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 prohi bition 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.

(c) 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.

assert a right to the custody of the child as against a stranger. (a)

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 favor 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 favorable intendment which the lawful heir would have been entitled to as of course. Thus, in Fursaker v. Robinson, (c) 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 "If a

much more conformable to justice and humanity. *217 man," says he, *"does mislead 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 shameful manner, and for whom, in justice, he ought to provide." In Knye v. Moore, (e) 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.

(a) Rex v. Cornforth, Str. Rep. 1162. A person standing in loco parentis has been allowed to maintain an action on the case per quod servitium amisit, for the abduction of his daughter's illegitimate offspring. Moritz v. Garnhart, 7 Watts, 302.

(b) Marchioness of Annandale v. Harris, 2 P. Wms. Rep. 432. Harten v. Gibson,

4 Desaus. Rep. 139. Bunn v. Winthrop, 1 Johns. Ch. Rep. 338.

(c) Prec. in Ch. 475. 1 Eq. Cas. Abr. 123, pl. 9. Gilb. Eq. Rep. 139. Gilb. F. R. 256.

(d) Marchioness of Annandale v. Harris, 2 P. Wms. Rep. 432.

(e) 1 Simons's & Stuart's Rep. 61.

Flamer, (a) 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 favor of illegitimate children, have been liberally sustained. (b)

(a) 5 Harr. & Johns. Rep. 10.

(b) Beachcroft v. Beachcroft, 1 Madd. Rep. 234, Phil. ed. 430, London ed. Gardner v. Heyer, 2 Paige's Rep. 11. But in Wilkinson v. Wilkinson, before V. Ch. Bruce, 1842, a provision in favor of future illegitimate children was held to be clearly void. N. Y. Legal Observer, vol. i. 191. 1 Younge & C. Cas. in Ch. 657.

LECTURE XXX.

OF GUARDIAN AND WARD.

THE relation of guardian and ward is nearly allied to that of parent and child. It applies to children during their minority, and may exist during the lives of the parents, if the infant becomes vested with property; but it usually takes place on the death of the father, and the guardian is intended to supply his place.

There are two kinds of guardianship; one by the common law, and the other by statute; and there were three kinds of guardians at common law, viz: guardian by nature, guardian by nurture, and guardian in socage. (a)

(1.) Guardian by nature is the father, and, on his death, the mother;1 and this guardianship extends to the age of twentyone years of the child, and it extends only to the custody of his person, and it yielded to guardianship in socage. (b) It was doubted for some time in the books, whether the guardian by nature was entitled to the possession of the personal estate of the infant, and could give a competent discharge to an executor on the payment of a legacy belonging to the child; and it was finally understood that he could not. (c) It would seem, there

(a) Co. Litt. 88, b. 3 Co. 37, b.

(b) Litt. sec. 123. Co. Litt. 87, b, 88. Hargrave's note, 12, No. 66. The King v. Thorp, 5 Mod. Rep. 221. Jackson v. Combs, 7 Cowen's Rep. 36. 2 Wendell's Rep. 153, S. C.

(c) Dagley v. Talferry, 1 P. Wms. 285. Cunningham v. Harris, cited in 3 Bro. Genet v. Tallmadge, 1 Johns. Ch. Rep. 3. Miles v. Boyden, 3 Pick. Rep.

186.

213.

1 At common law, the mother, as guardian by nature or for nurture, has no control over the estate of the minor. Perkins v. Dyer, 6 Georgia R. 401.

2 In Texas, the father's power is extended by statute to his child's estate. Byrne v. Love, 14 Tex. 81.