Illegitimate children

287. On obligations in general. 1. Children are bound from piety to show parents love, reverence, and obedience. This obligation is founded in the threefold peculiar relation by which children are referred to parents: by reason of origin, which children draw from parents; by reason of dignity, by which parents excel them; and by reason of power, by which the same parents can and ought to educate and direct children.

a. Some children are legitimate, who are born in legitimate marriage from a husband and his wife; others are illegitimate, who are generated outside legitimate marriage. Of illegitimate children, some are natural, who are born from a man and woman between whom marriage could then have been entered, wherefore, marriage having been entered, the children are by that very fact legitimated. Others are spurious, who are born from a man and woman between whom marriage could not have been entered, as those born from adultery, from incest, from sacrilegious fornication; wherefore the spurious cannot be legitimated. Among legitimate children are also numbered legitimated natural children and adoptive children.

b. Between father and son there intervenes both a debt of piety and a debt of justice; hence it happens that violations of justice sometimes constitute two sins. If a son unjustly injures his father in the goods of life, reputation, and honor, he commits a twofold sin, against justice and against piety, because the father, as he is a man, has a right to his own life, reputation, and honor even in relation to son and wife; and the father, as he is a father, has a peculiar right of requiring reverence and obedience from his children (n. 279). The same must be said if, conversely, the father injures the son in the same goods, because the son retains his own right even with respect to the father. But if the son unjustly injures the father in goods of fortune, he does not sin against piety but only against justice (n. 278), and that less than by theft committed against strangers; for the natural conjunction between father and son effects that the goods of the father are in some way also the goods of the son.¹

2. This obligation is of its kind grave, so that he sins gravely who in a notable matter, and lightly who in a small matter, injures the love, reverence, and obedience due to parents. But more easily it is a grave sin if these offices are injured toward parents than if toward other superiors.

¹ Ballerini-Palmieri, III, n. 4.

288. On the obligation of love. 1. The love of children toward parents ought to be internal, by which they are bound to will good to them, and external, by which they are bound to signify benevolence to them, to do good to them, and to furnish help to them when they are constituted in necessity, whether bodily or spiritual.

a. Therefore children sin gravely against piety who deliberately and in notable matter are carried with indignation or hatred against parents, wish evil to them, treat them harshly, habitually look upon them with grim eyes, converse with them in bitter words, speak ill of them, or gravely sadden them, for example, because they frequent games, neglect study or a trade, return home late, etc.

b. Likewise they sin gravely who do not assist parents in grave bodily or spiritual necessity, as those who do not furnish food to parents in need, do not take care that in danger of death they can receive the sacraments, that when dead they have funeral rites suitable to their condition and to the custom of the place, who do not execute their testaments, and do not pay their debts, whether sacred or not sacred, according to the resources of the inheritance.

2. Since the obligation imposed by nature precedes every obligation assumed by one's own will, or an action which is of mere counsel, such as the religious state, it is not licit for a son, when his parents are constituted in extreme or grave necessity, to enter religion, even if by vow he has promised entrance, provided that by remaining in the world he can assist his parents. And if he had entered against the will of his parents, he is bound under grave obligation to depart if the necessity of the parents is extreme, provided that outside religion he can assist them more efficaciously. But if the necessity of the parents is only grave and already existed at the time of entrance, he is likewise bound to seek permission to depart; but if the grave necessity did not yet exist at the time of entrance, he is not indeed bound to depart, but he can justly seek and obtain permission.

a. The reason for the distinction is that in the first case at the time of profession the son was bound by the law of nature to assist his parents. Now this obligation, as prior and natural, is to be preferred to the obligation of the vow, which is posterior and voluntarily assumed. But in the second case the obligation supervened after the change of state; and one is not bound to satisfy a supervening obligation except insofar as it can be done while preserving the state.¹

b. A brother is bound from piety to assist a brother or sister in extreme and grave necessity; nevertheless this obligation is not as great as that which exists between parents and children. Therefore one who is professed in religion is indeed bound to depart so that he may assist parents, but he is not bound to depart so that he may assist a brother or sister existing in extreme or grave necessity.

Whether a son is bound from his own goods to pay the debts of a father who left nothing to the son. - A son to whom the father left goods is bound to pay the father's debts as soon as he conveniently can, both from the obligation of love, lest the reputation of the deceased suffer, and from the right of succession, because one succeeding to the goods also succeeds to the burdens. But if the father left nothing to the son, he is not bound, because the obligation of paying debts in this case is personal.

