
    *Watkins and Wife v. Carlton.
    January, 1840,
    Richmond.
    (Absent Bhookb and Pakkeb. J.)
    Issue Out of Chancery — Certificate of Verdict — What Constitutes. — Upon a trial at law of issues out of chancery, exceptions are filed to opinions of the court, and made part of the record; the court of law certifies the verdict, but it does not expressly certify, nor is it asked to certify, the exceptions: Held, all the proceedings upon the trial of the issues. spread upon the record thereof, constitute part of the certificate of the verdict, and with it become part of the chancery record.
    Same — Improperly Ordered — Appellate Practice. — A court of chancery directs issues of fact to be tried at law, without evidence regularly taken before the court, touching the facts to which the issues relate; hut there was evidence, which, if regular, would have rendered the order for the issues proper: Held, that if the appellate court should set aside the issues, for being, in the actual state of the case, improperly ordered, it should, under such circumstances, remand the canse to the court of chancery, where the evidence may he regularly taken, and thereupon the issues ordered anew.
    Infants — Legitimacy—Evidence.—j. C. and S. his wife being both white persons, a child is horn of the wife during their wedlock and cohabitation; upon the trial of an issue, whether this child is the legitimate child of the husband, evidence that the child is a mulatto, and that in the course of nature a white man and white woman cannot procreate a mulatto, is admissible and proper.
    John Carlton late of the county of King & Queen, some three or four years before his death, made and published his last will and testament, whereby he devised and bequeathed his whole estate, real and personal, to his two children Mary and Thomas Carlton. For his wife, Sarah Carlton, he made no provision whatever ; nor did he make any provision for, or any mention of, a child of which his wife was then enseint, born about six months after the making of his will, and while the husband and wife were cohabiting, who was called William ; this after-born child was pretermitted *in the will. The testator afterwards became a lunatic, and died in that state.
    After his death, dower of his land was assigned to the widow, and one third of his slaves to hold for her life, under an order of the county court of King & Queen. And, afterwards, by a decree of the same county court in chancery, the testator’s land, including that assigned to the widow for dower, was divided into three parts, and one third part, subject to the widow’s dower, was assigned to his daughter Mary, who was now the wife of William Watkins, and another third part, likewise subject to the dower,' to his son Thomas Carlton ; and the testator’s slaves, except those assigned to the widow for life, were likewise divided into three parts, and one third assigned to his daughter Mary, and another third to his son Thomas. The county court ordered the other third part of the land and slaves to be rented and hired out; and this third part was the subject of the present controversy.
    In 1829, William Watkins and Mary his wife exhibited their bill in the superior court of chancery of Richmond, against Harris Carlton administrator with the will annexed of the testator John Carlton, Sarah Carlton his widow, Thomas Carlton his son, and the child William born of his wife after the making of his will (Thomas and William being then both infants) ; wherein, after setting forth'the facts above stated,-and exhibiting the proceedings of the county court of King & Queen for the division of the testator’s estate, they-alleged, that theafterborn child William was in fact a mulatto ; that the testator John Carlton and his wife were both white persons,. and, in the course of nature, the husband could not be the father of the mulatto child ; that, therefore, that child, though born in wedlock and while, the husband and wife were cohabiting, was illegitimate, and consequently was not entitled to any part of the testator’s estate. And the bill prayed, *that the child William should be declared illegitimate, and that the third .part of the testator’s land and slaves, which had been reserved by the decree of the county court as before mentioned, should be decreed to, and divided between, the defendant Mary and her brother Thomas.
    A guardian ad litem was appointed for the infant defendants Thomas and William, who put in answers for them. The answer of Thomas merely insisted on his legal rights, and submitted them to the judgment of the court. The answer put in for William, stated, that as, according to the plaintiffs’ own shewing in their bill, he was born in lawful wedlock of John Carlton and Sarah his wife, he was therefore, in presumption of law, the legitimate child of the said John, and he submitted to the court whether he could now be declared illegitimate, and prayed the court to protect his rights. The defendant Harris Carlton answered, that one third part of his testator John Carlton’s estate had been reserved by the county court of King & Queen for the defendant William, or until it should be judicially decided whether he was entitled thereto or not; and that the complexion of the defendant William was such as to cast a cloud of suspicion on his legitimacy. As to the defendant Sarah Carlton, the bill was taken pro confesso.
