[*276]

An illegitimate child can purchase by his acquired name; but can take nothing, unless by that name which he has acquired by reputation: By that he can be grantee, or devisee. (a) If an estate be devised to the eldest son of J. S. and he has a bastard son, who is his eldest son, he cannot take; neither could he take, if J. S. had no other son, if it had been devised to him by a name that he had acquired by reputation, with additional designation of the son of J. S.: it would not have prevented the devise from taking effect. A bastard cannot take by the designation of chill or issue of such a person. (b) If a contingent remainder be limited to the eldest son of J. S., legitimate or illegitimate, J. S. having no legitimate son, yet a bastard, though the eldest son, cannot take; for the remainder-man, in such case, must take at his birth; (c) and at that time, he has not acquired the reputation of the * son of J. S. This cannot be obtained but by the continuance of time. It is said, that such a limitation, to the eldest son of a woman, is good; for that, at the birth, he acquires a reputation of being her son. But such limitation of a contingent remainder, must be potentia propinqua; whereas the possibility of a woman's having a bastard, is potentia remotissima. The opinions in the books differ; but I apprehend the rule alluded to is decisive of the question. In opposition to this doctrine, we find it laid down. in Moore, 10, that a devise, by mother or father, to his or her children, of goods, will entitle bastard children to take. I cannot conceive that this idea is admissible by the common law. It is not strange, that, in bequests of personal property, which fall within the jurisdiction of the ecclesiastical courts, we should find an inclination to adopt the rules of the civil law, for which they always have had a predilection: but I discover no inclination in the courts of common law, to vary from the maxim, that a bastard is filius nullius, and all its necessary consequences. (d) This maxim is the foundation of the rule, that the place of the birth of a bastard, is the place of his settlement. In other cases, the settlement of the father, and, as the case may be, the settlement of the mother, is the settlement of their children; for, in the view

(a) Co. Lit., 3; Pow or. Dev., 313, 338. Co. Lit., 3; Cro. El., 570; 1 Pow., 529.

(d) Salk.,

429

(b) Co. Lit., 3; 6 Co., 65. ; 1 Bl. Com., 362, 451.

of the law, such child has neither father nor mother, from whom there can be any derivative settlement.

In Connecticut, the Superior Court has decided that the settlement of the mother is the settlement of the illegitimate child. To the common-law rule there are exceptions. If the mother be sent from one parish to another to a jail, which is in another parish, and there an illegitimate child is born of her body, the child's settlement will be in the parish from which the mother was sent. (a) If any fraud be practised by a parish, in

*

[*277] sending a woman pregnant with a bastard child into ano

ther parish, or procuring her to go there, that her children may be born in another parish, such child, when born, is settled in the parish from which the mother was sent. If a woman have a bastard child born in a parish, under such circumstances as fall under the description of a traveling beggar, she may be apprehended and sent back to her place of settlement, and that shall be the settlement of such child; but if she was settled in one parish, and residing in another bona fide, and there has a bastard child, the place in which the child was born is the place of its settlement. Whilst a pauper illegitimate child is, during infancy, with its mother for nurture, in a parish where it was not born, it must be supported where it was born. Doug., 7. The maxim so often alluded to does not hold in cases of marriages within the Levitical degrees, and also in those cases where the consent of parents is necessary to contract marriages. It seems the consent of the mother of an illegitimate child is necessary. The subject of marriage has always been very much under the control of the ecclesiastical courts, who are governed by the principles of the civil law, whence this doctrine has been transplanted into the English system of jurisprudence. (1)

(a) 1 Bl. Com., 459; Salk., 121.

(1) In Vermont, under the statute of 1801, an illegitimate child, living in a town other than the place of its birth, with its mother, until four years of age, did not gain a settlement by residence, though not warned out. Manchester v. Springfield, 15 Vt. Rep., 332. But now, by the statute of 1839, illegitimate children follow and have the place of settlement of their mother. In Pennsylvania, it seems that a bastard's settlement is at the place of his birth, except when the mother is removed from one place to another, by collusion; or when the child is born pending

In England, the putative father, and the mother, by certain statutes, are bound to maintain the illegitimate child: compulsory means are adopted against them both. See the statutes of Elizabeth and George II on this subject. The mother, in that country, has no power to compel the father to support the child; but this is done by the parish officer. In Connecticut, a statute puts it into the power of the mother to compel the father to assist her in maintaining the child. This is effected by * a suit founded upon that statute, which is sui generis. The [*278] principle on which it proceeds is, to compel both parents to support the child equally; and the judgment of the court, assessing a sum against the putative father, is in conformity to that idea. The support furnished by the father is for four years, and onehalf of the childbed expenses. When a woman is pregnant with a child which will be a bastard when born, she presents a complaint to some magistrate, in which she charges some person, on oath, with being the father of the child: on this a warrant issues, as in criminal cases, to bring such person before the magistrate forthwith, to be examined respecting the aforesaid charge. The object of the suit is wholly civil; but the proceed. ings are altogether in a criminal dress. The magistrate proceeds to an inquiry into the facts; and if he judges that there was no ground for the complaint, he dismisses the person charged. If he believe that the putative father ought to be tried, he binds him over to the county court of the county in which the complainant lives; which court has final jurisdiction in the case. (1)

