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writs for the commencement of legal proceedings were issued from the Office of the Chancery, i.e., of the Lord Chancellor, and, to assist him and furnish the appropriate writs to the suitors, a certain numbers of clerks, called præceptores (afterwards Masters), who were the king's officers, and took an oath for the due performance of their duties, were, according to Mr. Spence's “ History of the Rise of the Court of Chancery,” appointed. They were invariably ecclesiastics, Doctors of the Civil Law. in addition, other clerks belonging to the Chancery, known as the Six-Clerks, who, temp. Edward III., issued the writs of course (de cursu), and had acquired the name of Cursitors,hence the name of the street to the east of Chancery Lane;an office abolished in 1843. Chief among the Masters was the clerk or Custos of the Rolls, an office which has survived with great, independent, judicial and other authority until the present time. Some of these Masters for a long course of years sat upon the Bench with the Lord Chancellor for the purpose of giving advice with reference to the case being heard if applied to. The Masters were, after the reign of Edward IV. until the Lord Chancellorship of Lord Brougham, appointed by the Chancellor placing a velvet cap on the head of the official to be appointed. Lord Keeper Coventry, in the reign of Charles I., issued a series of orders for reforming abuses in the Court of Chancery, the most important of which related to the Masters' offices, and after the South Sea Bubble in 1720, it was found that many of the Masters in Chancery had, to indemnify themselves for sums paid for their places, speculated in that scheme with the suitors' trust-money in their hands; the deficit being found, according to Lord Campbell, to amount to more than £80,000. Lord Macclesfield's fine of £30,000 was applied to make up a part of this sum, the remainder being recouped by a temporary tax on proceedings in the Court. Finally, in 1852, the office of Master in Ordinary was abolished, except so far as related to proceedings then before them, as to which it has been said that, if it was necessary to sacrifice a Jonah to the whale of popular opinion, probably the most suitable victims were selected. The Chancery Judges were at the same time authorised to appoint chief and junior clerks for the purpose of assisting in the general business of the Court, and the Judges order what matters shall be investigated by their chief clerks, either with or without their assistance. The system upon the whole has worked well, but it may be doubted whether the framers of the change contemplated business of such magnitude as at present being transacted by the officials then appointed.
W. P. PAIN.
V.-A QUESTION OF LEGITIMACY. THE question which I propose to consider will probably
seem to many to be of little practical importance for two reasons: the first, that the peculiar combination of facts on which it can arise is not, in the nature of things, likely to happen often; the second, that the state of authority on the point is such as in all probability to deter a person interested in challenging the correctness of that authority.
The question, shortly stated, is this :-A., a person domiciled in a country where the doctrine of legitimatio per subsequens matrimonium obtains, marries B., who has had, before the marriage, a child, C., by him. At the time of the conception and birth of the child, A. was domiciled in England, or some other country where the doctrine above referred to does not prevail. Will the English Courts
hold C. to be legitimate or illegitimate? The question is to be dealt with as uncomplicated by any international difference of view as to the nature of the marriage contract, or the capacity of parties to contract it, and the intercourse resulting in the birth of the child is postulated as having taken place inter solutum et solutam.
The point seems to have arisen only once in England for direct decision-in In re Wright's Trust, 2 K. & J. 595 ; 25 L.J. Ch. 621 (1856, Wood, V.C.)—though it has on several occasions been the subject of judicial dicta. I think it is not rash to say that before the case last mentioned such authority as existed on the point was in favour of the legitimacy of C., that the learned Vice-Chancellor failed to observe that this was so when he decided against the legitimacy, and that the later dicta, which are all in favour of the ViceChancellor's view, were uttered on occasions when the precise point neither needed nor obtained a critical investigation. Let us take first the history of the question before the case of In re Wright's Trust; it will, I think, be found to lie in very small compass. I have not found any case, Scotch or English, in which the question was even indirectly
lealt with, of earlier date than 1840, when the Scotch cases of Dalhousie v. McDouall, 7 Cl. & F. 817, and Munro v. Munro, Ib. 842, were disposed of by the House of Lords (Lords Cottenham, L.C., and Brougham).*
As Wood, V.-C., in his judgment in In ve Wright's Trust, attached much importance to the authority of the French jurists, whose meaning I think he missed, I venture to
* Cotton, L.J., in his judgment in In re Goodman's Trust, 17 Ch. D., at p. 293, professes to find something on the point and in favour of his own view in the opinion delivered by Alexander, C.B., in Doe v. Vardill, 2 Cl. & F. 571, but, with the greatest deference, I must say that I have searched that opinion carefully without finding any language which throws any light on the question or shews it to have been in any way considered.
quote two passages, which seem to have escaped his attention.
