delivered the opinion of the Court. It is admitted by the counsel on both sides, in their argument, with which the opinion of the Court coincides, that Hugh Stephenson, though the meritorious cause of the grant of this land, never took any interest therein, but that the right to the same vested in his son Richard, to whom the warrants issued, as the first purchaser. It is further admitted by the counsel, that the law of descents of Ohio, at the time when Richard Stephenson -died, was not more favourable to the claim of the appellants than that of *256Virginia, which will be hereafter noticed; and' they have', in the argument, rested the cause upon the. construction of the latter law. The opinion of the Court, therefore, is.founded on this-law. . .
The appcientitled to the lands of H. S. as deviseesunder his will, or ^beingnamed tteehir3The appellants object to the decree of the -Court below, upon.the following grounds: 1, That the land: warrants ought to have béea granted to them as the. representatives, of Hugh Stephenson, designated as such by his last will.
2. That by the marriage of their mother with Hugh Stephenson, and his recognition of them as his children, they were legitimated, and entitled to the inheritance in this land as heirs to Richard Stephenson ; if not so, then,
3. That, as bastards, they were capable of inheriting from Richard, who, they contend, was their brother, on the part of the mother.
1, The appellants’ counsel do not contend, that their clients are entitled to this land, as devisees tin* * Tt i a i . i . der the will or Hugh Stephenson ; such a claim o i 7 would be clearly inadmissible, inasmuch as the testator was not only not seised of the land at the time his will was made, but the law which authorized the grant of it, was not even then in existence. But they are understood by the Court, to insist, that the will sp.far operates upon the subject, as to name them the representatives of the testator, and to render xhem. capable, as such, of taking under the act of assembly, which passed after the death of the testator. The act provides, that where any officer, soldier, or sailor, shall have fallen, or died in the service, his heirs or legal representatives shall be entitled to, *257and. receive the same quantity of land as would have been due to such officer, &c. had he been living.”
The appellants not legitimated by the marriage of H. S. with their mother, and his* recognition of them as his elfiP* dren.This claim, is altogether fanciful and. unfounded.: for, in the first place, the appellants were not appointed by the will to be ■ the general representatives of the testator, but the' devisees, together with their mother, of all the testator’s property; and, 2dly, if they had been so appointed, still it could not confer upon them such a. description as to entitle them to take under the act of assembly, unless the act itself described them as the legal representatives of Hugh Stephenson, for whose benefit the grant was intended ; and then, they would • have taken exclusively under the act, by force, of such legislative description, and not under, or in virtue of the description in the will. It is not likely that, the expression, “ legal representatives,” in the act, was meant to apply to devisees of deceased officers and soldiers for whom the bounty was intended, if they had lived, because, at the time this law was passed, there could not be a devisor of those lands under the general law. It is more probable that they Were intended to provide for the case of a person who may have purchased the right of the officer or soldier to such bounty as the legislature might grant to him.
The next question is, whether the appellants were legitimated by the marriage of Hugh Stephenson with their mother, and Iris recognition of them as his children. This question arises under the 19th section of the-act of 1785^ directing the course of descents, which took effect on the 1st of January, 1787. This section declares, that “ where a man, *258having by a woman one or more children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated.”
There can be no doubt but that the section applied to bastards in esse, at the time the law came into operation, as well as to such as might thereafter be bqrn. But it is contended by the counsel for the appellants, that the section is, in every other respect, prospective, not only as to the fact of legitimation, but as to the two circumstances of marriage and recognition, which entitle the bastard to the benefits of the law; and, consequently, that to bring a case within the operation of this section, both the marriage and recognition must take place after the J st of January, 1787. On-the other side, it is admitted, that the privilege of legitimation is not conferred upon a bastard prior to the above period; but it is insisted, that, as to the marriage and recognition, the law should be construed as well retrospectively as prospectively.
In the case of Rice v. Éfford, decided in the Court of Appeals of Virginia,a the marriage took place prior to the 1st of January, 1787, but the father recognized his illegitimate children, and died, after that period. The whole Court seem to have been of opinion, that the word u afterwards” referred not to a time subsequent to the 1st of January, 1787, but to the birth of thé children, and, therefore, that the marriage, though prior to that period, legitimated *259the children before born, if they should be recognized by the father. But, it was stated by Judge Koane, in giving his opinion, that the construction of the act. applies only to cases where the father has died posteriorto the passage of the act.
