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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Douall v Dalhousie [1837] CS 16_6 (15 November 1837) URL: http://www.bailii.org/scot/cases/ScotCS/1837/016SS0006.html Cite as: [1837] CS 16_6 |
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Subject_Marriage — Foreign — Jurisdiction — Domicile. —
A Scotsman (A), proprietor of lands in Scotland, and domiciled there, formed an illicit connexion with a Scotswoman (B), domiciled in Scotland; she became pregnant, and in about three months thereafter (April 1796), A was ordered into England on military duty; B accompanied him, and was delivered of a son in England in October 1796: A remained several years stationed in England, on military duty, but never lost his domicile in Scotland, whither he returned to reside in 1800, placing B in a house at Penrith, where he maintained her and frequently visited her; several children were born by B, to A, during B's stay in England; in 1808, a formal written contract was signed by A and 15, acknowledging themselves husband and wife, and A took B home to his house in Scotland, where they cohabited together as husband and wife, and were universally habite and repute married persons till A's death in 1834; the son, above-mentioned, raised a declarator of his legitimacy, and of his right to succeed to land-estates in Scotland, as heir-substitute of entail; Held (1.) that a valid marriage had been contracted by the parents, in 1808, according to the law of Scotland: (2.) That, as the husband (A.) was a domiciled Scotsman, and the marriage was a proper Scottish marriage, it had the effect of legitimating the son, though the place of the son's birth was England, and the principle of legitimating per subsequens matrimonium was repudiated by the law of England: and (3.) That it was not made out that the mother (B) had lost her Scottish domicile, either before or after the birth of the son, but that, whether she had done so or not, the legitimacy of the son was equally established.
The Late Andrew M'Douall of Logan, in Wigtonshire, was born in Scotland, of a Scottish family possessing the estate of Crichan, and others, to which he succeeded as heir of entail. He had always been domiciled in Scotland, when, in September or October 1795, he formed a connexion
with a girl named Mary Russell, residing in Dumfries. She was then about 16 years of age, living with her mother, who had separated from her father. She had been born in Scotland; her parents were Scottish; and she had never had any other than a Scottish domicile. M'Douall took her to his house, where she shared his bed and board. In April 1796, a regiment of fencible cavalry, of which he was colonel, received orders to march to Carlisle, and he took Mary Russell along with him. She was then pregnant, and on 28th April, the overseers of the parish of St Cuthberts, Carlisle, exacted a bond from Colonel M'Douall, to the amount of £50, that her child, being illegitimate, should not become chargeable to the parish. In October, 1796, Mary Russell was delivered at Chester, of a son, who was baptized James. During the intervening period of about six months from the time of her having left Scotland, Mary Russell had remained in England, along with Colonel M'Douall, who was stationed there with his regiment. The regiment was disembodied in 1800, at which time Colonel M'Douall returned to reside in Scotland. During the time of his being stationed in England he had always kept a house in Scotland, and an establishment there suited to his condition in society; and as his father died in 1799, he went, on his return, to reside at Logan, the family seat. During his whole stay in England, Mary Russell had always accompanied him to the different quarters where ho was stationed, and had lived with him. But he now took a house for her at Penrith, in which she lived, and where he frequently visited her on the same footing as before. Several other children were born of this connexion. Of these, one, who was baptized John Andrew, and born in 1805, survived. The expenses of maintaining the house at Penrith, and providing for Mary Russell and her children, were borne by Colonel M'Douall, who, in 1802, purchased the house in which they lived. Mrs Mary Russell continued to live in this house until 1808. Her mother and a sister and brother came and resided there with her. After she left the house in 1808, her mother remained in it till her death; and after that event, her brother continued to occupy the house. In March, 1808, Colonel M'Douall and Mary Russell signed a written contract of marriage at Penrith, accepting each other as spouses, and containing provisions out of Colonel M'Douall's estate, settled on her as his wife, in the event of her survivance. She was immediately afterwards infeft in security of these provisions. At the same time Colonel Mac-Douall took her home to his house in Scotland, and publicly declared their marriage. They subsequently lived together as man and wife, in Scotland, until the death of Colonel M'Douall in 1834. During all this period they were universally habite and repute married persons; and they treated their sons as lawful children. Neither Colonel M'Douall, nor Mary Russell, had ever contracted any other marriage.
