1911 Encyclopædia Britannica/Legitimacy and Legitimation
LEGITIMACY, and LEGITIMATION, the status derived by individuals in consequence of being born in legal wedlock, and the means by which the same status is given to persons not so born. Under the Roman or civil law a child born before the marriage of the parents was made legitimate by their subsequent marriage. This method of legitimation was accepted by the canon law, by the legal systems of the continent of Europe, of Scotland and of some of the states of the United States. The early Germanic codes, however, did not recognize such legitimation, nor among the Anglo-Saxons had the natural-born child any rights of inheritance, or possibly any right other than that of protection, even when acknowledged by its father. The principle of the civil and canon law was at one time advocated by the clergy of England, but was summarily rejected by the barons at the parliament of Merton in 1236, when they replied Nolumus leges Angliae mutare.
English law takes account solely of the fact that marriage precedes the birth of the child; at whatever period the birth happens after the marriage, the offspring is prima facie legitimate. The presumption of law is always in favour of the legitimacy of the child of a married woman, and at one time it was so strong that Sir Edward Coke held that “if the husband be within the four seas, i.e. within the jurisdiction of the king of England, and the wife hath issue, no proof shall be admitted to prove the child a bastard unless the husband hath an apparent impossibility of procreation.” It is now settled, however, that the presumption of legitimacy may be rebutted by evidence showing non-access on the part of the husband, or any other circumstance showing that the husband could not in the course of nature have been the father of his wife’s child. If the husband had access, or the access be not clearly negatived, even though others at the same time were carrying on an illicit intercourse with the wife, a child born under such circumstances is legitimate. If the husband had access intercourse must be presumed, unless there is irresistible evidence to the contrary. Neither husband or wife will be permitted to prove the non-access directly or indirectly. Children born after a divorce a mensa et thoro will, however, be presumed to be bastards unless access be proved. A child born so long after the death of a husband that he could not in the ordinary course of nature have been the father is illegitimate. The period of gestation is presumed to be about nine calendar months; and if there were any circumstances from which an unusually long or short period of gestation could be inferred, special medical testimony would be required.
A marriage between persons within the prohibited degrees of affinity was before 1835 not void, but only voidable, and the ecclesiastical courts were restrained from bastardizing the issue after the death of either of the parents. Lord Lyndhurst’s act (1835) declared all such existing marriages valid, but all subsequent marriages between persons within the prohibited degrees of consanguinity or affinity were made null and void and the issue illegitimate (see Marriage). By the Legitimacy Declaration Act 1858, application may be made to the Probate, Divorce and Admiralty Court (in Scotland, to the Court of Session by action of declarator) for a declaration of legitimacy and of the validity of a marriage. The status of legitimacy in any country depending upon the fact of the child having been born in wedlock, it may be concluded that any question as to the legitimacy of a child turns either on the validity of the marriage or on whether the child has been born in wedlock.
