An Introduction to Roman-Dutch Law/Book I/Chapter I

by Robert Warden Lee

Chapter I

Birth, Sex, Legitimacy

Section 1.—Birth

Birth Legal capacity begins with the completion of birth,^[1] subject however to the qualification that a child in the womb is deemed already born whenever such a fiction is for its advantage. Thus an unborn child may inherit ab intestato^[2]

Section 2.—Sex

Sex. Sex, as such, is not a factor of importance in the sphere of private law. There is a difference, however, in the age of puberty, which for males is fixed at fourteen years, for females at twelve.^[3] Further, there is a special rule of law by which a woman cannot bind herself as surety unless she expressly renounces the benefits which the law allows her.^[4]

Section 3.—Legitimacy

Legitimacy. By the law of all civilized countries a distinction is made between legitimate and illegitimate issue. Legitimate children are those born from parents united in wedlock.^[5] In the case of issue born from the beginning of the seventh^[6] month after marriage to the beginning of the eleventh month^[7] after its termination by death or divorce the presumption of legitimacy is only rebuttable by proof of impotence or non-access.^[8] Indeed legitimacy is presumed whenever a child is born during the subsistence of marriage, even though it be born on the very day on which the marriage is celebrated.^[9] Pater is est quem nuptiae demonstrant. This is in accordance with the maxim ‘pater is est quern nuptiae demonstrant’.^[10] But if the husband can prove sexual relations before marriage unknown to him followed by pregnancy and not condoned by cohabitation subsequent to his discovery of them, he is entitled to have the marriage declared null and void.^[11] The uncorroborated evidence of a married woman is not permitted to bastardize her own child.^[12] To prevent difficult questions as to paternity, the Dutch Law, following the Civil Law,^[13] prohibited remarriage within a certain time after a first husband's death.^[14] Annus luctus. This was called the widow's ‘annus luctus’; but in Holland the period of mourning (treur-tijd) varied in different places, with a preference for a term of six months.^[15] In the Roman Law re-marriage within the year of mourning entailed penal consequences.^[16] This was not the case in the Dutch Law,^[17] and in the Colonies the institution itself has passed out of use.^[18] If a widow so far forgets herself as to remarry within the period of mourning and issue is born which may be attributed to either father, it is presumed to be the child of the second husband.^[19]

Eene moeder maakt geen bastaard. A bastard has no lawful father and therefore no rights of succession ex parte paterna. But with the mother it is different; for ‘eene moeder maakt geen bastaard’, and therefore her illegitimate issue succeeds to her and to her blood relations.^[20] Such was the opinion of Grotius, though, as regards these last, Van der Linden inclines to a contrary view.^[21]

Legitimation. Illegitimate issue may be legitimated: (1) by subsequent marriage; (2) by an act of grace on the part of the Sovereign.^[22] The first of these modes alone obtains at the present day.^[23] Children born in adultery or incest (which extends to all the prohibited degrees) are incapable of legitimation by subsequent marriage.^[24]

