United Kingdom House of Lords Decisions

The general result of the Scotch decision is thus summed up in the Rubric of the Court of Session Cases ^(a):—

Held, by the Lord Ordinary (Ardmillan):—1. That in substance and effect the claimant had, by the law of his father's domicile at the time of his birth, the status of legitimacy derived from marriage; 2. That such marriage not being incestuous and criminal by the law of Scotland, the issue of it, being legitimate by the law of the English domicile, must be held as legitimate by the law of Scotland.

In the Inner House, the Court (with the view of avoiding the discussion of the question as to the validity of a marriage with the sister of a deceased wife by the Scotch law) requested the parties to take the argument upon the opposite footing from that on which the Lord Ordinary decided the case; and it was accordingly agreed that the basis of the argument should be, that the marriage of the parents was regarded by the law of Scotland as incestuous, contrary to Holy Writ, and such as would render both liable to the punishment of death for incest if they came to Scotland;

Held, on this assumption by the First Division (altering the judgment of the Lord Ordinary in part, and adhering quoad ultra upon different grounds):—1. That the claimant was “lawfully procreate,” and this, although his bastardy might have been declared at any time between his birth in 1809 and the dissolution of the marriage in 1832; seeing that, by the Common Law Courts of England, at the time when this suit was instituted, all inquiry as to his bastardy was forbidden; and that, as these Common Law Courts would not allow the Ecclesiastical Courts to make inquiry into the actual fact of bastardy,—and legitimacy was therefore presumed,—the Scotch Courts stood in the same position as the latter Courts, and would make no inquiry into the truth, but accept the status of legitimacy resulting from the operation of the English rule.

Held (2), That although the marriage of the parents was, by the law of Scotland, incestuous and criminal, and therefore such as would not be recognized by the Scotch law, though valid by the law of contract, yet the Scotch Courts would not inquire into, or take the nature of the marriage into consideration, in any

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( a) 18 Second Series, 888.

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question as to the legitimacy of the offspring of such marriage; but finding him possessed of a status of legitimacy by the foreign law, the law of Scotland, though it would punish the parents, and repudiate the marriage for incest, would recognize the child as legitimate, and therefore entitled to succeed, as “lawfully procreate,” to real estate in Scotland.

What follows is an abridgment of the opinions delivered by the Judges of the Inner House.

Lord President's opinion.

The Lord President: In every point of view the Defender Alexander Livingstone is an Englishman. He was born in England, and has lived nowhere else. He was born of parents who were married in England, and had their domicile in England at the time of their marriage, as well as at the time of his birth.

The next point for consideration is, whether Alexander Livingstone is or is not legitimate in his own country, that is, in England. That question must be decided by the law of England, and we can only take that law as matter of fact from the evidence before us, the witnesses and authorities referred to. It does not appear to me that there is any conflict of authority on that point. The question is raised on the assumption or allegation that the first and second wives of Thurstanus were sisters, and, without expressing at present any opinion on the matter of fact, I must say that the printed evidence taken “before answer” is at least sufficient to show that the allegation is made bonâ fide, and is not a mere device to obtain a judgment of the Court on an imaginary or fictitious case. The contention of the Pursuer is, that according to the law of England, rightly understood, Alexander Livingstone, by reason of the alleged relationship between the first and second wives of Thurstanus, was not lawfully procreated of the marriage between his parents, that the marriage was not a lawful marriage, and that he is not in any proper sense legitimate, even by the law of England, although in England such questions can only be inquired into in the Ecclesiastical Court, and by a rule of procedure the Ecclesiastical Court is precluded from inquiring after the dissolution of the marriage by the death of either of the parties. But the legal result, however arrived at, appears from the evidence to be, that in the case which here occurs, namely, the case of no challenge anterior to the dissolution of the marriage in 1832, the marriage is unchallengeable on the ground alleged, and the offspring are legitimate to all effects. The allegation that the wives were sisters, be it true or false, is in such a case irrelevant to affect the status of the children. The law of England holds them to be legitimate, as much so as any other children. The last answer given by the very eminent counsel who was examined on the part

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of Mrs. Fenton is quite explicit on that point. The evidence of the learned counsel examined on the part of Alexander Livingstone is also quite explicit. There is nothing contradictory in the evidence as to the status of Alexander Livingstone.