It is contended by the,counsel for the appellants, that since, in the above case, the father recognized the children subsequent'to the 1st of January, 1787, this opinion of Judge Roane as to the time of the recognition, was unnecessarily advanced, and is, therefore, entitled to no higher respect than what is due to a mere obiter dictum. Be this as it may, it is the uncontradicted opinion of a learned Judge upon the construction of a law of his own State; and is noticed by this Court, not upon the ground of its being considered in that State as of conclusive authority, but because it strongly fortifies the opinion which this Court entertains upon the point decided; which is, that, however the construction may he as to the inception of the right, it is clearly prospective as it relates to the consummation of it. And this prospective operation being given to the act, by requiring the most important condition upon which the privilege of legitimation is to be conferred, to be performed after the law came into operation, it is less material whether the marriage was celebrated before, or after that period. To render the past recognition of the father effectual to give inheritable Blood to his children, who were then illegitimate, and incapable of taking the estate by descent, either from him, or from those to whom it should descend, would in sbipe respects at least, partake of the cha*260racter of a retrospective law. It would seem to be most reasonable so to construe the law, as to enable the father to perceive all the consequences of his recognition at the time he made it.
The appeilants mcapa- “<• ¡nhfStevenson!"R'The 3d question is, are the appellants, as bastards, ■* J L L '• capable of inheriting from Richard Stevenson ?
The 18th section of the law of descents, under which this question arises, is as follows: “ In making title by descent, it shall be no bar to a party that any ancestor through whom he derives his descent from the intestate, is, or hath been, an alien. Bastards also shall be capable of inheriting or of transmitting’inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother.”
In flie construction of this section, it is never to be lost isight of, that'thc appellants are to be considered, as bastards, liable'to all the disabilities to which the common ■ law subjects them, as such, except those froth which the section itself exempts them.' Though illegitimate, they may inherit and transmit'inheritance, on the part of the mother, in like manner as if they had been lawfully begotten of the mother. What is the legal exposition of these expressions ? Wé understand it to be, that they shall have a capacity to take- real property by descent immediately or through their mother iii the ascending line ; and transmit the same to their line as descendants, in like manner as if they were legitimate. This is uniformly the meaning of the expressions, “ on the part of the mother or father,” when used- in reference to the course of dcscentof real property, in the paternal or maternal *261line. As bastards, they were incapable of inheriting the estate of their mother notwithstanding they were the innocent offspring of her incontinence, and were, therefore, in the view of the legislature, and consonant to the feelings of nature, justly entitled to be provided for out of such property as she might leave undisposed of at her death, or which would have vested in her, as. heir to any of her ancestors, had she lived to take as such. The current of inheritable blood was stopt in its passage from, arid through the mother, so as to prevent the descent of the mother’s property and of the property of her ancestors, either to her own illegitimate children, or to their legitimate offspring. The object of the legislature would seem to have been, to remove this impediment to.the transmission of inheritable blood from the bastard in the descending line, and to give him a capacity to inherit in the ascending line, and through his mother. But although her bastard children are, in these respects, quasi legitimate, they are, neverthe - less, in all others bastards, and as such, they have, and can have neither father, brothers, or sisters. They cannot, therefore, inherit from Richard Stephenson, because, in contemplation of law, he is not their brother : and even if he weré their brother, they would not inherit their estate under this section, on the pari of their mother, but directly from Richard, the descent from brother to brother being immediate. Upon no principle, therefore, can this section help the appellant’s case. His estate never vested in the mother. so as for her bastard children to inherit from *262her; nor did it pass through her in the course of de~ scen<; to the bastard children.
Decree affirmed, with costs.
3 Henn, & Munf. 225.
Cooper's Just, Inst, 561. note,
The history of the respective disabilities and rights of illegitimate children, in different ages and nations, is a subject of curious speculation. The most ancient people of whose laws and political institutions we have any accurate knowledge are the Jews. They appear to make little or no distinction between their legitimate and illegitimate offspring. So, also, the Greeks, in the heroic ages, seem to have regarded them as in every respect equal; but at a subsequent epoch they were stigmatized with various marks of unfavourable distinction. Among the Athenians, the offspring of parents who had contracted marriages; which though valid by the law of nations, were contrary to the policy and the positive' institutions of the state, were considered as illegitimate; and all bastards were not only deemed incapable of inheriting from either of their parents, but excluded from public honours and offices, and regarded as aliens to the commonwealth. Thus, the citizen who married a foreign woman at once degraded and denationalized his offspring.11 The severity of this law was however occasionally mitigated from motives of policy ; and when the ranks of the citizens of a Grecian republic became thinned by wars and proscriptions, they were filled up again from this disfranchised class. (Arist. Politic. 1. 3. c. 3. Id. 1. 6. c. 4.)
