The Presumption of Paternity Lives!
Posted on April 16, 2018
Lawyers who love Shakespeare read him differently than other readers. We are always on the lookout for the legal nuggets. There is a small genre of “Shakespeare the lawyer” or “Shakespeare and the law” stuff out there. Some books collect the legal nuggets, sometimes with commentary. Others wonder whether Shakespeare himself was a lawyer. A Vermont lawyer named John Senter gave a speech on that topic at a 1903 annual meeting of the Vermont Bar Association. With apologies to the Boston Bar Association, which is of course the greatest bar association, I have to say that bar association annual meetings were more interesting a hundred years ago.
King John is not at anyone’s list of the greatest Shakespeare plays or even the greatest of his histories, but it does have one of my favorite legal scenes. Two brothers, or as it turns out half-brothers, approach the king with a dispute over their inheritance from their father, Robert Faulconbridge. To set the scene, John and his mother, Eleanor of Aquitaine, are together in the palace with the Earl of Essex discussing impending war with France when a sheriff arrives with two brothers, Robert and Philip Faulconbridge. Remember that John (Nigel Terry) is the younger son of Eleanor (Katherine Hepburn) and Henry II (Peter O’Toole). He became king after his brother, the much nobler and better-loved Richard, Coeur de Lion (Anthony Hopkins). In the script, Philip is called “THE BASTARD,” which gives away the story, but what can you do.
My liege, here is the strangest controversy
Come from country to be judged by you,
That e’er I heard: shall I produce the men?
Let them approach.
Our abbeys and our priories shall pay
This expedition’s charge.
Enter ROBERT and the BASTARD
What men are you?
Your faithful subject I, a gentleman
Born in Northamptonshire and eldest son,
As I suppose, to Robert Faulconbridge,
A soldier, by the honour-giving hand
Of Coeur-de-lion knighted in the field.
What art thou?
The son and heir to that same Faulconbridge.
Is that the elder, and art thou the heir?
You came not of one mother then, it seems.
Most certain of one mother, mighty king;
That is well known; and, as I think, one father:
But for the certain knowledge of that truth
I put you o’er to heaven and to my mother:
Of that I doubt, as all men’s children may.
Out on thee, rude man! thou dost shame thy mother
And wound her honour with this diffidence.
I, madam? no, I have no reason for it;
That is my brother’s plea and none of mine;
The which if he can prove, a’ pops me out
At least from fair five hundred pound a year:
Heaven guard my mother’s honour and my land!
A good blunt fellow. Why, being younger born,
Doth he lay claim to thine inheritance?
I know not why, except to get the land.
But once he slander’d me with bastardy:
But whether I be as true begot or no,
That still I lay upon my mother’s head,
But that I am as well begot, my liege,–
Fair fall the bones that took the pains for me!–
Compare our faces and be judge yourself.
If old sir Robert did beget us both
And were our father and this son like him,
O old sir Robert, father, on my knee
I give heaven thanks I was not like to thee!
Why, what a madcap hath heaven lent us here!
He hath a trick of Coeur-de-lion’s face;
The accent of his tongue affecteth him.
Do you not read some tokens of my son
In the large composition of this man?
Mine eye hath well examined his parts
And finds them perfect Richard. Sirrah, speak,
What doth move you to claim your brother’s land?
Because he hath a half-face, like my father.
With half that face would he have all my land:
A half-faced groat five hundred pound a year!
My gracious liege, when that my father lived,
Your brother did employ my father much,–
Well, sir, by this you cannot get my land:
Your tale must be how he employ’d my mother.
And once dispatch’d him in an embassy
To Germany, there with the emperor
To treat of high affairs touching that time.
The advantage of his absence took the king
And in the mean time sojourn’d at my father’s;
Where how he did prevail I shame to speak,
But truth is truth: large lengths of seas and shores
Between my father and my mother lay,
As I have heard my father speak himself,
When this same lusty gentleman was got.
Upon his death-bed he by will bequeath’d
His lands to me, and took it on his death
That this my mother’s son was none of his;
And if he were, he came into the world
Full fourteen weeks before the course of time.
