The Albany Law Journal.

ALBANY, DECEMBER 6, 1873.

THE STATUTE TO LEGALIZE THE ADOPTION OF MINOR CHILDREN.

It may be accepted as a truism that except in very recently organized States, or on an unforseen and imperative emergency, legislation on a subject theretofore left to usage is of comparatively rare occurrence. Legis virtus hæc est, vetare, imperare, permittere, punire." The office of a statute is to command, forbid, permit, or to punish. When nothing is to be either commanded, forbidden, allowed or punished, law is unnecessary. To take up a matter and legislate unnecessarily is different from new enactments improving the existing law. Ours is a democratic and republican system of government, or as near to it as Montesquieu would have one, and our people are a progressive people. Such changes as are needed I mean actually and not speculatively or theoretically needful― should be promptly made for tempora mutantur et nos mutumar in illis, and changes or ameliorations can be presumed to be founded on the wants of the people, although a new statute is frequently based on prior judicial action. What, in this respect, is the character of the recent statute of this State "to legalize the adoption of minor children by adult persons" (N. Y. Sess. Laws, 1873, ch. 830, pp. 1243, et seq.). The subject-matter of this act, expressed in its title, is to "legalize" the adoption of minor children. Had this theretofore been unlawful? What is the definition of the word "adoption " in respect to such purpose as a law term in this State? I assert that there is no such definition in any previous statute, or in the published opinions of our courts, and that no one can maintain that the matter intended to be legalized was ever an illegal transaction. Indeed, the thirteenth section of this statute provides that "nothing herein contained shall prevent proof of the adoption of any child heretofore made, according to ANY method practiced in this State, from being received in evidence, nor such adoption from taking the effect of an adoption hereunder." What was meant by adoption before this statute? "ADOPTION - a taking of another's child as one's own, not recognized in English or American law, but still regulated by law in Germany and France as it was in Rome" (Appleton's American Encyclopedia, vol. 1, p. 132, tit. Adoption).

What facts are necessary to be proved as constituting adoption? The best expression of the popular understanding of what it is proposed to accomplish by the adoption of a child is to say it is to provide a home, to care for, educate and befriend a minor child so as to better its future condition in life. "If you trust the dear child to me, said Mrs. Boffin, with a face inviting trust, he shall have the best of homes, the best of care, the best of education, the best of

friends; please God, I will be a good, true mother to him" (Dickens' Our Mutual Friend, vol. 1, ch. 16). But Ch. J. Merrick, in Vidal v. Commagere, 13 La. Ann. Rep. p. 516, construing the legal effect of the term in a case arising not under the general laws of Louisiana, of which an abstract will be found hereafter, but under a special statute providing only and no more than that certain parties were "authorized to adopt, by a notarial act, a certain child as their own," in delivering the opinion of the court holds that by such an adoption, and without any further words, the adopted child becomes to all intents, and for the purposes of descent, as if a legitimate child born in wedlock to the parties adopting. Our New York statute, however, in most positive terms debars the person adopted from the right of inheritance by descent (§§ 10, 13), and as to property, real, or personal, or trusts, or devises, etc., "said child adopted shall not be deemed to sustain the legal relation of child to the person so adopting." To complete the act of adoption requires at least two parties, the person adopting and the adopted, and when completed is the legal act whereby an adult person takes a minor into the relation of child, and thereby acquires the rights and incurs the responsibilities of parent in respect to such minor (§ 1). The child is thenceforth to be regarded and treated in all respects as the child of the person adopting (§ 9), and when adopted is to take the name of the person adopting, and the two henceforth shall sustain toward each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation, excepting, respecting the minor, the right of inheritance (§ 10).