    Several depositions were taken and filed, upon the question of fact, whether the child William appeared by his features, hair and complexion, to be a mulatto ; but these depositions were taken without notice to his guardian ad litem. There was, however, no exception taken to them for want of notice, and they were read at the hearing.
    The chancellor, upon the hearing, ordered that issues be made up and tried at the bar of the circuit court of King & Queen, to try and ascertain, by the verdict of a jury, whether John Carlton deceased was *or was not a white man ? whether the infant defendant William was the child of a black or of a white father ? and whether the said William was in fact the lawfully begotten child of the said John Carlton deceased, who was in his lifetime the husband of Sarah Carlton, the mother of the said infant defendant ? And that the verdict thereupon be certified to the court of chancery. The chancellor added, that he confided to the circuit court, to assign counsel for the infant defendant William, and cause him to be produced before the jury, if to that court it should seem proper, and, in general, to take care that his rights should be defended and protected.
    The cause was subsequently transferred to the circuit superior court of King & Queen, on the law side of which, under the order of the chancellor, the issues to be tried were pending.
    In the sequel of the proceedings, there were several depositions regularly taken and filed, on both sides, touching the question whether the defendant William Carlton was of mixed race or not.
    The circuit superior court of King & Queen appointed another guardian ad litem to defend him ; and, upon his motion, made an order “ to change the venue in the cause to the circuit superior court of Essex but this
    order did not appear in the record of the proceedings in the former court, but only in that of the proceedings in the latter. For, through some inadvertence, or mistake (as it seemed) of the import of the order “to change the venue,” instead of sending the issues only to the circuit superior court of Essex, to be tried on the law side thereof, the cause itself was transferred to that court, and thenceforth proceeded in there, on its chancery side. And the proceedings in the two courts of King & Queen and of Essex, and after the transfer of the cause to the court of Essex, the proceedings on the law side in . the trial of the issue, and the proceedings *on the chancery side, were irregularly blended and confused.
    Upon the trial of the issues, the plaintiffs filed two bills of exception to opinions of the court. I. The first stated, that evidence was introduced on the part of the defendant William, to prove, the marriage of John and Sarah Carlton, and that he was born of Sarah during the lawful wedlock of John and Sarah, and at a time when by the laws of nature the husband might have been his father; and then, the plaintiffs offered evidence to prove the defendant William’s illegitimacy, by proving that he was a mulatto, and that his mother Sarah and her husband John Carlton were both white persons : whereupon, the counsel for the defendant William objected, and moved the court to exclude such evidence to prove his illegitimacy, unless the plaintiffs should first adduce evidence to prove, either that John Carlton was physically incompetent to beget a child, or that he had no sexual intercourse with his wife, at any time when by the laws of nature he might have been the father of the defendant; and further moved the court to instruct the jury, that if they should find from the whole evidence, that the defendant was born of Sarah the wife, during the lawful wedlock of her husband John and her, at a time when by the laws of nature he might have been the father of the defendant, and that the husband and wife had not been separated by sentence of divorce, but cohabited and had opportunities of sexual intercourse, the jury ought to presume that the defendant was their legitimate son, and find accordingly, unless they should also find from the evidence, that no sexual intercourse did in fact take place between the husband and wife, at any time when, by such intercourse, the husband could by the laws of nature be the father of the defendant. The court sustained the objection to the introduction of the evidence offered by the plaintiffs, and gave the instruction to the *iury asked for the defendant. The plaintiffs excepted. II. The plaintiffs then offered to prove, by the testimony of a physician of eminence in his profession, that there was no time at which such sexual intercourse could take place between a white man and a white woman, that the white man could, according to the laws of nature, be the father of a mulatto child born of the white woman. The defendant’s counsel moved the court to exclude this evidence; the court excluded it ; and the plaintiffs e'xcepted.
    The jury found a verdict in these words: “We of the jury find, that John Carlton of King & Queen, and Sarah Carlton his wife, in the issues mentioned, were white persons ; that the defendant William Carlton was born during wedlock of the said John and Sarah; and that, according to law and the evidence introduced, the defendant William Carlton is the legitimate child of the said John Carlton and Sarah his wife.” And the court ordered the verdict (not the whole proceedings on the trial of the issues on its law side) to be certified to the circuit superior court of Essex on its chancery side.
