Front Page Titles (by Subject) CHAPTER VII: status of children - Law in a Free State
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CHAPTER VII: status of children - Wordsworth Donisthorpe, Law in a Free State 
Law in a Free State (London: Macmillan and Co., 1895).
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status of children
“Let us repeal the bastardy laws,” said an advanced reformer to me the other day. “There is only one objection to that course,” I replied, “and that is that there are no bastardy laws to repeal, A bastard exercises the franchise; he is taxed no more than his legitimate fellow-citizens; he can hold land; he inherits real property under precisely the same rules of inheritance as others; he succeeds to personal property as next of kin; he can attain to the highest offices in the State; in short, he enjoys all the rights and privileges of a citizen. What more do you want to give him?”
I hope I did not succeed in making myself misunderstood. The fact is, the law of England dubs no man bastard except at his own request, or, pending his infancy, at the request of one of his avowed parents. And even in the latter case, he is allowed to dispute and disprove such alleged parentage whenever it pleases him. It is true that no man can foist himself upon any family he thinks fit, without furnishing the required evidence of his kinship. I cannot become the son of the Duke of Bayswater, or of John Smith, chimney-sweep, by simply saying so, and without producing sufficient evidence of sonship. In this respect, all men are equal. As to what constitutes sufficient evidence, I shall inquire presently. There is only one slight exception to this law, and it tells in favour of the bastard. And this is termed the case of bastard eigné and mulier puisné. Here the bastard, though unable to furnish the required proofs of sonship (for the State will not accept even the testimony of the father as sufficient to justify it in foisting the child upon the family), is brought up in his supposed father's house as one of his own children. A legitimate child, that is, one able to furnish the required evidence of sonship, is born. If then the father dies, and the bastard eigne enters upon his land, and enjoys it to his death, and dies seised of it, then the eldest legitimate son and all other heirs are totally barred of their right. Black-stone regards this as a sort of punishment on the mulier puisné for his negligence in not entering during the bastard's life, and evicting him. But this does not explain why all other heirs should likewise be barred. It should be added that this rule applies only when the two sons are by the same mother, who was unmarried at the time of the first son's birth but married at the time of the second son's birth.
Let it not be supposed that I hold a brief for the State, or that I am in any way concerned to whitewash its manifold inconsistencies, illogicalities, and stupidities. One of these I will now proceed to point out. Be it premised that the State has pronounced in favour of the sanctity of human life, and that it will on no account permit of infanticide. Be it further premised that it will on no account itself undertake the maintenance of what used to be called a filius populi, but which is now more correctly described as filius nullius. Now Susan Jones has a baby. Who is to support that baby? The State argues thus:—The most likely person to do so is Susan. Mothers usually do voluntarily support their own children, because, as the saying is, they love them. And if they do, they ought; and if they ought, they shall. In the quaint and childlike words of Blackstone, Susan “finds a thousand obstacles in her way-shame, remorse, the constraint of her sex, and the rigor of laws—that stifle her inclinations to perform this duty; and besides, she generally wants ability. The laws of all well-regulated States have taken care to enforce this duty; though Providence has done it more effectually than any laws, by implanting in the breast of every parent that natural ατοργή, or insuperable degree of affection, which not even the deformity of person or mind, not even the wickedness, ingratitude and rebellion of children, can totally suppress or extinguish.”
Hence the State says to Susan: “Having regard to your ατοργή or insuperable degree of affection for that child, you will be good enough to maintain that child, or go to prison.” To which the amenable Susan replies: “I am willing, but unable; I have not got a brass farthing; I cannot even support myself, much less this child; what must I do?” The State then explains that the best thing she can do is to point out the man who is most likely the father of the said child. Having done which, the State summons and examines the selected man (let us call him John Smith), who stoutly denies the allegation. Whereupon the State, in the person of two worthy Justices, thus apostrophises him:—“Although the evidence of your paternity adduced by this woman is, by the rules which we in our wisdom have laid down, insufficient to prove the same; and although we cannot therefore decree that the child is in fact your son for the purposes of inheritance and succession; nevertheless, seeing that Susan can not support the child, that we will not support the child, and that somebody must support the child; seeing also, by reason of your lame and impotent defence, that you are the least unlikely of all men to be the father of the child; we do hereby decree that you are liable for its support so long, and only so long, as Susan remains unable to earn more than enough to keep body and soul together. And the child shall be called your bastard child, and you shall be called his putative father. For just as the sherry xvhich we have had for lunch, though not in fact and in truth a quart (which is and shall be the fourth part of a gallon), yet is it a reputed quart; so also you, though you be not by the true measure and assize of our laws the actual and proven father of this child, yet are you the reputed father.” By this logic does little Joshua the son of none become at the same time Joshua the son of John Smith, and perhaps also, as some do falsely boast, Joshua the son of the people.
But the inconsistency of the State does not end here. Having laid it down that Joshua is not of the kindred of John Smith's family, yet when he comes to marry, it interposes and says: “Though you are not of the family of Smith, yet you must not intermarry with any of those who would be within the prohibited degrees if you were a member of that family. For although we do know by our laws that you are not of the kindred of Smith, yet we do in our hearts believe that you are.” And so for a second time it befalls that Joshua both is and is not the son of Smith.
But setting on one side these singular freaks of the law, as of very slight importance, the position of the State is a just and reasonable one. To begin with, an affiliation order does not make the alleged bastard the son of his putative father; it merely establishes a. primâ facie presumption, for the child's own good; a presumption, too, which may at any time be rebutted by him on the very flimsiest evidence. It is for this reason that although legitimate children are compelled to maintain their parents in old age, at least to the extent of “keeping them off the rates,” the bastard is under no such obligation. Should he wish to remove “the stigma of bastardy,” he has only got to say that his deceased mother told him that his putative father was not his real father; that she formerly said he was because she really did not know who was, or because she wished to conceal the true parentage, and to shield the man she loved, or because the actual father was impecunious, whereas the selected father was rich, or for any other reason whatever; and the thing is done. Hence, if an alleged bastard should really wish to marry his alleged natural sister, or his deceased natural brother's widow, he has only to repudiate his own alleged father, and he can do so.
On the whole, then, I fail to see any grievance whatever of which bastards have good reason to complain under the law of England. They have a few insignificant privileges, and no serious disabilities—and even these can be easily removed.
Then why, I shall be asked, have I accepted the Presidency of the Legitimation League? Let me try and answer that question.
