dower, and the statute of wills and dist tions. The operation of all will then be p pective.

The statute of descents shows, that where in adopting the civil law, its framers mean exceed or fall short of its provisions, they done so in explicit terms. By the civil law marriage of the parents legitimated the chil previously born, without the father's reco nition. This legitimation was the subjec the famous proceeding at the Parliamen Merton. The ecclesiastics there demanded the marriage of the parent should legitin the children; to which the barons retu their memorable answer: "Nolumus leges gliæ mutari." The common lawyers of land, therefore, would not agree to adopt civil law in this particular. But the mon lawyers of Virginia, who compiled the of 1785, determined to adopt the civil la this particular, sub modo; that the marriag the parents should legitimate the children, vided the father should afterwards recog them. It is contended, on the other side, this recognition is nothing more than statu evidence of the fact, which might be other proved, and is not of itself a substantive pr sion. If this argument be correct, then by common and civil law a bastard must alv have been the heir of his natural father, pro

ing 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 not 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 lifetime 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 viventis. 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 lived the identity of that natural father coul ing. 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 223*] closed in death, is that in which this legal relation begins to exist, and from that time it becomes unalterable. So, after his decease, Hugh Stevenson became ancestor to Richard in ventre sa mere; but not the ancestor of the appellants.

proved. But as we know that the mother, by the common and civil law, was al- [* ways a competent witness to establish the of the father's identity, and yet never reso to for the purpose of making her child hei the father, we have a right to conclude that recognition required by the statute is somet more than mere evidence of the fact.

3. The appellants claim as heirs of Ricl Stevenson, under the 18th section, and in port of this claim they contend that the te "inheriting or transmitting inheritance on part of the mother, in like manner as if had been lawfully begotten of such mot confer a capacity to inherit and transmit inl tance in the ascending as well as descen line and also from and among collaterals. T

true construction of the second member of 18th section, bastards are made the legitim children of their mothers, at least for the poses of inheritance.

To examine the 19th section upon authority. The cases of Rice et al. v. Efford et al.1 and of Stones v. Keeling, and Hughes v. Striker, are all that bear upon the subject. The only question which seemed to create much difliculty 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 wed-doctrine amounts plainly to this: that by lock, 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 before, 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 224*] them, and with the act concerning

1.-3 Henn. & Munf. 225. 2.-Id.

In expounding the statute of descents, it been justly remarked by Judge Tucker, the framers of it were eminent sages of the and complete masters of its technical ter This being the case, it would be reasonable look for the same technical language in all es where the same thing was intended. W in the 19th section of the act of descents, also in the marriage act, they remove from tain classes of bastards all the disabilities der which they labored, they employ that l term which conveys their meaning clearly, leaves nothing for construction. They say t shall be "legitimate," not that they shall be able of inheriting "on the part of their mot and fathers;" leaving *us to inquire [*: after the extent of the capacity. The law ca 3.--1 Bl. Comm. 455; Just. Inst., 1. 1, tit. 1. 13. 4.-1 BI. Comm. 455.

es them to change characters. They cease to be bastards, and become the legitimate children 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 his 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.

which they have used a technical term, ex-parte materna; which, in the civil law, is constantly opposed to this other term, ex linea materna. 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 inheri tance to a legitimate child by the civil laws; because, by one of its canons, the child can never succeed by representation or succession, where the parent could not.

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 trans- [*229

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 disa bilities of bastardy are the same under the civil as under the common law, and in all ages and 227*]nations. He has no ancestor; *no name; can inherit to nobody, and nobody to him; can have no collaterals nor other relatives except those descended from him. He can have no sur-mitting inheritance on the part of his mother." name, until gained by reputation. This is the origin 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 a 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 228*] they should not have *said at once that bastards shall be considered in law the legitimate children of their mother. Instead of

But, we insist, that although Richard Stevenson, the son, took by purchase from the state, yet he 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 fol lowing 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

1.-Rees's Cyclopedia, art. Bastard; Cooper's valuable *consideration for a grant, and [*230

Just. Inst. 37; 1 Bac. Abr. 510.