    The verdict being certified accordingly, the proceedings were resumed on the chancery side of the court, The plaintiffs moved the court to set aside the verdict, and to direct a new trial of the issues ; because the verdict was not responsive to the issues directed to be tried, nor did the finding of the jury, under the instructions of the court of law, in any manner serve to enlighten .the conscience of the court of chancery, on the question of fact directed to be enquired into upon the issues ; and because of misdirection of the court of law to the jury at the trial of the issues. The court overruled the motion ; and then proceeded to order the proper accounts, and, finally, to decree to the defendant William Carlton, an equal third part of the testator John Carlton’s estate.
    *This court, on the petition of plaintiffs Watkins and wife, allowed them an appeal from the decree.
    Reigh, for the appellants,
    remarked that the proceedings were wholly irregular. It did not appear by the record of the proceedings in the circuit superior court of King & Queen, that the cause had been transferred to that of Essex, or even that the venue for the trial of the issues had been changed to the latter court. The change of the venue only appeared by the record of the proceedings in Essex ; from which it also appeared, that the order for the change of the venue had been acted upon, not only as an order for that purpose, but as an order for the removal of the cause itself from one court to the other. Strictly speaking, all the proceedings in Essex were coram'non judice. But he waived all objections to these irregularities ; and asked the court to decide at once the questions that arose upon the merits. He said, the verdict of the jury did not respond to the second question propounded in the order for the issues ; namely, whether the defendant William was the child of a black or of a white father ? which, as the husband of his mother, and his mother, were both white persons, was the material point on which the question of his legitimacy depended. And the verdict evaded the third question put in issue: it did not find that he was in fact legitimate, but that, according to law and the evidence introduced, he was the legitimate child of John Carlton and Sarah his wife. The jury took the law as the court expounded it, and heard only the evidence which the Court admitted, having excluded the most material. Taking the two bills of exception together, the circuit court was of opinion, 1st, that a white husband cohabiting with a white wife, and having access to her, "might, in the coürse of nature, procreate a mulatto child upon her body, and therefore, if a white husband cohabited with a white *wife, and had access to her, a mulatto child born of the wife during wedlock and cohabitation, was in presumption of law legitimate ; and 2ndly, that this presumption was so strong, that the law would not admit evidence to prove, that white parents could not, in the course of nature, procreate a mulatto child. Now, he said, that as there never had been an instance known, in countries where there was only one race, either white or negro, of a white man and woman, or a negro man and woman, procreating a child that exhibited the distinct marks peculiar to the mixed race, it might be affirmed, with certainty, that, in the course of nature, neither a white man and white woman, nor a negro man and negro woman, could produce such a child ; and that in countries in which both races existed, if the white wife of a white man brought forth a mulatto child, that child was. begotten by a negro man in illicit intercourse with her. There could be no question, but one of fact, whether the child was a mulatto or not. The white and the negro races were distinguished by natural marks not to be mistaken. And the mulatto bore on his face distinct and certain indications of his mixed parentage : the hair, the complexion, the features, all betrayed the truth. He admitted the general presumption of the law, that children born in wedlock were legitimate ; but he said, this presumption, however strong, yielded to clear proof of the impotency of the husband, or that he had no access, no possibility of access, to the wife, at the time the child born of her must have been procreated. The king v. Buffe, 8 East 193; Stegall v. Stegall, 2 Brock. Rep. 256. Proof of impotency of the husband, or of nonaccess to the wife, were sufficient to bastardize the issue, because such facts shewed the natural impossibility that the husband should be the father ; and any other matter which proved the same impossibility, was equally sufficient to bastardize the issue. A husband who had no access *to his wife, could not possibly procreate a child on her body : a white man who had access to a white wife, nay continual intercourse with her, could not possibly beget a mulatto child of her.