The next question is, whether the law of Scotland will recognize the status of legitimacy so enjoyed by Alexander Livingstone, or will refuse to recognize it.

Here is an Englishman born in wedlock; legitimate in his own country. He has no connection with Scotland or its laws, except that he claims to be heir to a Scotch estate, for I hold the original domicile of his father to have been lost, and to be of no more consequence in this case than the original domicile of his grandfather. We are asked to pronounce in regard to that Englishman a declarator of bastardy, and to hold that, by reason of bastardy, he is incapable of succeeding to a Scotch estate. That is an appeal to the law of Scotland, and we, pronouncing the law, must give the answer. In my judgment, the answer of the law of Scotland to this appeal is, that it recognizes the status of legitimacy which belongs to Alexander Livingstone in England.

It was argued that Alexander Livingstone, if legitimate in England, was so only because inquiry into the facts connected with his birth is excluded by a rule of procedure applicable to the Courts of that country, a sort of rule of limitation which does not exist in this country, and which, it was said, belongs rather to the remedy than to the substance, and therefore should not be regarded by us, or allowed to shut out inquiry here. That is an ingenious way of stating the case, but I do not think it is satisfactory or sound. Alexander Livingstone is legitimate in England. Such is his status there, and such it must continue to be, according to the law of that country in which his parents had their domicile, and were married, and he was born and bred. Whatever speculations may be entertained as to the theory of the law of England in regard to this matter, and whatever may be said as to the voidability of such marriages in England, they have at least this important legal quality and effect, that if allowed to run their course without challenge, they give to the children the full status of legitimacy, of which they can never afterwards be deprived.

It was also argued, with much force, that if such marriages are by the law of Scotland illegal, and even incestuous, struck at by the Act 1567, we ought not (from mere comitas) to recognize them, or to abstain from inquiring into the facts; that if the parents had resorted to this country, the laws of this country would not have tolerated their cohabition, but would have subjected them to criminal prosecution; and that to recognize as legitimate the offspring of a connection which can be proved to have been of that character, would be in effect to recognize such marriages, and such criminality. That part of the argument, though forcibly put, was

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not to my mind convincing. The question we are trying, the only question we can decide, is a question of personal status, the status of the Defender Alexander Livingstone, who has not violated our laws, and whose parents even are not said to have violated the laws of Scotland, however much we may be disposed to reprobate the conduct imputed to them. It does not follow that, because the offspring of such connection, if had in Scotland, would not have been legitimate, we are to deny to the Defender the status of legitimacy which he, an Englishman, possesses in his own country, by virtue of the law which prevails in that part of the empire. The recognition of that status does not necessarily import an approval of the connection, or even a recognition of the marriage of which he was the offspring. The status of legitimacy is not by our law confined to the offspring of a lawful and valid marriage, even in the case of domiciled Scotchmen. On the contrary, it is conceded to the offspring of connections which, if rigidly dealt with according to their real character, would be reprobated by the law, the religion, and the morality of the country. To pronounce a declarator of bastardy in regard to a man who in England, his own country, is not a bastard, but, on the contrary, is by law in full possession of the entire and unchallengeable status of legitimacy, would be to introduce a new conflict between the laws of the sister kingdoms, not forced upon us, I think, by any principle of the law of Scotland.

It was observed that, in the case of Birtwhistle, the Courts of England excluded from inheritance a party who was legitimate by the law of Scotland, which was, in that case, the law of the domicile. I do not think that the judgment in the case of Birtwhistle is in point. In the first place, it proceeded on the application of an English statute, which had special reference to rights of inheritance in land in that country. Without expressing any opinion of my own as to the reasoning of the judgment by which that statute was held to be conclusive, it is enough for the purpose of the present case to know that the judgment proceeded on that ground. In the second place, even had it been otherwise —had the judgment proceeded on other and broader grounds, I am not prepared to say that the liberality which characterises the law of Scotland in regard to international rights ought to be restricted in a spirit of retributive justice. In a question of doubt, I would rather lean to support than to overthrow the status of legitimacy already acquired, but in this case I entertain no serious doubt.

