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law which In re Wright's Trust purports to decide, because the children were not represented. In 1869, the Scotch case of Udny v. Udny (L.R. I H.L. Sc. 441), was decided by the House of Lords, and Lord Hatherley (then Lord Chancellor) took occasion, at p. 448, to reiterate, obiter, the conclusion which he had arrived at, as Vice-Chancellor, in Re Wright’s Trust. The other Lords, (Chelmsford, Westbury, and Colonsay), said nothing upon the point. In In re G0odman’s Trusts, 1881, the C.A. (Cotton and james, L.]., Lush, L.]., diss.) reversed _]essel, M.R., deciding that the child born after the change in the father’s domicil, but before his marriage, whose contention had prevailed with Stuart, V.C., was entitled to share under the Statute of Distributions with her sister born after the marriage in the distribution ofthe estate ofa domiciled Englishwoman. The Court disapproved of a dictum of Wood,V.-C., in Boyes v. Bedale. In In re Andros, 24 Ch. D. 637 (I883), Kay, ]., in deciding that a gift in an English will to the children of a person domiciled in Guernsey, was to be taken as made to his legitimate children as ascertained by the law of his domicil, and that an antenutus, legitimated by the subsequent marriage of his parents, could take, declined to follow Bayes v. Bedale. Our point did not arise, but in the course of his judgment Kay, ]., took occasion to observe: “It must now be treated as settled that any person legitimate according to the law of the domicil of his father at his birth is legitimate everywhere within the range of International Law for the purpose of succeeding to personal property.” This is qualified by In re Grove. Later the learned judge, in language of some ambiguity, said: “The law, as I understand it, is that a bequest of personalty in an English will to the children of a foreigner means to his legitimate children, and that by International Law, as recognised in this country, those children are legitimate whose legitimacy is established by the law of the father’s domicil.” In In re Grove, 40 Ch. D. 216 (I887, Cotton, Fry and Lopes, L.]]., affirming Stirling, _].), the question turned on the domicil of a Genevese who had married and died in England. Cotton and Lopes, L.]]., held that the man was domiciled in England at the date of the birth of the child, and a‘ fortiori at the date of the marriage of the parents. Fry, L.]., held that the father had not lost his Genevese domicil at the date of the birth, but had exchanged it for an English domicil before the marriage. All were agreed that the marriage of a domiciled Englishman could not be held to legitimate rmtenati, whatever the domicil of the father at the date of the birth had been. “ In the absence of authority,” said Cotton, L.]., at p. 232, “the incidents and effects of a marriage must, in my opinion, depend on the domicil of the parties at the time of the marriage.” Taking “ domicil of the parties” to mean, quoad our point, “ domicil of the husband,” I venture to suggest that both Scotch and foreign jurists would agree that this is correct, but it does not seem quite consistent with other statements in the same judgment, e.g., “ What is really necessary, I think, is that the father should, at the time of the birth, be domiciled in a country allowing legitimation, so as to give to the child the capacity of being made legitimate by a subsequent marriage ” (p. 232), and, “ In my opinion, the domicil at birth must give a capacity to the child of being made legitimate, but then the domicil at the time of the marriage, which gives the status, must be domicil in a country which attributes to marriage that effect” (p. 233). Fry, L.]., while professing to agree generally with the law laid down by Cotton, L.]., added, rather ambiguously, “At birth the child took the domicil of its mother, and it took the status of illegitimacy, according to the law of the domicil of its mother, and it took also the capacity to change that status of illegitimacy for one of legitimacy, provided that, according to the law Of the domicil of the father, the subsequent marriage would work legitimation."
It hardly needs to be stated that it is a public evil that the same person should be regarded as legitimate in one civilised country and illegitimate in another. It is perhaps a greater scandal when a British subject is held legitimate in one part of the Empire and illegitimate in another. In his judgment in In re Goodman’s Trusts, ]ames, L.]., devotes some very energetic observations to this aspect of the question. It is, of course, impossible always and altogether to avoid these evils, so long as communities differ on the “ forbidden degrees ” and the extent of each other’s jurisdiction in divorce.