Then, good my liege, let me have what is mine,
My father’s land, as was my father’s will.
Sirrah, your brother is legitimate;
Your father’s wife did after wedlock bear him,
And if she did play false, the fault was hers;
Which fault lies on the hazards of all husbands
That marry wives. Tell me, how if my brother,
Who, as you say, took pains to get this son,
Had of your father claim’d this son for his?
In sooth, good friend, your father might have kept
This calf bred from his cow from all the world;
In sooth he might; then, if he were my brother’s,
My brother might not claim him; nor your father,
Being none of his, refuse him: this concludes;
My mother’s son did get your father’s heir;
Your father’s heir must have your father’s land.
Shall then my father’s will be of no force
To dispossess that child which is not his?
Of no more force to dispossess me, sir,
Than was his will to get me, as I think.
Whether hadst thou rather be a Faulconbridge
And like thy brother, to enjoy thy land,
Or the reputed son of Coeur-de-lion,
Lord of thy presence and no land beside?
Madam, an if my brother had my shape,
And I had his, sir Robert’s his, like him;
And if my legs were two such riding-rods,
My arms such eel-skins stuff’d, my face so thin
That in mine ear I durst not stick a rose
Lest men should say ‘Look, where three-farthings goes!’
And, to his shape, were heir to all this land,
Would I might never stir from off this place,
I would give it every foot to have this face;
I would not be sir Nob in any case.
I like thee well: wilt thou forsake thy fortune,
Bequeath thy land to him and follow me?
I am a soldier and now bound to France.
Brother, take you my land, I’ll take my chance.
Your face hath got five hundred pound a year,
Yet sell your face for five pence and ’tis dear.
Madam, I’ll follow you unto the death.
Nay, I would have you go before me thither.
Our country manners give our betters way.
What is thy name?
Philip, my liege, so is my name begun,
Philip, good old sir Robert’s wife’s eldest son.
From henceforth bear his name whose form thou bear’st:
Kneel thou down Philip, but rise more great,
Arise sir Richard and Plantagenet.
Brother by the mother’s side, give me your hand:
My father gave me honour, yours gave land.
Now blessed by the hour, by night or day,
When I was got, sir Robert was away!
The very spirit of Plantagenet!
I am thy grandam, Richard; call me so.
Madam, by chance but not by truth; what though?
Something about, a little from the right,
In at the window, or else o’er the hatch:
Who dares not stir by day must walk by night,
And have is have, however men do catch:
Near or far off, well won is still well shot,
And I am I, howe’er I was begot.
Go, Faulconbridge: now hast thou thy desire;
A landless knight makes thee a landed squire.
Come, madam, and come, Richard, we must speed
For France, for France, for it is more than need.
Brother, adieu: good fortune come to thee!
For thou wast got i’ the way of honesty.
