if he dies without lineal or collateral relations, or without a surviving wife.1 1

This relaxation, in the laws of so many of the states, of the severity of the common law, rests upon the principle, that the relation of parent and child, which exists in this unhappy case, in all its native and binding force, ought to produce the ordinary legal consequences of that consanguinity. The ordinance of Justinian, to a certain

extent, and with exceptions, allowed a bastard to *214 inherit to his mother ;b and, in *several cases in

the English law, the obligations of consanguinity between the mother and her illegitimate offspring, have been recognized. The rule that a bastard is nulliusfilius, applies only to the case of inheritances.0 It has been held to be unlaw ful for him to marry within the levitical degrees,"1 and a bastard has been considered to be within the marriage act of 26 Geo. II., which required the consent of the father, guardian or mother to the validity of the marriage of a minor.* He also takes and follows the

* Civil Code of Louisiana, act 220, 912, 913, 914. By a statute of Louisiana, in 1831, white fathers or mothers may legitimate their natural children by act made before a notary and two witnesses, provided they be not coloured children; and free people of colour may legitimate their coloured offspring, but the natural children must be the issue of parents who might have lawfully contracted marriage, and the parents must have no ascendants or legitimate descendants. A putative marriage is one contracted in good faith on the part, at least, of one of the parties, and in ignorance of any lawful impediment, and in some parts of Europe the children of such a connection, are held to be legitimate. Burge's Com. on Colonial and Foreign Laws, vol. i. p. 152.

b Code, lib. 6. 57. 5.

» Bnller, J., 1 Term Rep. 101. Bow v. Nottington, 1 JV. H. Rep. 260. s Haines v. Jeffel, 1 Lord Raym. 68.

* King v. Inhabitants of Hobuett, 1 Term Rep. 96. Horner v. Liddiard, 1 Hagg. Consist. Rep. 337. But the consent of the natural parents of illegitimate minors is not sufficient, and there must be a guardian appointed by chancery. Ibid. The prohibition of marriage between relatives in the ascending and descending lines, and between brothers and sisters, applies equally to illegitimate children and relatives. N. Y. Revised Statutes, vol. ii. p. 139, sec. 3.

settlement of his mother.* With the exception of the right of inheritance and succession, bastards, by the English law, as well as by the law of France, Spain, and Italy, are put upon an equal footing with their fellow subjects ;b and in this country we have made very considerable advances towards giving them also the capacity to inherit, by admitting them to possess inheritable blood. We have, in this respect, followed the spirit of the laws of some of the ancient nations, who denied to bastards an equal share of their father's estate, (for that would be giving too much countenance to the indulgence of criminal desire,) but admitted them to a certain portion, and would not suffer them to be cast naked and destitute upon the world.0

The mother, or reputed father, is generally, in *215 this country. chargeable by law with the maintenance of the bastard child, and in New-York it is in such way as any two justices of the peace of the country shall thiuk meet; and the goods, chattels, and real estate of the parents, are seizable for the support of such children, if the parents have absconded. The reputed father is liable to arrest and imprisonment, until he gives security to indemnify the town chargeable with the maintenance of the child.d These provisions are intended for

»3 Johns. Rep. 15. 17 Johns. Rep. 41. 12 Mass. Rep. 429. 5 Com. Sep. 584.

» Oeueres D'Aguessean, tom. vii. p. 384, 385. Butler's note, No. 176 to lib. 3 Co. Litt. 1 Blacks. Com. 459.

» Potter's Greek Antiq. vol. ii. p. 340. Gentoo Code, by Halhed, p. 73. The protection and tenderness which the Goddess Fortune is supposed to bestow upon foundlings, is, says Mr. Gifford, one of the most amusing ud animated pictures that the keen and vigorous fancy of Juvenal ever drew:

Slut fortuna improba noctn,
Arridens nudis infantibus. Hosfoset omnes,
Ineoleitque sine. Sat. 6. v. 603—605.

i N. Y. Reeised Statutes, vol. i. p. 640—656. In Ohio, the courts of common pleas ascertain and enforce the duty of the putative father to maintain bis bastard child. Statutes of Ohio, 1831.

the public indemnity, and were borrowed from the several English statutes on the subject; and similar regulations to coerce the putative father to maintain the child, and indemnify the town or parish, have been adopted in the several states.

