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Sir William Blackstone (6) has zealously maintained, in this respect, the superior policy of the common law. (c) We have, in relation to this subject, a memorable case in English history. When the English bishops, in the reign of Henry III., petitioned the lords that they would consent that persons born before matrimony should be legitimate, as well as those born after matrimony, in respect to hereditary succession, inasmuch as a canon of the church had accepted all such as legitimate, so far as regarded the right of inheritance, the earls and barons, with one voice, answered, quod nolunt leges Angliæ mutare, quæ huc usque usitato sunt et approbatæ. (d)

Selden, in his Dissertation upon Fleta, (e) mentions, that the children of John of Gaunt, Duke of Lancaster, born before marriage, were legitimated by an Act of Parliament in the reign of Richard II., founded on some obscure common-law custom; and Barrington, in his Observations upon the Statutes, (f) speaks of

legitimate such issue. Bell's Principles of the Law of Scotland, sec. 1628, vide post,

p. 430.1

(b) Com. vol. i. p. 455.

(c) It is a remarkable fact, that in many of the United States, the rule of the civil law, that antenuptial children are legitimated by the father's marriage to the mother and recognition of the children, prevails, in opposition to the common law, namely, in Vermont, Maryland, Virginia, Georgia, Alabama, Mississippi, Louisiana, Kentucky, Missouri, Indiana, Illinois, and Ohio. Griffith's Law Reg. passim. Aikin’s Dig. 2d edit. 77. See

pp. 212, 213.2

(d) Stat. of Merton, 20 Hen. III. c. 9. This statute is reprinted in Hotchkiss's Codification of the Statute Law of Georgia, 1845, p. 333, as part of the existing law of Georgia.

(e) Ch. 9, sec. 2. (5) P. 38.

1 In South Carolina, children are not legitimated by the intermarriage of their parents. Their status, under the laws of that state, renders them incapable of inheriting in Mississippi. Smith v. Kelly, 23 Miss. 167. In Pennsylvania, a bastard born in Tennessee and domiciled there, was held incapable of inheriting lands in Pennsylvania, although legitimated by the laws of Tennessee; Smith v. Derr, 34 Penn. (State.) 126. In re Dow's Estate, 4 Drew. 194; while it was admitted that a child born in Scotland before the marriage of its parents, which took place in that country, where they were domiciled, was to be held legitimate by the law of the domicil, and as such entitled to the succession to personal estate, which, by the law of England, is controlled by the law of the domicil, yet the rule was maintained that such a child could not inherit lands in England, from its parent, nor the parent from the child. See, also, Gregg v. Tesson, 1 Black U. S. 150.

2 So, in Massachusetts, bastards are rendered legitimate to all intents and purposes by the intermarriage of their parents and recognition by the father. (Mass. Rev. Stat. c. 61, sec. 4. Laws, 1853, c. 253.) See similar statutes in Maine; Laws, 1852, c. 266; and in Pennsylvania, Laws, 1857, May 14.


* 210

the Roman law on this subject as a very humane provision in favor of the innocent. The opposition of the English barons to the introduction of the rule of the civil law, is supposed to have arisen, not so much from any aversion to the principle itself, as to the sanction which *would thereby be given to the superiority of the civil over their own common law. In the new civil code of France, (a) the rule of the civil law is adopted, provided the illegitimate children were not offsprings of incestuous or adulterous intercourse, and were duly acknowledged by their parents before marriage, or in the act of celebration. Voet (6) presses this doctrine of legitimation by a subsequent marriage to a very great extent. Thus, if A. has a natural son, and then marries another woman, and has a son, who is at his birth the lawful heir, and his wife dies, and he then marries the woman by whom he had the natural son, and has sons by her; according to the doctrine of the Dutch law, as stated by Voet, the bastard thus legitimated excludes, by his right of primogeniture, not only his brothers of the full blood, by the last marriage, but the son of the first marriage. The latter is thus deprived of the right of inheritance, once vested in him by his primogeniture, by an act of his father to which he never consented. The civil-law rule of retrospective legitimation will sometimes lead to this rigorous consequence. (c) 1

But not only children born before marriage, but those who are born so long after the death of the husband as to destroy all pre

(a) Code Civil, Nos. 331, 332, 333, 335. (6) Com. Ad. Pand. 25, 7, sec. 11.

(c) Mr. More, the learned editor of Lord Stair's Institutions, vol. i. note c. p. 33, says, that the weight of authority seems to be, that an intervening marriage, and the birth of lawful issue, would form a bar to the legitimation of the first-born children born out of wedlock. A recent traveller, of great intelligence and of a high moral tone, considers the legitimation of bastards by the subsequent marriage of the parents, as of a very immoral tendency, and an encouragement to the increase of spurious offspring. Turnbull's Austria, vol. ii. 205, edit. London, 1840.

