grave interpretation, let us apply the same rule and mode of reasoning by analogy to the acts of 1820 and 1825; and it will be clearly demon. strated that the Act of 1825 did not intend to embrace any bastards except such who could be legitimated by marriage.

1786, ch. 45, and it is produced to show that our Legislature has in more than one instance, from negligence, authorized by the letter of the law a construction which the Maryland courts would not give; always restraining the letter by judicial power to prevent mischief. 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 Chief Justice knows that our constant exposition of the act to direct descents is, that it shall be confined to a child or children born in wedlock, or legitimated by marriage, according to the degrees of kindred and affinity settled by the Marriage Act of 1777.

Again, by the 7th section of the Act of 1786, to direct descents, it is enacted, "that if any man shall have one or more children by any woman whom he shall afterwards marry, such child or children, if acknowledged by the man, shall, in virtue of such marriage and acknowledgment, be hereby legitimated, and capable in law to inherit and transmit inheritance, as if born in lawful wedlock." Now, by the letter of this section, the Marriage Act is changed; and the man is at large to marry his daughter or his mother, his neighbor's wife, or his negro slave. And yet His Honor the Chief Justice knows that our uniform exposition has been that the letter shall be confined to a woman according to the degrees fixed by the Marriage Act of 1777.

this act, the illegitimate child or children of any female, and the issue of any such illegitimate child or children be, and they are hereby declared to be able and capable in law to take and inherit both real and personal estate from their mother or from each other, or from the descendants of each other, as the case may be, in like manner as if born in lawful wedlock: Provided, that nothing herein contained shall be construed to alter or change the law respecting illegitimate persons, whose parents marry after the birth of such persons, and who are by them acknowledged, agreeably to the seventh section of the Act of Assembly, passed at December session, eighteen hundred and twenty, chapter one hundred and ninety-one."

Notwithstanding it is evident that this act was passed in a careless hour, without proper guards and limitations in the purview; the proviso, although inconsistent and repugnant, will afford us a key to unlock and throw open to our minds the true meaning and intention of the Legislature.

To do full justice to the Legislature, the Act of 1825 ought to be received as an appendix to the Act of 1820. The proviso proves to us beyond all doubt several important matters, to enable us to discern the real intention of the Legislature. When that is once clearly discerned, the judgment of this court, must, we hold, conform to it, as the only rule of con

The Act of 1820, (ch. 191, which is in truth, by the reference in the proviso of the Act of 1825, made part of the latter act), in its 7th section, is precisely the same as the 7th section of the Act of 1786, and would by the letter of that section change the Marriage Act of 1777, and allow a man in the wide field of his lust to marry his daughter or his mother, his neigh-struction. bor's wife, or his negro slave. And yet His Honor the Chief Justice knows that our uniform exposition has been that the letter shall be restrained according to the degrees fixed by the Marriage Act of 1777.

Can anyone doubt that the Legislature, when it passed the law of 1820, ch. 191, and copied in its 7th section the entire 7th section of the Act of 1786, ch. 45, had deliberately examined and considered the 7th section of the Act of 1786, ch. 45, and intended nothing more than a re-enactment of the same matter, which it was thought fit and proper to be a standing law of the State? But it may be asked, what proof have we of this? We answer that the Legislature of 1820 inserted in the 7th section of the act of that year, verbatim et literatim, the whole 7th section of the Act of 1786. Before it was thus copied, it must have been read, examined, and considered, and the contents fully known and understood, and must therefore have been fully in the legislative mind. Are we not all clearly satisfied of this?

Now, if the court shall conclude that the Act of 1825 ought to be received by judicature for

In the first place, the proviso informs us, by the very special and particular reference to the year, chapter, and section of the Act of 1820, that the committee, or persons having the matter in charge, had carefully and deliberately examined the Act of 1820, and reported their proceedings to the legislative body before the passage of the law. The question here is, what evil or grievance did the Legislature discover as still existing under the Act of 1820 (ch. 191, sec. 7), which ought to be provided for and redressed? The evil and grievance discerned was evidently this, and nothing more: That by the Act of 1820, ch. 191, sec. 7, no illegitimate child or children could be legitimated so as to be capable in law to inherit or transmit inheritance, without marriage and acknowledgment of the father. If any woman, being seduced by the artful addresses of a man, shall have an illegitimate child or children, and die intestate, leaving real and personal estate, it is but just and honest that such estate shall descend to her own natural children, in preference to a descent to her collateral relations. When reading, deliberating on, and examining the Act of 182C

(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 Mary190*] *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 proviso?