an order of removal appealed from; or while the mother is in actual custody of the law. Philadelphia v. Bristol, 6 Serg. & Rawle, 565. In Massachusetts, also, they follow and have the settlement of the mother. Chelsea v. Malden, 4 Mass. Rep., 131; Petersham v. Dana, 12 id., 429; Andover v. Canton, 13 id., 547; Newton v. Braintree, 14 id., 382.

And so in New York every bastard is deemed to be settled in the town or city of the last legal settlement of its mother. Canajoharie v. Johnstown, 17 John., 41. And where the mother has no legal settlement, the child must be adjudged to be settled where it is born. Wyncoop v. Overseers of New York, 3 John., 15.

(1) A decision of the justices, that the person charged is not the father of the child, is conclusive, and no appeal lies by the overseers of the poor, and no new proceedings can be had against him. People v. Thompson, 19 Wend., 154.

The magistrate has no right to decide the point betwixt the parties, but is a court of inquiry, like a grand jury. At the trial of the case, both at the time of inquiry before the magistrate, and on the trial before the court, the complainant is a witness from necessity, although she is interested in the events of the prosecution. The testimony of the complainant is not conclusive; but it turns the burden of disproving the charge upon the defendant, which he may do by any kind of evidence that would be admissible in other cases. The process, it has been observed, is criminal; yet depositions which, by the law of Connecticut, are admissible in civil cases, but not in criminal, are admissible in trials of this kind. From the language of our statute (which see), it would be natural to conclude that the complaint [*279] before the magistrate ought to be made before the birth of the child; but it has been settled by the court that a complaint may be made after the birth. (1) This gives the complainant, who may be at a loss who was the father of the child, an opportunity to make her charge with more precision than if she were obliged to complain before the birth; an advantage given her, that the statutes never contemplated. By the statute, it is an indispensable requisite, to entitle her to any aid, that she make discovery of the father at the time of her travail: unless this be done, she must fail of a recovery of anything to aid her in the support of the child. (2) No evidence, not even the con fession of the man whom she charges, can supply the want of it. This has always been considered as a proper and salutary check upon the complainant. She must also have continued constant in her charges, both in and out of court. When judgment is rendered in her favor, it is for the whole sum that the court assesses for the four years: this sum is divided into sixteen equal

(1) It is not indispensable that she make her complaint before a magistrate prior to the birth of the child. Sweet v. Stubbs, 33 Maine, 481.

(2) In order to entitle the complainant to testify for herself, it must be proved by other evidence that, at the time of her travail, she accused the respondent as the father of the child. Such accusation is too late, if not made until the child has been expelled from the body of the mother, though made before the connecting cord is severed and before the child has breathed. Blake v. Jenkins, 35 Me., 433.

*

parts only; the first also includes in it the one-half of the childbed expenses; an execution issues quarterly for a sixteenth part of the whole sum only; the first execution includes also the childbed expenses, as before stated. If the child dies before the expiration of four years, in such case the executions are stayed. At the time that the judgment is rendered in favor of the woman, there is also a judgment of the court that the putative father find securities to pay the sum assessed, and also to secure the town against maintaining the child if ever it should become a pauper. Whenever the expense of maintenance is increased beyond what is usual, by sickness, or any accident, upon application to the court there will be a further assessment; and this will be divided into as many parts as remain, and be [*280] added to the quarterly executions as they issue. When the putative father is arrested, he finds surety to appear at court, and abide the final judgment; and this surety is holden one year after the last execution issues. If the child be not born at the time of the session of the court, the court continues the case, and takes a renewal of the bond. If the mother of the illegitimate child die in a state of pregnancy; or the child be dead when born; or the mother suffer an abortion; it is said that the putative father is discharged. I see no reason why he should be discharged from his moiety of the childbed expenses, when the child is born dead. If the mother marry in this situ ation, it is said that the putative father is discharged from maintaining the child, and that the husband could not be joined with his wife in prosecuting the claims against the putative father. The principle on which this doctrine is founded, I do not discover. If, indeed, the old law were in force, that a man, who married a woman pregnant by another man, was indeed the father of the child with which she was pregnant, such husband ought to maintain such child without aid from any person; for all parents are, by common law, bound to maintain their minor children: But it is now perfectly understood that such proof may be procured as will infallibly prove that a child born in wedlock may be a bastard child; and if the putative father be not obliged to be at one moiety of the expense, how is the child to be supported? The