time at which the father's actual domicil applies its law to the child's status.1 The Prussian Code treats carnal cohabitation at a certain period before the birth as evidence of paternity; 2 but in legitimation by marriage, it makes the rights to legitimacy date from the marriage ceremony.3 We may consequently hold that wherever the marriage is the act of legitimation, then the father's domicil at the time of marriage determines, in Germany, the law. And there is strong reason for this conclusion. When a sovereign gives to a domiciled subject the right to legitimate his children by any solemn act, such legitimation is to be regarded as decreed by the sovereign himself. Whether such provision be part of the common law of the land, or be part of a general code, it is nevertheless an act of sovereignty which, when the sovereign has jurisdiction, cannot be disputed by other states. If the child and the parent are both domiciled subjects of the sovereign decreeing the legitimation, this legitimation cannot be extra-territorially impeached. Form determined by rule actum. § 248. So far as concerns the form of legitimation, the better opinion is that the principle of locus regit actum prevails. In most countries it is required that legitimation locus regit should be by a solemn act, the object being to protect parties charged with having illegitimate children from fraud, surprise, or force. The recognition by an Austrian of a natural child in Italy, it is therefore held, must be in conformity with Italian law. Yet it is urged by Fiore that this rule should be taken with some reservation. If the act of recognition should be solemnly made in Italy, it would be hard if it should be pronounced void in Austria, the father being an Austrian, because in some slight particular it did not come up to Italian law.* 2. Legitimation by Sovereign Decree (rescriptum principis). § 249. Such forms of legitimation have been not infrequent in Legitima Europe by act of the supreme power; and in the tion by per- United States they have been held, when enacted by state legislatures, before the death of the putative pa sona' law valid in Europe. 1 Bar, § 102. 2 A. L. R. ii. 1, § 1077. 8 A. L. R. ii. 2, § 598. 4 Fiore, Op. cit. § 139. rent, to entitle such legitimated children to all the rights of children born in wedlock. The question however, is, what force such statutes should have abroad. It has been argued, on the one side, that as the edicts of a particular sovereign such acts can have no extra-territorial force.1 Sir R. Phillimore, on this point, says that this "might give rise to an international question of some nicety, though reason and principle are in favor of the recognition by other countries of such legitimation, where it is valid lege domicilii. As to immovable property, the rule respecting such legitimation would, perhaps, be liable to the same restrictions as the legitimation by sentence of a court of justice." 2 Schäffner earnestly presses the universal validity of such legitimation, when valid according to the laws of the country where such legitimated party has domicil. The question, he argues, is one of status, as to which the law of domicil has universal force.3 And this conclusion rests on the sound position, that legitimacy may be imparted by a state to its domiciled subjects according to its own system of law. Should, however, the child have a different domicil from the father, to affect the child the legiti 1 P. Voet, iv. 3, § 15; Argentræus, No. 20; J. Voet, de stat. § 7; Boullenois, i. s. 64; Bouhier, ch. 24, No. 129. 2 Int. Law, iv. 365. Schäffner, § 39; Guthrie's Savigny, p. 258. Schäffner cites as authorities, Anton. de Rosellis, tract. de Legit. (in Oceano Juris); Wenig-Ingenheim, Lehrbuch des gemeinen Civilrechts, § 22; Mühlenbruch, D. P. § 72. According to a French ruling, to make such legitimation effective as against the father, it must be granted by a state in which the father is domiciled. Judgment of the Court of Appeals of Paris, February 11, 1808; Sirey, 8, 2, p. 86. * At the reconstruction consequent on the late civil war, several of the Southern States, by constitutional amendments, enacted that the informal marriages previously existing between colored persons should be validated. By the Texas Constitution of 1869, children born previously during the cohabitation of a white man and negress are legitimated. Honey v. Clark, 37 Tex. 686. Other cases of marriages by constitutional amendment, at the reconstruction era, are cited supra, § 173, note. But no extra-territorial validity can be assigned to marriages not based on consent, nor to compulsory legitimations of whole populations by constitutional amendment. To constitute a valid legitimation, internationally, there must be a prior special application from the persons (or their guardians) whose status is to be affected. mation must be approved by the state where the child is domiciled.1 lish com mon law such legitimations have no $250. By the English common law, as we have already seen, By Eng- it is essential, to entitle a child to take real estate by inheritance, that he should have been born in lawful wedlock; and the same rule has been applied to the extra-terri- construction of the term "children" as used in distorial force. tribution statutes.2 This rule, so far as the right of inheritance to real estate is concerned, has been adopted in cases of legitimation by legislative act in Pennsylvania and Maryland. In Louisiana, where the English common law does not obtain, in a case where an illegitimate son was, by an act of the legislature of Arkansas, where he and his parents had their bona fide domicil, legitimated, it was held, on his removal with his father to Louisiana, by the Supreme Court, that he was to be regarded as legitimate in Louisiana, capable of inheriting his father's immovable estate, on the latter's death intestate. And even where the English common law holds, the exclusion in such cases from inheritance is based, not on a repudiation of the legitimacy of such children, but on the positions that real estate can only, by the English common law, go to children born in lawful wedlock, and that "children," under distribution statutes, must be defined in the same sense.5 Adoption governed by the law of domicil II. ADOPTION. § 251. According to the Roman law, a child could be received into a family, and vested with the filial relation, in two ways. One was by imperial rescript (principali rescripto), which enabled persons who were free, and of parties. sui juris, to be thus received as the adoptor's children. This was technically called arrogatio, or adrogatio. The other, which was more properly adoption (adoptio), was, by authority of the magistrate (imperio magistratus), and transferred children already under the power of their parents. In modern states the institution has been essentially modified, and, even in 1 Bar, § 102. 