*Camden*

Heard by Chancellor James.

«ase i,sir.

#### Ann Barwick, *vs.*Miller and M. Gayle. Eleanor Jones, *vs.*Sarah Burden et al. Administrator of M. Burden.

*Orangeburgh.*

Heard by Chancellor Waties.

In tliese two cases, turning on the same point, the two judges gave d'ffcen. op-mons. On appeals from both, the court decided, that a tnod-er cannot take either real or personal esta.e from her Hie-git .mate child, djing intestate. Not can a ..ister or any other colla'e. ral relation, take from an illegitimate brother or kinsman, dying- in-tcstr;e.

The act for the abolition of the rights of primogeniture, and for the d’.'ison and distribution of intestates’ estates, did not make any altera-t'on of the old law, *m*the rights of bastards, or those claiming under them.

The sole question in this rase arises upon tlie fol - lowing facts: William Gayle, died without issue, and intestate, leaving a widow, one of the defendants, and a mother, who is complainant. He was an illegitimate son. Is the mother entitled to take a distributive share of his estate under the act of 1791, abolishing, &c. The clauses of the act which may have application, are the 3d and 9tb, “If the intestate, shall not leave a child or other lineal descendant, butshall leave a widow, and a father or mother, the widow shall be entitled to one moiety of the. estate, and the father, or if he be dead, the mother shall bo entitled to the other moiety.”

“ In reckoning the degrees of kindred, the computation shall begin with the intestate, and be continued up to the common ancestor.”

Before I proceed to make any application of the clauses cited, to the cases under consideration, it will bo necessary to observe generally, *that the*object of the act was to abolish the right of inheritance by descent, as it existed at the common law’; and to establish certain rules of distribution in cases of intestacy. There can be» *no*
      *435claim here by right of heirship, but by right of distribution, arising under a law of the land, made expressly with a view to reach new objects, rejected by the English common law.

It will be proper to keep this distinction in view throughout the whole case; but it will more, particularly me 4 an objection that may be made at the threshold against the claim of the complainant, that by the maxim that a bastard is nidlius filius, the intestate Gayle must be considered as haring no mother. But this is one of those legal paradoxes into which fictions of law, when universally applied, are so apt to lead. The rule that #bastard is nullius filius, applies only in cases of inheritance, where the parent is uncertain. In this point of view, it may prevent a mischief, but it ought not to be extended so as to work an injury.

Lord Coke says, that a bastard is quasi nullius fili-us, because he cannot inherit. Coke Lit. 123, The same opinion is confirmed by Black. 1 Com. 458, and fey the case of King *vs.*Inhabitants of Hodnett. 1 T. R. 101. And further, it is laid down in 1st lord Raymond 68, Haines *vs*Jeffee, in point of law that maxim is not universally true, for if it were, a bastard might marry his own mother, which could never be allowed.

These decisions narrow down the maxim nullius filius, to the single case of the right of inheritance, which our act abolishes, and establishes other rights in its place. Then our law is not to be taken in pari materia with the common law of inheritances ; but in connection with ether laws to which it is more nearly related, or whence it is derived. Now this is the civil law. Our act of lf91 is nearly a copy from the Institutes of Justinian; I refer to the 3d book, tit. 1, and the 118 novelle, from which it Will be found, that only those passages in these laws have been omitted by our law, which could have no application in this country. It further appears by passages, cited by the counsel from Do mat. 1 vol. 569, that the mother of a bastard could take apart of his estate in certain cases therein mentioned, because she is certain. The civil law therefore admits of no fiction, as to the mother, but estaba *436llshes lier rights. Hence we have a high authority nearly allied to our own law, to shew that the intestate Gayle-has not only a mother de facto, which has never been doubted, but also one de jure, which has been denied.

*435FEB’Y 1814.

*436Now in the first clause cited from the act of 1791, the nomen generalissimura mother only is used, and no exceptions are made as to any particular mother. What then must it naturally be supposed, was the intention of' thepenner, and of the framers of that law? Was it the mother of the English law (which they repealing) whom they meant, or the mother of the civil law, which they were enacting. I am of opinion that they intended the latter. But besides the ground I have taken, that the aft of 1791 is in its principles derived from the civil law, and therefore that it ought to be construed conformably thereto, there is another which is furnished by the second clause cited above. By it we see that the mode of computing the degrees of kindred according to the rule of the civilians has been *adopted;*and the mother would be included in the first step from the propositus in the present, case. This is a further proof that the idea of the civil law was still uppermost in the minds of the penners of the act of 1791.

