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the wife shall acquire as to property, and many other purposes, the condition of a feme sole (b).
2. That a divorce (or dissolution of marriage) may also be obtained from the new court, on the petition of either husband or wife, upon the ground where he is petitionerthat since the marriage she has been guilty of adultery (c): where the petition is on her part-that he has since the marriage been guilty of incestuous adultery, or bigamy with adultery, or rape, or unnatural crime, (such as in the Act mentioned,) or of adultery coupled with such cruelty as would, without adultery, have entitled her to a divorce à mensâ et thoro, or coupled with desertion, without reasonable excuse, for two years or upwards (d). But the court is not at liberty to decree the divorce, if the petitioner has been accessory to, or connived at, the adultery, or has condoned it, or if the petition is presented or prosecuted by collusion (e); and shall not be bound to decree the divorce, if the petitioner has been guilty of adultery during the marriage, or guilty of unreasonable delay in the petition, or of cruelty to the other party, or of desertion or wilful separation from the other party, before the adultery, and without reasonable excuse, or guilty of such wilful neglect or misconduct as has conduced to the adultery (f).
3. That either on a decree for judicial separation, (on the wife's petition,) or on a decree for dissolution of the marriage, an order may be made for alimony to the wife (g).
4. That on a decree for dissolution of the marriage, there may be an appeal to the House of Lords (h); but when the time limited for that purpose has expired without any appeal, or when in its result, the marriage is declared to be dissolved, it shall be lawful for either party to marry again, as if the prior marriage had been dissolved by death (i).
(6) 20 & 21 Vict. c. 85, s. 25. (e) Sect. 30.
(c) Sect. 27. The husband may (f ) Sect. 31. also proceed by petition against the (g) Sects. 17, 32. adulterer for damages, sect. 33, (vide (h) Sect. 56. post, bk. v. c. VIII.)
(i) Sect. 57. (d) Sect. 27.
OF PARENT AND CHILD.
[The next, and the most universal relation in nature, is immediately derived from the preceding, being that between parent and child.]
Children are of two sorts, legitimate,—and illegitimate or bastards ;—which will lead us to consider, First, the law of legitimacy,-Secondly, the reciprocal duties and rights between parents and their legitimate offspring, And, Lastly, the rights and incapacities of bastards.
I. A legitimate child is one born of wedlock; or (more particularly) one between whose parents the relation of marriage subsisted either at the time when he was begotten, or at the time when he was born, or at some intervening period : and all persons otherwise circumstanced are, by the laws of England, bastards (a). For a child begotten of parents married at the time, or married afterwards, (but before he was born,) is legitimate, though in consequence of the death of one of them, or their divorce à vinculo, the marriage was dissolved before he was born. And the case is the same with one born of parents married at the time of his birth, though they were unmarried when he was begotten. But where the issue is begotten before the marriage of his parents, our law makes it an indispen
(a) See Co. Litt 7 b, 244 a; 1 Bl. Com. 446; R. v. Luffe, 8 East, 193, and the authorities there cited. Et vide Doe v. Vardill, 5 Barn. & Cress.
438; 6 Bing. N.C.385 (in the House of Lords). As to the derivation of the term bastard, vide Co. Litt. by Butler, 243 b, n. (2).
sable condition to its legitimacy, that they should intermarry at some period before its birth (b). In this last point the civil and canon laws differ materially from ours; for, according to them, it is sufficient to render the issue legitimate, that the parents should intermarry after its birth (c). But the reason of our English law is surely much superior to that of the Roman,] it being one main end of marriage to ascertain some person [to whom the care, the maintenance and the education of the children should belong; and this end is undoubtedly better answered by legitimating,] as with us, [all issue born after wedlock, than by legitimating,] as in the Roman law, [all issue of the same parties even born before wedlock, so as wedlock afterwards ensues. 1. Because of the very great uncertainty there will generally be,] under the Roman law, [in the proof, that the issue was really begotten by the same man] who afterwards becomes husband; [whereas, by confining the proof to the birth] during marriage, [our law has rendered it much more certain what child is legitimate, and who is to take care of the child. 2. Because by the Roman law, a child may be continued a bastard, or made legitimate, at the option of the father and mother, by a marriage ex post facto, thereby opening a door to many partialities, which by our law are prevented.] 3. Because this rule of the Roman law is evidently a great encouragement to unlawful cohabitation; particularly as it [admits of no limitation as to the time or number of bastards so to be legitimated; but a dozen of them may, twenty years after their birth, by the subsequent
(6) From the remotest period of (1), where further information will its history, our law has considered be found on this subject. The docan ante-natus as illegitimate. Doe trine of legitimacy by a subsequent o. Vardill, 5 Barn. & Cress. 468 ; 6 marriage is said to have been estaBing. N. C. 385. And it has been blished in the civil law by Constanlately decided, that even where born tine, and confirmed by Justinian ; in a foreign country the law of which and to have been established in the allows ante-nati to be legitimate, he canon law by a constitution of is nevertheless incapable of inherit Pope Alexander the Third, in 1160. ing to land in England. Ibid. Ibid.