The proviso is certainly part of the law of 1825, and must be brought to our aid in the interpretation of that law. For nothing is better settled than this, that "one part of an act of Parliament may expound another." 19 Vin. Abr. 527, sec. 149, and the references there. This is often done, even where there is no express saving in form, when it evidently leads to the true meaning of the Legislature. Woe be to any court that shall consider itself in absolute control by the mere letter of this legislative enactment, evidently leading to mischief; and when the law presents a clear presumption that the Legislature intended something other than the letter. Can we believe that children of incest, adultery, and amalgamation were ever intended by the law? Take out, we pray, this hybridous and impure issue, or you will do great injustice to the intention of the Legislature.

To further illustrate and prove that the Legislature, by the Act of 1825, intended to embrace only such children as could be legitimated by marriage, according to the Act of 1820, ch. 191, sec. 7, we will now refer to several other Maryland laws, which by their affinity properly belong to the argument. And as we progress, we shall insist that the Legislature, when merely remedying a grievance still existing in the State, could not by this enactment, sweeping as are its terms, have intended to abandon the fixed standard of purity so long erected by the sages of Maryland.

Throughout the argument, we have held the governing rule to be that the judges ought to interpret the law, and not to make or give law. This rule makes it the more proper that the greatest care and diligence should be used: first, in bringing to our aid the grand and leading objects of the Maryland Legislature, in passing the law of 1825; and then in consider. ing every part of that law with its reference and appendage. When putting a construction upon any statute whatever, the judges will endeavor to save the Legislature from absurdity and folly; as it cannot be presumed that men of sound minds would willingly and deliberately stultify themselves. But above all things, and most especially will the judges endeavor to arrive at the intention of the Legis lature; and when that is once ascertained, readily gratify it, no matter how loose or careless may be the language in which hat intention is clothed. We have endeavored to show that any other construction than that for which we contend would involve the Legislature in folly; and further, we think we have disclosed the true, clear intention of the Legislature in passing the Act of 1825; both from the universal sentiment of the State, as well as all prior Maryland laws on the subject, and particularly that important one which the act in question expressly refers to by year, chapter, and section.

As a leading case upon the construction of statutes, which directs the judges to restrain the letter in order to get at the intention, we 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.

By the Act of 1777, ch. 12, a penalty of five hundred pounds is incurred by persons who shall consummate an incestuous marriage.

By the Act of 1715, ch. 27, sec. 3, every case of adultery is punished by fine.

The commerce of the two races of whites and blacks has, by the laws of the State, been strictly prohibited. A free negro or mulatto intermarrying with a white woman, becomes a slave for life. A white woman having issue by any negro or mulatto, is made a servant for seven years. White men having issue by any negress or mulatto, become servants for seven years. Free negro or mulatto women, having bastard issue by white men, are subject to the same penalty. Acts of 1715, ch. 44; 1717, ch. 13; 1728, ch. 4.

Now, can it be supposed that the Legislature, being cognizant of all these laws, and knowing

Judges have power over statutes to mould them to the truest and best use. 19 Viner's Abr. 528, sec. 154, 158, 159.

When laws or statutes are made, yet there are some things which are exempted and foreprized out of the provision thereof, though not expressly mentioned. 19 Viner's Abr. 527, sec. 147; 524, sec. 119; 528, sec. 116; 514, sec. 27-31.

Statutes which restrain the common law to be taken stricti juris. 19 Viner's Abr. 524 sec. 125.

Our researches, for the better understanding of the matters involved in this discussion, have informed us that all civilized States that have deliberately formed a civil code, uniformly have prohibited the issue from incest or adultery from the right of inheritance. Shall Maryland, then, by mere implication, and a forced construction of a single act of her Legislature, 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 parislature? Such an important code as that, dissenting from all civilized usage, ought never to be fastened upon any modern State. We have endeavored to maintain that it is not the civil code of Maryland, and that it never will be with the consent of her people; and now, as one of her citizens, we enter our protest against such a presumption.

ents shall not be visited upon the children. And is this forbidden by any canon of the moral code? On the contrary, is it not wise and just to enable the children to rise above the degrading accidents of their birth, by placing within their reach every means of improvement, and every incitement to a virtuous and exemplary life?