2.-2 Bl. Comm. 247.

3. Cooper's Just. Inst. 561.

4. Cooper's Just. Inst. 561, note.

5.-1 Bl. Comm. 459.

the grant ought, in consequence, to be made to the heir of the family suffering the loss. A military bounty is in the nature of compensation for a loss, or of a gratuity for services. It

I

celebrated case of Tomlinson and Delland." original decision in that case, which sub the succession to personal property, to the dal principle, which, in relation to lands, re ed the blood of the first purchaser, had made in 1801. It having produced great e ment in the state, and being very gen disapproved, a reconsideration was most s kin-uously pressed in 1810, nine years only the original decree; but a majority of the was of the opinion that the inconvenien overthrowing what was already considered settled rule of property, was too great encountered, even if the decision were erro at first. It is true, that they thought th cision called for by the stern language o law; but from one of the judges this op was wrung with such manifest reluctance it was believed he would have come to a d ent result had the question been res int Here the rule having been settled, the will say how far it ought now to be consi as the settled law of the state.

for which we contend (by considering both
facts as posterior to the act, but the marriage
as being posterior to the birth), gives the
word, afterwards, force and significancy; it
then performs the office of arranging the order
of the two future events. In this point we dif-
fer from the Court of Appeals of Virginia, and
insist, that the liberality which would apply
this act retrospectively, to previous births and
marriages, is a liberality which looks beyond the
judicial sphere, and belongs only to the legisla-
ture. What is the argument on which the
Court of Appeals (and the opposite counsel, af-
ter them) ground themselves in extending this
act to antecedent births and marriages? "I
see no difficulty," says Judge Roane, in Rice v.
Efford, "except what arises from the words,
shall afterwards intermarry, which might seem
to import only marriages to be celebrated in fu-
ture: that word, afterwards, however, is rather
to be referred to the birth of the children than
the passage of the act; and no good reason
could possibly have existed with the legislature
for varying the construction of a section, em-
bracing two descriptions of cases standing on
a similar foundation." The counsel for the ap-
pellants, seizing this *passage, has said [*237
the terms, "shall afterwards intermarry," are
correctly referred (by the court) to the birth
of the children, not to the date of the act. This
is not accurate: it is not the three words, shall
afterwards intermarry, that are referred by the
court to the birth of the children; but the word,
afterwards, alone. This, we admit, is correctly
referred to the birth of the children: but the
court having correctly gained this conclusion,
forget the force of the future verb, "shall inter-
marry." We say, that the force of the future
verb requires that the marriage shall be
after the act. That henceforth, "where a man
having by a woman one or more children, shall
afterwards intermarry with such woman,” ir-
resistibly demands a marriage future to the
date of the act; that the words, shall inter-
marry, make the marriage future in relation to
the act. The word, afterwards, removes the
marriage farther off, and marks its futurity in
relation to another event, the birth of the chil-
dren; which other event, although expressed by
the present participle, is itself drawn forward
into futurity by the force of the word after-
wards, to which it is attached. That such an
intention is utterly inconsistent with the pros-
pective character given to the whole act, by
the force of the word henceforth, and in the
commencement. That the force of this word
runs through the whole act; and that, used in
the clause under consideration, it would ren-
der the retrospective construction of that clause
absurd. In the passage cited, Judge Roane
says, that no good reason could possibly have
existed with the legislature for varying the con-
struction of a *section embracing two [*238
descriptions of cases, standing on a similar
foundation. This might have been a good ar-
gument on the floor of the legislature, to induce
them to embrace past cases; but it is no argu-
ment to prove that they have embraced them.
Whether they ought to have embraced them is
a very different question from whether they
have actually done so. The first is purely a