The law of England has marched forward on the lines of individualism with a thoroughness unexampled in the history of nations. Any man can disinherit his children, or any of them, by will. He is not even compelled to leave them a reasonable subsistence. The child's ancient right to the pars rationabilis has been taken away in every case. By an Act passed in the reign of William III., if a Roman Catholic refused to allow his Protestant child a fitting maintenance, with a view to compel him to change his religion, the Court of Chancery might compel him to do what was “just and reasonable.” And in the reign of Anne, a similar remedy was provided to force Jews to provide a suitable maintenance for their Christian children. But both these Acts were very properly repealed in the present reign. And now every man's property is absolutely at his own disposal. He can pass over all his legitimate children, and leave everything he possesses to his natural child or to his mistress, or to any one else.
It is clear, then, that the bastard and the legitimate child are on an equal footing in this respect. And, in fact, there are but two classes of cases in which their positions differ, viz. in the case of inheritance and in the case of intestacy. To the thoughtless it might at first sight appear that there was no longer any reason why the State should at any time ask a man to point out his father; that it was a matter of complete unconcern to the State how a man carne into the world. But a little reflection will show that in the two cases mentioned the State is compelled, not only to ask the question, but also to take the greatest pains to see that it receives a truthful answer. Suppose somebody grants an estate to John Smith and the heirs of his body; that estate will descend from John Smith to all his lawful issue in a regular order, so long as there is any such issue, without any further trouble on his or their part. This will happen without any expression of will on the part of any of them. Indeed, the expression of a will to the contrary is required to alter the descent. If the eldest branch of John's family should fail, the estate will pass perhaps to a distant relative who may never even have heard of it. Now, in such a case, it is clear that the claimant must prove to the satisfaction of the State that he is in fact the son of the person through whom he claims to inherit. In order to do this, he must furnish the kind of evidence required by the State. Rules of some kind as to sufficiency of evidence are absolutely necessary to save time and to make deceit difficult. Just as, by the Statute of Frauds, the State declines to recognise, or even to look at, agreements to buy and sell land, unless those agreements are in writing, so it very wisely declines to hear any evidence of claim to inheritance, unless the evidence of descent is furnished in the required form.
Similarly, when a man dies without making a will, his personal property is distributed among his next of kin according to certain fixed rules. These rules are based upon observation of what is usually done by persons who do make wills. And this is surely the fairest way to deal with the property of an intestate. But, in order to do this, it is necessary for the State to know who are the next of kin. The evidence required is of the same kind as that required in a claim to inherit land. Thus even though real-property law may be absorbed in the law relating to personal property, as some reformers hope, the State can never evade the duty of defining legitimacy.
The State never interferes with a man's reputation in regard to his parentage until he himself raises the question by setting up a claim to inherit property or to succeed to property in case of intestacy. And no man is forced to put in a claim if he does not choose.
But the question now arises, Does the State really desire to get at the truth? Does it endeavour to find out whether a claimant is as a fact the offspring of the intestate, the actual physical descendant of the person from whom he claims to inherit? Or does it restrict its efforts to ascertaining whether he is of a particular class and kind of such offspring? Is the evidence required such as is best calculated to prove that the claimant is or is not the actual offspring, or rather that he is or is not one of a species of such offspring? Firstly, if so, what is the kind or species which the State tries to select? Secondly, does it succeed in its quest? Thirdly, is the selection a desirable one from the point of view of race welfare?
I shall show that the State does exercise a selection: that such selection was originally based on sound physiological principles: that it utterly fails in its endeavour: and that the laudable object may be attained in another and better way.
Now, what is the best evidence of paternity practically procurable? The solemn declaration of both the parents. And the value of this evidence depends greatly on the time at which it is given. The declaration of belief may be made before the conception of the child; or it may be made at or shortly after the birth of the child; or it may be made at some subsequent date. The first is, in the strictest sense of the term, marriage; and the other two are adoption; but the value of the evidence is considerably weakened by lapse of time. I am now speaking of the evidence of paternity. Maternity can obviously be far more satisfactorily proved by the evidence of disinterested persons. But surely it will be admitted that a declaration of belief, made after the birth of the child (immediately after), is even stronger evidence of paternity than a mere declaration of intention and confidence made before its conception. This shows that the State, which accepts what may be called the evidence of marriage, but which ignores the evidence of infant adoption, is not so much actuated by a wish to ascertain the true paternity of the child as to find out whether it belongs to a special class of such offspring.
And upon what distinction is this classification based? Let us begin at the beginning. I have a couple of thorough-bred Irish terriers: one of them is, in Victorian English, a lady-dog; the other is not. Now, I can sell the offspring of this union in advance for a long price. But if the gentleman takes a walk, and, inspired by original sin, becomes the father of what Mr. Oswald Dawson styles a “chance pup” by a mother who is a half-bred pug, then that pup would not fetch a shilling in the market. He might grow up to be an affectionate, plucky, and clever little dog, but the chances are against him. And in any case, without attaching any blame to him personally, we should call him a mongrel and a cur, and he would be shunned by all dog-fanciers.
Yet surely a thorough-bred man is as much to be desired as a thorough-bred dog, horse, sheep, or ox. The Spartans applied artificial selection to the adult population and strictly regulated sexual unions. Other peoples have applied artificial selection to the offspring, and encouraged judicious infanticide. But with the march of Individualism, it has been found necessary to leave the family to manage its own purity, and to keep itself as thorough as may be, at the risk of coming to grief in the struggle for existence. And with what result? Family law has been imposed on the individual members, not from above, but from within. Family law is an outgrowth of the family, and in no way the arbitrary invention of the State of which the family is a unit. And, consciously or unconsciously, the family has been actuated by pretty much the same motives and aims as those which actuate the cattle-breeder to-day. Sentiments are not artificially created by priest or by legislator. They are natural growths, and for the most part well founded. It is not necessary to blame the bastard, any more than the mongrel, in order to admit that he is or was less entitled to respect, on the average, than his legitimate fellow-citizens. One attaches no blame to the ugly woman—in correct Victorian English, the plain woman—from whom one is constrained to withhold admiration, nor to the poor idiot, whose imbecility we pity but despise.
We are all of us conscious believers in heredity nowadays, and even in pre-Darwinian times we were unconscious believers. We bred our horses and dogs, our cattle and sheep in the sure knowledge that traits and characters are handed down from sire to son. Hereditary monarchy and hereditary peerage are alike products of this faith. The son of a brave man is more likely to be brave than the son of a coward.
But what has all this to do with bastardy? Bastards are as likely to be brave, and have shown themselves as brave, as others. True; but it is probable they will inherit the moral flabbiness, the uncontrollable impulse, the selfishness, and the lack of self-respect which usually characterise one or both of the parents of illegitimate children. This is a stubborn fact, which is not only antecedently probable, but actually observed. A man, for example, who is disowned by his father on account of the inferior social position of his mother, or because of the ephemeral and unholy tie which bound them—such a man is very likely to inherit his mother's incivic weakness and folly. And the children of immoral parents are no less to be shunned and suspected than the children of diseased, deranged, drunken, or low-caste parents.
