405 CHAPTER XXIV. ILLEGITIMATE CHILDREN-POLICY OF STATES. DXXXII. THE question as to the Status of children born out of lawful wedlock, the parental power which can be exercised over them, the rights which they can claim at the hands of one or both of their parents, constitute some of the most difficult problems both of Private Right and of Public Law (a). The question in all its bearings is one which certainly much concerns the well-being of the State; for it greatly affects the general morality of the people, upon which the security of all States is built. The public policy of States has looked at this question from two distinct points of view-always of course with the same object, that of checking the frequency of the crime. In truth, the whole question borders upon the considerations of Criminal International Law. At the same time, it would be absurd to apply the lex loci delicti commissi (b) to settle the question of the obligations of the parents towards the child (c). In some countries it has been sought to obtain this moral end by enlarging and strengthening the claims of (a) Story, Conflict of Laws, ss. 93-93 w; Bar § 102. Burge, Commentaries on Foreign and Colonial Law, vol. i. pt. i. ch. iii. s. 3. Savigny, R. R. viii. s. 399, num. ii. 3. Rocco, lib. iii. cap. xix. Pütter, Fremdenrecht, Theil II. Kap. ii. §§ 58-61. (b) Savigny, R. R. viii. s. 374. (c) This is clearly stated by Seuffert, and adopted by Schäffner, Entwickelung des Internationalen Privatrechts, § 98. the child upon the father, as a punishment of the male offender; in others by narrowing, or, as in France (d), altogether taking away, the claims of the mother or the child upon the father, as a punishment of the female offender. In both cases, the Law has a moral end in view, and therefore it falls under the category of the exceptions to the operation of the general rule of Comity, that is to say, the Status of the illegitimate child will be determined by the Law of the land in which he is living, without reference to the Law of the domicil of either of the parents at the time of the birth of the child. DXXXIII. Thus, if an attempt was made by the mother, who had been a concubine domiciled in a country where concubinage was a legal Status, to enforce before a French Tribunal either a claim of affiliation or any other claim growing out of the Status of concubinage, such a claim would be rightly rejected by the French Tribunal, inasmuch as its recognition would militate against a dite. (d) Code Civil, art. 340. "La recherche de la paternité est inter ["Dans le cas d'enlèvement, lorsque l'époque de cet enlèvement se rapportera à celle de la conception, le ravisseur pourra être, sur la demande des parties intéressées, déclaré père de l'enfant." Art. 341. "La recherche de la maternité est admise." Art. 342. "Un enfant ne sera jamais admis à la recherche soit de la paternité, soit de la maternité, dans les cas où, suivant l'article 335, la reconnaissance n'est pas admise." Art. 335. La reconnaissance d'un enfant naturel "ne pourra avoir lieu au profit des enfants nés d'un commerce incestueux ou adultérin." Cf. the Italian Civil Code, art. 189.-"Le indagini sulla paternità non sono ammesse. . . . Art. 190. "Le indagini sulla maternità sono ammesse." And the Dutch Civil Code, art. 342.-"Het onderzoek naar het vaderschap is verboden." Art. 343. "Het onderzoek, wie moeder van het kind is, wordt toegelaten." Both the Italian and Dutch Codes contain exceptions similar to those quoted above from the French Code.] Savigny defends the French law on the ground that the subject of it, properly speaking, is not the personal status, but a matter of public policy and positive law.-Savigny, R. R. viii. s. 399; s. 374, note aa. moral principle of French Law (e). Savigny remarks, that this principle [had been adopted by certain Prussian Provinces] (ee). DXXXIV. In these remarks the factum of the illegitimacy of the child has been assumed; but, if the factum itself be in dispute, a most difficult question of Private International Law arises, and one with respect to which the decisions of that Law are far from satisfactory. The shape which this question has generally assumed has been that of the "legitimatio per subsequens matrimonium ”(ƒ). The maxims of the Roman Law, "Pater est quem nuptiæ "demonstrant" (ff), and "cum legitimæ nuptiæ factæ sint, "patrem liberi sequuntur" (g), are universally recognized; but the question, what are "justæ " or " legitimæ nuptiæ,” has been, and still is, a subject of much dispute amongst jurists. (e) This presumption of law, Savigny observes, is founded on the dignity and sanctity of marriage-unmarried concubitus does not fall under this principle: the father, if not necessarily uncertain, may be so, and the possibility furnishes a complete defence to a charge of paternity. [(ee) According to the Prussian Code (Theil II. tit. ii. §§ 612–617) the father of an illegitimate child is bound to provide maintenance and education. The enactments contained in Theil II. tit. i. Abschnitt xi.