eration ought to be read thus: "Be it enacted | illustrate the sense. Whereas, the construction
that, henceforth (that is, after the 1st of Jan-
uary, 1787), where a man, having by a woman,
one or more children, shall, afterward, inter-
marry with such woman, such child or children,
if recognized by him, shall thereby be legiti-
mated." Is this language so irresistibly retro-
spective, in relation to the date of the law, that
the court is constrained to give it that construc-
tion? Is it not, on the contrary, so obviously
future and prospective, that it requires subtil-
ty and violence to wrest it to a retrospective
meaning? The verbs which indicate the acts
that are to produce the effect of legitimation,
are in the future tense. It is insisted, there-
fore, that the clause has no application to any
case, but to one in which all the facts of which
it is to operate, shall happen after its passage;
the birth of the children, the marriage, and the
recognition. It is true, that in speaking of the
children, the present participle is used, "hav-
ing one or more children." But the pres-
ent tense of this participle relates, not to the
time of passing the act, but to the time of the
marriage, “having," at the time of the marriage,
"one or more children." This is not a new use
of the present tense; grammarians tell us that
235] the present tense is occasionally used
to point at the relative time of a future action.
The true reading of this part of the act is this,
"where" (i. e., in all cases, hereafter, in which)
"a man shall marry a woman, having by him,
at the time, one or more children." Thus, the
participle, although present at the time of the
marriage, is future in relation to the passage of
the act. This is no unusual application of this
participle; if I say, "if a man shall go to
Rome, and having a dagger in his hand, shall
strike it to the heart of the Pope," the present
participle is properly used in it; it is present in
relation to the action with which it stands con-
nected, though future in relation to the time of
speaking. So the present participle here is
present in reference to the act with
which it clearly stands connected, the act of
marriage; although future in relation to the
date of the act. The sense is the same as if
the legislature had said, "wherever, hereafter,
a man shall have one or more children by a wo-
man, and shall, afterwards, intermarry with
her," etc. It is only by this construction which
considers both the birth and marriage as fu-
ture, that the word "afterwards,” used in the
act, acquires a grammatical sense, or, indeed,
any kind of sense. To prove this, let us see
what the effect will be of considering this par-
ticiple, as used in the present tense, in reference
to the time of passing the act. Then the sense
will be, "where a man now having one or more
children by a woman, shall afterwards inter-
marry with her:" it is clear that the word, af-
terwards, becomes insignificant and senseless.
It adds nothing to the meaning; for if a man
now having one or more children by a woman,
236] shall intermarry with her, he must of
necessity intermarry with her afterwards; for
the future verb, shall intermarry, makes the
act future, in relation to the passage of the
act; and the adverb of time, afterwards, added
to the verb, does not perform its appropriate
function of adding a new quality to the verb.
It is a useless clog, therefore, on the sense,
because its tendency is to obscure, and not to

1.-3 Henn. & Munf. 231.

when committed within the jurisdiction, or ships plundered must have relation to their (what is the same thing), in the vessel of an- register, or rather, to the documentary papers other nation, has not been acknowledged as a which establish their national character. But right, much less an obligation. It is punish- this we think wholly indefensible. It is obable under the laws of each state, and I am in-vious that such testimony might be suppressed clined to think that an acquittal in this case in various ways by the aggressors. Nor is it would not have been a good plea in a court of at all decisive of the real ownership of a vessel. Great Britain. Testing my construction of this Our laws recognize the possibility of the regsection, therefore, by the rule that I have as- ister's existing in the name of one, whilst the sumed, I am led to the conclusion that it does property is really in another person. The laws not extend the punishment for murder to the that require such documents to be on board a case of that offense committed by a foreigner vessel, have relation to financial, commercial, upon a foreigner in a foreign ship. But other- or international objects, but are not decisive wise as to piracy, for that is a crime within the or necessary in a prosecution for this offense. acknowledged reach of the punishing power of Property or character is a matter in pais, and Congress. As to our own citizens, I see no so to be established. However, it is unnecesreason why they should be exempted from the sary to examine the question farther, as we operation of the laws of the country, even have decided that the national character of the though in foreign service. Their subjection to vessels plundered was, in these cases, wholly those laws follows them everywhere; in our immaterial to the crime. own courts they are secured by the constitution from being twice put in jeopardy of life or member, and if they are also made amenable 198*] to the laws of another state, it is the result of their own act in subjecting themselves to those laws.

