218 EEPORT— 1871. 



child bom in wedlock ("pater est quern jiiiptice demonstrant^'), to tlie circumstances 

 under which the presumption may be overcome, and to the statements of Stair 

 and Erskine upon the subject, the author said : — 



" The history of the law of legitimacy is fully detailed by Sir Harris Nicolas, 

 in his work on the ' Law of Adulterine Bastardy ;' while the present state of the 

 law is set forth in the works of several well-known authors, including the treatise 

 on the ' Evidence of Succession,' by Mr. Hubback (p. 393 et scq.), and the 'Law of 

 Evidence in Scotland,' by Mr. Gillespie Dickson (vol. i. p. 190 ct scq.). 



" The usual groimd on which the presumption of legitimacy is overcome is the 

 non-access of the husband within the period of gestation. Actual proof of sucli 

 non-access is all that is now required both in England and Scotland; in other 

 words, it is no longer necessary to establish the physical impossibility of the hus- 

 band's access, by proving the intervention of the ' quatiwr maria.' According to 

 Mr. Hubback, the early writers (including Bracton and Fleta) recognize no such 

 doctrine as that of the quatuor 7naria ; and, accordingly, he asserts that ' the law 

 as now settled in its repudiation of this doctrine, is in conformity with the most 

 ancient authorities.' Even Lord Eldon remarked that the law had been scrupulous 

 about legitimacy, to the extent of (Usturbiiif/ the rules of reason. 



"A somewhat difficult question occasionally aiises in connexion with the legal 

 presumption of legitimacy, under the operation of the Act relative to the Regis- 

 tration of Births, Deaths, and Mamages in Scotland (17 & 18 "S^ict. c. 80). The 

 form in which births require to be recorded is prescribed in Schedule (A) annexed 

 to that statute. The first column of the register embraces the '^Name and Sur- 

 name ' of the child, and the fom-th column the ' Name, surname, and rank or pro- 

 fession of the father,' the ' Name and maiden sm-name of the mother/ and the 

 ' Date and place of marriage.' 



" These latter particulars, of course, only apply to the case of legitimate children, 

 the entries applicable to illegitimate births being modified according to circum- 

 stances, and the word ' illegitimate ' being entered under the child's name in the 

 first column of the register. 



" In the case of a le;/iti7nnte birth, the primary informant is one or other of the 

 child's parents, whom failing (in consequence of death, illness, or inability) certain 

 other specified persons. Such parent or other informant is required within twenty- 

 one days after the birth, and under a penalty of twenty shillings, ' to attend per- 

 sonally and give information to the Registrar of the parish or district in which the 

 birth occurred, to the best of his or her knotvlcdge and belief, of the several particulars 

 required to be registered touching such birth, and to sign the register in the pre- 

 sence of the Registrar.' As a general rule, the Registrar (whose duties are, of 

 course, purely ministerial) experiences no difficulty in recording the births reported 

 to him either as legitimate or illegitimate, according to the statement of the infor- 

 mant. Sometimes, however, a doubtful case presents itself, usually under the fol- 

 lowing circumstances. A married woman attends at the Office of the Registrar, 

 and informs him that she has given birth to a child, of which, however, she 

 solemnly declares that her husband is not the father, adding that she has not had 

 any intercourse with him for a long period, perhaps two or three years ; at any 

 rate for upwards of nine or ten months prior to the birth of the child. It may be 

 that, during that time, the husband has been living at a distance from his wife, if 

 not residing out of the kingdom ; and possibly the paternity may be acknowledged 

 bv the paramour. She makes this statement, in the words of the statute already 

 refen-ed to, ' to the best of her knowledge and belief.' Laider such circumstances, 

 ■would the Registrar be entitled, in virtue of the legal presumption, to disregard 

 the statement of the mother, to record the child as legitimate, and to insist on the 

 mother signing the relative entry as informant? In other words, how are we to 

 reconcile the conflict between the legal presumption in favour of the child's legiti- 

 macy with the mother's deliberate assertion to the conti-ary ? The ordinary prac- 

 tice of the Registrar General is to send a printed schedule to the Registrar who 

 reports a birth occurring under such circumstances, of which the following is a 

 copy :— 



