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modifications, in France, Germany, Holland, and *209 Scotland. But this principle has never been introduced into the English law; and Sir William Blackstonec has zealously maintained, in this respect, the superior policy of the common law. We have, in relation to this subject, a memorable case in English history.

a Coustoumier de Normandie, ch. 27. 331. 1 Ersk. Inst. 116. Inst. 1, 10, 13.

8.

Butler's note, 181 to lib. 3 Co Litt.

2 Domat. 361. Code Civil, No.

Code, 5, 27, 10. Novel, 89, c. Voet, Com. ad Pand. 25, 7, sec.

6 and 11. Dissertation dans laquelle on discute les Principes du Droit Romain, et du Droit Francois, par rapport aux Batards. Oeuvres de Chancelier D' Aguesseau, tom. vii. 381, 470.

b In Doe ex dem. Birtwhistle v. Vardill, 5 Barnw. & Cress. 433, 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 legitimacy, by foreign law and by marriage, of persons so born, 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 Scotland 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.

c Com. vol. i. p. 455.

d 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. Aitkin's Dig. 2d. edit. 77. 212, 213.

See P.

When the English bishops, in the reign of Hen. 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 usitatæ sunt et approbatæ.a

Selden, in his Dissertation upon Fleta,b 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, speaks of the Roman law on this subject as a very humane provision in favour 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 there- *210 by be given to the superiority of the civil over their own common law. In the new civil code of France, 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. Voete 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

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

b Ch. 9, sec. 2.

• P. 38.

a Code Civil, No. 331, 332, 333, 335.

e Com. ad Pand, 25. 7. sec. 11.

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.a

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 bastards. 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. But in Pendrell v.

Mr. More, the learned editor of Lord Stair's Institutions, vol. 1. 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.

b 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 40 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. b. Gardner Peerage, Case in 1825.

c Co. Litt. 244. a. Done & Egerton v. Hinton & Starkey, 1 Roll. Abr.

a

Pendrell, the absurd doctrine of making legitimacy *rest entirely and conclusively upon the fact *211 of the husband being infra quatour 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. The rule is, that

Str. Rep. 925.

b 3 P. Wms. 275. 276.

Com. Dig. tit. Bas

1 Turner & Rus

Str. Rep. 925. Salk. Rep. 123. Harg. note, No. 193 to lib. 2 Co. Litt. Butler's note, No. 178 to lib. 3 Co. Litt. 4 Term Rep. 251.356. 4 Bro. Rep. 90. 8 East, 193. tard, A. B. Head v. Head, 1 Simons & Stuart, 150. sell, 138, S. C., and the opinions of the judges given to the House of Lords in the Banbury Peerage Case in 1813, 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. 631 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 qualified divorce. If this be not the construction, then the law, as it stood before, resting on principles adapted to circumstances, was wiser and safer. The Code Napoleon is stricter than the English rule, for it allows the issue to be bastarded only on proof that, by reason of distance

where it clearly appears that the husband could not have been the father of the child, it is a bastard, though *212 *born, or begotten and born, during marriage. 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.b

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 putative father, or his mother, or to any one else, nor can he have heirs but of his own body. 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

or accident, cohabitation of husband and wife was impossible. Code Napoleon, n. 312. So, in Louisiana, it is held, in cases of voluntary separation, that access is always presumed, unless cohabitation was physically impossible. Tate v. Penne, 19 Martin's Rep. 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 Comm. 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 the subject.

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

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. 454. 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.

a Inst. 1. 10. 12.

e 1 Blacks. Com. 459.

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