In 1831 an action was raised by Colonel M'Douall, and his eldest son
James M'Douall, which was directed against the second son John Andrew M'Douall, and the heirs of entail of the estates of Crichan, &c., containing declaratory conclusions as to the legitimacy of James M'Douall, and other conclusions as to his right of succession as heir-substitute of entail, to these estates. The Countess of Dalhousie, together with her son, Lord Ramsay, as next heirs of entail after the lawful issue of Colonel M'Douall, lodged defences, and having objected that the question of legitimacy ought to be tried in a proper consistorial action, the pursuers raised such an action which was conjoined with the declarator. After the death of Colonel M'Douall, a counter-declarator was raised by the Countess of Dalhousie, and Lord Ramsay, of their right as next heirs of entail to the estates of Crichan, &c., in consequence of Colonel M'Douall having died without lawful issue, which action was conjoined with the previous processes. A proof was led, and, after a debate thereon, cases were ordered, on which their Lordships of the First Division, directed the opinion of the other Judges to be taken. A good deal of evidence had been adduced, hinc inde, on the question whether the original connexion of Colonel M'Douall and Mary Russell in 1795 had been matrimonial or not. That question was altogether of a special nature; and the Court held, that the connexion had been illicit, until 1808, and that the pursuer and all the other children were born illegitimate. But the pursuer contended, on the following grounds, that he had been legitimated by the subsequent marriage of his parents.
1. The domicile of his father was always Scottish. The temporary absence in England did not affect his domicile, as that absence was occasioned by his military duties, and he kept, during the whole time, an establishment of servants at his own house in Scotland. He had merely a succession of temporary lodgings without any establishment suited to his condition in society whilst in England. And he returned to reside at Logan, so soon as his military duties came to an end by the disembodying of the regiment under his command.
2. The domicile of Mary Russell was unquestionably Scottish up to the moment of her going into England in April 1796. But her connexion with Colonel M'Douall had commenced about six months previous to that period, and she was already three months gone with child of the pursuer. During the period of her stay in England, though this was protracted till 1808, she never acquired an English domicile, as she was not there animo remanendi. She was there merelyas the companion, or dependent, of Colonel M'Douall, and constantly living with him, until his return to Scotland in 1800. And even the house at Penrith, first hired and then bought by Colonel M'Douall, was not a residence selected by her, but by him, where he paid the whole expense of maintaining and educating her and the children, and frequently came to visit them and stay with them. All events, the Scottish domicile of Mary Russell could not,
in the circumstances, be held to fall from her immediately upon her crossing the border; and there was no just ground for doubting that it continued until after the pursuer's birth in October 1796. 3. When the marriage was declared in 1808, it was a purely Scottish marriage, the domicile of the husband being Scottish, and Scotland being the place to which the parties looked as their matrimonial home. It was in Scotland that the contract was to be implemented; and so far as regarded the incidents, and proper consequences of the contract, and the rights and obligations of the parties, and the interests of their issue, the marriage was a Scottish marriage, in respect to which it belonged to the law of Scotland to determine what rights were conferred by such marriage on the parties and their issue. 1 In addition to this, Scotland was also the locus contractus, because, although a written contract was signed at Penrith, it was done solely with reference to the marriage in Scotland which immediately ensued; and it was done in a country where no marriage could be contracted by such proceeding.
4. It was the succession to Scottish heritage which was immediately in question; a subject which lay unalterably within the dominion of the laws of Scotland. And it was in a Scottish Court that the right of the pursuer under the Scottish marriage was to be decided. It was, therefore, by the law of Scotland alone that the pursuer's legitimacy should be tried.