The Roman law distinguished between the offspring of that concubinage which it tolerated as an inferior species of marriage, and “ the spurious brood of adultery, prostitution, and incest.” (Gibbon’s Decl. <$ Fall, &c. c. 44. s. 1.) The former were termed naturales ; and the latter, spurii, adulterini, incestuosi, nefarii, or sacrilegi, according as they were respectively the fruit of prostitution, of incest between persons in the direct line of consanguinity, or related in remoter degrees, and of the violation of vows of chastity.
Leges Attite, Sam. Petiti, tit. 4. de liberis hgit. nolhis, &c.
*263Ñone of these different classes of illegitimate offspring were stigmatized by civil degradation, or excluded from aspiring to public honours. (CEmires de D’Aguesscau, tom. 7. pp. 384, 385. Dissert, sur les Bastards.) But “ according to the proud maxims of the republic, a legal marriage could only, be contracted by free citizens ; an honourable, at least an ingenuous birth, was required for the spouse of a senator : but the blood of kings could never mingle in legitimate nuptials with- the blood of a Roman ; and the name of Stranger degraded Cleopatra and Berenice to live the concubines of Mark Anthony and Titus.” (Gibbon, ubi supra.) “ A concubine, in the strict sense of the civilians, was a woman of servile or plebeian extraction, the sole and faithful companion of a Roman citizen, who continued in a state of celibacy.. Her modest station, below the honours of a wife, above the infamy of a prostitute, was acknowledge ed and approved by the laws.” (lb.) Thus there were several classes of persons who could not lawfully be concubines, either in respect to the infamy of their characters, ut meretrices ; or in respect to their rank in life, ut ingenues et alustres; or in respect to their condition as married women, or nuns professed, or as within the prohibited degrees of consanguinity. (<Emires de D’Aguesseau, ubi supra.)
Although bastards were not deprived of any civil rights by the Roman law, and “ the outcasts of every family were adopted without reproach as the children of the state,” yet they were excluded in the early ages of the republic from all claim to the property of their deceased parents. As the law of the XII Tables only called to the succession the agnates, or the persons connected by a line of males of the same gens or family; and absolutely disinherited the cognates or relations on the side of the mother, bastards could have no claim to the property of their parents by inheritance : not to that of the father quis ñeque gentem, ñeque familiam habent; nor to that of the mother, because her relations were eñtirely excluded. It seems, how-, ever, that there was no law prohibiting the father from making a provision for his illegitimate children by will, until the time of Constantine, who made some regulations restraining this liberty; Which, however, are involved in such obscurity, that the commen*264tators are not agreed as to their precise nature. J. Godefroy, in bis commentary on the Theodosian- codd, is of the'opinion that ^ese regulations annulled such provision by will in favour of bastards wherever the testator left any legitimate children, or father, mother, brothers, or sisters. (Jac. Godefroy. Com. ad. Cod. Tlieodo. 1. Í. De natural,fdiis.) Be this as it may, it is certain that the Emperor Valentinian,A. D. 371, permitted the bastard children of fathers, who had also legitimate offspring, to acquire either by donation or will, one-twelfth part of the paternal property; and in case the father had no legitimate children, or surviving parents, he might dispose in the same manner of one-fourth of his estate in favour of his illegitimate-children. (Cod. Theodos. 1. 1. De natural, liberis.) Justinian again permitted those who had both legitimate and illegitimate children to give or bequeath one-twelfth part of their property to the latter ; and in-case they had no legitimate children, to make the same disposition of a moiety of their estate. (Novell. 18. c. 5. Pothier Pandect. in Nov. Ordin. Redact, tom. 2. p. 55.) He afterwards permitted them, in case they had no legitimate children, nor father or mother, - “ quibus necessitas est légis relinquere partem propria; substantiae competentem,” to leave the whole of their property to their illegitimate offspring ; and in case their father • or mother survived, the whole, except what the parents were entitled to by law. (Novell. 89. c. 12.) Justinian also established, for the first time in the Roman jurisprudence, the principle of giving to illegitimate children a legaTclaim to a portion of their fiithers’s property- by inheritance ab intestalo, by providing, that in case the father died intestate, leaving .neither wife nor legitimate offspring, his natural children and their mother should be entitled to one-sixth part of his estate. (CEuvresde D'Jlguesseau, tom. 7. 389.) This, however, must be understood strictly of the children born in concubinage, such-as the Roman law recognized this domestic relation ; and not of “ the spurious brood of adultery, prostitution, and incest, to whom, (according to Gibbon,) Justinian reluctantly granted, the necessary aliments of life but from whom it would, in fact, appear that he inhumanly withheld even this provision^ “ Omnia qui ex complexibus aut nefariis aut incestó, aut dam-. *265natis processerit, iste, ñeque naturalis nominatur, ñeque alendiis est a parent ¿bus, ñeque habebit quoddam ad praesentem legem participmm,” (Novell. 89. c. 12. s. 6.) It seems, therefore, that this provision for the necessary support of illegitimate children was confined to those termed naturales, (lb.)
