Hermann on Estoppel and Judgments. Local self-government cannot be destroyed; such privilege is inseparable to republican government. Cooley Const. Lim. *175; People v. Chicago, 51 Ill. 17; People v. Hurlbut, 24 Mich. 44. As Mr. Cooley says: "The maxims of Magna Charta and the common law are the interpreters of constitutional grants of power." *175. Legislative authority is bounded by the territorial limits of the State. Cooley *128. "Comity, however, gives extra territorial effect to many laws; without this, commercial and business intercourse between the people of different states and countries could scarcely exist." Cooley *128. Legislative powers cannot be delegated. Respecting certain matters which partake largely of a local nature, and which therefore have sometimes been left in part to the control of the particular localities. See LoCAL OPTION; Cooley #117, *204; CONSTITUTIONAL LAW, 3 Am. & Eng. Ency. of Law 698. The British parliament, indeed, invested with the sovereignty, may pass arbitrary and unconstitutional enactments; but in the United States the written constitutions confine the legislatures. See CONSTITUTIONAL LAW, 3 Am. & Eng. Encyc. of Law 670, 738. "The legislative power extends only to the making of laws, and in its exercise it is limited and restrained by the paramount authority of the federal and state constitutions. It cannot directly reach the property or vested rights of the citizen by providing for their for feiture or transfer to another, without trial and judgment in the courts; for to do so would be the exercise of a power which belongs to another branch of the government, and is forbidden to the legislative." Newland v. Marsh, 19 Ill. 383. "The great principle is, that a man's property is his own, and that he shall enjoy it according to his pleasure (injuring no other man) until it is proved in a due process of law that it is not his, but belongs to another." Ervine's Appeal, 16 Pa. St. 256. "That is not legislation which adjudicates in a particular case, prescribes the rule contrary to the general law, and orders it to be enforced. Such power assimilates itself more closely to despotic rule than any other attribute of government." 16 Pa. St. 256. Ervine's Appeal, "Many acts of assembly have been passed, it is true, authorizing guardians, trustees and executors to convey lands. This power has been sustained by this court where the persons in interest were minors and lunatics, and could not act for themselves, and where the guardians, etc., requested the passage of the laws. Among the first of the private acts in such cases was that in Estep v. Hutchman, 14 Ser. & R. (Pa.) 435. That was sustained on the ground that the cestui que trusts were minors. The court say that of necessity, in such cases, the power must reside in the government somewhere; and where it has not been granted to the courts, it must reside in the legislature. This proceeds on the ground that the conveyance itself was lawful, for the maintenance of minors or lunatics, as the necessities of the minor or lunatic might absolutely require it. In such cases a court of chancery would order the sale. It was considered that the ordering of the sale was merely modal, as it is termed in Norris v. Clymer (2) Pa. St. 277); that is, doing in one way that which might be done in another. And that principle is quite suitable, when the cestui que trust is legally disabled from acting and the parens patriæ acts for his benefit." COULTER, J., in Ervine's Appeal, 16 Pa. St. 256; in which case, however, it was held that the legislature did not possess the constitutional power, in such a case, to direct a sale against the consent of parties in interest who were of full age and under no disability, within the time during which sale was prohibited by the testator from whom were derived the various interests concerned. That case was decided under a special act, and on such ground was distinguished in a later case arising under a general statute authorizing decree of sale of lands, in part or in whole, for debts or necessary repairs requiring a sale of a part-although the realty might be subject to an executory devise in favor of parties sui juris. See CONSTITUTIONAL LAW, 3 Am. & Eng. Encyc. of Law 714; DUE PROCESS OF LAW, 6 Am. & Eng. Encyc. of Law 43. "Full Legislative Powers" vested by constitution in board of education, gave such board all the powers which the general assembly might otherwise have exercised in reference to the public educational institutions of the state; including the whole field of legislation on the subject, officers and agents, LEGITIMACY-(See BASTARDY; MARRIAGE)-1. Definition.Legitimacy is the state of being born in wedlock, that is, in a lawful manner.1 Lawfulness; in particular, the civil condition of a child born in lawful wedlock.2 Literally, accordance with law. Hence lawfulness of birth opposed to bastardy.3 2. How Established or Proven.