    R. T. Daniel, for the appellee,
    insisted, 1. that the chancellor ought not to have directed the issues. There was no legal evidence whatever before him to raise even a suspicion, that the unfortunate child, whose legitimacy was questioned, was a mulatto ; for the depositions on the subject had been taken without notice to his guardian. 2. He contended, that the questions presented by the bills of exceptions to the opinions of the judge at the trial of the issues, could not how be examined by this court. The circuit superior court of Essex, having tried the issues on its law side, ordered the verdict only to be certified to the court on its chancery side. It did not certify the bills of exceptions, or any other part of the proceedings on the trial of the issues at law ; nor was any application made to the court to certify them. Nothing but the verdict was before the court of chancery, and nothing else could be brought before this court, by this appeal from the decree of the court of chancery. 3. Supposing the bills of exceptions regularly before the court, he said the question was, whether the judge was right in holding, that the legal presumption of legitimacy arising from the birth of the child in wedlock, born and begotten during actual cohabitation of the husband and wife, could not be rebutted by evidence tha,t the child was a mulatto ? Nothing could be more vague and uncertain than such evidence. There was great variety in the hair, complexion and features, of persons of unmixed race, and yet greater variety in persons of mixed race, according as. one or the other parent predominated in the procreation, and according to the proportions of white and of negro blood of their parents. The statute of Virginia declared, that “ every person other than a negro, of “whose grandfathers or grandmothers ■ any one is or shall have been a negro, although all his other progenitors except that descending from the negro shall have been white persons, shall be deemed a mulatto ; and so every such person who shall have one fourth part or more of negro blood shall in like manner be deemed a mulatto.” 1 Rev. Code, ch. Ill, § 11, p. 423. Now, he said, it would be very difficult, hardly possible, to distinguish with certainty a mulatto having only one fourth part of negro blood from a white person. The difficulty, the uncertainty, attending the proof of a person being white or mulatto, were strongly exemplified in the present case ; it was always matter of opinion, founded on inspection ; and it appeared from the dispositions in this cause, that while some of the witnesses thought the defendant William a mulatto, others thought him a white person. The court, then, ought not to suffer any person to be bastardized, deprived of his status and of his inheritance, or put in jeopardy of losing both, by the admission of evidence in its own. nature so uncertain. As to the physical impossibility of a white man and white woman procreating a mulatto child ; if by mulatto was meant a person whose parents were undoubtedly of different races, the impossibility must be admitted ; indeed, it was a truism : but the true question was, whether a white man and woman could, in the course of nature, procreate a child which had the appearance of a mulatto ? And whatever opinions philosophers, speculating on the natural history of the human race, might entertain, it was the general opinion of mankind, that impressions made on the mother at the time of conception, or during pregnancy, often produced effects on the physical constitution, and much more on the appearance, of her offspring. And the effect of such impressions might be that a child procreated by white parents might have the appearance of a mulatto. He urged, very strenuously, that the policy of the law required *the court to cut off all such enquiries as those which the plaintiffs sought to introduce upon the trial of the issues in this case. And for this proposition, he quoted and relied upon the language of judge Roane, delivering the opinion of this court in Bowles v. Bingham : “ With respect to procreations during marriage, the presumption is, that all persons born during marriage are legitimate. This presumption can be destroyed only by contrary proof, demonstrating that the child is not the child of the husband; which, again, can only be by shewing that, from his continued absence from his wife, or about the time of procreation, or from the impotency of his body, it is impossible that he should be the father.”.— “It is not, therefore, a mere circumstance of probability that will operate to bastardize the issue. Such issue will be held to be legitimate, unless it be conclusively shewn that a person other than the husband must necessarily and unavoidably have been the father.” — “ Our law wisely throws a veil over acts of incontinency in such cases, and certainly will not, without necessity, and in a spirit of departure from the wise rule of public economy before mentioned, inundate our court with indecent enquiries, whether this or thatman, whether the husband or another, committed any given act of immorality or fornication.” — “ It is even better, that a particular grievance should exist, than a scene of this sort be opened, without necessity, in a country in which public decorum is a part of the law, to contaminate and destroy the morals and peace of our country.” 3 Munf. 601, 2, 3. This reasoning, he insisted, was peculiarly applicable to the case now before the court ; and it was, without doubt, the ground of the opinions given by the judge of the circuit superior court at the trial of the issues.
