II. We are next to consider the case of illegitimate children, or bastards; [*559] with regard to whom let us inquire, *1, Who is a bastard. 2. The legal (II.) Illegitimate duties of the parents towards a bastard child. 3. The rights children. and incapacities attending such bastard child. 1. Who is a bastard. 1. A bastard, by our English law, is one who is not only begotten, but born, out of lawful matrimony. The civil and canon laws do not allow a child to remain a bastard, if the parents afterwards intermarry(s): and herein they differ most materially from our own law; which, though not so strict as to require that the child shall be begotten, yet makes it an indispensable condition, to make it legitimate, that it shall be born, after lawful wedlock().(170) And our English law seems superior in this respect to the Roman, if we consider the principal end and design of the contract of marriage taken in a civil light; abstractedly from any religious view. The main end and design of marriage in a state being to ascertain and fix upon some certain person, to whom the care, the protection, the maintenance, and the education of the children should belong: this end is undoubtedly better answered by legitimating all issue born after wedlock, than by legitimating all issue of the same parties even born before wedlock, provided wedlock afterwards ensues; (1.) Because of the uncertainty there may be in proving that the issue was begotten by the same man; whereas by confining the proof to the birth, and not to the begetting, our law has rendered it certain what child is to be deemed legitimate, and who is to take care of the child. (2.) Because by the Roman law a child may be allowed to remain a bastard, or be made legitimate, at the option of the father and mother by a marriage ex post facto; thereby opening a door to frauds and partialities which by our law are prevented. (3.) Because, by that law a man may remain a bastard till forty years of age, and then become legitimate by the subsequent marriage *of his parents; whereby the [ *560] main end of marriage, the protection of infants, is frustrated. (4.) Because this rule of the Roman law admits of no limitations as to time or as to the number of bastards so to be legitimated; but a dozen of them may, twenty years after their birth, by the subsequent marriage of their parents, be admitted to the privileges of legitimate children. This is plainly a discouragement to the matrimonial state; to which one main inducement is usually not only the desire of having children, but also the desire of procreating lawful heirs. (8) Inst. 1, 10, 13; Decret. Greg. 1. 4, t. 17, postmodum nati in matrimonio sunt legitimi. c. 1. Yr. bk. 45 Edw. 3, pl. 45, p. 28. (t) Sic nota, procreati ante matrimonium et (170) In a subsequent note, No. 171, the rule as to the presumption of legitimacy will be considered. In Kentucky an actual marriage and a subsequent recognition will legitimatize a child born before the marriage. Dannelli v. Dannelli's Adm'r, 4 Bush (Ky.), 51. So in Massachusetts, Monson v. Palmer, 8 Allen (Mass.), 551; and in Texas, Carroll v. Carroll, 20 Tex. 731. At common law the putative father is not liable for the support of his infant bastard child; and the only remedy is that given by the statute. Birdsall v. Edgerton, 25 Wend. 619; Moncrief v. Ely, 19 id. 406; People v. Mitchell, 44 Barb. 245: Marlett v. Wilson, 30 Ind. 240. The right to the custody and control of an infant bastard child is exclusively in the mother; and if the putative father takes it from her, the courts will restore it to the mother, upon an application, by habeas corpus. Robalina v. Armstrong, 15 Barb. 247; People v. Mitchell, 44 id. 245, 249; Hudson v. Hills, 8 N. H. 417; Commonwealth v. Fee, 6 Serg. & Rawle, 255. But if the child is abused, the court will interfere and direct the child to be placed elsewhere. People v. Landt, 2 Johns. 375. Whereas our constitutions guard against this indecency, and at the same time. give sufficient allowance to the frailties of human nature. For, if a child be begotten while the parents are single, and they will endeavour to make an early reparation for the offence, by marrying within a few months after, our law will not bastardise the child, if it be born, though not begotten in lawful wedlock; for this is an incident that can happen but once, since all future children of the same parents will be lawfully and honourably begotten. Upon reasons like these we may suppose the peers to have acted at the parliament of Merton(u), when they refused to enact that children born before marriage should be esteemed legitimate. From what