Desertion, which is the act of one of the spouses in leaving the other, without just cause, for the purpose of causing a perpetual separation. The time which must elapse after the malicious desertion is generally regulated by statute in the several states. In some states the condemnation to punishment for some infamous crime,104 and being charged with an infamous crime, and a fugitive from justice.105 Having formed a connection with some religionists whose opinions and practices are inconsistent with the duties of marriage, is, in some states, cause for divorce, 106 Refusal on the part of the husband, when of sufficient ability, to provide necessaries for the subsistence of his wife, is also a cause for divorce in some states.107 Habitual drunkenness is also a sufficient cause by statutory provisions in some of the states.108 297. This divorce severs the marriage tie, and the husband and wife can marry again, in general, as if they never had been married before, provided (in some states) that when they have been divorced for adultery, they shall not marry the partner of their guilt.109 298. The effects of such a divorce on the property of the wife are various in the several states. When the divorce is for the adultery, or other criminal acts of the husband, in general the wife's lands are restored to her;110 when it is granted for the adultery, or other criminal acts of the wife, the husband has in general some qualified right of curtesy in her lands; when the divorce is the consequence of some pre-existing cause, as consanguinity, affinity, or impotence, in some states, as Maine and Rhode Island, the lands of the wife are restored to her."11 A divorce à vinculo is in general a bar to dower; but in Connecticut, Illinois, New York, and, it seems, in Michigan, dower is not barred by a divorce for the fault of the husband. In Kentucky, when a divorce is caused for the fault of the husband, the wife takes as if he were dead.112 112 299. A divorce à mensa et thoro is a decree of a competent tribunal that husband and wife shall be separated. 300. This divorce is never granted for causes arising before the marriage. The causes for which it is decreed are, in general, cruelty, desertion, or such other abuses as render the life of the innocent party burdensome. 301. This divorce is a mere separation, and does not affect the rights of the parties as to property. And if the husband is bound by the decree to pay the wife alimony, and he does pay it, he is not responsible for her future debts.113 In England, it has been expressly decided that a woman divorced à menså 104 Ark. Rev. St. c. 50, s. 1, p. 333. 105 La. Act of April 2, 1832. 106 In Kentucky and Maine, Dyer v. Dyer, 5 N. H. 271. 107 In Vermont and Rhode Island. See Amsden v. Amsden, Wright, Ch. Ohio, 66. 108 Mahone v. Mahone, 19 Cal. 627. 109 Before, 255. This is also the rule of the civil law. Pothier, Du Mariage. part 3, c. 3, art. 7; 1 Toullier, Dr. Civ. Fr. n. 555. 110 Éstate of Kintzinger, 2 Ashm. Penn. 455. Barber v. Root, 10 Mass. 260; Star v. Pease, 8 Conn. 541. In Massachusetts, the interest acquired by a judgment creditor of the husband, by a levy of his execution upon the rents and profits of the wife's real estate, is determined and defeated, by a decree of divorce à vinculo, in favor of the wife. Barker v. Root, 10 Mass. 260. 111 1 Hillard, Abr. 51, 2. 112 1 Hillard. Abr. 61, 2. 113 Bacon Abr. Baron and Feme (M); Ellah v. Leigh, 5 Term, 679. et thoro, living separately from her husband, cannot sue or be sued as a feme sole. But in Massachusetts, a different rule has been adopted.115 114 The divorce à mensa et thoro is only a legal separation, terminable at the will of the parties, the marriage continuing in regard to every thing not necessarily withdrawn from its operation by the divorce; for example, if there be a divorce à mensa et thoro, and afterward a legacy be given to the wife, by the common law the husband may release it.116 114 Lewis v. Lee, 3 Barnew. & C. 291; see Lean v. Shultz, 2 W. Blackst. 1195; Marshall v. Rutton, 8 Term, 845; Bacon, Abr. Baron and Feme, (M). 115 Dean v. Richmond, 5 Pick, Mass. 461. Read the forcible argument of Parker, C. J. 116 Dean v. Richmond, 5 Pick. Mass. 468; Bacon, Abr. Baron and Feme, (D); 1 Rolle, Abr. 343; Stephens v. Tolty, Croke, Eliz. 908. CHAPTER V. PATERNITY, FILIATION, INFANCY, GUARDIANSHIP, AND LUNACY. 302-325. Paternity and filiation. 303-310. Legitimate children born in wedlock. 307. Exceptions to rule that child born in wedlock is child of the mother's husband. 309. Children born in wedlock conceived before marriage. 310. Children born after dissolution of marriage. 311-318. Proof of filiation. 312. Proof of filiation by evidence of possession. 314. Proof of filiation by testimony of witnesses. 319-325. Natural children. 320. Who are natural children. 323. Legitimation of natural children. 326-334. Paternal power. 328. Duties of children toward parents. 333. Power of parents over natural children. 335. Minority and infancy. 339-362. Guardianship. 340. Kinds of guardians. 347. Who may be a guardian. 348-357. Duty of guardian. 349. Duty towards the ward's person. 350-356. Administration of ward's estate. 356. When the sanction of the court is required. 358-362. Guardian's discharge. 359. By lapse of time. 360. Removal by court. 361. By death. 362. By operation of law. 363-393. Sanity and insanity. 368. For what cause commission of lunacy will issue. 382-391. Proceedings in lunacy. 383. Who may apply for commission. 384-388. Duty of commissioners. 385. In what place commission is executed. 386. Manner of executing commission. 387. Inquisition and traverse. 389-391. Appointment of committees. 390. Committee of the person. 391. Committee of estate. 392. Consequences of finding a man non compos mentis. 393. Restoration of the lunatic. 302. Having examined the forms, obligations, rights, and duties which arise from marriage, and the manner in which it is dissolved, it is natural, in the next place, to explain the principal end of marriage, paternity, filiation, and legitimacy. Only those children who are born in wedlock, or under the sacred veil of marriage, are legitimate. Legitimacy confers on them the rights of family and kindred, of which natural children, born of an illicit union, alike reproved by morality and law, are deprived. Children born of marriages which are absolutely void and null ab initio are illegitimate. It seems, therefore, proper to lay down the rules which point out with certainty, paternity and filiation, either legitimate or illegitimate. 