Town of Woodstock v. Hooker

6 Conn. 35

Opinion

Peters, J.

The question is, whether the paupers are settled in Southbridge, where they were born, or in Woodstock, where their mother was then settled. By the common law, a bastard is nullius filius, and derives nothing from his parents ; for he has no parents ; and is settled where born. 1 Bla. Comm. 485. But it has been discovered in this state, that a bastard is the child of his mother, and capable of inheriting estate, and deriving a settlement from her. Brown v. Dye, 2 Root 280. Heath v. White, 5 Conn. Rep. 228. Canaan v. Salisbury, 1 Root 155. By the statute of Massachusetts, passed in 1793, chap. 33. sec. 2., “printed by authority,” whereof we are bound to take notice judicially,

Footnotes

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(a) it is provided, that illegitimate children shall follow and have the settlement of their mother, at the time of their birth, if any she then have within the commonwealth; but neither legitimate nor illegitimate children shall gain a settlement by birth in the place where they may be born, if neither of their parents then had any settlement there.” Dorcas Brown had no settlement in the commonwealth. Her children born there, are, therefore, in the same predicament, unless the common law of England is paramount to the statute of that state.

In Canaan v. Salisbury, 1 Root 155. it was decided, by the superior court, that “ a bastard is settled with her mother; and this,” added the court, “ is agreeable to the law of nature and reason.” The correctness of this decision has never been questioned, and was expressly sanctioned, by this Court, in Hebron v. Marlborough, 2 Conn. Rep. 18. “ By the common law,” said the late Ch. J. Swift, in giving the unanimous opinion of the Court, “bastards acquire a settlement in the place where born, unless the mother has been removed into the place, with a view fraudulently to subject such place to their support. In this state, the rule has been adopted, that where the mother has a settlement, the bastard follows it; but if the mother has no settlement, the place of birth is the place of settlement.” As the statute of Massachusetts has deprived these unfortunate children of a common law right, it would be hard indeed, to deprive them of a natural right, by separating them from their mother; and it would be still harder to subject an inhabitant of Woodstock, whose wife should happen to step across the line into Massachusetts, and there have a child born, to a penalty of 67 dollars, for bringing home her infant.

I advise a new trial.

The other Judges were of the same opinion.

New trial to be granted.

Stat. Conn. 48, tit. 2. sect, 50.