CHAPTER IX

LEGITIMATION[32]

The legitimation of natural children by the subsequent marriage of their parents does not apply in England. It is for many reasons a defect in the law that this should be so, inasmuch as the process of _legitimatio per subsequens matrimonium_ often rights a wrong and does justice to those who are kept out of a natural right by the unnatural state of the law.

The only way by which the ordinary law can be surmounted respecting the legitimation of natural children in this country is by means of a Private Act of Parliament, an expensive, if not a difficult, instrument to obtain. Among persons of limited income, the financial expenditure necessary is a definite barrier.

In these times when fact rules, not the fiction of a long past, there can be little excuse for keeping back the clock in the matter of legitimation. If a man has lived with an honest woman and had children by her, he ought to be able to give those children every possible privilege and right by performing with their mother the simple requirements of the law relating to marriage. The Private Act of Parliament now needful to satisfy the English law should be made as obsolete as the Private Act of Parliament required to secure a divorce before the year 1858. Great benefit would accrue to the community by the easy change suggested. It is not possible to fathom or gauge the magnitude of a thing like the illicit union. It exists here and there among all classes. Where there are children, there would be a distinct incitement, were legitimation by subsequent marriage in force, to the legal tie. The artistic temperament, for want of a better name, is responsible for many such unions, and their legalisation would be a temptation to a man who desires to leave his name and blood on the earth without having to start afresh with some other woman on the legal system. The healthy and characteristic appearance of his own living stock are forceful incentives towards freeing it from all disability in law, the more so, when he knows that the mother was, and is, moral in instinct and in fact.

In his _Roman Law_, Lord Mackenzie makes some interesting references to the theme. “Apart from the effect of legitimation,” he writes, “the Roman law only considered those children lawful at their birth who were begotten in marriage. It is a peculiarity of the English law that it does not concern itself with the conception, but considers a child legitimate who is born of parents married before the time of birth, though they were unmarried when he was begotten.... The legitimation of children _per subsequens matrimonium_ originated in a constitution of Constantine, which has not reached us, though its tenor is given in a law of the Emperor Zeno, who renewed it. The import of it was, that persons who had been living in a state of concubinage, which was then a condition of society not condemned by Roman customs, might, by entering into marriage, render the children born in that state legitimate, provided the woman was _ingenua_, or free-born, and the man had not already children of a lawful wife. The general object of this law probably was to encourage persons who had been living in concubinage to enter into marriage. Justinian extended the law of Constantine, by declaring that children born in concubinage should be legitimate generally, whether the father had legitimate children by a lawful wife or not; and he removed the distinction as to the woman being _ingenua_ or _libertina_. The children so legitimated were subjected to the paternal power, and entitled to all the rights of lawful children.... By Roman law the privilege of legitimation _per subsequens matrimonium_ was strictly confined to the children of a concubine, and did not extend to any other description of bastards.... Another kind of legitimation, _per oblationem curiæ_, was introduced by Theodosius II., A.D. 445. As the duties of a _decurio_ were very onerous, and accompanied with risk, a natural son who undertook the office was thereby rendered legitimate. A natural daughter who married a _decurio_ had the same privilege. Finally, Justinian added a third species of legitimation, _per rescriptum principis_, when the emperor declared natural children legitimate upon the requisition of the father in certain special circumstances; as, for instance, when marriage with the concubine had become impossible, and there were no lawful children--or when the father, who had from some fortuitous cause been prevented from legitimating his natural children in his lifetime, declared in his testament that they should succeed to him as lawful children and heirs _ab intestato_.... The doctrine of legitimation by subsequent marriage is said to have been established in the canon law by two constitutions of Pope Alexander III., preserved in the decretals of Gregory. The canon law was more indulgent than the Roman law, in granting the privilege of legitimacy not merely to the offspring of concubinage, but to children begotten in fornication, when their parents were afterwards married, provided the father and mother were capable of contracting marriage at the date of the sexual intercourse.... Legitimation by subsequent marriage was never acknowledged by the law of England. When the clergy struggled to introduce the rule of the canon law, it was indignantly rejected by the famous statute of Merton, the English barons declaring with one voice, ‘quod nolunt leges Angliæ mutare quæ usitatæ sunt et approbatæ.’ From the earliest period the English law has considered a child born before marriage (_ante natus_) as illegitimate. And it has been decided, that even where the child is born and the parents are subsequently married in a foreign country, the law of which allows legitimation by subsequent marriage, he is nevertheless incapable of inheriting land in England.... On the other hand, the rule of the canon law, which allowed the legitimation of all bastards, provided they were not the offspring of an incestuous or adulterous connection, has been followed both in France and Scotland, not by authority of the decretals, but _in consequence of the equity and expedience of the rule itself_.[33] By the French Civil Code (art. 331-333) it is declared: (1) ‘Children born out of wedlock, other than those born of an incestuous or adulterous intercourse, may be legitimated by the subsequent marriage of their father and mother, provided the children have been legally acknowledged before marriage, or in the act of celebration itself. (2) Legitimation may take place even in favour of deceased children who have left descendants, and in that case it operates in favour of these descendants. (3) Children legitimated by subsequent marriage shall have the same rights as if they had been born of that marriage.’... By the law of France, marriage makes the children of an illicit connection legitimate, although one of the spouses has, after the connection and the birth of the children, contracted a marriage with another person, and the parents have only married after the dissolution of that marriage. As the child legitimated is considered to be born of the marriage which has made him legitimate, he cannot participate in a succession which has opened before that marriage, though subsequent to his birth. For the same reason he cannot claim any preference, in respect of mere priority of birth, in any question of succession with the children of the intermediate marriage.... In Kerr v. Martin, which was elaborately discussed in the Court of Session, the question was raised, whether a marriage of either of the parents with a third person, after the birth of a natural child, formed a bar to legitimation by the subsequent marriage of the parents. Though the judges were divided in opinion, the Court, by a majority, decided that the child was legitimate, and that no mid-impediment was created by the intervening marriage.... In Scotland, legitimation by subsequent marriage confers upon a bastard the rights of a lawful child. Besides being entitled to legitim, he succeeds under a destination to lawful children. In any question with the children born of the bastard’s parents in lawful wedlock, he has the same civil rights, as regards succession and otherwise, as he would have enjoyed had he been born in lawful marriage. But where there is lawful issue of an intermediate marriage by one of the parents with a third person, a child legitimated by a second marriage seems only a lawful child of the family as becoming so by the second marriage, and therefore it is thought he can claim no preference in respect to primogeniture or priority of birth, which would have the effect of defeating or prejudicing the rights of succession of the children of the first marriage arising at their birth. According to this view, if the father had a natural son, and after this a lawful son by a marriage with a third person, and then entered into a second marriage with the mother of the bastard, the lawful son by the first marriage would be entitled to the Scotch heritage _ab intestato_, and could not be deprived of that right by the legitimation of the natural son arising from the _second_ marriage.”