Again there is no denying that monogamic races have as a fact shoved themselves to the front in the great struggle; and, even if we had no better reason for accepting the monogamic principle, this alone would justify us. It follows that the family has a right to frown upon, to account tainted, and to besmirch, the offspring of polygamous and promiscuous unions, in the just belief that such unions are likely to hand down to posterity a lower and baser type of emotion and of conduct. We are therefore forced to the conclusion that the State, which has adopted the family law from the family, is physiologically justified in trying to make a selection of offspring, and in clothing some with honour, and some with dishonour. We do the same thing with our own subject or domesticated races of animals.
The next question we have to answer is this: Does the present-day law of England, relating to parent and child, succeed in excluding from the ranks of legitimacy only or mainly the children of dissolute and inferior persons? Does it not rather exclude many of the worthy, and include many of the unworthy? If we find that this is so, we shall have good ground for altering the law relating to legitimacy. Take a few instances. Is the man who, years after his wife's death, asks the hand of the loving sister, who has ever since watched over his children and presided over his household, rightly described as a victim of sudden and selfish passion? Or is she more likely than other women to be actuated by sordid motives? Again, here is a man whose wife has for years been confined in a lunatic asylum. He meets with a woman in his own station of life, who is willing, in spite of Society's reproach, to share his lot for better or for worse, and to hand down his name and his blood to posterity. Is there any reason to suspect inferior moral qualities in either of these two? Moreover, there may be many, there are many, who entertain the strongest conscientious objections to perpetual vows. They will not promise what they may be unable to perform. With every reason to hope that they may be suited each to each through life, they dare not swear as to the remote future. Does this self-possession and scrupulousness indicate a low moral tone? Precisely the reverse. Believers in monogamy, they are not believers in the ability of youth to forecast the tastes and yearnings of maturity. Yet they have sufficient mutual faith to trust one another, and to await with hope the unseen developments of time. Surely none will be found to pretend that the offspring of such unions are likely to inherit unsocial and immoral qualities. Perhaps I should be venturing upon thin ice were I to plead for the youth and maiden who, in the summer madness of love, so far forget themselves as to yield to impatience. It is unnecessary for me to do so. Here, as it happens, they have the support and sympathy of the law of England—of the very State itself. “For if a child be begotten while the parents are single, and they will endeavour to make an early reparation for the offence by marrying within a few months after, our law is so indulgent as not to bastardise the child, if it be born though not begotten in lawful wedlock.” Such are the mild words in which the severe Blackstone essays to whitewash the somewhat lax morality of this Christian State. Yet lax it is, judged by its own standard of morality, and by the principles upon which its marriage law rests. More logical, more honest, and certainly not less moral, is the law of Scotland. If, says the Scotch law, the original sin of the parents is not sufficient to bastardise the child, why should we draw the line at its birth? Why indeed? And having got so far, it pushes the principle still further, and allows the legitimation of a child at any time, by the subsequent marriage of its parents. And this is not affected by the fact that either or both parents have subsequently contracted marriage with other persons. Thus does the Scotch law in effect tolerate bigamy. I am not complaining of this, but merely pointing out that one transgression from principle necessitates another, until a condition of complete self-stultification results. Blackstone very sagaciously criticises the Scotch law as neither politic nor kind. It leaves the child in doubt, perhaps life-long doubt, as to whether it is destined to die a bastard or legitimate. It, moreover, lends itself to gross displays of parental partiality; and in some cases to downright fraud, difficult to detect. And what is still worse, it would upset all the salutary rules of inheritance but for yet another violation of principle, by which it is provided that the eldest legitimated child is not to be accounted the eldest, but is to rank as though born on the day of his legitimation. This concession to reasonable expectation it is compelled to make, lest it should blast the whole venerable edifice of status. Strange to relate, no such concession is made in the matter of succession to the property of an intestate. Here the quondam bastard of a week's legitimation may rank with those who have lived on their expectations for half a century.
Let us now compare the evidence of legitimacy required by several peoples. The law of the early Roman Republic recognised two processes; one was by the original and consistent form of marriage, by which a man admitted his fatherhood of any child that might be born of the woman he was marrying, stating that he believed in her virginity and in her loyalty and faithfulness to himself alone. The other was the admission of the man that he was to the best of his belief the father of a particular child living and indicated. The former process was legitimation by marriage, and the latter was legitimation by adoption.
The English law allows of only one form of legitimation, which is neither one thing nor the other. It amounts practically to the adoption of a child before its birth, coupled with going through the form of marriage (an incomplete form) with the child's mother. The Scotch law permits the adoption of any child at any time, by the mere formality of marrying the mother. The French law is similar to the Scotch, but it also permits of a certain qualified adoption, without marriage or the form of marriage, called public acknowledgment, and based on the old Roman form of adoption. The law of the Catholic Church (called Roman) is similar to the Scotch law, except that it insists on the form of marriage being gone through, whereas the Scotch law is quite satisfied with the fact of monogamic union without the outward and ceremonial proof thereof. There are many sub-varieties of legitimation in monogamic countries, but they all agree in requiring the father's acknowledgment of paternity in some form, either before conception or before birth or at some time or other, and in requiring some evidence of a monogamic union between the father and mother.
Now which of these two factors is the cardinal and essential one? Why, the French law actually allows the acknowledged bastard to succeed to his father's property as next of kin; thus enabling him to hand down to posterity the very traits which it professes itself anxious to stamp out. And the English law permits of divorce and remarriage, which is a distinct deviation from the monogamic principle. And Scotch law is even more unprincipled than either. Then why beat about the bush, and make believe? Let us face the truth boldly. The State has given up all hope of upholding the monogamic principle by force. It recognises the folly of trying to make men moral by law. Then away with all this cant and coercion. The monogamic principle will take care of itself. It is a natural tendency, and not an artificial creation of the State. And what, after all, are these vaunted virtues which the State professes itself so anxious to uphold? And these vices it is so anxious to suppress? What virtues do our present marriage laws preserve? Patience, self-control, prudence, constancy. Yes; and what compensating vices do they encourage and engender? Sordidness, life - long prostitution, deception, and secret faithlessness. To what else is due that cesspool of abominations, the marriage market? Then let the law leave morality to take care of itself, and restrict its energies to the redress of injuries, and to the doing of justice. In the particular matter of legitimation, let it fall back on the father's acknowledgment of paternity supported by sufficient evidence, as the one test of legitimacy, and leave the rest to the advancing good sense of sane men and women.