5. In these circumstances, the retro-active effect of the Scottish law of legitimation, per subsequens matrimonium, must be allowed to have effect. There being a proper Scottish marriage, the husband being a domiciled Scotchman, and the matrimonial domicile, throughout, being Scotland, it must follow that the issue of the married parties was legitimated in virtue of that marriage, unless some absolute mid-impediment intervened, such as the existence of an intermediate marriage between either of the spouses and a third party. 2 But the circumstance that the pursuer's birth-place was England, was no such mid-impediment; for (1.) in the application of the principle of legitimation per subsequens matrimonium, it was the period of the child's conception, not of its birth, to which chief regard was had. But conception had taken place within Scotland, arising out of a connexion between parents then domiciled in Scotland, and who could therefore have reference solely to the laws and institutions of Scotland, in respect to the legal relations, direct or contingent, which arose to all parties concerned, under that connexion. The time of the birth was never regarded, in preference to the time of conception, unless where it was more for the interest of the child that it should be so. Indeed so much was this the case, that it was a fixed
_________________ Footnote _________________
1 Warrender, June 28, 1834 (ante. XII. 468), and II. S. and M'L.’s Appeals, 154; Story (Conflict of Laws), p. 162, §. 191.
2 1 Ersk. 6, 52; 1 Bankt. 1, 5, 58; 2 Craig, 13, 16.
rule that a child in utero was to be held pro jam nato in any question of privilege affecting it, such as the present. 1 The pursuer was therefore entitled to contend that he stood in the same position as if he had been born before his parents passed into England, in which case it could never have been disputed that he was legitimated by the subsequent marriage. But (2.) the mere place in which a child happened to be born, could not, per se, affect the relation in which his parents stood to each other, nor in which he stood to his parents. Thus if the converse of the present case had happened; if a domiciled Englishman had had illicit intercourse with a domiciled Englishwoman, in consequence of which a child was born, and the place of birth was Scotland, the parents having gone temporarily there during the mother's pregnancy; and if the parents had afterwards contracted a proper English marriage in England, the Courts of England would not have held that the place of the child's birth being Scotland (where legitimation per subsequens matrimonium prevailed), would cause the English marriage to acquire the foreign virtue of operating retro and legitimating the child; and, ex paritate, the place of the child's birth being England, ought not to deprive the Scottish marriage of its native virtue of operating retro and legitimating the child. In each case, and upon the same principles, neither the English nor the Scottish marriage would be strengthened or weakened in its peculiar legal force and effects by the incidental circumstance that a child of the married parties had been previously born abroad, in place of at home, (3.) Even supposing that the principle of legitimation per subsequens matrimonium did not operate fictione juris, but merely by a presumption of the law, that a matrimonial consent had preceded the intercourse of the parties, it was still a matter of indifference whether the child had been born in England or in Scotland, because the occurrence of the birth in England was not incompatible with the presumption of a previous exchange of matrimonial consent by parties whose domicile was Scottish. And (4.) if, in any view, it could be held that the pursuer's mother could lose her Scottish domicile between the period of the conception and the birth, to the prejudice of the pursuer, it ought equally to be held that her re-acquisition of a Scottish domicile by the marriage in 1808, while the pursuer was yet a pupil, and could have no domicile independent of hers, ought to inure to his benefit.
6. None of the previous decisions 2 afforded a precedent against the pursuer. In all of them the parents were domiciled in a foreign country, England or America, where legitimation per subsequens matrimonium was not allowed; and the decisions merely fixed that the law of
_________________ Footnote _________________
1 1 Dig. 4, 7, and 26; 1 Bankt. 2, p. 47 and 72; 3 St. 5, 50; 3 Ersk. 8, 76; 1 Blackst. c. 1, p. 130 (edit. 1830).
