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1786, ch. 46, and it is produced to show that grave interpretation, let us apply the same rulo our Legislature has in more than one instance, and mode of reasoning by analogy to the acts from negligence, authorized by the letter of of 1820 and 1825; and it will be clearly demon. the law a construction which the Maryland strated that the Act of 1825 did not intend to courts would not give; always restraining the embrace any bastards except such who could letter by judicial power to prevent mischief. be legitimated by marriage.
The 2d section of the Act of 1786, ch. 45, It appears to us clear that, to understand provides how land shall descend, "first to the fully and without any misapprehension the Act child or children and their descendants, if any." of 1825 that the Act and the law of 1820 must Now, is not "the child or children” here as com *be taken in pari materia. For this (*189 prehensive as “illegitimate child or children” part of the argument, and to enable us to apply in the Act of 1825 ? And would not the it with greater force, let us again refer to the words "child or children,” in the act to direct law of 1825. It is entitled, "An Act relating 188*] descents, *if a court would be governed to illegitimate children," and is as follows: by the mere letter, embrace any child or chil. "Be it enacted by the General Assembly of dren, in or out of wedlock, of incest, adultery, Maryland, that from and after the passage of or of amalgamation? And yet His Honor the this act, the illegitimate child or children of Chief Justice knows that our constant exposi- any female, and the issue of any such illegiti. tion of the act to direct descents is, that it mate child or children be, and they are hereby shall be confined to a child or children born in declared to be able and capable in law to take wedlock, or legitimated by marriage, according and inherit both real and personal estate from to the degrees of kindred and affinity settled by their mother or from each other, or from the the Marriage Act of 1777.
descendants of each other, as the case may be, Again, by the 7th section of the Act of 1786, in like manner as if born in lawful wedlock: to direct descents, it is enacted, "that if any Provided, that nothing herein contained shall man shall have one or more children by any be construed to alter or change the law respectwoman whom he shall afterwards marry, such ing illegitimate persons, whose parents marry child or children, if acknowledged by the man, after the birth of such persons, and who are by shall, in virtue of such marriage and acknowl. them acknowledged, agreeably to the seventh edgment, be hereby legitimated, and capable section of the Act of Assembly, passed at Dein law to inherit and transmit inheritance, ascember session, eighteen hundred and twenty, if born in lawful wedlock.” Now, by the let. chapter one hundred and ninety-one.” ter of this section, the Marriage Act is changed; Notwithstanding it is evident that this act and the man is at large to marry his daughter was passed in a careless hour, without proper or his mother, his neighbor's wife, or his negro guards and limitations in the purview; the proslave. And yet His Honor the Chief Justice viso, although inconsistent and repugnant, will knows that our uniform exposition has been afford us a key to unlock and throw open to that the letter shall be confined to a woman our minds the true meaning and intention of according to the degrees fixed by the Marriage the Legislature. Act of 1777.
To do full justice to the Legislature, the Act The Act of 1820, (ch. 191, which is in truth, of 1825 ought to be received as an appendix to by the reference in the proviso of the Act of the Act of 1820. The proviso proves to us be1825, made part of the latter act), in its 7th yond all doubt several important matters, to section, is precisely the same as the 7th section enable us to discern the real intention of the of the Act of 1786, and would by the letter of Legislature. When that is once clearly disthat section change the Marriage Act of 1777, cerned, the judgment of this court, must, we and allow a man in the wide field of his lust hold, conform to it, as the only rule of conto marry his daughter or his mother, his neigh-struction. bor's wife, or his negro slave. And yet His In the first place, the proviso informs us, by Honor the Chief Justice knows that our uni. the very special and particular reference to the form exposition has been that the letter shall year, chapter, and section of the Act of 1820, be restrained according to the degrees fixed by that the committee, or persons having the mat. the Marriage Act of 1777.