Will

What rights are conferred on the adult party in regard to the person and property of the minor? In regard to property, a father can inherit real estate from his child (1 N. Y. Stat. at Large, Edmonds' Ed., p. 702, § 1), and take personalty, as next of kin, under the statute of distribution (2 id. p. 199, § 70). the adopted father take instead of the “natural " heirs, or next of kin, of the adopted? Though by section 12 the parents of an adopted child are relieved from all responsibility for its acts, and are to have no rights over it, yet as this provision is evidently confined to the person, how is it with the property? As to the rights over the person, there is a perhaps well-founded notion that they are illusory. Ever since the decision of Mercein v. The People ex rel. Barry, 25 Wend. 64, many of our best lawyers have advised that in this State a child of an age to allow of any degree of discrimination can select a home for itself, and will not be restored to its father on habeas corpus, and as to infants of tender years, requiring nurture and maternal care, a mother, or party claiming from the mother, has the right to deprive the father of the custody of his child. The father's supposed common-law right to the person of the child is considered contingent on his social station, pecuniary ability, regularity of habits, evenness of temper, etc. Many of the readers

will remember the frantic efforts of the father in D'hauteville v. Sears, in several of our States, to gain possession of his first-born, from whom he was excluded by family differences. In a case within my own experience (Ex parte Rosat, not reported), before a (now deceased) justice of the supreme court, in the first district, a father could not succeed to obtain his female child, aged ten years, from the mother. She had a rich protector, and his more luxurious home. The father was, alas, a poor man, working for a professional livelihood, and from the south of Europe had a fiery temper, though no act of even considerable ungentleness could be proved against him. The consideration of "nurture" was paramount. Nor have I been able to find a New York case affirming the dictum of Lord Hardwicke, in Harvey v. Ashley (3 Atkyns, 55), that "the law has intrusted the fathers and guardians with the marriage of their children and wards," so far, at least, as to make a binding settlement for a minor female of her separate estate. I doubt whether this was ever law in England, but am certain that it is not the law of this State. There may be left a residuum of a cause of action per quod ser amis, the same as in case of an apprentice, but as for potential dominion, the molliter manus imposuit, the confining to a home, I do not see that it can be legally enforced. The provisions of the Revised Statutes, "Of Parents and Children" (2 N. Y. Stat. at Large, Edm. Ed., p. 155, § 1, et seq.), only apply to the rights of a divorced mother, and to children living among the Shakers. As the probability of the adoption of an idiot is so very remote, I do not trouble the reader with thinking of the contingency. Proceeding to consider the legal relations of the party adopted, the act is definite that such person must be a minor, and therefore not sui juris, not capable in law to enter into any legal engagement binding upon him, unless ratified after arriving at the legal age of maturity. Does the law assure to him a home, friends, care and education? Does it assure it to lawful children? It changes his name, but as to that no new legislation was necessary (Ex parte Snooks, 2 Hilton R. 566). One of the effects of the statute is prima facie to change the right of property in the earnings of the child. Can we (in proceedings under § 11) change the right of property acquired by the legitimate father of issue long before the passage of this act in the earnings of his children, virtute matrimonii, any more than he can be deprived of his tenancy by the curtesy in cases outside of the operation of the acts relative to married women, against his consent and without due process of law? In the case under section 4, of an infant who did not consent, or whose consent is not required, is this act of any force or validity whatever? There are also contingencies which have not received any consideration whatever from the legislative mind for instances: Supposing the adopted to have legitimate issue at the time of adoption; is such issue of legal relation to the party adopting? What will be

the status of issue born to the party adopted after adoption relative to the parent by adoption? What is to be the effect of such adoption in regard to third parties, particularly in regard to intermarriages, so carefully legislated for by the French and German Codes (see on this matter below)? Are agnate or cognate relations established by the legal increase of the number of children? Are the criminal or police laws compelling support of relatives applicable to the status created under this statute? If the child has been adopted by the husband with the consent of the wife, in case of the decease of the husband what are the rights of the wife, and in case she also survive the child dying intestate, and without issue, what can she claim from his estate? Supposing the adopter to be unmarried at the time of adoption; what is the effect of such marriage on the adopted?