Nor is it any objection to this opinion, that the law declares murder to be piracy. These are things so essentially different in their nature, that not even the omnipotence of legislative power can confound or identify them. Had Congress, in this instance, declared piracy to be murder, the absurdity would have been felt and acknowledged; yet, with a view to the exercise of jurisdiction, it would have been more defensible than the reverse, for, in one case it would restrict the acknowledged scope of its legitimate powers, in the other extend it. If, by calling murder piracy, it might assert a jurisdiction over that offense committed by a foreigner in a foreign vessel, what offense might not be brought within their power by the same device? The most offensive interference with the governments of other nations might be defended on the precedent. Upon the whole, I am satisfied that Congress neither intended to punish murder in cases with which they had no right to interfere, nor leave unpunished the crime of piracy in any cases in which they might punish it; and this view of the subject appears to me to furnish the only sufficient key to the construction of the 8th section of the act of 1790.

As to piracy, since the decision that a vessel, by assuming a piratical character, is no longer included in the description of a foreign vessel, no case of difficulty can occur, unless the piracy be committed by the crew of a foreign vessel upon their own vessel, or by persons issuing 199*] immediately from shore. If *such cases occur under the act of 1790, I shall respectfully solicit a revision of Palmer's case, if it be considered as including those cases. And shall do the same in the case of murder committed by an American in a foreign ship, if it ever occur; under the belief that it never could have been the intention of Congress that such an offender should find this country a secure asylum to him.

There are few minor points presented in these cases which it is necessary to notice.

It was moved in favor of the prisoners, that the only legal testimony of the character of the

It was also moved, in two of the cases of piracy, that as the offenses charged were committed on vessels *then lying at anchor [*200 near the shore of the islands of Mayo and Bonavista, in a road, and within a marine league of the shore, the prisoners could not be convicted:

1. Because the words, "out of the jurisdiction of any particular state," in the 8th section of the act of 1790, includes foreign as well as domestic states.

2. Because a vessel at anchor in a road is not a vessel on the high seas, as charged in the indictment.

On the first point, we think it obvious, that out of any particular state, must be construed to mean "out of any one of the United States." By examining the context, it will be seen that particular state is uniformly used in contradistinction to United States. For what reason, it is not easy to imagine; but it is obvious that the only piracies omitted to be punished by that act are land piracies, and piracies committed in our waters.

On the second point, we are of opinion that a vessel in an open road may well be found by a jury to be on the seas. It is historically known, that in prosecuting trade with many places, vessels lie at anchor in open situations (and especially where the trade winds blow), under the lee of the land. Such vessels are neither in a river, haven, basin or bay, and are nowhere, unless it be on the seas. Being at anchor is immaterial, for this might happen in a thousand places in the open ocean, as on the Banks of Newfoundland. Nor can it be ob jected that it was within the jurisdictional limits of a foreign state; *for, those [*201 limits, though neutral to war, are not neutral to crimes.

It was also moved, in the same cases, that as there were two counts in the indictment, the one charging the offenses as committed on the high seas, the other in a haven, basin or bay, a general verdict of guilty could not be sustained on account of repugnancy and inconsistency, as both facts could not be true. But, on this, it is only necessary to remark, that each count is a distinct substantive charge. Internal repugnancy in any one is a good exception, but non constat as to the whole, taken severally, but each may be for a distinct offense.

There is, finally, another question certified to