But if they are to be marked and degraded as victims, why not carry it out fully and effectually? Why permit them to vote at the elections? or to hold any office? or to marry into honest families? or to hold property by purchase?

A printed brief has been filed in court, by the counsel for the defendant. But it mistakes our position. It supposes that the plaintiff desires the court to punish the incestuous issue of John and Mary Sloan; and contends that the plaintiff is endeavoring to make such issue something 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 perthe 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 are, 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 and successfully to the court. If they were not intended to be embraced by the Legislature, this court cannot embrace them. If so, this court would be making a law, not interpreting that before it.

Mr. Price, for the defendants in error: John Sloan, having married his own daughter, and having had several children by her, conveyed to one of those children a tract of land, and upon the death of such grantee, the rest of the children, claiming the property by descent, conveyed the same to the defendants in error. The question is, and it is the only question in the case, whether a good title did not pass by descent from the grantee of John Sloan to his brothers and sisters?

The Act of 1825 (ch. 156, of Maryland) provides, "That the illegitimate child or children of any female, and the issue of any such illegitimate child or children, be, and they are hereby declared to be, able and capable, in law, to take and inherit both real and personal estate from their mother, or from each other, or from the descendants of each other, as the case may be, in like manner as if born in lawful wedlock." Then follows a proviso, which has no application to the present question.

If this were the case of legitimate children, their right by descent would not, as it could not, be questioned. But the act provides that illegitimate children shall inherit "in the same manner as if born in lawful wedlock." There is no distinction, therefore, in this connection, | between legitimate and illegitimate children; they all take alike.

But why speak of punishing incest? It is no crime. These parents were permitted to live in open incest, because there was no law to punish them. We feel it to be immoral and highly revolting; but, in reference to the criminal law, it is an act perfectly innocent. It is a little surprising, therefore, that the court should be called upon to visit, with condign punishment, an act which the law does not regard as calling for penalty or punishment of any kind.

Mr. Mayer, for the plaintiff in error:

The decision here depends on the construction of the law of Maryland (1825, ch. 156), which enacts, "That the illegitimate child or children of any female, and the issue of such child or children, shall be able and capable in law to take and inherit both real and personal estate from their mother or from each other, or from the descendants of each other, as the case may be, in like manner as if born in lawful wedlock: Provided, that nothing in this act contained shall be construed to alter or change the law respecting illegitimate persons whose parents marry after the birth of such persons, and who are by them acknowledged, agreeably to the seventh section of the Act of Assembly passed at December session, eighteen hundred and twenty, chapter one hundred and ninetyone."

The defendants claim under the title of one of an incestuous issue; and upon the ground that one of that issue may inherit from another, under the new law now quoted. The Act of 1820, ch. 191, sec. 7, referred to in the proviso of that just recited, declares that "if any man shall have a child or children by any woman whom he shall afterwards *marry [*194 such child or children, if acknowledged by the the man, shall, in virtue of such a marriage, be hereby legitimated, and capable in law to inherit and transmit inheritance, as if born in

It is admitted that these children are illegitimate, and in that respect are within the letter of the law; but it is insisted that they 193*] are something more than illegitimate, being the fruits of an incestuous commerce be tween the father and daughter, and for that reason not within the intention of the law-wed lock." makers.