Therefore a son is not bound to return the money which the father had received as a loan, not even if he had received it for paying expenses for the education of the son, because the son by nature has the right of receiving education, and therefore its expenses are to be demanded from the father, not from the son.

¹ Lessius, De iustitia, l. 2, c. 41, n. 34.

289. On the obligation of obedience. 1. Children are bound of themselves under grave obligation to obey parents in all things which are honest and licit and pertain to their care, as long as they are under their power, provided they command expressly and seriously: "Children, obey your parents in all things," namely those things which pertain to their care; "for this is pleasing in the Lord."¹ And indeed, parents are bound to instruct and educate children; therefore in turn children are bound to listen to parents.

a. The obligation of obedience lasts as long as children are under paternal power; but it ceases when they are emancipated from paternal power or become of age. On the contrary, the obligation of love and reverence never ceases.

alpha. A son of the family becomes major or of age at the time determined by civil law. Nearly all modern laws declare children of either sex majors after the twenty-first year of age has been completed.² If an adult son remains in the paternal house, the obligation of obedience toward the head of the family does not cease in those things which are necessary for domestic order.

beta. An emancipated son is one who has been released from paternal power. Civil law governs emancipation, so that according to some laws a son is emancipated by the very fact that he has attained the legitimate age, but according to other laws he is emancipated only when he himself wills it.

b. Sacred Scripture indicates in many places that this obligation is of itself grave;³ yet in order that a grave sin of disobedience be committed, it is required that parents command seriously, not merely by warning, exhorting, or directing show their will, and that they command in a grave matter pertaining to their care.

alpha. What matter is to be judged grave must be defined by prudent judgment, after account has been taken of the end which parental power has, which is the good of the son himself and the good of the family. Hence generally that matter will be grave by whose omission parents, domestic order, or the temporal or spiritual good of the son himself will suffer grave detriment, as to avoid evil companionships, gambling games, suspect houses, etc.⁴

beta. In practice the disobedience of children, even in a grave matter, will not rarely be excused from mortal sin both on account of defect of a strict precept on the part of parents, and on account of defect of advertence to the gravity of the malice on the part of children.

gamma. Where the matter concerns a precept which refers to several successive acts, for example, that they not approach a tavern, that they not return home too late, etc., grave sin, contempt being excluded, is not committed unless the precept is violated rather often.⁵

c. The object concerning which parents can justly command comprehends all those things which pertain to their care; but this care extends to three things: alpha. to the salvation of the soul; beta. to good morals; gamma. to the governance of the family, both in temporal and in spiritual matters.

Hence children can sin gravely against obedience due to parents: alpha. if against the express precept of parents they do not assist at Mass on feast days, and for a notable time do not receive the sacraments; beta. if they frequent the tavern or theaters, give themselves to harmful games, go out at night, do not avoid dangerous conversations; gamma. if they neglect to devote themselves to studies or to learn a trade, if they do not execute a work of great importance enjoined upon them.

¹ Col. 3:20.

² The German civil code, Section 2, and the Austrian civil code, Section 21, declare children of the family majors only after the twenty-fourth year has been completed. From canon law a son is major who has completed the twenty-fifth year of age.

³ Ecclus. 3:9 ss.; Deut. 27:16; Rom. 1:30; 2 Tim. 3:2.

⁴ Genicot, I, n. 318.

⁵ Cf. Ballerini-Palmieri, II, n. 821; Elbel-Bierbaum, I, tr. 3, n. 555.

290. 2. But in other matters, especially in choosing a state of life, whether matrimonial, clerical, or religious, children are free by the law of nature. They are indeed ordinarily bound under grave obligation to consult parents both about entering marriage and about choosing a certain person; but of themselves they are not bound to follow their counsel. Hence to reject just and prudent counsel does not exceed a venial sin, unless the matter concerns obtaining an end of great importance, for example, extinguishing hatreds or relieving the necessity of parents.

But concerning a clerical or religious vocation, it will be better not to seek the counsel of parents when the necessary knowledge of these matters seems to be lacking to them; but, once the choice has been made, it suffices to seek their consent. If they deny it, God calling is to be obeyed more than resisting parents. Indeed, if it is foreseen that parents will unjustly impede the matter, children can embrace the state without the parents' knowledge.