ter in charge, had carefully and deliberately Can anyone doubt that the Legislature, when examined the Act of 1820, and reported their it passed the law of 1820, ch. 191, and copied proceedings to the legislative body before the in its 7th section the entire 7th section of the passage of the law. The question here is, what Act of 1786, ch. 45, had deliberately examined evil or grievance did the Legislature discover and considered the 7th section of the Act of as still existing under the Act of 1820 (ch. 191, 1786, ch. 45, and intended nothing more than a sec. 7), which ought to be provided for and rere-enactment of the same matter, which it was dressed? The evil and grievance discerned was thought fit and proper to be a standing law of evidently this, and nothing more: That by the the State? But it may be asked, what proof Act of 1820, ch. 191, sec. 7, no illegitimate child have we of this? We answer that the Legis. or children could be legitimated 80 as to be lature of 1820 inserted in the 7th section of the capable in law to inherit or transmit inheritact of that year, verbatim et literatim, the ance, without marriage and acknowledgment whole 7th section of the Act of 1786. Before of the father. If any woman, being seduced by it was thus copied, it must have been read, the artful addresses of a man, shall have an ilexamined, and considered, and the contents ful- legitimate child or children, and die intestate, ly known and understood, and must therefore leaving real and personal estate, it is but just have been fully in the legislative mind. Are and honest that such estate shall descend to her we not all clearly satisfied of this?
own natural children, in preference to a descent Now, if the court shall conclude that the Act to her collateral relations. When reading, de. of 1825 ought to be received by judicature for Lliberating on, and examining the Act of 1820
(ch. 191, sec. 7), did the Legislature find any, the universal sentiment of the State in referother bastards than such as could be legiti-ence to their purity, could have intended at mated by marriage? Is there the least shadow once to abandon them all, and provide for all of reason to suppose that any others entered the illegitimate and illicit issue that can by any at all into the mind of any member of the Leg. *possibility be reached by the letter of (* 191 islature? Nay, does not the proviso itself take the Act of 1825 ? Bear in mind, too, that us back to the Act of 1820, ch. 191, sec. 7, there never had been in the history of Mary. 190*] *and point out exactly the illegitimate land any illegitimate children under the fosterchild and children the Legislature had in view?ing hand of the government, except such as If we had been present and witnessed all the could be legitimated by marriage. . Can it be deliberations on the subject; if we had now supposed, then, that the Legislature intended every member of the General Assembly before thus at once to abandon all her former policy us as witnesses, and they should all inform us and purity; and make provision for all the in that nothing more was intended than such cestuous, illicit, and hybridous issues within children as were found named in the Act of the scope of the letter of the Act of 1825 ? 1820, ch. 191, sec. 7, could it be more con- Surely, surely not. clusive than the information given by the Throughout the argument, we have held the proviso?
governing rule to be that the judges ought to The proviso is certainly part of the law of interpret the law, and not to make or give law. 1825, and must be brought to our aid in the in- This rule makes it the more proper that tho terpretation of that law. For nothing is better greatest care and diligence should be used: settled than this, that “one part of an act of first, in bringing to our aid the grand and leadParliament may expound another.” 19 Vin. ing objects of the Maryland Legislature, in Abr. 527, sec. 149, and the references there. passing the law of 1825; and then in consider: This is often done, even where there is no ex. ing every part of that law with its reference press saving in form, when it evidently leads and appendage. When putting a construction to the true meaning of the Legislature. Woe be upon any statute whatever, the judges will ento any court that shall consider itself in ab- deavor to save the Legislature from absurdity solute control by the mere letter of this legis- and folly; as it cannot be presumed that men lative enactment, evidently leading to mischief; of sound minds would willingly and delivand when the law presents a clear presumption erately stultify themselves. But above all that the Legislature intended something other things, and most especially will the judges cathan the letter. Can we believe that children deavor to arrive at the intention of the Legisof incest, adultery, and amalgamation were lature; and when that is once ascertained, ever intended by the law? Take out, we pray, readily gratify it, no matter how loose or carethis hybridous and impure issue, or you will less may be the language in which hat intendo great injustice to the intention of the Leg- tion is clothed. We have endeavored to show islature.
that any other construction than that for To further illustrate and prove that the Leg. which we contend would involve the Legislature islature, by the Act of 1825, intended to em- in folly; and further, we think we have disbrace only such children as could be legitimat. closed the true, clear intention of the Legislaed by marriage, according to the Act of 1820, ture in passing the Act of 1825; both from the ch. 191, sec. 7, we will now refer to several other universal sentiment of the State, as well as all Maryland laws, which by their affinity proper- prior Maryland laws on the subject, and par. ly belong to the argument. And as we pro- ticularly that important one which the act in gress, we shall insist that the Legislature, when question expressly refers to by year, chapter, merely remedying a grievance still existing in and section. the State, could not by this enactment, sweep As a leading case upon the construciion of ing as are its terms, have intended to abandon statutes, which directs the judges to restrain the fixed standard of purity so long erected by the letter in order to get at the intention, we the sages of Maryland.
cite Dr. Bohman's case, 4 Coke's Rep. 368; 19 And what is that standard of purity, as gath. Viner's Abr. 514, sec. 34; 518, sec. 81, and the ered from all her laws upon the subject? Let note 519, note 522, sec. 109; note 523, sec. 116; us pass them in review, as proposed, in order 527, sec. 149. to discover it.