In the ever-changing kaleidoscope of human events these and many other questions may arise upon this statute. What judicial dicta have we as elements of a decision? If we had a definite legal explanation of the term Family, we would have a guide in the right direction. As far as I know, the only statutes of this State speaking of "family" are, (1) The exemption from execution to housekeepers having a “family;" (2) the statute authorizing the acquisition of family burying plots, which are too distressing and grave statutes to be here considered. Our political organization does not admit a description of a family as a home society. In Prussia the relation between husband and wife and parents and children constitute the proper home society (Haeusliche Gesellschaft), and to which the domestics may be considered as belonging (Allgemeines Landrecht, part 1, tit. 1, §§ 3, 4). The foundation of family relations are there held to be derived by descent from common ancestors (id. § 5). Here we do not recognize "a house" or "family" to occupy in law a recognized position as a subdivision in our system. "Family," "child," "heir," have relation only to the transmission of title to property. These terms occurring in wills or settlements are frequently held inoperative, as being too indefinite or remote. The English and American authorities on this point will be found in Jarman on Wills, Redfield on Wills, Bright's Husband and Wife, Reeves' Domestic Relations, Schouler's excellent work on the same subject, and other standard treatises.

To return to the matter of "adoption." It has been considered by many very conscientious citizens that good reason existed to allow the legitimation of those who are technically called "ex concubinate," as an act if not of bare justice yet of proper reparation. The Roman law permitted this legal recognition. England, however, has obstinately refused to introduce such law, and the States who descend from Great Britain have followed her. At the Statute of Merton, 20 Henry III, A. D. 1236, "Et rogaverunt omnes Episcopi magnates ut consentirent quod nate anti matrimonium essent legitimi sicut illi qui nate sunt

Et

post matrimonium quantum ad successionem hereditariam quia ecclesiatales habet pro legitimis. omnes comites et barones una voce responderunt quod nolunt leges angliae mutare que hucusque usitate sunt et approbate." Barrington in his "Observations on Ancient Statutes" (London, 1796), pp. 44, 45, says: The remarkable opposition to the introducing this part of the civil law probably arose from its being proposed by one of the Poictevine favorites of Henry the Third. The sturdy Barons not approving of the proposer rejected the proposal una voce. You are a foreigner and shall not introduce foreign laws, be they good or bad." In another reign by special act and favor the children of John of Gaunt, by his wife Catherine before marriage, were made legitimate. Sir Edward Coke, 3 Inst. p. 208, mentions that William Deha Pole, Duke of Suffolk, attempted the same innovation in the reign of Henry VI, and this is stated by Barrington to have occasioned the writing of Fortescue's treatise "De Laudibus legem angliae." The laudation and praise given to the English law of that day, is that it is tricky, ambiguous and inconsistent. Leges angliae plenae sunt tricarum ambiguatatumque et sibi contrariae.” Legitimation, however, is not adoption, and has not been so considered in ancient as well as modern times, though there is a general impression that they are synonymous. Adoption is most frequently termed adrogation, and a brief account of this law from continental sources will prove instructive as well as interesting. In Greece, adoption of a child would seem to have invested the party adopted with the rights of legitimate children. In the oration against Macartatus, which was an action in the nature of an ejectment, Demosthenes claims title for the plaintiff, as a son by adoption. He says that the decedent's next object of anxiety was that "a son

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should be adopted by him into his own family * * for he considered ** * * * that this would be the best means of preserving his house (otxos) and preventing its extinction." And in the case of Leochares, also a case to recover an inheritance in lands, title is claimed through adoption as a means of descent in case of intestacy. (Kennedy's translation of Demosthenes' Miscellaneous Orations, Bohner ed., pp. 6, 26.) The relation thus created was termed eisenoinsaro', the natural father exolegai and the adopted ειςποιετζαί· For historical information in much earlier times, I refer to a brief but most elaborate paper of the late Dr. Wolfgang, Wessely-Professor, of the Law Faculty of the University of Prague, to be found in the serial Ben Chanarjah ed., Ch. Rabbi Loew, 1858, p. 391.