1. German Civil Code, sec. I; Ontwerp van het Burgerlijk Wetboek, Art. 76.
2. Dig., 1. 5. 7 and 26; Gr. 1. 3. 4; Voet, 1. 5. 5; V. d. K. Th. 45.
3. Inst. 1, 22. pr.; Van Leeuwen, 1. 6. 1; Voet, 4. 4. 1.
4. Senatus-Consultum Velleianum; Authentica si qua mulier. 3 Maasdorp, p. 347; infra, p. 264. Abrogated in Brit. Gui. by Ord. No. 12 of 1904, sec. 25.
5. Gr. 1. 12. 2; V. d. K. Th. 169.
6. Gr. 1. 12. 3; Voet, 1. 6. 4. Van Leeuwen (1. 7. 2) says: ‘We consider as legitimate those persons who are born during the seventh month, or even on the hundred and eighty-second day after the consummation of the marriage.’
7. V. d. K. Th. 170: Post solutum matrimonium intra decimum mensem id est 300^um diem partum editum esse oportet ut regulariter pro legitimo possit haberi. The period has even been extended to the twelfth month inclusive in a case where the lady's character was thought to be beyond reproach. Voet, loc. cit.; Sande, Decis. Fris. 4. 8. 10. In Ceylon the limit of time is two hundred and eighty days after the dissolution of marriage, the mother remaining unmarried. Evidence Ordinance, No. 14 of 1895, sec. 112.
8. The presumption in favour of legitimacy may be rebutted by ‘clear and satisfactory evidence’. Fitzgerald v. Green [1911] E. D. L. at p. 462.
9. Gr. 1. 12. 3; Van Leeuwen, 1. 7. 2; Cens. For. 1. 1. 3. 5; Voet, 1. 6. 5 and 7; V. d. K. Th. 169.
10. (Paulus) Dig. 2. 4. 5; Voet, 1. 6. 6; Richter v. Wagenaar (1829), 1 Menz. 262.
11. Voet, 24. 2. 15; Horak v. Horak (1860) 3 Searle 389. It is not so in English law. Moss v. Moss [1897] P. 263.
12. Schorer ad Gr. 1. 12. 3; Voet, 1. 6. 7.
13. Cod. 5. 9. 2 (Gratian, Valentmian, and Theodosius, a.d. 381).
14. Gr. 1. 5. 3, and Schorer's note. Van Leeuwen (1. 14. 14) says that a widow must wait six months after the death of her former husband, unless in the interval she has been delivered of a child.
15. Fockema Andreae, Bijdragen, vol. i, p. 167; V. d. K. Th. 67.
16. Cod. 6. 9. 2.
17. Cens. For. 1. 1. 13. 27; Groenewegen, de leg. abr. Cod. ad loc; Bynkershoek, Quaestiones Juris Privati, lib. II, cap. iv; V. d. K. Th. 68.
18. By the Transvaal Marriage Ordinance (No. 3 of 1871), s. 9, no widower might marry within three months after the decease of his wife, and no widow within three hundred days after the decease of her husband; but this is no longer law, having been repealed by Procl. No. 34 of 1901. For the Orange Free State see Law No. 26 of 1899, sec. 13. The annus luctus is unknown in Cape Colony (1 Maasd., p. 19; Nathan, Common Law of South Africa, vol. i, p. 100 (2nd ed., p. 108)), Ceylon and British Guiana, though in the last-named colony there is a clause abolishing it in the Draft Ordinance of the Common Law Commission of 1914.
19. Voet, 1. 6. 9; who gives amongst other reasons because ‘ipse incertitudinis auctor et causa est’.
20. Gr. 2. 27. 28; Van Leeuwen 1. 7. 4; Anton. Matthaeus, Paroemiae, No. 1; V. d. L. 1. 4. 2. No distinction is made between adulterine, incestuous, and other bastards. Anton. Matth., ubi sup., secs. 7 and 8; Fitzgerald v. Green, ubi sup. pp. 474 ff.
21. V. d. L. 1. 10. 3. The question was much debated. See against Grotius, Bynkershoek, Quaest. Jur. Priv. lib. III, cap. ii.; for Grotius, Van der Vorm (Versterfrecht, ed. Blondeel, pp. 212 ff.), and V. d. K. Th. 342–5. See also Mogamat Jassiem v. The Master (1891) 8 S. C. 269. As to succession to bastards see Van der Vorm, ubi sup. p. 237.
22. Gr. 1. 12. 9; Van Leeuwen, 1. 7. 5; Voet, 25. 7. 6 and 13; V. d. K. Th. 171–2; V. d. L. 1. 4. 2.
23. (Cape Province) 1 Maasd., p. 9.
24. Van Leeuwen, 1. 7. 7; Voet, 25. 7. 8; V. d. L. 1. 4. 2. Grotius (1. 12. 9) merely says that legitimation is not readily accorded to them. This refers only to legitimation by act of grace, for as pointed out by Kotzé J., in Fitzgerald v. Green, ubi sup. at p. 472, legitimation by subsequent marriage presupposes that marriage could have taken place between the parents at the time of the birth of the child. But Voet allows legitimation if marriage within prohibited degrees is afterwards contracted with the necessary dispensation in cases where dispensation is permitted by law. In Ceylon illegitimate children are legitimated by subsequent marriage unless procreated in adultery. Ord. No. 2 of 1896, s. 22.