The case, however, of a marriage recognised on all hands as having been validly performed between competent contracting parties is different, and the denial of legitimacy to some, while it is conceded to others, of a group of antenati, all of whom are legitimate by the personal law of their father—as in the Goodman case—does not seem to be justified on any ground of morality or jealousy of jurisdiction. When the domicil of the husband at the date of the marriage is proved to be not English, the English Courts forthwith discard the characteristic rules of English law as to the incidents and effects of marriage, and proceed to apply other rules. Antecedently, one would have said that the only logical course to take was to enquire what consequences the law of the husband’s domicil attached to his marriage, so far, at all events, as status of persons and rights in movables were concerned. Such a rule seems to be j ustified by considerations of good sense and international comity. But for In re Wright’s Trust, and the other cases referred to, one could say that it was the rule of the English Courts. If the law laid down in In re Wright’s Trust and incidentally approved in the other cases is correct, it seems that in the case of the marriage of a domiciled foreigner the law toibe applied by the English Courts is neither the lex fori nor the law of the husband’s domicil, but tertium quid. In such a case as that of the Goodman family the tests of English law would have made all the children, save those born in wedlock, illegitimate. Tested by the law of the husband’s domicil at the marriage, all, it seems, were equally legitimate. Tested by the tertium quid, one of the antenati was legitimate, the others not. The practical result is that the English Courts not only impose on themselves the labour of ascertaining the husband’s domicil at the time of the marriage, which is inevitable, and the legal consequences of the marriage of that person, according to the law of the country of domicil, but also the seemingly gratuitous labour of enquiring into, and drawing conclusions from the man’s previous history, though the personal law of the husband declines the enquiry and disregards the conclusions. I venture to think that it is suflicient, the foreign domicil of the husband at the time of the marriage being proved, to ascertain, by evidence of foreign experts or otherwise, what effects the law of the country of domicil attached to the marriage, and to concede those effects so far as status of persons and rights in movables are concerned.
I am not prepared to say that an argument of some plausibility might not have been framed against the legitimation, />er subsequens niutrimonium, of the bastard child of a domiciled Englishwoman, on the score of its deriving its domicil of origin from her, and it is singular that no weight seems to have been attached to this circumstance in cases in which it occurred ; see Munro v. Munro, 7 Cl. & F. 842, and In re G00dman’s Trusts.
The notion that no child is legitimated by the subsequent marriage of its parents, unless it received a capacity for legitimation derived from the putative father’s domicil at the time of conception or birth seems to me to have originated in Vice-Chancellor Wood’s view of the doctrine of legitimatio per subsequens matrimonium, as being based on the fiction of a marriage prior to the conception. It may well be that this is so historically, but there seems good reason for thinking that, even in Scotland, the fiction had been practically discarded before 1856. That the doctrine of legitimatio per subsequens matrimonium should be still held not to apply to children born ex damnato coitu* is probably an instance of what is not unknown in legal history,—a rule originally based on reasons of one kind being retained and justified by reasons of another kind, the first set of reasons having been discarded as not squaring with modern modes of thought. If, then, this fiction be discarded, what reason is there for regarding the domicil of the husband, and his resulting personal law, at any other time than the actual date of the marriage? There is no other “ act in the law ” on which the question of legitimation can depend, and, if the English Courts are prepared, for the purpose of determining status of children and rights in movables, to regard, in any particular case, the personal law of the husband at the date of the contract, the only reasonable and consistent course seems to be to apply it thoroughly.
If a case like In re Wright's Trust could come up in 1897 as res integra, I think the Court would adopt a ratio decidendi which would not expose this country to the reproach of “standing aloof in barbarous insularity from the rest of the civilised world.” What we stand to gain by the authoritative disapproval of the principles enunciated in In re Wright’s Trust, and reiterated in the dicta in Udny v. Udny, In re Goodman’s Trusts, In re Andros, and In re Grove, is the ability to state a rule of that chapter of English Law which treats of “ private international” relations in terms which
* The capacity to marry must exist at all events at the birth. This is Lord Fraser’s opinion with regard to the law of Scotland ; see Parent and Child, p. 36.