. The respondents are to begin by endeavouring to support the order. 12 East, 50. It should seem the sessions may quash the defective part of the order, and affirm the remainder. Comb. 264. 307. Their order must be final, and either affirm or disallow that which is appealed against. 2 Bulst. 342.; and they cannot award costs to be taxed by the clerk of the peace. I Bott. 470 9 East. 15. 13 East, 57. The order, if it be either quashed or confirmed upon the merits on the appeal, is conclusive, 2 Lord Ray. 1423. 2 Stra. 716. Cro. Car. 350. ; but this is not so if the order is quashed for want of form. 5 Geo. II. c. 19. By statute (but not at common law, Cald. 129.) a punishment may be inflicted on the mother and reputed father. See 18 Eliz. c. 3. Under this act the justices may order a proper punishment of the parents, and also take an order for maintaining the child. See 3 Burr. 1679. 5 T. R. 156. Cald. 129. and by the 50 Geo. III. c. 51. s. 2. (which by sect. 1. repeals the 7 Jac. I. c. 4. s. 7. for the punishment of lewd women who have bastards), it is enacted, that two justices inay commit the mother to the house of correction for not exceeding twelve calendar months, nor less than six weeks; but the petty sessions may mitigate the sentence, id. sect. S.; and by sect. 4. no woman can be so committed, till she has been delivered one month. It does not seem legal that the child be committed with its mother. Dalt. c. 11. p. 34. Burn J. tit. Bastards, 24 ed. 334. As to parents murdering their bastard children, see post vol. 4. Chitty. (23) This is the provision made by the 13 & 14 Car. II. c. 12. s. 19. See 2 Lord Ray. 858. 3 Salk. 66. As to vagrants running away, and deserting their families, see the enactment of 5 Geo. IV. c. 83. ante 448. note. (24) But though he is considered filius nullius with respect to inheritances and successions, 25 Yet he may gain a surname by reputation, (e) 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. (ƒ) 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) 26 Bastards also born in any licensed hospital for pregnant women, are settled in the parishes to which the mothers belong. (i) 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. 27 A bastard was also, in strictness, in e Co. Litt. S. f Salk. 427. g Ibid. 121. h Stat. 17 Geo. II. c. 5. yet the law takes notice of his connexion with his natural parents for some other purposes, as it prohibits him from forming an incestuous union by marriage, Lord Raym. 68. Comb. 356.; and it has been decided, that if a bastard marries under age by licence, he must have the consent of bis putative father, or guardian, specially appointed; but see post 461. note (4). In Priestley v. Hughes, 11 East, 1. the chief justice and two of the judges certified that they were of opinion that all marriages, whether of legitimate or illegitimate persons, were within the provisions of the marriage-act, but that the consent of the natural mother to a marriage by licence of an illegitimate minor is not a sufficient consent to make a good and lawful marriage; Mr. Jus tice Grose was of opinion that the eleventh section of the act did not apply to illegitimate children, that it was casus omissus in the act, and that the marriage of an illegitimate minor was not affected by the statute, and that of consequence, either with or without the consent of the natural mother, it was good and lawful. See ante 437, note (19). (25) In an indictment for murder of a bastard child, it was held, that a bastard was improperly described by his mother's name, he not having gained that name by reputation. Russell & R. C. C. 358. (26) The 17 Geo. II. c. 5. was repealed by the 3 Geo. IV. c. 40. which is now expired; and the only act in force is the 11 Geo. IV. c. 84., but no provision to the above effect appears in it. (27) A bastard baving gotten a name by reputation, may purchase by his reputed or known name to him and his heirs, Co. Lit. 3. b. ; but this can only be to the heirs of his own body. A conveyance to a man who is a bastard, and his heirs, though his estate is in its descent confined to the issue of his body, yet gives him a fee simple, and confers an unlimited power of alienation; and any person deriving title from him or his heirs, may transmit the estate in perpetual succession. The law, however, so far adverts to the situation of a bastard, that a limitation over on failure of the heirs of the bastard, after a gift by will to him and his heirs, would convert the devise into an estate tail. 3 Bulst. 195. 1 Lord Ray. 1152. Bastards may take by gift or devise, provided they are sufficiently described, and have gained a name by reputation. I Ves. & B. 423. 1 Atk. 410. But the rule as to a bastard's taking by his name of reputation, must be understood as giving a capacity to take by that name merely as a description, not as a child by a claim of kindred; therefore a bastard cannot claim a share under a devise to children generally, though the will was strong in his favour by implication, 5 Ves. 530. and see 1 Ves. & B. 434. 469. 6 Ves. 43. 1 Maddox, 430. H. Chitty's Law of Descents, 28, 29.; nor is any illegitimate child entitled to immediate interest upon a legacy payable at a future time, when such legacy was given by its reputed father. 2 Roper on Leg. 2 ed. 199. A limitation cannot be to a bastard en ventre sa mere, for bastards cannot take till they gain a name by reputation. 1 Inst. 3. b. 6 Co. 68. 1 P. Wms. 529. 17 Ves. 528. 1 Mer. 151. 18 Ves. 288. H. Chitty's Law of Descents, 29, 30. Though a bastard may be a reputed son, yet he is not such a son for whom in cousin of blood an use can be raised. Dyer, 374. Yet on an estate otherwise effectually passed, an estate may be as well declared to a bastard being in esse, and sufficiently described, as to another person; but where the use will not arise but in consideration of blood, if derived through any but the pure channel of marriage, however near it may be, it will not prevail. Id. Co. Lit. 123. a. See 2 Fonb. on Eq. 5 ed. 124. If a bastard die seised of a real estate of inheritance, without having devised it, and without issue, the estate will escheat to the king, or other immediate lord of the fee. 3 Bulstr. 195. 1 Ld. Raym. 152. 1 Prest. Est 468, 9. post 2 vol. 249. 2 Cruise's Dig. 374. But as there might in many cases be much apparent hardship in the strict enforcement of this branch of the royal prerogative, it is usual in such cases to transfer the power of exercising it to some of the family, reserving to the crown a small proportion as a tenth of the value of both the real and personal |