LEGITIMACY AND LEGITIMATION. Legitimacy is the status of children whose parents are lawfully married. Legiti mation is the mode in which such status is acquired by those whose parents were not lawfully married at the time when the children were born. It may be effected either by some special act of the Sovereign, as for example by a private act of parlia ment, or by the subsequent marriage of the parents after the birth of the children. Legitimation per subsequens matrimonium was regularly recognized by the Roman law and, in this respect as in so many others, the canon law, subject to some exceptions and variations, followed the Roman civil law in principle. The rule that the subsequent marriage of the parents of illegitimate children gives such children the status of legitimacy was also adopted in most countries which had legal systems based on the civil law. On the continent, in Scotland and in some States of America it was recognized but it might be subject to the excep tion that if when a child was born the parents could not have married, e.g., if one of them had a husband or wife then living, that child was not legitimated by the subsequent marriage. In some cases it was considered that if such impediment to mar riage existed even when the child was conceived, it could not become legitimate.
In England, on the other hand, legitimation by subsequent marriage was not allowed by the common law. So far back as the parliament of Merton in 1236 a controversy arose on the subject between the church and the barons. The authorities of the church then declared unanimously that by their law the chil dren of parents born out of wedlock had always been considered as legitimate when the parents married afterwards. The lay barons, on the other hand, declared that this was not the law of England and used the often quoted phrase "nolumus leges Angliae mutari." The controversy went on in England for nearly 700 years, until the passing of the Legitimacy Act of 1926, which came into operation on Jan. 1, 1927. By that act, "where the parents of an illegitimate person marry or have married before or after the commencement of this act the marriage shall, if the father of the illegitimate person was or is at the date of the marriage domiciled in England or Wales, render that person, if living, legitimate from the commencement of the act or from the date of the marriage, whichever last happens." This general enactment, however, is subject to the proviso that "nothing therein shall operate to legitimate a person whose father or mother was married to a third person when the illegitimate person was born." As regards property, the legitimation does not, except as ex pressly provided by the act, give the legitimated persons any rights, but among the express provisions on the subject are con tained statements that such persons shall be entitled to take any interest in the estate of an intestate dying after the date of legiti mation, or under any disposition coming into operation after that date. On the other hand, nothing in the act is to affect the succession to any dignity or title of honour. Prior to this act, many of the British colonies or dominions, including New Zealand (1894), South Australia (1898), Queensland (1899), New South Wales (1902) and Victoria (1903), had recognized the principle by special legislation, but generally registration was necessary to make the legitimation effective.
Now that the general principle of legitimation per subsequens matrimonium, which had been maintained by the Church for centuries, has been almost universally adopted it is highly de sirable that an attempt should be made to put an end to the conflict of laws on matters of detail which still exists between different States. These differences may cause much dispute and hardship, especially as they appear in comparing the laws of different parts of the British empire and also of different States in America.
As regards children born in wedlock, the presumption is that at whatever time after the marriage a child is born that child is to be regarded as lawfully begotten by the husband. "Pater est quern nuptiae demonstrant." This rule, however, may be rebutted by evidence proving that access had been impossible at any time when in the course of nature the child could have been begotten. If,
however, intercourse could have taken place, the evidence of neither the husband nor wife is admissible to bastardize a child born in wedlock on the ground that intercourse had not in fact taken place. (See the decision of the House of Lords in the case of Russell v. Russell, 1924, A.C. 687, in which the rule was fully discussed.) (A. H.) United States.—To the general rule that legitimacy is the status of children whose parents are lawfully married, there are several notable exceptions in the American law. The laws of 16 States legitimate the issue of void marriages. In the case of biga mous marriages, the children may, nevertheless, be legitimate if., one or both of the parties to the bigamous union were without knowledge of its illegality. This is the law in Maine, Massachu setts, District of Columbia, Indiana, Kentucky, Wisconsin, Ne braska, Michigan and New York. However, in Michigan, Nebraska and New York the children are legitimate only in relation to that parent, in the bigamous union, who was legally capable of contract ing marriage. Subsequent marriage of the parents of children born out of wedlock is generally recognized in the American law as legitimating such children. This legal rule assumes that both par ties to the marriage acknowledge the offspring as their own. How ever, there are other methods by which the status of legitimacy may be attained. Alabama, Georgia, Mississippi, North Carolina and Tennessee authorize legitimation by judicial decree, while in Michigan it can be effected by a written instrument recorded like a deed and in Louisiana by a notarial act. In California, public acknowledgment of an illegitimate child as his own, by the father, and the receiving of it into his family, with the consent of his wife if he is married, establishes the child as legitimate. Similar provisions will be found in the laws of Arizona, Maine, Montana, Oklahoma, North and South Dakota, Nevada and Utah. A statute passed in North Dakota in 1917 declared every child to be the legitimate child of its natural parents with rights of support and education and of inheritance from the parents and their kindred. Another method of legitimating in some States is through the process of legal adoption. One or both parents may legally adopt illegitimate offspring and thus establish full* legitimacy.
Several States give, without express legitimation, a right of in heritance to a child in case of acknowledgment by the father. Kansas so provides when the acknowledgment has been general and notorious, or else in writing. New Mexico has the same provision. Other States permit inheritance where the paternity of the father has been proved during his lifetime. While legitimacy and inheritance are separate and distinct from legal procedures aimed merely at establishing support and maintenance for children born out of wedlock, it is important to note that there is a growing body of American legislation which enlarges the father's duties and responsibilities in the care and upbringing of his illegitimate off spring. The law in Minnesota, for example, provides that upon a legal adjudication of paternity, the father is subject to all the obligations for the care, maintenance and education of the child and to all the penalties for failure to discharge those obligations which would be imposed upon him if the child was his legitimate offspring. The Minnesota statute further provides extensive ad ministrative aids in the enforcement of this law through the State and county public welfare machinery. North Dakota, among other States, has a somewhat similar law. The tendency of modern legis lation in this field has been to enlarge the rights of the child born out of wedlock as against the father, and to impose upon the State a definite obligation to assist in the enforcement of those rights, in addition to a general duty of public guardianship and protection for such children.
See Ernst Freund, "Illegitimate Laws of the United States." in U.S Children's Publication No. 42. (W. Ho.)