created by it. The adopting father must be at least sixty years of age, must be at least eighteen years older than the person adopted and must not have children of his own or liable to a natural increase, unless it was proved that his own children would suffer no injury by the adoption. The person adopted had to be sui juris, and the transaction itself be sanctioned by the supreme power of the State itself. There was one special result that the children of the person so adopted or adrogated became part of the family of the adopting person. (Gaius trans. by Tomkins & Lemon, pp. 94, 95.) Cicero (Cic. pro. dom. 13-34, 35), shows that Clodius a patrician and a senator desiring to become a Tribune wished to change his status to that of a plebeian, and had given himself in adrogation to a plebeian younger than himself. The great orator denounces this scheme. He says that the adopted became the heir of the name, wealth and religious duties of the adopter, "hereditas nominis pecuniae sacrorum secutae sunt." Augustus would not adopt Tiberius until the latter had adopted Germanicus so that the latter should at once become the grandchild of Augustus. (Ortolan's Inst. p. 102, § 11). There is an instance of the imperial dignity succeeding to an adopted child. Julius Cæsar adopted Octavius by testament which adoption was ratified by a plebiscite. (Ib. Lib. 1, Tit. 11, p. 92, n. 1.) The "datio in adoptionem" was when the natural father was considered as having disposed of his child to the adopting party. The proceeding was in court before the praetor in the nature of a private litigation and judgment upon nil dicit. The adopter claimed the child as his by virtue of a supposed but in fact fictitious transfer, the father did not deny and thereupon judgment was decreed that the child belonged to the claimant. This, by the by, was not the only case where a title upon fiction and by nil dicit could be made res judicata (Ortolan Ib., note 1.) Justinian limited the rights accruing by this method. He provided that the filius or party adopted should not lose by his adoption into the family of another. He obtained a right of inheritance in case of intestacy, but could be disinherited by will. He was not numbered among the heredes necessarii. (Gaius above transl. p. 97.) A childless woman being a widow who had lost her child by death might under sanction of the Supreme power adopt a child and their mutual relationship was that which had subsisted between her and the departed child. There was a mutual right of inheritance. In the time of Gaius fœminae vero nullo modo adoptare possunt, etc. Justinian added; "Sed ex indulgentia principes ad solatium liberorum amissorum adoptare possunt," which is still further extended by the Diocletian constitution, "et eum

imique filii habere permittimus." (Note e of Tomkins to Gaius, at p. 100, on authority of Dioclet. & Max. Le. 5, Cod. de Adopt. 8, 47, Ortolan, supra, 102.) It is noticeable that a law professedly only in the

interest of humanity should have been subject to abuse. The capacity of the Roman citizen to take by testament or to hold certain public office was sometimes dependent on the number of his children. To evade this provision adoptions were made, and when the pecuniary or political benefit had been obtained an emancipation again relieved from the obligations toward the adopted child. Tacitus (Annals 15) reports the Senatus Consultus putting an end to this method of business. Ne simulata adopteo in ulla parte numeris publici juvaret et ne usurpandis quaerem hæreditatibus prodesset."

The Roman law became the civil law of the continent, and as no sturdy Baron opposed the churchman, we can safely assume that our subject passed into law wherever the general policy of the institutes became accepted as the rule of government.

In France the matter of adoption of children became one of the earliest to be considered in connection with the codification of their civil law. The discussions commenced at the session of the conseil d'etat on the 27th Brumaire year 11 of the republic. Berlier presented the draft of a bill, and argued in its favor, but there were wide differences of views. Treilhard Boulay, Tronchet, Cretet, Thibeaudeau Count Portalis, the Consul Cambaceres, names not surpassed in French jurisprudence and legislation, participated. The first Napoleon, then first consul, was, also, present and joined in the debates. He favored a liberal policy in consonance with the general principles of the Roman law. He held that the transmission of the family name was the main object of the institution. (Discussions du conseil d'etat et du tribunat sur le code civil. Paris, 1850, Vol. 2, pp. 218 to 237.) After several sessions they settled upon the draft of a bill which was sent to the tribunes, and which is the subject of most exhaustive reports by Berlier from the council of State and the Tribune❘ Perreau, and to an able speech by the Tribune Gary in corps legislatif. (Ib. Vol. 1, Docs. 28, 29, 30, pp. 212 to 239.) These preparations led to what now is chap. 1, title 8, lib. 1, of the code civil of France, adopted March 3, 1803, and is the present statute of France. The term used is "adoption," not "adrogation." It is a solemn contract sanctioned by judicial authority, by which, without taking an adult from his natural family he establishes between himself and the party adopting purely civil relations of paternity and assumed childhood.