Judges have power over statutes to mould By the Act of 1777, ch. 12, a penalty of five them to the truest and best use. 19 Viner's hundred pounds is incurred by persons who Abr. 528, sec. 154, 158, 159. shall consummate an incestuous marriage. When laws or statutes are made, yet there
By the Act of 1715, ch. 27, sec. 3, every case are some things which are exempted and foreof adultery is punished by fine.
prized out of the provision thereof, though not The commerce of the two races of whites and expressly mentioned. 19 Viner's Abr. 527, sec. blacks has, by the laws of the State, been 147; 524, sec. 119; 528, sec. 116; 514, sec. 27-31. strictly prohibited. A free negro or mulatto in Statutes which restrain the common law to termarrying with a white woman, becomes a be taken stricti juris. 19 Viner's Abr. 524 sec. slave for life. A white woman having issue by 125. any negro or mulatto, is made a servant for Our researches, for the better understanding seven years. White men having issue by any of the matters involved in this discussion, have negress or mulatto, become servants for seven informed us that all civilized States that have years. Free negro or mulatto women, having deliberately formed a civil code, uniformly bastard issue by white men, are subject to the have prohibited the issue from incest or adul. same penalty. Acts of 1715, ch. 44; 1717, ch. itery from the right of inheritance. Shall Mary. 13; 1728, ch. 4.
land, then, by mere implication, and a forced Now, can it be supposed that the Legislature, construction of a single act of her Legislature, being cognizant of all these laws, and knowing'evidently made for another * purpose, (*192
have a civil code fixed upon her that her people, their unoffending offspring property, to which, have ever abhorred; and which, if proposed in other respects, they have a good title. The openly, would be instantly rejected by her Leg. law, however, declares that the sins of the par. islature? Such an important code as that, dis.ents shall not be visited upon the children. senting from all civilized usage, ought never to And is this forbidden by any canon of the mor: be fastened upon any modern State. We have al code? On the contrary, is it not wise and endeavored to maintain that it is not the civil just to enable the children to rise above the decode of Maryland, and that it never will be grading accidents of their birth, by placing with the consent of her people; and now, as within their reach every means of improveone of her citizens, we enter our protest against ment, and every incitement to a virtuous and such a presumption.
exemplary life? A printed brief has been filed in court, by the But if they are to be marked and degraded counsel for the defendant. But it mistakes our as victims, why not carry it out fully and ef. position. It supposes that the plaintiff desires fectually!' why permit them to vote at the the court to punish the incestuous issue of John elections? or to hold any office or to marry and Mary Sloan; and contends that the plain-into honest families! or to hold property by tiff is endeavoring to make such issue some purchase ? thing more than illegitimate. This is not that It is conceived to be necessary to punish in. for which the plaintiff contends. The purity of cest. And how is it proposed that this shall the law, which always extends less favor to il- be done ? It is by suffering the guilty to legitimate children than to legitimate, was not escape, and by seizing the innocent, and making Intended to punish the innocent, but to prevent them bear the penalty. The parents were per. the illicit commerce of the sexes. The illegiti. mitted to hold and enjoy this property all their mate children from the incest in this cause, lives; and, after their death, the law is to step
it is true, illegitimate. But they are not in and take it away from the children, as an such as the Legislature intended to embrace. example to the parents.
