even for ordination except in the case of regulars.1 In this way the incontinent clergy were to be punished by making a new disability arise from bastardy, and the danger of converting ecclesiastical benefices into family property was to be prevented. For the son might not succeed his father in the same benefice.2 Having a species of legitimacy of its own, and possessing everywhere jurisdiction in matrimonial causes,3 with which legitimacy was closely connected, there was always a tendency to extend the ecclesiastical jurisdiction to matters purely secular. A new title appeared in the Compilatio Prima, “ Qui filii sint legitimi," and reappeared in subsequent private and official collections. The reasoning was very natural; since spiritualia were superior to temporalia, legitimitas quoad spiritualia, which certainly belonged to the Church to determine, ought to include legitimitas quoad temporalia,5 and papal legislation be as binding in one case as the other. Then again, in as much as the validity of a marriage in case of an impediment depended on an ecclesiastical dispensation, and legitimacy in the secular law was confessedly the result of birth in a valid marriage, except in the case of the children of slaves, it was not unnatural to claim authority in matters of legitimacy as much as in matters of marriage.8

The theory of legitimacy which underlies the Canon Law and the ecclesiastical legislation appears clearly in the origin of the legitimacy quoad spiritualia. It was in the interest of morals that the children born of a valid marriage should have privileges denied children born of illicit unions. Parents were to be punished in their children's disabilities more effectively than in themselves.9

1 The defectus natalium legitimorum was originally only a special case of defectus fama. It had appeared earlier (cf. Regino, De synodalibus causis, I. 427-429; Migne Patrol. Lat., vol. 132), but it produced at the time no great effect upon the law of the Church.

2 Cf. cc. 2-4, 7-13, X. 1, 17.

3 Cf. Esmein, Le mariage en droit canonique, I. p. 25 ff.

4 Cf. Quinque compilationes antiquæ, ed. Friedberg, p. 51.

5 Cf. c. 13, X. 4, 17.

6 Here the illegitimacy was both quoad spiritualia and temporalia. Cf. Hostiensis, op. cit. p. 1094. This apparent inconsistency in the Canon Law was probably due to the old principle that prevented the ordination of slaves (cf. Dist. 54; X. de servis non ordinandis, I, 18).

7 c. 5, 7, X. 4, 17.

8 For the opinion current among pre-Reformation English ecclesiastical lawyers as to the relation between secular and ecclesiastical legislation, see Lyndwood, Provin ciale, p. 257, gl. ad v. canones præcipiunt.

• Hostiensis, op. cit. ad X. i. 17, p. 180, magis punientur parentes in filiis, quam in semet ipsis. Hostiensis finds precedents for this theory of legitimacy in C. 9, 8, 5, 1; I,

In the case of illegitimacy quoad spiritualia there were additional reasons, timor paternæ incontinentiæ1 and the dignity of the priesthood. But these reasons merely enforce the point that legitimacy was a privilege arbitrarily attached to a valid marriage, for a reason not found in the mere idea of marriage. And as it appears in the case of putative marriage that reason, except in the wholly special case of filii presbyterorum, was wholly the interest in morality which the Church naturally took. Another theory appears in the course of the speculations of the canonists, that because the husband is the dominus ventris, therefore his children are they who are born of his wife.3 But this theory does not appear to have had the slightest influence upon the actual legislation of the Church and is no more than one of the many speculations as to the ground of the law.

As a consequence of the principle that legitimacy is primarily an encouragement to virtue, it followed that where there was no dolus there ought to be no punishment, and a marriage entered in good faith, but invalid on account of some impediment unknown to the parties, conferred legitimacy on the child born of the union or conceived before sentence of divorce was pronounced, provided the marriage had been contracted in facie ecclesia and with prescribed solemnities. The object of this proviso was to give the assurance of good faith. Banns were to be published to prevent incestuous or otherwise invalid unions. Any impediment was to be made known to the proper authorities. If the parties contracted without the banns, although the marriage was not rendered invalid by the mere omission, yet if it should be proved invalid, there was strong presumption of mala fides. Hence the rule, "Legitimus filius est qui de legitimo matrimonio est natus, vel de eo quod in facie ecclesiae legitimum reputatur, quamvis in veritate matrimonium non fuit."6 But the bona fides need not be present in the

5, 4, 6, and is followed by Panormitanus, op. cit. I 55 b, and other canonists generally. Blackstone, 4 Comm. 382 f., reasons in much the same way in connection with forfeiture of property for treason and corruption of blood.

