remain in his or her malicious obstinacy for four years, the party. 45. It is a reasonable practice, that in all actions of divorce, whether on adultery or wilful desertion, the pursuer must swear, that the action is not carried on by collusion; otherwise parties, contrary to the first law of marriage, might at pleasure disengage themselves from that sacred tie by their own consent. Upon this ground, cohabitation by the injured party, after being in the knowledge of acts of adultery committed by the other spouse, if it has not been constrained by force or menaces, imports a passing from or forgiveness of the prior injury, and is therefore sufficient to elide any action of divorce that may afterwards be pursued upon those injurious Book I. Effects of di of desertion. injurious acts, July 15. 1681, Watson, (DICT. p. 330.) 175. A proof of collusion, where it has not been brought till after the decree of divorce, can hardly have the effect to set aside the prior decree as to the divorce itself; but it ought to save the interest of creditors from being affected by such collusive devices, i. e. the wife will not be put in present possession of her terce or jointure, in consequence of the decree, so as to exclude the husband's creditors from the fund of their payment; or, if she hath already obtained possession, she may be obliged to give it up. 46. The legal effects of divorce upon desertion, are defined by vorce on account the aforesaid act, 1573, C. 55., in these words, "The party offending shall lose the tocher, and the donationes propter nuptias." The Roman law, from which this act is borrowed, Nov. 117, C. 8. § 2., describes donationes propter nuptias to be that sum or subject which is given by the husband, either in remuneration or in security of the tocher; which, when applied to our law, must signify the provisions granted by him to the wife, in consideration of the tocher given by her or her friends to the husband. The meaning of the act, therefore, is, that the offending wife not only loses her tocher, which is in that case to be retained by her husband, but forfeits her donationes propter nuptias, all the provisions which would otherwise have accrued to her in the event of her survivance; and vice versa, the husband, if he be the party offending, not only loses the tocher, or, in other words, must not only restore to the wife the sum he received in the name of tocher, but he is also bound to make good to her all the provisions in her favour, as well legal as conventional; so that she hath immediate access to them upon the decree of divorce, though neither the legal provision of terce, nor the conventional ones secured by marriage-articles, are, in the common case, due to a wife, till the actual death of her husband; see March 21. 1637, La. Manderston, (DICT. p. 1741.) These effects reciprocal. 47. Some writers interpret this statute, as if the loss of the tocher related only to the offending wife, who, by her desertion, forfeits it to the husband; and that consequently the husband, where he is the Lenocinium is a good defence to the wife, in an action of divorce for adultery. As to the description of conduct in the husband, on which this defence may be founded, see Falc. Feb. 28. 1745, Mackenzie, Dicт. p. 333. Lord Bankton, B. 1. T. 5. § 128., holds a plea of recrimination to be "a good de"fence against divorce for adultery." But lawyers have doubted the soundness of this opinion; holding it as inconsistent, that the infidelity of one of the parties should be a sufficient ground of divorce, while the infidelity of both should secure the continuance of the matrimonial connexion. In a late case, the Court allowed the wife to repeat a counter action of recrimination in the action of divorce; but under a qualification, that, by adopting that form of procedure, she should not be prevented from pleading the recrimination, when proved, as a total bar to a decree of divorce, nor the pursuer from pleading his answers thereto, March 9. 1787, Jardine, DICT. p. 338 176. tion. 175 Also, Lockhart, 7th Dec. 1799, Fac. Coll. DICT. v. Adultery, App. No. 1. recent case, a husband pursuing a divorce, attempted to explain away the cohabita"Suspicions," he said, "were certainly raised in his mind; but they were removed by the tears and protestations of the defender: and he cohabited, not "because he forgave her, but because he believed her innocent." He admitted, however, that, prior to cohabitation, he had been informed of all the circumstances alleged to have taken place. In this situation, and as he did not raise his action till twelve or thirteen years afterwards, the Court assoilzied the defender; Duncan, 9th March 1809, Fac. Coll. 176 In the still later case of Lockhart, referred to in the preceding note t," the "Court were clearly of opinion, that recrimination is no bar to divorce, though mu"tual guilt may affect patrimonial consequences; that on this account it can be sta"ted only in a counter action," but cannot be pleaded in defence. the guilty party, is not obliged to restore it to his injured wife, Wallace, Inst. B. 4. T. 15. § 287. But the statute thus explained would be most unequal: For it appears irreconcileable to justice, that the offending wife should be punished with the loss of her tocher, which is generally her all, without receiving the least consideration in its place, while the offending husband, though he suffers the immediate loss of the provision secured by him to the wife, is allowed to retain to himself the tocher, which is the valuable consideration he received at the marriage in place of that pro vision. TITLE VI. Effects of di of adultery. 