In moving the Second Reading of the Bill it may be necessary for me to explain, at some length, the reason for it and some of its provisions. It was introduced into the Dáil by Deputy Little. The first clause of the Bill is almost identical with the first clause of an Act of Parliament in Northern Ireland dealing with the same subject. The Bill as introduced by Deputy Little was referred to a Committee of the Dáil. Looking through the report of that Committee I find that most clauses of the Bill were altered by the Committee. Of the original Bill introduced by Deputy Little there remains only what I may call the paternity of the Bill. It now falls on me to introduce the Bill in this House.
The Bill deals with the legitimation of children born before the marriage of their parents. It is intended to bring the law in this country into line with the public law of Europe. In fact, its design is to make the law what it was after the introduction of Christianity into Europe, and to repeal in this year of grace, 1931, the pagan law which obtained in England and in Ireland since the time of Henry III. I have said that it is the Christian law, and for this reason, that in old Roman times there was no such thing as the legitimation of the child born out of wedlock, the offspring of a woman who was not free. There was in the Roman Constitution a certain provision, however, for legitimating children in certain cases, but it was only in the time of Constantine, and after the introduction of Christianity, that the legitimation of children by the subsequent marriage of their parents became the Civil Law—the law of Rome.
After the time of Constantine— about the year 300—it continued to be the law not alone in Eastern Europe but in Western Europe until the time of Henry III. It continued to be the law of France and of Scotland. It was the law of ancient Ireland, but for a special purpose, in the time of Henry III. For the nobles of England determined that they would not permit the legitimation of children born out of wedlock. Of course, the reason for that was political. They did not wish that the children of Saxon women should be entitled to succeed to the estates of the Norman conquerors of England. It then became the law of England that, so far as the succession to estates was concerned, children born out of wedlock should not be entitled to succeed. Being then the law of England, it became the law of Ireland, and was strictly enforced here for the same political purpose. Some time ago, an Act was passed in the British Parliament putting an end to that anomaly, and in 1928 an Act was passed in the Northern Parliament providing that the old Christian rule as to legitimation should prevail. Now, it falls to me to introduce this measure and to explain some of its provisions.
The first section provides that children born out of wedlock shall become legitimate on the marriage of their parents. The second section provides that any child so legitimated can obtain in the courts a declaration of legitimacy. The third section deals with the rights of legitimated persons. Generally, these rights are—that a legitimated person shall have the same standing as a child born in wedlock as regards the distribution of the estate of an intestate, and in regard to any other disposition coming into operation after the date of legitimation. There is, however, the provision that the legitimated child, in the matter of succession to real estate, shall be only entitled to succeed next after the child born in wedlock, or, to put it in the words of the Bill: "the legitimated person or persons shall rank as if he or they had been born on the day when he or they became legitimated by virtue of this Act." I think that is reasonable enough, so as to provide for the cases of persons born in wedlock before the passing of this Bill. A legitimated person, in the matter of succession to real estate, will come in after a person born in wedlock. There is another provision which is rather curious to find in a statute of the Free State legislature. It is that all property devolving upon a person who is designated as the possessor of a title of honour shall go to him notwithstanding the provisions of this Act. In other words, where property is settled to follow the succession of a title or dignity, that property shall follow that succession notwithstanding the provisions of this Act. Section 10 provides:
"Nothing in this Act shall affect the succession to any dignity or title of honour or render any person capable of succeeding to or transmitting a right to succeed to any such dignity or title."
Therefore, the old pagan law will still apply in regard to the succession to titles of honour, and that same law will still apply in relation to the succession to property which, by any will or other disposition, is expressed or by implication is understood to be attached to such title of honour. There is another provision in the Bill in relation to the succession on intestacy to legitimated persons and their issue. It says:—
"Where a legitimated person or a child or remoter issue of a legitimated person dies intestate in respect of all or any of his real or personal property, the same persons shall be entitled to take the same interests therein as they would have been entitled to take if the legitimated person had been born legitimate."
