several shillings a-year than deprive the poor man of his rights, and God of his honour. Without meaning any invidious comparison with the clergy of the towns, whose exertions, often under circumstances of great discouragement, have been most exemplary, but which, being in oculis civium, plead for themselves, we may say that no doubt the faithful discharge of their duties by the country clergy, after the manner of which these sermons give proof, had laid up a treasure of good feeling towards the Establishment in country parishes which, though long dormant, awoke at last; and now that it has manifested itself, will check, we trust, an administration like the present from further aggression, by an argument to which they seem alive, that they are biting a file which may break their teeth; whilst on the other hand, it will, we hope, encourage some future administration more friendly to the Church, to legislate for the extension of her usefulness, with the confidence that in so doing they will have the people on their side.

ART. III.—A Treatise on the Law of Adulterine Bastardy, with a Report of the Banbury Case, and of all other cases bearing upon the subject. By Sir Harris Nicolas, K.C.M.G., Barrister at Law. London. 8vo. 1836.

SIR

The

IR Harris Nicolas is well known for his historical and antiquarian labours; these he has pursued with a genuine and unwearied zeal, and with a success as ample, perhaps, as the field of inquiry he has chosen could be expected to afford. Scrope and Grosvenor Roll, which we had occasion to notice in a late number of this journal-the excellent publications on the Siege of Caerlaverock Castle, and the Campaign of Agincourt-with a host of other volumes, too numerous even to recite, attest his indefatigable labour. We meet him here on a path more strictly professional, but a path which still runs on the verge of his more favourite study, lying, as it frequently does, within that debatable ground which hardly separates the lawyer from the historian. his present publication he has given a most complete account of one particular branch of our law; and whether or not all the opinions he puts forth may be acquiesced in, it will be readily acknowledged that he has collected copiously, and thoroughly examined, all the cases and authorities by which our judgment must ultimately be guided on the legal questions here placed before us. Some facts, also, relating to the great case of the Banbury Peerage, though not, perhaps, of a very important character, have been for the first time accurately stated; our author

In

having brought with him, to this portion of his task, the taste and habits of the historical antiquary.

The law which is to decide on the legitimacy of children born in wedlock-which is to fix upon the husband the charges and duties of paternity, and to bestow upon the offspring its municipal privileges-is one of that important class which have a direct and palpable influence on the manners, customs, and morals of a nation. It is one in which all society must feel an interest; it ought to be framed with especial prudence; and is the very last on which any doubt or misapprehension ought to be allowed to remain. In our own country this law matrimonial derives, if possible, an additional importance from the collateral law of primogeniture. Where the possession is contested of so great a property, of so high a rank, of so extensive an influence as fall frequently to the eldest surviving son of our noble families, it becomes a matter of momentous consequence that the rule by which all this accretion of wealth and power is to be determined should have been ascertained and fixed with precision and stability.

This subject, therefore, falls completely within that rule we have prescribed to ourselves in treating of legal topics; and the condition of the law upon this matter of legitimacy is such as to justify us in calling to it the general attention. The case of the Banbury Peerage, decided by the House of Lords in 1813, is supposed to have made, or to have farthered, a great alteration in the principles of our jurisprudence upon this subject. Previous to that case it was generally understood, that in order to bastardize the issue of a married woman it was necessary to prove the absolute impossibility of the husband's having been the father of the child; which impossibility could, it is evident, be established only by proof of certain physical circumstances, a special infirmity of the husband, or absence from his wife during the whole time in which she might have become pregnant.* In the Banbury Peerage case the rule was so far departed from, that evidence of the conduct of parties, as concealment of the children from the husband, coupled with the fact of the husband's advanced age, was allowed to be sufficient ground for pronouncing a sentence of illegitimacy. Thus a high degree of improbability was substituted for that impossibility which the law had previously required.

Sir Harris Nicolas is very strongly opposed to the decision in this case, and he has supported his opinion with great force and

* Divorce, impotence, and non-access were currently stated to be the three grounds on which alone the illegitimacy of a child born after marriage could be established; but as the presumption against matrimonial intercourse arising from divorce is of a quite distinct and separate nature, and has never been called into dispute, we shall make no further allusion to it in the course of these remarks.

amplitude.

amplitude. His argument is stated in a clear and powerful style, which proceeds at once, and keeps tenaciously to its subject. Perhaps he has detracted a little from the force of his legal objection by extending his opposition, in the spirit of advocacy, over every part of the case. His object is to dispute the propriety of admitting the concealment of the children as evidence of their illegitimacy; but he does not stop here ;-he insists that there is not, in this case, even sufficient evidence of concealment, and attempts to support the credit of those witnesses who were produced by the first claimant of the peerage. This, we think, is wasted labour. Viewed as an historical fact, we hold it beyond a reasonable doubt that the children of the countess were not those of the earl. Whether they ought to have been pronounced illegitimate by the law of the land is another question. Here our author advances, at least, on very tenable ground, nor has he lost an inch of that ground by any want of vigilance or assiduity.

Assisted by the list of well-arranged and well-investigated authorities with which we are here supplied, we shall give to our readers a rapid view of the history of our law of adulterine bastardy up to the period when this celebrated case was decided, and then offer a few remarks on the decision it met with.

