QUESTION 68: OF ILLEGITIMATE CHILDREN
We must now consider children of illegitimate birth. Under this head
there are three points of inquiry:
(1) Whether those born out of true marriage are illegitimate?
(2) Whether children should suffer any loss through being illegitimate?
(3) Whether they can be legitimized?
Article 1: Whether children born out of true marriage are illegitimate?
Objection 1: It would seem that children born out of true marriage are
legitimate. For he that is born according to law is called a legitimate
son. Now everyone is born according to law, at least the law of nature,
which has more force than any other. Therefore every child is to be
Objection 2: Further, it is the common saying that a legitimate child is one
born of a legitimate marriage, or of a marriage that is deemed legitimate
in the eyes of the Church. Now it happens sometimes that a marriage is
deemed legitimate in the eyes of the Church, whereas there is some
impediment affecting its validity; which impediment may be known to the
parties who marry in the presence of the Church: or they may marry in
secret and be ignorant of the impediment, in which case their marriage
would seem legitimate in the eyes of the Church, for the very reason that
it is not prevented by the Church. Therefore children born out of true
marriage are not illegitimate.
On the contrary, Illegitimate is that which is against the law. Now
those who are born out of wedlock are born contrary to the law. Therefore
they are illegitimate.
I answer that, Children are of four conditions. Some are natural and
legitimate, for instance those who are born of a true and lawful
marriage; some are natural and illegitimate, as those who are born of
fornication; some are legitimate and not natural, as adopted children;
some are neither legitimate nor natural; such are those born of adultery
or incest, for these are born not only against the positive law, but
against the express natural law. Hence we must grant that some children
Reply to Objection 1: Although those who are born of an unlawful intercourse are
born according to the nature common to man and all animals, they are born
contrary to the law of nature which is proper to man: since fornication,
adultery, and the like are contrary to the law of nature. Hence the like
are not legitimate by any law.
Reply to Objection 2: Ignorance, unless it be affected, excuses unlawful
intercourse from sin. Wherefore those who contract together in good faith
in the presence of the Church, although there be an impediment, of which
however they are ignorant, sin not, nor are their children illegitimate.
If, however, they know of the impediment, although the Church upholds
their marriage because she knows not of the impediment, they are not
excused from sin, nor do their children avoid being illegitimate. Neither
are they excused if they know not of the impediment and marry secretly,
because such ignorance would appear to be affected.
Article 2: Whether children should suffer any loss through being illegitimate?
Objection 1: It would seem that children ought not to suffer any loss through
being illegitimate. For a child should not be punished on account of his
father's sin, according to the Lord's saying (Ezech. 18:20). But it is
not his own but his father's fault that he is born of an unlawful union.
Therefore he should not incur a loss on this account.
Objection 2: Further, human justice is copied from Divine. Now God confers
natural goods equally on legitimate and illegitimate children. Therefore
illegitimate should be equalled to legitimate children according to human
On the contrary, It is stated (Gn. 25:5,6) that "Abraham gave all his
possessions to Isaac, and that to the children of the concubines he gave
gifts": and yet the latter were not born of an unlawful intercourse. Much
more, therefore, ought those born of an unlawful intercourse to incur
loss by not inheriting their father's property.
I answer that, A person is said to incur a loss for some cause in two
ways: First, because he is deprived of his due, and thus an illegitimate
child incurs no loss. Secondly, because something is not due to him,
which might have been due otherwise, and thus an illegitimate son incurs
a twofold loss. First because he is excluded from legitimate acts such as
offices and dignities, which require a certain respectability in those
who perform them. Secondly, he incurs a loss by not succeeding to his
father's inheritance. Nevertheless natural sons can inherit a sixth only,
whereas spurious children cannot inherit any portion, although by natural
law their parents are bound to provide for their needs. Hence it is part
of a bishop's care to compel both parents to provide for them.
Reply to Objection 1: To incur a loss in this second way is not a punishment.
Hence we do not say that a person is punished by not succeeding to the
throne through not being the king's son. In like manner it is no
punishment to an illegitimate child that he has no right to that which
belongs to the legitimate children.
Reply to Objection 2: Illegitimate intercourse is contrary to the law, not as an
act of the generative power, but as proceeding from a wicked will. Hence
an illegitimate son incurs a loss, not in those things which come to him
by his natural origin, but in those things which are dependent on the
will for being done or possessed.
Article 3: Whether an illegitimate son can be legitimized?
Objection 1: It would seem that an illegitimate son cannot be legitimized. For
the legitimate child is as far removed from the illegitimate as the
illegitimate from the legitimate. But a legitimate child is never made
illegitimate. Neither, therefore, is an illegitimate child ever made
Objection 2: Further, illegitimate intercourse begets an illegitimate child.
But illegitimate intercourse never becomes legitimate. Neither,
therefore, can an illegitimate son become legitimate.
On the contrary, What is done by the law can be undone by the law. Now
the illegitimacy of children is an effect of positive law. Therefore an
illegitimate child can be legitimized by one who has legal authority.
I answer that, An illegitimate child can be legitimized, not so that he
be born of a legitimate intercourse, because this intercourse is a thing
of the past and can never be legitimized from the moment that it was once
illegitimate. But the child is said to be legitimized, in so far as the
losses which an illegitimate child ought to incur are withdrawn by the
authority of the law.
There are six ways of becoming legitimate: two according to the canons
(Cap. Conquestus; Cap. Tanta), namely when a man marries the woman of
whom he has an unlawful child (if it were not a case of adultery), and by
special indulgence and dispensation of the lord Pope. The other four ways
are according to the laws: (1) If the father offer his natural son to the
emperor's court, for by this very fact the son is legitimate on account
of the reputation of the court; (2) if the father designate him in his
will as his legitimate heir, and the son afterwards offer the will to the
emperor; (3) if there be no legitimate son and the son himself offer
himself to the emperor; (4) if the father designate him as legitimate in
a public document or in a document signed by three witnesses, without
calling him natural.
Reply to Objection 1: A favor may be bestowed on a person without injustice, but
a person cannot be damnified except for a fault. Hence an illegitimate
child can be legitimized rather than "vice versa"; for although a
legitimate son is sometimes deprived of his inheritance on account of his
fault, he is not said to be illegitimate, because he was legitimately
Reply to Objection 2: Illegitimate intercourse has an inherent inseparable defect
whereby it is opposed to the law: and consequently it cannot be
legitimized. Nor is there any comparison with an illegitimate child who
has no such defect.