Abolish affiliation orders root and branch, as in France. Trust to the good sense of women not to bring children into the world who cannot point to their father with his glad consent first had and obtained. And let public acknowledgment of fatherhood be sufficient primâ facie evidence of legitimacy, until the contrary is proved. This is now the law with respect to children born in wedlock. The law permits the parentage to be brought into controversy. If it can be shown that the husband was out of the kingdom for nine months before the child's birth, or was impotent, or that husband and wife had no opportunity of intercourse, or that they were judicially separated—in any such case, the child may be pronounced a bastard. And if such cases are extremely rare under the present system, they will be equally rare under a system of greater liberty.
A rational system of marriage contracts, coupled with a rational system of registration of parentage, is all we need. The rest may safely be left to the individuals chiefly concerned.
Under our present system there are two distinct classes of bastard. The first consists of those born out of wedlock, whom their parents are ready and willing to acknowledge. These know the blessings of a mother's care and a father's love. The State has neither moral right nor valid reason to stand in the way of their honourable legitimation. These children have been prettily termed “love-children.” Then there is another class, consisting of the unfortunate offspring of ephemeral, coarse and brutal passion, aptly but somewhat flippantly described by Mr. Oswald Dawson as “chance children; the results of little accidents in mills, and the like.” They will probably inherit the selfishness of the father and the foolishness or recklessness of the mother. No name-giving can mend or mar them. Under any system, until human nature rises to a higher plane, these ill-equipped citizens will be born to excite our pity, but they must ever remain the bastards of the people.
Mr. Fisher, one of the vice-presidents of the Legitimation League, who has recently written on the subject of illegitimacy,1 is usually clear and always original, but I confess I am utterly at a loss to make out the drift of his “plea for the abolition of illegitimacy.” He seems for once to have completely confounded law and custom. In the belief that he is riding a tilt against the law, he is in reality merely condemning the popular use of unbecoming language. He complains that certain persons are “stigmatised by opprobrious designations, such as bastard, illegitimate, and the like.” So they are: similarly, other persons are stigmatised as “mashers,” “negroes,” “lunatics,” and even “females.” Whether or not it is a disgrace to be unable to point out one's father is a matter of opinion; but it does not alter the fact that many persons are in that position. Then what shall we call them? Illegitimate? Or bastard? Will the word “natural” suffice? But it is not the word to which Mr. Fisher objects. It is the unkind thought which usually accompanies its use. And yet no one is bound to think with anger or contempt of a neighbour merely because he is compelled to call him “illegitimate” or “bastard” or “natural.” This is a question for the pulpit, and not for the political platform. When I describe a man as a “masher,” I mean that he dresses and comports himself in the latest fashion and with somewhat of exaggeration. I confess I think unkindly of such an one. Some persons hold him in esteem. It is a matter of taste. “Lunatic,” again, is an “opprobrious designation,” because it is pitiable and even contemptible to be far below the average in intelligence and self-control. Is Mr. Fisher going to bring forward “a plea for the abolition of lunacy”? Or will he make it a penal offence to think ill of lunatics or mashers or niggers or bastards?
Now, Mr. Fisher is no Don Quixote, and there must be some reasonable explanation of his attitude. And I think I have found it. He actually believes that illegitimate persons are saddled with legal and political disabilities. There are several passages in his pamphlet which confirm this conjecture. He proposes “to repeal all laws denning illegitimacy.” There are no such laws to repeal. A bastard has all the rights of an ordinary citizen. He exercises the franchise, he can hold land, he can inherit land from his own issue (that is to say, his only possible relatives), and he is in all respects on the same political level as his legitimate fellows. All the State does is to say to him (and to everybody else), “If you wish to rank as the son of any particular man, you must show that your mother and he were already married at the time of your birth.” When Mr. Fisher says this is a foolish regulation, and too narrow a condition, I agree with him. If it is based on morals, it is too loose, because it ought to require the claimant to show that his parents were already married when he was begotten. And if it is based on other considerations, it can be shown to be unnecessarily exacting. Here we are all agreed. But when it is proposed to abolish all conditions, I stare in blank amazement. What is to prevent the first boy in the street from claiming Mr. Fisher as his father, in making use of his credit, and in succeeding to his property among the next of kin at his death,—supposing him to die intestate? Surely this is not the intention of the writer. Then what can it be? Is it this? That each child is to be allowed to say,” I am the acknowledged son of somebody, but I decline to say of whom. “But any child can say that now, and the State will not interfere with him. It is only when he claims to be the son or daughter of A. B., that, in the interests of A. B., the State says,” Prove it. “Surely this is right and necessary. It is a very serious thing, not only for A. B., but for all his kith and kin”, to have a new relative foisted upon them. For purposes of kinship and succession the proofs must be convincing and conclusive. We may differ as to what they should be, but surely we shall all agree that they should be of a vigorous and thorough character. The French law will accept nothing less than the open admission of the father himself. And the English law will accept nothing less, for purposes of succession, than the admission of the father himself before the birth of the child, and in the public form known as marriage. It is a cruel and wicked thing to disappoint reasonable expectations, and our humane laws are based upon this. So far as the children are concerned, marriage properly means the acknowledgment of paternity before the conception of a child, but in English law it means the acknowledgment of paternity before the birth of a child. With the rights and obligations imposed by the State upon married persons we are not now concerned. For example, the State says, “Once married, always married.” This may be wise or foolish. The State says the man, called the husband, shall be liable for the debts of the woman, called the wife. Custom expects the woman to adopt the name of the man. The State will not allow the man, in case of the woman's death, at any time to marry any of her relatives within certain prescribed degrees. Indeed, the regulations concerning married persons are numerous and detailed enough to fill many volumes, and to occupy the time and thought of many lawyers and courts of justice. But this in no way alters the fact that marriage means, so far as children are concerned, the acknowledgment of paternity before the birth of the child,—simply that and nothing more. It is true that our State will accept no other proof of paternity for the purposes of property law. It will not even accept the public acknowledgment of the father after the birth of the child. Nor will it accept any form of parental acknowledgment except that known as marriage. And there is much to be said for this. Why should any facts be concealed which concern the welfare and the career of others? A man dies intestate, leaving three children by his wife. Suddenly up springs a claimant with an acknowledgment of paternity in his pocket. The eldest of the three children of the marriage expected to inherit his father's land and houses; all three expected to succeed to a share of his personality as next of kin. The whole career of the eldest has been modified perhaps in accordance with this expectation. And now all these hopes are dashed to the ground. Surely this is unnecessary and cruel. Even the Scotch law refuses to allow a child legitimised per subsequens matrimoniuin to take precedence of the children born in wedlock, even though he be the eldest. Then by all means let us simplify our law of acknowledgment of paternity, but to talk of repealing it altogether seems to me absurd.