    Leigh replied,
    1. That if there had been no parol evidence at all before the chancellor, to warrant the belief that the defendant William was a mulatto, there was enough to shew the propriety, and indeed the necessity, *of directing the issues, and that even for the defendant’s own sake. For, the county court of King & Queen had forborne to give him a share of the testator John Carlton’s estate, and held it in reserve till the doubt as to his legitimacy should be decided. Besides, if upon the state of the evidence at the time the chancellor directed the issues, there might have been a doubt as to the propriety of directing such issues to be tried, the evidence taken with perfect regularity and filed in the sequel of the proceedings, shewed that the issues ought now to be directed; and if the court should set aside the former issues, it would only direct new ones to the same purpose. 2. He said, all the proceedings upon the trial of issues out of chancery, were part of the proceedings of the suit in chancery ; and, in our practice, the court of law before which the issues were tried, only certified the verdict to the court of chancery ; and that carried with it all the proceedings belonging to the verdict; the docketing of the issues, the impaneling of the jury, the points ruled by the court at the trial, in short, every thing regularly made part of the record thereof, as well as the verdict itself. 3. He said, the question on the merits was not whether the evidence offered might or might not be sufficient to establish the facts it was offered to prove ? (which was a question for the jury) but whether any evidence, however clear, certain and conclusive, that the person in question was a mulatto, and that .white parents could not in the course of nature procreate a mulatto child, was admissible? Whether, in short, the court below did right in cutting off all en-quiry into the facts which the jury was sworn to try ?
    
      
      Issue Out of Chancery — Certificate of Verdict — What Constitutes. — In Lamberts v. Cooper, 29 Gratt. 64. the court, in speaking- of the principal case, said; “That case does not. however, decide that a bill of exceptions is not necessary upon the trial of an issue out of chancery. It merely decides that when exceptions are filed to opinions of the court and made a part of the record, and the court of law certifies the verdict, although it does not expressly certify the exceptions, yet all the proceedings upon the trial of the issues spread upon the record thereof, constitute part of the certificate of the ver-diet, and with it becomes part of the chancery record.”
      And, to the point that, upon all trials at law of issues out of chancery, all the proceedings upon the trial of the issues as spread upon the record thereof, constitute part of the certificate of the verdict, and with it becomes part of the chancery record, the principal case was cited in Henry v. Davis, 7 W. Va. 716. See further, monographic note on “Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473.
      Same — New Trial — Rale Governing. — Although errors may have been committed by the law court in the trial of an issue out of chancery, in admitting or rej ecting evidence, or in giving or refusing instructions, yet if the chancellor is of opinion that the verdict was unaffected by such errors, oris satisfied upon a consideration on the whole case that the result ought not to have been different, had there been no error in the trial of the issue, he may refuse to order a new trial and enter a decree in accordance with the finding of the jury. Repass v. Richmond, 99 Va. 516, 39 S. E. Rep. 160, citing the principal case; Brockenbrough v. Spindle, 17 Gratt. 28; Powell v. Manson, 22 Gratt. 192, and Miller v. wills, 95 Va. 337, 28 S. E. Rep. 337.
      A motion for a new trial of an issue out of chancery must be made to the court of chancery. Reed v. Axtell, 84 Va. 236, 4 S. E. Rep. 587, citing the principal case, Brockenbrough v. Spindle, 17 Gratt. 21, and Watt v. Starke, 101 U. S. 247, 25 Law Ed. 826.
    
    
      
      lnfants — Legitimacy — Evidence. — See mono-graphic note on “Parent and Child” appended to Armstrong v. Stone, 9 Gratt. 102.
    
   TUCKER, P.

Preliminary to any enquiry into the merits of this case, it is necessary to ascertain what is to be considered as constituting the record. And upon this point, I shall observe, that I take the whole proceedings *in the court of law, upon an issue directed out of chancery for the purpose of ascertaining a particular fact, to be part and parcel of the chancery cause. The court of law is but ancillary to the court of chancery : it has no jurisdiction in such case, except that which is derived from the chancellor’s order: it must pursue his directions, admitting papers to be read which he orders to be read ; and, if required, it must certify any instructions which are given to the jury, that the chancellor may decide whether they were rightly given or not: finally, it can give no judgment upon the verdict, but must certify it to the court of chancery to avail there as it may. Such being the case, the chancellor has a right to see the whole proceedings, and though to save costs the verdict only is certified, yet, in strictness, the whole record should be so. But were it otherwise, still the order to certify the verdict, necessarily implies, that every thing should be certified which was spread upon the record as part of the proceedings at the trial. The exceptions, therefore, ought to have been so certified ; and, doubtless, they were so, since a motion was expressly made and entertained for a new trial of the issues, on the ground of misdirection set forth in those exceptions. In this case, indeed, unless we look to the law record, the whole proceeding appears irregular. The bill was filed in the court of chancery of Richmond, and the issue was directed by it, to be tried in the circuit court of King & Queen. Afterwards, the whole cause was removed to King & Queen. There it depended for several years, when, all at once, the case makes its appearance in Essex, without any order appearing by which it was sent thither, unless we look into the law record. There, indeed, we see the order sending it to Essex for the trial of the issue ; but in the chancery record, no warrant for the action of that court appears. If the law record were rejected, the court of Essex "’''would be found trying an issue without authority, and pronouncing a final decree upon it without jurisdiction. I do not, however, rest upon this necessity which the appellee is under to admit the law record. I go upon the broad groqnd, that upon the trial of an issue out of chancery to enlighten the conscience of the chancellor, the whole of the proceedings at the trial, so far as they are spread upon the record, properly constitute a part of the certificate of the verdict, and of course become a part of the chancery record.