An interesting point of French law, which remains controversial in Roman and Scottish law, according to the authority of Lord Mackenzie, is that which decides the ineligibility of a child _conceived_ in adultery to be legitimated by the subsequent marriage of the parents, even though at the time of such child’s birth the parents were free to marry. There are other little differences between the French and Scottish laws relating to legitimation. On the whole, Scotland is well equipped to deal with all such questions. It remains for England to follow suit. There is no conceivable room for doubt that if a man wishes his natural children to become legitimate, he should have the power to make them so, without the considerable formality of an Act of Parliament. An Act of Parliament is of course a perfect means of accomplishment in the sense that it is a law unto itself, but the expense and difficulty of obtaining such an instrument put it on an impracticable plane, beyond the reach of nearly all. Though the interest of many people in legitimation may be merely abstract, the subject is of some marked importance. The laws of any country are incomplete without reasonable provision for _legitimatio per subsequens matrimonium_.

Interesting cases such as the recent Sackville peerage claim and the earlier claim by “Viscount Hinton” to the peerage of Lord Poulett, whom he alleged to be his legitimate father, if one may turn a phrase, come from time to time before the English courts. Neither of the two claims mentioned was successful, but there appeared to be little doubt that the claimants in both cases were the offspring of the peers in question. To fall at random upon history one remembers that William the Conqueror was a natural son. The Duke of Monmouth, who married the Countess of Buccleuch (in her own right) was a natural son of Charles II., like the ancestor of the Duke of Richmond and Gordon, the ancestor of the Duke of Grafton, and the ancestor of the Duke of St. Albans, among others. The absence of a legal tie does not prevent the perpetuation of blooded stock, though convention and policy have made the tie a very necessary formality.

FOOTNOTES

[32] See Appendix E.

[33] Mr. Chester’s italics.

NOTE IN CONNECTION WITH THE NEXT CHAPTER.

At the moment of going to press, a singularly strange case is reported in which a convicted murderer, Charles Ellson, has had his conviction quashed by the Court of Criminal Appeal, irrespective of the question of his guilt. The report in outline is as follows:

“The first successful appeal made by a person convicted of murder since the establishment of the Court of Criminal Appeal was decided yesterday by that tribunal, which quashed the conviction of Charles Ellson for the murder of Rose Render in Clerkenwell. The man, who was present in court, was immediately released.

“The decision was on technical grounds, apart from the question of the prisoner’s guilt or innocence, and Mr. Justice Darling, giving the judgment of the court, pointed to the case as strengthening their often expressed opinion that the law should provide the court with power to order a new trial in such cases.”--_Daily Mail_, Sept. 29, 1911.

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