
    * Charles Wright versus Deborah Wright
    The mother of a bastard child is entitled to the custody of it, and shall hold it against the putative father, after a marriage and divorce had.
    This was a writ de homine replegiando, brought in the name oi an illegitimate infant against his mother. Paul Wright, the putative father of the plaintiff, appeared bn his behalf to prosecute the suit, under the provision of the sixth section of the statute of Feb. 19, 1789, establishing the right to and the form of this writ, and the process was understood to have been commenced at his instance and expense. It appeared, by a statement of facts agreed in the case, that the plaintiff was born Jan. 10, 1802; that on the 28th of June, 1803, the said Paul and Deborah intermarried, and cohabited until Sept. 1, 1804, during which time the plaintiff lived with them. On the last-mentioned day the said Deborah left her husband’s house, and carried the plaintiff with her, always allowing the said Paul to be his putative father. In February, 1805, a decree of divorce was had, dissolving the bonds of matrimony between them.
    If, upon this state of facts, the Court should be of opinion that 'the defendant had legal right to detain the said Charles in her custody, it was agreed that the plaintiff should become nonsuit, otherwise the defendant was to be defaulted, and judgment in either case to be entered accordingly.
    
      S. Strong, for the plaintiff,
    contended that, by the marriage of these parties, the guardianship of this infant passed, with other chattel interests in possession, to the husband, and that, after the divorce, they all remained with him, except only such part as may have been awarded to the wife as alimony. The husband having, by the marriage, become entitled to the guardianship of the child during infancy, the divorce had not destroyed his right. There is no difference between the case of the present plaintiff, and that of legitimate children, who always remain in the custody of the father after a divorce. So also do children of the wife by a former husband. Strong observed that, at a former argument of this cause, he had produced some authorities in support of his positions, but the hearing having come on at this time unexpectedly, he had not his minutes in Court, and his recollection did not enable him to refer to them.
    [ * 110 ] * Bliss, who was to have argued for the defendant, was stopped by the Court.
   Sewall, J.

The rights of the putative father are not brought into question by this process. The case, as it stands on the record, gives occasion to the single inquiry only, whether this infant shall oe in the care and custody of his mother, or set loose in the world without restraint or protection. On such a question I cannot hesitate in my opinion that the plaintiff should become nonsuit.

Sedgwick, J.

So.far as respects these parties, the question is, singly, whether a mother has a right to the custody of her natural child. I have no conception that an infant, in the arms of its mother, can be considered as “ imprisoned, confined, or held in duress,” within the intention of the framers of the statute which prescribes this writ. The marriage of the natural parents gave to the husband, in a certain degree, a right to the custody of the child. But the divorce, which dissolved the marriage, annulled that right, and the child remained with the mother in .the same manner, and under the same right, as before the marriage.

Parsons, C. J.

As the putative father has undertaken the pros ecution of this action, I am disposed to consider his claims to the custody of the plaintiff as if they were regularly before the Court.

In legal contemplation, a bastard is generally considered as the relative of no one. But, to provide for his support and education, the mother has a right to the custody and control of him, and is bound to maintain him, as his natural guardian. In a moral view, he is considered as the child of his mother so far, that their intermarriage is unlawful, and any sexual intercourse between them would be incestuous. And the stat. 4 and 5 Ph. & M. c. 8, against carrying off and marrying maidens not sixteen years of age, has, for the protection of the child, been considered as extending to a not ural daughter, in fact under the care of the putative father. The natural guardianship of the mother devolves on her husband on the marriage, in the same manner as an executorship or a guardianship derived from * the authority of the Probate [*111 ] Court; and the husband’s power, depending on the marriage, ceases on its dissolution. It is not like the right to the wife’s chattels, which by the marriage are vested in the husband, and survive to him. Whether a putative father, from whose actual custody and care his natural daughter has been unlawfully taken by a stranger, can maintain a writ de homine rephgiando to regain his custody, is a question different from the present. Perhaps he is within the reason of the case of Rex vs. Cornforth & Al., but it is unnecessary now to determine this question. As to the right of the present plaintiff, I concur with my brethren.

Plaintiff nonsuit. 
      
       2 Stra. 1162.
     
      
      
        Somerset vs. Dighton, 12 Mass. Rep. 383. — Petersham vs. Dana, 12 Mass. Rep 429. — Ex parte Anne Knee, 1 N. R. 348. — Rex vs. Sope, 5 D. & E. 278. — Rex vs. Hopkins, 7 East, 578. — Vide 5 East, 524, note.— Commonwealth vs. Addicks, 3 Serg & R. 333. — Commonwealth vs. Nutt, 1 Br. 143.
     