person or persons who shall make such application as aforesaid, if such application shall not appear to the said court well founded; and such costs shall be payable to any parent or other natural or testamentary guardian of any such child who shall oppose such application.(t)

Infant not to be sent beyond the Seas.]-In every case it shall be a part of the terms and conditions upon which such care and custody shall be assigned, that the infant shall not, during the period of such care and custody, be sent beyond the seas or out of the jurisdiction of the said court of chancery.(u)

No fee to be taken by Officer of Court.—Counsel may be assigned.]— No fee, reward, emolument, or gratuity whatsoever shall be demanded taken, or received by any officer or minister of the said court of chancery for any matter or thing done in the said court in pursuance of this act; and that upon the making or opposing of any such application it shall be lawful for any judge of the said court to assign counsel learned in the law and to appoint a clerk or practitioner of the said court to advise and carry on or to oppose such application, who are hereby required to do their duties therein without fee or reward.(v)

This act shall not affect or in any manner interfere with the execution of the sentence which may have been passed upon such infant upon his or her conviction.(x)

SECT. III.-OF THE LEGITIMACY OF CHILDREN BORN DURING A SEPARATION.

Marriage Proof of Paternity.]—It would exceed the limits assigned to this work to enter into a full examination of all the cases relative to the legitimacy of children. (a) All that will be attempted therefore will be a statement of the general principles on the subject. It is a fundamental principle of the common law that marriage is the proof of paternity. Pater est quem nuptiae demonstrant. (b) By our law a bastard is every one born out of lawful matrimony.(c) Void and voidable marriages have been already the subject of consideration.(d) The children of a marriage which is absolutely void are illegitimate, whether sentence of nullity has been obtained or not. As if a man, having a wife, takes another, and has issue by her, such issue is illegitimate both by the civil and common law, for the second marriage was absolutely void. (e) So if a man marry, and be afterwards divorced a vinculo, the issue between them, born before or after the divorce will be bastards.(f) But the children of marriages which

(t) 3 & 4 Vict. c. 90, s. 1.

(u) Ib. s. 2.

(v) Ib. s. 3.

(x) Ib. s. 4.

(a) The cases on this subject are collected in Sir Harris Nicolas's Treatise on Adulterine Bastardy, 8vo. 1836; Mr. Le Marchant's Report of the Gardner Peerage Case, 8vo, 1828. See also Beck's Medical Jurisprudence, 193-207, 3d ed.; Edinburgh Review, vol. xlix. p. 190-217: Quarterly Review,

vol. lix. p. 48-62; Law Magazine, vol. iv. p. 25-49.

(b) Glanville, lib. vii. c. 12, 13; Bracton, lib. ii. c. 32, p. 70 b.; Britton, c. 66, pp. 166, 167.

(c) Co. Litt. 244 a.

(d) Ante, p. 479-485.

(e) Vin. Abr. Bastard (F); 1 Salk. 120; Holt's Rep. 457; 12 Mod. 432; ante, p. 223. (ƒ) 1 Rol. 359, 1. 35. 360 (G); Coin. Dig. Bastard (A.)

are merely voidable, will be legitimate if sentence of divorce be not obtained during the lifetime of both the parents.(g)

Impotence.]-With regard to the impotence of the father, this conclusion may be drawn from all the cases, that where there is a natural impossibility that the husband could be the father of the child, whether arising from his being under the age of puberty, or from his labouring under disability *occasioned by natural infir[ *707 ] mity, these are grounds upon which the child's illegitimacy may be founded.(h) Evidence that a husband was divorced from his wife for impotence does not prove the bastardy of a child born during the second marriage,(i) for reasons already mentioned.(k) Evidence of inability from a bad habit of body was admitted; but the evidence amounting to an improbability only, and access being presumed from the visits of the husband, the evidence was deemed to be insufficient.(/)

Obedience to a Sentence of Divorce is presumed.]-When a woman is separated from her husband by a divorce a mensa et thoro and lives with another man in adultery, by whom she has children, such children are bastards, for obedience to the sentence of divorce will be presumed until the contrary is shown. In such a case it will be incumbent upon those asserting the child's legitimacy to prove the husband's access. But if in the case of a voluntary separation between husband and wife, a child is born, the presumption is in favour of its legitimacy, until non-access of the husband shall be proved.(m)

Antenuptial Generation.]-The marriage of the parties is the criterion adopted by our law in cases of antenuptial generation, for ascertaining the actual parentage of the child. For this purpose it will not examine when the gestation began, but looks only to the recognition of it by the husband in the subsequent act of marriage, which is considered as acknowledging by a most solemn act that the child is his.(n) Issue born of parents who have married so recently before the birth of the child that it could not have been begotten in wedlock, is legitimate even if the child be born within a month or a day after the marriage between the parties.(o)

Illegitimacy of Children born in Wedlock may be established by Evidence of husband's Non-access.]-It already *appears [ *708 ] that the illegitimacy of the child of a married woman may be founded on circumstances which show a natural impossibility that the husband could be the father of the child of which the wife is delivered. The continued absence of the husband beyond the seas above two years before the birth of a child born by his wife, who remained at home, affords an irresistible conclusion that such child was a bastard.(p) So also if the husband be proved to have been beyond seas until within a fortnight of his wife's delivery, the child is a bastard;

(g) Vin. Abr. Bastard (A 2), pl. 2, 3, 4; Holt's Rep. 457; 2 Phil. R. 16.