1 Hostiensis, 1. c., c. 14, X. 1, 17; Dict. ad c. 1, D. 56. Gratian relies upon this reason to remove the apparent injustice of the rule; cf. c. 3 ff.; D. 56.

It should be borne in mind that copula illicita gave rise to affinity. Tancred. op. cit. p. 104: Bernard. Pap., Summa decret. p. 182; cf. Roland Summa, ed. Thaner, p. 231, f; c. 5, X. 4. 2; c. 3, X. 4, 3; c. 2, 15, X. 4. 17.

1

case of both parties, for it was sufficient according to the canons 1 that the woman act in good faith. The children so born were legitimate in respect to both parents. If they had been legitimate only in respect to the party acting in good faith, there would still be a partial illegitimacy. This rule for which a precedent had been found in the Civil Law 2 appeared first in the Compilatio Tertia and was soon extended to apply to either party, and merely carried further the principle on which legitimacy was based by the Church. The comment of Panormitanus illustrates this, for he notes that the bona fides must exist tempore conceptionis filii, and not merely tempore contractus matrimonii. For when once the impediment becomes known there is in foro consciente, at least, no marriage, and the relation for the person to whom the impediment is known at once becomes sin.5

If legitimacy is merely a privilege which the law attaches to a valid marriage or a putative marriage, for the sake of upholding morality, and is not founded upon some property right or connected with such, it is easy for the law to give the same privileges in other cases in which the cause of morality might be advanced. Such a case would arise if, for the sake of benefit to children, an illicit could be converted into a valid marriage. Hence, legitimatio per subsequens matrimonium. Here, as in so many other parts of the Canon Law, the legislation was not without precedents. What closely resembled this form of legitimation appeared not merely in the Civil Law but in the Barbarian Codes in the acquirement of the mundium after marriage with its consequent effects. It is, however, in the former system that the canonists found the legal justification for their rather broad interpretation. By that law only liberi naturales, i. e. children born of a lawful concubine, could be legitimated by subsequent marriage of parents, and special formalities were required in connection with the marriage. In the development of the law, the concubinate as institution disappeared. The concubine became either a wife from whose marriage not all the civil rights of marriage resulted, or she was a mere mistress. But the former lived in a union that

1 c. 14, X. 4, 17, cf. c. 8, eod. tit.

2 D. 23, 2, 57 a.

3 Friedberg, op. cit. p. 128.

Op. cit ad c. 14. X. 4, 17, IV. p. 44 b.

5 On putative marriage and legitimacy in England, cf. Bracton, De legibus, f. 63 who refers to Tancred and the Decretals; cf. Glanville vi. 17

was the sacrament of marriage; the latter lived in fornication.1 There was, therefore, no reason for making the distinction of the Civil Law whereby only certain children born ex soluto et soluta2 might be legitimated. The concubinate derived no justification from its resembling marriage in that it was a more or less permanent relation, in fact, according to some it was, for that very reason, all the more reprehensible. It was, therefore, not going beyond the example set by the Civil Law, if the privilege of legitimation should be extended by canon to all born of an illicit union, provided that the only fault in the relation was the want of wedlock. But such a privilege should not be allowed in case of spurii, incestuosi, or adulterini. For this reason the decretal Tanta est vis expressly excepted such from its operation. The principle according to which this exception was made, quoniam matrimonium legitimum inter se contrahere non potuerunt, was omitted by Raymund of Pennaforte in his revision of the decretals. It has, nevertheless, played a very important part in all canonical discussions.