In the opinion now expressed, I have made no allusion to the statute of Will. 4, which was passed in 1835, because the marriage referred to having been dissolved by the death of one of the parties in 1832, the provisions of that statute were not required to protect it. But I do not say that the statute is immaterial in dealing with this question. It is an important declaration of the

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British Legislature in regard to the state and condition of the children of such marriages. If the marriage referred to in this case had not been dissolved till after the date of the statute, the Defender would have been entitled to claim the protection which the statute affords, and I think we would not have refused to give effect here to the obvious spirit and purpose of the enactment.

Lord Ivory's opinion.

Lord Ivory: I am of opinion that, with a slight modification, the Lord Ordinary's Interlocutor should be adhered to, and expressly upon the grounds which are therein specifically set forth.

I do not go into the larger and more general views of the law which are discussed in his Lordship's very able and elaborate Note. These views involve matter of the very deepest importance; and all the more that there appears to be considerable difference of opinion among jurists of high eminence in regard to them. We were, therefore, prepared to have called in the assistance of our whole brethren, had it been found necessary for a decision of the cause to adjudicate in this sense. But we have thought that this might conveniently and with advantage be avoided; and, accordingly, it was a condition of the present argument that it was to proceed—of course hypothetically—upon the assumption that the marriage, so far as the Court has now occasion to consider it, would, by the law of Scotland, had it taken place in this country, and between parties duly domiciled in it, have been ab initio and throughout null and void; and, consequently, that the Defender, as the eldest son of that marriage, would have been illegitimate and a bastard.

But the marriage did not take place in Scotland, nor between parties domiciled at its date in that country. On the contrary, the Lord Ordinary has found, and as I humbly think upon the evidence, rightly found, “that the Defender was born in England, the offspring of a marriage celebrated in England between parties domiciled in England at the date and during the subsistence of the marriage.”

Upon these various points of fact no dispute, indeed, was raised, except as to the finding of domicile. But after a careful study of the proof, it does not appear to me that the Lord Ordinary's conclusion in favour of the English domicile can be successfully impeached. I do not waste time by going into the details of the evidence. I am satisfied that, at the date of the second marriage, both Thurstanus Livingstone and the lady whom he married had their domiciles in England; and that the domicile of the marriage, in its contraction, as during its subsistence, was exclusively English. That the Defender was the son of this marriage, himself born in England, and that from the moment of his birth down to the date of the present action, his constant residence and uninterrupted domicile have been in that country—are matters which have not been called in question.

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It is with reference to this species facti that the Lord Ordinary has found, farther, “as matter of fact, that the Defender is legitimate according to the law of England.” And when it is kept in mind that the marriage was dissolved by the death of his mother in 1832, followed by the death also of his father in 1839—while it is in evidence that, by the law of England, no challenge of the legitimacy of any child born in wedlock can be entertained or given effect to, at the instance of whomsoever, from the instant of the decease of any one of his parents—nothing more appears to be necessary to support the Lord Ordinary's proposition. The Defender has in England possessed the status of a child absolutely and unchallengeably legitimate, so far as the English law affects him, ever since the year 1832; and as the succession here in dispute did not open by the death of Sir Thomas Livingstone until the year 1853, it will thus be observed that the Defender had at that time been in the full and recognized possession and exercise of the status of legitimacy for not less than twenty-one years.

Accordingly, I do not understand that, had the present question not brought into operation certain Scots interests, as contradistinguished from English ones, there would have been any controversy as to the Defender being entitled, by force of his undoubted English legitimacy, to all the rights and privileges, whether of succession to his parents or otherwise, appertaining to any other English lawful child.

If his father had died intestate, leaving estates in England, whether real or personal, I take it there can be no question that these, if there was no other surviving child of the marriage, must have descended to the Defender—the first in his character of heir-at-law, the other in that of executor; and pari ratione, the Pursuer, though surviving sister of the Defender's father, could not have taken in either of these characters, as against any of the issue (legitimate in England) of her brother's marriage. The same would have been the result as to English honours of inheritance, had such been conferred upon the father of the Defender.