2 Sheddan, July 1, 1803 (Dicty. Foreign, Appx. No, 6); Rose (3 W. and S.), 54; Strathmore, March, 1821 (4 Sh, App. Ca. 93).
Scotland could not confer a virtue upon a pure English or American marriage, which the laws of England or America did not themselves confer. In the case of Ross there was the specialty that the locus contractus was Scotland; but that specialty was disregarded, and it was considered a proper English marriage, because the domicile of the parties, and the matrimonial domicile was England.
By the defenders it was pleaded—
1. As the pursuer was undoubtedly illegitimate at his birth, it was immaterial to inquire what was the domicile of his putative father. The law did not recognise his father, at his birth, and it was the domicile of his mother alone which affected him.
2. From the time of leaving Scotland, in April, 1796, to the time of returning to it in 1808, there was a period of twelve years, during which Mary Russell, the pursuer's mother, had constantly resided in England. During all that time, her residence there was purely voluntary, as she was under no legal tie, or obligation of obedience, to Colonel M'Douall, in any capacity. By whatever motive she might be influenced, England was still the place where she chose permanently to reside. She had therefore acquired an English domicile; 1 and so fixed was her residence there, that she had got her mother and sister to change their domicile also, and to reside permanently in family with her, and her mother remained resident there, even after Mary Russell's departure, her abode and domicile being finally fixed in England, where Mary Russell's domicile was equally established until she left England in 1808. In regard to the date when this domicile commenced, there were no termini habiles for suspending it, during any period after her passing into England, especially as she left no property in Scotland, and had no ties to connect her with that country, but, on the contrary, quitted it under circumstances which were likely to make her reluctant to return. In these circumstances, the single element of nativity was of little avail as to the question of domicile, and if any doubt existed whether Mary Russell instantly acquired an English domicile on crossing the border, she had at least acquired it prior to the pursuer's birth in October, 1796, by which time she had been above six months staying in England.
3. The pursuer was, therefore, born in England, with an English domicile. An illegitimate child could have no domicile but the place of his birth, especially when his mother's domicile was there; and in the question of an infant's domicile, it was the place of birth, not that of conception, which could alone be regarded. The alleged place of conception, if different from the place of birth, could not enter into the question of the domicile of the future infant; and even in a question as to an infant's
_________________ Footnote _________________
1 Bruce, June 25, 1788 (Bell's Cases).
legitimacy, it was the period of birth and not of conception to which the law of England looked, legitimating every child born after its mother's marriage, and disregarding all enquiry into the alleged time, place, or other circumstances attending an event so latent as that of conception. 1
4. Though a succession to Scottish heritage was involved in the pro-sent proceedings, that depended entirely on the question of the pursuer's legitimacy; and though the question was tried in a Scottish Court, it was the proper province of the law of Scotland to declare the illegitimacy of the pursuer, provided he was born under such circumstances that the Scottish law of legitimation per subsequens matrimonium could not apply to him. It would be subversive of international law, if the status and rights of parties depended not on the quality of the status and the nature of the rights in themselves, but merely on the accidental circumstance of the locality of the Court in which they were tried.
5. The doctrine of legitimation per subsequens matrimonium, was not juris gentium, but part of the municipal law of some states, while it was rejected by others. Even in Scotland, where the principle was allowed, it suffered various important limitations. The child born of an adulterous connexion could not be legitimated by the subsequent marriage of its parents. Nor could a child, whose parents were single at its birth, but one of whom contracted marriage with a third party, be legitimated by the subsequent marriage of its parents, after the dissolution of the intermediate marriage. The possibility of a continuous marriage, at and since the birth of the child, was there excluded by the existence of a mid-impediment, and legitimation per subsequens matrimonium was therefore inapplicable. For the same cause, where it was proved that no regular or valid marriage did exist at the birth of the child, and the laws of the country in which it was born did not allow the contracting of an irregular marriage, 2 the operation of legitimation per subsequens matrimonium was excluded, on the principles of the law of Scotland itself. But this was not a question to be determined by the law of Scotland alone. The pursuer was a native Englishman, and by his birth in that country ho became possessed of a status affected with various qualities both of privilege and of disability, which were of an inalienable character. The laws of Scotland could neither increase nor diminish these. Questions respecting alienage, for example, or respecting treason, &c., had reference to the status acquired at birth as being in many respects inalienable. It had been repeatedly held in England that the impress of bastardy, stamped by the laws of England which touched the illegitimate child at his birth, was indelible, and followed the person wherever he went. A due regard, therefore, to the principles of inter
