Ordinary Cer. tificate conclusive. Shall be void in Law and of none Effect.] Before this act, bastards had a way of tricking themselves (as it were) into legitimacy. For they used to bring feigned articles, and suborned witnesses before the bishop to prove their legitimation, and then got the certificate returned of record; and after that, their legitimation could never be contested. For being returned of record, as a point adjudged by its proper judges, and remaining among the memorials of the court, all persons were concluded by it. And this created great inconveniences; for the evidences of the contrary parties concerned were never heard at the trial, and yet their interest was concluded. And to remedy these inconveniences this act was made. 4. The bishop's certificate, made in due form of law, shall not be gainsayed; but credit shall be given to the same, so as the whole world shall be bound and estopped thereby (ƒ). The law on this point seems to be, that if a man be certified a bastard, he is concluded against all the world, even although he were a stranger to the suit. But if he be certified mulier in a suit between him and J. S., this shall not bind strangers; for a man may be mulier by the spiritual law, which holds that subsequens matrimonium tollit peccatum præcedens, and yet bastard by our law (g). Though Brook under his title says, that the ordinary in this case ought to certify according to the common law, and not according to the law of the church (h). Another reason for the difference is, that bastard by the church law must be bastard by the common law; but legitimacy and mulierty are different inquiries; for a man is mulier if born in lawful wedlock, but may notwithstanding be proved illegitimate by proof of non-access or impotency. But a verdict of a jury finding a man bastard, binds only the parties who are privy to it (i). [But general bastardy may be tried by the country when it is not directly in issue, or if it be alleged in a dead person, or a stranger to the action, or in an infant plaintiff or defendant, or if pleaded in abatement, or as a justification for slandering plaintiff with the name of bastard (k). Among the cases adjudged in James I.'s time in the king's courts in Ireland, and reported by Sir John Davies, attorney-general in that kingdom, is one decided in the 9th year of that monarch, entitled "En le Court de Castle Chamber. Le course del Trial de Legitimation et Bastardy" (1), in which the origin and limits of the power of the spiritual court in this matter are most learnedly developed.-ED.] (f) God. 489. (g) 1 Roll. Ab. 362; Vin. Ab. Bastard (M.); 6 Rep. 65. (h) See also supra, i. 8. (i) 1 Roll. Ab. 362. (k) [2 H. Black. 145; Comyn's Digest, tit. Bastard, D. 2.] ([Davies' Reports, p. 51.] after the Pa 5. The spiritual court cannot give sentence to annul a mar- Bastardizing riage after the death of the parties; because sentence is given there only pro salute anima, which cannot be after their death; and therefore the sentence in such case is only to disinherit the issue, which they cannot do; for by such means any one might be disinherited (m). III. Consequences of Bastardy. 1. A bastard is quasi nullius filius, and can have no name Name. of reputation as soon as he is born (n). 2. But after he hath gotten a name by reputation, he may Inheritance. purchase by his reputed or known name, to him and his heirs; although he can have no heirs but of his body (o). It was ruled that George Shelly acquired, at the age of six years, a name by reputation as the son of George Shelly (p). If the issue of a bastard purchaseth land, and dieth without issue, though the land cannot descend to any heir of the part of the father, yet to the heir of the part of the mother it may; for the heirs of the part of the mother make not any conveyance by the bastard (q). If a bastard dieth intestate, without wife or issue, the king is entitled to the personalty; and the ordinary of course grants administration to the patentee or grantee of the crown (r). His land escheats to the lord (s). A bastard is terminus a quo, having no relation as to civil purposes; but this does not hold as to moral purposes, for he cannot marry his mother or bastard sister (t). And if he marries under age by licence, he must have the consent of his putative parents or guardian, pursuant to 26 Geo. 2, c. 33, s. 11(n). The rule that a bastard was not to be admitted into holy orders, and might be refused by the bishop if presented to a church, seems to be now obsolete (x). But equity will not supply a surrender of a copyhold to a natural, as it will to a legitimate child (y). Nor is the consideration of natural affection in a covenant sufficient to raise an use to a bastard, if the estate remain in the father, though an use may be declared to a bastard in esse if the estate be transferred to a third person (z). And an illegitimate child cannot claim a share under a devise to children generally, though the will be strong in his favour by implication (a). And it was so held where the tes (m) 1 Roll's Abr. 360; 1 Salk. 120. (n) 1 Inst. 3. (0) Ibid. (p) 1 Bac. Abr. 109. (q) Vin. Bastard, p. 6. (t) 3 Salk. 66, 67. (u) 1 Term Rep. 96. (x) 1 Bl. Com. by Christian, 459. Custody of fant. tator knew the state of the family, and that there were no legitimate children (b). [The mother of an infant illegitimate child is entitled to the custody of the child in preference to the father, though from his circumstances he may be better able to educate it (c): and if the putative father obtain possession of the child from the mother by fraud, the Court of King's Bench will order it to be restored to the mother (d), and it will grant a habeas corpus to bring up the body of a bastard child within the age of nurture, for the purpose of restoring it to its mother, from whom it was fraudulently and forcibly taken, and this without prejudice to the question of guardianship, which belongs to the Lord Chancellor (e), but justices cannot order an illegitimate child to be given to its mother (f). This question was discussed by Lord Stowell in the case of Horner v. Horner, in 1799. ["In the case of illegitimate minors, during the lives of their parents, the constant course has been for guardians to be appointed by the Court of Chancery, whose consent has been supposed to render their marriage valid. Many marriages exist in this country which have taken place in this manner, and they are all void, if this is not the true construction of