We think we have demonstrated this clearly But why speak of punishing incest? It is no and successfully to the court. If they were crime. These parents were permitted to live not intended to be embraced by the Legisla- | in open incest, because there was no law to ture, this court cannot embrace them. If so, punish them. We feel it to be immoral and this court would be making a law, not inter- highly revolting; but, in reference to the crimpreting that before it.
inal law, it is an act perfectly innocent. It is Mr. Price, for the defendants in error: a little surprising, therefore, that the court
John Sloan, having married his own daughter, should be called upon to visit, with condign and having had several children by her, con punishment, an act which the law does not reveyed to one of those children a tract of land, gard as calling for penalty or punishment of and upon the death of such grantee, the rest of any kind. the children, claiming the property by descent, Mr. Mayer, for the plaintiff in error: conveyed the same to the defendants in error. The decision here depends on the construcThe question is, and it is the only question in tion of the law of Maryland (1825, ch. 156), the case, whether a good title did not pass by which enacts, “That the illegitimate child or descent from the grantee of John Sloan to his children of any female, and the issue of such brothers and sisters ?
child or children, shall be able and capable in The Act of 1825 (ch. 156, of Maryland) pro- law to take and inherit both real and personal vides, “That the illegitimate child or children estate from their mother or from each other, or of any female, and the issue of any such ille from the descendants of each other, as the case gitimate child or children, be, and they are may be, in like manner as if born in lawful hereby declared to be, able and capable, in law, wedlock: Provided, that nothing in this act to take and inherit both real and personal es. contained shall be construed to alter or change tate from their mother, or from each other, or the law respecting illegitimate persons whose from the descendants of each other, as the parents marry after the birth of such persons, case may be, in like manner as if born in law and who are by them acknowledged, agreeably ful wedlock.” Then follows a proviso, which to the seventh section of the Act of Assembly has no application to the present question, passed at December session, eighteen hundred
If this were the case of legitimate children, and twenty, chapter one hundred and ninety. their right by descent would not, as it could one.” not, be questioned. But the act provides that The defendants claim under the title of one illegitimate children shall inherit "in the same of an incestuous issue; and upon the ground manner as if born in lawful wedlock.” There that one of that issue may inherit from anis no distinction, therefore, in this connection, other, under the new law now quoted. The Act between legitimate and illegitimate children; of 1820, ch. 191, sec. 7, referred to in the prothey all take alike.
viso of that just recited, declares that “if any It is admitted that these children are illegiti- man shall have a child or children by any mate, and in that respect are within the letter woman whom he shall afterwards *marry (*194 of the law; but it is insisted that they such child or children, if acknowledged by the 193*). *are something more than illegitimate, the man, shall, in virtue of such a marriage, be being the fruits of an incestuous commerce be hereby legitimated, and capable in law to in. tween the father and daughter, and for that herit and transmit inheritance, as if born in reason not within the intention of the law. wed lock." makers.
A marriage was had between the parents of It is supposed that the court will feel itself the incestuous offspring; and it is contended called upon to show its disapprobation of the by the plaintiff, that so far as they were born incest of the parents, by withholding from before the marriage, they must seek for legit.
imation under the Act of 1820, ch. 191, sec. 7; However general, then, the terms of a law and if born after the marriage, they must rely may be in favor of illegitimate issue, it is reaon the marriage as their sanction, if they are to sonable to require, in conformity with the feel. have any legitimate standing. This latter pro ing the law entertains towards incest, that the vision of the Maryland law, and the cited "Act common law regarding marriage as the only of 1825, ch. 156, must be taken together in test of legitimation, should exclude incestuous construction; and we maintain that the whole offspring from ordinary illegitimacy, and reenactment meant to provide for those whom it quire them to be specifically designated. There was possible for the marriage ceremony to are many cases where general terms, which have made legitimate, and that when the cere might embrace certain objects, are limited in mony has in fact been performed, and yet can import by reference to paramount principles in law have no effect, the offspring are not or institutes of the common law, which are alwithin the contemplation of the Act of 1825, lowed to be invaded only by, express terms. ch. 156; the just deduction from the entire The aversion of the common law may, in