is, that where it clearly appears that the husband could not have been the father of the child, it is a bastard, though *born, or begotten and born, during marriage. (a)1 It is *212 not necessary that I should dwell more particularly on this branch of the law; and the principles and reasoning upon which this doctrine of presumption applicable to the question of legitimacy is founded, will be seen at large in the cases to which I have referred. (b)

A bastard being, in the eye of the law, nullius filius, (c) or, as the civil law, from the difficulty of ascertaining the father equally concluded, patrem habere non intelliguntur, (d) he has no inheritable blood, and is incapable of inheriting as heir, either to his putative father, or his mother, or to any one else, nor can

qualified divorce. If this be not the construction, then the law, as it stood before, resting on principles adapted to the circumstances, was wiser and safer. The Code Napoleon is stricter than the English rule, for it allows the issue to be bastardized only on proof that, by reason of distance or accident, cohabitation of husband and wife was impossible. Code Napoleon, n. 312. So, in Louisiana, it is held, in case of voluntary separation, that access is always presumed, unless cohabitation was physically impossible. Tate v. Penne, 19 Martin's Rep. 548. The observations of the master of the rolls, in Bury v. Phillpot, are almost as strong. The civil law admitted proof of a moral impossibility of access. See Edin. Review, No. 97, a review of Le Merchant's Report of the Proceedings in the house of lords on the claims to the Barony of Gardner, in which the law of legitimacy is fully and ably discussed. See, also, Burge's Com. on Colonial and Foreign Laws, vol. i. 57-92, where the law of legitimacy is examined at large, and the civil law and the continental, as well as English authorities, brought to bear on the subject.2

(a) The King v. Luffe, 8 East, 193.

(b) If the child be born immediately after marriage, it is still a legitimate child, unless the non-access of the husband prior to the marriage be sufficiently proved. Co. Litt. 244 a. 1 Blacks. Com. 455. Lawrence, J., and Le Blanc, J., in The King v. Luffe, 8 East, 210, 211. Pater est quem nuptiæ demonstrant. Subsequenti connubii fædere omnem conceptionis maculam tollente.

(c) Co. Litt. 123 a.

(d) Inst. 1, 10, 12.

1 Patterson v. Gaines, 6 How. U. S. 550, 589. Van Aernam v. Van Aernam, 1 Barb. Ch. R. 375. In the first of these cases the rule is laid down more strictly than in the second. Where a child was born of a woman living separate from her husband, it was held, on the question of the legitimacy of the child, that the husband was inadmissible as a witness to prove access. Patchett v. Holgate, 3 Eng. L. & E. R. 100. Nor is the mother a competent witness to prove non-access of the husband. People v. Overseers, &c. 15 Barb. 286; Parker v. Way, 15 N. H. 45.

2 Wright v. Hicks, 15 Geo. 160; State v. Herman, 13 Ired. 502.

1

he have heirs but of his own body. (a) This rule of the common law, so far at least as it excludes him from inheriting as heir to his mother, is supposed to be founded partly in policy, to discourage illicit commerce between the sexes. Selden said, (b) that not only the laws of England, but those of all other civil states, excluded bastards from inheritance, unless there was a subsequent legitimation. Bastards are incapable of taking in New York, under the law of descents, and under the statute of distribution of intestates' effects; and they are equally incapable in several of the other United States, which follow, in this respect, the rule of the English law. But in Vermont, Connecticut, Virginia, Kentucky, Ohio, Indiana, Missouri, Illinois, Tennessee, North Carolina, Alabama, and Georgia, bastards can inherit from, and transmit to their mothers, real and personal estate, under some modifications, which prevail particularly in the states of Connecticut, Illinois, North Carolina, and Tennessee; and in New York, the estate of an illegitimate intestate descends to the mother, * 213 * and the relatives on the part of the mother. (c) In North Carolina, the legislature (d) enabled bastards to be legitimated, on the intermarriage of the putative father with the mother, or, if she be dead, or reside out of the state, or married to another, on his petition, so far as to enable the child to inherit, as if he was lawfully born, the real and personal estate of the father. In Louisiana, bastards, (being defined to be children whose father is unknown,) and adulter

(a) 1 Blacks. Com. 459.

(b) Note C. to Fortescue de laud leg. Aug. ch. 40.