the act; because they have been had without that consent of the parents, which the act otherwise would make necessary to sustain their validity." Now, on all general principles, it is perfectly clear that the only father, whom the law of the country has armed with the patria potestas, is the father' Quem nuptiæ demonstrant.' He only is the guardian of his child by law, and he only may delegate that trust to another at his death. ["The only cases in which the natural parent is acknowledged, are cases to his disadvantage, in cases of civil concern, or by way of restriction, in such as are of a moral nature. He is compelled by later statutes to maintain the child, for the relief of the parish, to ease it of the charge to which it is primarily liable, because, before these statutes, the parish alone was bound to maintain it. It is laid down in 2 Bulstrode, 344, and Bott, 460, that before the statute of the 18 Eliz. c. 3, the parish where the child was born must maintain it till it gained a settlement. The custody of the child therefore must have been at that time in the hands of the parish; he was filius populi, and there was no ground upon which the possession of the child could have been assumed by the father. Even since the enactment of that statute, it continued for some (b) 6 Ves. 43. (c) [Ex parte Knee, 1 N. R. 148.] (d) [Rex v. Soper, 5 T. R. 278; S.P. Rex v. Moseley, 5 East, 224, n.] (e) [Rer v. Hopkins, 7 East, 579; 3 Smith, 577. Cf. also 4 Taunt. 498; 1 Bott's P. L. 465.] (f) [Rex v. Felton, 1 Bott's P. L. 478.] time a matter of no inconsiderable doubt, whether the parent had a right to take the child out of the possession of the parish. In the case of Newland v. Osman (g), there was the opinion of three judges of the court that the father, under such circumstances, agreeing to maintain the child, had a right to the possession; and they referred to Saunders's Reports (h). But I find that Mr. Justice Foster says,' I am not so clear in these points. I think the case of educating bastard children is not to be considered as a burden to the parish, but as a trust; and that it should not be easy for fathers to take them out of such care and custody, the statute is express that the justices shall order the father to contribute to the parish for the maintenance of the child. Though it is not to be supposed that fathers will destroy their bastard children, yet they may look upon them as a burden and a shame, and therefore either neglect them or put them in improper hands. The resolutions and orders of justices of the peace have been grounded upon this, not for requiring security till the child come to a certain age, but because the order extended the age too far; therefore I am not so clear. The case in Saunders was only his own opinion.' Certainly if so eminent a person expressed himself in such a way, it is enough to warrant a conclusion that it continued to be a matter of some doubt, long after the passing of that statute, whether the natural father had a right to the custody and possession of his child against the parish. "Though this may now be settled, still he can appoint no guardian; and I presume that he cannot legally take the child out of the custody of the mother, in which it is deposited by nature at its birth; though I speak with all necessary caution on a point belonging to the learning of another profession. All this is sufficient to shew that he has the principal burden of maintenance, with a very small degree (if any) of parental authority (i)."-ED.] IV. Punishment of the Mother and reputed Father of a Bastard Child. [ 132 ] 1. Besides the punishments to be inflicted by the ecclesias- Corporal and tical jurisdiction (j), it is enacted by the 18 Eliz. c. 3, and Punishments. Pecuniary 3 Car. 1, c. 4, s. 15, concerning bastards begotten and born out of lawful matrimony (an offence against God's law or man's law), "that the justices of the peace shall take order as well for the punishment of the mother and reputed father, as for relief of the parish, by charging such mother or reputed father with the payment of money weekly or other sustentation, for the relief of such child, as to them shall seem meet." And by the 7 Jac. c. 4, "Every lewd woman which shall have any bastard which may be chargeable to the parish, the justices of the peace shall commit such woman to the house of [133] correction, to be punished and set on work during the term of one whole year; and if she eftsoons offend again, then to be committed to the said house of correction as aforesaid, and there to remain until she can put in good sureties for her good behaviour, not to offend so again." And by the 13 & 14 Car. 2, c. 12, s. 19, "Whereas the putative fathers and lewd mothers of bastard children run away out of the parish, and sometimes out of the county, and leave the said bastard children upon the charge of the parish where they are born, although such putative father and mother have estates sufficient to discharge such parish; it is enacted that it shall be lawful for the churchwardens and overseers of the poor to take and seize so much of the goods, and receive so much of the annual rents or profits of the lands of such putative father or lewd mother, as shall be ordered by two justices of the peace, towards the discharge of the parish, to be confirmed at the sessions, for the bringing up and providing for such bastard child; and thereupon it shall be lawful for the sessions to make an order for the churchwardens and overseers of the poor of such parish, to dispose of the goods by sale or otherwise, or so much of them for the purposes aforesaid as the court shall think fit, and to receive the rents and profits, or so much of them as shall be ordered by the sessions as aforesaid, of his or her lands." [The 6 Geo. 2, c. 31, was the next statute on this subject. Under these statutes it was held that the custody of the child belonged to the mother, and not to the father, though an order of filiation had been made on him (k); and though from his circumstances he might have been better able to educate it (7). And the Court of King's Bench granted a writ of habeas corpus to bring up the body of a bastard child within the age of nurture, for the purpose of restoring it to the cus both these distinct and several juris- in the ecclesiastical courts; but they may build a sentence of deprivation upon a conviction at law; Cro. Jac. 430; and are bound by it; Hob. 121. (k) 5 T. Rep. 278. (2) 1 Bos. & Pul. N. R. 148. |