48. By the opinion both of Lord Stair, B. 1. T. 4. § 20., and Bankton, B. 1. T. 5. § 134., which is strongly founded on analogy, vorce on account the same penalty lies against the offending party in a divorce for adultery, that the act 1573 has imposed on those who are divorced on the head of wilful desertion, agreeably to the Roman law, d. Nov. 117.; and the court of session, in the late case of Mr Justice, Aug. 5. 1761, pronounced judgment conformably to that opinion by their first interlocutor; but on a reclaiming bill, it was decided, that the offending husband, in a divorce for adultery, was not bound to restore the tocher, in regard that it had been so fixed by an uniform tract of old decisions, partly observed by Sir J. Balfour, and partly recovered from the records * 177. II. OF THE RELATION BETWEEN PARENTS AND CHILDREN. 49. AFTER having explained the rights and duties of husbands and wives consequent on marriage, the relation of parents and children falls naturally to be handled. The most usual division of children is into lawful and unlawful. Lawful children are those who are either procreated in marriage, or who are afterwards legiti2 Q VOL. I. mated • This case is reported by Kames, Sel. Decis. No. 172. DICT. p. 334. See another, Anderson, Feb. 8. 1734, Dicт. p. 333., which is referred to in the case of Justice. The crime itself, unless followed by divorce, is not held to be a forfeiture of the wife's legal provisions, Sel. Decis. March 4. 1762, Clement, Dicт. p. 337. 177 In place of its having "been so fixed by an uniform tract of old decisions," it appears from Lord Kames' report of this case, (under date 13th Jan. 1761, Sel. Dec., DICT. p. 334.), that the old authorities were all the other way, and that the husband's argument was entirely rested on a "change of system," which he alleged to have been introduced. The single decision cited as being in his favour, was one pronounced in the case of Anderson, 8th Feb. 1734, (Fol. Dict. v. iii. p. 19.) DICT. p. 333.; and excepting it, it was noticed as "remarkable, that from the altered practice, there is not to be "found one authority pro or con." Even this decision, however, seems to have been misquoted; for if we can trust to the only report of it which remains, the divorce was there obtained against the wife, who being thus the offending party, was necessarily found to have no right to the return of her tocher. The authority of Balfour was also unfavourable; for he expressly lays it down, that "quhen ony man and his wife are simpliciter partit and divorcit be the authoritie of the Judge "Ordinar, for adulterie or ony uther trespas committit be the man, the haill to"cher gude, &c. aucht to be restorit to the woman, with the proffettis thairof, "efter the geving of the sentence of divorce betwix thame; 18th Dec. 1540, Janet "Auchenleck contra James Stewart," Balfour, p. 99. Dicт. p. 339. It seems, indeed, absurd in the very reason of the thing, that a husband divorced for adultery should be placed in a better situation than if divorced for simple non-adherence. And it is not unworthy of remark, that the whole argument, which was successful in the case of Justice, applies with equal strength to the non-return of the tocher in the one case, as in the other. Be the law, however, on the above point, as it may, all the authorities concur in this, that the wife who obtains a divorce against her husband, whether for adultery or desertion, is entitled to her whole legal and conventional provisions, precisely as in the case of her husband's death. Under an entail excluding terce, but allowing a certain provision to wives and husbands, a wife who had divorced her husband was found not entitled to more than the provision allowed by the entail, even during the life of her husband; La. Cunninghame Fairlie, 15th June 1819, Fac. Coll. Presumption of legitimacy of offspring. BOOK I. How this presumption is defeated. mated or made lawful. All children born in wedlock, i. e. born of a mother who at the time of the conception was lawfully married, are presumed to have been begotten by him to whom the mother was married, according to the rule, Pater est quem nuptia demonstrant; and consequently to be lawfully begotten children. This legal presumption may doubtless be overruled by a contrary proof; but the favour of marriage is so strong, and the securing of the point of legitimacy so important to society, that it cannot be defeated, but by direct evidence that the mother's husband could not be the father of the child. Though therefore it should be proved, that the wife was engaged in a criminal correspondence with a stranger for some tract of time together, and that her husband and she lived in separate houses during that whole period, the presumption for the legitimacy of the children stands good, because those facts do not infer an absolute impossibility that the mother's husband could be their father 178. The canonists however maintain, that the concurring testimonies of the husband and wife, denying upon oath the child to have been procreated by the husband, sufficiently elide the legal presumption, Decretal. L. 4. T. 17. C. 3.; which doctrine is adopted by Craig, Lib. 2. Dieg. 18. § 20., and by Stair, B. 3. T. 3. § 42. But it is an agreed point by all writers, that if either of the two have, before making such oath, acknowledged the child as lawful, there is a right acquired to him by that acknowledgment, which is not to be taken away by any posterior testimony to the contrary, Decretal. L. 2. T. 19. C. 10.; Cr. ibid. 50. The two principal grounds upon which this presumption may be defeated, are the husband's absence from the wife, and his frigidity or impotency, because either of these exclude all possibility of the child being procreated by the husband. Impotency is of most