Star.
London, England, 1807-02-02 00:00:00

be his child. As to the fire objenion, does it appear
to be founded on the evidence of the wife only ?
The evidence of other perfons than the wife is re-
quired upon principles of general policy. For it
would be highly inconvenient that a wife thould be
examined at all in any matter likely to produce dif.
pules between man and wife. However, there is an
lexception as to this rule, that the may he examined
of neceffity as to thole fans which the only can fpeak
to. But as the can only be examined in matters of
neceffity, now it is necelfarl to (hew by the evidence
of the wife, whether any pet fon had that fort of il-
licit intercom fe which laid a foundation fur the birth
of this child. To that extent the might be admitted
as a competent evidence to prove the illicit inter-
courfe with the adulterer. Pethaps, alto, the was
competent to prove that no other perfon than the
adulterer, on whom the charge of maintenance of
the child is to fall, had any intercourfe with her.—
Fur there fans are peculiarly and folely within her
knowledge. To the extent of the adulterous inter-
courfe it is clear the mull be examined. Does it
then appear, that the was examined beyond that ?
'The order is, it appears, 44 as well upon the oath of
the faid Mary Taylor as otherwife." The words are
not " as well upon the examination of Mary Taylor
upon oath as other wife ;" for then it would be open
to the objetfition which has been made, and there would
atife an inference that the other evidence was not
upon oath, whereas here the inference is that both
kinds of evidence were upon oath. The order does
not diflinguilh to what parts of the cafe Mary Tay
for (poke ; but it appears that other evidence was
given ; for the words " or otherwife," mull mean
other proof, as in the cafe of the King v. Bedall.—
And if we find the wife to have been examined with
others, we will intend that (he was not examined as
to the proof of accefs, which cannot legally he proved
by her ; but that the (poke to fuch fans as (he might
well prove. nod that the want of accefs was proved
by other competent tefliniony. Here, it is to be ob.
fet ved, that the words, "or otherwife" do not occur
accidentally, and in one place only in the order, but
arc repeated. There is, therefore, no foundation for
the fiat objeflion. As to the fecund objenion, it in
effea refolves itfclf into the third. For when it is
made a queilion, whether the ftatutes apply to any
cafes but where the children are not born in lawful
matrimony, it refolves itfelf for the purpofe into the
queftion, whether the child is born in lawful matri-
mony for the purpofe of thefe Ant., and whether al
child burn in adultery is a child which thefe AIRS had
in contemplation as much as baltards under other
circumllances ? And this we think is the true con.
amnion of thee Ans. .Then the queftion is, whe.
ther >he return of the hufband within any limited
time before the period of elation is expired, does
or does nut call upon him the charafter of father
of that child incontrovertibly, according to the law
of this country ? This is an important queftion, and
as there has been fomething faid about the novelty of
fume of the donrines tv be advanced, one would be
extremely forty not to find one's felt warranted by
ancient authorities. Now in Roll's Abridgement,
358, where the molt ancient authorities ft orn tie year
books are cited, it is Razed in the text that," by the !
law of the land no man born after efpoufals can be a!
baftard, linters for /pedal :natter." This exception
is engrafted upon the tu:e, and the firß fpecial mat-
ter is exaf tly what in fart occurs here,where there is '
a natural impoflibility that the hufband fir mild be the
father of the iffue. As where there is a natural
im-
pofibility from his being under the . age which ren-
ders procreation puilible, as where he is eight or nine
years old. And there is a cafe in the Year Books,
where the hufband was only fourteen years eat asp.
But that is not the °wily inftance. There is the cafe
of Forcroft, to Edw. I. where the fiat hufband was;
ill a month helot e his death, and had no accefs to his
wife, and afterwards the child being born within forty
weeks and eleven days, it was held to be a ballard.
When, therefore, there arife a natural impoffibility,
from the circumfiances of his bad health, a bodily
impotlibility, during the period of matrimony, which
rendered accefs imp offible, it has been held that the
ilfue was illegitimate. Now there is no doubt thrown
upon this cafe either in the original text of Coke and
Littleton, 123. or in the notes where that fobjen is
very ably treated by the Gentleman to whom the
public is indebted fur the hall edition of that work.—
In addition to the improbability arifing from bodily
infirmity, it is further flirted, 44 aid becaufe it is
found that the faid H. was born eleven days after
forty weeks, which is the time ufual for women, and
from this that the faid R. had nut accefs to the faid
Beatrice for one month before his death, it is pre-
fumed that the laid H. is a ballard. The record then
goes on to fini for the Plaintiff. It therefore appears
to be conficlered as material togo into evidence, to (hew
the natural impoffibility of his being the fun of the
bufband ; and in confirmation of this there is a rota
bone, that the hi/R.4nd languiffied of a fever a long
time before his death ; fo that not only the length of
time, but a further bodily impediment was confider.
ed to be material. A child being horn in marriage
is not fufficient to render him legitimate, where 1
any material impoflibility occurs from which the
prefumption of legitimacy may be repelled. Brit.
ton lays, taking notice of the prefumption that
marriage proves.legitimacy ;" and this prelmnption
(ball always hold till the contrary is proved, as, for
inftance, where the hufband is proved not to have
contorted (cones:huff) for a given time with his wife,
to have been incapacitated by infirmity or other caufe,
or that he was in fuch ill health that he could nut
be the father, ut generate non pojit." In another
paffage, he teems to confider certain cafes of impro-
bability. I think, therefore, upon dick authorities,
that if a foundation is laid that there is a natural irn.
poffibility arifing from age, from infirmity of health,
or arifinglikevore from non accefs, that the hufband
thould be parent of the child, then the illegitimacy
of a child born after efpoufals may be proved. If,
then, any cirtumltances can be retorted to for proof
of impoflibility, we may certainly refer to fuch a natio
ral caufe as willjnot embark into it any queftion of nice
probability, but which involves an abfnlute impoflibi-
lity of the hufband being the father. It is to in the
preterit cafe. It may be faid, that we may be driven
to nice prod of phyfical improbability. But that
never need be fo ; becaufe the prefumptios that the
hufband is the father will be infinitely Rrnng, unlea.
there is an evident and clear impoffibility that
he is not. I therefore contend that in addition
to the cafes putt of impuberty and lifirmity, which
haft is rather an improbability than otherwife, we