(h) Rex v. Luffe, 8 East, 193; 1 Roll. Abr. 358.

(i) Com. Dig. Bastard (B); 5 Co. 98 b; 2 Leo. 169. 173; Dyer, 179 a.

(k) Ante, pp. 207, 208.

(1) Lomax v. Holmden, Str. 940.

(m) 1 Salk. 123; Sidney v. Sidney, 3 P. Wms. 275; Pendrell v. Pendrell, 2 Str. 925. (n) Rex v. Luffe, 8 East, 207, 208. (0) Co. Litt. 244 a.

(p) Rex v. Maidstone, 12 East, 550; Rex ▼. Albertson, 1 Ld. Raym. 123; 2 Salk. 483.

absence during the entire period of pregnancy being immaterial, where the circumstances of the case demonstrate a natural impossibility that the husband can be the father.(q) So a child, born so long after the death of the husband that it cannot have been begotten by him, must necessarily be illegitimate.(r) No difficulty can arise in deciding such questions as those just mentioned, unless the absence or death of the husband took place at such a recent period as to afford a reasonable presumption that he might have been the father of the child. Hence arises the necessity of considering in many cases the period of gestation.(s) So in cases where the husband is proved by clear evidence to be under a natural impossibility of begetting a child, whether arising from his being under the age of puberty, or from his labouring under disability by natural infirmity or disease, the question of the child's legitimacy is capable of easy solution.(t) But in cases where none of the last mentioned circumstances exist, if the individual whose legitimacy is disputed was born during a lawful marriage, another question may still arise, namely, whether that individual was the true and legitimate child of the married parties. The maxim of the jurists, "pater est quem nuptiæ demonstrant," was adopted by the common law with such extreme strictness that if it had appeared that the husband was within the kingdom, or, in the quaint language of the times, inter quatuor maria, the only proof of illegitimacy that could have been admitted was the proof of his total disability of person, an apparent impossibility of [ *709 ] procreation.(u) But this doctrine has been exploded.(x) As early as the time of Edward the First, the fact of access or non-access appears to have been considered an important subject of inquiry;(y) and Bracton lays down the rule in the following terms: "Presumitur quis esse filius hoc ipso quod nascitur ex uxore, quià nuptiæ probant filium esse, et semper stabitur huic presumptioni, donec probetur contrarium; ut ecce, maritus probatur non concubuisse aliquamdiu cum uxore infirmitate vel aliâ causâ impeditus, vel erat in ca invaletudine ut generare non possit, vel probatur quod fuit absens per decennium, et reversus invenit anniculum, hic qui in domo mariti natus est (licet vicinis scientibus) non erit filius mariti."(z)

The law of this country respects and protects legitimacy, and does not admit any alteration of the status et conditio of any person, except upon clear and satisfactory evidence. Every child born in wedlock, the husband and wife being in England, and not separated by any sentence of divorce, is presumed to be legitimate; but this presumption may be repelled by proof of such facts as satisfy the jury or the court that no sexual intercourse took place between the husband and wife at a time when the husband could by possibility be father of the child; and the jury, before they can find against the legitimacy, must be convinced that no such sexual intercourse took place, by irre

(q) Rex v. Luffe, 8 East, 193.

George v. St. Margaret, 1 Salk. 123; Pen

(r) 1 Roll. Abr. 356, l. 10. 40; Com. Dig. drell v. Pendrell, 2 Str. 924; 3 P. Wms. Bastard (A). 276; Bull. N. P. 113.

(s) See post, p. 726.

(1) See Rex v. Luffe, 8 East, 193.

(u) Co. Litt. 244 a.

(y Case cited by Lord Ellenborough, 8 East, 206.

(x) See Dickens v. Collins, cited in St. 32.

(z) 1 Bracton, ch. 9, p. 6 a; see id. ch.

sistible evidence and not by a mere balance of probabilities. (a) The presumption of law is not lightly to be repelled; it cannot be broken in upon or shaken by a mere balance of probability; the evidence for the purpose of repelling it must be strong, distinct, satisfactory, and conclusive, and such as will lead the mind to the clear conviction that the child in question was not the child of the husband.(6) In the case of husband and wife, living in such habits of inter[ *710 ] course as that the husband may be the father of the child, as the fact that the child is the child of A., is only presumption; it may be rebutted by circumstances, and the conclusion must be drawn from all the circumstances taken together.(c) The presumption in favour of legitimacy is sometimes strong, often weak, sometimes irrefragable. But being a presumption alone and not a rule of law, it is liable to be repeiled by circumstances, inducing a contrary presumption, &c. Physical impossibility would be conclusive.(d) The presumption of the birth of a child in wedlock may be rebutted both by direct and presumptive evidence; first, by direct, as impotence and non-access; secondly, by all those circumstances which may have the effect of raising a presumption that the issue is not the issue of the husband.(e)

