But though bastards are legally nullius fila, yet the law takes notice of their na tural relationship to several purposes, and particularly to enforce the natural duties of their parents. These duties are com prised under the term aliment, which here, as in the civil law, comprehends both maintenance and education; including tinder this latter term, as Lord Stair says (b. i. tit. 5, sec. 6), " the breeding of them for some calling and employment accord ing to their capacity and condition." These were at least the principles on which the courts proceeded in awarding aliment to children. In determining who is the father of a bastard, the Scots courts again proceed on the principles of the civil law. In Scotland there must first be semiplenary evidence of the paternity, and then, when such circumstantial or other proof of that fact is adduced as will amount to sendplena probatio (equi valent to the " corroborative evidence" re quired in England), the mother is ad mitted to her oath in supplement. The whole aliment is not due from one parent but from both parents. This is the prin ciple ; and therefore in determining what shall be payable by the father, the ability of the mother to contribute is also consi dered. The absolute amount of aliment, however, is in the discretion of the court, as is likewise its duration. Where the parties are paupers, the bastard's settle ment is not the father's but the mother's parish, and if that is unknown, the parish of its birth.
The mother of a bastard is entitled to its custody during its infancy ; and it would seem that afterwards the father may take the rearing of the child into his own hand, and also, perhaps, nominate to it tutors and curators. This last power has been denied ; if it does not exist, it ought to be now bestowed by act of par liament.
In France the condition of illegitimate children is determined by the Code Civil (tit. vii. caps. 1 & 2, §§ 312-342). A hus band can disavow a child of his wife's ou proof that during a period of from three hundred to one hundred and eighty days before its birth it was physically impos sible, either from absence or accident, that be could have cohabited with his wife ; but impotency cannot be alleged as a cause of disavowal ; nor adultery on the part of the wife, =less the birth has been concealed from the husband, in which case the matter may be decided upon its anents. A child born before the one hun dred and eightieth day after the marriage cannot be disavowed if it is proved that the husband knew of the pregnancy be fore the marriage ; if he has been pre sent at the birth or has signed the re gistry of birth; or if the child is not sufficiently strong to afford hope that it will live. The legitimacy of a child born three hundred days after marriage cannot in any way be contested ; and m other cases proceedings must take place within a month if the husband is on the spot, a reasonable delay being allowed for absence. Children born out of wedlock, except those born of adulterous or in cestuous connections. can be legitimated by the subsequent marriage of the father and mother, when both parents have le gally recognised them before marriage, or when they recognise them by the act of marriage. The legitimation may be re trospective, and in favour of illeetimate children who have died and left desmnd ants, and the latter will partake of the fall advantage of such a step. Children legitimated by a subsequent marriage enjoy precisely the same rights as those born after marriage. A deed of recog nition by the father only is binding only on him. Recognition during marriage by the husband or wife alone, in favour of an illegitimate child of either, born before theirTriage,and not theirjoint offspring, can only affect one of them, and does not prejudice the rights of their children born wedlock; but in case of a divorce, and if there are no other children, such recogni tion will be taken into account. In con tested cases the question as to the putative father is interdicted and only the mater nity is admitted. The rights of illegiti mate children to the succession of pro perty are defined in cap. iv. of book of the Code Civil, under the head "Des Successions Irrignlieres." If the father or mother has legitimate descendants, the share of an illegitimate child is one-third of the hereditary portion which it would have received had it been legitimated ; one-half when there are no legitimate descendants, but only brothers or sisters or ascending relations; and three-fourths when the father or mother has neither descendants nor ascending relations, nor brothers or sisters; and an illegitimate child is entitled to inherit thewhole of the property of his parents when they have no relations in a certain order of succes sion. The descendants of an illegitimate person deceased can claim on his behalf. The property of an illegitimate person dying without children goes to his pa rents, wholly to the one who recognised him by a legal act, or if both parents joined in this act, in equal parts to each ; and if they are dead, the property passes to their legitimate children or to the illegitimate brothers and sisters of the tes tator, according to circumstances. There are various other regulations on this sub ject in the French Codes ; but the above will be sufficient to indicate the spirit of this of French jurisprudence.
In Norway the state of the law is very favourable to illegitimate children. They are not only legitimated by the subse qaent marriage of the parents, but the father may, previous to his contracting a marriage with any other party, declare the legitimacy of his children by a parti cular act, which gives them the same rights as his children born in wedlock.
