3. OF THE LEGITIMACY OF CHILDREN.
The validity of Marriage considered on medical grounds being established, the next point to be considered in the same light is the legitimacy and illegitimacy of children, as it may legally affect their rights to succession and property[[336]]. On this point the laws of England are most indulgently favourable to the child, for provided “it be born though not begotten in lawful wedlock,” (1 Bl. Com. 454.) the law will presume its legitimacy, (5 Rep. 98.) (præsumitur pro legitimatione). But this presumption may be rebutted by evidence. “As if the husband be out of the kingdom of England (or as the law somewhat loosely phrases it, extra quatuor maria[[337]]) for above nine months, so that no access to his wife can be presumed, her issue during that period shall be bastards.” (1 Bl. Com. 454. 457. Co. Litt. 244.) but it was held that if the husband was in England during any part of the time between the conception and the birth (without any reference to the physiological impossibility of the fact) the child would be deemed legitimate (Rex v. Alberton. 1 Raym. 395.) If the husband be proved castrate the issue are bastards (1 Ba. Ab. 310. Rolle Ab. tit. Bastard, 356.) But though the husband were divorced from his first wife causa frigiditatis, yet his issue by his second were adjudged legitimate, (5 Rep. 98.) and this is reasonable, for there may be an impotentia erga hanc, from various causes; (vide post.) If a man marries a woman who is pregnant, he is generally to be supposed cognisant of the fact, and that he is the father of the child; and the law which regards the time of birth, and not of conception, pronounces it legitimate. But the husband may have been imposed upon, and utterly ignorant[[338]] of his wife’s state. A man returning from abroad (to put the case of non access more strongly) marries immediately on his arrival; within four or five months his wife is delivered of a perfect child which lives, shall such child inherit? on the one hand Præsumitur pro patre quem nuptiæ demonstrant, on the other, the ordinary course of nature prohibits the supposition that the child can be the offspring of the husband. But see Rolle Ab. tit. Bastard, p. 358, where the woman was grossement enseint the issue was held un mulier, and contrary decisions cited there: see also Foxcroft’s Case, Rolle, 359, & sec. 45. So also a man may purposely marry a pregnant woman to disappoint his supposed heir at law; on the other hand a woman may for some purpose of malignity bastardize her offspring, as was the case of Savage the poet.[[339]]. But none can be legitimate who are born out of wedlock; in which our law differs materially from the Roman or Canon law, and it is somewhat singular that the celebrated[[340]] “quod nolunt Leges Angliæ mutare” of the Barons, at the Parliament of Merton, in the 20th of Henry the 3d, should have been induced by an attempt on the part of the bishops, (omnes episcopi magnates) to introduce this novelty,—that children born before marriage should be legitimised by the subsequent performance of the ceremony between their reputed parents. There may indeed be a few instances where illegitimate children have been legitimised by Act of Parliament[[341]], but though such legislative interference might in some cases of extreme doubt and hardship be deemed not only excusable, but desirable, the present feeling appears to be so strong against such Acts, that the rule of Law may be considered as among the most fixed; yet there are some points which may yet receive considerable elucidation from the studies of the physiologist, and these will resolve themselves into several questions, (vide post.)
For the legal authorities on this subject we cannot do better than refer the reader to the very learned note of Mr. Hargrave in his valuable edition of Coke Littleton, and to the same subject in his Jurisconsult Exercitations, vol. 3. p. 411; but as these may not be of easy access to our medical readers we have added a full extract of them in the Appendix, p. 209.