the levitical degrees. In the case of Haines v. | mother, a channel is opened through which he Jeffell, the Court of King's Bench refused a pro- can have brothers and sisters, and every other hibition to stay proceedings in the Spiritual relative in the ascending and collateral line. It Court against Haines for marrying the bastard was because the bastard had no mother that daughter of his sister. And the court said it he could have no brothers and sisters. The act had always been held so; especially where it gives him a mother. He can inherit from, and was the child of a woman relative. Here the transmit inheritance to her direct. Heritable law expressly recognizes the collateral kindred blood can flow from the mother to her bastard between the uncle and his bastard niece. Bas- child, and be traced from the child to the tards are within the marriage act, which re- mother, and through the mother to brothers quires the consent of parents or guardians to and sisters, and uncles and aunts. The bastard the marriage of persons within age. In this is not legitimated; but his blood is made heritcase, Mr. Justice Buller declares that the rule able through that parent about whom there can that a bastard is nullius filius, applies only to be no doubt. The character of his blood being cases of inheritance, and says it was so con- changed, he is restored to his kindred in mat251*] sidered by Lord *Coke. Even Black- ters of inheritance-the only case in which the stone, who it quite a zealot for the common law separated him from them. It is true that law doctrines respecting bastards, admits, al- the appellants were not the brothers and sisters most in terms, that bastards were, at the time of Richard at the time of his birth, as far as he wrote, subject to no disability but the inca- concerned inheritance. But the act of [*253 pacity of inheritance. And Woodeson asserts 1785 has effected a change in their condition; the same thing. In passing the act, the legis- and from the day it took effect, they were in lature meant to effect a change in the legal con- law, and for the purposes of succession to esdition of bastards, by removing, to some ex- tates, his brothers and sisters of the half blood. tent, the only legal incapacity to which they Had Richard left brothers and sisters of the were subject; and this was a total disqualification whole blood, the 15th section of the act would to inherit or transmit estates, from or to as- expressly embrace their case. There was no cending or collateral kindred. It is therefore occasion to make express provision for the sucevident that the legislature contemplated con- cession of bastards, either in the law of deferring this capacity, in respect to the ascend- scents or in Judge Tucker's table, because the ing or collateral kindred, or both. The civil general provision for the half blood included law distinguished bastards into four classes: their case. This is clearly the mode of succesThose born in concubinage succeeded to the ef- sion contemplated. They shall inherit in like fects of their mother and relatives, and in some manner as if lawfully begotten. cases to a part of the estate of their putative father. So that the authority of precedent is against the doctrine of the respondent, which would limit the effect of the act to inheritance direct between the mother and the bastard.

But it is urged that the appellants cannot inherit collaterally, because, legally speaking, bastards have no collateral relations, and therefore the appellants cannot be the brothers and sisters of Richard. This was true before the passage of the act. But does it remain so since? The law then provided, that so far as inheritance was concerned, a bastard was the son of no person. He had neither father nor mother, and, consequently, had no blood to 252*] convey *succession except in a lineal descent from himself. There was no blood to convey succession, either to ascendants or collaterals. Having in law no mother, there could be no source from which a bastard could derive inheritable blood, and no channel through which his blood could communicate with that of others. But as this was a provision of positive law, a new provision could restore the connection. Such is the effect of the provision under consideration. "Bastards also shall be capable of inheriting, and transmitting inheritance, on the part of their mother, in like manner as if lawfully begotton of such mother.' Henceforth there shall be heritable blood between the bastard and the mother. The bastard has thus a legal mother; and having a

1.-Ld. Raym. 68.

It is argued that, on the part of, are technical terms of the law, which only import immediately from. The operation of the act is thus limited to a descent immediately from the mother. If we are mistaken in the consequence, which we suppose even this intercommunication of blood must work in the legal condition of a bastard, we must still inquire whether the terms of the act can be satisfied by this narrow construction. We do not admit that the terms on the part of import no more than immediately from. We insist that they are used to describe the ancestral kindred in the line of each parent. On the part of the mother, means, from or through the mother, or her relatives. Thus, brothers and sisters of the same mother, but different fathers, are brothers and sisters on the part of the mother, and are described as such in the 6th section of the act. And in the case of Barnitz's lessee v. Casey, before cited, the counsel upon both sides, and the court, seem to have understood these terms in the sense we contend for. *The capacity [*254 · of transmitting inheritance, conferred by the act, can have no operation, if the terms, on the part of, be interpreted to mean, immediately from the mother. The bastard must transmit the inheritance to or through, whether it pass to ascendants or collaterals.