Legitimation effected by the subsequent marriage of the parents of the illegitimate child is technically known as legitimation per subsequens matrimonium. This adoption of the Roman law principle is followed by most of the states of the continent of Europe (with distinctions, of course, as to certain illegitimate children, or as to the forms of acknowledgment by the parent or parents), in the Isle of Man, Guernsey, Jersey, Lower Canada, St Lucia, Trinidad, Demerara, Berbice, Cape Colony, Ceylon, Mauritius; it has been adopted in New Zealand (Legitimation Act 1894), South Australia (Legitimation Act 1898, amended 1902), Queensland (Legitimation Act 1899), New South Wales (Legitimation Act 1902), and Victoria (Registration of Births, Deaths and Marriages Act 1903). It is to be noted, however, that in these states the mere fact of the parents marrying does not legitimate the child; indeed, the parents may marry, yet the child remain illegitimate. In order to legitimate the child it is necessary for the father to make application for its registration; in South Australia, the application must be made by both parents; so also in Victoria, if the mother is living, if not, application by the father will suffice. In New Zealand, Queensland and New South Wales, registration may be made at any time after the marriage; in Victoria, within six months from the date of the marriage; in South Australia, by the act of 1898, registration was permissible only within thirty days before or after the marriage, but by the amending act of 1902 it is allowed at any time more than thirty days after the marriage, provided the applicants prove before a magistrate that they are the parents of the child. In all cases the legitimation is retrospective, taking effect from the birth of the child. Legitimation by subsequent marriage exists also in the following states of the American Union: Maine, Pennsylvania, Illinois, Michigan, Iowa, Minnesota, California, Oregon, Nevada, Washington, N. and S. Dakota, Idaho, Montana and New Mexico. In Massachusetts, Vermont, Illinois, Indiana, Wisconsin, Nebraska, Maryland, Virginia, West Virginia, Kentucky, Missouri, Arkansas, Texas, Colorado, Idaho, Wyoming, Georgia, Alabama, Mississippi and Arizona, in addition to the marriage the father must recognize or acknowledge the illegitimate child as his. In New Hampshire, Connecticut and Louisiana both parents must acknowledge the child, either by an authentic act before marriage or by the contract of marriage. In some states (California, Nevada, N. and S. Dakota and Idaho) if the father of an illegitimate child receives it into his house (with the consent of his wife, if married), and treats it as if it were legitimate, it becomes legitimate for all purposes. In other states (N. Carolina, Tennessee, Georgia and New Mexico) the putative father can legitimize the child by process in court. Those states of the United States which have not been mentioned follow the English common law, which also prevails in Ireland, some of the West Indies and part of Canada. In Scotland, on the other hand, the principle of the civil law is followed. In Scotland, bastards could be legitimized in two ways: either by the subsequent intermarriage of the mother of the child with the father, or by letters of legitimation from the sovereign. With respect to the last, however, it is to be observed that letters of legitimation, be their clauses ever so strong, could not enable the bastard to succeed to his natural father; for the sovereign could not, by any prerogative, cut off the private right of third parties. But by a special clause in the letters of legitimation, the sovereign could renounce his right to the bastard’s succession, failing legitimate descendants, in favour of him who would have been the bastard’s heir had he been born in lawful wedlock, such renunciation encroaching upon no right competent to any third person.
The question remains, how far, if at all, English law recognizes the legitimacy of a person born out of wedlock. Strictly speaking, English law does not recognize any such person as legitimate (though the supreme power of an act of parliament can, of course, confer the rights of legitimacy), but under certain circumstances it will recognize, for purposes of succession to property, a legitimated person as legitimate. The general maxim of law is that the status of legitimacy must be tried by the law of the country where it originates, and where the law of the father’s domicile at the time of the child’s birth, and of the father’s domicile at the time of the subsequent marriage, taken together, legitimize the child, English law will recognize the legitimacy. For purposes of succession to real property, however, legitimacy must be determined by the lex loci rei sitae; so that, for example, a legitimized Scotsman would be recognized as legitimate in England, but not legitimate so far as to take lands as heir (Birtwhistle v. Vardill, 1840). The conflict of laws on the subject yields some curious results. Thus, a domiciled Scotsman had a son born in Scotland and then married the mother in Scotland. The son died possessed of land in England, and it was held that the father could not inherit from the son. On the other hand, where an unmarried woman, domiciled in England died intestate there, it was held that her brother’s daughter, born before marriage, but whilst the father was domiciled in Holland, and legitimized by the parents’ marriage while they were still domiciled in Holland, was entitled to succeed to the personal property of her aunt (In re Goodman’s Trusts, 1880). In re Grey’s Trusts (1892) decided that, where real estate was bequeathed to the children of a person domiciled in a foreign country and these children were legitimized by the subsequent marriage in that country of their father with their mother, that they were entitled to share as legitimate children in a devise of English realty. It is to be noted that this decision does not clash with that of Birtwhistle v. Vardill.
See J. A. Foote, Private International Law; A. V. Dicey, Conflict of Laws; L. von Bar, Private International Law; Story, Conflict of Laws; J. Westlake, International Law.