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the common and civil law, was always a competent wituess to establish the fact of the father's identity, and Stevenson's yet never resorted to for the purpose of making her child heir to the father, we have a right to conclude, Sullivant that the recognition required by the statute, is something more than mere evidence of the fact.
3. The appellants claim as heirs of Richard Stevenson, under the 18th section, and in support of this claim they contend, that the terms, " inheriting or transmitting inheritance on the part of the mother, in like manner as if they had been lawfully begotten of such mother,” confer a capacity to inherit and transmit inheritance in the ascending as well as descending line, and also from and among collaterals. Their doctrine amounts plainly to this : that by the true construction of the second member of the 18th section, bastards are made the legitimate children of their mothers, at least for the purposes of inheritance.
In expounding the statute of descents, it has been justly remarked by Judge Tucker, that the framers of it were eminent sages of the law, and complete masters of its technical terms. This being the case, it would be reasonable to look for the same technical language, in all cases where the same thing was inlended. When in the 19th section of the act of descents, and also in the marriage act, they remove from certain classes of bastards all the disabilities under which they laboured, they employ that legal term which conveys their meaning clearly, and leaves nothing for construction. They say they shall be " legitimate,” not that they shall be capable of inheriting “ on the part of their mothers and fathers ;" leaving
us to inquire after the extent of the capacity. The Stevenson's
law causes them to change characters. They cease
to be bastards, and become the legitimate children Sullivant. of their father and mother. The consequences of
their legitimacy follows. They have father and mother, sisters and brothers, uncles and aunts, with an universal capacity of inheriting and transmitting inheritance. The 18th section immediately preceding, if it had been intended to make bastard children the legitimate offspring of their mothers, would have followed the same language, and would have left nothing to interpretation. That section would have read thus: “ In making title by descent, it shall be no bar to a party, that any ancestor through whom he derives bis descent from the intestate, is, or hath been an alien or a bastard. Bastards also shall be considered in law as the legitimate children of their mother.” The 19th section, like the marriage act, gives no new capacities to bastards as such. They make certain persons of that description legitimate, and the capacities of legitimacy follow of course. They inherit to both parents, not as bastards, but as their legitimate offspring.
The second proposition of this argument is, that all the disabilities of bastardy are of feudal origin. With us it is of Saxon origin. The term bastard being derived from a Saxon word, importing a bad, or base, original. The disabilities of bastardy are the same under the civil as under the common law, and in all ages and nations. He has no ancestor;
a Rees' Cyclopedia, art. Bastard. Cooper's Just. Inst. 37. 1 Bac. Abr. 510.
no name; can inherit to nobody, and nobody to him; can have no collaterals nor other relatives except Stevenson's those descended from him. He can have no surname, until gained by reputation. This is the origin Sullivant. of new families. He is the propositus by common law. But by the civil law he can inherit his mother's estate." She is, therefore, the propositus of the civil law. Collaterals descended from a male relative are by the civil law termed agnati ; those descended from a female relative cognati. In a note to Cooper's Justinian, which I take to be from the pen of Sir Henry Spelman, it is said that illegitimate children can have no agnati-Quia neque gentem neque familiam habent.
If for this reason they can have no agnati, it follows that they can have no cognati; and this is the reason of Justinian's broad proposition, that bastards can have no collaterals ; which is our doctrine in this case.
It is admitted that the 18th section does not give legitimacy except specially for inheritance ; that is, it removes that incapacity, and no other : finding and leaving them bastards. Now, there are no other disabilities except the incapacity to inherit or to hold a church dignity. And since these dignities do not exist in the United States, if it had been the intention of the legislature to place the bastard on the footing of a lawful child of his mother, for the purposes of inheritance, and thus to admit him among collaterals in her line, it is inconceivable why they should not have
a 2 BI. Comm. 247.
6 Cooper's Just, Inst. 561. c Cooper's Just. Inst. 561, note. d 1 Bl. Comm. 459.
said at once, that bastards shall be considered in law Stevenson's the legitimate children of their mother. Instead of
which, they have used a technical term, ex parte maSuihvant. terna ; which in the civil law is constantly opposed
to this other term, ex linea muterna. The first importing a capacity of lineal inheritance;
the other, that, and collateral inheritance also. Neither by the common nor civil law could she inherit to her child, even chattels; she is not mother for inheritable
purposes by either code; and the 18th section has given her no inheritable blood of her child. Being incapable of inheriting herself, she cannot give inheritance to a legitimate child by the civil law; because, by one of its canons, the child can never succeed by representation or succession, where the parent could
So far, therefore, is the assertion, that the heritable disabilities of bastardy are of feudal origin, from being correct, that they were known and enforced from time immemorial in all nations; were known and enforced in England, before the Norman sat foot there. The Ecclesiastics at Merton did not demand of the king that bastards should inherit even to their mother. They simply demanded, that by the intermarriage of their parents they should become legitimate ; which was refused.
But it is contended by the appellants' counsel, that the words, “ in like manner as if lawfully begotten of such mother," apply as well to collateral as lineal inheritance. But what is that which a bastard has capacity to do, “ in like manner as if lawfully begotten of his mother ? The answer is in the words of
the statute, “ of inheriting and transmitting inheritance on the part of his mother.”
Stevenson's But, we insist, that although Richard Stevenson, the son, took by purchase from the State; yet he Sullivant. took quasi heir, to hold as such to the use of his male ancestry, under the equity of the 5th section of the act of descents : “ Provided, nevertheless, that where an infant shall die without issue, having title to any real estate of inheritance derived by purchase or descent from the father ; neither the mother of such infant, or any issue which she may have by any person other than the father of such infant, shall succeed to, or enjoy the same, or any part thereof, if there be living any brother or sister of such infant on the part of the father, or any brother or sister of the father, or any lineal descendant of either of them.” The principle of this section is, that the estate which came from a male ancestor, shall return to his stock. The principle of the 6th section, immediately following it, is the same; that the estate which came from a female ancestor, shall return to her stock. It is admitted, that the case of Richard Stevenson is not within the letter of the 5th section; but is it not within the equity of it? The estate came not from the father by descent, or by gift; but in equity we may pursue the consideration of the grant, and have a right to inquire, whether that consideration was furnished in common, by the paternal and maternal kindred; and, therefore, ought to pass to both lines. The consideration of the grant to Richard Stevenson, is his father's military service, and his death in that service. Loss is a valua