The common law, disabilities of bastards are, like the canons of descent, of feudal origin; for it must be remembered that this disability relates entirely to inheritance. Escheats are the fruits and consequences, as Blackstone says, of

2. The King v. The Inhabitants of Hodnett, 1 T. feudal tenure resulting from the frequent ex

R. 96.

3.-1 Bl. Comm. 486.

4.-1 Woodes. 394.

5.-Nov. 89, c. 12, s. 4.

Wheat. 5.

tinction of heritable blood, according to the feudal tenure of inheritance. A bastard, being the son of nobody, could have no heritable blood; consequently, none of the blood of the

U. S., Book 5.

6

81

1. The appellants' counsel do not contend that their clients are entitled to this land, as devisees under the will of Hugh Stevenson; such a claim would be clearly inadmissible, inasmuch as the testator was not only not seized of the land at the time his will was made, but the law which authorized the grant of it was not even then in existence. But they are understood by the court to insist that the will so far operates upon the subject as to name them the representatives of the testator, and to render them capable, as such, of taking under the act of assembly which passed after the death of the testator. The act provides, that where any officer, soldier, or sailor, shall have fallen, or died in the service, his heirs or legal representatives shall be entitled to, *and receive [*257 the same quanity of land as would have been due to such officer, &c., had he been living."

first purchaser. The feudal doctrine of carrying the estate through the blood of the first purchaser, inevitably excluded inheritance among bastards. In this sense the disability of bastards was the consequence of feudal policy, and totally inconsistent with the liberal and equitable canons of descent introduced by the act of 1785. The preference of the male ascending line, preserved by the statute of 1786, is not founded upon feudal doctrines. The inheritance is directed first to the father; not because he is the most worthy of blood, but because he is the head of the family, who can best dispose of the estate among his surviving children. And upon this same principle the grandfather is preferred to the grandmothers and aunts. This is no preference of the male ancestors, but simply a preference of the husband or father, if in existence, to the wife or children of the same person; and the principle This claim is altogether fanciful and unfound255*] of this doctrine is directly repugnant ed; for, in the first place, the appellants were to that of the feudal or common law. Corrup- not appointed by the will to be the general reption of blood by convictions for crimes, alien- resentatives of the testator, but the devisees, toage, and bastardy, were three fruitful sources gether with their mother, of all their testator's of escheats at the common law. The principle property; and 2d, if they had been so appointof extinguishing the inheritable blood applied ed, still it could not confer upon them such a to each case. The first was cut up by the con- description as to entitle them to take under the stitution of Virginia. The act of 1785 laid the act of assembly, unless the act itself described axe to the root of the other two. Not by au- them as the legal representatives of Hugh thorizing aliens to hold lands, or by legitimat- Stevenson, for whose benefit the grant was ining bastards. In the one case it permits a cit- tended; and then, they would have taken exizen, claiming by descent, to trace his relation clusively under the act, by force of such legisto an intestate through an alien. In the other lative description, and not under, or in virtue it confers a capacity of inheritable blood upon of the description in the will. It is not likely bastards. The object of both provisions is the that the expression "legal representatives." in same to enable the kindred of the intestate to the act, was meant to apply to devisees of deobtain the property he left, instead of rapacious- ceased officers and soldiers for whom the bounty ly seizing it for the government. The act is was intended, if they had lived, because, at the clearly remedial, and should be construed lib-time this law was passed there could not be a erally in furtherance of the object of the legis lature, conformable to the opinions of the Virginia courts already quoted.