-Parentage may at law be established, and can only, in general, be so established as regards the father by a combination of facts indicating the connection of the parent and the child, between an individual and the family to which he claims to belong. Among the principal of these facts are that his mother was married to the person whom he claims as his father at the time he was born or begotten; that he has always borne his name and been treated and maintained and educated as his child; that he has been uniformly received as such in society, and that he has been acknowledged as such by the family. These things being shown, his legitimacy is presumed.4 Every child in a civilized community is presumed to be legiti mate where the mother was cohabited with and recognized by the father as his wife, and in the absence of any proof to the contrary, no other evidence of a legal marriage will be necessary to legitimize the offspring. When there has been a marriage, and husband and wife have cohabited together, and no impotency is shown, the issue is conclusively presumed to be legitimate, though the wife is shown at the same time to have been guilty of infidelity, mode of their election or appointment, Legitimacy is a legal capacity whereby property may be acquired by descent, etc., or, indeed, it may itself be regarded as a valuable kind of property, or a privilege of which the general assembly cannot constitutionally deprive anyone, since the legislature cannot so judicially act upon the case as to deprive him of any legal capacity, privilege or property with which he has been legally invested. Campbell's Case, 2 Bland Ch. (Md.) 36. 4. J. D. Lawson in 15 Cen. Law Jour., p. 262, citing Weatherford v. Weatherford, 20 Ala. 548; Illinois Loan Co. v. Bonner, 75 Ill. 315; Barnum v. Barnum, 42 Eng. 253. Where a man speaks of a child as his daughter the presumption is that she is legitimate. Gaines v. New Orleans, 6 Wall. (U. S.) 690; Gaines v. Herman, 24 How. (U. S. 553. If the father is proved to have brought up the party as his legitimate son, this amounts to a daily assertion_that_the son is legitimate. TAYLOR on Ev., Text Book Series, § 649; Hargrave v. Hargrave, 2 C. & Kir. 701. 5. Strode v. Magowan, 2 Bush (Ky.) 627. 6. Taylor's Ev., Text Book Series, § 106; Hemmenway v. Towner, 1 Allen (Mass.) 209. This legal presumption that he is the father whom the nuptials show to be so, is the foundation of every man's birth and status. It is a plain and sen sible maxim, which is the corner stone, the very foundation, on which rests the whole fabric of human society; and if you allow it once to be shaken, there is no saying what consequences may fol low. Routledge v. Carruthers, cited in Nicholas on Adult. Bast. 161. By the ancient common law, if the husband was within the four seas at any time during the pregnancy of the wife the presumption was conclusive that the issue was legitimate. Murray, 1 Salk. 122; R. v. Allerton, I Ld. Raym. 122. R. v. either before or after marriage. The presumption of legiti macy may be rebutted, however, by showing that the husband was (1) incompetent; (2) entirely absent, so as to have no intercourse or communication of any kind with the mother; (3) entirely absent at the period during which the child must, in the course of nature, have been begotten; (4) only present under circumstances affording clear and satisfactory proof that there was no sexual intercourse.2 Where a child is born in lawful wedlock, the husband not being separated from his wife, by a sentence of divorce, sexual intercourse is presumed to have taken place between the husband and the wife, until the presumption is encountered by such evidence as proves to the satisfaction of those who are to decide the question, that such sexual intercourse did not take place at any time when by such intercourse the husband could, according to the laws of nature, be the father of the child. Banbury Peerage, answer to 7th question, 1 Sim. & Stu. 157 (1811). In the case of King v. Luffe, 8 East 207 (1807), LORD ELLENBOROUGH laid down the rule that the illegitimacy of a child might be shown where legitimacy was impossible in five cases. (1) Where the impossibility arose from the husband being under the age of puberty. (2) Where the impossibility arose from the husband laboring under a disability occasioned by natural infirmity, as in Foxcraft's case (1 Poll. Abr.), an infirm, bedridden man was married in that state twelve weeks before his wife bore a child. The child was adjudged illegitimate. (3) Where the impossibility arose from the length of time elapsed since the death of the husband. (4) Where the impossibility arose from the absence of the husband, as where he was outside the realm at time the child was begotten. See R. v. Allerton, I Ld. Raym. 395.. Where the impossibility was based upon the laws of nature, as where it was attempted to charge a black man as the father of a white child born of a colSee Whisterlos' Case cited in Cross v. Cross, 3 Paige Ch. (N. Y.) 139. See Illinois Loan Co. v. ored woman. Bonner, 7 Ill. 315 75 rule of evidence has varied. Formerly it was considered that