The decretal Tanta est vis introduced no new principle of legitimation, but merely excluded adulterini from the benefits of the law. The Church in making this exclusion was entirely within its own right so far as legitimatio quoad spiritualia. But no limitation appears in the decretal referred to. Legitimacy is there taken quite generally as if there was no distinction between the two kinds. But when the Church appears in its own authority insisting that legitimation by subsequent marriage was valid quoad hereditatem, there is the appearance of opposition to what was at least becoming law, if not already such.

A conflict with the temporal authorities was inevitable wherever the law of legitimacy had been changed from the older form.6 In England where this was the case and the change in the law had taken place about the time of the decretal Tanta est vis, the result was

1 Cf. c. 6, X. 1, 21; St. Thom. Aq. Summa Theol., Suppl. qu. 65, art. 3.

2 Cf. Rubr. c. 1, X. 4, 17.

8 Cf. Panormitanus, IV. p. 40 b.

4 C. 6, X. 4, 17.

5 C. 1, X. eod. tit., A. D. 1180.

6 Cf. Schröder, op. cit. p. 61, 694; Selden, Diss. ad Fletam, p. 538.

7 Cf. the correspondence between Grosseteste and William de Raleigh. Rer. Brit. Scr., vol. 25, p. 89, 96. See also Libri Feudorum, II. 26, § 4, in which this form of legitimation is disallowed. The date of this portion of the Libri Feudorum, according to Laspeyres, Über die Entstehung und Älteste Bearbeitung der Libri Feudorum,

the Statute of Merton,1 by which the change in the English law was made permanent in opposition to the Church.2 That the law of the Church continued to be followed by the Church's courts is certain, not merely from the fact that the difficulty with these courts continued in spite of the Statute of Merton, and only ended by taking from the Church's courts the possibility of applying their law, but also from the testimony of Bracton and of Coke. Only legitimacy quoad spiritualia was left to the decision of the Church's Courts; there the ccclesiastical law was still applied.

Why was there this opposition to legitimacy based upon a subsequent marriage? Was there a new theory of legitimacy? It does not seem to be so explained. The rejection of this form of legitimation seems to have been due to a question of prudence, and should be taken with the hesitation to recognize the legitimacy of the offspring of clandestine marriages. It was not because such marriages were not valid, for of that the King's Courts had nothing to say. Marriage was a sacrament, and it belonged to the Church to say when the conditions of a sacrament were present. But such marriages were altogether uncertain. In the same way not a few legitimations by subsequent marriage were on deathbeds, under circumstances involving suspicion. To avoid all dispute, the courts cut off the whole class of doubtful marriages as giving rise to legitimacy. But there was no new theory of

Berlin, 1830, p. 200 ff., is about 1160. The decretal Tanta est vis (A. D. 1172) is addressed to the Bishop of Exeter, and therefore there may be special connection with the change in the English law.

1 20 Henry III. (1235–6) c. 8.

2 The well-known account of the Statute of Merton has been repeated in almost every discussion on legitimacy or the place of the Canon Law in England, to show that the Canon Law was not binding in England, or not binding proprio vigore. It merely shows that in the King's Courts it was not recognized in all its parts. But it says nothing as to its force in the Ecclesiastical Courts where it was administered. A line of reasoning similar to that generally based upon the Statute of Merton would show that the Canon Law was nowhere in Europe in force proprio vigore, except in the Patrimony of St. Peter.

3 Cf. Bracton, op. cit. 416, a, f; Fleta, vi. 16. 4 Op. cit. f. 62.

5 Coke on Littleton, p. 245. Matrimonium subsequens legitimos facit quoad sacerdotium non quoad successionem propter consuetudinem regni quod se habet in contrarium. • In Germany the legitimation per subsequens matrimonium met with some opposition (cf. Schwabenspiegel, c. 377; Sachsenspiegel, I. 27), due, as in England, to the new feudal law. But here, as probably everywhere else except in England, it eventually prevailed.

1 Cf. Bracton, op. cit. 92 a, non valeant clandestina conjugia haeredibus quoad successionem.