husband is also white, or of a black woman whose husband is a negro." In a case where the question of race is concerned, the child may be exhibited for the purpose of showing that it is or is not of the race of its alleged father. Warlick v. White, 76 N.C.175; Hanawalt v. State, 64 Wis. 84, 54 Am. Rep. 588.

In North Carolina the supreme court of that state holds that such exhibitions may properly be made. See State v. Woodruff, 67 N. C. 89; and State v. Britt, 78 N. C. 439; Warlick v. White, 76 N. C. 175; and State v. Bowles, 52 N. C. 579. The same was held by the supreme court of Iowa in State v. Smith, 54 Iowa, 104, 37 Am. Rep. 192. In the last case the child was over two years old; but, in the case of State v. Danforth, 48 Iowa, 43, 30 Am. Rep. 387, the same court held it was improper to exhibit to the jury a child only three months old. In Eddy v. Gray, 4 Allen, 435; Jones v. Jones, 45 Md. 144; Keniston v. Rowe, 16 Me. 38, the courts hold that testimony of witnesses that the child looks like or resembles in appearance the person charged to be the father is not admissible; and in Reitz v. State, 33 Ind. 187, and Risk v. State, 19 Ind. 152, it was held error to permit the prosecution to give the child in evidence, so that the jury might compare it with the defendant, who was present in court.

In the Douglas Case, cited in Wills, Circ. Ev. (5th Am. ed.) 117, Lord Mansfield is reported as saying: "I have always considered likeness as an argument of a child's being the son of a parent; and the rather as the distinction between individuals in the human species is more discernible than in other animals. A man may survey ten thousand people before he sees two faces perfectly alike, and in an army of a hundred thousand men every one may be known from another. If there should be a likeness of feature, there may be a discriminancy of voice, a difference in the gestures, the smile, and various other things, whereas a family likeness runs generally through all these, for in everything there is a resemblance; as of features, size, attitude and action." See Hanawalt v. State, 64 Wis. 84.

$549. Charge may be Sustained by Preponderance of Testimony. The charge of bastardy may be sustained by a preponderance of the testimony. Mann v. People, 35 Ill. 467; Maloney v. People, 38 Ill. 62; Allison v. People, 45 Ill. 37; McCoy v. People, 65 Ill. 439; People v. Christman, 66 Ill. 162; McFarland v. People, 72 Ill. 368;. Lewis v. People, 82 Ill. 104; State v.

McGlothlen, 56 Iowa, 544; Richardson v. Burleigh, 3 Allen, 479; Young v. Makepeace, 103 Mass. 50; People v. Collier, 1 Mich. 140; Semon v. People, 42 Mich. 141; State v. Nichols, 29 Minn. 357; State v. Rogers, 79 N. C. 609; Stovall v. State, 9 Baxt. 597. In Wisconsin, they hold that the charge must be proved beyond a reasonable doubt. Baker v. State, 47 Wis. 111; Van Tassel v. State, 59 Wis. 351. Bailey, Conflict of Judicial Decisions, p. 85.

NOTE.-Effect of subsequent marriage of the parents on antenuptial issue. The general current of authority favors the doctrine that where an illegitimate child has been legitimated by the subsequent marriage of its parents according to the laws of the state or country where the marriage takes place, and the parents are domiciled, such legitimacy follows the child wherever it may go. Miller v. Miller, 91 N. Y. 315.

Each state has the right to determine the status of its own citizens; the domicil decides which state has the right. Strader v. Graham, 51 U. S. 10 How. 93, 13 L. ed. 342; Story, Confil. L. 141, § 106.

Foreign jurists generally maintain that the question of legitimacy or illegitimacy is to be decided exclusively by the law of the domicil of origin.

It seems admitted by foreign jurists, that as the validity of the marriage must depend upon the law of the country where it is celebrated, the status or condition of the offspring, as to legitimacy or illegitimacy, ought to depend on the same law, so that if by the law of the place of the marriage the offspring, although born before marriage, would be legitimate, they ought to be deemed legitimate in every other country for all purposes whatever, including heirship of immovable property. Story, Confil. L. § 93.