Therefore parents sin gravely if they compel children to enter religion or to enter marriage without a just reason; and in equal manner they sin gravely if they impede children without just cause from entrance into religion or from contracting marriage: for it is a grave injury to deprive someone of the liberty which the author of nature has given to each concerning the state of life. The gravity of the sin increases if parents impede a son from contracting marriage either entirely or for a time, because marriage was instituted also as a remedy for concupiscence; for by this manner of acting parents can be the occasion of many sins which are committed by children. Yet if parents are in grave necessity, they rightly require that they be helped by their children as long as the necessity lasts.

291. On the obligation of reverence. The reverence which children owe to parents requires that interiorly they acknowledge their dignity and exteriorly profess it by words, signs, and deeds.

a. Hence children can sin gravely against the reverence due to parents by words, if they call them by contumelious names or seriously curse them; by signs, if they despise them, mock them, are so ashamed of them that they pretend they do not know them; by deeds, if they strike them, even only lightly, or if they only raise the hand as a sign of striking them, if they accuse them in court, even concerning a true crime, except for the cause of the public good. Children by striking parents sin not only against piety, but also against justice; and although the deeds are only lightly opposed to justice, nevertheless they gravely injure reverence.

b. St. Alphonsus notes (n. 334) that a son is excused from mortal sin who, for a just cause and without internal contempt, pretends that he does not know his parents or refuses to have them with him, for example, because they are marked by an infamous crime or because he himself would suffer grave damage from it, provided that he furnishes them necessities; because in such a case the parents themselves are not judged gravely or reasonably unwilling. And in like manner, at least from grave sin, children are excused who restrain by words or deeds parents lacking the use of reason on account of old age, drunkenness, etc., without contempt or malice.

c. Children who have sinned against the reverence due to parents properly and strictly ought to restore wounded honor by petition for pardon; yet if this has not been done before confession, it can and ought indeed to be advised that it be done afterward, but it must never be strictly enjoined or imposed as penance, lest children who do this with difficulty be exposed to the danger of sinning again. For deservedly it can be presumed that parents remit this obligation to children precisely lest they sin again.

292. On illegitimate children. 1. Parents do not enjoy paternal power over illegitimate children, nor do illegitimate children enjoy the same rights as legitimate children, unless they have been legitimated, since they have been brought into human society through wrong, that is, injury.

2. Illegitimate children do not pertain to the family of the father, but rather to the family of the mother, whose name also they receive; nevertheless they do not enjoy the rights of children of the family. Therefore by civil law a guardian (Vormund) must be constituted for them.

3. The obligations of parents extend also to illegitimate children; and in equal manner illegitimate children are bound to show parents love and obedience which the end of education requires, because in each case the foundation of obligation is the same, namely natural generation.

a. By natural right both parents are bound in an equal manner to support illegitimate offspring; yet recent codes primarily enjoin the obligation of support upon the father, and only if he fails, upon the mother, with the exception of the French code, which imposes this burden upon the mother alone. This disposition of law, after the sentence of a judge, is to be obeyed in conscience.

b. According to the civil codes, parents, or the father, are bound to provide for illegitimate children concerning an education consonant with the condition of the parents, or of the mother, although by the law of nature they seem to satisfy their obligation if they procure for them the education necessary and suitable to a man.¹

¹ Austrian civil code, Sections 165-171; German civil code, Sections 1705-1718.

The duties of parents extend to illegitimate as well as to legitimate children. The duty of caring for an illegitimate child falls primarily on the mother, who, before a year has elapsed from its birth, may obtain from the magistrates a maintenance order against the reputed father, providing for the child’s support and education at his expense.

A husband is bound by our law to support the children of his wife by a former husband as well as his own.

1. Melania, a widow, has two sons; one she loves greatly, but the other she can scarcely bear to see, for she herself did not nurse him. Although this one is of a good disposition and of no common talent, the mother experiences toward him a natural antipathy, which, as she says, she cannot overcome. Hence it is that she constantly reproves him with words and afflicts him with insults and even beatings. But the other son, whom she had nursed, although he is of a depraved disposition and of rather mediocre talent, she heaps with every blandishment. She continually bestows hand-gifts upon him, gives him precious objects, notable sums of money, and also a certain small villa, bought by her, which she pretends was given to him by an uncle. Indeed, in her testament she assigns to this one the whole remaining disposable part.