It is supposed that the court will feel itself called upon to show its disapprobation of the incest of the parents, by withholding from

A marriage was had between the parents of the incestuous offspring; and it is contended by the plaintiff, that so far as they were born before the marriage, they must seek for legit.

imation under the Act of 1820, ch. 191, sec. 7; and if born after the marriage, they must rely on the marriage as their sanction, if they are to have any legitimate standing. This latter provision of the Maryland law, and the cited Act of 1825, ch. 156, must be taken together in construction; and we maintain that the whole enactment meant to provide for those whom it was possible for the marriage ceremony to have made legitimate, and that when the ceremony has in fact been performed, and yet can in law have no effect, the offspring are not within the contemplation of the Act of 1825, ch. 156; the just deduction from the entire legislation being that those were regarded who needed only the lawful union of their parents to make them legitimate, and that legitimacy in this legislation is thus to be contradistinguished to illegitimacy. As a part of the series of enactment, there should also be considered the Maryland Act of 1777, ch. 12, sec. 1, which contains penal prohibitions of marriages within certain degrees. If this interpretation be sound, the offspring in question could not be within the benefit of the Act of 1825, ch. 156, the marriage to which they must appeal being unavailing, and no lawful union-the possibility contemplated by the act-being practicable between their parents. For if we are to characterize the issue, we must look to the putative and admitted parents, and to the particular case; and seeing the relations of the parties themselves, we must find that they could not come within the condition of "lawful wedlock," in the view of the act. They never could have been born in "lawful wedlock."

However general, then, the terms of a law may be in favor of illegitimate issue, it is reasonable to require, in conformity with the feeling the law entertains towards incest, that the common law regarding marriage as the only test of legitimation, should exclude incestuous offspring from ordinary illegitimacy, and require them to be specifically designated. There are many cases where general terms, which might embrace certain objects, are limited in import by reference to paramount principles or institutes of the common law, which are allowed to be invaded only by express terms. The aversion of the common law may, in its bearing on the exposition of a statute, as to illegitimates, be regarded as akin to those jura nature which are termed even leges legum. Hob. 87. Indeed, the common law (2 Kent's Com. 72; Vaugh. Rep. 206; 2 Vent. 9) pronounces incestuous marriages to be against the law of nature. There are a number of instances as marked as that now contended for by us, of a restricted construction of general words in a statute, in due respect to a policy, or to certain deeply seated principles of the common law. 6 Bac. Abr. Statute, 381-387; 1 Brockenbrough's Rep. 162.

But, however, we may admit that the offspring of incest may, under this Act of 1825, be recognized in point of parentage as to the mother, and may inherit her estate from her or from one another, is collateral inheritance, a here claimed, allowed under it? The act de clares that the illegitimate children of any fe male may "inherit" real estate from her and from each other. The term "inherit” has a tech nical meaning, and has regard to the principles which at common law regulate the derivation of estates by descent. The descent from brother to brother is immediate; but still par

Whatever may be our sympathies in such instances, we are constrained to look at pretensions through the stern medium of the common law policy, disqualifying as it is against the 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, whatever may be the duty of the parents, who are therefore left free to make retribution to them for the dishonor of their birth. All statutes like that under consideration, interpreted as they must be in reference to the strict general policy which pervades our common law, are to be limited to the instances clearly within them, and are to be construed in obedience to the common law principles, so far as those are not unequivocally superseded by the statute enactment. This view enforces the interpretation we would assign to the Act of 1825, ch. 156. In the particular case, too, before the court, not only does the interpretation contended for subserve the general policy of the common law, in its repugnance to illicit connections, but it is demanded by the special odium in which it denounces such alliance as that which is the revolting feature of this case; and against which Maryland legislation has so 195] emphatically and studiously guarded the social morals by the Act of 1777, ch. 12. All such unions and their results seem to be peculiarly offensive to our common law; and particularly when of the infamous order of that which this case presents. The offspring of incest are not admissible within the general denomination of mere illegitimate issue, and should be specially designated to entitle them to enjoy the advantages of any particular legislation. 2 Kent's Com. 71, 72.

assumed fountain of inheritable blood, and create the kindred of brothers. 2 Bl. Com. 226228. This Act of 1825 contravenes the common law in its maxim that an illegitimate child is nullius filius only so far as its express provisions go; and the utmost that can be said as to the parentage with which it endows the offspring, is, that it gives them a mother. It gives them no father, and does not constitute between the children the relation of brothers and sisters. In Stevenson v. Sullivan, 5 Wheat. 207, the terms of the Virginia act came into question, which allows illegitimate children to inherit from the mother, and "transmit inheritance" on part of the mother. The court determined that descent was not permitted by the act from brother to brother, not only because the words "on part of the mother" confined the taking by inheritance through the mother, in the ascending or descending line, but [*196 also, because, although the bastards, as the court says, "are, in these respects, quasi legitimate, they are, nevertheless, in all others, bastards, and as such they have and can have neither father, brothers, or sisters." The court also say that in the construction of the act, "it is never to be lost sight of that the appellants are to be considered as bastards, liable to all the disabilities to which the common law subjects them as such, except those from which the section itself accepts them; thus indicating that the strict maxims of the common law