has been said, it appears that all children born before matrimony are bastards by our law: and so it is of all children born so long after the death of the husband, that by the usual course of gestation, they could not be begotten by him. But this being a matter of some uncertainty, our law is not exact as to a few days, and has not authoritatively established any fixed period for gestation, but the legitimacy or illegitimacy of a posthumous child is in each particular case a question for the jury(x). This uncertainty, however, gave rise to a peculiar proceeding at common law, where a widow was suspected to feign herself with child, in order to produce a *supposititious heir to the estate. In this case the heir presumptive or a devisee over on failure [ *561] of issue(y), may have a writ de ventre inspiciendo, to examine whether she be with child or not(z); and, if she be, to keep her under proper restraint, till delivered; which is entirely conformable to the practice of the civil law(a); but if the widow be upon due examination found not pregnant, the presumptive heir shall be admitted to the inheritance, though liable to lose it again, on the birth of a child within due time from the death of the husband (b). But if a man dies, and his widow soon after marries again, and a child is born within such a time, as that by the course of nature it might have been the child of either husband; in this case he was once said to be more than ordinarily legitimate; for he might, when he arrived at years of discretion, choose which of the fathers he pleased (c). But this doctrine, if ever recognized, was too absurd to last, and it was afterwards held to be a question for the jury to determine, according to the evidence, which husband was most likely to be the father(d). To prevent this, among other inconveniences, the civil law ordained that no widow should marry infra annum luctus(e), and we find it established under the Saxon and Danish governments, that she should not marry within twelve months after her husband's death (ƒ). As bastards may be born before the coverture or marriage state is begun, or after it is determined, so also children born during wedlock may in some circumstances be bastards. As if the husband be out of the kingdom of England (or, as the law somewhat loosely phrases it, extra quatuor maria), so that no access to his wife, within a competent period before birth of the child, can be *presumed, her issue may be adjudged to be a bastard (g). But, generally during the coverture, access of the husband is presumed, unless (u) Stat. 20 Hen. 3, c. 9. (a) See The Gardner Peerage Case, rep. by Le Marchant. (y) Ex parte Wallop, 4 Bro. C. C. 90; see also Ex parte Ayscough, 2 P. Wms. 591. (2) Co. Litt. 8; Bract. 1. 2, c. 32. (a) Dig. 25, tit. 4, per tot. (b) Britton, c. 66, p. 166. (c) Co. Litt. 8. (d) Co. Litt. by Harg. 123 b, n. 1. (e) Cod. 5, 9, 2. [ *562] (f) Leg. Ethelr. V. c. 21; Leg. Canut. c. 74; Anc. L. and Inst. Eng. pp. 181, 178. (g) Co. Litt. 244. the contrary be shown. This was formerly held such a negative as could only be proved by showing him to be elsewhere, the general rule being præsumitur pro legitimatione; (171) but the old doctrine of the quatuor maria was long since exploded(h), and the child will now be considered illegitimate if he be born under such circumstances as make it impossible that his mother's husband could have begotten him, whether this impossibility arise from non-access, physical infirmity, or other cause (i); but the presumption of legitimacy still holds to this extent, that if the husband have any opportunity of sexual access during the natural period of gestation, the child will be considered legitimate, though there may be the strongest reason for supposing it the offspring of an adulterer, the question for a jury in such a case always being, not whether the husband be the father, but whether he could have been such (k). In the case of a judicial separation (which has the effect of a [*563] divorce a menså et thoro under the old law) if the wife afterwards has children they are bastards; for the law will presume the husband and wife to have lived apart conformably to the sentence of separation, unless access be proved: but in a voluntary separation by agreement, the law will suppose access, unless the negative be shown(1). Also after a decree of nullity of marriage, which is now pronounced on grounds that would have justified a divorce in the spiritual court a vinculo matrimonii, the issue born during the coverture are bastards(m), because such divorce is decreed upon some cause, that rendered the marriage unlawful and null