“The conventional connection,” writes Mr. Fisher, “between so-called legitimate kinship and heirship is to some minds indissoluble, and the extraordinary phenomenon is actually witnessed of certain fearless thinkers incapable of performing such a simple analysis as supposing them to exist apart.”
I am then singled out as one of these unfortunates, and charged with having discussed the question of inheritance and succession to the almost total exclusion of all others, in my presidential address to the Legitimation League.
I did so; but I had not then a glimmer of suspicion that any one present actually believed in a status of illegitimacy above and beyond the mere denial of a special kinship. I should as soon have thought of condoling with Mr. Fisher on his being stigmatised as the non-brother of the Czar of Russia. So he is; but does that constitute what Mr. Fisher calls “an individual status,” as distinguished from “a relative or reciprocal one”?
I fear I must admit having used language in the said address which almost justifies the interpretation put upon it by Mr. Fisher, unless carefully construed in the light of the context. I said, “It seems hard that innocent children should be branded with a lifelong brand of bastardy, as the result of folly or impatience, or it may be weakness over which they had no control.” What, in order to be more explicit, I ought to have said is this: “It seems hard that the State should insist on branding as bastards those whose parents are willing and ready to remove the stain.” This is what I understand to be the object of the League; and had it been more than this, I for one could not have taken any part in its establishment. Nor can I accept Mr. Fisher's amendment of the League's own statement as to its aim. The League, says he, has been established with this object: “To create a machinery for acknowledging offspring born out of wedlock, and to secure for them equal rights with legitimate children.” He continues: “These objects would possibly have been better stated in the reverse order, thus: To secure for offspring born out of wedlock equal rights with legitimate children, and to create a machinery for acknowledging them.” Now this would amount, not to stating better the objects of the League, but to stating quite other objects,—objects quite foreign to the intentions of the League, The true aim is to create a machinery enabling parents to acknowledge offspring born out of wedlock, and to secure for them (that is, such acknowledged children) equal rights with children born in wedlock. This is a very different thing from proposing that the law shall secure for all bastards equal rights with legitimate children. They already have equal rights in all respects save one; hence if the proposal means anything, it must mean that the law shall thrust the bastard by force upon the family of the putative father, with or without the consent of such putative father or his kinsfolk. After this, what is the use of creating a machinery for acknowledging them? Surely such machinery would be a laughing-stock? What need would it supply? In other words, Mr. Fisher proposes a compulsory law, and supplements it by an enabling one. As for his quarrel with the names conferred on illegitimates, it may suffice to say that even if they were dubbed “hero” or “angel,” those names would soon degenerate into terms of reproach and insult; but when it is contended that “they need not be dubbed by any distinctive epithet,” the answer is, they are a distinct class of persons and must have a class-name.
Having now unearthed the “fixed idea” which underlies these peculiar views on legitimacy, we shall be prepared for the remedy proposed, viz. “to introduce a law whereby all children not adopted by any one might become legitimate persons without bonds of kindred with any one, by the mere repeal of the laws which establish illegitimacy.”
If “bastards” were outlawed, or disenfranchised, or specially taxed, or otherwise ill-treated by the State, there would be force in this proposal; but, seeing that they stand on the same footing in every way as those who are legitimate (except as to their claims on the property of particular persons), and that, in short, there are no laws establishing illegitimacy, I fear Mr. Fisher has been battling with imaginary foes.
What, then, was the object in forming the Legitimation League? Was it for the purpose of inculcating the principles of charity in all things? Was it intended to teach the duty of treating the illegitimate with the courtesy and respect which is accorded to those born in wedlock? One might as well form an association for the purpose of inducing Bostonian ladies to invite negresses to their salons; or for the purpose of mitigating the disdain with which school-boys look down on their sisters and girls generally; or for the purpose of filing down the asperities which embitter the intercourse of Jews and Aryans. No, the league was formed to bring about a change in the law. Only time and culture can effect a change in the feelings with which bastards are usually regarded. But if there is no status of illegitimacy, and if bastards suffer no legal or political disabilities, what is there to reform? I will answer. To begin with, why should the community concern itself at all with the relationship of individuals? What business is it of ours whether A. B. and C. D. stand to each other in the relation of father and son, or in any other relation? The answer is three-fold. Parents being by law held responsible for the care, maintenance, and education of their children, it is necessary to know who the parents of a child are before the law can be enforced. Furthermore, the law provides that where a man dies intestate, that is to say, when his will cannot be found, his property shall be distributed as he would himself (judging by the average) have distributed it. Now, most men leave their property, or the bulk of it, to their children. It therefore becomes necessary for this purpose also to know who the children are. Thirdly, the law requires children to support their parents in old age within reason, rather than allow them to come upon the rates. This is a sort of compulsory gratitude, and it also requires a knowledge of the state of the true relationship of the individuals concerned.
There is one other reason why the State should possess this knowledge, but I will pass it over for the present, seeing that it is based upon principles of English law which are in a state of decay, and which, it is to be hoped, will not long survive.
So far as the above three reasons are concerned, it would seem that a system of legitimation might be devised in every way simpler and more convenient than that of marriage alone. For instance, the acceptance of responsibility for the maintenance of the child would, if publicly made by anybody of sufficient substance (say, by registration), satisfy all the requirements of the State, so far as regards the care, maintenance, and education of the child. It matters nothing to the community whether Tom Jones or John Smith undertakes these duties, provided they are undertaken by somebody.
Again, the mere registration of the child as the son of A. B. is sufficient in these days of freedom of bequest to justify the State, in case of A. B.'s intestacy, in ranking the child so registered as his son. To those who say, “But he may not be his son,” the answer is simple: he proposed to treat him as such, and the State has only to consider the probable wishes of the deceased.
Finally, as to the liability of the child for the maintenance of its parents in old age and infirmity, it is enough to say that the present position would remain unchanged. Let A. B. register a certain child as his own; let him bring him up, maintain and educate him, and then suppose proof to be forthcoming that the child is not his son; in such case, it may be urged, the child would be in a position to repudiate all liability, and the father would come upon the rates. True, such a case might arise; but so it might now. The birth of a child in wedlock is only a primâ facie presumption of its legitimacy. The law permits the point to be brought into controversy.