But suppose that the Defender's father had himself, and with his own means, happened to acquire, and had, at his death, held property, heritable or moveable, situate in Scotland, would the Pursuer have been in any more, or the Defender in any less, favourable position in regard to it? Take, in the first instance, moveable funds, to which it might have been necessary in Scotland to make up a title by confirmation; would the Defender, after obtaining letters of administration in England to the English personality, have been excluded from equally making up a title to the Scots moveables? Yet, if thus entitled to succeed as to the moveables, what stronger reason could there be for refusing to allow him to take up his father's heritable succession,—the heritable

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estate being one, perhaps, which he had acquired subsequent to his wife's death, and after the Defender's English status of legitimacy had thereby become indelible? This, however, may be thought rather to be anticipating.

But, once more, and to reverse in so far the position of parties, suppose that the Defender, as well as his father, had died, and that the Defender, having no issue of his own, had left an English succession, what was there to have prevented the Pursuer, as his nearest heir and next of kin, from taking up that succession, on the footing of the Defender's English legitimacy? She would, in that case, have been the only relation of the defunct entitled to take. Yet if the Defender, though having no issue, had left brothers and sisters of the same marriage bed with himself, these last would have excluded the Pursuer, for the same English legitimacy would, as to all its accruing benefits, have enured in the first instance to them.

I assume, then, as the result of the evidence laid before the Court, that in England, and to all legal effects, quoad succession, or otherwise, the Defender is in the most ample measure entitled to the character and status of a lawful child, the offspring of a marriage between his parents; and that, whatever may have been the case before 1832, the year in which the marriage was dissolved by his mother's death, he has, at all events from and since that date, enjoyed all the rights and privileges of such a status; and had, at the date of the challenge brought by the Pursuer, been in full and undisturbed possession of it for twenty-one years.

But the Pursuer says, esto he was legitimate in England, still he was a bastard by the law of Scotland. And, accordingly, the main conclusion of her action is directed to the support of this abstract proposition, “that the said Alexander Livingstone is a bastard, and is not the lawful child of the deceased Thurstanus Livingstone.”

Now, at the very first blush of such a proposition, it could not but appear to be a very unhappy state of things, should the result really be as the Pursuer contends, that, within the limits of the same united empire, under the same sovereign and legislature, and in a state of society which forms but one national family from one end of the island to the other, the Defender could thus be a bastard in Scotland and a lawful child everywhere else.

It would, indeed, imply contradictions and complications so numberless and extraordinary, and lead to such incalculable confusion in all the relations of life, that nothing short of the clearest and most absolute authority should be received in support of it.

The case of Vardell and Birtwhistle was argued as an authority of this kind; but, with deference, this is entirely to misapprehend the true nature and effect of that case. As I have always been given to understand it, the English Judges did not there proceed

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upon any ground of illegitimacy as against the child of the Scots marriage; they went entirely upon the legal construction of the Statute of Merton, as introducing certain rules of succession in regard to a particular class of English estates of inheritance, whereby no one could succeed who had not been actually born within the bonds of wedlock. It was much the same as if a question had occurred of old in our own Courts, under this statutory enactment, now happily repealed, whereby all papists were declared incapable of succession. In either case, the status of lawful child remained intact, and, to all other effects than that immediately involved in the statutory enactments, was allowed to have its full force. But as in the one case the papist child could not succeed qua papist, and the estate thus passed on to the next protestant heir; so, in the other, the child not born within the bonds of actual wedlock, but only rendered legitimate by the retroaction of a subsequent marriage, was held not to fall within the only description of an heir entitled to take by the Statute of Merton. It is a very grave question, whether, even in this sense, the judgment did not do substantial violence to the spirit, while it adhered so rigidly to the mere letter of the law. But if it had been thought to impinge upon the status of legitimacy, it may be doubted whether, even by the Judges who most strenuously took up the statutory grounds, the question might not have been held entitled to a very different consideration.

