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Heirs

v.

1820. whom he derives his descent, was, or shall have been, Stevenson's an alien. Bastards also shall be capable of inherit

ing or transmitting inheritance on the part of their Sullivant. mother, in like manner as if lawfully begotten of

such mother.

In the construction of statutes no authority need be quoted for the following rules of interpretation. 1st. All the acts passed at any one session of a legislative body are to be taken together as one act. 2d. Consequently, the same words or phrases, as often as they occur, are to be construed to have the same meaning when that can be given them without gross violation of the sense. 3d. The acts of the same session, made in pari materia, are to be taken together as one act. The marriage act, the act of descents, the statute of wills and distributions, and the act respecting dower, were made in pari materia. Marriage is the source of all legitimate birth, and, as such, the cause of dower, of descents, and of distributions. These laws have extraordinary claims to be considered as one statute. They were compiled at the same time, by the same committee, composed of the ablest lawyers and civilians of their country--enacted at the same session of the same legislative body, in the same year, (1785;) and, lastly, all went into operation at the same time, on the 1st of January, 1789. They will be found to contain a complete code for the government of domestic relations, without any contradictions or discrepancies. These four statutes contain 164 sections; in almost every one of which the future verb shall occurs, and in all of which, with the exception

1820.

Heirs

of the 7th section of the marriage act, (which confirms past irregular marriages,) its future operation Stevenson's cannot be disputed, nor never has been disputed.

With the rules of construction already stated, and Sullivant.. this view of the four statutes, we will proceed to show, that the appellants' construction of the 19th section is incorrect. And this, Ist, on principle, and, 2dly, on authority. First. The rules of construction entitle as to give to the verb shall, in this section, the same meaning intended whenever it occurs in any of the statutes. If the legislature had intended to confer legitimacy on those recognized before the 1st of July, 1787, they certainly would have left us nothing for construction. They would not have been less cautious than in the preceding section they had shown themselves on a less important subjec; "is or hath been an alien,” &c. Again ; it is the obvious policy of a just legislature, that this act should operate prospectively, not retrospectively. Words which might bear both constructions, ought to be expounded according to that policy; to give a statute a retroactive effect without evident necessity, is inconsistent with this policy. To give to this act an operation upon past births and marriages, is to carry the liberality of construction far indeed. But to cause it to operate on the past recognitions of the father who is dead, before the commencement of the statute itself, would be unjustifiable. The principle of the law is, that after marriage, the father, if he pleases, may render his children legitimate. Legitimation, in this view, is the effect of the father's agreement; an effect of which he must be sensible,

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to make it his act. It is easy to conceive of cases in which a father, willing to soothe his wife, and make the best of his case, might be brought to say that her children, born before their marriage, were his, at a time when such acknowledgment would have no legal effect whatever; but who, with the provisions of this statute before him, would make such an acknowledgment; an acknowledgment which would make the child his heir, and pledge him to the mother and the world to provide for it as such: To construe the act as having a retrospective effect on past recognitions, would, therefore, be against the general policy of legislation; contrary, often, to the wish of a deceased individual; and might be productive of much injury to private rights.

But, it is said, that the possible interest which children have in the property of their father in his life time, is not of that absolute character which the legislature cannot control. This is admitted, and the statute of descents is an exercise of such a control. But the new rule of descents created by that act, is known to the proprietor in his life time, and if that pleases him not, the statute of wills, of the same date, is placed in his hands, and enables him to control the act of descents. Again; it is a maxim that nemo est hæres riventis. In life, the relation of father and child exists between legitimates, but not between illegitimates. The relation of ancestor and heir, presumptive or expectant, may exist while the former is still living. But the legal relation of ancestor and heir never does exist until the death of the father. The moment the eyes of the father are closed in death, is

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Heirs

V.

that in which this legal relation begins to exist, and from that time it becomes unalterable. So, after his decease, Hugh Stephenson became ancestor to. Richard in ventre sa mere; but not the ancestor of the Sullivant. appellants.

To examine the 19th section upon authority. The cases of Rice et al. v. Efford et al." and of Stones v. Keeling, and Hughes v. Striker, are all that bear upon the subject. The only question which seemed to create much difficulty in those cases was, whether births and marriages, before the act, were embraced by it? and the decisions are, that such births and marriages are embraced, where the children, born before wedlock, had been recognized by the father, after the 1st of January, 1787. But this is said to be nothing more than an obiter dictum of Judge Roane. But we regard it as the reasoning of the Court, given by the only Judge who gave any reason for the decision. A decision, that marriages and births, before the act, are embraced by its provisions, because the recognition took place after the act was in force, is plainly a decision, that, but for the subsequent recognition, prior marriages and births could not be considered as within the act. These cases furnish good authority for applying the 7th section of the marriage act, to marriages contracted befores but existing on the 1st of January, 1787; and for substituting the words “ hath been,” in the act of descents respecting aliens, for the words “ shall have been.If this be correct, both those provisions will accord with the residue of the acts containing them,

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Heirs

V. Sullivant.

and with the act concerning dower, and the statute of wills and distributions. The operation of all, will then be prospective.

The statute of descents shows, that wherever, in adopting the civil law, its framers meant to exceed or fall short of its provisions, they have done so in explicit terms. By the civil law, the marriage of the parents legitimated the children previously born, without the father's recognition. This legitimation was the subject of the famous proceeding at the parliament of Merton. The ecclesiastics there demanded, that the marriage of the parent should legitimate the children; to which the barons returned their memorable answer : “ Nolumus leges Angliæ mutari." The common lawyers of England, therefore, would not agree to adopt the civil law in this particular. But the common lawyers of Virginia, who compiled the act of 1785, determined to adopt the civil law in this particular, sub modo ; that the marriage of the parents should legitimate the children, provided the father should afterwards recognize them. It is contended, on the other side, that this recognition is nothing more than statutory evidence of the fact, which might be otherwise proved, and is not of itself a substantive provision. If this argument be correct, then by the common and civil law a bastard must always have been the heir of his natural father, provided the identity of that natural father could be proved. But as we know that the mother, both by

a 1 Bl. Comm. 455. Just. Inst. l. 1. tit. 11. 8. 13.
b 1 Bl. Comm. 455.

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