Roger B. Taney

“ But in such a state of illegitimacy, how could persons and families proceeding from such female, as the root, establish their right to inherit any estate from each other? According to the position assumed, (i. e. if the letter be strictly adhered to,) here is a general act to direct illegitimate descents; and all the issue both lineal and collateral, in the ascending and descending lines, to endless generations, would be capable of inheriting from the 'female,' who is named as the propositus in the law. ”

“ The Virginia act, as explicitly as the Maryland, conferred a mother on the children; and in giving the children the capacity to 'transmit inheritance,' the Virginia act yields all that the Maryland act grants in declaring that the children may inherit from each other: for certainly a collateral descent is a transmission of inheritance. ”

“ Again, by the seventh 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 neighbour's wife, or his negro slave. ”

“ It supposes that the plaintiff desires the Court to punish the incestuous issue of John and Mary Sloan; and contends that the plaintiff is endeavouring to make such issue something more than illegitimate. This is not that for which the plaintiff contends. The purity of the law, which always extends less favour to illegitimate children than to legitimate, was not intended to punish the innocent, but to prevent the illicit commerce of the sexes. The illegitimate children from the incest in this cause, are, it is true, illegitimate. But they are not such as the legislature intended to embrace. ”

“ 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 considering every part of that law with its reference and appendage. When putting a construction upon any statute whatever, the judges will endeavour to save the legislature from absurdity and folly; as it cannot be presumed that men of sound minds would willingly and deliberately stultify themselves. ”

“ According to the principles of the common law, an illegitimate child is filius nullius, and can have no father known to the law. And when the legislature speak, in general terms, of children of that description, without making any exceptions, we are bound to suppose they design to include the whole class. And, as illegitimate children, in a question as to the inheritance or distribution of property, can have no father whom the law will acknowledge as such ”

“ However general, then, the terms of a law may be in favour 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ Our researches, for the better understanding of the matters involved in this duscussion, 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, have a civil code fixed upon her, that her people have ever abhorred ”

“ 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. ”

“ Incestuous marriages have always been regarded with abhorrence by the soundest writers, and the most polished states of antiquity; and an incestuous connection between an uncle and niece has been adjudged, by a great master of public law, a nuisance. ”

“ The next law which has any affinity to that before the Court, is the act to direct descents, 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 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. ”

“ The question for the decision of the Circuit Court, upon these facts was, whether, upon the death of the said John Joseph Sloan, according to the laws and statutes of Maryland, the said tract of land, 'Grassy Cabin,' did not pass by descent to the said Mary Sloan, Jesse Sloan, and David Sloan, his illegitimate sister and brothers as aforesaid. If the Court shall be of opinion that the said tract of land did not so pass by descent, then judgment to be given with costs for the plaintiff. ”