The father of a bastard child is liable, upon his implied contract, for its necessary maintenance, without any compulsory order being made upon him, provided he has adopted the child as his own, and acquiesced in any particular disposition of it.* The adoption must be voluntary, and with the consent of the mother, for the putative father has no legal right to the custody of a bastard child, in opposition to the claim of the mother; and except the cases of the intervention of the town officers, under the statute provisions, or under the implied contract founded on the adoption of the child, the mother has no power to compel the putative father to support the child.b She has a right to the custody and control of it as against the putative father, and is bound to maintain it *216 as *its natural guardian ;c though perhaps the pu

* Heskcth v. Gowing, 5 Esp. N. P. Rep. 131. But except in such a special case, the putative father is uot liable except upon an express promise, or upon an order of filiation under the statute. Cameron v. Baker, 3 Carr. <j- Payne, 36. Furillio v. Crowther, 7 Dowl. $ Ryl. 612. Moncrief v. Ely, 19 Wendell, 405.

i' In England under the statute of 4 & 5 Wm. 4, c. 76, the mother of a bastard child had no remedy against the father for its maintenance. But by the statute of 7 & 8 Vict. ch. 101, the mother has relief, and the father may be summoned before the petty sessions, and ordered to pay 5«. for each of the first six weeks after birth, 12s. 6</. for every subsequent week until the child is thirteen years of age. The money is to be paid to the mother and may be recovered from the father by distress and imprisonment. This is a just and wise improvement in the law.

• The King v. Soper, 5 Term Rep. 278. Ex parte Ann Knee, 4 Bos. £ Pull. 148. The People v. Landt, 2 Johns. Rep. 375. Carpenter v. Whitman, 15 Johns. Rep. 208. Wright v. Wright, 2 Mass. Rep. 109. Mass. Revised Statutes, 1835. Acosta v. Robin, 19 Martin's Louis. Rep. 387. The power of the putative father over the illegitimate child, was denied in the Roman law, and it is equally so in the Spanish law. Ibid.

tative father might assert a right to the custody of the child as against a stranger.*

There are cases in which the courts of equity have regarded bastards as having strong claims to equitable protection, and have decreed a specific performance of voluntary settlements made by the father in favour of the mother of her natural child. b On the other hand, there are cases in which the courts of equity have withheld from the illegitimate child every favourable intendment which the lawful heir would have been entitled to as of course. Thus, in Fursaker v. Robitison,0 a natural daughter brought her bill against the heir at law to supply a defective conveyance from her father to her, but the chancellor refused to assist her on the ground that she was a mere stranger. being nullius filia, and not taken notice of by the law as a daughter, and that the father was not under any legal obligation to provide for her as a child, though he might be obliged by the law of nature, and so the conveyance was voluntary, and without any consideration. This hard decision was made by Lord Cowper in 1717; but the language of Lord Ch. J. King, in a subsequent case, to which I have just alluded,d is certainly much more conformable to justice and humanity. "If a man," says he, *" does mislead *217 an innocent woman, it is both reason and justice that he should make her reparation. The case is stronger in respect to the innocent child, whom the father has occasioned to be brought into the world in this

• Rex. V. Cornforth, Sir. Rep. 1162. A person standing in loco parentis has been allowed to maintain an action on the case per quod serritinm amisit, for tho abduction of his daughter's illegitimate offspring. Moritz V. Gamhart, 7 Watts. 302.

b Marchioness of Annandale v. Harris, 2 P. Wms. Rep. 432. Horton v. Gibson, 4 S. Car. Equity Rep. 139. Bunn v. Winthrop, 1 Johns. Ch. Rep. 338.

< Free. in Ch. 475. 1 Eq. Cas. Abr. 123. pi. 9. Oilb. Eq. Rep. 139. GUI. P. R. 256. 4 Marchioness of Annandale v. Harris, 2 P. Wms. Rep. 432.

shameful manner, and for whom, in justice, he ought to provide." In Knye v. Moore,* the vice-chancellor, in pursuance of the doctrine of Lord King, assisted to uphold and enforce a deed by the father, making provision for the mother and his illegitimate children after his death. So, in Pratt v. Flamerb a devise by the father to an unborn illegitimate child, in which the mother was described, was held valid; and there are other cases in which bequests by will, in favour of legitimate children, have been liberally sustained.0

• 1 Simons' <j- Stuarfs Rep. 61. b 5 Harr. Johns. Rep. 10.

« Beachcroft, v. Beachcroft 1 Madd. Rep. 234, Phil- ed. Gardner v. Heyer, 2 Paige's Rep. 11. But in Wilkinson v. Wilkinson, before V. Ch. Bruce, 1B42 a provision in favour of future illegitimate children was held to be clearly void. N. Y. Legal Observer, vol. i. 191.

« ForrigeFortsett »