(c) Griffith's Law Register, h. t. New York Revised Statutes, vol. i. p. 753, sec. 14. Ibid. p. 754, sec. 19. See, also, vol. iv. p. 413. In Georgia, bastards dying intestate without issue, the brothers and sisters of the same mother take by descent. Prince's Dig. 202. In Alabama, the kindred of a bastard on the part of his mother is entitled to the distribution of his personal estate. Aikin's Dig. 2d edit. 129.2 (d) Revised Statutes of North Carolina, vol. i. 92.

1 For the rules of construction of legacies and devises, in respect to illegitimate children, see post, vol. iv. p. 438, n.

2 In Maryland an illegitimate child shares equally with the other children in his mother's estate. Earle v. Dawes, 3 Maryl. Ch. 230. Neither the mother nor her legitimate children shall inherit the estate of her bastard son, unless she have married his father. Miller v. Stewart, 8 Gill, 128.

ous or incestuous children, have no right of inheritance to the estates of their natural father or mother. But other natural or illegitimate children succeed to the estate of the mother in default of lawful children or descendants, and to the estate of the father who has acknowledged them, if he dies without lineal or collateral relations, or without a surviving wife. (a) 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 inherit to his mother; (b) and, *in *214 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 nullius filius, applies only to the case of inheritances. (c) It has been held to be unlawful for him to marry within the Levitical degrees, (d) and a bastard has been considered to be within the marriage act of 26 George II., which required the consent of the father, guardian, or mother, to the validity of the marriage of a minor. (e) He also takes and follows the settlement of his

(a) Civil Code of Louisiana, act. 220, 912, 913, 914. By a statute in Louisiana, in 1831, white fathers or mothers may legitimate their natural children by an act made before a notary and two witnesses, provided they be not colored children; and free people of color may legitimate their colored 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 unlawful 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.

(c) Buller, J., 1 Term Rep. 101. Bow v. Nottingham, 1 N. H. Rep. 260.

(d) Hains v. Jeffel, 1 Lord Raym. 68.

(e) King v. Inhabitants of Hodnett, 1 Term Rep. 96. Horner v. Liddiard, 1 Hagg.

1 By the laws of Maine, 1852, ch. 260, the mother of an illegitimate child can inherit. In Massachusetts, the illegitimate is an heir to his mother. Laws of 1851, ch. 211. In New York, in default of lawful issue of the mother, her illegitimate children may inherit her real and personal estate. (Laws, 1855, April 18.) By a law enacted in Pennsylvania, April 27, 1855, bastards shall bear the name of the mother, and she and they shall inherit from each other.

mother. (a) 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. (c)

•215 * The mother, or reputed father, is generally in 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 county shall think 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

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.

(a) 3 Johns. Rep. 15. 17 Johns. Rep. 41. 12 Mass. Rep. 429. 5 Conn. Rep. 584.2

(b) Oeuvres D'Aguesseau, tom. vii. pp. 384, 385. Butler's note, No. 176 to lib. 3. Co. Litt. 1 Blacks. Com. 459.

(c) 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 and animated pictures that the keen and vigorous fancy of Juvenal ever drew :

Stat fortuna improba noctu,

Arridens nudis infantibus. Hos fovet omnes,
Involvitque, sinu.

Sat. 6. v. 603–605.

(d) N. Y. Revised Statutes, vol. i. pp. 646-656. In Ohio, the courts of common

1 If the father offers to maintain the child, and the authorities decline to deliver it to the parent for that purpose, they cannot charge the father for its subsequent maintenance. Bownes v. Marsh, 10 Ad. & El. N. S. 787.

2 But see Bethlem v. Roxbury, 20 Conn. 298.

for 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. (a) 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 of 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 as its natural *216 guardian; (c) though perhaps the putative father might

*

pleas ascertain and enforce the duty of the putative father to maintain his bastard child. Statutes of Ohio, 1831.

(a) Hesketh v. Gowing, 5 Esp. N. P. Rep. 131. But except in such a special case, the putative father is not liable except upon an express promise, or upon an order of filiation under the statute. Cameron v. Baker, 3 Carr. & Payne, 36. Furillio v. Crowther, 7 Dowl. & Ryl. 612. Moncrief v. Ely, 19 Wendell, 405.2

(b) In England, under the statute of 4 & 5 Wm. IV. 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 5s. for each of the first six weeks after birth, 12s. 6d. 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.

(e) 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, 1836. 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.

1 The People v. Kling, 6 Barb. S. C. Rep. 366. The court, in such cases, is authorized to exercise a sound discretion as to the custody of the child. The right of the mother was sustained in Robalina v. Armstrong, (15 Barb. 247,) in opposition to the claim of the putative father.

2 Wiggins v. Keizer, 6 Porter, (Ind.) 252.