Mr. Justice WASHINGTON delivered the opinion of the court: It is admitted by the counsel on both sides, in their argument, with which the opinion of the court coincides, that Hugh Stevenson, though the meritorious cause of the grant of this land never took any interest therein, but that the right to the same vested in his son Richard, to whom the warrants is sued, as the first purchaser. It is further admitted by the counsel, that the law of descents of Ohio, at the time when Richard Stevenson died, was not more favorable to the claim of 256*] the appellants than that of Virginia, which will be hereafter noticed; and they have, in the argument, rested the cause upon the construction of the latter law. The opinion of the court, therefore, is founded on this law.

The appellants object to the decree of the court below, upon the following grounds: 1. That the land warrants ought to have been granted to them as the representatives of Hugh Stevenson, designated as such by his last will.

2. That by the marriage of their mother with Hugh Stevenson, and his recognition of them as his children, they were ligitimated, and en titled to the inheritance in this land as heirs to Richard Stevenson; if not so, then,

3. That, as bastards, they were capable of inheriting from Richard, who, they contend, was their brother, on the part of the mother.

devisor of those lands under the general law. It is more probable that they were intended to provided for the case of a person who may have purchased the right of the officer or soldier to such bounty as the legislature might grant to him.

The next question is, whether the appellants were legitimated by the marriage of Hugh Stevenson with their mother, and his recognition of them as his children. This question arises under the 19th section of the act of 1785, directing the course of descents, which took effect on the 1st of January, 1787. This section declares, that "where a man, *hav-[*258 ing by a woman one or more children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated."

There can be no doubt but that the section applied to bastards in esse, at the time the law came into operation, as well as to such as might thereafter be born. But it is contended by the counsel for the appellants, that the section is, in every other respect, prospective, not only as to the fact of legitimation, but as to the two circumstances of marriage and recognition, which entitle the bastard to the benefits of the law; and, consequently, that to bring a case within the operation of this section, both the marriage and recognition must take place after the 1st of January, 1787. On the other side, it is admitted that the privilege of legitimation is not conferred upon a bastard prior to the above period; but it is insisted, that, as to the

marriage and recognition, the law should be construed as well retrospectively as prospectively.

In the case of Rice v. Efford, decided in the Court of Appeals of Virginia,' the marriage took place prior to the 1st of January, 1787, but the father recognized his illegitimate children, and died, after that period. The whole court seem to have been of opinion that the word "afterwards" referred not to a time subsequent to the 1st of January, 1787, but to the birth of the children, and, therefore, that the marriage, though prior to that period, legiti259*] mated *the children before born, if they should be recognized by the father. But, it was stated by Judge Roane, in giving his opinion, that the construction of the act applies only to cases where the father has died posterior to the passage of the act.

hath been, an alien. Bastards also shall be capable of inheriting or of transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother.