_________________ Footnote _________________
1 Blackst. c. 16, p. 455.
2 M'Culloch, Feb. 10, 1759 (4591).
national law should prevent the Courts of Scotland from reversing the status of illegitimacy impressed by the laws of England at his birth, as it was according to the laws of England that the status of a child born there must be ascertained. 1
6. The cases referred to, which were decided in the Court of last resort, implied the principle that the bastardy of an English illegitimate birth was indelible. Opinions delivered by Judges of the highest authority, in deciding these cases, had laid that down as law. And in one of the cases (Rose) it had been expressly decided that a marriage which was celebrated in Scotland, and where the husband was a native Scotchman, possessing lands in Scotland, did not legitimate a child previously born in England. 2
On considering the Cases, the following Opinion was returned.
“All the facts which appear to us to be material for the decision of this cause are, in our opinion, so clearly proved, that we do not think it necessary to enter into the details of the evidence regarding them.
“Though there be no evidence that, at the time of the first intercourse between the late Andrew M'Douall, Esq. of Logan, and Mary Russell, or before the birth of the pursuer, a matrimonial consent had legally passed between them, it is clearly established that, in the year 1808, they, by a solemn written contract, acknowledged themselves to he married persons, husband and wife to one another, and that they did thereafter constantly live and cohabit together in Scotland as husband and wife, and were universally habit and repute married persons, from that time till the death of the said Andrew M'Douall in the year 1834. We can entertain no doubt whatever, that these facts are sufficient to establish a completed marriage, indissoluble by the will of either or both of the parties, according to the settled law of Scotland.
“It does not seem to be denied, and at any rate is clearly proved, that the pursuer, James M'Douall, is the son of the parties who were so united in marriage, born at Chester, in England, on the 19th October, 1796; and we also think it abundantly shown in evidence, that he was acknowledged as their lawful son, at least at all times posterior to the public declaration of their marriage in 1808.
“We also think it very clear upon the evidence, that the late Andrew M'Douall, the pursuer's father, was, during his whole life, a domiciled Scotchman; that having been born, brought up, and educated there, he never for a moment lost his domicile of origin, or acquired any other domicile to supersede it; that, though locally present in England at the time of the pursuer's birth, he was even then legally domiciled in Scotland, being only resident in England on military duty; and that he was undoubtedly both legally domiciled (and actually resident) in
_________________ Footnote _________________
1 Story (Conflict of Laws), p. 98.
2 Sheddan, July 1, 1803 (Dict. Foreign, App. No. 6); Strathmore, March, 1821 (4 Shaw's App. Ca. p. 93); Rose (3 W. and S. 54).
Scotland during all the public cohabitation with the pursuer's mother, as husband and wife, during twenty-six years after the acknowledgment of their marriage.