It is next necessary to consider, whether, as the depositions of the witnesses taken before the issue was directed, were taken without due notice to a guardian of William Carlton, the chancellor was justified in directing the issue, arid if not, what will be the consequence here. The depositions in question were proper evidence as to the other parties, and they were certainly read upon the hearing as to them. Suppose them to have been irregular as to William; ought the chancellor to have dismissed the bill ? or to have suppressed the depositions as to him, and given reasonable time to retake them ? The latter, assuredly. But the court did not suppress them : it read them : it treated them as good, either because there was no exception to them at that time, or because the exception was deemed invalid. It recognized the proof as sufficient ; and this court sees, that there was evidence, however irregular, that was all important. We ought, then, at most, to do what the court below should have done; suppress the depositions, and send the cause back, to give the- parties an opportunity of retaking them. This is in the spirit of the cases of Duff v. Duff’s ex’ors, 3 Leigh 523 ; Cropper v. Burtons, 5 Leigh 426; Miller v. Argyle’s ex’or, Id. 460 ; Sitlingtons v. Brown & al., 7 Leigh 271. In this case, however, it will only be necessary to send the cause back for a new trial, as the record is now replete with evidence of the necessity of an issue.

*The only proper question in the cause is, whether there should be a new trial of the issues ? I think there ought to be, both because they áre not in all things responded to by the verdict, and because they were found under a misdirection of the judge.

In the first place, there were three en-quiries directed : 1. Whether John Carlton was a white man ? 2. Whether William was the child of a black or a white father ? 3. Whethor he was the lawfully begotten son of John Carlton ? To the second of these enquiries, there is no response. The jury answer only the first, distinctly ; the second they answer not at ail; the third they evade. They find, that William was born in wedlock, and that, according to law and the evidence introduced, he was the legitimate child of John and Sarah Carlton. But it does not follow, that he was the lawfully begotten son of John Carlton ; since, if born in wedlock without impossibility of being so begotten, he would “according to law” be held to be his legitimate child, though he may have been actually begotten by another. The verdict, then, not being responsive to the issues, should have been set aside; and the rather, as the most important enquiry is not answered by the verdict, namely, whether he was the child of a black or white father ?

2dly, The instructions of the court were, I conceive, manifestly erroneous. The court refused to admit evidence to prove that the defendant William was a' mulatto, and that his mother and her husband John Carlton were both white ; and refused also to admit the evidence of a scientific physician to prove, that there was no time at which sexual intercourse could take place between a Whiteman and a white woman, that the white man could, according to the laws of nature, be the father of a mulatto child born of the white woman. In these opinions, it is implied, that the procreation of a mulatto child by a white man upon the body of a *white woman, is either not impossible, or at least not such an impossibility as the law will recognize as fixing the stamp of illegitimacy. To such opinions I cannot accede. If it fell within my province, I should say at once it was impossible. But perhaps it belongs to the jury to decide that matter upon the evidence of experts. This, however, was refused, evidently upon the ground, that even if impossible, it was not such an impossibility as would prove the child a bastard, provided he was born in wedlock. I do not so understand the law. It is not this or that particular impossibility that bastardizes the child. The essence of the rule is, that if it be impossible that the husband can be the father, the child is a bastard. The cases of the husband being beyond sea, imprisoned, impotent, and the like, are but instances of the application of the rule. Even nonaccess, if proved, though the parties are in the same kingdom, will suffice. How, then, if the impossibility rests upon the laws of nature itself ? Shall it be less regarded? Shall the white child of a white couple be bastardized, upon questionable proof that the husband was rendered impotent by disease; and shall we legitimate a negro because he was born in wedlock ? The learned judges give no countenance to such opinions. In the case of The king v. Luffe, lord Ellenborough said, “Circumstances which shew a natural impossibility that the husband could be the father of the child of which the wife is delivered, whether arising from his being under the age of puberty, or from his labouring under disability occasioned by natural infirmity, or from the. length of time elapsed since his death, are grounds on which the illegitimacy of the child may be founded.” He does not say they are the only grounds. The principle is that if the procreation by the husband be impossible, the child is illegitimate. Accordingly, in the case of Bowles v. Bingham, judge Roane observes, “that the issue born during wedlock will be held to be legitimate, ^unless it be conclusively shewn that a person other than the husband must necessarily and unavoidably have been the father.” Now, to my mind, this is conclusively shewn, when the married couple are white and the child mulatto. But admit, that this is a physiological question, most proper for the jury upon the evidence of professional and scientific men, still the court of law erred in rejecting all testimony on that important point.