The right of adoption is permitted only to persons over the age of fifty years, having at the time of adoption no children or legitimate descendants, and must be at least fifteen years older than the person to be adopted. No one can be adopted by more than one person, except by husband and wife, except in testamentary cases. The faculty of adoption can be exercised only toward a person who, during at least six years of his minority, has been the object of the care or bounty of the adopter. The adopted

must be of age at the time of the adoption. The name is thereby changed, but the adopted remains and preserves all his rights in his natural family, but marriage is prohibited between the adopter and the adopted or his descendants; between the adopted children of the same person; between the adopted and the children which may be born to the adopter; between the adopted and the widow of the adopter, or the adopter and the widow of the adopted. The adopted acquires no right of inheritance in the estates of the collateral relatives of the former, but has such right to the estate of the adopter as if born to him in marriage, even though other children may be born him. In case of decease of the adopted without legitimate descendants, such part of his property acquired by gift from the adopter, if existing in specie, returns to the giver or his heirs, but the surplus, if any, is to go in the first instance to his natural parents, to the exclusion of all others except the legitimate heirs of the adopter. These are the general outlines of § 343 to § 352 of the Code. The present law of Prussia is in the main very similar, except that a minor may be adopted with the consent of his natural father (Allgemeines Landrecht, etc., Berlin, 1863, vol. 2, title 2, division 10, § 666, etc., pp. 154, etc). Such is also the Austrian law, except that it expressly provides that an illegitimate child cannot be adopted (Dr. Muller's Rechtsbuch, p. 484, Vienna, 1867). I leave to antiquarians an investigation of the Knesatzung and Waffen-Annahme, etc., of the ancient Teutons.

In the portions of the United States formerly Spanish and French territory, laws have been adopted of which the following is an abstract:

TEXAS - ADOPTION. See Paschal's Digest, vol. 1, p. 102. Art. 30 (5) [1]. That any person wishing to adopt another as his or her legal heir, may do so by filing in the office of the clerk of the county court in which county he or she may reside, a statement in writing by him or her signed and duly authenticated or acknowledged, as deeds are required to be, which statement shall recite in substance that he or she adopts the person named therein as his or her legal heir, and the same shall be admitted to record in said office.

Spanish Law. 235. The Mexican law in force in 1832, did not permit any one who had a legitimate child living to adopt a stranger as co-heir with such child. Teal v. Sevier (Galv.-Austin, T., 1st April, 1863). Parents could then only give away one-fifth of their estate. (Escriche, words Adopcion, Legitima, Herencia and Quinto.) But it devolves upon those attacking the gift to show the excess. Ib.

The Civil Code of Louisiana, adopted in 1808, has been in operation ever since:

Any person may adopt another as his child, except those illegitimate children whom the law prohibits him from acknowledging; but such adoption shall not interfere with the rights of forced heirs.

The person adopting must be at least forty years old, and must be at least fifteen years older than the person adopted.

The person adopted shall have all the rights of a legitimate child in the estate of the person adopting him, except as above stated.

Married persons must concur in adopting a child. One of them cannot adopt without the consent of the other.