“We are of opinion, that, upon these indisputable facts, without the necessity of any farther inquiry, the pursuer is, by the settled rules of the law of Scotland, the legitimate son of his parents, and is entitled to have such his status of legitimacy declared, in terms of the conclusions of the summons in this action. For though, in the absence of all evidence, that at any time previous to his birth, or in particular, at the time of his procreation or conception, a matrimonial union of his said parents had been formed by celebration any where, or by consent duly adhibited in Scotland, he could not at the date of his birth have been declared to be legitimate, the marriage between them thereafter fully constituted by the law of Scotland, had, by the established rule of that law, the effect of vesting in him all the rights of a lawful child, as truly as if there were evidence of a marriage entered into before his birth. The principle of legitimation per subsequens matrimonium being firmly rooted in the law of Scotland, and universally acknowledged and enforced for centuries past, we need make no reference to authorities to prove it. And it being so fixed, it is incumbent on any one who denies its application to such a case as that now before us, to show some ground of exception recognised by that law, to exclude it.
“The defenders seem to rest their case for denying the pursuer's legitimacy on two points:—1. That the pursuer having been born in England before the marriage of his parents, and the law of England not acknowledging the principle of legitimation per subsequens matrimonium, the status of illegitimacy was stamped on him at his birth, and became indelible; and 2. That his mother, at his birth, or after it, was domiciled in England.
“Unless this last point is in some way to be connected with the first, we do not well understand the bearing of it, For if the pursuer had been born in Scotland, we imagine that it would scarcely be maintained, that the circumstance of his mother having at any time acquired an English domicile could in any manner obstruct the operation of the principle of the law of Scotland, after she was married to the pursuer's father by a Scotch marriage, and fully domiciled in Scotland. But indeed this point of the domicile of the pursuer's mother appears to us to bo really immaterial to the question. On every supposition, in the state of the evidence, if the time and circumstances of the pursuer's birth are to be enquired into, it must be taken as matter of fact that he was born illegitimate, whether the law of England or the law of Scotland be considered; and he would be so equally, whether his mother had her domicile in England or in Scotland. If it is to be held, that the rule of the law of England, which holds a person born there to be incapable of being legitimated by the subsequent marriage of his parents, must control the law of Scotland in regard to the effects of a Scotch marriage afterwards entered into with a domiciled Scotchman, as it may regulate the interests of persons all domiciled in Scotland, that will of course decide the case. But if that cannot be held generally, it is not obvious to us how it could make any difference on that point, though it could be assumed that the mother had a domicile in England at the time of the birth. If the law of Scotland cannot be so controlled in respect of the place of birth, the domicile of the mother cannot produce that effect.
“So far as the point may be thought material, we are of opinion that it has by no
“We further think it. not at all clear, that the lady afterwards acquired a domicile in England, or resided there, in the proper sense, ammo remanendi; as she always occupied a house held by Colonel M'Douall, supported by him, and subject to his control; and there seems to be no reason to believe that she ever intended to abandon her Scotch domicile. If she did so, it was not at Chester that she was so domiciled. But, supposing that by a mode of residence in England, taken up some time after the birth, and continued till 1808, she became legally domiciled in England, we are of opinion that such her domicile cannot in any manner affect the present question.
“On the first point above-mentioned, the supposed indelibility of the status of illegitimacy, because of the locality of the birth, and the rule of the law of England on the subject, we are, with all deference to any other views which may be taken of it, of opinion that it is not sanctioned by any authority in the law of Scotland, or by the principles delivered by the best writers on general law. We do not here speak of what might be the effect of any positive conflict of the laws of Scotland and those of England. We must presume, that the courts of England, if called upon in a matter belonging to their jurisdiction, would decide on sound principles according to their own views. But the question here is, what shall be the effect of a Scotch marriage, contracted between persons domiciled in Scotland, and who continued to be thereafter domiciled in the paternal mansion-house of the husband till bis death? What shall be the effect of such a marriage on the status of the child of such parents, claiming that status in a Scotch court, and in regard to important interests on which it belongs to those courts alone to decide? And, in this state of the question, wo are bound to state our decided opinion, that the place of the pursuer's birth, or the law of that place which would be applied to an English marriage and a domiciled English husband, can form no bar to the operation of the settled rule of the law of Scotland in relation to such a case as that now before us.