Did you catch the line where John (holding court himself, without any of his justices to advise him) decides the case correctly according to the common law? “Sirrah, your brother is legitimate; / Your father’s wife did after wedlock bear him.” This is the presumption of paternity: a child born in wedlock is presumed to be the child of its mother’s husband and thus legitimate. According to Blackstone the presumption could only be rebutted “if the husband be out of the kingdom of England (or, as the law somewhat loosely phrases it, extra quatour maria, for above nine months,” or if “there is an apparent impossibility of procreation on the part of the husband, as if he be only eight years old, or the like.” Even a practical impossibility (“he came into the world / Full fourteen weeks before the course of time”) was not enough to overcome the presumption. The lawyer for the child in the case I am about to discuss told the court that the presumption was so old that it was found in Blackstone, but as we see from Shakespeare it is much older than that! The rule is even discussed in Bracton, who refers to a case from the time of Henry II, though in Bracton the presumption seems more easily rebuttable:
They [bastards] are also sometimes legitimized, by a sort of adoption, with the consent and by the wish of the parents, as where a wife has had a child by someone other than her husband, and where, though this is in fact true, the husband has taken the child into his house, avowed him and raised him as his son, or if he has not avowed him expressly has not turned him away; he will be adjudged legitimate and his father’s heir, whether the husband does not know that the child is not his or knows or is in doubt, because he is born of the wife, [that is], provided it can be presumed that he could have fathered him. The same may be said of a supposititious child, and thus common opinion sometimes is preferred to truth. But if, in cases such as those above, there is a strong presumption to the contrary, as where the husband is shown not to have cohabited with his wife for a long time, because of some serious illness, or if he is frigid or impotent, or if it is proved that he was out of the realm or province for two years or more (so that it can confidently be assumed he could not have had access to his wife) and on his return has found his wife pregnant or with an infant in arms less than a year old, such a son, whether the husband avows and raises him or not, will not undeservedly be excluded from the succession, for he can be neither son nor heir. But on the other hand, where the husband is sound and unimpaired and has always been together with his wife in the province, sharing one roof and one bed, and, whether the issue was fathered by another or is supposititious, has raised him and taken him as his son, or even disavowed and ejected him, if he later recognized him as his son in the presence of honest men who may prove his action if necessary, he can no longer disavow him and he will be the legitimate son and heir. On this matter may be found [in the roll] of Easter term in the eleventh year of king Henry in the county of Sussex, [the case] of John of Montacute. But suppose that the husband does not recognize such issue as his heir and dies having turned him out; though after the husband’s death he is recognized as heir by a guardian, or some other person not entitled to the inheritance, such recognition will be valueless. When such a child or a supposititious child is born, let the husband immediately send him away and not raise him as his son, either at home or elsewhere, or permit him to return. On this matter may be found [in the roll] of Michaelmas term in the fourth and the beginning of the fifth years of king Henry in the county of Lincoln, [the case] of Bartholomew son of Richard, where the tenant was prepared to put himself on the grand assise or on the country with respect to the right, as to whether he had a greater right to hold the claimed land in demesne than the demandant, who claimed as one who had not been regarded as a son by their common father, nor raised as a son in the father’s house, but had been sent from it, and as one who in his father’s lifetime never returned to him as a son and after his death did not for a long time come to the chief lords to do to them what he ought rightfully to do. In this case the tenant retained without an assise, jury, or inquest, because the demandant could not deny the allegations.
Bracton, by the way, shows that the policy of the presumption was not just to protect the interests of the family itself, but also to protect the interests of the lord who had the right to services from the heir of a tenant who died (which is why in the case of Bartholomew it was relevant that the demandant did not go “to the chief lords to do to them what he ought rightfully to do” if he had been the true heir).
Anyway, on to the case I wanted to discuss. The case is Jaen v. Sessions (2d Cir. 2018). Because of the nature of the case, the briefs aren’t available on PACER, and we don’t yet have an opinion, but you can get an idea of the facts from the oral argument (this is my reconstruction, so apologies if I’ve misunderstood the facts):
The child (now an adult) was born in Panama. His birth certificate gave his parents as two Panamanian nationals. But at the time of his birth, his mother was married to a US citizen. Five years later, another birth certificate was issued which gave the US citizen as his father. There apparently was no dispute about biological parentage: the US citizen was not the child’s biological father. The child came to the United States at age 16, though I don’t know the circumstances. But in any event, many years later he found himself in the custody of immigration officials who sought to deport him because he was not a US citizen. There’s no question that immigration officials cannot detain or deport US citizens; the question was whether he was a citizen on account of his mother’s marriage to a US citizen at the time of his birth.
I won’t get in to the details of the statutory scheme. The statute apparently refers to “parents” without specifically requiring a biological relationship, though in the case of unmarried parents, apparently a biological relationship with the father is required in order for the father to transmit citizenship at birth. The Second Circuit issued a short order requiring the immediate release of the child from custody, and the termination of removal proceedings, on the grounds that “the government has no authority to detain a United States citizen for the purpose of removal.” The bottom line is that the presumption of paternity lives! The child was legally the legitimate child of his mother and her husband, even though, apparently, there was no dispute about his biological parentage.