1 The legislature, it is held in Georgia, has the power to render bastard children legitimate and capable of inheriting. Beall v. Beall, 8 Geo. 210. But an Act of the legislature, changing the name of an illegitimate child, and declaring her capable of inheriting, inasmuch as it did not declare her the legitimate heir of any one, was construed to have no other effect than of changing the name. Edmonson v. Dyson, 7 Geo. 512. Statutes of legitimation shall be favorably construed. Swanson o. Swanson, 2 Swan, 446. The right to inherit given by the statute was construed to confer by implication the right to take under the statutes of distribution.


sumption of their being his; and also all children born during the long and continued absence of the husband, so that no access to the mother can be presumed, are reputed bastards. (d) The rule at common law (and which subsisted from the time of the Year Books down to the early part of the last century) declared the issue of every married woman to be legitimate, except in the two special cases of the impotency of the husband, and his absence

from the realm. (e) But in Pendrell v. Pendrell, (f) the * 211 absurd doctrine of making legitimacy rest *entirely and

conclusively upon the fact of the husband being infra quatuor maria, was exploded, and ever since that time the question of the legitimacy or illegitimacy of the child of a married woman has been regarded as a matter of fact resting on decided proof as to the non-access of the husband, and it is a question for a jury to determine. (a) The rule is, that where it clearly appears that

(d) Cro. Jac. 541. Co. Litt. 244 a. 1 Blacks. Com. 456, 457. The civil law and the Code Civil fixed the three hundredth day as the ultimum tempus gestationis. Dig. 38, 16, 3, 11. Code Civil, art. 312. Lord Coke considered nine months, or forty weeks, as the limitation in the English law; but the more modern doctrine is not to assign any precise limit to the period of gestation, but to leave it to be governed by circumstances. Harg. n. 2, Co. Litt. 244 a. Gardner Peerage Case, in 1825.

(e) Co. Litt. 244 a. Done & Egerton v. Hinton & Starkey, 1 Roll. Abr. 358.
(f) Str. Rep. 925.

(a) 3 P. Wms. 275, 276. Str. Rep. 925. Salk. 123. Harg. note, No. 193, to lib. 2, Co. Litt.' Butler's note, No. 178, to lib. 3, Co. Litt. 4 Term, 251, 356. 4 Bro. C.C. 90. 8 East, 193. Com. Dig. tit. Bastard, A. B. Head v. Head, 1 Sim. & Stu. 150. 1 Turn. & Russ. 138, S. C., and the opinions of the judges given to the House of Lords in the Banbury Peerage Case, in 1811, Ibid. 153. Shelford's Marriage and Divorce, 707–723. 4 Petersdorff's Abr. 170. Cross v. Cross, 3 Paige, 139. Commonwealth v. Wentz, 1 Ashmead, 269. Bury r. Phillpot, 2 Mylne & Keene, 349. Stegall v. Stegall, 2 Brock. 256. Commonwealth v. Shepherd, 6 Binney, 286. The decision in the Banbury Peerage Case has been severely criticized by Sir Harris Nicholas, in his Treatise on the Law of Adulterine Bastardy, 1836; and the old rule requiring proof, not of the improbability only, but of the impossibility of the husband being the father of the child, is supposed to be the better law and the better policy. It appears to me that justice and policy are concerned in some relaxation of the old rule of evidence. It was too stringent and violent to be endured. But we are admonished, on the other hand, of the necessity of requiring perfectly satisfactory proof of non-access of the husband, before the child is to be doomed to lose its legitimate rights and character. By the statute law of New York, if the husband continues absent, out of the state, for one whole year previous to the birth of the child, separate from the mother, and leaves the mother during the time continuing and residing in the state, the child is deemed a bastard. So it is a bastard if begotten and born during the separation of its mother from her husband, pursnant to the decree of any court of competent jurisdiction. N. Y. Revised Statutes, vol i. p. 641, sec. 1. The statute declares that the child, in such cases, shull be deemed a bustard. Still, the statute may be so construed as to let in proof to rebut

the husband could not have been the father of the child, it is a bastard, though * born, or begotten and born, during * 212 marriage. (a)' It is not necessary that I should dwell more particularly on this branch of the law; and the principles and reasoning, upon which this doctrine of presumption applicable to the question of legitimacy is founded, will be seen at large in the cases to which I have referred. (6)

A bastard being, in the eye of the law nullius filius, (c) or, as the civil law, from the difficulty of ascertaining the father, equally concluded, patrem habere non intelliguntur, (d) he has no inheritable blood, and is incapable of inheriting as heir, either to his

the presumption of non-access of the husband, and justify the inference of cohabitation in the case of a qualified divorce. If this be not the construction, then the law, as it stood before, resting on principles adapted to the circumstances, was wiser and safer. The Code Napoleon is stricter than the English rule, for it allows the issue to be bastardized only on proof that, by reason of distance or accident, cohabitation of husband and wife was impossible. Code Napoleon, n. 312. So, in Louisiana, it is held, in case of voluntary separation, that access is always presumed, unless cohabitation was physically impossible. Tate v. Pene, 19 Martin, 548. The observations of the master of the rolls, in Bury v. Phillpot, are almost as strong. The civil law admitted proof of a moral impossibility of access. See Edin. Review, No. 97, a review of Le Merchant's Report of the Proceedings in the House of Lords on the claims to the Barony of Gardner, in which the law of legitimacy is fully and ably discussed. See, also, Burge's Com. on Colonial and Foreign Laws, vol. i. 57–92, where the law of legitimacy is examined at large, and the civil law and the continental, as well as English authorities, brought to bear on this subject.?