303. Paternity and filiation are correlative terms, the first of which signifies the quality of father, and the second that of child. Filiation arises from the birth which we receive from such a father or from such a mother. The mother is always known by evident signs; whether married or not, she is always certain: mater semper certa est etiamsi vulgò conceperit.' There is not the same certainty as regards the father; the mother is alone certain of the fact, and the relations may not know, or feign ignorance, as to the paternity; the law has therefore established a legal presumption to serve as a foundation for paternity and filiation. 304. When the mother is married, her husband is presumed to be the father of the children born during the coverture; or, if her husband be dead, the presumption is still that he was the father; provided the child has been born within a competent time after the coverture determined. This presumption arises whether the child was conceived during the coverture or before: pater is est quem nuptiae demonstrant.2 The rule is founded on a double presumption: one that there has been a cohabitation between the parents, not only before birth, but before and at the time of the conception of the child; and the other, that the mother has faithfully observed the vow which she made to the husband at the time of marriage. Of these two presumptions, the first one only is essential. The innocence of the mother is always presumed. It is then the marriage, the actual or presumed cohabitation, and presumption of innocence, always favored by the law, which forms the first principle adopted in relation to filiation, as the foundation of society. The child born in wedlock has for its father the husband of its mother. 305. But a child is conceived a long time before its birth. He lives in ventre sa mère before he is born. He may then be conceived before the marriage, and be born while it subsists. In this case he is presumed to be legitimate, although the marriage may have taken place but a very short time before its birth; or, having been conceived during the marriage, it may not have been born until after that contract was dissolved: in this case it will be presumed legitimate, if born within a competent time afterward. 306. In doubtful cases, in order to fix a term before or after which a child shall not be legitimate, recourse was had to another presumption, that the child was born after a certain period of gestation. By common consent, the courts have fixed the period of gestation, or the time during which the human female who has conceived carries the embryo or foetus in her uterus, at forty weeks, or ten lunar months, but this may vary 1 Dig. 2, 4, 5. 2 Ibid. 2, 4, 5. 4 31 Sharswood, Blackst. Comm. 454, 455. Cyclop. Pract. Med. vol. 4, p. 87. one, two, or even three weeks.5 In point of fact, however, the duration of human pregnancy is not very certain, and probably is not the same in every woman. The civil code of Louisiana, copying the code civil Français, has fixed the period of gestation." There are three classes of cases in which the legitimacy may be contested: conception and birth during the marriage; conception before and birth during the marriage; and conception during the marriage and birth after. These will be examined separately. 307. The rule that the husband of the mother is the father of the child, born in lawful wedlock, or within a competent time after its dissolution, is founded on a presumption; and a presumption is but a conjecture by which we draw from a known fact a consequence, which renders probable a doubtful fact, which we seek to know. Marriage is the known fact; whence we conclude that the child born during its existence, or within a competent time afterward, is the offspring of the husband. But this consequence being neither necessary nor indubitable, it may not be just; and this presumption, like every other, may therefore be rebutted or disproved. 308. Whenever it is evident that cohabitation cannot have taken place between the husband and wife at the time of conception, the rule cannot apply. This evidence is established. By proof of the absolute and perpetual impotence of the husband; which impotence has been defined to be the incapacity for copulation or perpetuating the species. The separation of the husband and wife during the time in which the woman became pregnant. Temporary incapacity in consequence of a grave sickness of the husband. Any other circumstance which shows that the husband has not cohabited with his wife. The fact that at the time of the conception of the child the husband and wife did not cohabit with each other, is a negative fact which cannot be established directly alone. It is established indirectly by proving the impossibility of a contrary fact: for example, it cannot be proved directly that the husband and wife did not cohabit; but if it be proved that the wife was in the United States at the time of conception, and that the husband was travelling in Europe for two years immediately before the birth of the child; or if it be proved that the wife was free and the husband was in prison, and remained unseen by the wife, the fact of non access will be made out by the proof of the absence or the imprisonment. But this presumption of legitimacy cannot be proved by any thing short of the impossibility of cohabitation. The proof of the wife's adultery at the time of conception, or declarations by the husband that the child is not his are not admissible." 309. It is a rule of law that the child born during wedlock, but begotten before marriage, is presumed to be legitimate." But the presumption of Coke, Litt. 123 b.; 1 Beck, Med. Jur. 478. 6 Chitty, Med. Jur. 409; Dewees, Midw. 125; 1 Paris & F. Med. Jur. 218, 230; 1 Foderé, Méd. Leg. 407-416. La. Čiv. Code, B. 1, t. 7, c. 2. Phillips v. Allen, 2 All. Mass. 453. Hemmenway v. Towner, 1 All. Mass. 209. 10 1 Sharswood, Blackst. Comm. 454, 455. In the French law, to raise the presumption of paternity, the child must have been conceived as well as born in lawful wedlock. Niles v. Sprague, 13 Iowa, 198; but see Baker v. Baker, 13 Cal. 87. |