father, does not comprehend a case where the law declares itself that there can be none, and can be no such ascertainment. The case, then, of such collateral succession between illegiti mates must be regarded as a casus omissus from our Maryland Law of Descents (see the Act of Descents, 1820, ch. 191), and the common law must regulate as in another case of casus omissus, as the same was done in Barnitz v. Cassey, 7 Cranch, 456. There could, then, be no inheritance of the half-blood between these illegitimates; even assuming that the tests are erroneous, which an effort has been made to show are those exclusively applicable.

are to be adhered to, and the privileges of bastards narrowed in reference to them in the construction of these enfranchising acts. Now, the terms in the Virginia act, which allow the children to transmit inheritance, would, in case of legitimate issue, cover the descent from brother to brother; and yet, even apart from the restrictive words, "on part of the mother," the court regards this transmitting power to the children as not instituting collateral descent, or in other words, as not ex vi terminorum, creating the constructive relation of brothers and sisters, without express words in the act giving a perfect parentage, constructively to the children. The Virginia act, as 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 consistently with the operation of these rules. templation of law, no brothers nor sisters. According to the decision, even without the words "on part of the mother" being connected with the transmitting of inheritance by the children, their capacity to inherit would be limited to the estate of the mother. In every case of a descent from brother to brother, although it is immediate, there must be fathers to whom the kindred may be traced, although they be not named in deriving the estate, which is the subject of the collateral descent. 2 Black. Com. 226. The paternity is the essential clue to learn the kindred, whether it be of the whole or half-blood; and the primary element in this ascertainment is wanting where no father to either party is to be found, and when the law itself declares that there is none. The relation of the whole and of half-blood depend in the derivation of descent on the question of community of father and of mother, unless when the Such is the estate comes from the mother. necessary rule from the theory of feudum novum ut antiquum.

Thus it is not sufficient here to say, that by the law of Maryland the half-blood may inherit among brothers and sisters, for we have

197*] *seen that an ascertained paternity is

essential to determine the relation of whole or half-blood among brothers and sisters. The law of Maryland gives the right to the halfblood only where it is ascertained that there

is no brother or sister of the whole-blood;

a

provision which looks to the possible existence, at least, of fathers. Where the law itself, in

the confessed circumstances, leaves an utter blank for the father, and declares it a legal impossibility that there should be one, we may at least say that the statute of descent, which presupposes a necessary ascertainment of a

Mr. Chief Justice Taney delivered the opinion of the court:

This case depends upon the construction of the Act of Assembly of Maryland passed at December session, 1825, ch. 156, entitled, "An act relating to illegitimate children." By this act of Assembly, "the illegitimate child or children of any female, and the issue of any such child or children," are declared to be incapable in law "to take and inherit both real and personal estate from their mother, or from each other, or from the descendants of each other, as the case may be, in like manner as if born in lawful wedlock."

It appears from the record that a man by the name of John Sloan had several children, who were the issue of an incestuous connection of a shocking character. He conveyed a tract of land called "Grassy Cabin," situated in Allegany County, in the State of Maryland, to John Joseph Sloan, one of these children. John Joseph Sloan, the grantee, died about the year 1832, intestate, and without issue; and seized in fee-simple of this land. Two brothers and one sister, the issues of the [*198 incestuous intercourse, survived him;

same

and they conveyed the land to Jacob Blougher and Daniel Blougher, the defendants in error. John Joseph Sloan, took out an escheat warThe plaintiff in error, after the death of rant for the above-mentioned tract of land, ful heirs of the said Sloan; and having obupon the ground that there could be no lawtained a patent for the said land, he brought an ejectment for it in the Circuit Court of the United States for the District of Maryland; and the judgment of that court being against him, the case has been brought here by a writ of error.