Be this as it may, the case clearly appears to have no material bearing adverse to the Lord Ordinary's judgment; and I am not aware that there is any other authority which, duly explained, has more.

The fundamental proposition laid down by the Lord Ordinary, and the only one with which, on the assumption upon which the present argument has proceeded, we have here to deal, is, that the Defender being legitimate by the law of England, “his legitimacy ought to be recognized by the Scots Courts.” Or, as his Lordship more largely expresses it in his Note, “The Scottish Court ought, on the principles of international law, to recognize the legitimacy of Alexander Livingstone.” “The status of legitimacy is a personal quality, and when once impressed by the law of appropriate jurisdiction, qualitas personam sicut umbra sequitur.”

I entirely concur with the Lord Ordinary in this broad and simple view of the question. I see no reason, under the species facti which here occurs, to make the present case at all an exception to what is undoubtedly the general rule of international law. On the contrary, it humbly occurs to me that sound principle, as well as sound policy, alike concur to place the present case among the most highly favourable examples for the application of the general rule. And when I go to the jurists and doctors, and range over the wide field of their speculative opinions and dicta, while I must fairly own that here, as in almost every international question,

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I find perhaps certain minor inconsistencies and discrepancies in some of the more minute and subtle conclusions at which they incidentally arrive, I am strongly impressed with the conviction that the substantial preponderance of their authority is with the judgment, on the great and leading principle which it involves.

I should have had no hesitation, therefore, in giving effect to the international principle, even if the question had occurred under less favourable circumstances than it here presents itself; that is to say, if the status of legitimacy had been sought to be imported from a country altogether strange to us, with whose social elements we came less into contact, and with all whose habits and feelings we had less immediate sympathy than must necessarily subsist between us and our countrymen on the opposite end of the island, I should still have arrived, and with confidence but little if at all abated, at precisely the same conclusion. But where the question occurs, as here, between members of the same imperial state, and where all the relations of society are so intimately fused together, as in such a country they necessarily must be, it would be, as I humbly conceive, next to monstrous to allow the general international principle to be displaced. No doubt, in the rigorous eye of law, England is in one sense to us but as a foreign country. But it is a foreign country which stands toward us in very peculiar and close bonds. And such being the case, nothing, in my opinion, but express, absolute, and uncontrollable authority (which certainly does not here exist) ought, in a question like the present, to be allowed to introduce an anomaly so unfortunate as would be the declaring a man bastard in one end of the island who is received to all effects as legitimate in the other.

The Pursuer has urged, that to recognize the legitimacy of the Defender in the present case would be to give effect to and acknowledge as lawful a marriage which would in Scotland be repudiated as utterly null and void, because ( ex hypothesi of the argument) incestuous, and therefore criminal. And it is plausibly argued, that this necessarily implies a flying in the face of what all countries have received as sufficient ground, on exceptional grounds, for denying in a question of conflict of law, effect to such foreign rules or judgments as run counter to the fundamental constitutions, and social and domestic relations, and moral habits and feelings of one's own country.

But, be the force of this argument what it may, it is humbly conceived to have no proper place in the present question. If, indeed, the Defender's father and mother, having formed what the law of Scotland repudiates and condemns as an incestuous connection, and had then come down to Scotland, and there openly lived and obtruded their incest on society, to the scandal and offence of their neighbours, and in defiance of the law under which they had come to reside, then there might have been room for considerations of this kind, and some necessity for not only refusing