*1 am of opinion to reverse the decree, and direct a new trial of the issues ; upon which, evidence that William Carlton is a mulatto, and evidence also of professional men that, according- to the course of nature, a mulatto child cannot be the offspring of two white persons, shall be admitted, if offered. And on such trial, the instructions given on the former trial are not to be repeated.

CABELE and STANARD, J., concurred. Decree reversed, and cause remanded, with directions to order a new trial of the issues &c. 
      
      Note by the president. I rest my opinions on this matter on grounds that seem to me to be altogether-impregnable. 1. I take it, that what is against the uniform course of nature is impossible. It cannot be denied, indeed, that there are sometimes anomalies in nature, which it is beyond our ken to account for. Thus, until the birth of the Siamese twins, no physiologist would probably have admitted the possibility of such a lusus naturae. But where the fact in cuestión can be accounted for without supposing a deviation of nature from her ordinary laws, philosophy dictates the rejection of a theory in conflict with universal experience. Thus a white couple cannot (according to the common course of things, at least) have a black child. If, therefore, the wife, resident where a black man may have access to her, has a mulatto child, it would be more philosophical to suppose it to be the child of the black, than to imagine such a deviation from the general law of nature, that a white couple cannot procreate a child of the black race. The first supposition has nothing highly improbable about it; while the last, if it be possible at all, is so remotely possible, that it could only be true upon the notion that the child was a lusus natura;. 2. I take it that what is (as far as human observation goes) the uniform course of nature, we must call a law of nature. Man can only know the laws of nature by experience; by the uniform course of natural events. It is by this means he knows, that the progeny of the horse will be a horse, if the female be of the same species, and the offspring of man will be a human being. Nec imbellem feroces progenerant aquila; columbam. If then the progeny of the white race be uniformly distinct from that of the black, it maybe said to be a law of nature, that a white couple cannot produce a negro or mulatto child. For no experience is more universal than that a white couple always produces white offspring, and never black or mulatto. Among the hundred millions of whites in Europe, there is no authenticated instance of the produce of the white race being other than white, where there was no possibility of access between a black and white. It is only in a country where there are blacks, that this fancied lusus naturae is found; and it is, therefore, more reasonable to believe that a mulatto child is the offspring of a meretricious connexion, than to suppose the existence of a miraculous conception and birth, of which the natural history of our species affords no well authenticated instance. Accordingly, we find that intelligent and scientific men have considered it impossible that a black or mulatto child, born of awhile mother, should he the child of a white man. 1 Beck’s Med. Jurispr. 807, citing 1 Edinb. Med. & Snrg. Journal 335. and citing also the case of Alexander whistelo, decided against the opinions of dr. Mitchell, whose learning and extensive research, however, did not avail him to discover, in the history of our species, a single incontestable instance of such a monstrous birth as a black child irom parents that were white. Science and philosophy, busied from the time of Aristotle and Pliny to the present day, in recording whatever is curious and remarkable in natural history, have handed down to us, itis believed, not a single case of the kind. On the contrary, it is the settled and established understanding among the intelligent, wherever the black and white races are found together, that the mulatto is the product of the sexual intercourse of the two races. This understanding is the result of general and uniform experience; and-from that uniformity, we deduce, as a law of nature and of our species, that a male and female of one of the races never can produce an offspring of the other.
     