Legitimacy or illegitimacy are among universal personal qualifications, and the laws of the state affecting all these personal qualities of its subjects travel with them wherever they go and attach to them in whatever country they may be resident. Wheaton, Law of Nations, 172.

When an illegitimate child has, by the subsequent marriage of his parents, become legitimate by virtue of the laws of the state or country where such marriage took place, and the parents were domiciled, it is therefore legitimate everywhere, and entitled to all the rights flowing from that status, including the right to inherit. Miller v. Miller, 91 N. Y. 315.

In cases of intestacy personal property is distributed according to the law of the place of the domicil of the intestate. Parsons v. Lyman, 20 N. Y. 103, 112; Moultrie v. Hunt, 23 N. Y. 394; Story, Conf. L. § 380.

But real estate in such cases descends according to the law of the place where it is situated. White v. Howard, 46 N. Y. 144-159; Story, Confil. L. § 424.

In this case it was held that an antenuptial child born in Scotland, of persons domiciled there, could not inherit lands in England, though by the law of Scotland the child had been legitimated by the subsequent intermarriage of the parents. The rule laid down in this case has been uniformly followed in England. Don's Estate, 4 Drew. 197; Re Wright, 2 Kay & J. 595; Re Wilson's Trusts, L. R. 1 Eq. Cas. 247; Shaw v. Gould, L. R. 3 H. L. 55.

An antenuptial child was born in South Carolina, in which state the parents

Intermarried, but at that time their intermarriage did not legitimate the child. Subsequently, the three became citizens of Mississippi, where antenuptial children were legitimated by the subsequent intermarriage of the parents. The father died intestate. It was held that the status of the child was fixed by the domicil of its origin; where it was illegitimate, it so remained, and could not inherit. Smith v. Kelley, 23 Miss. 167.

A child born in Scotland, of parents domiciled there, who at the time of his birth were not married, but who afterwards intermarried in Scotland (there being no lawful impediment to their marriage, either at the time of the birth or afterwards), though legitimate by the law of Scotland, cannot take, as heir, lands of his father in England. Birtwhistle v. Vardill, 7 Clark & F. 895.

The English judges, in Doe v. Vardill, 5 Barn. & C. 438, did not deny, but admitted, that the effect of the Scotch marriage in that case was to legitimatize the previous born issue, and that, being legitimate in Scotland, the country of his domicil, he was also legitimate in England. But they held, as before stated, that a person who inherits land in England must not only be legitimate, but must have been actually born in wedlock. Ross v. Ross, 129 Mass. 252-254; Miller v. Miller, 91 N. Y. 321, 322.

In addition to the cases cited in Ross v. Ross and Miller v. Miller, supra, and in the notes to Stewart v. Stewart, 31 N. J. Eq. 407, and to Bussom v. Forsyth, 32 N. J. Eq. 285, a few recent cases are appended; Atkinson v. Anderson, L. R. 21 Ch. Div. 100; Re Grove, L. R. 40 Ch. Div. 216; Keegan v. Geraghty, 101 Ill. 26; Stoltz v. Doering, 112 Ill. 234; Sunderland's Estate, 60 Iowa, 732; Scott v. Key, 11 La. Ann. 232; Caballero's Succession, 24 La. Ann. 573; Stack v. Stack, 6 Dem. 280; Dayton v. Adkisson, 4 L. R. A. 488, 45 N. J. Eq. 603, note. The question involved was elaborately discussed in England, in Doe v. Vardill, 5 Barn. & C. 438, sub nom. Birtwhistle v. Vardill, 2 Clark & F. 571, 7 Clark & F. 895; in New York, in Miller v. Miller, 91 N. Y. 321; and in Massachusetts, in Ross v. Ross, 129 Mass. 252. In the latter case Chief Justice Gray cites and comments upon every case up to that date (1880) and, after an exhaustive discussion of the whole subject, comes to the conclusion that the particular reasons that influenced the English court in holding, in Doe v. Vardill, that an heir to land in England must be actually born in wedlock, do not apply in this country, and that a person declared to be a legitimate child of another, by the law of the state of the domicil, must be held to have all the rights of a legitimate child wherever he goes.