from the beginning, and issue born after either a (h) Pendrell v. Pendrell, Str. 925. (i) In R. v. Luffe, 8 East, 193, it was laid down that where the evidence establishes a "natural impossibility" that the husband could be the father, the child is a bastard; the court remarking that the case where the child is born so recently after the marriage of the parents, that it could not have been begotten in wedlock rests on its own peculiar grounds, such a child being legitimated by the recognition of the husband. In Morris v. Davies, 3 C. & P. 218, 427, it was held, that although access of the husband will be presumed; yet to rebut this presumption, it is not essential to show a physical impossibility of access either by absence of the husband extra quatuor maria, or any other circumstance; presumption of inter course may be repelled by proof of the extreme youth of the husband (Co. Litt. 244,) or by facts which prove to the satisfaction of the jury, that no opportunity for sexual intercourse between the husband and wife existed, within the possible limits of the epoch of conception; see also The Gardner Peerage Case, reported by Le Marchant; The Banbury Peerage Case, 1 Sim. & Stu. 153; Sir Harris Nicholas on Adulterine Bastardy; Head v. Head, 1 T. & R. 138; Bury v. Phil pot, 2 M. & K. 349. (k) Head v. Head, 1 T. & R. 138. See, also, Morris v. Davies, 3 C. & P. 215. 276. (1) Salk. 123; Sidney v. Sidney, 3 P. Wms. (m) Co. Litt. 235. (171) A child born during the coverture of its mother is presumed to be legitimate; but this presumption may be rebutted by evidence that such access did not take place, between the husband and the wife, as, by the laws of nature, is necessary, in order for the man to be, in fact, the father of the child. State v. Shumpert, 1 S. C. 85. A child is, in law, legitimate, although born in a week or a day after marriage. Rhyne v. Hoffman, 6 Jones' Eq. (N. C.) 335; State v. Heman, 13 Ired. 502; Mills v. Sprague, 13 Iowa, 198; Phillips v. Allen, 2 Allen (Mass.), 453; Page v. Dennison, 1 Grant's Cas. (Penn.) 377. The presumption of legitimacy of the child of a married woman can only be rebutted by evidence which proves beyond all reasonable doubt that her husband could not have been the father. Phillips v. Allen, 2 Allen (Mass.), 453; Page v. Dennison, 1 Grant's Cas. (Penn.) 377; Patterson v. Gaines, 6 How. (U. S.) 550. The presumption cannot be rebutted by proof of the wife's adultery while cohabiting with her husband. Hemmenway v. Lowner, 1 Allen (Mass.), 209. But proof that the husband was in the army, and absent from his wife from January, 1864, until June, 1865, and that the child was born in November, 1865, is sufficient to establish its illegitimacy. Dean v. State, 29 Ind. 483. divorce or a sentence of nullity, are of course bastards, as their father and mother are to all intents and purposes unmarried. 2. Let us next consider the duties of parents to their bastard children by our law; of which the principal is that of maintenance.(172) For though bastards 2. Duties of parents to their bastard children. are not looked upon as children for any civil purposes, yet the ties of nature, of which maintenance is one, are not so easily dissolved: and they hold indeed for some other purposes; as, for instance, a man cannot marry his bastard sister or daughter(n). The civil law, therefore, when it denied maintenance to bastards begotten under certain atrocious circumstances(o), was neither consonant to nature nor reason; however profligate and wicked the parents might justly have been esteemed. The method in which the English law provides maintenance for bastards is as follows. Prior to or within twelve months(p) after the birth of an illegitimate child, the mother, who is primarily liable to support it(g), may, if unable to do so, summon the putative father before the *justices in petty sessions (r), who may, on being satisfied of the paternity, if her evidence [*564] ⚫ be corroborated in some important particulars, order him to pay a certain sum for the support of the child(s), till it attains the age of thirteen years, should it live so long, or till its mother marries, whereupon her husband will be liable to support the child(t). We proceed next to the rights and incapacities which appertain to a bastard. The rights are very few, being only such as he can acquire; for he can inherit 3. Rights and nothing(u), being looked upon as the son of nobody, nullius bastards. filius(x).