Without going further into details, it is clear that the three requirements above-mentioned would be fulfilled by the simple process of public acknowledgment, the simplest form of which is registration in a public office. Such registration of parentage would be sufficient evidence of the alleged parentage, just as the marriage of the alleged parents now is, until the contrary should be conclusively proved. It would make the registering persons responsible for the maintenance of the child, and it would make the child responsible for the support of the registering persons in old age. And it would further indicate the wishes of such persons in case they should happen to die intestate.
The fear lest a couple of tramps should call at the register office and register themselves the parents of the Duke of Bayswater's first-born, is not a well-grounded fear: for, as I have pointed out, registration constitutes a presumption only, which would be very easily disproved.
Says Mr. Fisher: “A claimant father not only appoints the claimed son his heir, but appoints himself the son's heir.” And this brings me to the State's fourth reason for busying itself with the kinship of citizens. I postponed the discussion of this fourth reason, because it belongs to another class of legal questions. It is an outgrowth of the old law of status, and is quite out of harmony with our extended system of free contract. Time was when a man could devise no part of his property as he thought fit. Certain definite persons had claims upon it which he could not resist. Such persons were related to him by blood, and their rights formed a most intricate and complex web. How carefully these tables of consanguinity were chronicled and preserved among the titled and propertied classes, is evidenced by the fact that Henry IV. of France succeeded to the throne through the sixth son of a predecessor who died about three centuries earlier, during the whole of which time his blood-rights had, so to speak, smouldered in the form of parchment. Now this system, though scotched, is not yet killed. Mr. Fisher is right, therefore, when he points out that a man, by registering himself the father of a child, by that very act “appoints brothers, uncles, and their female counterparts, as well as cousins and other remote relatives.” In short, a man could by this simple process create and manufacture an heir out of a stranger in blood to the detriment of the lawful heir. But here again this is frequently done under cover of marriage, and in both cases it merely creates a presumption, which can be rebutted by the production of sufficient evidence.
It is an old maxim of English law that God, not man, makes the heir. In other words, the tenant for life cannot supplant the heir—apparent, except by the dangerous process of killing him. He cannot adopt an older child, and so put a stranger over his head. But he can and does supplant the heir—presumptive by the simple process of marrying his washerwoman, whereby the plans of the Deity may be somewhat modified, and the purity of the family blood considerably tarnished. Seeing, then, that persons with great expectations may be as easily disappointed by the process of matrimony as by any other, it does not seem that any great harm would be done them by allowing the tenant for life, when there was no heir-apparent, to nominate one by acknowledgment of paternity, without necessarily going through the form of marriage with the mother. It seems to me, therefore, that any person should be permitted to legitimate a child by either of two methods; that is to say, by publicly registering his willingness to admit the paternity of the unborn child of a certain woman,—and this is marriage,—or by publicly registering the fact that he is the father of a child already born and living; and this is adoption. With respect to this second method of legitimating children, since we ought to proceed cautiously, it might be provided that the adopting person should be required to make a solemn declaration that, to the best of his knowledge and belief, he was actually the parent of the child in question. And the most complete form of adoption would be when both parents registered their parentage jointly, bringing the child with them.
To impose any limit of age on the child would be to defeat the object of this reform. But as a transitional step, pending the assimilation of real and personal property, it might be enacted that, for all purposes of inheritance, the adopted child's claim should date, not from his birth, but from his registration. This would safeguard the reasonable expectations of existing persons, as the Scotch law does now. In the absence of any living (born) person being heir-apparent at the time of his registration, the adopted should be treated in all respects as though he had been born in wedlock.
To sum up, the State is not really concerned with the kinship of citizens except for what may be called work-house purposes. That is to say, if a child is found, the State endeavours to find the mother, and having done so, helps her, if necessary, to indicate the father. The decision of the court on this point is based on probability, and very often in face of the denial of the person accused. It is an absurdly unjust and antiquated proceeding, and should be utterly abolished. In the meantime the State does not pretend that such a decision establishes any kinship whatever. It does not even make the child the son of the putative father. The child still remains nullius filius in the eye of the law, although the law has just asserted its knowledge of the father. The total effect of the decision is to render the most probable father of the child liable for its maintenance for the first thirteen years of its life, at a cost not exceeding a sum of about £150, in case of the mother's inability to contribute to the child's support. Otherwise the common law makes the mother wholly responsible for the child's support for the first sixteen years of its life. Whether the State is wise or foolish, right or wrong, in imputing paternity to a man against his will, and in spite of his denial, is a question into which we need not enter here. It is based, firstly, on the anti-Socialistic principle that the community should not be saddled with the support of new-born citizens; and secondly, on the principle that no child should be left to perish. There is a good deal to be said for each of these contentions; though both together may not be a sufficient justification for affiliation orders. I mention this subject merely because some persons seem to think that affiliation and legitimation have something in common, which they have not. It would indeed be a strange “reform” to rest the title to thirty thousand acres and an ancient name upon the bare opinion of a couple of justices in petty session, with no better safeguard against their stupidity or bias than an appeal to quarter-sessions. And yet this is what must be meant by making all children legitimate: though even this does not make clear what would be done in the case of children, alas! no inconsiderable number, of whose paternity not even the mother can hazard a guess. No, these unfortunates, together with those “chance children” whose existence we all recognise and deplore, must be content to remain fatherless, while others, foundlings and the like, must remain not only fatherless, but motherless. Neither law nor liberty can wring happiness out of vice.
It is easy to point out the flaws in the existing law, but it is difficult to suggest a reform which shall not injuriously affect the rights of innocent persons. My own views on this question are, I think, stated with tolerable clearness in my presidential address at the Inaugural Meeting of the Legitimation League 1893, and therefore, without apology, I append it as it stands:—
I suppose I ought to begin by thanking you for the honour you have done me in asking me to be the first President of this Association. I confess my gratitude is somewhat tempered by the reflection that there is a certain amount of odium attached to the post. Otherwise very many better men might have been called upon and expected to fill this office. Only the other night—the night before last—a friend of mine, a member of Parliament, who is well known in this county, and represents one of its divisions, asked me, “Why will you have anything to do with so disreputable a movement?” I replied, “You have no right to describe the movement as disreputable until you know precisely what its aims and objects are.” That brings us to the question—What are the aims and objects of the Legitimation League? It is highly improbable that we are all met here with precisely the same objects and aims. On the other hand, it is highly probable—more than probable—that there is something in common that we are all met here to advocate. I suppose that, broadly speaking, we may say that we are met here for the purpose of enabling certain classes of persons now described as illegitimate to become legitimate. That is perhaps the broadest way in which I can describe the objects of this meeting and this Association.