all doubt could not be excluded unless the husband were extra quatuor maria. But as it is observed that all doubt may be excluded from other circumstances, although the husband be within the four seas, the modern practice permits the introduction of every species of legal evidence tending to the same conclusion. But still the evidence must be of the character to exclude all doubt; and when the judges in the Banbury case spoke of satisfactory evidence upon this subject, they must have meant such evidence as would be satisfactory, having regard to the special nature of the subject. Head v. Head, 1 Sim. & Stu. 150 (1823). The ancient policy of the law of England remains unchanged. A child born of a married woman is to be presumed to be the child of the husband, unless there is evidence which excludes all doubt that the husband could not be the father. But in modern times the 13 C. of L.-15 1. Cross v. Cross, 3 Paige Ch. (N. Y.) 139; 23 Am. Dec. 778. 2. Hargrove v. Hargrove, 9 Beav. 255. Access.-LORD HALE, in Horpell v. Collins, decided that the issue for the jury was as to the fact of access, or, as I understand him to mean, sexual intercourse. For the access in question is of a peculiar nature, not being access in the ordinary acceptation of the word, but access between a husband and wife viewed with reference to the result, namely, the procreation of children. LORD ELDON, in Banbury Case, 1 Sim. & Stu. 159. By "access" I mean opportunities of having sexual intercourse. Cope v. Cope, Alderson B., 1 En. & Rob. 275. Access is such access as affords an opportunity of sexual intercourse. Benry v. Philpot, 2 Myl. & K. 349. The absence of sexual intercourse, where there has been some society, intercourse or access, has been called nongenerating access. Hargrove v. Hargrove, 9 Beav. 225 (1846.) Access is such access as affords an opportunity of sexual intercourse, and when 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 after born child is 225 The presumption still holds where the parties are living apart by mutual consent, but not if divorced.2 Neither the evidence of the husband nor wife is admissible to prove access or nonaccess.3 Nor are the declarations of the person whose legitimacy is in question admissible.4 LEGITIMATE.-See LEGITIMACY.5 LEGITIMATION.-Changing the civil status of a bastard to the status of a lawful child. It is a fiction of the law whereby one born out of lawful wedlock is considered the offspring of the marriage between parents. not disputed, probabilities can have no weight; and the case ought never be sent to the jury. There is nothing against the evidence of access except evidence of the adulterous intercourse of the wife with H, which does not affect the legal inference; for if it were proved that she slept every night with her paramour from the period of her separation from her husband, I must still declare the children to be legitimate. The interest of the public depends upon a strict adherence to the rule of law. Berry v. Philpot, 2 Myl. & K. 349 (1834). See Morris v. Davies, 5 Cl. & Fin. 243 (1837). Where there is access the presumption of sexual intercourse is very strong, as is illustrated by the case of Plowes v. Bossy, 31 L. J., Ch. 680 (1862). In this case B, who was married in 1829, became a lunatic in 1833, and was confined in a lunatic asylum until his death. His wife, who lived twenty-five miles away, occasionally visited her husband, but the keepers of the asylum were under strict orders not to allow them to remain alone together. He was allowed the freedom of the grounds, and the porter being sometimes absent, it was possible for a person to enter without being seen. In March, 1835, she visited the asylum and remained alone for some time with her husband. A child was born in December, 1835. There were rumors at the time that Mrs. B was living in adultery with one D. But the court held that the child was legitimate. See contra, Clark v. Maynard, 1 Madd. & G. 364 (1832). The onus lies on the person alleging that the child of the married woman is illegitimate to prove it. There is no onus on the party whose legitimacy is in question to show opportunities of access or what the circumstances were under which the access took place. Plowes v. Bossy, 31 L. J., Ch. 680 (1862). 1. Hemmingway v. Towner, 1 Allen (Mass.) 209; Morris v. Davis, 5 Cl. & Fin. 163. 2. Hemmingway v. Towner, 1 Allen (Mass.) 209. 3. Dennison v. Page, 29 Pa. St. 420; Patchett v. Holgate, 15 Jur. 308; Parker v. Way, 15 N. H. 45; People v. Antario, 15 Barb. (N. Y.) 286; Kleinhart v. Ehlers, 38 Pa. St. 439; State v. Herman, 13 Ired. (N. Car.) 502; Hemmingway v. Towner, 1 Allen (Mass.) 209. See Wright v. Hicks, 15 Ga. 160; Clapp v. Clapp, 97 Mass. 531; Stegall v. Stegall, 2 Brock. (U.S.) 256; Pendrell v. Pendrell, 2 Strange 925; Com. v. Sheppherd, 6 Binn. (Pa.) 273; Cope v. Cope, 1 En. & Rob. 275; Stevens v. Moss, 2 Cowp. 594. In R. v. Sourton, 5 A. & E. 180. With a view of proving nonaccess, the father was asked whether at a particular time he did not live one hundred miles from his wife and cohabit with her sister. Held, that the question could not be put. 4. Elvi v. Mader, 1 Rob. 581; 38 Am. Dec. 192. 