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ment to their marriage at the time of its birth.() Consequently no children can be thus legitimated, but those who are procreated of a mother whom the father at the time of procreation might have law. fully married ; if therefore either the father or mother of the child were at that period married to another, such child is incapable of legitimation.(m) The offspring of an adulterous intercourse cannot therefore be rendered legitimate.(n)

The legitimation of the offspring is not a matter for which the par. ties can contract or stipulate; or which can now be given or withheld according to what may be proved or inferred as to their purposes or understanding. It is on the contrary the gift or legal result of the law, as applicable to certain facts and circumstances; the value and effect of which must be judged by the law alone, independent alto

gether of the intentions or expectations of the parents. [ *785 ] the law therefore under which they themselves intended to live as married persons, may very well be allowed to settle the extent of their rights and duties as with each other, but cannot affect the condition of children previously born, which must be determined by the law of the country where the parents were domiciled at the birth and the marriage. If the domicile was not the same for both parents at these two periods, that of the father at the time of the marriage will give the rule.(o) In Kerr v. Martin, (p) the Court of Session was called upon to declare that, when two parties have had an illicit intercourse together, whereby children are born, and thereafter one of such parties enters into a lawful marriage with another person, of which marriage legitimate children are born, and where one of the lawful spouses having died, the remaining party thereafter cele. brates a marriage with the person with whom the illicit connexion had formerly taken place, the children of that illicit connexion, born before the constitution of the marriage with the third party, are to be held legitimate. It was held that the intervening marriage did not bar the subsequent marriage from legitimating the first child. As the intermediate marriage created no bar to the legitimation of a son born before it, another question was necessarily presented, whether such a son, being at the death of his father his eldest legitimate son, as legitimate as if born in wedlock, must not have all the rights of his lawful heir, or on what principle a younger brother should be preferred to him. This point was discussed, but a determination upon it was not required in this case.

According to some jurists, if the impediment to the parents' mar. riage existed at the time of the child's conception, legitimation would not be conferred by their subsequent marriage.(9). But others maintain that the only impediment which prevents the legitimation, is that which exists at the time, not of the child's conception, but of his birth,

(1) Cod. de Natural. lib. 5, tit. 27, 1. 10, Murray, 27. 11 ; Novel. 12, c. 4; ib. 89, c. 8; Merlin, (p) 2 Dunl. B. & M. N. S. 752; 14 Dunl. sect. 2. p. 842.

B. & M. 1104. See 1 Burge, 97. (m) Ersk. Inst. b. 1, tit. 6, s. 52; Munro (9) See Bankton, b. 1, tit. 5, s. 3, n. 57, b. v. Munro, 16 Dunl. B. & M. 30.

3, tit. 3, s. 4, n. 97; Ersk. Inst. b. 1. tit. 6, (n) Decretal, tit. Qui filii sunt legitimi. s. 52; Rose v. Ross, 15 May, 1827, Fac. (5) Munro v. Munro, 16 Dunlop, Bell & Coll.

adopted it. But it may be collected from the opinions of Lords Eldon and Redesdale, that they principally referred to its inadmissibility by the law of the domicile of the origin as the ground of their opinion.(c)

Parties domiciled in England, and having illegitimate children born there, will not, by going into Scotland and marrying there the mother of such children, legitimate them. A person of the name of Ross, who was a Scotchman by birth, came to England in early life, and resided in England, where he carried on business for fifty years, domiciled in London, where that business was carried on. He formed a connexion with a woman with whom he cohabited.

By that woman he had, in 1811, a child. Five years afterwards, while he was still domiciled in London, he went to Scotland with the child and the woman, for the purpose of being married. He did not go to Scotland for the purpose of remaining there, but obviously animo revertendi. He was married in Scotland, -remained in that country a few weeks,-returned to London to his former domicile,-remained

there during the continuance *of his life, and died in [ *788 ] London. On a question, whether

by the law of Scotland the child had become legitimate by the marriage of its parents, it was decided by the house of lords (reversing the judgment of the Court of Session) that such child was not entitled to the benefit of legitimation by the subsequent marriage of his parents.(y) The judgment in this case was distinctly on the ground that the parties were both domiciled in England, and that though the marriage was formally in Scotland, the parties had gone there for that purpose only, and returned immediately to England, their proper domicile. It also fixed the point, that a marriage may be contracted in Scotland under the forms of the church of Scotland, but that the party being a domiciled Englishman, and having contracted it with the design of living in England, it was in law an English marriage. The converse of the last case was decided in France.(z)

A Domicile of the Father in Scotland renders the Children Legitimate by means of a Marriage elsewhere. Whenever the father is a domiciled Scotchman, it is of no consequence in what country his natural children have been born, or his marriage with the mother of those children celebrated; neither does it matter what the law of that country may have been in regard to the legitimation per subsequens matrimoniumbut that in such a case it is the law of Scotland alone

(3) Burge on Foreign Law, 108, 109. French court decided that the effect of the (y) Monro or Rose v. Ross, 4 Wils. & marriage in England, although that law does Shaw, 299; 5 Shaw & Dunlop, 605. not prevail in England, was to render the

(z) The ,case of De Conti, cited in Rose child legitimate in France, which is a coma v. Ross, 4 Wils. & Shaw, 289, decided in plete confirmation of the principle that the France in the year 1668, establishes, that personal quality of a man must be decided where a child is born in a country where he by the law of the country in which he was would become legitimate by a subsequent born. This case clearly establishes that marriage, he becomes so, although the inar. neither the law of the actual domicile of the riage, has taken place in a country in which parents, nor that of the place in which their 1 different law prevails, and where a subse. marriage was celebrated, determined the quent marriage would not have the effect of status of the party, but that the capacity to rendering him legitimate. That child was become legitimated had been conferred by born in France where that law has effect, the law of France, his domicile of origin, and the parents afterwards came over to Eng. was retained by him.-See 1 Burge on For. land-were married in England. There the eign Law, 107.

which must give the rule in the question of legitimation, and that within *Scotland at least, and to all proper Scotch effects the legitimation of the child is unquestionably worked out

[ *789 ] by the mere fact of the subsequent marriage.

