§ 4. Defect of Birth.

149. All illegitimate persons, even hidden ones, are irregular.¹

The reason for establishing this irregularity is chiefly alleged as threefold: a. reverence for the ecclesiastical order, for illegitimate persons by reason of their origin are reputed low; b. detestation of the paternal crime, as a sign of detestation of which even the sons are affected by a privative penalty; c. danger lest the sons imitate the paternal incontinence.²

From defect of birth the following are irregular:

1. Illegitimate persons. In general those are called illegitimate who have not been begotten from legitimate marriage, i.e. from one either truly or at least putatively valid.³

Those who were born from parents between whom, at the time of conception or birth, a valid marriage could have existed are called natural; but those who were born from parents between whom at that time a valid marriage could not have been had (as if they were born from adultery, sacrilege, or incest) are called spurious.

2. Those doubtfully illegitimate, whose illegitimate origin is not certain, are not irregular: for no one ought to be judged illegitimate unless this is proved certainly; moreover no one can be deprived of his right of receiving orders unless it is established that he is impeded.

a. Therefore exposed children of themselves are not irregular, and so they can be ordained without dispensation; nevertheless, as a precaution, they are usually dispensed if they cannot indicate their parents.

b. If it is uncertain whether the offspring was conceived or at least born when marriage had already been contracted, or before it, the offspring is not irregular, because he is presumed at least to have been born after the marriage.

c. He who was born in marriage, although from adultery, and this known to the husband himself, is not irregular unless he is juridically demonstrated to be spurious: for the father is he whom the nuptials show.

d. Someone is judged certainly illegitimate in a twofold case: a. if he has arisen from an unmarried mother; b. if he has arisen from a married mother, but his illegitimate origin has been juridically demonstrated.

3. Even hidden illegitimate birth induces irregularity, provided the matter is certain. Therefore if someone knew that he had arisen from unmarried parents, or from parents joined in appearance only, inasmuch as a diriment impediment had stood between them, he could not approach orders without dispensation.

¹ C. Is qui 1 De filiis presbyt. in 6°. (I. 11).

² Cf. Council of Trent, sess. 25. c. 15. De reform.

³ C. Ex tenore 14 Qui filii sint legitimi (IV. 17). Marriage which was contracted without due proclamations and without dispensation of the ordinary must be excepted: for in this case the offspring is held to be illegitimate. C. Cum inhibitio 3 De clandestina despons. (IV. 3).

150. This irregularity ceases not only by dispensation, as the others do, but also:

1. By subsequent marriage: for those born from fornication, or natural children, if afterward their parents contract a legitimate marriage, cease by the law itself to be illegitimate and therefore also irregular.¹

But the spurious, whose parents afterward contract marriage after the impediment has been removed, do not cease to be irregular or illegitimate, because the laws did not concede a privilege of this kind to the spurious.

2. By religious profession.² Solemn profession alone produces this effect, but not simple profession, unless a special privilege is present.³ Nevertheless, by the cited canon, religious profession removes irregularity only with respect to orders, but not with respect to prelacies. Hence if an illegitimate religious is to be promoted to a prelacy either outside the order or within the order, he needs dispensation.

Legitimation which civil law induces cannot remove irregularity. For since the question concerning the legitimacy of offspring is joined with the question concerning legitimate marriage, and this belongs to the Church alone, that also must be said to pertain to the Church alone.

¹ S. C. C. June 27, 1857. The case is excepted in which illegitimate persons were to be promoted to the episcopate or cardinalate.

² C. Ut filii 1 De filiis presbyterorum (I. 17).

³ S. C. Ep. et Reg. Jan. 20, 1860. Gregory XIII granted a privilege of this kind to the Society of Jesus by the constitution Ascendente Domino, in which irregularity from defect of birth ceases through simple profession.