Q. 1. What are the obligations of parents toward children? 2. Has Melania sinned in the case?

R. To the first. Cf. I. M. 671 seqq. To the second. 1. It cannot be doubtful that Melania, by that manner of acting, sins, and sins gravely against piety. For in the correction and chastisement of her son she gravely exceeds moderation, and in these things she is led by no honorable motive of good toward the son, but by a natural and disordered passion; and this perhaps she cannot overcome insofar as she cannot extinguish it in herself; but she certainly can overcome it insofar as she does not act according to it, but according to right reason. So pertinacious a manner of acting on Melania's part can at length inflict grave harm on her son. "You fathers," says the Apostle, "do not provoke your sons to anger." Eph. 6:4. Immoderate chastisement harms children much. It renders them morose, dull, pusillanimous, and sometimes affected with despair. In place of the love owed to parents, it is accustomed to produce contempt and hatred. Reuter, Neoconfessar., p. 2, 6, 4, q. 3, n. 9; Gur., Comp. 375.

2. In those gifts which Melania lavishly bestows in every way upon her other son, she also sins gravely against charity; for she is led by aversion of mind against her other son, to whom, by such excessive gifts, she causes evil. But from this acceptance of persons, with the lapse of time, grave dissension and discord can also arise between the two brothers. Does she also sin gravely against legal and commutative justice? It seems it must be denied.

For through various acts between the living and through the testament she gives and bequeaths to her favorite son only the disposable part. Wherefore, if the legitime of the other son remains untouched, Melania seems to be exempt from grave sin against justice. But it would be otherwise if she harmed this legitimate part, and then the other son, after he had already received it, would be held to restitution, but not before the sentence of a judge. "But it must be noted," says St. Alphonsus, l. 3, n. 740, "that the donee is held to restore nothing to the children before the sentence of a judge." I. M. 673; G. 822-824.

2. Titius first contracted an ecclesiastical marriage only with Bertha, from whom he begot children. Then, having left his family, he entered civil nuptials with Caia, from whom he begot other children. Being near death, he made a testament, and in it, with not even a word having been made about Bertha and her children, he assigned the whole inheritance to Caia and her children. To what are these heirs held in conscience?

3. Caius, with children received from a merely ecclesiastical marriage, dies intestate; and thus the inheritance civilly devolves to his collaterals. What of these in conscience?

4. Seia, when she could not, after an ecclesiastical marriage contracted with Titius, induce him to complete the civil act, steals something from his goods, so that she may compensate herself for the legal part which, at his death, she will not be able to obtain. Can she justly conduct herself thus in conscience?

Q. What must be responded to the various cases?

R. As regards the civil law, these things must be noted in advance:

1. Civil laws, definitive of right and translative of dominion of property, oblige in conscience. Of this sort, moreover, are the laws which define the legitime of necessary heirs and the legitimate succession of legitimate heirs.

2. Laws are to be interpreted in a fitting way, if this is possible, and are not to be drawn to an iniquitous and unjust disposition, if this is not necessary. Now the law of civil marriage, if it is understood of a true marriage to be entered, where the Council of Trent has been promulgated, is iniquitous and unjust, and then must not be attended to. For no legitimate right can flow from a law which is contrary to natural and divine right, and which is not from the use of legitimate authority but from its abuse. But this interpretation is not necessary. For it can be understood only of a certain exterior form, so that there may be certainty concerning true marriage in order to its civil effects, which depend only on true marriage, from the very fact that they are the civil effects of marriage; and by no means on that legal form, which is only for the proof of true marriage. Besides this common and extrinsic reason, there is also a proper and intrinsic reason for this interpretation. For first, that law concerning civil marriage has its foundation in the power which the civil authority has of ruling the civil effects of marriage. Therefore, if an effect supposes its cause, that law cannot be understood except of true marriage, that is, of the mere civil declaration or proof of true marriage. Moreover, the law itself distinguishes between marriage, concubinage, and adultery; and, what is more, between valid and null marriage. Therefore again it must be understood only of true marriage, that is, of the proof and declaration of true marriage. - Moreover, some civil laws have been approved by the Church and oblige, others have been reprobated by the Church and do not oblige, others have neither been approved nor reprobated, which in particular are to be examined in order to define the force and nature of the obligation. Now the law of civil marriage, if again it is understood of true marriage to be entered, has been reprobated several times by the Church. But if it is understood only of the legal form and civil proof of marriage, thus that law has never been reprobated; indeed, it has been positively approved. Nor indeed is that law approved in another sense, except insofar as the civil authority can dispose concerning the civil effects of marriage, namely true marriage. Cf. the letter of Leo XIII, Il Divisamento, 8 Feb. 1893, to the Cardinal Bishop of Verona and to the Episcopate of Venice, concerning the schema of the law on the precedence of civil formalities with respect to religious marriage.