5. Legitimate used as a verb means to confer a legal status upon; as to legitimate a bastard. As an adjective, it may mean (1) born in lawful wedlock, or within a competent time afterwards; (2) authorized, constitutionally, or lawful, as the legitimate government. See Anderson's Law Dict. 611. A legitimate child is one whose parents were intermarried before it was born. Page v. Dennison, 1 Grant's Cases (Pa.) 381. A legitimate child is he that is born in lawful wedlock or within a competent time afterwards. 1 Black Com. 446. 6. Anderson's Law Dict. 611. 7. Successors of Caballers v. Exr. et al., 24 La. An. 580. Many of the States have statutes legitimizing bastards. The following are in Ohio: Section LEND.-See note I. 4174. R. S. 1880. Bastards shall be capable of inheriting or transmitting inheritance from and to the mother, and from and to those from whom she may inherit, or to whom she may transmit inheritance, in like manner as if born in lawful wedlock. Section 4175. R. S. 1880. When a man has by a woman one or more children and afterwards intermarries with her, such issue, if acknowledged by him as his child or children, shall be deemed legitimate; and the issue of parents whose marriage is deemed null in law, shall nevertheless be legitimate. W was married in Canada in 1822; the issue of that marriage was the plaintiff. In 1833, his wife still living, he came to Ohio and married another woman, she being ignorant of his former marriage. They cohabited together as man and wife and had issue, four children. W died in 1848 seized of the land in dispute. These four children conveyed their interest to the defendant. Held, that the expression "deemed null in law" is not confined to marriages which are voidable and require a judicial sentence to establish their nullity, but that the innocent children of the marriage de facto, although the marriage must be deemed in law a nullity, come within the letter and spirit of the law. Wright v. Lore, 12 Ohio St. 619. A recent traveller of great intelligence and of high moral tone considers the legitimation of bastards by the subsequent marriage of the parents, as of a very immoral tendency and an encouragement to the increase of spurious offspring. Turnbull's Austria II, 205; 2 Kent's Com. note (12th ed.) 211. The legitimation has the effect to put the legitimated in the status of one born in lawful wedlock. We have given to these statutes their plain and obvious meaning, regardless of any opinion we have as to their policy. It is not to be supposed that the legislature intended to limit the effect of such legitimation to lineals, and that, as to collaterals, the taint of bastardy should still adhere. In a well considered case, where it was insisted that the effect of the legitimation was only to enable the legitimated to take as heir and not as distributee, the court held that it was not necessary that the act should declare that the person legitimated should take as next of kin, as well as heirs; for the result would fol low, by implication of law, from his being constituted a legal heir. When placed by law in the state and condition of heir, and invested with the character and capacity of heir, all rights, privileges and legal consequences incident to that relation and character are tacitly confirmed, and consequently the right of succession to the personal estate of intestate. One legitimized becomes as one born in lawful wedlock. The natural sons of G A B in all respects are, so far as inheritable blood, to be treated as if born to him lawfully. Statutes authorizing legitimation are not uncommon. The very able and industrious solicitor opposing the claim of those legitimized sons has not been able to furnish us with any authority limiting the effect of legitimation, where such limitation was not combined in the act itself. Our own researches have been likewise fruitless. McKamie v. Baskerville, 7 S. W. Rep. 194 (Tenn. 1888). In the absence of constitutional inhibition, the legislative power is entirely competent by general laws to remove the tarnish of illegitimacy, and to confer upon such unfortunate issues such inheritable blood as should be deemed expedient. McKamie v. Baskerville, 7 S. W. Rep. 194 (Tenn. 1888). 1. The indictment is founded on the act of February 2nd, 1856, which makes it a misdemeanor to "sell, or give, or lend, to any male minor" a pistol. A man lends a pistol, within the meaning of the act, when having in his drawer, and under his control, the pistol of an absent owner, on application of a male minor to lend him the pistol, he permits him to take it from the drawer and carry it away, directing him that it should be returned within a certain short period, at the expiration of which time the owner was expected to return and call for it. See Webster's Dictionary and the meaning of "lend" there given. Coleman v. State, 32 Ala. 582. |