It was established by several early cases, that if it can be proved by clear evidence that the husband has not had access during the entire period of gestation, the child is a bastard.(f) In the case of a child born during the time of the voluntary separation of the husband and wife, evidence will be admitted to prove the illegitimacy of such child. For if a jury find the husband had no access, such child will be a bastard; as where the husband and wife by consent lived separately, and a child being born, an issue was directed to try whether the child was a bastard, and it was found a bastard.(g) The child of a married woman may be proved a bastard by other evidence than that of witnesses proving the husband to have been constantly resident away from his wife. Proof that the husband left Norwich, and went to reside in London, that his wife remained behind and lived with another man as his wife for some years, during which time the child in question was born; that this child always went by the adulterer's name, and was reputed illegitimate in the family; was held sufficient evidence of illegitimacy, though it did not clearly appear where the real husband had been from the time of con

[ *711 ] ception to that of delivery.(h)

Some confusion has arisen upon this subject, from the different meanings attached to the word access; it has sometimes been used not as meaning sexual intercourse, but access affording opportunities of communicating together, opportunities of sexual intercourse, but not actual sexual intercourse. Where there has been personal access

(g) Morris v. Davies, 3 Carr. & P. 215. 427. (b) Morris v. Davis, 5 Clark & Finn. 265-269.

(c) Lord Redesdale, Le Marchant's Gardner Case, 437, cited 5 Clark & Finn. 248.

(d) Lord Ellenborough, Le Marchant's Gardner Case, 456, cited 5 Clark & Finn.

(e) Lord Redesdale, cited 5 Clark & Finn. 248.

(f) Rex v. St. Bride's, 1 Str. 51; Pendrell v. Pendrell, 2 Str. 925; Rex v. Bedall, 2 Str. 1073; Rex v. Maidstone, 12 East, 550. (g) Pendrell v. Pendrell, 2 Str. 925; see 3 P. Wms. 275, 276.

(h) Thompson v. Saul, 4 T. R. 356.

as contradistinguished from sexual intercourse, under such circumstances that there might be sexual intercourse, the law raises the presumption that there has been actually sexual intercourse, which presumption must stand, unless it is satisfactorily repelled by evidence that there was not such sexual intercourse.(i) In the case of personal access affording an opportunity of sexual intercourse, it may be proved by persons present, that no such intercourse took place; in the absence of such direct evidence, the conduct of the parties prior to the interview in which personal access was had, and their conduct afterwards, may be gone into for the purpose of drawing a conclusion as to what occurred during such interview.(k) Access is such access as affords an opportunity of sexual intercourse; and where the fact of such access between a husband and wife, within a period capable of raising the legal inference as to the legitimacy of an afterborn child is not disputed, probabilities can have no weight, and such a case will not be sent to a jury. Where there was nothing against the evidence of access, except evidence of the adulterous intercourse of the wife with another man, the court of chancery will not direct an issue, but will declare the children to be legitimate, upon the ground that public policy requires a strict adherence to the rule of law.(1) Access is not to be presumed between a man and his wife because the parties were within such a distance that access was possible. Upon a claim to the benefit of a settlement, the master reported against the legitimacy of the children, and exceptions were taken to his report. The mother lived with *a man, and assumed [ *712 ] his name, and the children were born during such cohabitation, and took the name of the man. But during all this time the husband was alive, and lived either in London, where the wife resided, or in the neighbourhood. It was insisted that there was not that impossibility of legitimacy which, within the principles of the case of Rex v. Luffe,(m) would bastardize the issue. But Leach, V. C., said, "the manner in which this case is argued would in effect revive the old principle of extra quatuor maria. Now access, like any other important fact, must be satisfactorily established; but access is not to be presumed because the parties were within such distance that access was possible. He could not encourage an issue, but would not refuse it to the children if they desired it."(n) In questions of this sort, the jury ought to be satisfied by cogent proof that the husband did not avail himself of the opportunity of intercourse; but if the jury are once satisfied that the husband had sexual intercourse with his wife, the presumption of legitimacy is not to be rebutted by its being shown that other men also had sexual intercourse with the woman. The law will not, under such circumstances, allow a balance of the evidence as to who is most likely to have been the father.(0)

But if the husband and wife are living separate, and the wife

(i) Head v. Head, 1 Turn. & R. 141.

(k) Sce 1 Turn. & R. 141.

(1) Bury v. Phillpot, 2 M. & Keen, 349. See 1 Turn. & R. 142, and Gibbs v. Hooper, 2 M. & Keen, 353, as to granting a new

SEPTEMBER, 1841.-2 M

trial in a question of legitimacy.

(m) 8 East, 193.

(u) Clarke v. Maynard, 6 Madd. 364. (v) Cope v. Cope, 1 Mood. & Rob. 276.