3. It is worthwhile to report certain words of the praised letter, which bear most upon the matter: "It is not inappropriate to declare once more that the civil power may indeed dispose of the civil effects OF MARRIAGE, but let it leave to the Church what regards marriage in itself; LET IT ADMIT THE FACT OF TRUE AND LEGITIMATE MARRIAGE, as it was instituted by Jesus Christ and practiced by the Church, AND FROM THERE TAKE ITS MOVES to grant or deny the effects which follow from it in civil society." Lower down the Supreme Pontiff reprobates the civil law in this same matter, which indeed could not bring it about that a marriage legitimately contracted be null, "because it is a matter of natural and divine right, against which there is no power in the world that can prevail; but it would put into operation all means to make it be considered as null, to impede its duties, AND TO FRUSTRATE THE EFFECTS WHICH LEGITIMATELY FOLLOW FROM IT." And afterward the Supreme Pontiff asserts that civil effects of this sort pertain solely to the civil State, and that sufficient provision had been made by the State regarding them, even beyond measure, through civil marriage, without the precedence also of the same marriage being imposed.

4. The same observation must be made as regards the civil law constituting the legitime, in testamentary disposition, and legitimate succession, in legitimate disposition, in favor of the spouse and legitimate children. Cf. C. I. 721. This law is pious and just, and it must be understood piously and justly only of a true spouse and of children born from true marriage, who truly and uniquely are, and are called, legitimate. But impiously and unjustly it would be understood of an adulterous concubine and adulterine children, whom the law itself punishes and excludes from any succession. Nor indeed would the same law be fittingly and honestly understood of a merely fornicating concubine and fornicating children; nor would that law be understood coherently in this way, since the law itself distinguishes between merely natural children, born outside marriage, and legitimate children, born from marriage. Moreover, the law here disposes in reality concerning the civil effects of marriage. Therefore it presupposes true marriage, and accordingly treats of truly legitimate children and a true spouse. Cf. tit. Qui filii sint legitimi.

As regards the natural law: 1. No right belongs to collaterals and ascendants from natural law and from strict justice; but only from civil law, founded on charity and piety. Wherefore, with the assistance of civil law and legitimate succession failing, and with testamentary disposition also failing for them, ascendants and collaterals cannot exclude from testamentary succession the spouse and children, whether only civil marriage was present, or whether only ecclesiastical marriage was present. For these legitimately succeed in either case, as at least voluntary heirs, if testamentary disposition was present for them. But if testamentary disposition failed and only civil marriage was present, they also legitimately succeed, as voluntarily called to the inheritance by the testator himself, who, entering civil marriage and dying intestate, is now considered to bestow rights upon the wife and children from the civil marriage, according to the very laws to which he remits himself. If again testamentary disposition failed, and also civil marriage, but only canonical marriage was present, then from natural law ascendants and collaterals have no right to succession, nor do they have any right to succession from civil law, since a truly legitimate spouse is present, and truly legitimate children are present; to whom, in the case, the civil law itself gives assistance.

2. The spouse and children, as many think, have no strict right from natural law and from justice to succession, but only from civil law, founded on equity and piety. Others, on the contrary, hold that the spouse and children have a right to succession from the natural law itself. But those who opine thus in reality fall back into the prior opinion. For they must finally necessarily agree in this: that a right of this sort is not a right in the thing, but to the thing; it is in no way a right from strict justice, but one arisen only from piety and founded in piety, to which natural equity consequently accedes. But this right certainly is neither to the whole inheritance nor to this principal part of the inheritance, but only to some goods, namely to food and due provision, if they need these things. Wherefore, with the assistance of civil law failing, they could claim nothing else, even from natural right. But the civil law admits the spouse and children to legitimate succession, and establishes the legitime for children, but not always for the spouse. Nevertheless the Italian Code also assigns a legitime to the spouse.