This declaration of legitimacy is gene rally made in Norway. (Laing's Nor way.) In several of the States of the North American Union ante-nuptial children are legitimated by the father's marriage to the another. This is the case in the states of Vermont, Maryland, Virginia, Georgia, Alabama, Mississippi, Louisiana, Ken tucky, Missouri, Indiana, Illinois, and Ohio. Kent states ( Commentaries, vol. ii. p. 212, ed. 1840) that " bastards are incapable of taking, in New York, under the law of descents and under the statute of distribution of intestate's 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, Illi nois, Tennessee, North Carolina, and Georgia, bastards can inherit from and transmit to their mothers real and per sonal 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 and the relatives on the part of the mother. In North Carolina the legisla ture, in 1829, enabled bastards to be legi timated on the intermarriage of the puta tive father with the mother, and on his petition, so far as to enable the child to inherit the real and personal estate of his father as if he was lawfully born. In Louisiana bastards (being defined to be children whose father is unknown) have no right of inheritance to the estates of their natural father or mother. But other natural or illegitimate children suc ceed to the estate of the mother in default of lawful children or descendants, and to the estate of the father who has acknow ledged them, if he dies without lineal or collateral relations, or without a surviv ing wife." By the Athenian law (passed in the archonship of Eucleides, m.o. 403), as quoted by Demosthenes (Against Macar taus, cap. 12), illegitimate children were cut out from all inheritance and suc cession ; nor could a man who had legi timate male offspring leave his property to other persons, and consequently not tc his illegitimate children. A previous law of Pericles (Life by Plutarch, cap. 37) declared that thme only were legi timate and Athenian citizens who were born of two Athenian parents. This law, which was repealed or violated in favour of a son of Pericles, was re enacted in the archonship of Eucleides. (Athenmus, xiii. 577 ; Demosthenes Against Eubulides, cap 10.) Among the Romans, if a man begot children in lawful matrimony (juthe nuptiee), those children were his, and ac eording to the phraseology of the Roman law, they were said to be in his power. If he begot children on a woman in any other way, they were not in his power ; he had not the paternal authority over them, and they had not the rights of children begotten in lawful matrimony. If a man contracted what the Romans called an incestuous marriage, such as the alliance of father and daughter, mother and son, grandfather and granddaughter; as this was really no marriage, the woman was not the man's wife, and the offspring were not his children. But though there was no father, the offspring were considered the children of the mother, for there could generally be no doubt that they were the fruit of her body ; accordingly such children had a mother, but they had no father. This was also the condition of children whom a woman brought forth from promiscuous intercouse ; they were considered to have no father, because the father was uncertain : they were called Spurii, which is the common Roman term for persons who had no legal father. The reasons why they were called Spurii, as assigned by the Roman Jurists, are not satisfactory. (Gains, i. 64.) Adulterine children, children be gotten in an adulterous connection, had of course no father. If we closely follow the principle of Roman law contained in the expression that those children are in a man's power, and those only, whom he has begotten in lawful marriage, no per son, according to strict Roman law, had a father unless he was begotten in lawful matrimony. If a child was be gotten in lawful matrimony, and the WO man was divorced from her husband during pregnancy, the husband was the father, whether the woman remained single or married again during preg nancy. This was the case of Tiberius Nero, whose wife Livia was with child when she married Caesar Octavianus the child was Drusus, the brother of Ti berius, who was legally the child of his real father, and was afterwards adopted by Cesar. Under the old Roman law, it does not appear that a person begotten out of lawful matrimony could be legiti mated. As children not begotten in law ful marriage had no father, they could have no kinsmen on the (reputed) father's side, no Agnati. They could also have no cognati, for cognatio implied a legal marriage. If then, a spurns died in testate, no person could claim his pro perty as an adgnatus or cognates, for there could be neither cognatio nor af natio where there was no father ; but in respect of proximity, his mother, or his brother by the same mother, could claim the Bonornm possessio by virtue of the Edict, Unde Cognati (Ulpian, Dig. 38, tit. 4). This instance proves that the spring was considered the son of his mother, at least for certain purposes ; but the origin of this rule of Edictal Law may not have belonged to a very early period. It is stated by some modern writers on Roman law, that with respect to the mother, there was no difference be tween children conceived in lawful mar riage and children that were not.