grand children, (being of sufficient ability,) of poor, old, lame, or impotent persons, not able to maintain themselves, to relieve and maintain them." This is the only legal provision (for the common law makes none made to enforce a plain obligation of the law of nature.6 IV. Of illegitimate Children. I proceed next to examine the situation of illegitimate children, or bastards, who are begotten and born out of lawful wedlock. These unhappy fruits of illicit connexion were, by the civil and canon laws, made capable of being legitimated by the subsequent marriage of their parents; and this doctrine of legitimation prevails at this day, with different modifications, in France, Germany, Holland, and Scotland. But this principle has never been introduced into the English law; and Sir William Blackstoned has elaborately and zealously maintained, in this respect, the superior policy of the common law. We have, in relation to this subject, a memorable fact in English history. 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 a Laws of N. Y. sess. 36. ch. 78. s. 21. b Edwards v. Davis, 16 Johns. Rep. 281. Rex v. Munden, Str. 190. c 2 Domat. 361. Code Civil, No. 331. 1 Ersk. Inst. 116. Inst. 1. 10" 13. Code, 5. 27. 10. Butler's note, 181. to lib. 3. Co. Litt. Voet. Com. ad Pand. 25. 7. s. 6. and 11. Dissertation dans laquelle on discute le Principes du Droit Romain, et du Droit Francois, par rapport aux Batards. Oeuvres de Chancelier D'Aguesseau, tom. 7. 381. 470. d Com. vol. i. 455. e It is a remarkable fact, however, that in eleven of the United States, the rule of the civil law prevails on this point; viz. In Vermont, Maryland, Virginia, Georgia, Alabama, Mississippi, Louisiana, Kentucky, Missouri, Indiana, and Ohio. Griffith's Law Reg. passim. 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 Anglia mutare, quæ huc usque usitata 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 thereby be given to the superiority of the civil over their own common law. In the new civil code of France,d the rule of the civil law is adopted, provided the illegitimate children were not offspring 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 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 a Black. Com. 456, Stat. of Merton, 20 Hen. III. ch. 9. b Ch. 9. s. 2. c P. 38. d No. 331, 332, 333. 335. e Com. ad Pand. 25. 7. s. 11. 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. But not only children born before marriage, but those that 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 question of the legitimacy or illegitimacy of the child of a married woman, is now regarded as a matter of fact, resting on presumptions going to establish a conclusion one way or the other, and it is a question for a jury to determine. 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. A bastard being, in the eye of our law, nullius filius, 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 ofhis own body. This rule, so far at least as it excludes him from inheriting as heir to his mother, is supposed to be founded partly in policy, to 1 Blacks. Com. 456, 457. Salk. 123. Harg. note, No. 193 178, to lib. 3. Co, Lill. 4 Term. Cole Napoleon, No. 312-318. a Cro. Jac. 541. Co. Litt. 244. a. b3 P. Wms. 275, 276. Str. 925. to lib. 2. Co. Litt. Butler's note, No. Rep 251. 356. 4 Bro. 90. 8 East, 193. Com. Dig tit. Bastard, A. B. c Co Lill. 123. a. d Inst 1. 10. 12. e1 Blacks. Com. 459. discourage illicit commerce between the sexes. Mr. Selden sajd, that not only the laws of England, but those of all other civil states, excluded bastards from inheritance, unMess there was a subsequent legitimation. Bastarde are, undoubtedly, incapable of taking in this state, under our law of descents, which speaks of lawful issue, and we fol low the rule of the English law; but in several of these United States, the rigor of the English law has been relaxed, and bastards can inherit to their mother equally as if they were her lawful children. The same rule has been recently declared in Connecticut, in the case of Heath v. White, and it had long before been adjudged, that natural children by the same mother were heirs to each other.d These decisions rest on a very reasonable principle, that the relation of mother and child, which exists in this unhappy case, in all its native and binding force, ought to produce the ordinary legal consequences of that consanguinity. This was agreeable to the ordinance of Justinian, who, to a certain extent, and with exceptions, allowed a bastard to inherit to his mother;e and, in several cases in the English law, the obligations of consanguinity between the mother and her illegitimate offspring, have been recognised. The rule, that a bastard is nullius filius, applies only to the case of inheritances. It has been held to be unlawful for him to marry within the levitical a Note C. to Fortescue de laud. leg Ang. ch. 40. b This is understood to be the law in Vermont, Virginia, North Carolina, Tennessee, Ohio, Indiana, and, under certain modifications, in Louisiana. Griffith's Register, passim. In Louisiana, if a married man pretending to be single, deceives a woman, the wife and children are entitled to all the rights of a legitimate wife and children. Christy's Dig. tit. Husband and Wife, 2, e 5 Conn. Rep. 228. d Brown v. Dye, 2 Root, 280. e Code, lib. 6. 57. 5. f Buller, J. 1. Term. Rep. 101. Bow v. Nottingham, 1 N. H. Rep. ་ degrees," and a bastard has been considered to be within the marriage act of 26 Geo. II. which required the consent of the father, guardian, or mother, to the validity of the marriage of a minor. He also takes and follows the settlement of his mother. With the exception of the right of inheritance and succession, bastards, by the English law, as well as by the laws of France, Spain, and Italy, are put upon an equal footing with their fellow subjects;d and in this country we have made very considerable advances towards giving them also the capacity to inherit, by admitting them to possess inheritable blood. We have, in this respect, followed the spirit of the laws of some of the ancient nations, who denied to bastards an equal share of their father's estate, (for that would be giving too much countenance to the indulgence of criminal desire,) but admitted them to a certain portion, and would not suffer them to be cast naked and destitute upon the world.e The mother, or reputed father, is chargeable by law with the maintenance of the bastard child, in such way as any two justices of the peace of the county shall think meet; and the goods, chattels, and real estate of the parents, are seizable for the support of such children, if the parents a Haines v. Jeffel, 1 Lord Raym. 68. b King v. Inhabitants of Hodnett, 1 Term Rep. 96. c 3 Johns. Rep. 15. 17 Johns. Rep. 41. 12 Mass. Rep. 429. 5 Conn. Rep. 584. d Oeuvres D'Aguesseau, tom. 7. 384, 385. Butler's note, No. 176. to lib. 3 Co. Litt. 1 Blacks. Com. 459. e Poller's Greek Antiq. vol. ii. 340. Gentoo code, by Halhed, p. 73. The protection and tenderness which the Goddess Fortune is supposed to bestow upon foundlings, is, says Mr. Gifford, one of the most amusing and animated pictures that the keen and vigorous fancy of Juvenal ever drew: Sta: fortuna improba noctu, Arridens nudis infantibus. Hos fovet omnes, Sat. 6. v. 603-605. VOL. II. 23 |