The stern contempt of the early Roman legislators for the female sex had entirely excluded the cognates from the rights of inheritance, “ as strangers and aliens.” This necessarily prevented even legitimate children from succeeding to their mother ; and it is not, therefore, surprising that bastards could claim no part of the maternal estate. When the rigour of this principle was relaxed by the equitable interference of the praator, his edict called indiscriminately to the succession both the legitimate and illegitimate children of the mother- ((jEuvres de D'Aguesseau, tom. 7. p. 391. Pothier. Pandect, in Nov. Ordin. Redact, tom. 2. p.&Nt.) This rule was subsequently confirmed by the Tertullian and Orphitian senatus consulta, and .continued the law of the empire ever afterwards, except that Justinian engrafted into it an exception unfavourable to the illegitimate children of noble women, mulieres ¿Ilustras, (lb.)
The Roman law had provided various modes by which bastards-might be legitimated. 1, The first was by a subsequent marriage of the father and mother; a mode of legitimation first established by Constantine. 2. Per oblationem curiae, a mode introduced by Theodosius and Valentinian, which was when the parent consecrated his child to the service of a city. But this only had the effect of legitimating the children in' regard to their .father. They had no right to inheriifrom collaterals, and even their claim to inherit from their father was Confined to his property within the city to whose service they were devoted. 3. Adoption alone was declared by the emperoF Anastasius to be sufficient to legitimate the natural children of the person, adopting. them. But this law was abolished by Justin and Justinian. 4. By the last will of the father, confirmed by the emperor. But this only applied to cases where he had ni> surviving legitimate children, and had some sufficient reason for not having married the mother of his natural children, 5. Per resériptumprincipie; by a special dispensation from the *266emperor granted upon the petition of the father, who had no legitimate offspring, and whose concubine was dead, or where he had sufficient reasons for not marj-ying her. 6. By the recognition of the father ; as if the father designated one of his-natural children as his child in any public or private instrument ; this had the effect of legitimating the child thus acknowledged, and all his brothers and sisters by the same mother, upon a legal presumption, that a marriage might have been contracted between the parents. In all these cases, except the 2d, the children thus legitimated were in all respects placed upon the same fooling as if born in lawful wedlock. (CEuvres de D’JIguesseau, tom. 7..p. 393. and seq. Potbier, Pandect, in Nov. Ord. Redact, tom. 1. p. 27.)
It should be added, that none of these modes'of legitimation could apply to the offspring of criminal commerce, ex damnato coitu; since they all suppose that the children are born of a concubine with whom the father might lawfully intermarry. (CEuvres de D’JIguesseau, ubi supra.)
By the Roman law if a bastard left legitimate children, thejr became his heirs precisely as if he himself had been .legitimate. But if he died, without having been himself legitimated, and without children, his succession was determined by the rule of reciprocity, and his father and mother, &c. succeeded tp him, precisely as he would have succeeded to them. If he bad been legitimated while liyiag, his succession was regulated in the same manner with that of persons born in lawful wedlock. (Id.p. 399.)
By the Canon law, the subject of bastardy was, in general, regulated in the same manner as by the Civil law. But though bastards were capable by the latter of aspiring to all the honours and offices of the State, the former refused them the same privileges in respect to the dignities of the church. The canonists also aimed to exclude them entirely from the succession of their father or mother, but allowed all indiscriminately a right to claim the necessary aliments of life,' After legitimation in any" of the modes provided by the civil law, such as a. subsequent marriage of the parents,- &c. they regarded them in the same manner as if born in lawful wedlock. (Id. p. 400. *267Gíu¿ seq.) H was this rule which they endeavoured to impose, upon the English barons at the parliament of Merton in the reign of Henry III. (1 BL Com. 456.)