The law of legitimacy was made, it will be remembered, in the earliest times of English jurisprudence, the field of battle whereon the spiritual and temporal courts contended for mastery. The celebrated expression uttered by the lords conservative of those days, Nolumus leges Angliæ mutare,' was provoked by the attempt of ecclesiastics to give to the rite of marriage, in accordance with the civil law, a retrospective operation, so as to legitimate children born prior to the ceremony. The ecclesiastical rule was, in this instance, more charitable to human infirmities, the common law more careful of preserving the honour of families and the dignity of marriage. We apprehend, however, that the principles of jurisprudence, as applied to this individual question, had comparatively little weight with the parliament. They witnessed the encroachment of a clergy who aspired to reign over them in temporal as well as spiritual affairs, and this encroachment they determined to resist.

It is, however, to another branch of this subject that our attention is at present directed-the legitimacy of children born within wedlock. An ecclesiastical court naturally paid a peculiar regard to the moral guilt or innocence of parties, and while, as we have seen, it was willing to attribute to the sacrament of marriage, and the penitential spirit that probably had led to it, a corrective and healing influence, it was also, on the other hand, desirous of punishing, by a stigma on the offspring, the crime of adultery in

the

the married woman. A secular court, on the contrary, as naturally adopted the maxim that the mere guilt of the mother should not prejudice the civil rights of the innocent, and repudiated the idea that a man should lose his inheritance by reason of a woman's frailty. The priest strove to detect, the judge to conceal, the criminality of the mother. Each court was naturally led into a different spirit of legislation, and this difference was aggravated by the mutual jealousy of two classes of men competing, as it were, for the reins of jurisprudence.

Meanwhile the common law had never advanced the extreme position that marriage in all cases, and under whatever circumstances, should legitimate; but it clung to the presumption that the husband was the father of his wife's child, and until this was proved to be impossible it paid no heed to the incontinence of the woman, however flagrant. There were then two courts differing from each other, not so much in any general principle, as in the degree of evidence they required in order to bastardize the child-who might be pronounced legitimate by the one, and illegitimate by the other. This circumstance of two different sentences being openly passed on the same individual gave rise to a singular anomaly in the English law. A person might be confessedly born in adultery-confessedly not the child of the husband-and yet be legitimate. This person the law distinguished by a peculiar title, and called him mulier. The spiritual court having an admitted jurisdiction in some cases of legitimacy, the court of common law could not entirely overlook its decision, even where it was not final. It was compelled, therefore, to see and acknowledge a truth on which it was resolved not to act. It looked the bastard full in the face, with an undisguised consciousness of the stain upon his birth, but giving him the name of mulier passed him on into the ranks of legitimacy.

Bracton is the only one of our early text writers whom it is necessary to quote upon this subject; for Glanville, who preceded him, is silent on this topic, and Fleta and Britton who followed, give only an abridgment or translation of his words. Here are the grounds on which, in the opinion of Bracton, the presumption of the legitimacy of children born in marriage could alone be disputed: Et presumitur quis esse filius hoc ipso quod nascitur ex uxore quia nuptiæ probant filium esse, et semper stabitur huic presumptioni, donec probetur contrarium; ut ecce, maritus probatur non concubuisse aliquamdiu cum uxore, infirmitate, vel aliá causâ impeditus-vel erat in eâ invalitudine 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.'-lib. i. c. 9, fo. 6.

He insists, it will be observed, on evidence derived only from physical circumstances; but it must be allowed that neither in this passage, nor in any other that we have found, does he positively reject all moral evidence-evidence, the force of which results from our knowledge of the motives of men.

And the laxity of such expressions as infirmitate, vel aliá causâ impeditus, proves that the distinction of more modern times, between absolute impossibility and a high degree of improbability was not present to his mind.*

Bracton, and Britton after him, speak also of legitimation by adoption, or the open acknowledgment of the child. But this doctrine of adoption is introduced only as an additional safeguard to protect the claims of children born in wedlock, and to keep strife and contention out of families. Where a presumption existed in favour of legitimacy, and the husband had treated the child as his own, he was by this debarred from ever after mooting the question of its birth. Assurance was to be made doubly sure. The greatest peculiarity in this old doctrine of adoption is, that the protection it afforded was extended to supposititious children; and if there was a fair presumption that even these were born in the family, and the husband had reared them as his own, he could not afterwards repudiate them. He was considered, we suppose, as having entered into a tacit obligation, both with them and the community, which prevented him from afterwards destroying the hopes and expectations of the one, or the peace and quiet of the other, by agitating the obscure and difficult question of their legitimacy. The words are these:

'Children may also be sometimes rendered legitimate, as by adoption and by consent and will of the parents; as if the wife of any one shall conceive by another than her husband, if the husband shall receive the child in his house, and acknowledge him and maintain him as his son, he shall be his heir and legitimate; or if he shall not expressly acknowledge him, so however that he do not put him away, or if the husband shall be altogether ignorant, or shall know or doubt, such issue shall be judged legitimate and heir, because born of the wife; so however that it may be presumed that he might have begotten him. And the same may be said of a supposititious birth; and so wherever the common

* Bracton has been suspected of a leaning towards the canon law. Perhaps the following passage will be thought to savour a little of the ecclesiastic:- Liberorum autem secundùm quod predictum est quidam sunt naturales et legitimi qui ex justis nuptiis et legitimà uxore procreantur. Item quidam naturales tantùm et non legitimi, sicut sunt illi qui procreantur et nati sunt de legitimâ concubinâ cum quâ tempore procreationis possit esse matrimonium, sicut de soluto et solutâ. Quidam verò nec legitimi nec naturales qui nati sunt ex prohibito coitû, ex talibus, videlicet, inter quos non posset esse matrimonium tempore procreationis, sicut sunt spurii, qui ad nihilum apti sunt.'-cap. 30, fo. 64. He will not even allow these unfortunates so reputable a name as natural children.

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