II. Where the mother is married, but the husband is not the father. This is called by a leading writer on this subject an instance of "adulterine bastardy." A rule of public policy now becomes potent and discourages an inquiry into the facts so as to bastardize the issue. It is not enough that an adulterer may have been the father; the proof must be so strong as to establish the fact that he must have been the father. The rules of the ancient law were extremely strict in favor of legitimacy, as shown by a remarkable decision in the Year Book of 32-33 Edward I. (A. D. 1304), cited in a note.2 At one time, bastardy could not be established unless it appeared that the husband had been beyond the "four seas" (surrounding England). This rule has been exploded, and the real inquiry now is, whether the husband could have been the father. If the husband have access to the wife, the child will be legitimate, unless there be proof of impotency or other evidence equally convincing. There has been much confusion in the cases, owing to the fact that the word "access" has two significations; one, the opportunity for sexual intercourse, -e. g. by their living in the same house, and the other, sexual intercourse itself. Where there has been access of the latter sort it will be conclusively presumed that the husband was the father, even though it be established that an adulterer has also had like intercourse. But if "access" be used simply in the sense of an opportunity for sexual intercourse, it may be shown by circumstantial evidence that it did not in fact occur, in which case the child might be declared illegitimate. In other words, the fact of sexual intercourse may be proved or disproved like any other fact. At the same time, if the opportunity as between husband and wife exists, the presumption of law is that it took place, and the evidence to 1 Sir Harris Nicolas, Treatise on the Law of Adulterine Bastardy, London, 1836. 2 Year Books of the Reign of King Edward I., translated by Alfred J. Horwood, under direction of the Master of the Rolls (London, 1864). The reporter says (32 & 33 Edw. I. p. 62)," I remember how once a damsel brought an assise of Mordancester on the death of her father, &c., and the tenant said that she was not the next heir; the assise came and said that the father of her who brought the assise did, after he had married her mother, go beyond sea, and remain there for three years; and that afterwards when he returned to his own country he found her, who then the contrary offered to rebut the presumption must be strong, distinct, satisfactory, and convincing. This is the result of the famous Banbury Peerage Case in England.1 (a) In this country the distinctions taken in the English courts have not been definitely established. It has been held in Louisiana that nothing can impugn the legitimacy of a child born during marriage, except proof that it was impossible for the husband to have been the father.2 Other courts state that the legal presumption can only be rebutted by evidence that shows "beyond all reasonable doubt" that the husband could not have been the father.3 In other cases it is held that illegitimacy must be made clearly to appear.* Others follow the course of the later English decisions.5 Neither the husband nor wife, on grounds of public policy, can be a witness to prove non-access. (b) Nor will their declarations made out of court be sufficient to establish illegitimacy.7 Illegitimacy may be proved by physical facts, such as that while the husband and wife are white persons the child is a mulatto. Where the parties live apart by the decree of the court, the presumption is against legitimacy, though proof may be offered to the contrary. III. Where the mother at the time of the child's birth is a widow. The same general questions may arise under this head as under the last subdivision, with the additional inquiry whether too long a period has not elapsed since the husband's death to admit of the supposition of legitimacy. 1 This case is reported in full in Nicolas' Treatise, in an Appendix. It was followed in Morris v. Davies, 5 Cl. & F. 163, where the topic is discussed at great length. See also The Barony of Saye and Sele, 1 H. L. Cas. 507. Mr. Nicolas insists that this is a great departure from the common law, while the court claims that it is a proper deduction from the abandonment of the "rule of the four seas." 242. No particular time is 6 Commonwealth v. Stricker, 1 Browne (Pa.), Appendix 47; State v. Shumpert, 1 S. C. 85; Wilson v. Babb, 18 Id. 59. 