That is only a corollary to what appears in an earlier portion of the Bill. If a legitimated person is to be entitled to share on intestacy with persons born in wedlock it is only just that persons born in wedlock should be entitled to share in the estate of a legitimated person. Another section in the Bill provides:—
"A legitimated person shall have the same rights and shall be under the same obligations in respect of the maintenance and support of himself or any other person as if he had been born legitimate ..."
Up to this a bastard had no right and no obligation. Now he is to receive the rights of a child born in wedlock in case his parents marry each other after his birth, and it is only fair that in such case he should have the obligations of such child. There are minor provisions relating to death duties.
I shall refer to one clause in which members of the Seanad on my right will be interested. I think we ought to have some amendment of that clause, which deals with the right of an illegitimate child to succeed to his mother on intestacy. The clause states:—
(1) Where, after the commencement of this Act, the mother of an illegitimate child, such child not being a legitimated person, dies intestate as respects all or any of her real or personal property, and does not leave any legitimate issue her surviving, the illegitimate child, or, if he is dead, his issue, shall be entitled to take any interest therein to which he or such issue would have been entitled if he had been born legitimate.
The meaning of that is that if the mother has no other children the illegitimate child shall succeed to her estate, but if she marries and has any other children, then her illegitimate child has to go without any provision whatsoever. The House may be of opinion that if an illegitimate child is entitled to succeed to his mother when she remains unmarried, he ought to be entitled to some share even when she does marry. It is a matter to which I would direct the attention of the House. There is another clause which states:—
Where, after the commencement of this Act, an illegitimate child, not being a legitimated person, dies intestate in respect of all or any of his real or personal property, his mother, if surviving, shall be entitled to take any interest therein to which she would have been entitled if the child had been born legitimate and she had been the only surviving parent.
Now, we are going to alter the law. We are going to provide that the estate of an illegitimate person, instead of going to the Crown as it used to go on intestacy, shall go to the mother, if the mother survives, and I would suggest to the House that there is great justice in that provision. But if there is justice in that provision, I think there is equal justice in providing that where the mother dies intestate the illegitimate child ought to have some share in the distribution of her estate. The House may think that that is a matter which will call for attention.
These are the main provisions of the Bill. I commend them to the House because they are a very late instalment of justice. They bring the law of this country into conformity with the public law of Europe. This Bill enables the status of children to be determined as it was determined in the Christian Church before the middle ages, and as it is determined up to the present according to the laws of the Church. I think that there will be no great opposition to the principle of this Bill. There are two or three matters in relation to some of these clauses which need special consideration from the House. Perhaps, some Senators will ask why we should be interested in titles of honour or the succession to land associated with titles of honour. Some Senators will ask why, if the mother is to succeed to the estate of the bastard child, should not the illegitimate child have some share in the estate of the mother. There is another matter which, in my judgment, has not received sufficient attention in the Bill. I think that there ought to be provision whereby a father should make some declaration of legitimacy in the event of his marriage with the mother of the child. That is the law of France. In France, when people have offspring and subsequently marry, there is a provision that the father shall make some declaration of acknowledgment. There is no such provision in the law of Scotland. There was no such provision in the Civil Law—the old law of the Church. It will be for the Seanad to say whether there should not be some provision whereby the father should declare his paternity of the child when he marries the mother, as is the case in France, or whether you think this cumbrous method is sufficient, whereby a child born before wedlock can himself go before a court and, under the Legitimacy Declaration Act, obtain a declaration of legitimacy. Perhaps the Seanad would think the latter course is better, for the reason that the rights of the child are in no way prejudiced by the fact that the father does not make a declaration acknowledging the child when father and mother marry. The child is given the status of a legitimate child according to the law of the Church. On the distribution of property afterwards, if his right or his parentage is contested, it will be open to him to prove it. These are a few matters which, I think ought to be remembered by the Seanad when it comes to consider the Bill and to determine whether or not amendments should be made to it. On the principle of the measure, I would say that this is a Bill long overdue. We live under a pagan law. This Bill will make our law conformable with what has been the civil law from the time of the introduction of Christianity into the Roman Empire.