Hence to the first case it is answered: Bertha and her children have a right to the whole inheritance, by force of legitimate succession, according to the civil law. For the testament in favor of Caia the adulteress and the adulterine children, with the legitimate wife and legitimate children having been passed over, is of no force with respect to the adulterine children, declared incapable by the law itself, and to whom only food is owed, C. I. 767. But with respect to Caia the adulteress, no more can be owed to her by force of the testamentary disposition than if she were the legitimate spouse of Titius; this cannot exceed, in the case, the portion of one of the children, within the limits, nevertheless, of the disposable part, C. I. 770; CC. 10, 13, Qui fil. sint legit.

To the second. The collaterals of Caius have no right to the inheritance of Caius, neither by force of testamentary disposition, which did not take place, nor by force of legitimate disposition, since, when legitimate children, or legitimate children and a legitimate spouse, are present, as in the case, collaterals are excluded.

To the third. Seia, in the case, from what has been said does not seem to be disturbed. - D'Annib., 3rd ed., p. 2, n. 342, notes 22, 23; Gennari, Consult. etc., cons. 24, 27; Scav., l. 4, n. 560, cas. 6.

5. Aristides, married and having legitimate children, committed adultery with Vincentia, from whom he had a son and a daughter. The matter is hidden and remains so; for Vincentia died before the adulterine children arrived at the use of reason. But Aristides provided for the sustenance and right education of his children, as of orphans altogether foreign to himself, placing the son in a certain college of religious, and the daughter in a house of nuns. Hence the son, now having become older, is initiated into sacred orders, and Aristides establishes a patrimony for him; but the daughter contracts nuptials, and he establishes a fitting dowry for her. But Aristides makes a testament and leaves the disposable part to each, son and daughter, while pretending a work of charity toward abandoned orphans, whom he also commends to his testamentary executor.

Q. 1. Do adulterine children succeed to their parents? 2. Has Aristides acted rightly?

R. To the first. Cf. I. M. 663, 1038, 1039, 1045. To the second. Aristides acted rightly indeed in providing for the sustenance of his adulterine children. For it is of the law of nature that children be nourished by parents, although they are illegitimate, because they are always children. If, generation being considered, all are children in the same way, it follows that, if parents, because they are the principle of generation, the cause and authors of children, owe food from the law of nature to legitimate children, by the same right likewise and by the same reason they must provide the same things to any illegitimates whatsoever, with respect to whom they have the same character of principle and the conjunction of blood. Hence the contrary disposition of Roman law, Auth. Ex complexu, C. de Incest. et inutil. nupt., Auth. Quibus modis naturales efficiuntur sui, cap. fin., was corrected by Canon Law, C. Cum haberet de Eo qui duxit in matrimonium etc., C. Per venerabilem Qui filii sint legitimi. But by more recent civil law, food is positively conceded to adulterine children of this sort. C. I. 767; C. G. 762; C. H. 845; C. A. 166.

Aristides also acted rightly in providing for the right education of his children, and that so prudently and secretly that no dissension and no scandal would arise in his family. For this also is required by natural law itself, and is confirmed by civil law also, since food granted by civil law extends also to fitting instruction, according to the condition of the person. C. I. 138, 143, 846; C. G. 203, 308, 762-664; C. H. 143; C. A. 166.

Nor indeed does Aristides seem to be disturbed when he establishes for the son a patrimony and for the daughter a fitting dowry, by no means excessive or inofficious. For in C. Cum haberet de Eo qui duxit in matrim. etc., it is said that necessities must be furnished to children of this sort according as means suffice. But among necessities, in the case, a patrimony is counted for the son, and a dowry for the daughter; for a son lacking a patrimony perhaps will not be able to ascend to sacred orders, nor will a daughter lacking a dowry be able to marry, and by not marrying perhaps she would live shamefully. C. I. 143; C. G. 208; C. H. 143, 146; C. A. 166.

But Aristides does not act rightly in also instituting his two adulterine children as heirs, to the grave damage of the legitimate children, from whom for this reason the whole disposable part is subtracted. Adulterine children by law are incapable of succession, whether legitimate or testamentary; likewise they are incapable of donation. Hence, if the son and daughter knew their condition, they would be held to restitution. L. Si quis incesti, C. de incest. nupt.; L. 1, C. de Naturalib. liber.; C. I. 752, 767, 1053, 1055; C. G. 762, 908, 911; C. H. 139, 625, 628, 845; I. M. 1039, 1045; G. 868.