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to recognize the legality of such a marriage, but even actively interfering to repress a cohabitation within its territory, which the law of that territory held to be contra bonos mores, and positively criminal. But here there is no question whatever as to the validity of any marriage, and in this lies the fallacy of the Pursuer's reasoning. The law has not been called in to enforce or give effect, directly or indirectly, to any act which infers either a scandal on society, or a breach of national morals and decency, or the commission of any crime, or aught else, the existence of which alone could give colour or substance to the supposed exceptional considerations. What is here in issue is not the validity of the marriage, but the status of the Defender as a legitimate child. Can this not be given effect to without offence to the law, or the moral and social constitutions of Scotland? The Defender has never been in Scotland, and may never come to Scotland. He is legitimate in the land where he has ever dwelt. He comes into Court clothed with that legitimacy after unbroken enjoyment of it for twenty-one years. It might have been that the flaw now founded on occurred generations, and even centuries back, and that every successive family during all that period had, by the law of the land of which they are the subjects, been recognized and held entitled to succeed as undoubtedly legitimate. What has the law of Scotland to do inquiring farther? And when or where, if such inquiries be entertained, is the objection to stop? In England, it seems to be a rule of sound wisdom, that even there, where the original vitiam of the marriage, and where the necessary investigation as to matters connected with it, occurring within its own bounds, might be so much more easily carried on, that all challenge shall be foreclosed whenever either of the parents dies. And why is this? because, in a question of bastardizing the children, the law manifestly shields them with its protection under circumstances where the parent, if alive, might possibly have been able to explain all that is defective or primâ facie injurious to them in the evidence. Shall the law of Scotland step in and deal out to these same children a harder measure? With submission, this is a conclusion not to be assumed, but on grounds infinitely stronger than any that have been urged, or than it seems possible to urge, in the present case.

It has been justly contended for the Defender, that the issue may sometimes be legitimate, where there can be no doubt that the marriage has been void—nay, where in the result the marriage has been actually annulled. And reference was in illustration made to the case of issue by a putative marriage, where one or both of the parties were at the time in bonâ fide. It is no answer, that the only case of this kind which occurred in Scotland did not reach a final judgment. The solemnity with which the question was entertained, and the favourable allusions to the principle

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contained in some of our institutional writers, gave great countenance to the receiving of such a consideration as an element in questions like the present. But whether or not in Scotland, there can be no doubt but that the issues of such putative marriages are received as legitimate in various other countries. For example, in France, Toullier ^(a) treating of a marriage entered into in the bonâ fide belief, induced by long absence and supposed death, that a previous marriage of one of the parties had been dissolved, lays it down—1. That on the re-appearance of the former husband or wife no challenge of the second marriage would lie, but at his or her instance. 2. That no length of time, however, could exclude such challenge if he or she chose to bring it; and, 3, which is the important point here, that “si l'époux faisait à son retour annuler le mariage contracté pendant son absence, les enfans qui en seraient issus n'en seraient pas moins legitimes, pourvu que le deux époux ou seulement l'un d'eux fût de bonne foi.”

Now, suppose that such a question had actually occurred in the foreign country, and that there while the marriage was annulled, its issue was at the same time declared to be lawful, because of the good faith of both or either of the parents. How ought the international rule to be acted on in Scotland in such a case? If a Scot's succession was in dispute, ought the Scots Court to step in and exclude as bastards the very parties whom the law of their own country had protected against the innocent error of their parents? It is humbly thought that neither policy, principle, law, nor common sense would support such a conclusion.

I have throughout these observations assumed it as proved, that the second marriage was established to have been in point of fact a marriage with the sister of the first wife. And it is after giving the fullest effect to this, as ex hypothesi the species facti, and that which is most favourable for the Pursuers, that I have arrived at the results which I have stated. If it had been necessary, from taking a different view of the law, to decide expressly that this relationship between the two wives had been actually established, I confess I should have been disposed to make a more rigorous scrutiny of the evidence before coming to a decision. I do not say, that on such further consideration I might not have been satisfied that the fact was sufficiently made out. Nor do I wish it to be understood, that even now I have any very substantial leaning the other way. But certainly the evidence is in various particulars open to observation. And in a question of bastardy such as this, it would fall to receive a very severe examination before depriving a party in the Defender's situation of a status which he had so long possessed undisturbed. According to the aspect in which I have viewed the question, however, and

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( a) Toullier, sect. 486. p. 410.

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seeing that the Court have arrived at the same conclusion with the Lord Ordinary, even on the impossible assumption that the relation was as alleged, it is of no consequence that we should go deeper into this branch of the question.

Lord Curriehill's opinion.

