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his mother, the ravens of the valley shall pick it out, and the young eagles shall eat it." But if parents, through fondness or want of judgment, take off the restraints, and remove the barriers, which keep their children in due and salutary subjection to their authority, they may have cause to repent of their folly. If there happen to be no miscarriage, it is not owing to their own discretion, but to the grace of God working in their children's hearts. Children ought not to pry into their parents' infirmities and failings, but endeavour to conceal them, and suppress even the thought of them in their own hearts. Let them never forget, that when Noah "planted a vineyard, and drank of the wine, and was drunken; and he was uncovered within his tent: and Ham, the father of Canaan, saw the nakedness of his father, and told his two brethren without;" a curse was pronounced upon Ham, which has ever since apparently stuck to his descendants, the poor Africans, to this day. And our fathers' nakedness may be exposed by speaking of, or exposing their sins, weaknesses, or infirmities. And that children may the better discharge this part of their duty, as it is partly in the parents' power, so should it be their earnest endeavour to set them the best example, and not to offend any of these little ones. Our Saviour assures us "it were better that a millstone were hanged about a man's neck, and he were drowned in the depth of the sea," than that he should offend his children. By offence is here meant, the setting them a bad example. Because, as precept is ever of less importance than example, they are much more apt to follow a bad example than to be led and governed by a good precept.

II. We are next to consider the case of illegitimate children or bastards. And, 1. Who are illegitimate. 2. The legal duties of the parents towards a natural child. 3. The rights and incapacities attending

such children.

1. An illegitimate child, is one that is not only begotten, but born out of lawful matrimony. Against which God's law is express, "Thou shalt not commit adultery." The civil and canon law do not allow a child to remain illegitimate, if the parents afterwards intermarry. All children, therefore, who are born before matrimony, are illegitimate by the law of England. In Scotland, the subsequent intermarriage of the parents, provided neither of the parties have made an intermediate marriage, renders the children previously born legitimate, and capable of inheriting. But in England it is only those born in lawful marriage that are legitimate, those born before, even although the parents do afterwards marry, are illegiti mate. A recent case in point is the Berkeley peerage, the present earl being the fifth son of the same parents.

* Matt. xviii

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2. The duty of parents to their natural children, by law, is principally that of maintenance. Nevertheless, the duty of education and religious instruction, is by no means to be neglected.

3. I proceed next to the rights and incapacities which appertain to an illegitimate child. The rights are very few, being only such as he can acquire by his own genius and industry. He cannot inherit anything, being looked upon as the son of nobody, and is in law sometimes called filius nullius, and sometimes filius populi. Yet he may gain a sirname by reputation, though he has none by inheritance, and ought to take his mother's name. All legitimate children have their primary settlement in their father's parish, but a natural child in the parish where he was born, for he has in law no father. Natural children, born in any licensed hospital for pregnant women, are settled in the parishes to which the mothers belong. The incapacity of an illegitimate child consists principally in this, that he cannot be any one's heir, neither can he have any heirs, but only of his own body. Being nobody's son, nullius filius, he is therefore of kin to nobody, and has no ancestor from whom any inheritable blood can be derived. The king's transcendent power can make a natural child legitimate and capable of inheriting, by an act of parliament, as has been frequently done. In former times, the unmarried clergy of the Romish church procured letters of legitimation for their bastards, which by courtesy were called nephews and nieces, in order that they might inherit their private property. Bastardy incapacitates a man from taking holy orders.*

III. GUARDIAN AND WARD.-The next general private relation remaining to be discussed, is that of guardian and ward. A relationship which bears a strong resemblance to the last, and indeed is plainly derived out of it. The guardian being only a temporary parent, that is, for so long a time as the ward is an infant, or under age. In examining this species of relationship, I shall first consider the different kinds of guardians. How they are appointed, and their power and duty. Next the different ages of persons, as defined by the law. And lastly, the privileges and disabilities of an infant, or one under age and subject to guardianship.

Of the different species of guardians, the first are such by nature; viz. the father, and in some peculiar cases, the mother of the child. If an estate be left to an infant, the father, by common law, is the guardian, and must account to his child for the profits. And with regard to daughters, it seems that the father might by deed or will assign a guardian to any female child under the age of sixteen; and if none be so assigned, the mother shall in this case be the guardian. There are also guardians for nurture, which of course, are the father or mother, till the infant