(a) The King v. Luffe, 8 East, 193.

(6) If the child be born immediately after marriage, it is still a legitimate child, unless the non-access of the husband prior to the marriage be sufficiently proved. Co. Litt. 244 a.

1 Blacks. Com. 455. Lawrence J., and Le Blanc J., in The King v. Luffe, 8 East, 210, 211. Pater est quem nuptiæ demonstrant. Subsequenti connubii fædere omnem conceptionis maculam tollente.

(c) Co. Litt. 123 a. (d) Inst. 1, 10, 12.

1 Patterson v. Gaines, 6 How. U. S. 550, 589. Van Aernam v. Van Aernam, 1 Barb. Ch. 375. In the first of these cases the rule is laid down more strictly than in the second. Where a child was born of a woman living separate from her husband, it was held, on the question of the legitimacy of the child, that the husband was inadmissible as a witness to prove access. Patchett v. Holgate, 13 Eng. L. & Eq. 100. Nor is the mother a competent witness to prove non-access of the husband. People v. Overseers, &c., 15 Barb. (N. Y.) 286. Parker v. Way, 15 N. Hamp. 45. Dennison v. Page, 29 Penn. (State,) 420. See, also, Kleinert v. Ehlers, 38 Penn. (State,) 439. Hemmenway v. Towner, 1 Allen, 209. Phillips v. Allen, 2 Allen, 453.

Wright v. Hicks, 15 Geo. 160. State v. Herman, 13 Ired. (N. C.) 502. The legal presumption, that the husband of the mother is the father of all children conceived during the mar. riage, can only be rebutted in the mode and within the time prescribed by law. Dejol v. Johnson, 12 La. An. 583.

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putative father, or his mother, or to any one else, nor can he have heirs but of his own body. (e) ? This rule of the common law, so far at least as it excludes him from inheriting as heir to his mother, is supposed to be founded partly in policy, to discourage illicit commerce between the sexes. Selden said, (f) that not only the laws of England, but those of all other civil states excluded bastards from inheritance, unless there was a subsequent legitimation. Bastards are incapable of taking in New York, under the law of descents, and under the statute of distribution of intestates' 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, 3 Ohio, 4 Indiana, Missouri, Illinois, Tennessee, North Carolina, Alabama, and Georgia, bastards can inherit from, and transmit to their mothers, real and personal estate, under some modifications, which prevail particularly in the states of Connecticut, Illinois,

North Carolina, and Tennessee; and in New York, the estate * 213 of an illegitimate intestate descends to the mother,

the relatives on the part of the mother. (a) In North Carolina, the legislature, (b) enabled bastards to be legitimated, on the intermarriage of the putative father with the mother, or, if she be dead, or reside out of the state, or married to another, on his petition, so far as to enable the child to inherit, as if he was

* and

(e) 1 Blacks. Com. 459.
(f) Note C. to Fortescue De Laud. Leg. Ang. ch. 40.

(a) Griffith's Law Register, h. t. New York Revised Statutes, vol. i. p. 753, sec. 14, Ibid. p. 754, sec. 19. See, also, vol. iv. p. 413. In Georgia, bastards dying intestate, without issue, the brothers and sisters of the same mother take by descent. Prince's Dig. 202. In Alabama, the kindred of a bastard on the part of his mother is entitled to the distribution of his personal estate. Aikin's Dig. 2d edit. 129.1

(6) Revised Statutes of North Carolina, vol. i. 92.

. For the rules of construction of legacies and devises, in respect to illegitimate children, see post, vol. iv. p. 438, n.

3 In Kentucky, the bastard child of a negro woman, both having been emancipated, may inherit as heir at law of her mother. Jackson v. Collins, 16 B. Mon. (Ky.) 214.

4 And in Ohio, under an Act passed March 14, 1853, the property of an intestate bastard, who survives his mother, will go in distribution to the children of his mother by a subsequent marriage. Lewis v. Eutsler, 4 Ohio (N. S.) 354.

1 In Maryland, an illegitimate child shares equally with the other children in his mother's estate. Earle v. Dawes, 3 Maryl. Ch. 230. Neither the mother nor her legitimate children shall inherit the estate of her bastard son, unless she have married his father. Miller . Stewart, 8 Gill, 128.

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