Lord Curriehill: The Pursuer maintains, that even although the Defender's status be that of legitimacy according to the law of England, the country of his domicile, he should not be recognized as legitimate in Scotland, because, by the law of Scotland, a marriage of a man to the sister of his deceased wife not only is ipso jure null and void, as being within the forbidden degrees, but is criminal, and is so heinous a crime, that the committers are punishable by death; and according to the jus gentium, the law of this country should not give effect to a foreign connection of this kind, which is contrary to its policy, and to the loyal, moral, and religious sentiments of the people of Scotland.

It does not appear to me to be necessary to consider the merits of this argument, because, as I think, it is not applicable to the present question. If Thurstanus Livingstone and his second wife had come to Scotland during the subsistence of their marriage, and an action had been brought for enforcing their conjugal rights or duties, it might have been necessary to have inquired whether or not the law of Scotland would recognize their English status of husband and wife. But, as formerly mentioned, the question which the Court has at present to determine is not what was the status of these parties, or either of them, while their marriage subsisted; but what is the status of the Defender Alexander Livingstone subsequent to the death of both of them, and at the present time. And since he was legitimate in the country of his own domicile long before this action, and still continues to be so, there is nothing contrary either to the public policy of the law of Scotland, or to the loyal, moral, or religious sentiments of the Scottish people, in giving effect here to the status of legitimacy which he holds in his own country. The fallacy in this argument consists in confounding the question whether the law of Scotland of legitimacy will give effect to the status which belongs at the present time to the Defender himself, with the quite different question whether it would have given effect to the status of husband and wife which belonged to his now deceased ancestors? In point of fact, his parents never did come to this country, and never did contravene its laws; and it is after they have long been in their graves their descendant comes into this country to avail himself of a succession which has opened to him in virtue of the status which belongs to him by the laws of his native country, and by giving effect to which no outrage can be inflicted on the public policy of our law, or the sensibilities of the people. Suppose that it had been the Defender's grandfather,

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or great-grandfather, or some more remote ancestor from whom he is descended, who had married a sister of a deceased wife, and that the law of the country in which that ancestor and the intermediate descendants were domiciled refused to sustain any challenge of that marriage, and held the offspring to be legitimate, would the law of Scotland refuse to give effect to the Defender's status of legitimacy, on the ground that, by doing so, the public policy of our law would be violated, or that it would be a public scandal, merely because the marriage of some of his remote ancestors in a foreign country might have been so considered if they had come to this country? I know of no authority, and I can see no good reason for such a doctrine. And, therefore, without stating any opinion upon the merits of the argument to which I have referred, I hold it to be quite inapplicable to the present case.

I say nothing on the subject of Lord Lyndhurst's Act, because, as the parents of the Defender were dead before that Act was passed, it cannot apply to this case.

Lord Deas' opinion.

Lord Deas: Holding the domicile to be English, the next question is, what is the status of the claimant, Alexander Livingstone, according to the law of England? This is, of course, to us a question of evidence; and, judging from the evidence, I must hold that his status in England is the status of legitimacy. His parents were domiciled and regularly married in that country. While they were both alive, the marriage might have been voided by a suit in the Ecclesiastical Court; but after the death of either parent, the marriage, and consequently the legitimacy of the children, became absolutely unchallengeable.

No challenge of the marriage was instituted in the lifetime of the parents, and none could now be instituted, even had Lord Lyndhurst's Act not passed, under which all challenge would be excluded, although both the parents had been still alive. In England the claimant, Alexander Livingstone, has thus the status of legitimacy; and in that country, as I understand the law, he is entitled to succeed, as a lawful child, both to real and personal estate.

This being so, the question arises—Why should he not be equally entitled to succeed to real and personal estate in Scotland? The answer made is, that by the law of Scotland—according to the condition and assumption of the argument—the marriage of his parents was not only unlawful, but void and incestuous. The argument, as I understand it, is not rested on the mere fact of the marriage being one contrary to the law of Scotland; for suppose the law of Scotland were to prohibit marriage between cousins-german, or some more distant relatives, on grounds of mere expediency, the effect of that prohibition would certainly not be to prevent the applicability, here, of the rule that children legitimate

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by the law of the domicile are legitimate everywhere. But what is said, forcibly, is that the marriage is not merely prohibited by our law, but that (according to the condition of the argument) it is prohibited as contrary to Holy Writ, and to the established religion of the country, and is declared by statute to be incestuous, and the parties contracting it to be punishable with death. This being so, the rule of international law which would lead us to recognize an English marriage, valid and unchallengeable in that country, as equally valid and unchallengeable in this, fails, it is said, in its applicability,—there being a well-known exception to that rule, within which such a case falls,—and, consequently, it is said that, as we would not recognize the husband and wife as lawfully married persons were they living together in this country, but on the contrary, might try and punish them for incest, so we cannot recognize the legitimacy of the offspring of that marriage.