6 Tioga County v. So. Creek Township, 75 Pa. St. 433. 7 Dennison v. Page, 29 Pa. St. 420; Bowles v. Bingham, 2 Munford (Va.), 442. 8 Watkins v. Carlton, 10 Leigh (Va.), 560. It has, however, been held that if 2 Vernon v. Vernon's Heirs, 6 La. Ann. the mother were an Indian it would not be Phillips v. Allen, 2 Allen, 453; Stegall v. Stegall's Adm. 2 Brock (U. S. Cir. Court) 256, 264. Dennison v. Page, 29 Pa. St. 420; Cannon v. Cannon, 7 Humph. (Tenn.) 410. (a) Burnaby v. Baillie, L. R. 42 Ch. D. 282; Bosvile v. Attorney-General, L. R. 12 P. D. 177. (b) Burnaby v. Baillie, supra; People v. enough to prove illegitimacy to show that the child was "colored," since the color would be presumptively attributed to its Indian blood. Illinois L. & L. Co. v. Bonner, 75 Ill. 315. Court of Sessions of Ontario County, 45 fixed by any rule of law (in the absence of a statute),1 and resort must be had to the testimony of experts in physiology. Approved works on Medical Jurisprudence may be consulted. There is a peculiar rule of the common law, to the effect that if the mother has married again so soon after the death of her husband that either husband might be the father, the child is more than ordinarily legitimate, and may choose his parent as between the two husbands. No case of that kind has found its way into the American reports. The legal rights and duties of the parents of illegitimate children. The principal duty of the father of an illegitimate child is that of support. He has no right in morals or in law to bring such a child into being and to cast the burden of his support during infancy upon society. By an early English statute 2 two justices of the peace could in their discretion make orders both for the punishment of the mother and reputed father and for the relief of the parish where the child was born. They were authorized to charge the parents with the weekly payment of money or other sustentation. If the order was not obeyed, the parents were committed to jail, unless they put in sufficient surety to obey the order of the justices or else to appear at the next general sessions of the peace to be held in the county and to abide the order there made. This is in its nature a criminal proceeding, and is followed in substance in this country.3 (a) These old statutes have been repealed in England and those referred to in the note have taken their place. There is still a general resemblance to the old methods. Infancy is no defence to an action on the undertaking given as security by the putative or reputed father.5 The principal right of a parent of an illegitimate child is that of custody. The mother is entitled to the custody rather than the father. (b) If the putative father obtains possession of the child 1 By the New York Code of Criminal Procedure, § 838, a child is illegitimate if a husband is separated from the wife and mother for a whole year previous to its birth. 2 18 Eliz. c. 3. There was a number of English statutes on this general subject down to about the time of the American Revolution. (a) See also in New York, 1 Birdseye's Rev. Stats. 246. (b) Barnardo v. McHugh, 61 L. J. (Q. B. D.) 721; Queen v. Nash, L. R. 10 Q. B. D. 454; Friesner v. Symonds, 46 N. J. Eq. 8 Reference may be made in New York to the Code of Criminal Procedure, § 838, and subsequent sections, where proceedings in bastardy are detailed at length. 4 7 & 8 Vict. c. 101; 8 & 9 Id. c. 10; 21 & 22 Id. c. 67; 35 & 36 Id. c. 65, § 2; 36 & 37 Id. c. 9. 5 The People v. Moores, 4 Den. 518. Ex parte Knee, 1 Bos. & Pull. N. 521. After the mother's death, the putative father is entitled, except under special circumstances, to the child's custody. In re Kerr, 24 L. R. (Ir.) 59. by force or fraud, the court will order it to be restored to the mother. The court will issue a writ of habeas corpus to bring up the child on the mother's application, if it be within the age of nurture, and award it to her, unless sufficient reason be shown to the contrary. If the child have sufficient discretion to judge for itself, the court will not interfere. The father cannot shake off his liability for the support of the child by demanding the custody and meeting with a refusal.1 Status of an illegitimate child. The status of an illegitimate child is summed up in the statement that he is in law the son of no one, — filius nullius, filius populi, filius terræ. He has no capacity to inherit land from his father, mother, or