An examination of these cases will show that the contrary result in England was attempted to be justified by the language of the statute, so-called, of Merton, 20 Hen. III. chap. 9, which, it was claimed, negatively enacted that the English heir must be born in lawful wedlock. Lord Brougham, in 2 Clark & F. 582, and again, in 7 Clark & F. 914, combats this position with arguments that the courts of New York and Massachusetts seemed to think unanswerable. Dayton v. Adkisson, 4 L. R. A. 488, 45 N. J. Eq. 603.

The relation of husband and wife being a status based upon the contract of the parties, and recognized by all Christian nations, the validity of that contract, if not polygamous, nor incestuous, is governed by the law of the place of the contract; this status, once legally established, should be recognized everywhere as fully as if created by the law of the domicil; and therefore any such marriage, valid by the law of the place where it is contracted, is valid everywhere to all intents and effects, civil or criminal, including the settlement

of the wife and children, her right of dower, and their legitimacy and capacity to inherit the father's real estate. Parsons, Ch. J., in Greenwood v. Curtis, 6 Mass. 358, 377-379; Medway v. Needham, 16 Mass. 157; West Cambridge v. Lexington, 1 Pick. 506; Putnam v. Putnam, 8 Pick. 433; Com. v. Lane, 113 Mass. 458; Bullock v. Bullock, 122 Mass. 3; Milliken v. Pratt, 125 Mass. 380, 381.

Under the provisions of the celebrated "Code Napoleon," enacted in 1804, and substantially adopted in many of the American states, humane regulations as to legitimacy will be found established. No. 331 is in the following language:

Children born out of wedlock, other than such as are the fruit of an incestuous or adulterous intercourse, may be legitimated by the subsequent marriage of their father and mother, whenever the latter shall have legally acknowledged them before their marriage, or shall have recognized them in the act itself of celebration. The germ of this enactment dates back to the Roman law.

A natural son born of a free woman, with whom marriage is not prohibited, will become subject to the power of the father as soon as the marriage instruments are drawn as the Constitution directs; which allows the same benefit to those who are born before marriage as to those who are born subsequent thereto. Cooper, Justin. De Legitimatione, lib. 1, title 10, § 13.

A charge of illegitimacy must be supported by direct and irrefutable evidence. It must be conclusively proved. Caujolle v. Ferrie, 23 N. Y. 90.

As to the marriage at common law, and the evidence tending to prove it, see Hebblethwaite v. Hepworth, 98 Ill. 132; Port v. Port, 70 Ill. 486; Caujolle v. Ferrie, 23 N. Y. 107; 2 Greenl. Ev. § 462; 1 Bishop, Mar. & Div. §§ 13, 457, note, 1521; Stoltz v. Doering, 112 Ill. 234.

The law is unwilling to bastardize children, and throws the proof on the party who alleges illegitimacy; and, in the absence of evidence to the contrary, a child, eo nomine, is therefore a legitimate child. Fielder v. Fielder, 2 Hagg. Consist. Rep. 197, 4 Eng. Eccl. Rep. 527; Wilkinson v. Adam, 1 Ves. & B. 422. In Vowles v. Young, 13 Ves. Jr. 145, Lord Chancellor Erskine said, in reference to proof of an actual marriage, that the evidence, especially in the case of obscure families, must be very slight. As sustaining the same rule, may also be cited Starr v. Peck, 1 Hill, 270; and the qualification of that case, as made in Cheney v. Arnold, 15 N. Y. 345, does not weaken its authority on the question of the duty of a court to presume matrimony, when the parties have cohabited, and there are circumstances from which a contract may be inferred. Caujolle v. Ferrie, 23 N. Y. 90.