In the construction of this section, it is never to be lost sight of, that the appellants are to be considered as bastards, liable to all the disabili ties to which the common law subjects them, as such, except those from which the section itself exempts them. Though illegitimate, they may inherit and transmit inheritance, on the part of the mother, in like manner as if they had been lawfully begotten of the mother. What is the legal exposition of these expressions? We understand it to be, that they shall have a capacity to take real property by descent immediately or through their mother in the ascending line; and transmit the same to It is contended by the counsel for the appel- their line as descendants, in like manner as if lants, that since, in the above case, the father they were legitimate. This is uniformly the recognized the children subsequent to the 1st meaning of the expressions, "on the part of of January, 1787, this opinion of Judge Roane, the mother or father," when used in reference as to the time of the recognition, was unneces- to the course of descent of real property, in the sarily advanced, and is, therefore, entitled to paternal or maternal line. As bas- [*261 no higher respect than what is due to a mere tards, they were incapable of inheriting the obiter dictum. Be this as it may, it is the un- estate of their mother notwithstanding they contradicted opinion of a learned judge upon were the innocent offspring of her incontithe construction of a law of his own state; and nence, and were, therefore, in the view of the is noticed by this court, not upon the ground legislature, and consonant to the feelings of of its being considered in that state as of con- nature, justly entitled to be provided for out of clusive authority, but because it strongly forti- such property as she might leave undisposed of fies the opinion which this court entertains at her death, or which would have vested in upon the point decided; which is, that, how- her, as heir to any of her ancestors, had she ever the construction may be as to the inception lived to take as such. The current of inheritaof the right, it is clearly prospective as it relates | ble blood was stopped in its passage from, and to the consummation of it. And this prospect-through the mother, so as to prevent the deive operation being given to the act, by requir- scent of the mother's property and of the proping the most important condition upon which erty of her ancestors, either to her own illegitithe privilege of legitimation is to be conferred, mate children, or to their legitimate offspring. to be performed after the law came into opera- The object of the legislature would seem to tion, it is less material whether the marriage have been to remove this impediment to the was celebrated before or after that period. To transmission of inheritable blood from the basrender the past recognition of the father effect- tard in the descending line, and to give him a ual to give inheritable blood to his children, capacity to inherit in the ascending line, and who were then illegitimate, and incapable through his mother. But although her bastard of taking the estate by descent, either from children are, in these respects, quasi legitimate, him, or from those to whom it should descend, they are, nevertheless, in all others bastards, would, in some respects at least, partake of the and as such, they have, and can have, neither 260*] character of a retrospective law. It father, brothers, or sisters. They cannot, would seem to be most reasonable so to con- therefore, inherit from Richard Stevenson, strue the law as to enable the father to per because, in contemplation of law, he is not ceive all the consequences of his recognition at their brother; and even if he were their brother, the time he made it. they would not inherit their estate under this The 3d question is, are the appellants, as bas- section, on the part of their mother, but ditards, capable of inheriting from Richard Ste- rectly from Richard, the descent from brother venson? to brother being immediate. Upon no princiThe 18th section of the law of descents, un-ple, therefore, can this section help the appelder which this question arises, is as follows: 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

1.-3 Henn. & Munf. 225.

1.-The history of the respective disabilities and rights of illegitimate children in different ages and nations, is a subject of curious speculation. The most ancient people of whose laws and political institutions we have any accurate knowledge are the Jews. They appear to make little or no distinction between their legitimate and illegitimate offspring. So, also, the Greeks, in the heroic ages, seem to have regarded them as in every respect equal; but at a subsequent epoch they were

lant's case. His estate never vested in the mother, so as for her bastard children to inherit from *her; nor did it pass through [*262 her in the course of descent to the bastard children.

Decree affirmed with costs.

stigmatized with various marks of unfavorable distinction. Among the Athenians, the offspring of parents who had contracted marriages, which, though valid by the law of nations, were contrary to the policy and the positive institutions of the state, were considered as illegitimate; and all bastards were not only deemed incapable of inheriting from either of their parents, but excluded from public honors and offices, and regarded as aliens to the commonwealth. Thus, the citizen

who married a foreign woman at once degraded | and denationalized his offspring. The severity of this law was, however, occasionally mitigated from motives of policy; and when the ranks of the citi-nation or will, one-twelfth part of the paternal zens of a Grecian republic became thinned by wars and proscriptions, they were filled up again from this disfranchised class. (Arist., Politic. 1. 3, c. 3; Id., 1. 6, c. 4.)

The laws of those European countries which have adopted the Roman law as the basis of their municipal jurisprudence, regulate the rights and disabilities of illegitimate children in the same manner as they are determined by the civil and common law. But the Gothic monarchies of Europe adopted from the earliest times a legislation on this subject, in many respects different from that of imperial and papal Rome. Thus, in all the provinces of France, where the droit coutoumier, or unwritten law, prevailed, bastards were incapa-nounced lawful heir by the inquest, in terms of the ble of inheriting ab intestato, except the property of their legitimate children, and the reciprocal right of the husband and wife to succeed to each other according to the title of the civil law, unde vir et uxor. This was the universal law of the kingdom, with the exception of the peculiar customs of a few provinces, and the pays du droit cerit, where the Roman law constituted the municipal code. (Ferriere. Dict. Mot. Bastard; Œuvres de D'Aguesseau, tom. 7, pp. 403, 430, 448.)