The laws of those European countries which have adopted the Roman law as the basis of their municipal jurisprudence, regulate the rights and disabilities of illegitimate children in the same manner as they are determined by the civil and common law. But the Gothic monarchies of Europe adopted from the earliest times a legislation on this subject, in many respects different from that of imperial and papal Rome. Thus, in all the provinces of France, where the droit coutoumier, or unwritten law, prevailed, bastards were incapable of inheriting ab intestato, except the property of their legitimate children, and the reciprocal right of the husband and wife to succeed to each other according to the title of the civil law, unde vir et uxor. This was the universal law of the kingdom, with the exception of the peculiar customs of a few provinces, and the pays du droit ecrit, where the Roman law constituted the municipal code. (Ferriere. Diet. Mot. Bastard. CEuvres de D’Aguesseaii, tom. 7. pp. 403. 430. 443.)
They were, also, with the exception of certain local customs, incapable of taking by devise from their parents, except des donations moderées pour leur alimens et entretiene. (Ferriere. Diet, ubi supra. CEuvres de D'Aguesseau, tom. 7. p. 431.)
The king was the heir of all bastards dying without legitimate children, or without having disposed of their property by donation inter vivos, or last will and testament, in the same manner as he inherited the estates of aubains, or aliens, dying in the kingdom. (lb.) Of the various modes of legitimation known to the civil law, that of France adopted only 4wo, 1. that by a subsequent marriage of the parents, and 2. by authority of the prince. (CEuvr. de D'Jlguesseau, tom. 7. p. 437. The bastard who was legitimated by the subsequent marriage of his parents, was placed upon the same footing as if born in lawful wedlock, as to personal rights, and those of property ; but he who was legitimated by authority of the prince, par leltre du prince, although capable of aspiring to civil honours and offices, was incapable of inhabiting, or transmitting proper*268ty by inheritance. (Id. p. 462.) Such was the law of France before the revolution ; but it was greatly modified by the compilers of the new civil code, who retained but one mode of legitimation, that by a subsequent marriage and recognition of the parents. (Code-Napoleon, art. 331, 332, 333.) Illegitimate children, legally recognized as such, are entitled, in case their father shall have left legitimate descendants, to one third of the portion to which they would have been entitled had they been legitimate; in case the former shall have left no descendants, but only kindred in the ascending line, or brothers or sisters, to a moiety of the same ; and in case the parents shall have left neither descendants, nor kindred in the ascending line, nor brothers or sisters, to three fourths of the same portion. (Ib. art. 757.) They have a right to the whole of their parents’ property where the latter shall have left no kindred within the degrees of succession, (lb. art. 758.) Their descendants are entitled to the same rights, jure representation's. (Ib. art. 759.) jBut bastards are not entitled in any case to succeed to the relations of their parents ; (Ib. art. 756.) and none of these provisions are applicable to bastards, the fruit of incestuous or adulterous intercourse, who are only entitled to necessary aliments. (Ib. art. 762, 763, 764.) The property of bastards leaving no posterity, is inherited’ by the parents who shall have recognized them. (Ib. art. 765.) And in case the parents are deceased, the property received from them, is inherited by the legitimate brothers and sisters of the bastard; and all his other property by his illegitimate brothers and sisters, or their descendants, (lb. art. 766.}
' By the -law of Scotland, the • king succeeds as ultimiis hieres, to 'the estates of bastards, and they cannot dispose of their property by will, unless to their lawful issue, without letters of legitimation. But these letters do not enable’ the bastard to succeed to'his natural father ¿ to the exclusion of lawful faeirs ; for the,king cannot, by any prerogative, cut off the private right of third parties. But he may, by a special clause in the letters of legitimation, renounce his right to the bastard’s succession, in favour of him who would have been the bastard’s heir bad he been born in lawful marriage, as such renunciation ftoes *269not encroach upon the rights of third parties. (Ershine's hist. B. 3. tit. 10. s.-3.) A bastard- is not only excluded, 1. From his father’s succession, because the law knows no father who is apt marked Out by lawful marriage ; and, 2. From all heritable succession, whether by the father -or mother ; because he cannot be pronounced lawful heir by tbe inquest, in terms of the "brief; but, also, 3. From tbe moveable succession of his mother ; for, though the mother be known, the bastard is not her lawful child, and legitimacy is implied in all succession deferred by law. But though he cannot succeed jure sanguinis, he may succeed by destination, where he is specially called to the succession -by an entail or testament. (Ib. s. 4.)
The laws of England respecting illegitimate children, are too well known to render any particular account of them necessary in this place. Vide 1 Bl. Comm. 454. et seq. Co. Litt. by Hargr. & Butler, 3 b. note 1. Id. 123. a. note 8. Id. 123. b. note 1, '2. Id. 243. b. note "2. Id. 244. a. note 1, 2. Id. 244-. b. note 1.