“We say this with the most perfect deference and respect for certain dicta, which appear to have been seriously suggested by persons of the highest eminence as authorities in the law. But all the cases, in which these suggestions of opinion occurred, appear to us to have been clearly decided, and to rest firmly, on other grounds. In all the three cases of Sheddan, Strathmore, and Ross, the judgments mainly proceeded on the domicile of the parties; and in the last, especially, the
To this Opinion, LORD Medwyn subjoined the following addition:—
“I concur in the foregoing opinion; at the same time I wish to bring more prominently into view the features of the case which chiefly affect my mind.
“The late Colonel M'Douall of Logan was, in 1795, employed to raise a regiment of Fencible Cavalry. It was embodied at Dumfries, and he marched with it into England on 9th April, 1796. It is not, and cannot he, disputed, that at this time Colonel M'Douall was a domiciled Scotsman, and that this domicile could not be affected by his absence on military duty.
“Some time in the course of the year 1795, Mary Russell went to reside with Colonel M'Douall, at Dumfries and elsewhere in Scotland, and she became pregnant. She continued to reside with him, and accompanied him into England when he went there with the regiment in April, 1796. She was a Scotchwoman, and till then never had been out of Scotland. She was at this time visibly with child, so that the overseers of the poor of Carlisle obliged Colonel M'Douall to grant a bond, dated 28th April, 1796, that her child should not become a burden on the parish.
“James M'Douall, the pursuer, was born at Chester on 19th October, 1796, and of Course the period of his conception took place when both his parents were in Scotland, and where they were both domiciled.
“Colonel M'Douall and Mary Russell executed, at Penrith in Cumberland, on 9th March, 1808, a marriage-contract in the Scotch form, by which they accept each other as lawful spouses, and by which ho settled upon her, if she should sur-vive him, an annuity of L. 400, payable from his entailed estates. Immediately after this, Colonel M'Douall returned with Mary Russell as his wife to Scotland, and sasine is taken on this contract, on 12th April, in favour of ‘Mrs Mary Russell, now spouse of Lieutenant-Colonel Andrew M'Douall of Logan;, and they continued to live as man and wife constantly in Scotland, and were so known and recognised, from that period till the dissolution of the marriage in 1834. The marriage was thus constituted by declaration and open cohabitation alone in Scotland, and no ceremony of marriage took place either in England or in this country.
“Upon these facts, the question arises, whether the circumstance of the pursuer's birth having taken place in England, will prevent the operation of the law of legitimation per subsequens matrimonium, which certainly would have taken place if Colonel M'Douall and the regiment had been allowed to remain in Scotland till after October, 1796.
“Now, this question relates solely to the effect of a Scotch marriage, between Scotch parties, and affects the succession to a Scotch estate; and I cannot understand how the law of any other country can form an element in the determination of such a question. In considering the application to such a case of the doctrine of our law, that legitimation per subsequens matrimonium takes effect in the case of children already born, Scotch Judges, whether in the Court of Session or the Court of Review, can only consider the provisions of that law.