I am disposed to admit the premises, but I demur to the conclusion. I am disposed to admit,—assuming the law of Scotland to be as the argument assumes it,—that we would not have recognized the parents as lawfully married persons, but, on the contrary, that had they been living and cohabiting in this country, they might have been tried and punished for incest. But I do not think it follows that we are, therefore, to refuse to recognize the status of legitimacy which the law of the domicile,— the law of his own country,—gives to the unoffending child of that marriage. The reason why we would not recognize the parents in this country as lawfully married persons is, that our established principles of public policy, morality, and religion (taking these to be as they are assumed to be in the argument) would be thereby scandalized, and the feelings of the community outraged; and upon this ground alone rests the exception to the general rule of international law that the status of the domicile is the status everywhere. But this reason totally fails in its application to the question of legitimacy of children who have been parties to no offence against our law, and the recognition of whose legitimacy is not necessarily a recognition of the morality of the course of life followed by their parents. The proposition we now affirm simply is that the child, being legitimate by the law of the domicile, must be held to be legitimate here. True, his legitimacy depends upon the validity of the marriage of his parents. But all we judicially know of that marriage is that it was regular and valid in the country where it took place. For the purposes of this question of legitimacy we are not called upon to inquire, and are not entitled judicially to know, whether the parents were connected with each other by affinity or not. Into the allegation that they were so connected, all inquiry stands absolutely barred by a rule of the law of England, to which we give effect for the purposes of

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this question of legitimacy, although we might not give effect to it for the purposes of every other question which might have been raised. If we are bound or entitled to acquiesce in and give effect to that rule for the purposes of the present case, then, in deciding this case, we necessarily exclude ourselves from judicially knowing the fact upon which the objection to the marriage rests. The true difficulty is, whether we are right in refusing to inquire into that fact? But, if right, as I think we are, in refusing to inquire into it, then, in recognizing the legitimacy, we can no more be said to recognize the legality of a marriage with a deceased wife's sister than if we had affirmed the legitimacy in respect the claimant had been legitimated by Special Act of Parliament applicable only to his own individual case. In that event, surely, although the statute had been an English statute, we would not have refused to recognize the legitimacy because the marriage had been one of the kind it is said to have been here. There may be legitimacy although there is no marriage; and, when the law of the domicile recognizes the child of the marriage as legitimate, and bars all inquiry into the relative position of the parties who contracted that marriage, I see nothing which scandalizes or outrages public feeling, or the morality and religion of this country (however these may be held to be opposed to such marriages), in recognizing the legitimacy of such children, any more than there would be in recognizing their legitimacy if it depended upon an English statute, barring all inquiry, and declaring them legitimate.

I shall not pretend to say whether we would have arrived at the same result had this question been competently raised before us at a time and under circumstances when inquiry into the validity of the marriage was not barred by the law of England. I shall only say that much, in that case, might have depended upon whether we were, or were not, under the necessity of inquiring into and either approbating or reprobating the marriage in disposing of the question of legitimacy. But the present question arises at a time and under circumstances when all inquiry into the relative position of the married parties at the time of the marriage stands absolutely and irrevocably barred by the English law; and I conceive we are doing no violence to any rule of our own law when we hold such inquiry to be equally barred in this country as it is in England, and consequently give effect to the status of legitimacy as belonging to the claimaint Alexander Livingstone, in his own right, and inuring to him in this country equally as in his own.

Against the judgment thus pronounced by the Court of Session, Mrs. Fenton in due time, on the 8th May 1857, tendered her Appeal to the House of Lords.

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