_Ff._ 25. _tit._ 4. _per tot._]

[Footnote p: Co. Litt. 8.]

[Footnote q: _Cod._ 5. 9. 2.]

[Footnote r: But the year was then only _ten_ months. Ovid. Fast. I.
27.]

[Footnote s: _Sit omnis vidua sine marito duodecim menses._ _LL.
Ethelr._ _A.D._ 1008. _LL. Canut._ _c._ 71.]

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 bastard[t].
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, _praesumitur pro legitimatione_[w]. In a divorce _a
mensa et thoro_, if the wife breeds children, they 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 bastard[y]. Likewise, in
case of divorce in the spiritual court _a vinculo matrimonii_, all the
issue born during the coverture are bastards[z]; because such divorce
is always upon some cause, that rendered the marriage unlawful and
null from the beginning.

[Footnote t: Co. Litt. 244.]

[Footnote u: Salk. 123. 3 P.W. 276. Stra. 925.]

[Footnote w: 5 Rep. 98.]

[Footnote x: Salk. 123.]

[Footnote y: Co. Litt. 244.]

[Footnote z: _Ibid._ 235.]

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, howe