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In the case of adultery, divorce is barred by condonation or forgiveness, as well as by collusion or connivance. Recrimination cannot be pleaded as a defence to exclude the suit; but it may be stated in a counter-action, as the mutual guilt may affect the patrimonial interests of the parties.1

divorce.

The legal effect of divorce on the ground of wilful deser- Effects of tion under the Act 1573, c. 55, is, that the offending husband is bound to restore the tocher (dos), and to pay or implement to the wife all her provisions, legal or conventional; and the offending wife forfeits her terce, and all that would have come to her had the marriage been dissolved by the predecease of the husband. By analogy the same consequences have been extended to the case of divorce for adultery, with this exception, that it appears to have been decided, upon very questionable grounds, that the offending husband in the case of adultery is not bound to restore the tocher.2

After divorce both parties are at liberty to marry again; but the Act 1600, c. 20, annuls any marriage contracted between the adulterer and the person with whom he or she is declared by the sentence of divorce to have committed the offence.

1 Fraser, Per. and Dom. Relations, vol. i. p. 666-672.

Justice, 13th Jan. 1761, M. p. 334.
Fraser, vi. p. 691. Ersk. 1. 6. 48.

CHAPTER VII.

OF THE LEGITIMATION OF NATURAL CHILDREN.

as to lawful children.

Distinction APART from the effect of legitimation, 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 his birth, though they were unmarried when he was begotten.1

Legitimation by subsequent marriage.

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 known 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, and whether the father had legitimate children by a lawful wife or not; and he removed the distinction as to the quality of the woman as being ingenua or libertina. The children so legitimated were subjected to the paternal power, and entitled to all the rights of lawful children.3

1 Stephen's Com. on the Law of England, 4th ed., vol. ii. p. 289.

2 C. 5. 27. 5.

3 I. 1. 10. 13. C. 5. 27. 10.

only to

By the Roman law the privilege of legitimation per subse- Applied quens matrimonium was strictly confined to the children of children a concubine, and did not extend to any other description of born in con

bastards.

cubinage.

kinds of

tion.

Another kind of legitimation, per oblationem curia, was Two other introduced by Theodosius II., A.D. 443. As the duties of a legitimadecurio 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.1

bastards by

canon law.

The doctrine of legitimation by subsequent marriage is Extended to 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 acknow- Legitimaledged by the law of England. When the clergy struggled by English tion rejected to introduce the rule of the canon law, it was indignantly law. rejected by the famous statute of Merton, the English barons declaring with one voice, "quod nolunt leges Angliæ mutare quæ huc usque usitatæ sunt et approbatæ.' From the earliest period the English law has considered a child born

1 N. 74, ch. 1, 2. N. 89, ch. 9, 10.

Mackeldey, § 587.

2 Decretal, 4. 17. 1 and 6.

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3 Statute of Merton, 20 Henry III. Dr Harris's Justinian's Institutes, p. 31, note.

French law admits it.

And the law of Scotland.

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.1

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 expediency of the rule itself. By the Civil Code (art. 331333) it is declared: 1. "Children born out of wedlock, other than those born of an incestuous or adulterine 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."

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By the law of France, marriage makes the children of an illicit connection legitimate, although one of the spouses had, after the connection and the birth of the children, contracted a marriage with another person, and the parents had 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.2 In Kerr v. Martin, which was elaborately discussed in the Court of Session, the question was raised whether a marriage by either of the parents with a third person, after the birth of a natural child, formed a bar to legitimation by the subse

Doe v. Vardill, 5 Barn and Cress., 438. 6 Bing. N. C. 385.

2 Pailliet, Manuel de Droit Français, 8th ed., p. 84.

quent 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.1

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 of 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.2

1 Kerr v. Martin, 1840, 2 D. B. M. p. 750. See also Shedden, 1854, 1 Macq. App. Ca. 535.

2 See Fraser, Per. and Dom. Relations, vol. ii. p. 18.

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