Anomalies of the English lawChester, S. Beach (Samuel Beach)
History
Anomalies of the English law
Chester, S. Beach (Samuel Beach)
Law; Law -- Great Britain -- History
In these times when fact rules, not the fiction of a long past,
there can be little excuse for keeping back the clock in the matter
of legitimation. If a man has lived with an honest woman and had
children by her, he ought to be able to give those children every
possible privilege and right by performing with their mother the
simple requirements of the law relating to marriage. The Private Act
of Parliament now needful to satisfy the English law should be made as
obsolete as the Private Act of Parliament required to secure a divorce
before the year 1858. Great benefit would accrue to the community by
the easy change suggested. It is not possible to fathom or gauge the
magnitude of a thing like the illicit union. It exists here and there
among all classes. Where there are children, there would be a distinct
incitement, were legitimation by subsequent marriage in force, to the
legal tie. The artistic temperament, for want of a better name, is
responsible for many such unions, and their legalisation would be a
temptation to a man who desires to leave his name and blood on the
earth without having to start afresh with some other woman on the legal
system. The healthy and characteristic appearance of his own living
stock are forceful incentives towards freeing it from all disability in
law, the more so, when he knows that the mother was, and is, moral in
instinct and in fact.
In his _Roman Law_, Lord Mackenzie makes some interesting
references to the theme. “Apart from the effect of legitimation,”
he writes, “the Roman law only considered those children lawful at
their birth who were begotten in marriage. It is a peculiarity of the
English law that it does not concern itself with the conception, but
considers a child legitimate who is born of parents married before the
time of birth, though they were unmarried when he was begotten....
The legitimation of children _per subsequens matrimonium_ originated
in a constitution of Constantine, which has not reached us, though
its tenor is given in a law of the Emperor Zeno, who renewed it. The
import of it was, that persons who had been living in a state of
concubinage, which was then a condition of society not condemned by
Roman customs, might, by entering into marriage, render the children
born in that state legitimate, provided the woman was _ingenua_, or
free-born, and the man had not already children of a lawful wife. The
general object of this law probably was to encourage persons who had
been living in concubinage to enter into marriage. Justinian extended
the law of Constantine, by declaring that children born in concubinage
should be legitimate generally, whether the father had legitimate
children by a lawful wife or not; and he removed the distinction as to
the woman being _ingenua_ or _libertina_. The children so legitimated
were subjected to the paternal power, and entitled to all the rights
of lawful children.... By Roman law the privilege of legitimation _per
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