(c) Co. Litt. by Butler, 245 a, n.
[marriage of their parents, be admitted to all the privileges of legitimate children. This is plainly a great discouragement to the matrimonial estate, to which one main inducement is usually not only the desire of having children, but also the desire of procreating lawful heirs; 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 is so indulgent as not to bastardize the child, if it be born, though not begotten, in lawful wedlock; for this is an incident than can happen but once, since all future children will be begotten as well as born within the rules of honour and civil society. Upon reasons like these, we may suppose the peers to have acted at the parliament of Merton, when they refused to enact, that children born before marriage should be esteemed legitimate (d).]
What has been hitherto said supposes, it will be observed, the true parentage in each case to be established ; but that is a point which, even as regards the ostensible issue of married persons, the law permits to be brought into controversy. [As if the husband be out of the kingdom of England, or, as the law somewhat loosely phrases it, extra quatuor maria, for above nine months, so that no access to his wife can be presumed, her issue during that period shall be bastards (e).] And children born during marriage may be also proved bastards by other cogent evidence-as by proof of the impotency of the husband; or that they had no opportunity (though both within
(d) “Rogaverunt omnes episcopi sunt et approbatæ."-Stat. 20 Hen. 3, magnates, ut consentirent quod nati c. 9. See the Introduction to the ante matrimonium essent legitimi, sicut Great Charter, edit. Oxon. 1759, sub illi qui nati sunt post matrimonium, anno 1253; also the remarks upon quia ecclesia tales habet pro legitimis. this statute in Doe v. Vardill, 6 Bing. Et omnes comites et barones una voce N. C. 385. responderunt, quod nolunt leges An (e) Co. Litt. 244. gliæ mutare quæ huc usque usitata
the realm (f)) of sexual intercourse within such period as is consistent with their being the parents; or even by proof of circumstances tending strongly to the inference that no such intercourse 'supposing it to be possible) in fact took place (g). So it was held, while divorces à mensa et thoro and à vinculo were adjudged by the Courts Ecclesiastical, that if the wife bred children during the former kind of divorce, they were primâ facie bastards; for the law presumed the parties to live conformably to the sentence (n); and that, after a divorce à vinculo had been adjudged, all the children were necessarily to be deemed bastards; because such sentence was always on the ground of the nullity of the marriage ab initio (i). But except where a divorce has taken place between the married parties, or evidence has been given of facts sufficient to disprove their sexual intercourse, the law has always presumed in favour of the legitimacy of a child born to the wife during the marriage (i). Upon the same principle, too, legitimacy will always be presumed (subject to the same exceptions), with respect to children born after the coverture has ceased by reason of the husband's death, unless the birth takes place so long afterwards that the child clearly could not be begotten by him. And what shall be considered as the ultimum tempus pariendi, or the extreme period between the conception and the birth, is a point that the law has not exactly determined, but leaves as a matter of fact, in each particular case, to the decision of a jury, who are to judge of it according to the circumstances, and the testimony which persons of
U ) Lord Coke lays it down that Peerage, and the authorities there the legitimacy is not capable of cited. Morris v. Davies, 5 CI, & being disputed if the father was fin. 163. within the four seas; Co. Litt. 244 a. (h) 7 Rep. 42; 3 P. Wms. 275; But the law is now otherwise set- i Salk. 123. tled.
(i) 1 Bl. Com. 457 ; Goodright v. (g) See R. v. Lubbenham, 4 T. Saul, ubi sup. ; R. v. Mansfield, 1 R. 251; Goodright v. Saul, ibid. Q. B. 449; Saye & Sele Peerage, 356 ; R. v. Luffe, 8 East, 193; Le 1 H. of L. Cas. 507; Hargrave v. Marchant's Report of the Cases of Hargrave, 9 Beav. 552. the Banbury Peerage and Gardner