well as the other primary duties of domestic life, have generally been the object of municipal law. Disobedience to parents was punished under the Jewish law with death; (a) and with the Hindoos it was attended with the loss of the child's inheritance. (b) Nor can the classical scholar be at a loss to recollect how assiduously the ancient Greeks provided for the exercise of filial gratitude. They considered the neglect of it to be extremely impious, and attended with the most certain effects of divine vengeance. (c) It was only an object of civil animad-. version. Solon ordered all persons who refused to make due provisions for their parents to be punished with infamy; and the same penalty was incurred for personal violence towards them.(d) When children undertook any hazardous enterprise, it was customary to engage a friend to maintain and protect their parents; and we have a beautiful allusion to this custom in the speech which Virgil puts into the mouth of Euryalus, when rushing into danger. (e)

The laws of New York have, in some small degree, *208 taken care to enforce this duty, not only by leaving it in the power of the parent, in his discretion, totally to disinherit, by will, his ungrateful children, but by compelling the children (being of sufficient ability) of poor, old, lame, or impotent persons, (not able to maintain themselves,) to relieve and maintain them. (f) This is the only legal provision made (for the common law makes none) to enforce a plain obligation of the law of nature. (g) It has more than once been held in this country, after a critical examination of authorities, that a moral obligation, without some preëxisting legal obligation

(a) Deut. c. xxi. 18.

(b) Gentoo Code, by Halhed, p. 64. The first emigrants to Massachusetts followed the Jewish law, and made filial disobedience a capital crime. Governor Hutchinson, in his History of Massachusetts, vol. i. p. 441, says that he had met with but one conviction under that sanguinary law, and that offender was reprieved.

(c) Iliad, b. 9, v. 454. Odyss. b. 2, v. 134. Hesiod's Oper. & Die. b. 1, v. 183–

186.

(d) Potter's Greek Antiq. vol. ii. pp. 347-351.

(e) Tu, oro solare inopem, et succurere relicta. Æneid, 9, 283.

(f) N. Y. Revised Statutes, vol. i. p. 614.

(g) Le Blanc, J., 4 East's Rep. 84. Edwards v. Davis, 16 Johns. Rep. 281. Rex v. Munden, Str. Rep. 190.

applicable to the subject matter, was not a sufficient consideration for a promise; and, consequently, that the promise of a son to pay for past expenditures in relief of an indigent parent, or of a father to pay for the relief of a poor and sick son, who was of age and indigent, and not a member of his family, was not binding in law. (a)

IV. Of illegitimate children.

I proceed next to examine the situation of illegitimate children, or bastards, being persons who are begotten and born out of lawful wedlock.

These unhappy fruits of illicit connection were, by the civil and canon laws, made capable of being legitimated by the subsequent marriage of their parents; and this doctrine of legitimation prevails at this day, with different modifications, in France, Germany, Holland, and Scotland. (b) But *this principle has never been introduced into the Eng- *209 lish law; (c) and Sir William Blackstone (d) has zeal

Cook v. Bradley, 7 Coun. Rep. 57.

(a) Mills v. Wymann, 3 Pick. Rep. 207. (b) Coustoumier de Normandie, ch. 27. 2 Domat, 361. Code Civil, No. 331. 1 Ersk. Inst. 116. Inst. 1, 10, 13. Code, 5, 27, 10. Novel, 89, c. 8. Butler's note, 181 to lib. 3, Co. Litt. Voet, Com. ad Pand. 25, 7, sec. 6 and 11. Dissertation dans laquelle on discute les Principes du Droit Romain, et du Droit François, par rapport aux Batards. Oeuvres de Chancelier D'Aguesseau, tom. vii. 381, 470.

(e) In Doe ex dem. Birtwhistle v. Vardill, 5 Barnew. & Cress. 438, it was held, that a child born in Scotland of unmarried parents domiciled there, and who afterwards marries, could not inherit lands in England, for the English law does not recognize the legitimation of persons so born, by the subsequent marriage of the parents, and follows its own rules of descent. But the case was afterwards carried up on error to the House of Lords, and though the twelve judges gave their opinion to the lords that the judgment was correct, yet Lord Chancellor Brougham suggested doubts, and a further argument was ordered before the lords. Birtwhistle v. Vardill, 9 Bligh. Rep. 72-88. 6 Bing. N. C. 385. 2 Clark & Finn. 571-600. 1 Scott, N. R. 828, S. C., and the doctrine of the K. B. affirmed. The principle which Lord Brougham contended for was, that the law of the country where the marriage of the parents and the birth of the child took place, determined the legitimacy of the child, and that if by the law of the place the marriage had a retrospective effect, and by fiction of law held the child to have been born in lawful wedlock, the English courts ought so to regard it, and that he was entitled to take, as lawful heir, his father's inheritance in England. But on the rehearing of the case, the opinion of the judges was not changed, and the judgment below was affirmed. By the Scotch law, the subsequent marriage in Scot

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

ously maintained, in this respect, the superior policy of the common law. (a) 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 usitata sunt et approbata. (b)

Selden, in his Dissertation upon Fleta, (c) 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, (d) speaks of 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

*210

land of the parents will not legitimate the previous issue born in a country where such marriage does not render legitimate such issue. Bell's Principles of the Law of Scotland, sec. 1628, vide post, p. 430.1

(a) It is a remarkable fact, that in many of the United States, the rule of the civil law, that ante-nuptial children are legitimated by the father's marriage to the mother, and recognition of the children, prevails, in opposition to the common law, viz: 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

(b) 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.

(c) Ch. 9, sec. 2.

(d) 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.

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, § 4. Laws, 1853, c. 253.) See similar statutes in Maine; Laws, 1852, c. 266; and in Pennsylvania; Laws, 1857, May 14.

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 (b) 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 presumption 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 bas

(a) Code Civil, Nos. 331, 332, 333, 335.

(b) 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. R. 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 that of changing the name. Edmondson v. Dyson, 7 Geo. R. 512. Statutes of legitimation shall be favorably construed. Swanson v. 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.

tards. (a) 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. (b) But in Pendrell v. Pendrell, (c) the absurd doctrine of making legitimacy * 211 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. (d) The rule

(a) 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, to Co. Litt. 244 a. Gardner Peerage Case, in 1825. (b) Co. Litt. 244 a. Done & Egerton v. Hinton & Starkey, 1 Roll. Abr. 358. (c) Str. Rep. 925.

Harg. note, No. 193, to 4 Term Rep. 251, 356.

Head v. Head, 1 Si

(d) 3 P. Wms. 275, 276. Str. Rep. 925. Salk. Rep. 123. lib. 2, Co. Litt. Butler's note, No. 178, to lib. 3, Co. Litt. 4 Bro. Rep. 90. 8 East, 193. Com. Dig. tit. Bastard, A. B. mons & Stuart, 150. 1 Turner & Russell, 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's Rep. 139. Commonwealth v. Wentz, 1 Ashmead's Rep. 269. Bury v. Phillpot, 2 Mylne & Keene, 349. Stegall v. Stegall, 2 Brockenbrough, 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, pursuant 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, shall be deemed a bastard. Still, the statute may be so construed as to let in proof to rebut the presumption of non-access of the husband, and justify the inference of cohabitation in the case of a