But before we can erect this very vague proposal into a working rule of action, we find we are compelled to ask ourselves several questions—three chief fundamental questions; and unless we can find an answer to these questions, upon which we can all agree, this Association is a house divided against itself, and it cannot stand. First of all, we have to ask ourselves what are those classes of persons upon whom we are proposing to confer the privileges—or if you prefer it, the rights of legitimation? The French law and the old Roman law conferred these rights or privileges upon all persons with the exception of those who were the offspring of an adulterous or incestuous union. Now we have to come to some conclusion as to whether we are prepared to accept this limitation. I offer no opinion myself at all as to adulterous unions, but with regard to incestuous unions, there is a very great deal to be said. In the first place, incest is not generally understood by the people. It includes, according to English law, unions within the prohibited degrees of affinity and consanguinity. We have first of all to settle the question whether we are prepared to accept unions within those prohibited degrees. The Greeks, in the very height of their civilisation, prohibited unions between a brother and a half-sister, but they permitted unions between a brother and sister, and the marriage of the celebrated Cimon is an instance. He is said to have married his own sister by his own father and mother. I only mention this as a case in point, but we must come to a settlement on this question before we can agree as to the alterations to be made in the law.
The next question is: What is the degree of right or privilege which legitimation is to confer? We must know what it is we propose to confer upon the illegitimate, by the process known as legitimation. Are we going to put illegitimate children on an equal footing in all respects with children born in wedlock? I don't say it is desirable or undesirable; but I do say that, according to the laws of various countries, lines have been drawn. What we have to do is to say what lines are to be drawn, and to ascertain what special privileges or rights are to be conferred upon children who are to be legitimated? Having agreed first as to the class upon which the right is to be conferred, and secondly as to the nature and extent of that right, there is a third question, and this third question is the most important of all.
What is the procedure which we are to advocate whereby illegitimate children can be legitimated? That question underlies all other questions. It is the very question which we are met here to confer on and to decide. I may venture to remind you that, according to the English law, the only process of legitimating children is by the marriage of their parents before the birth of such children. That is the only possible process by which children, in this country, can be legitimated. Now in Scotland natural children can be legitimated per subsequens matrimonium, that is to say, by the marriage of their parents at any time whatever. There is a difference between these and the early Roman law—I mean the law of the Roman Republic as distinguished from that of the Roman Empire—when they were very much more strict. Under that law it was necessary that the marriage should take place, not only before the birth, but before the conception of the child. Here is a very considerable difference. According to the Scotch law, a child born before the marriage can be legitimated by the marriage of its parents after its birth; according to the early Roman law, no such legitimation could take place. But there was another process; there was the process of adoption, whereby any person whatever could become the legitimate son or daughter of the adoptive parents under certain legal forms. We might continue this inquiry very far; but we cannot go further than this: That it is possible we might introduce a law whereby children could become the legitimate children of the adopter by the mere registration of their adoption.
I mention these processes, but there are many others. There are two other modes known to French law. One is the process of adoption under the Code Napoléon, and the other the public acknowledgment of paternity. I submit we must come to some agreement as to what these processes must be before we can form a working association to carry them into effect. I would ask whether an association formed for the purpose of discussing these questions—of ascertaining what should be the proper laws relating to these matters—can properly and justly be described as a disreputable association? What does it imply? It implies first of all that the law of Scotland, which is admitted to be on very many points superior to our own, is disreputable. It implies that the law of France, the Code Napoléon, which is the intellectual offspring of one of the greatest jurists known to the modern world—Cambacérès—is disreputable. It implies that, our own excepted, the laws of all the civilised countries of the earth are disreputable, and deserving the condemnation and execration of the moral, worthy, and respectable English citizen. Nay more, it implies that the morality of, shall I say Mrs. Grundy, is superior to that of the Church at the very height of its intellectual development. For what do we find? We find that the principle of the Scotch law was established as part of the civil code by the Emperor Constantine, and was confirmed by the Emperor Justinian- and furthermore, that this principle was adopted by Pope Alexander the Third, about the middle of the twelfth century. When the bishops and clergy of this country struggled to introduce this principle of the Canon law into the English common law, it was rejected by the barons of England. They said—I don't wish to trouble you with the Latin, but I will quote what I may call a rough English translation—“The laws of England will never make any alterations which are opposed to that which is usual and proper,” a sentiment certainly worthy of a fossil Chinaman. We must never forget that the most unpopular reforms are those which every man in his heart believes to be desirable, but lacks the courage to advocate or to openly avow his belief in.
But there is a strong objection brought against our proposed reform, and it is an objection for which I have the very greatest respect. It is said that in this free country there is no reason why any illegitimate child should be left unprovided for. Any man in his senses can make his will, and it is a criminal offence—morally speaking—if he fail to make it under such circumstances. This is a very strong argument against forcing any new law upon us. It is true that any man can so devise his property that his illegitimate child shall not be unprovided for; but certain cases have come within my own observation, and must have come within the observation of almost every one in this room, in which that has not been done.
I know of one case in which a man died, leaving his property—he being a man of considerable means—to be equally divided among his children. After inquiries had been set on foot in connection with probate, it transpired that the eldest child of the union—and they were legitimately married—happened to have been born some weeks before the marriage. This was for private reasons into which it is not necessary to enter. However, the father and mother were of opinion that their subsequent marriage legitimated their first-born. It was a mistaken opinion, and they ought to have taken legal advice. The consequence was that the eldest child was left absolutely penniless and dependent on his brothers and sisters. More than that, he was left branded as a bastard, and thus handicapped in the struggle for existence. Another case which also came to my knowledge was of a different character. A man, whose wife unfortunately became an inmate of an asylum—a hopeless lunatic—had a child of whom he was particularly fond, by a woman with whom he cohabited as long as he lived. The man was, in the eyes of those who look on things from a rational point of view, leading a thoroughly moral life. He died and left all his property to this child. Meantime his original wife died in the lunatic asylum. By an accident the will was lost, at all events it was not found, and the result was, that the child, morally entitled to property worth between thirty and forty thousand pounds, was left a pauper. This is a state of things which, it seems to me, ought not to be tolerated by civilised law. Thirdly, there is the case—and a very common case indeed—of the children of a man who has chosen—I won't say to marry—but to go through the form of marriage with his deceased wife's sister. I know a case very intimately, because it happens to be that of a relative of my own. He is a man of no means beyond what he is entitled to under a settlement made by his own father. All his first wife's children are entitled to certain property. But his children by his deceased wife's sister come in for no share whatever. He himself would be willing to acknowledge these children just as he would the children of his first wife. But he is precluded by law, and he has no control whatever over the settlement. These are three cases in which the law does seem to affect the property of the illegitimate child. It is no use telling us these cases are rare. They may be rare, but they ought to be rarer. The fact that they are rare does not justify us in saying that we ought to tolerate them where they do exist. To say that a man has only to take the precaution of making a will and to see that it can be found in case of his death, is beside the mark.
