[r] But the year was then only ten months. Ovid. Fast. I. 27.
[] 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[]; 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.
[t] Co. Litt. 244.
[] Salk. 123. 3 P.W. 276. Stra. 925.
[w] 5 Rep. 98.
[x] Salk. 123.
[y] Co. Litt. 244.
[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[], was neither consonant to nature, nor reason, however profligate and wicked the parents might justly be esteemed.