2 See supra, §§ 242-3. 8 Smith v. Derr, 34 Penn. St. 126; Barnum v. Barnum, 42 Md. 251. Scott v. Key, 11 La. Ann. 232, Merrick, C. J. diss. 5 Supra, § 241. 6 Inst. I. ii. 1; Cod. ii. 48. states accepting the Roman law, is the creature of positive legislation.1 This legislation, in most states, imposes conditions which are essential to the constitution of the act. Thus in Italy the person adopting must be childless, must be at least fifty years old, and must be eighteen years older than the person adopted. The French Code 3 provides that "l'adoption n'est permisse qu'aux personnes de l'un ou l'autre sexe, âgées de plus de cinquante ans, qui n'auront, á l'époque de l'adoption, ni enfants, ni descendants l'egitimes, et qui auront au moins quinze ans de plus que les individus qu'elles se proposent d'adopter." 4 In Austria, and in Prussia, there can be no adoption by persons who have taken vows of celibacy. In the United States the statutes prescribe fewer conditions, and fall into two divisions, those severing the adopted child entirely from his natural family, and those permitting him to inherit from such family, if not subjecting him to duties to his natural parents.7 1 Fiore, Op. cit. § 150; Merlin, Répertoire, V. Adoption, § 1. 2 Code, art. 262. 8 Article 343. "In France," says Lord Mackenzie, "the usage of adoption was lost after the first race of kings; it disappeared, not only in the customary provinces, but also in the provinces governed by the written law. Reestablished in 1792, adoption is now sanctioned by the Civil Code. Adoption, however, is only permitted to persons of either sex above the age of fifty, having neither children nor other lawful descendants, and being, at least, fifteen years older than the individual adopted. No married person can adopt without the consent of the other spouse. The privilege can only be exercised in favor of one who has been an object of the adoptor's care for at least six years during minority, or of one who has saved the life of the adoptor in battle, from fire, or from drowning. In the latter case, the only restriction respecting the age of the parties is, that the adoptor shall be older than the adopted, and shall have attained his majority. In no case can adoption take place before the majority of the person proposed to be adopted." Mackenzie's Rom. Law, 123. 5 Code, art. 173. 7 The laws of several European states in respect to adoption are given by Mr. Lawrence, Com. sur Wheaton, iii. 162 et seq. In an instructive article in 1 South. Law Rev. (N. S.) pp. 78 et seq. (April, 1875), will be found an analysis of the adoption statutes at the time in force in several states. Whether the Massachusetts statute involves a contract with the adopted party, see Sewall v. Roberts, 115 Mass. 262. The Mexican law, which was in force in 1832 in Texas, did not permit any one who had a legitimate child living to adopt a stranger as coheir with such child. Teal v. Sevier, 26 Tex. 520. This was afterwards corrected by statute. In view of the diversity of the statutes it becomes important to inquire what is the law determining a particular case of adoption. The tendency, on the continent of Europe, is to hold that the law of the domicil of the parties at the time of the act of adoption is to determine so far as concerns the validity and effect of the adopting act, and this conclusion is in accordance with the law already stated in reference to legitimation by subsequent marriage. So far as concerns the status of the person adopted, this is to be determined by the law of his domicil, though there is authority to hold that when the act is based on contract, the law relative to contracts prevails. But so far as concerns the change of status, the act must be one which the domiciliary law of both parties approves.3 Whether a foreign adoption will be recognized in a state retaining in this respect the English common law may be questioned. In such states, judging from the law laid down in respect to other forms of modification of the common law rules 1 Bar, § 102; Ibid. § 103; Bouhier, ch. 24, No. 86; Boullenois, ii. pp. 48, 49; Merlin, Rép. Puissance paternelle, vii. Nos. 5-7; Wächter, ii. p. 185. 2 Can a foreigner exercise the privilege of adoption according to the laws of a country where it is permitted, and where he is at the time resident? Supposing him to be a mere temporary resident, it has been argued in France that he cannot, the privilege being one which, from the nature of things, is limited to the subjects of the state conferring it. Demolombe, Adoption, No. 48. The Roman law is distinct to this effect, the paternal power, in the Roman sense, being restricted to Roman citizens. On the other hand, it is argued (Fiore, Op. cit. § 151) that adoption is a contract, and as such subject to the same law as other contracts. A foreigner in France may make a contract for apprenticeship; why not for adoption? A foreigner may marry in France, and may thus convey family rights to his descendants; why may he not adopt? Hence the prevalent opinion is that a foreigner in France may exercise this privilege. Zacchariæ, § 78; Demangeat, Condition civile des étrangers en France, p. 362, and note by Felix to No. 36; Dragoumis, Condition de l'étranger en France, p. 37. Pradier-Fodéré, note to Fiore, Op. cit. § 151. In Italy the right is limited by the Civil Code. Fiore, § 151. Brocher (Droit int. privé, p. 156) argues that if adoption concern only title to property, it is a contractual institution, and should be subjected to the rules regulating contracts. If it result in a change of status, it rests on the principles on which status rests. But the true view is that the act should be authorized by the personal law of both of the parties. One state cannot impose such a status as this on the domiciled subject of another state. 8 Supra, §§ 84 et seq. |