difficult proof; and few or no instances have occurred in this kingdom of questions either of divorce or of bastardy upon that medium. As to bastardy on the head of absence, the great difficulty is, to fix the precise period of time backward from the birth of the child, at which, if the husband be absent from the wife, the child is to be deemed unlawful. The solution of this doubt depends on two questions, more proper for the discussion of physicians than of lawyers, viz. What time is necessary for the production of a living child? and, How long a woman may continue pregnant before her delivery? As to the first, Hippocrates, in his treatise De septimestri partu, and the Roman law upon his authority, have pronounced six months as the minimum, L. 12. De stat. hom. ; that is six solar months, as it is explained, L. 3. § 12. De su. et leg. her. But our supreme court have, from the favour of legitimacy, adjudged, that to fix bastardy on a child, the husband's absence must continue till within six lunar months of the birth. As to the second, a child born after the tenth month is accounted a bastard, D. L. 3. § 11 179. The proof of absence must be special and pregnant • The doctrine here laid down affords a solution of another question, relative to the filiation of natural children. It has been decided, that a copula at the distance of more 178 than. Routledge, 19th May 1812, Fac. Coll.; Buchanan's Rep. p. 121.; affirmed on appeal as to this point, 29th June 1816, 4. Dow, p. 392. Proof of likeness to the supposed parent will not be allowed, even in corroboration of other circumstances tending to cut down the presumption of legitimacy; Routledge, 20th Jan. 1810, Fac. Coll. 179 Yet there seems no doubt that the period of gestation has been occasionally prolonged beyond even the tenth month; 2. Fodéré, Médécine Legale, p. 103, et seq. pregnant. It is not indeed required by our usage, as it is said to be by that of our neighbours of England, that one of the spouses must have been out of Britain; but the distance between them ought to be so great, as to carry full evidence with it, that they could not have cohabited during the whole time libelled, St. B. 3. T. 3. § 42 181. 51. All children born of a woman who was not married at the time of her conception, are unlawful, otherwise called natural children or bastards; and consequently are entitled to none of the civil rights conferred by law on those who are procreated in marriage; of which rights vid. infr. B. 3. T. 10. As all marriages reprobated by law, whether on account of bigamy or propinquity of blood, are utterly null, the issue of them must be illegitimate, in the same manner as if they had been born out of wedlock, § 12. Inst. de. nupt.; but if either of the parties were, at the time of the marriage, ignorant of the near relation they stood in to one another, or of the prior marriage, the bona fides of that party, though it could not make the marriage lawful, had by the Canon law the effect of legitimating the issue, provided the marriage labouring under the nullity had been solemnized in the face of the church, Decretal. L. 4. T. 17. C. 14. Craig is of opinion, Lib. 2. Dieg. 18. § 18., that such of the children as are procreated after both parties have come to the knowledge of the fact which made the marriage unlawful, are to be reputed bastards: but that the ignorance of any one of them ought to support the legitimacy of the children begotten prior to the decree by which it is declared void, because till then none of the spouses ought to decline the conjugal duties, Lib. 2. Dieg. 18. $19.182. When it is said, that those children are bastards who are born of a mother whose marriage with the father was unlawful, Lord Stair, B. 3. T. 3. § 42., understands that expression in the limited acceptation, of marriage forbidden by the divine law, ex. gr. marriage within the forbidden degrees, or that which is contracted while either of the parties stands already married; and from thence concludes, that marriage between the adulterer and adulteress, after the dissolution of the former marriage by divorce, does not fix bastardy on the issue, notwithstanding the statutory prohibition, and penalty annexed to such marriage, by 1600, C. 20 183 As to the consequences of this doctrine with respect to the legal rights of succession competent to such issue, vid. infr. B. 3. T. 10. § 6. 52. Legitimated than ten months preceding the birth does not filiate, Fac. Coll. Aug. 17. 1774, Stewart, DICT. p. 11664, 180 + See on this head, Falc. July 28. 1747, Campbell, DICT. p. 10456. 180 But such a copula, and indeed one at a considerably greater distance of time, will constitute a semiplena probatio, and thus leave room for establishing the filiation by the mother's oath in supplement. Vid. infr. B. 4. t. 2. § 14. in not. 181 See this matter very fully discussed in Routledge, 19th May 1812, supr. cit. 182 This very interesting question, as to the effect due to the bona fides of either parent, in determining the children's legitimacy, occurred in a late case, Brymer v. Riddell. The point was very ably discussed, both in written pleadings, and in a hearing in presence. The Judges, 19th Feb. 1811, were equally divided; Lords Justice-Clerk (Hope), Glenlee and Meadowbank, being in favour of the legitimacy, and Lords Polkemmet, Robertson and Newton, against. The case stood over for the opinion of Lord (now Justice-Clerk) Boyle, and memorials were ordered on the whole cause. But the child having died in the meanwhile, the question dropped. See another report of the case of Campbell, referred to supr. not. †, in Elchies, v.. PROOF, NO. 7. 183 See the effect of this statute explained infr. B. 3. t. 10. § 9. TITLE VI. Bastards. |