-"Von den rechtlichen Folgen des unehelichen Beischlafes”—have been almost entirely superseded by the Law of April 24, 1854.] [(ƒ) The Emperor Constantine first established that liberi naturales, i.e. children born in concubinage, but not liberi spurii, should be legitimated by the subsequent marriage of their parents. The tenor, though not the terms, of this constitution has been preserved in a law of the Emperor Zeno (Codex, lib. v. t. xxvii. 5), who renewed it, but declared it applicable only to children in existence at the time of the publication of his law. Justinian re-established this method of legitimation as a general principle, and widened its operation. (Cod. lib. v. t. xxvii. 10, 11; Novellæ, lxxxix. cap. viii.) Ortolan's Explication Historique des Instituts, vol. ii. ss. 123, 124 (p. 103, edit. 1870, Paris); Gera.v. Ciantar, L. R. 12 App. Ca. p. 557.] (ff) Dig. lib. ii. t. iv. 5. strant." (g) Dig. lib. i. t. v. 19. "Pater vero is est quem nuptiæ demon DXXXV. Foreign jurists, with few exceptions, hold the doctrine that the question of the Status of the child depends upon the Law of the Domicil of his parents (h). But the circumstances, as is well observed by Story, may be very various, admitting and requiring very important distinctions in the application of this general doctrine; and he suggests the following cases as illustrative of this remark. 1. The case of a child born before marriage in the domicil of his parents, who afterwards intermarry in the same domicil, according to the Law of which the child is legitimated by the subsequent marriage. 2. The case of a child born in all these circumstances, but whose parents marry in another State, where there is no such law of subsequent legitimation. 3. The case of a child born before marriage in the domicil of his parents, the law of which does not admit retroactive legitimation by a subsequent marriage, and they, being there married, afterwards acquire a new domicil, by the Law of which such subsequent marriage does legitimate the child. 4. The case of a child born before marriage in the domicil of his parents, the Law of which does not allow legitimation by a subsequent marriage; [the parents acquire a new domicil, the Law of which does allow such legitimation, and are afterwards there married (hh).] To these instances another may be added: 5. The case of a child born illegitimate in a State which (h) Their opinions are collected and given at length by Story, Conflict of Laws, ss. 93-93 w; but he is not quite clear or correct in s. 93 b, when he says that because most jurists hold the validity of the marriage to depend on the lex loci celebrationis, therefore they hold that the status of the child ought to depend upon the same law. States differ very much, as has been shown, with respect to the validity of the marriage being solely dependent upon the lex loci; nor is the difficulty quite met by the qualifying words, "at all events if the parents were then domiciled there." [(hh) Story, ubi sup. s. 93 g.] does not admit legitimation by subsequent marriage; but the father is domiciled in a State which does admit such legitimation, and he afterwards, retaining his original domicil, marries the mother in the State, the law of which does not allow such legitimation (i). DXXXVI. The conflicting jurisprudence of England and Scotland, the entire variance of two parts of the same empire as to the Law which governs the most important moral and social relations of the inhabitants, has caused this question of legitimacy by subsequent marriage, as well as the question of Divorce, to be elaborately and solemnly discussed in the courts of inferior and superior jurisdiction of Great Britain. DXXXVII. In the leading case of Birthwhistle v. Vardill (ii), the House of Lords, after a re-hearing, having the unanimous advice of ten of the judges, decided, with respect to a son born of Scotch parents in Scotland before marriage, who afterwards intermarried in that State, and thereby legitimated the son in Scotland, that he was incapable of inheriting immoveable property in England. [The Judges' opinion, at the first hearing, runs thus (k):] "It is said for the appellant, that according to the rule "we adopt, if he is born in lawful wedlock, he fulfils every "condition required of him. Now, they say he is born in "lawful wedlock, because, by a presumption of the Scot"tish Law, a presumption juris et de jure, there was a "marriage anterior to his procreation. It is by force of "this presumption that he is legitimate: by this fiction he "is born within the pale of lawful matrimony. We know "that this fiction is, by respectable writers on the Scottish "Law, represented as accompanying the legitimation per subsequens matrimonium; but we do not concede the consequence deduced from it, as applicable to the present 66 66 (i) Re Wright's Trusts, vide post, § dxli. |