(173) Yet a bastard may gain a surname by reputation(y), though he has none by inheritance, being entitled neither to that of his incapacities of (n) Hains v. Jessell, Lord Raym. 68. (o) Nov. 89, c. 15. (p) Or later if the father has paid money for its maintenance; 7 & 8 Vict. c. 101, s. 2. (9) 7 & 8 Vict. c. 101, s. 6. (r) Subject to an appeal by the father to the quarter sessions. (8) 7 & 8 Vict. c. 101; 8 & 9 Vict. c. 10. t) Ante, p. 552. (4) In Doe v. Vardill, 5 B. & C. 438; 6 (172) See note 170. Bing. N. C. 385; 6 Bligh. N. S. 479; 9 Ib. 32; (x) Fort de Laud. Leg. Ang. c. 40. (173) The common-law principle, that a bastard cannot inherit property, has been very generally adopted by our courts, where no statute provides a different rule. Doe v. Bates, 6 Blackf. 533; Cooley v. Dewey, 4 Pick. 93; Barwick v. Miller, 4 Dessaus. 434; Stover v. Boswell, 3 Dana, 233. A bastard cannot inherit from a legitimate half-brother, born of the same mother. Woodward v. Duncan, 1 Coldw. (Tenn.) 562; Fluithan v. Haldor, 1 Dev. Eq. 345. Where a statute provides that an illegitimate child may inherit property left by the mother, it will be entitled to its proportion equally with a legitimate child. Opdyke's Appeal, 49 Penn. St. 373; Alexander v. Alexander, 31 Ala. 241; Heath v. White, 5 Conn. 228; Stover v. Boswell, 3 Dana, 233. A child, "fully" legitimated by a statute procured by the act of the putative father, will take under a bequest in his will to "children." Shelton v. Wright, 25 Ga. 636. A mother of an illegitimate son subsequently had children born in lawful wedlock. The child died intestate, leaving no children nor issue of children; and the children of the deceased mother were held to be entitled to inherit his property equally, whether his father was alive or dead. Ellis v. Hatfield, 20 Ind. 101. See Lewis v. Eustler, 4 Ohio St. 354; Doe v. Bates, 6 Black f. 533. Vol. I-49 father or his mother. It was formerly held that he could only have a birth settlement, but as we have already seen, he is now entitled to that of his mother until he attains the age of sixteen (z). The incapacity of a bastard consists indeed principally in this, that he cannot be heir to any one, neither can he have heirs, but of his own body; for being nullius filius, he is of kin to nobody, and has no ancestor from whom any inheritable blood can be derived. A bastard was also formerly held, in strictness, incapable of holy orders; and when that was dispensed with, he was still long considered disqualified to hold any dignity in the church(a); but this doctrine seems now altogether obsolete; and in most other respects there is no distinction between a bastard and another man(b). And really any other distinction than that of not inheriting, which civil policy renders neces[*565] sary, would, with regard to the innocent offspring of his parents' crime, be unjust, and cruel: though the civil law, so noted for its equitable decisions, made bastards in some cases incapable even of a gift from their parents(c). A bastard may, lastly, be made legitimate, and capable of inheriting by the transcendant power of an act of parliament, and not otherwise (d); as was done in the case of John of Gaunt's bastard children, by a statute of Richard II. [*566] *CHAPTER XVII. CORPORATIONS, ETC. WE have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But, as many personal rights die altogether with the person; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have particular rights kept on foot and continued, to constitute certain abstract bodies or artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality. These artificial persons are called bodies politic, bodies corporate (corpora corporata), or corporations; of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order and advantages. to preserve entire and forever rights and immunities, which Corporations; their purposes (2) Ante, p. 437. (a) Fortesc. c. 40; 5 Rep. 58, (b) The custody of a young illegitimate child is in the mother at any rate as against the supposed father. R. v. Moseley, 5 East, 224; R. v. Hopkins, 7 East, 579. (c) Cod. 6, 57, 5. Illegitimate children do not inherit from legitimate children of the same mother (Bacon v. McBride, 32 Vt. 585); nor from bastard brothers. Allen v. Ramsey, 1 Metc. (Ky.) 635; Bent v. St. Vrain, 30 Mo. 268. Contra, Brown v. Dye, 2 Root, 280. A child born out of wedlock, and legitimated by the laws of another state, is not thereby rendered capable of inheriting land in Pennsylvania. Smith v. Derr, 34 Penn. St. 126. There are so many statutory provisions of the different states, relating to the right of bastards to inherit property, that it is impossible to lay down any general rule which is in force in every state; though, where no statute exists, the common-law rule has been very generally observed. |