Of the States deriving their jurisprudence from the Common Law, Massachusetts is the only one which I know of having statutes upon the matter under consideration. See chap. 110, Gen. Stat. Mass. 1860; chap. 310, supplemental to Gen. Stat. 1871. The most material portion of which (§ 8, in regard to inheritance) makes the adopted child an heir and invests the relation with all other legal consequences and incidents of the natural relation of parents and children, the same as if he had been born to them in lawful wedlock, except that he shall not take property expressly limited to heirs of body, nor property from lineal or collateral kindred of such parents by right of representation.

The reader can form his own opinion as to the identity of the legal principles underlying the statute of this State and those of all the other governments to whose legislation I have called attention. We discountenance the descent, the others establish it. We permit minors only to be adopted, the majority of the others require the new member of the household to be of age when he enters it. Other countries say that marriages in such cases shall be restricted, and no opportunity given to disturb peace among relatives, we express nothing on these important matters in our law. We are silent on the question of legitimacy, while the others either expressly or by inference exclude illegitimate children from their statutes of adoption. They give to the parent in the last case a specific remedy to restore his children their natural rights ab initio, and we say to him that we are silent as to legitimation, but you may give them your name, by adoption, which implies that they are either your illegitimate or at best not your natural offspring.

The forms of procedure in such case made and provided being subsidiary, I have not made them the subject of remark.

any

PHILIP J. JOACHIMSEN.

CURRENT TOPICS. Charles T. Sherman evidently considers himself a deeply injured man. In his letter to the President resigning the judgeship of the District Court of the Northern District of Ohio, he virtually admits that, for a pecuniary consideration, he contracted with certain New York brokers to lobby and wire pull in their interests, and this, he says, was the only fault found with him by the Cleveland Bar-the action of which in asking him to resign, he adds, was influenced

by motives far worse than any attributed to him. The judge proceeds to give his notions of judicial purity, integrity and honor. "This employment (by the New York brokers) could in no way conflict with my official duties. The subject-matter could in no way come before me for judicial action. No law or moral obligation prohibits a judge from seeking the repeal of any law, with or without compensation" which, in plain English, means that no law or moral obligation prohibits a judge from being a paid lobbyist. Happily, such moral or ethical notions are not generally entertained by the judiciary — and it is with considerable surprise that we find them coupled with such a sensitive spirit as must be Judge Sherman's, for he says: "Constituted as I am, rather than undergo the pain of having my name and actions and motives, and those of my family and relatives, canvassed and commented upon in a friendly or unfriendly spirit by persons either in or out of Congress, I would prefer to retire from my present position." Take him all in all his notions and his constitution - Judge Sherman is not the man for the Bench.

The punishment of Tweed's counsel for contempt of court, on Saturday week, was an extraordinary proceeding. At the commencement of the recent trial of Mr. Tweed, his counsel handed up to Judge Davis a paper suggesting that by reason of partiality or prejudice he ought not to sit as judge upon the trial of the case. At the close of the trial the counsel signing this paper-Messrs. Fullerton, Graham, W. O. Bartlett, Elihu Root, W. Bartlett and W. Edelsten were ordered to appear in court on Saturday last. On that day Mr. Fullerton, in his own and his associates' behalf, read an elaborate defense, disclaiming any intent of disrespect to either the judge or the court, or intent to intimidate the judge or to drive him from the bench, and insisting that, in view of the explanations given, they had done nothing unbecoming their duties as counsel or disrespectful to the court. Judge Davis thereupon remarked that if the paper had been handed to him privately or out of court, it would have dropped silently into oblivion, but having been presented in court, and after the case had been called, he could not regard it as a personal matter. He regarded it as an effort to induce the judge to leave the bench, to surrender the position in which he was sitting and to intimidate the court from the performance of its duty. The judge declared that he was actuated, not by personal feelings, but by a conviction of solemn duty toward the Bar, toward the court, and above all toward the administration of justice, and after commenting at some length upon the proper limits of a counsel's duty, he imposed a fine of $250 each on Messrs. Fullerton, Graham and W. O. Bartlett, and a lecture upon the others the junior counsel. Upon the merits of this affair it is not necessary to com