its legislation being that those were regarded who bearing on the exposition of a statute, as to needed only the lawful union of their parents illegitimates, be regarded as akin to those jura to make them legitimate, and that legitimacy naturæ which are termed even leges legum. in this legislation is thus to be contradistin. Hob. 87. Indeed, the common law (2 Kent's guished to illegitimacy. As a part of the series Com. 72; Vaugh. Rep. 206; 2 Vent. 9) proof enactment, there should also be considered nounces incestuous marriages to be against the the Maryland Act of 1777, ch. 12, sec. 1, which law of nature. There are a number of in. contains penal prohibitions of marriages with stances as marked as that now contended for in certain degrees. If this interpretation be by us, of a restricted construction of general sound, the offspring in question could not be words in a statute, in due respect to a policy, within the benefit of the Act of 1825, ch. 156, or to certain deeply seated principles of the the marriage to which they must appeal being common law. 6 Bac. Abr. Statute, 381-387; 1 unavailing, and no lawful union--the possi- Brockenbrough's Rep. 162. bility contemplated by the act-being practic But, however, we may admit that the off. able between their parents. For if we are to spring of incest may, under this Act of 1825, b: characterize the issue, we must look to the pu- recognized in point of parentage as to the tative and admitted parents, and to the partic. mother, and may inherit her estate from her or ular case; and seeing the relations of the par. from one another, is collateral inheritance, aties themselves, we must find that they could here claimed, allowed under it? The act de not come within the condition of "lawful wed. clares that the illegitimate children of any fe lock,” in the view of the act. They never male may "inherit” real estate from her and could have been born in "lawful wedlock." from each other. The term "inherit” has a tech
Whatever may be our sympathies in such in- nical meaning, and has regard to the principles stances, we are constrained to look at preten- which at common law regulate the derivatior: sions through the stern medium of the common of estates by descent. The descent from law policy, disqualifying as it is against the brother to brother is immediate; but still par. issue of illicit alliances. It makes no pro-ents must be found who shall be the actual or vision itself for such offspring by its policy, assumed fountain of inheritable blood, and whatever may be the duty of the parents, who create the kindred of brothers. 2 Bl. Com. 226are therefore left free to make retribution to 228. This Act of 1825 contravenes the comthem for the dishonor of their birth. All stat mon law in its maxim that an illegitimate utes like that under consideration, interpreted child is nullius filius only so far as its express as they must be in reference to the strict gene provisions go; and the utmost that can be said ral policy which pervades our common law, are as to the parentage with which it endows the to be limited to the instances clearly within offspring, is, that it gives them a mother. It them, and are to be construed in obedience to gives them no father, and does not constitute the common law principles, so far as those are between the children the relation of brothers not unequivocally superseded by the statute en- and sisters. In Stevenson v. Sullivan, 5 Wheat. actment. This view enforces the interpreta- 207, the terms of the Virginia act came into tion we would assign to the Act of 1825, ch. question, which allows illegitimate children to 156. In the particular case, too, before the inherit from the mother, and “transmit inheritcourt, not only does the interpretation con- ance" on part of the mother. The court deter: tended for subserve the general policy of the mined that descent was not permitted by the common law, in its repugnance to illicit conact from brother to brother, not only because nections, but it is demanded by the special the words "on part of the mother” confined the odium in which it denounces such alliance as taking by inheritance through the mother, in that which is the revolting feature of this case; the ascending or descending line, *but (*196 and against which Maryland legislation has so also, because, although the bastards, as the 195*] emphatically *and studiously guarded court says, "are, in these respects, quasi legitithe social morals by the Act of 1777, ch. 12. mate, they are, nevertheless, in all others, basAll such unions and their results seem to be tards, and as such they have and can have peculiarly offensive to our common law; and neither father, brothers, or sisters." The court particularly when of the infamous order of also say that in the construction of the act, “it that which this case presents. The offspring is never to be lost sight of that the appellants of incest are not admissible within the general are to be considered as bastards, liable to all denomination of mere illegitimate issue, and the disabilities to which the common law subshould be specially designated to entitle them jects them as such, except those from which the to enjoy the advantages of any particular legis- section itself accepts them; thus indicating lation. 2 Kent's Com. 71, 72.