collateral relatives, nor to take personal property by succession from an intestate relative. He has no name by succession, but only that which he may acquire by reputation. For example, he would not be regarded as a "child" under a statute which permits a "child" to bring an action for injury to a father.5 Still, he might by reputation gain the name of "child" of one who had no legitimate children. So he may be legally described by referring to him in connection with his mother. The result of these rules is that he is not domiciled where his putative father is, but takes the domicile of his mother at the time of his birth.8 But if the mother be unknown, the domicile is where he is born. The domicile may be changed from time to time during infancy by the act of the mother.9 An illegitimate child, notwithstanding these artificial rules, is for some purposes recognized as having blood relatives. Thus, an illegitimate person cannot marry a blood relative of any nearer degree than a legitimate person.10 Rules of public policy as affecting such children. The law discourages the procreation of such children, but at the same time countenances and permits provision to be made for them. when once in existence. Accordingly, all contracts and grants made in view of illicit R. 148; Rex v. Soper, 5 Term R. 278; Rex v. Moseley, 5 East, 224 n.; People v. Landt, 2 Johns. 375; Carpenter v. Whitman, 15 Id. 208; Matter of Doyle, Clarke's Chanc. R. (N. Y.) 154; People v. Kling, 6 Barb. 366. 1 Robalina ". Armstrong, 15 Barb. 247. 2 Rex v. Hopkins, 7 East, 579; Robalina v. Armstrong, 15 Barb. 247. 8 In re Lloyd, 3 M. & G. 547. Carpenter v. Whitman, 15 Johns. 208. relations, and all provisions made for such children as may come into existence by means of such relations, will be declared null and void. (a) An example is a future estate in land to vest in a prospective illegitimate child. A similar provision in favor of one in existence and sufficiently described would be upheld.2 So a court of equity will enforce a trust created by a father in favor of such a child. Still, it has been held that the ordinary conveyance termed a "covenant to stand seized," which has the consideration of duty and affection to uphold it as between a father and legitimate child, has no consideration to uphold it in a like conveyance to illegitimate offspring. The natural love and affection in the latter case is not equivalent in law to the same affection in the former case, supported as it is by legitimacy.* It is well settled that if the reputed father promise to pay money to the mother in consideration that she will maintain the child, or relinquish its custody and management, and she act accordingly, the promise will be binding upon him. Where such an agreement purported to bind the father to support a child (nearly six years old) "until it was able to do for itself," it was held that it must be in writing in order to comply with the Statute of Frauds.6 The New York Court of Appeals further holds that the natural obligation arising out of the relation of the father to the child is a sufficient consideration for a contract on his part to pay for its support and maintenance. Having once made the agreement, he continues to be bound by it until he renounces the child or otherwise notifies the persons so supporting and maintaining it that he will no longer be liable to them.8 Establishment of legitimacy by a direct legal proceeding. By the common law, there is no mode of establishing legitimacy by a direct proceeding for that purpose. This is a serious defect, as it leaves the matter of determining one of the most important relations of life subject to distressing uncertainty, and that, frequently, for many years. This defect has been to some extent remedied in England by the legislation referred to in the note.9 1 Crook v. Hill, L. R. 3 Ch. Div. 773. 2 Id. 3 Williamson v. Codrington, 1 Ves. Sr. 511; Knye v. Moore, 1 Sim. & Stuart, 61. 4 Fursaker v. Robinson, Precedents in Chan. 475; s. c. Gilbert, Eq. R. 139. But see Todd v. Weber, 95 N. Y. 181. 5 In re Plaskett, 30 L. J. (Ch.) 606; Jennings v. Brown, 9 M. & W. 496; Hicks v. Gregory, 8 C. B. 378; Smith v. Roche, 6 C. B. (N. s.) 223; Todd v. 6 Farrington v. Donohoe, 1 Ir. R. C. L.) 675. 7 Todd v. Weber, supra. 8 Todd v. Weber, supra; Cameron v. Baker, 1 C. & P. 268; Nichole v. Allen, 3 C. & P. 36. 921 & 22 Vict. c. 93. Any naturalborn subject of the Queen, or any person (a) Thompson v. Thomas, 27 L. R. (Ir.) 457. |