But after all, the question with which we are now concerned is not so much a property question as a status question. It seems hard that innocent children should be branded with a lifelong brand of bastardy as the result of folly or impatience, or it may be weakness, over which they had no control. What we are endeavouring to do is so to alter the law that this stain should be removable from the escutcheon of these otherwise honourable citizens. That is our object. It may please God to visit the sins of the fathers on the children unto the third and fourth generation, but it is utterly unworthy of civilised men. What I mean to say, with all reverence, is that although nature may visit certain acts with certain definite consequences, it is not for us to accentuate or aggravate those consequences. If a child puts its finger into the fire and is burnt by the law of nature it is not for us to put a red-hot poker to its nose. It is not for civilised men to accentuate and aggravate the cruel results of nature's laws.
The next point is, what procedure should be adopted for the purpose of legitimating children? As to the injustice and immorality of branding the innocent, I need say no more, because we are met to confer as to the raising of a platform upon which we can further the interests of children who happen to be born out of wedlock. In order to ascertain what we ought to do, the best possible plan is to consider and take note of the historical development of this question. From the earliest times we find two modes of legitimating children—the process of adoption and the process of marriage. Of these two, the older is the process of adoption. As we sail down the stream of history we find that in the days of the Roman civilisation these two modes were both in full working order, and it is said that as many children were legitimated by adoption as by marriage. At any rate we do know that in the noblest days of Rome, its wisest and best of emperors, Nerva, Trajan, Hadrian, and Marcus Aurelius, all succeeded to the purple, not by birth, but by adoption. It is also well known to all of you that the process of adoption is absolutely unknown to the English or the Scotch law. It is well known to the French law, but, unfortunately, it is so hedged about by conditions and restrictions and limitations, that it is to all intents and purposes useless for the purpose of legitimating natural children. In the first place, no man can adopt a child in France unless he is fifty years of age, and without legitimate offspring. He cannot adopt a child unless that child is already twenty-one years of age. He must also prove that he has provided for the child during at least six years of its minority. There is an exception to this rule, in the case where an adopted child has saved its adoptive father from being killed in battle, or by drowning, or by fire. Thus the process of adoption is unsuited to the legitimation of natural children, and the consequence is that the French have to fall back on what is known as the public acknowledgment of illegitimate children.
In spite of recent legislation an illegitimate child has not yet equal rights with legitimate children, and, moreover, it cannot inherit from the kindred of the adoptive father. It comes in on fairer terms with the legitimate children so far as regards the father's own property, but not so far as regards property from kindred, as, for example, from an uncle or a grandfather.
We are none of us here to dogmatise, but to discuss the question amongst ourselves, and if possible to find out the best process of legitimating children. At the same time, I may venture to offer my own personal opinion on the subject. I don't believe in the French process of publicly acknowledging illegitimate children, for the reason that although it does provide for them to a certain extent, it fails to remove from them the stigma of bastardy, and fails to put them on an equal footing with the legitimate offspring. I have a copy of the Code Napoléon here if any one wants to look at it. According to this Code, if there should be any legitimate children, the illegitimate child comes in for one-third of what he would have got had he been legitimate; if there are no legitimate children, he comes in for one-half; and if there be no kindred within the degrees capable of succeeding, he comes in for the whole. is may be called legitimation, but it is only inaudible of qualified legitimation—it places the child on a different footing. Now, I would say the proper course to adopt—the course which will certainly be adopted in the future, when we are a little wiser than now—would be to revive the ancient process of adoption, but without any of the restrictions imposed by the ancient law of Rome, or the very highly civilised law of France. I think it was Justinian who said “adoption should follow nature, and it seems unnatural that a son should be older than his father.” But, at the same time, the danger of a man adopting as his son one who is older than himself is very remote, and if he did so, no very great national calamity would ensue. If any strong-minded young man chooses to adopt his grandmother I see no particular reason for his not doing so. He can practically do so now if he likes; that is to say, he can leave the whole of his property to her, and if it should be that she were a bastard, there is no reason why he should not thus wipe out the stain attaching to her name. In the future you will find that adoption will be a legalised institution in this country, in so far that a person may adopt any one he chooses, provided the adopter be of full age. That is the only restriction I should be inclined to make. Claudius, the enemy of Cicero, was adopted by a man younger than himself, in order to enable him to become a Tribune of the people, and no evil results that I ever heard of came from it. Further, if the custom became legalised in this country we shall all agree it would be mainly used for the purpose of legitimating natural children. The question then arises, What would be the effect on the distribution of wealth in this country? I unhesitatingly say there would be no effect whatever, with two exceptions. The first is the case of intestacy. I have already mentioned a case where what should have been the property of the illegitimate child passed to the father's next of kin. I regret to say they absorbed the whole of it, with the exception of just enough to keep the child off the rates. Our object is to substitute justice for injustice. There is another probable result of this change in the law, if it were made at once. In the present state of real property law it would enable a tenant for life to divert the succession, and this would be a real injustice to the heir. So long as real property law and the law of personal property remain antagonistic, I think it would be desirable to adopt the principle of Scotch law in the case of marriage after birth. I will give you an instance which will make this clear. Suppose a man has a natural child, and he afterwards marries and has lawful children; the wife dies, and eventually he marries the mother of his illegitimate child. in such case that child becomes legitimate and is on the same footing as other children, with one qualification, and that qualification we ought to consider. The legitimacy dates not from the date of the child's birth, but from the date of the marriage of its parents. Therefore the heir born in lawful wedlock is not cut out by the subsequent marriage of the father with the mother of his illegitimate child. This rule would be desirable so long as real property law is not assimilated with the law of personal property. Those days are not far distant. We are not here to discuss this question, nor are we here to discuss the relation of the sexes. We are met here to discover the best means to enable honourable men and women to remove a stain from the escutcheon of honourable children, and to raise them to the same level as those born in lawful wedlock. That is our aim; we have no other. In spite of misrepresentation, I think we may put our shoulders to the wheel, and having regard to the moral intention of the League, confidently go forward and do good work. We have difficulties, real logical difficulties to overcome in regard to the legal aspects of the question, and many other obstacles to encounter in the shape of old prejudices, and of what I may venture to call fossil Toryism.
Illegitimate Children: An Inquiry into their Personal Rights, and a Plea for the Abolition of Illegitimacy. By J. Greevz Fisher, a vice-president of the Legitimation League. 1893. W. Reeves, London.