that the strict maxims of the common law
are to be adhered to, and the privileges of father, does not comprehend a case where the bastards narrowed in reference to them in the law declares itself that there can be none, and construction of these enfranchising acts. Now, can be no such ascertainment. The case, then, the terms in the Virginia act, which allow the of such collateral succession between illegiti. children to transmit inheritance, would, in case mates must be regarded as casus omissus of legitimate issue, cover the descent from from our Maryland Law of Descents (see the brother to brother; and yet, even apart from Act of Descents, 1820, ch. 191), and the comthe restrictive words, “on part of the mother," mon law must regulate as in another case of the court regards this transmitting power to casus omissus, as the
done in the children as not instituting collateral de Barnitz v. Cassey, 7 Cranch, 456. There could, scent, or in other words, as not ex vi termin. then, be no inheritance of the half-blood be orum, creating the constructive relation of tween these illegitimates; even assuming that brothers and sisters, without express words in the tests are erroneous, which an effort has the act giving a perfect parentage, construc- been made to show are those exclusively aptively to the children. The Virginia act, as plicable. explicitly as the Maryland, conferred a mother The result of these views, which conform to on the children; and in giving the children the the well-established principles of the common capacity to “transmit inheritance," the Vir. law, unimpaired by the act under consideraginia act yields all that the Maryland act tion, is, that the act allows the illegitimate grants in declaring that the children may in. issue to inherit from their mother, and to herit from each other; for certainly a collateral inherit from each other estate derived from descent is a transmission of inheritance. So the the mother, but no estates of purchase, as is case of Stevenson v. Sullivan treats it, when the character of the estate in question in showing that, even not regarding the terms this cause. Our exposition gives effect to "on part of the mother," there could be no every provision of the act, according an indescent in the case from brother to brother, al. heritance collateral as well as lineal; but though the children were endued with the ca- modifying the scope of the act by rules of pacity of transmitting inheritance. According, the common law, which must govern and limit then, to that decision of this court, there the innovation introduced; unless those rules can be no inheritance here between brother be, by the terms of the new legislation, expressand brother, under the Maryland Act of 1825; ly, or by necessary implication, superseded ; and for the reason there stated, that, although an implication so clear and irresistible that a mother is recognized by the Virginia act, as no construction of the law is possible, conin the Maryland, yet the children had, in con- sistently with the operation of these rules. templation of law, no brothers nor sisters. According to the decision, even without the words
Mr. Chief Justice Taney delivered the opin
ion of the court: "on part of the mother” being connected with the transmitting of inheritance by the children,
This case depends upon the construction of their capacity to inherit would be limited to the Act of Assembly of Maryland passed at the estate of the mother. In every case of a
December session, 1825, ch. 156, entitled, “An descent from brother to brother, although it is act relating to illegitimate children.” By this immediate, there must be fathers to whom the act of Assembly, “the illegitimate child or kindred may be traced, although they be not children of any female, and the issue of any named in deriving the estate, which is the such child or children,” are declared to be in subject of the collateral descent. 2 Black. Com. capable in law “to take and inherit both real 226. The paternity is the essential clue to and personal estate from their mother, or from learn the kindred, whether it be of the whole each other, or from the descendants of each or half-blood; and the primary element in this other, as the case may be, in like manner as ascertainment is wanting where no father to if born in lawful wedlock.” either party is to be found, and when the law the name of John Sloan had several children,
It appears from the record that a man by itself declares that there is none. The relation of the whole and of half-blood depend in the der. who were the issue of an incestuous connecivation of descent on the question of commu
tion of a shocking character. He conveyed a nity of father and of mother, unless when the tract of land called "Grassy Cabin,” situated estate comes from the mother. Such is the
in Allegany County, in the State of Maryland, necessary rule from the theory of feudum to John Joseph Sloan, one of these children:
John Joseph Sloan, the grantee, died about the novum ut antiquum.
Thus it is not sufficient here to say, that by year, 1832, intestate, and without issue; and the law of Maryland the half-blood may in. seized in fee-simple of this land. Two brothherit among brothers and sisters, for we have
ers and one sister, the *issues of the [*198 197"] *seen that an ascertained paternity is and they conveyed the land to Jacob Blougher
sa me incestuous intercourse, survived him; essential to determine the relation of whole or and Daniel Blougher, the defendants in error. half-blood among brothers and sisters. The law of Maryland gives the right to the half-John Joseph Sloan, took out an escheat war
The plaintiff in error, after the death of blood only where is ascertained that there
rant for the above-mentioned tract of land, is no brother or sister of the whole-blood; a provision which looks to the possible existence, ful heirs of the said Sloan; and having ob
upon the ground that there could be no law. at least, of fathers. Where the law itself, in tained a patent for the said' land, he brought the confessed circumstances, leaves an utter an eject ment for it in the Circuit Court of blank for the father, and declares it a legal im the United States for the District of Maryland; possibility that there should be one, we may and the judgment of that court being against at least say that the statute of descent, which him, the case has been brought here by a writ presupposes a necessary ascertainment of a' of error.