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attains the age of fourteen years. In default of father or mother, the ordinary usually assigns some discreet person to take care of the infant's personal estate, and provide for his maintenance and education. Next are guardians in soccage, who are also called guardians by the common law. These take place only when the minor is entitled to some estate in land. and then, by the common law, the guardianship devolves on his next of kin to whom the inheritance cannot possibly descend. Such as in the case of the estate descending from the father, then his uncle by the mother's side, who cannot possibly inherit this estate, shall be the guardian. Because the law judges it improper to trust the person of an infant in his hands who may by possibility become his heir, that there may be no temptation, nor even suspicion of the kind, for him to abuse his trust. These guardians in soccage, like those for nurture, continue only till the minor is fourteen years of age. For then in both cases he is presumed to have discretion, so far at least as to choose his own guardian. This he may do, unless one has been appointed by his father till he has attained the age of twenty-one. These are called guardians by statute, 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 same, pro tempore, as that of a father and child, and therefore need not be here repeated. But this only may be added, that the guardian, when the ward comes of age, is bound to render him an account of every transaction entered into on his behalf, and must answer for all the losses incurred by wilful default or negligence. In order, therefore, to prevent disagreeable contests with young gentlemen, it has become a practice for many guardians, especially of large estates, to indemnify themselves, by applying to the court of chancery, acting under its direction, and accounting annually before the officers of that court. For by the right conferred on him by the crown, the lord chancellor is the general and supreme guardian of all infants, as well as idiots and lunatics. That is, of all such persons as have not sufficient discretion to manage their own concerns. In case, therefore, any guardian abuses his trust, the court will check and punish him; nay, will sometimes proceed to his removal, and will appoint another

in his stead.

I will next consider the ward or person within age, for whose assistance and support these guardians are constituted by law, or who it is that is said to be within age. The ages of males and females are different, for

different purposes. A male at twelve years old may take the oath of allegiance. At fourteen he is at the years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and if his discretion be actually proved, may make his testament of his personal

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estate. At seventeen he may be an executor. At twenty-one he is at his own disposal, and may alien his lands, goods, and chattels. A female also at seven years, may be given in marriage. At nine she is entitled to dower. At twelve she is at years of maturity, and therefore may consent or disagree to marriage, and if proved to have sufficient discretion, may bequeath her personal estate. At fourteen she is at years of legal discretion, and may choose a guardian. At seventeen she may be an executrix. And at twenty-one she may dispose of herself and 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 styled in law.

Infants have different privileges, and various disabilities. But their very disabilities are privileges, in order to secure them from hurting themselves by their own improvident acts. An infant cannot be sued but under the protection, and joining the name of his guardian; for he is to defend him against all attacks, as well by law as otherwise. But he may sue either by his guardian, or prochein amy, his next friend who is not his guardian. This prochien amy may be any person who will undertake the infant's cause; and it frequently happens, that an infant, by his prochien amy, institutes a suit in equity against his fraudulent guardian. In criminal cases, an infant of the age of fourteen years may be capitally punished for any capital offence; 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 prima facia, innocent. Yet if he was 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 of death, although he may not have attained to years of puberty or discretion. Sir Matthew Hale gives two instances: one of a girl of thirteen, who was burned for killing her mistress. Another of a boy still younger, that killed his companion and hid himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil. In such cases the maxim of the law is, that malitia supplet ætatem. So in much more modern times, a boy who was ten years old, and guilty of a heinous murder, was held a proper subject for capital punishment, by the opinion of the judges. Two or three years ago, a boy who murdered another boy in a coppice near Chatham, was hanged for the murder, though he was under fourteen years.

With regard to estates and civil property, an infant has many privileges. This may be said in general, that an infant shall lose nothing by nonclaim, or neglect of demanding his rights, nor shall any other laches or negligence be imputed to an infant, except in some very particular cases.

It is true in general, that an infant can neither aliene his lands, nor do

any legal act, nor make a deed, nor indeed any manner of contract that will bind him. As legal trustees, or mortgagees, they are enabled to convey, under the direction of the court of chancery or exchequer, or other court of equity, the estate they hold in trust or mortgage, to such person as the court shall appoint. It is also generally true, that an infant can do no legal act. Yet, an infant who has an advowson or patronage of a church, may present to the benefice when it becomes void. For the law in this case dispenses with one rule, in order to maintain others of far greater consequence. It permits an infant also to purchase lands, but his purchase is incomplete. When he comes to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason, and so may his heirs after him, if he dies without having completed his agreement. He may, in some cases, bind himself apprentice, by deed indented, or indentures, for seven years; and he may by deed or will, appoint a guardian to his children, if he has any. Lastly, it is generally true, that an infant can make no other contract that will bind him. Yet he may bind himself to pay for necessary meat, drink, apparel, physic, and such other necessaries. Likewise for his good teaching and instruction, whereby he may profit himself afterwards.*

IV. MASTER AND SERVANT.-In discussing the relation of master and servant, I shall first consider the several sorts of servants, and how this relation is created and destroyed; secondly, the effect of this relation with regard to the parties themselves; and lastly, its effect with regard to other persons.

I. The first description of servants which are acknowledged by our laws, are menial servants, so called from being intra mænia, or domestics. The contract between them and their masters arises from hiring. If the hiring be general, without any particular time limited, the law construes it to be hiring for a year. Upon a principle of natural equity, that the servant shall serve, and the master maintain him, throughout all the revolutions of the respective seasons; as well when there is work to be done, as when there is not. But the contract may be made for any larger or smaller term.

Another species of servants are called apprentices, from apprendre, to learn. They are usually bound for a term of years, by deed indented, or indentures, to serve their masters, and be maintained and instructed by them. This is usually done to persons of trade, in order to learn their art or mystery; but it may be done to husbandmen, nay to gentlemen and others. And children of poor persons may be apprenticed out by the overseers, with consent of two justices, till twenty-one years of age, to

* Blackstone's Commentaries.

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