“Now, I know of no limitation of the doctrine but that which is laid down by Erskine, b. 1, t. 6, sect. 52 (the doctrine is not noticed by Stair):—'The subsequent marriage, by which this sort of legitimation is effected, is by a fiction of the law considered to have been contracted when the child legitimated was begotten; and consequently, no children can be thus legitimated but those who are procreated of a mother, whom the father at the time of the procreation might have lawfully married.’ The rule, as given by Bankton, fixes on the same period, b. I, t. 5, sect. 54:—'Because the law, by a fiction with respect to legitimation by subsequent marriage, supposes the parties to have been married at the time of the child's conception.’ And again, in explaining that the marriage, though it take place after the death of a bastard child, leaving a lawful child, will make that child the lawful heir of his grandfather, says, ‘Because it is held the same as if it had preceded the conception of the child,' sect. 58. This was the rule also of the civil law, from which, more especially as sanctioned by the canon law (though upon a different principle), we adopted it along with all the other countries in Christian Europe, with the exception of England;—'Quia nuptiæ per jus fin-guntur retro cum concubina contractæ eo tempore, quo illa primitus in concubinam Bssumpta fuit, atque ita filius quoquo retro logitimus fingitur.’ 1 The words of Boehmer, commenting on this rule of the civil law, are, ‘Inde factum est, ut interpretes communiter ad fictionem juris confugere atque docere soleant, subsequens matrimonium retrotrahendum atque per fictionem supponendum, a tempore concubitus jam adfuisse inter cos, qui postea in legitimum matrimonium consen-tiunt, justas nuptias;’ and he adds, ‘Si tempore conceptionis adfuit impedimentum, lex non potuerit fingere, eo tempore contractum fuisse matrimonium.’ 2 The rule then is, ‘In his qui jure contracto matrimonio nascuntur conceptionis tempos spectatur;’ and it is only when it is more favourable for the child, that ‘tempus editionis est respicieudum.’ This rule was finally settled in the Roman code, by the following law of Justinian:—'Et generaliter definimus, et quod super hujusmodi casibus variabatur, defiuitione certa concludimus: ut semper in hujus-modi quseationibus in quibus de statu liberorum est dubitatio, non conceptionis sed partus tempus inspiciatur: et hoc favore facimus liberorum, ut editionis tempus atatuamus esse inspiciendum, exceptis his tantummodo casibus in quibus conceptionem magis approbari infantum utilitas expostulat, L. 11, C. de Nat. Lib.’
“As an illustration of this rule, I refer to the following law of the Pandects on a kindred matter:—'Ingenui sunt, qui ex matre libera nati sunt: sufficit enim liberam fuisse eo tempore quo nascitur, licet ancilla conceperit: et e contrario si libera conceperit, deinde ancilla pariat, placuit cum, qui nascitur, liberutn nasci, L. 5, § 2, de Statu Hom.'
“If the subsequent marriage is to have a retroactive effect, so far as regards the status of a child previously born, by a fiction which carries back the marriage to a prior date, the natural course is to carry it back to the period of the conception. Accordingly, we have seen that this principle has been adopted in our law, and it must be held to apply in the present case. Even then, if the accidental circum-
_________________ Footnote _________________
1 Voet. lib. 25, t, 7, sect. 6.
2 Jus Eccles. Protestantium, lib. 4, tit. 17, sect. 10.
stance of the mother living in the temporary residence of his father in England, as a part of his family or establishment) he being at the time in the eye of law a domiciled Scotchman), could be supposed to affect the domicile of the mother at the period of the pursuer's birth, or the decision of this case, which I think it could not, there seems to me to be no room whatever for the consideration of the place of the birth, in disposing of the question of the pursuer's legitimacy. For, at the time of conception, when by the fiction of law the marriage of the parents took place, they were both in Scotland, and there is not a pretence for holding that they had at that time any other than a Scots domicile, or that there was any impediment to marriage then taking place. And I can discover no circumstance which can prevent the effect of the subsequent marriage on the status of the child thus begotten; for it would not place him in a more favourable situation, but it might be the reverse, to look to the place of his birth instead of the place of conception; and it is only when it is more favourable for the child that attention is to be paid to the place of the birth. Most clearly, in the present case, we can regard the time and place of conception only.
“Upon these grounds, I am of opinion that the pursuer is entitled to succeed in this declarator.”
When the cause was resumed by their Lordships of the First Division, it was advised along with the case of Munro v. Munros, and their Lordships delivered Opinions disposing of both causes at the same time. These Opinions are given, infra, at the close of the subjoined case of Munro.
The Court, in conformity with the Opinions of the consulted Judges, pronounced a decree in favour of the pursuer, declaring his legitimacy, and finding him the lawful heir of entail.
Solicitors: J. Kermack, W.S.— Tod and Romanes, W.S—Agents.
