The Scottish law has adapted two spe cies of legitimation, which, in the lan guage of the civil law, they call legitima tion per subsequens matrimonium, and legitimation per rescriptum principis.
The former of these was introduced into the Roman jurisprudence by a con stitution of the Emperor Constantine the Great, but did not become a permanent method of legitimation till the time of Justinian. It was afterwards taken up by the Romau pontiffs and disseminated by the ecclesiastics throughout Europe. At the parliament of Merton, however, the doctrine met with a repulse from the barons of England, as already mentioned.
Though the English law was preserved inviolate, yet the ecclesiastics did not cease to press the point among the people, and to this day we may remark traces of the custom in some of the remoter districts of the island. The doctrine was certainly no part of the ancient common law of Scotland any more than of England ; but it is now settled law there, and its rise and establishment are at once accounted for, when we consider the former strong or rather paramount influence of the canon and civil laws in that country. The principle on which the doctrine rests is the fiction of law that the parents were married at their child's birth. If, there fore, the parents could not have then le gally married, or if a mid impediment has intervened between the birth and the intermarriage, the fiction is excluded, and previous issue will not be legitimated by marriage. Further, it is held that if the child was born, or if the intermarriage took place, in a country which does not acknowledge the doctrine of legitimation by subsequent marriage, the child will remain a bastard ; the character of bas tardy being in the one case indelible, and the marriage in the other ineffectual to create legitimacy. On the other hand, a child legitimated per subsequens matri monium is entitled to all the rights and privileges of lawful issue, and will, as respects inheritance and the like, take precedence of subsequent issue born in actual wedlock : yet in England the judges have held that a child born in Scotland before marriage, and legitimated in Scotland by subsequent marriage, the parents also being domiciled there, though in point of fact the first-born son, and in status and condition, by co mitt', legitimate in England, will not succeed to land in England. (Doe dem. Birtwhistle v. Vardill, 5 Barn. and Cress. 438. The opinion of the judges was confirmed by the House of Lords, July, 1840.) Legitimation per rescriptum principis proceeds on a less abstract and more ge nerally acknowledged principle than the preceding. Though therefore it is said to have been invented by Justinian, and copied by one of the popes of Rome, yet concessions in the nature of letters of legitimation are not peculiar to the Ro man law. The form of these letters seems to have been borrowed by the Scots imme diately out of the old French jurispru dence : their clauses are usually very am ple,capacitating the grantee for all honours and offices whatsoever, and to do all acts in judgment or outwith, and, in short, im parting to him all the public rights of lawful children and natural born subjects, together with a cession of the crown's rights by reason of bastardy ; but as the crown cannot affect the rights of third persons without their consent, letters of legitimation do not carry a right of inhe ritance to the prejudice of lawful issue.
As in the Mosaic law a bastard was debarred from the congregation, so ac cording to the canons he is in strictness incapable of holy orders; and, indeed, it has been the policy of most nations to in capacitate bastards in divers ways, that if men will not be deterred from immorality by a sense of the injury accruing to them selves, they may by a consideration of the evils resulting to their offspring. But whatever may be the operation of those incapacities, they are felt by all to be wrongs inflicted on the innocent ; and, as Justinian properly observed when he made legitimation per subsequens matrimonium a perpetual ordinance, " indigni non aunt qui alien vitio laborant." Ac cordingly this doctrine is now obsolete in England, and nearly so in Scotland. By 6 Wm. IV. c. 22, the only remaining incapacity in Scotland—the want of power to make a testament in the particular case of the bastard having no lawful issue —was done away with ; the preamble of the act reciting that it is just, humane, and expedient that bastards or natural children in Scotland shall have the power of disposing of their moveable estates by testament. Letters of legitimation were formerly necessary in all cases; but it was held that, as the crown's right of succession was txcluded by the existence of issue, a bastard who had lawful issue might dispose of his goods by testament in any way he thought fit. Since the passing of 6 Wm. IV. c. 22, there is now no distinction between a bastard and another man; and so he may dispose of his heritage in liege poustie, and of his moveables intervivos, and by tes tament, and he may succeed to any es tate, real or personal, by special destina tion. To his lawful children, also, he may appoint testamentary guardians ; and his widow has her provisions like other relicts. It is to be noted, however, that in the eye of the law a bastard is nullius flies; and being thus of kin to nobody, he cannot be heir-at-law to any one, neither can be have such heirs save his own lawful issue. Where a bastard dies leaving no heir, the crown, as ultimus heres, takes up his property, which, if it be land holden in capite, is at once con solidated with the superiority ; but if it be holden of a subject, the crown ap points a donatary, who, to complete his title, must obtain decree of declarator cf bastardy, a process in the nature of the English writ of escheat, and thereupon he is presented by the king to the su perior as his vassal.