At common law a bastard has no right of inheritance. In the eyes of the law, bastards are not regarded as children for civil purposes. 1 Bl. Com. p. 458, in discussing the rights of bastards, says: "The rights are very few, being only such as he can acquire, for he can inherit nothing, being the son of nobody, and sometimes called filius nullius, sometimes filius populi. In Blacklaws v. Milne, 82 Ill. 505, it was held that the common law rule which excluded illegitimate children from inheriting was in force in that state.

Words and terms having a precise and well settled meaning in the jurisprudence of a country are to be understood in the same sense when used in its statutes, unless a different meaning is unmistakably intended. The word "illegitimate," when used in this connection, has, by the common law, and the law of this state, a well defined meaning, which is, begotten and born out of wedlock. 1 Rev. Stat. 641, § 1; 2 Kent, Com. 208, 209; 1 Bl. Com. 454, 455.

The so-called "Statute of Merton."

The Statute of Merton was enacted at the priory of Merton, in Surrey, in the year 1236. It is worthy of remark, that the famous Statute of Merton, 20 Hen. III. chap. 9, is, in fact, not a statute, but a mere entry on the minutes of Parliament of a refusal by the English lords to assimilate the laws of England to that of other civilized countries, by affirmatively declaring that the marriage of the parents subsequent to the birth rendered the child legitimate. Dayton v. Adkisson, 4 L. R. A. 488, 45 N. J. Eq. 603.

Before and during the reign of Henry III., if it was alleged that the person claiming as heir was illegitimate, a writ was issued to the archbishop, or bishop, commanding that inquiry and return upon this issue be made to the king or his justices. 1 Reeves, Hist. chap. 3, 168. By the canons of the church, the rule of the Roman law, the subsequent intermarriage of parents legitimated antenuptial children, and the ecclesiastics were inclined to return according to the canons of their church, and contrary to the common law.

At the Parliament of Merton the ecclesiastics endeavored to enact the rule of. their church, but "all the earls and barons, with one voice, answered that they would not change the laws of England which had hitherto been used and approved." 1 Bl. Com. 19, 456; 2 Kent, Com. 209. No change whatever was made at Merton; and, thereafter, the ecclesiastics were required to return the facts, whether the claimant was begotten and born out of wedlock, and judgment was rendered by the courts according to the common law. 1 Reeves, Hist. chap. 3, 169.

Bracton, an ecclesiastic, as well as lawyer, who wrote, it is supposed, in the time of Henry III., in discussing the effect of the legitimation of antenuptial children by the subsequent intermarriage of their parents, said: "It follows to consider how the illegitimate are legitimated, and it is to be known, that if anyone has natural children by any woman, and afterwards contracts marriage with her, the children already born are legitimated by the subsequent marriage, and are reckoned fit for all lawful acts, nevertheless only for those which regard the sacred ministry, but they are not legitimate for those which regard the realm, nor are they adjudged to be heirs who can succeed to their relatives, on account of a custom of the realm, which is of a contrary import." Chap. 29, f. 63, b. or vol. 1, p. 503, of the Lords Commissioners' edition.

It may be safely asserted that the decisions of the English courts rest on the common law. Fenton v. Livingstone, 5 Jur. N. 3. pt. 1, p. 1183, holds that the Statute of Merton is only declaratory to the common law.

But it is not very material whether they rest on the common law or the early statutes, because the English statutes enacted before the settlement of this country are a part of its common law. Bogardus v. Trinity Church, 4 Paige, 198; 1 Kent, Com. 473.

The principles supposed to be incorporated in the so-called Statute of Merton are fully recognized by special legislation in the following states are summarized by Snyder in his Geography of Marriage, as follows:

In Arizona, the children of a man and woman living together as man and wife, or of persons living together, who subsequently marry, are legitimate.

In Florida, Iowa, Minnesota, Montana, Nevada, Oregon, Pennsylvania and Washington, children born out of wedlock become legitimate by the subsequent marriage of their parents.