6. Iacobus, a priest, a beneficiary, since he had had a son from a certain unmarried woman, instituted this son and his wife as heirs of all his patrimonial goods and of the goods which he was able to collect from the fruits of the benefice through several years. He thinks that he can do this with a safe conscience, since the law speaks only of adulterine and incestuous children, and excludes only these, besides food, from all succession. C. I. 180, 767. Besides, he says, the civil law certainly cannot touch at least ecclesiastical revenues; and he left these directly to his son; for the patrimonial goods he left to his son's wife, whom, since she is in no way his daughter, he judges in no way able to be repelled from the inheritance. Has Iacobus acted rightly?

Iacobus has not acted rightly. The disposition in favor of the sacrilegious son is invalid, and likewise the disposition in favor of the wife of the same son, as an interposed person, is also invalid. This is established from the Constitution of St. Pius V, Quae ordini, by which all faculties of testating and disposing concerning ecclesiastical goods, and also, as regards clerics, concerning patrimonial goods in favor of any illegitimates whatsoever, the incapable and incapacitated, are revoked. These things are contained in § 4: "Henceforth, however, we more strictly prohibit that such things be done either for the aforesaid illegitimates of either sex, or for their spouses, or for their parents, children, descendants, ascendants, or other relatives, whether the illegitimates are dead or living, even with a view to poverty, dowry, or any other pious work whatsoever; nor shall they ever succeed in the aforesaid things, goods, monies, rights, jurisdictions, and actions, whether wholly or in part, or have them come to them, although supported by dispensation, even through the aforesaid circuit; nor shall any concession, donation, transfer, or other disposition be made concerning these to another or others, so that other goods, similar or dissimilar, may be conceded to illegitimates or to others above-mentioned."

And these things can in no way licitly and validly be done, since St. Pius V, ibid., § 2, decreed that illegitimates in no way can "either immediately, or through interposed persons, and in whatever manner, succeed in the goods of an ecclesiastical father, or have those goods otherwise come to them, even through any circuit of multiplied successions to others who are capable." And ibid., § 5: "But if anyone of the aforesaid should be a violator of the present letters, the testament, donation, legacy, and disposition shall altogether not hold, nor shall it be valid even with respect to others capable and other things," etc. Sanch., Cons., l. 4, c. 3, d. 20; Roncaglia, Consil., cons. 28.

262. • I. Notion.

a) Legitimacy is the juridical condition of children whose birth is conformable to the prescriptions of the laws.

Legitimacy is distinguished in the ecclesiastical forum and in the civil forum. For someone can be held legitimate by the Church and illegitimate by the civil authority, and vice versa.

Here we shall treat only of legitimacy in the ecclesiastical forum.

b) Legitimation is an act of the law or of the prince, i.e., of the Roman Pontiff, by which an illegitimate child obtains the rights of a legitimate one, either wholly or in part.

263. • II. What things are required for legitimacy of birth.

"Children conceived or born from a valid or putative matrimony are legitimate, unless, on account of solemn religious profession or sacred order received by the parents, the use of matrimony previously contracted was prohibited at the time of conception." (Can. 1144.)

a) Not only those who were conceived from a valid or putative matrimony, but also those who were conceived before matrimony and born after the valid or putative matrimony of the parents, are legitimate by full right.

b) An exception is given which is very rarely verified. For if from two spouses joined by valid matrimony, even consummated, each or either has pronounced solemn vows, or the husband has legitimately received sacred orders, if afterwards, notwithstanding the vow or sacred Order, they have had carnal intercourse, the child born from such intercourse will be illegitimate.

264. • III. Proof of legitimacy.

a) "The father is he whom just nuptials demonstrate, unless the contrary is proved by evident arguments." (Can. 1115.)

1. A child born of a legitimate wife is held by the law as the child of the husband, if the husband does not reject paternity.

2. Even if the husband refuses to acknowledge the child as his own, or the wife confesses adultery, a child of this kind is held as legitimate by the Church until the contrary is proved by evident arguments, as is, e.g., the continuous absence of the husband from the tenth month to the completed sixth month before the birth of the child.

b) Nevertheless the aforesaid presumption has no place, so that the husband can reject paternity, if the child is born before six months from the day of the celebrated matrimony or after ten months from the day of dissolved conjugal life. (Can. 1115, § 2.) In this case the burden of proving legitimacy falls upon the child.

The reason is that scarcely any offspring is born before 180 or after 300 days from conception. If the child is born before six months, he cannot be the husband's except from fornication; if after ten months from the day of dissolved conjugal life, he cannot be the husband's except on the hypothesis of gestation contrary to the laws of nature, or of sexual intercourse between separated spouses. Now such hypotheses cannot be presumed. And therefore then legitimacy is not presumed and must be proved, unless the husband acquiesces by silence.¹

¹ Vermeersch-Creusen, cited work, t. II, n. 420.

