Appendix - Birtwhistle v. Vardill [1830] UKHL 4_WS_App_95
[1]If the fact of the legitimacy or illegitimacy of a native of Scotland is at issue in the Courts of law in England, is it or is it not a principle of the law of that country, that, in judging whether he was born in justis nuptiis, it withdraws, and leaves that legal question to the exclusive judgment of the law of Scotland,—where his parents are domiciled, where the alleged marriage took place, and where he was born?[2]If, in the judgment of the law of Scotland, a native of that country is born in justis nuptiis, does or does not the law of England, from that comity established by international law, hold him to be possessed of every right which an Englishman born in justis nuptiis enjoys? And, independent of every view of international law, must or must he not, in law, be deemed to enjoy such rights, under the fourth and twenty-fifth articles of the Union betwixt England and Scotland, approved of and confirmed by the parliaments of the two countries; the former of which provides, “that there be a communication of all rights, privileges and advantages, which do or may belong to the subjects of either kingdom, except where it is otherwise expressly agreed in these articles:” and the latter of which provides, “that all laws and statutes in either kingdom, so far as they are contrary to or inconsistent with the terms of these articles, or any of them, shall from and after the Union cease and become void, and shall be so declared to be by the respective parliaments of the said kingdoms?”[3]A., a native of Scotland, domiciled in that country, where he possessed a landed property, lived with a female, B., by whom he had two sons, C. and D. Some years after the birth of these children, A. went through a ceremony of marriage with B., by which, according to the law of Scotland, C. and D. undoubtedly became legitimate. At the death of the father A., C. the eldest son, inherited his estates in Scotland, and some years afterwards purchased freehold estates in England. C. afterwards died intestate, leaving no children. His legitimate brother, D., inherited his estates in Scotland, and was regularly served heir to them. D. also claims the freehold estates in Engand of which his brother died possessed, on the ground that he is the nearest heir to his brother C. It has been, on the other hand, asserted, that D., though the legitimate brother of C., cannot inherit his English estates; because, though the law of Scotland holds that the ceremony of marriage which took place, is only evidence of that consent which constitutes marriage having been given before the birth of C. and D., and therefore regards them as being born in lawful wedlock, the law of England holds, that de facto they were born before the marriage ceremony, and, therefore, though it admits their legitimacy, holds that they cannot inherit. By the law of England, must or must not this question be decided according to the law of Scotland—where these two children were born, where the marriage ceremony took place, and where the parties were domiciled? And if it is to be decided by the law of Scotland, assuming that the law of that country is here accurately stated, does it not follow, that C. and D. being born in justis nuptiis, according to the law of that country, D. has a right to inherit the lands in England of which his brother C. died possessed?[4]A., a domiciled Scotsman, possessed of estates in that country, cohabited with B., by whom he had a son, C. Some years after which a marriage ceremony passed betwixt him and B., which, according to the law of that country, furnished evidence of that mutual consent having taken place antecedent to the birth of C. which constitutes marriage, and gave to his son C. the status of a son born in lawful wed-lock. Page: 98 ↓ A., some years after this marriage, retired to England, and acquired a domicile there, where he became possessed of a large personal estate. At the death of A., C. was served heir to the Scotch landed property. Is he or is he not also entitled to the personal estate in England, consisting of leasehold and funded property, of which his father, supposed to be a domiciled Englishman at the time of his death, died possessed?[5]A., an unmarried man, went from England to Scotland, where he acquired landed property, resided, and was domiciled for many years. Soon after his arrival in that country he formed a connexion with a female, M., with whom he lived, and by whom he had a son, B. Some years after the birth of this child a regular marriage ceremony, according to the forms prescribed by the law of that country, took place betwixta. A. and M. Assuming (as is laid down by all the great authorities who have written on the law of Scotland) thatb. B. in consequence of this ceremony is held to be legitimate, by a presumption or fiction of law that the marriage had taken place betwixt his parents before he was born; or, in other words, assuming that the ceremony of marriage which so took place is by the law of Scotland regarded as evidence, that before the procreation of B. that mutual consent to marry had passed betwixt A. and M. which the law of that country regards as constituting marriage, and that he is therefore held to have been born in justis nuptiis, and as such was in truth served heir to the landed property in Scotland in which his father died infeft; under such assumption, the learned Judges are requested to say, whether B. is or is not entitled, as the heir of A., to the real estates in England of which A. dying intestate was seised?[6]Is there any case in which, under the law of England, an only son, whose legitimacy is admitted, is nevertheless debarred from inheriting landed property of which his father dying intestate was possessed?[7]If such case or cases exist, the learned Judges are desired to give to this House references to the authorities by whom they are reported, and to state the principles of law on which such judgments proceeded. 1830