These observations might be extended much more? but I am satisfied with the developement of principles.

Several objections have been raised, which shall next occupy my attention.

It has been strongly argued that it would be contrary to good policy to adopt civil law rule, because the mother is the offending party. This is the doctrine of the English common law. The operation of it is to be by way of punishment for the offence, and by way of example to others. On this subject, the author of the excellent essay on crimes and punishments, has strongly observed, that useless and pernicious must all laws and customs be, which tend to diminish the sum total of this passion. The best method of preventing this crime, would be effectually to protect the weak woman from that tyranny which exaggerates all vices which cannot be concealed under the cloak of virlaej p'. 129, 132. Towards the end_of his book *437líe lias also drawn a conclusion from the whole subject, Which Í think applicable to the present case. It is often quoted in courts of criminal jurisdiction $ but yet, it may be somewhat novel here, where we are not often called upon to punisli offenders. « That a punishment may not. be an act of violence of one or many against a private member of society, it should be public, immediate and necessary, the least possible in the case given, proportion-od to the crime and determined by the laws.” Now in. this case it cannot be immediate, because the culprit is to be punished at the end of nearly half a century *;*and it has not been determined by the law's, because the law appearsto be in her favor.” To the wise observations of this author I will only add, that I shall neither cast the first stone against the mother in such cases, nor throw more temptations in her way to induce her to abandon her offspring than those which already arise from shame and public infamy. But it has further been insisted apon, that under the English statute of distributions, the mother of a legitimate child, as being of the next of kin, can take a share of his personal estate, and the mother of a bastard cannot; and that both the statute and our act being derived from the civil law, therefore the cases of the mother of a bastard in England and here are exactly parallel. But we have the autho^ty of judge Blackstone himself to shew that the statute of Charles is not taken from the civil law. He says, *“*it bears some resemblance to the Roman law'of succession, ab intestato, Which,-and because the act was penned by an eminent civilian, has occasioned a notion that the parliament of England copied it from the Roman Prsetor, though indeed it is little more than a restoration, with- some refinements and regulations of our old constitutional law, which prevailed as an established right and custom from tin; time of king Canute downw'ards, many centuries before Justinian’s laws were known or heard of in the western *urope;*2d vol. 218. Our act therefore being part of ÍS copied from the civil law, and adopting its principles, and fhe statute of Charles being little more than a-restoration *438of the old constitutional law of England, the parallel contended for does not apply.

Then all that remains of the argument is the authority of the English decisions, which is done away by our acts adopting the principles of the civil law. I am also aware of another objection that may be urged, that by an act of the legislature, passed 1795, “ that if any person shall have begotten, or shall hereafter beget any bastard child, or shall live in adultery with a woman, the said person having a wife or lawful children of his own living, and shall convey for the use of such child or wo* man, more than one fourth part of his estate, such con■veyance shall be void as to so much as shall exceed the said fourth part of his estate.” And from this act an argument may be drawn that the law of this country is more rigid against bastardy than the law of England, and and-therefore that the decisions of our courts ought to assume the same aspect. This argument is drawn from analogy, but the cases embraced in the act, bear no resemblance to the present one. The intention of it appears to have been to guard the rights of wives and legitimate children, and it does not warrant any decision that would interfere with the rights of others, not the object of the act. Besides, analogy alone in this case will not be sufficient. If the aft of 1791 has vested any rights in the mother in the present case, no construction of the act of 1795, except that of repeal, ought to take them away from her. Besides the objections stated above, the analogy of this case to that of the disinherited bastard in England, has been strongly pressed upon the court. Here I will remark again, that the question is not whether a bastard, whose father is uncertain, shall inherit; but whether the mother who is certain shall be excluded. Should the other case ever ocGur, it will be time enough then to consider it. Great pains and much learning have been bestowed by judge Blackstone, to evince the superior morality of the rule, that a bastard shall be considered quasi nullius filius over that of the civil law, which allows him ■ a hope of being legitimate. It cannot be denied but that he has succeeded in a great measure *\*but after all this *439boasted rule of the English law, like the one of attainder, is liable to great objection, namely, that it is a visitation of the sin of the father upon the *child;*a punishment of that kind, which the Almighty appears to have reserved for himself alone. It is not my object however to weaken the rule, but to confine it to cases where only it should apply-

Upon the whole of this case, I am of opinion that the rule of the civil law should prevail in the construction of the 7th clause of the act of 1791, above cited; and that the complainant should be entitled to a moiety of the estate of her deceased son, notwithstanding his illegitimacy.

(Signed) W. D. James.