Boullenois, tom. I., tit. I, c. 2, obs. 4, after discussing certain cases in a passage which the reader will find set out in Burge, I., pp. 105, 106, and deciding against the legitimacy of “un enfant Anglois, né en Angleterre d'un concubinage, et dont les père et mère Anglois seroient venus demeurer en France, et y auroient été mariés sans s'y étre fait naturaliser," proceeds, “Si depuis la naissance de cet enfant, né en Angleterre de père et mère Anglois, les père et mère s'étoient fait naturaliser en France, eux et leur enfant, et qu'ils eussent depuis contracté mariage, faudroit-il dès lors regarder cet enfant comme légitimé par le mariage subsequent ? J'estimerois l'affirmative. Ma raison est que dès que les père et mère et leur enfant ont été naturalisés, ils sont rendus participants de tous les droits ordinaires, et le droit commun de la nation.
Ce que j'estimerois encore dans le cas où le mariage auroit été contracté en Angleterre, si les père et mère se font naturaliser avec leur enfant en France." Merlin, Questions de Droit, s. Légitimation, § II., commenting on this last sentence, says: “Mais qu'entendait-il par là? Il avait parfaitement raison, s'il voulait dire qu'une fois les père et mère Anglais, naturalisés en France avec leur enfant, en quelque lieu qu'ils le célébrassent, fût-ce même en Angleterre, conférerait à leur enfant les avantages de la légitimation, et c'est ce que j'établirai dans un instant. Mais s'il voulait dire que les lettres de naturalisation, obtenues en France par les père et mère après la célébration de leur mariage en Angleterre, emportaient rétro-activement la légitimation de leur enfant, même naturalisé avec eux, il était complètement dans l'erreur."
There was, therefore, from the point of view of these distinguished writers, no absolute bar to the legitimation of a child born in England of English parents. Of course,
in In re Wright's Trust, the short facts of which I shall state presently, it would have been extremely proper to enquire whether the French law of that date required the change of nationality referred to by Boullenois and Merlin, as an indispensable condition, and whether, because it did not take place, the child whose rights were in question would have been held illegitimate in France. This question answered, the duty of the English Court would have been, I submit, to take the answer as deciding the status of the child for all purposes.*
Of the modern foreign textwriters Savigny and Bar are of opinion that the domicil of the husband at the time of the marriage should determine the question of the effect of the marriage in legitimating antenati. See Savigny, Conflict of Laws (Guthrie), p. 250, quoted in Westlake, $ 192, Bar, Private International Law (2nd edition, Gillespie, p. 434). These opinions appear to be shared by Scotch text-writers of eminence; see Erskine, Principles, 18th edition, by Rankine, p. 607, Bell, Principles, 9th edition, by Guthrie, $$ 1627, 1628, and see Bell's Dictionary and Digest, 7th edition, by Watson, s. v. Legitimation. The language of the French Civil Code, Arts. 331-333, is too general to justify any inference as to the views of the draftsmen upon our point, but it appears from Goodman v. Goodman, 3 Giff. 643 (1862, Stuart, V.-C.), that under the Code as administered in Holland in 1821, a child
* What the French law applicable to such a case is I do not presume to say. I observe that in a recent article, “ Du rôle international du domicile,” in the Journal du Droit International Privé, 1897, at p. 19, M. A. Chausse, Professo of Law at Montpellier, seems to be of opinion that in no case can an Englishman, even when admitted to domicil under Art. 13 of the Code legitimate an antenatus by his marriage, because, under a system “qui fait dépendre le statut personnel de la nationalité, cet étranger privilégié ne pourra réclamer le bénefice d'institutions inconnues on proscrites dans sa patrie.” Whether the French Courts uniformly take this view now-a-days I do not know. It does not seem to square with the decision in Lloyd v. Lloyd abstracted from Dalloz in 13 Beav. 401, n.