A., a Scotchman, proprietor of lands in Scotland, and domiciled there, formed an illicit connection with B., a Scotchwoman domiciled in Scotland; she became pregnant, and in about three mouths thereafter, in April, 1796, A. was ordered into England on military duty. B. accompanied him, and was delivered of a son in England in October, 1796. A. remained several years stationed in England, on military duty, but never lost his domicile in Scotland, whither he returned to reside in 1800, placing B. in a house at Penrith, where he maintained and frequenily visited her; several children were born by B. to A. during B.'s stay in England. In 1808 a formal written contract was signed by A. and B. acknowledging themselves husband and wife, and A. took B. home to his house in Scotland, where they cohabited together as husband and wife, and were universally by habite and repute married persons till A.'s death in 1834. The son abovementioned raised a declarator of his legitimacy, and of his right to succeed to the landed estates in Scotland, as heir substitute of entail. It was held that a valid marriage had been contracted by the parents in 1808 according to the law of Scotland. Secondly, that as A. the husband was a domiciled Scotchman, and the marriage was a proper Scottish marriage, it had the effect of legitimating the son, ihough the place of the son's birth was England, and the principle of legitimating per subsequens matrimonium was repudiated by the law of England; and, thirdly, that it was not made out that B., the mother, had lost her Scottish domicile, either before or after the birth of the son; but whether she had done so or not, the legitimacy of the son was equally established: (a) The principal question for determination in this case was, whether a Scotch court, in a case of succession to a Scotch real estate, should hold illegitimate a child conceived though not actually born in Scotland, but whose parents were Scotch, never having any other than a Scotch domicile, of whose intercourse in *Scotland he was conceived and born, and who were afterwards united by a marriage contracted in Scotland, [ *790 ] and with a view to their future residence in Scotland exclusively. The main fact against the claim of legitimacy was the circumstance of the birth of the child in England. The domicile of both parents was originally and throughout in Scotland; the commencement of their intercourse, the conception of the child, were in Scotland, as the first fruit of that intercourse; there was the subsequent marriage of his parents in Scotland as the place of contract, if that were of importance; in every view there was Scotland as the matrimonial domicile, not only in respect of the domicile of both parents, but in respect of the country to which alone they looked in contracting marriage, and in which alone as their ultimate residence and home, all its varied reciprocal duties were to be fulfilled; and, last of all, the subject in contention, the child's right of succession to a real estate in Scotland, which presents a question determinable in the Scotch courts alone,

(c) M Douall v. Dalhousie, 16 Dunl. Bell & Murray, 6.

and, as in all other cases of real property, upon the peculiar principles of the law of Scotland.

In this case the judges decided twelve against one in favour of the legitimacy. The following passage in the opinion of the consulted judges is too important to be omitted. “ The defenders seem to rest their case for denying the pursuer’s legitimacy on iwo points. Ist. That the pursuer, having been born in England before the marriage of his parents, and the law of England not acknowledging the principle of legitimation per subsequens matrimonium, the slatus of illegitimacy was stamped on him at his birth, and became indelible: and, 2dly, that his mother at his birth, or after it, was domiciled in Eng. land. Unless this last point is in some way to be connected with the first, we do not well understand the bearing of it. For if the pursuer had been born in Scotland, we imagine it would scarely be maintained, that the circumstance of his mother having at any time acquired an English domicile, could in any manner obstruct the operation of the principle of the law of Scotland, after she was married to the pursuer's father by a Scotch marriage, and fully domiciled in

Scoiland. ( *791 ]

But indeed this point, of the domicile of the pursuer's *mother, appears to us to be really imma. terial to the question. On every supposition, in the state of the evidence, if the time and circumstances of the pursuer's birth are to be inquired into, it must be taken as matter of fact that he was born illegitimate, whether the law of England or the law of Scotland be considered; and he would be so equally, whether his mother had her domicile in England or in Scotland. If it is to be held that the rule of the law of England, which holds a person born there to be incapable of being legitimated by the subsequent marriage of his parents, must control the law of Scotland in regard to the effects of a Scotch marriage afterwards entered into with a domiciled Scotchman, as it may regulate the interest of persons all domiciled in Scotland, that will of course decide the case. But if that cannot be held generally, it is not obvious to us how it could make any difference on that point, though it could be assumed that the mother had a domicile in Eng. land at the time of the birth. If the law of Scotland cannot be so controlled in respect of the place of the birth, the domicile of the mother cannot produce that effect.

On the first point above mentioned, the supposed indelibility of the status of illegitimacy, because of the locality of the birth, and the rule of the law of England on the subject, we are, with all deference to any other views which may be taken of it, of opinion, that it is not sanctioned by any authority in the law of Scotland, or by the principles delivered by the best writers on general law. We do not here speak of what might be the effect of any positive conflict of the laws of Scotland and those of England. We must presume that the Courts of England, if called upon in a matter belonging to their jurisdiction, would decide on sound principles according to their own views. But the question here is, what shall be the effect of a Scotch marriage, contracted between persons domiciled in Scotland, and who continued to be thereafter domiciled in the paternal mansionhouse of the husband till his death? What shall be the effect of such a marriage on the slutus of the child of such parents, claiming that

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