265. • IV. Diverse modes of illegitimacy.

Illegitimate children are distinguished into:

1. natural children, namely those who have been born from simple fornication.

2. spurious children, namely those who have been born from adultery, sacrilege, i.e., from a person bound by a solemn or solemnized vow, or from incest.

266. • V. Legitimation of children.

Legitimacy is conferred in a twofold way: either by the law itself which declares legitimation annexed to some fact, or by a rescript of the Supreme Pontiff.

a) Legitimation is had by the fact itself:

1. "Through the subsequent matrimony of the parents, whether true or putative, whether newly contracted or convalidated, even non-consummated." (Can. 1116.)

1. But this condition is required: that "the parents were capable of contracting matrimony between themselves at the time of conception, or pregnancy, or birth." (Ibid.) But if in none of those times, namely conception, gestation, or birth, the parents were free from a diriment impediment, subsequent matrimony does not confer legitimacy.

2. "Children legitimated through subsequent matrimony, as far as canonical effects are concerned, are in all things equated to legitimate children, unless something else has been expressly provided." (Can. 1117.)

But the law excludes those thus legitimated only from the office of Cardinal, Bishop, Abbot nullius, or Prelate nullius. (Can. 232, § 2, 1°; Can. 331, § 1, 1°; Can. 320, § 2.)

2. Through solemn profession in a religious Order.

But legitimation of this kind is altogether partial, because it only removes the irregularity for orders which comes from illegitimacy. An illegitimate person solemnly professed can receive sacred orders, but he does not become suitable for the office of major superior (can. 504), or a fortiori of cardinal, bishop, or abbot or prelate nullius. (Canons cited above, § 2.)

3. Through sanation in the root of the matrimony.

Those who become legitimate from the sanation of matrimony in the root seem to be fully assimilated to legitimate persons, since by a fiction of law they are considered as legitimate from the beginning, and therefore, contrary to those legitimated through subsequent matrimony, able to become Cardinals and Bishops.²

² Vermeersch-Creusen, cited work, t. II, n. 455, 4.

4. Through dispensation from the impediments of matrimony, granted from ordinary power or delegated by a general indult. Adulterous or sacrilegious offspring, however, are excepted from legitimation. (Can. 1051.)

b) Legitimation can be conceded by rescript of the Supreme Pontiff or of the Congregations which are organs of his supreme power.

Then the extension of the grace conceded is to be measured from the tenor of the rescript.

First indeed I say, that she is not bound to make known her crime at the peril of life or reputation. So Navarr. in man. cap. 16. num. 43. Covarr. reg. peccatum at the beginning. Cajetan 2. 2. question 62. art. 6. and others whom he adduces; and Fagundez follows lib. 4. cap. 5.

The reason is that this disclosure, if it is necessary, will certainly be for restitution; but one is not bound to make restitution with damage or loss of a good of a higher order.

Add that this disclosure would be in vain; for the son is not bound to believe it.

I say secondly, however, that she is bound, when she can repair the damage, by leaving her goods to her legitimate children, when she can do so without disclosure.

Next she is bound to persuade her son to enter Religion, in which he will not succeed to the goods. But if the mother has made herself known with so many circumstances that he without doubt believes himself illegitimate, he is bound to restore the inheritance to others. He is nevertheless foolish if he believes it, since he was born under the appearance of marriage and is legitimate according to public fame, which prevails over the private, as we have in Leg. filium, ff. Qui sunt sui iuris.

I say further, that she is not bound to expose herself to the peril of reputation or life, even if the gravest damage befall the other children, as if a principality or kingdom were lost. The reason is that reputation and life are of a still higher order. For a good name is better than great riches. Proverbs 22. Hence Ecclesiasticus 41: Have care of a good name, for this will remain with you more than a thousand treasures precious and costly; And it is the common opinion, as Fagundez says cap. 5. num. 15.

In doubt, however, the adulteress is not bound to make good the damage to her legitimate children, nor to support, dower, or make heir her son, etc.

But if she certainly acknowledges her offspring to be hers, she is bound to restore support for three years and from the third part of her goods, and to make good the damages inflicted on the other children.

On the mutual obligation of spouses I shall treat in part 3, Tract. de matrim. disp. 9.