LEGITIMACY AND ILLEGITIMACY.
IT seems evident that there is only one serious difficulty in the way of establishing a single system of marriage throughout Great Britain, if not throughout the United Kingdom. All parties may, we think, judging from the evidence recently taken by the .Royal Commissioners, be brought to agree either that registration before an authorized official is a sufficient marriage, or that such registration is an allowable adjunct to the marriage ceremony. If every Catholic priest is declared ex officio a registrar there will, we imagine, be no more difficulty in Ireland than in France in declar- ing that the Courts will recognize only such registration as the proof of marriage ; while in Scotland the people seem not unwilling to -surrender every peculiarity in their system except one. If we understand the grave lawyers who were the principal witnesses, they, although generally anxious for one or two qualifying clauses, are not indisposed to surrender marriage by consent, marriage by promise, and marriage by repute, and all the rest of their special and very informal forms. Some of the clergy still adhere, we believe on religious grounds, to the principle that a promise followed by intercourse constitutes marriage, and one legal witness attempts to prove, and we think does prove, that this principle has great utility in checking seduction, actions for seduction being almost unknown in Scotland. Still the infinite majority of decent Scotch men and women are married by a minister, and there is appa- rently no deeply rooted objection to admit that consent had better be formally intimated before a registrar or clergyman. The Scotch are too reasonable a people, and too much alive to the claims at ,once of property and pedigree, to be heartily anxious to leave the conditions of legal marriage in their present state of uncertainty— an uncertainty so great that there are circumstances under which a man could not tell whether he was married or not. The un- certainty has been hitherto supposed to protect women, but the Commissioners find no evidence in support of this theory, except in the absence of actions for seduction, and it has the effect among the ignorant of destroying the distinction between marriage and concubinage, which, in the large towns, is proved to be exceedingly common. Indeed, it is shown in the evidence that the churches use their internal discipline to insure public marriages in the face -of the congregation, and, whatever the three Scotch Assem- blies approve may, we may be sure, be made law without much fear of popular resistance. Very grave and able wit- nesses, however, —including Mr. Moocrieff, whose remarkable ability is not sufficiently recognized South of the Tweed,—are inclined to regret theedestruction of the custom which has -hitherto obtained in Scotland, as in every other country governed by the Roman law, of allowing subsequent marriage to legitimize -children born before it. Lord Inglis, the Lord Chief Justice of -Scotland, does not hesitate, in a formal protest, to characterize -the English rule on this point as "unnatural and pernicious." Mr. Moncrieff is as strong in opinion, though not in words ; and many witnesses are inclined to suggest that if the marriage laws are to be made uniform, the practice of England on this point should be given up, and not the practice of Scotland. It is in Europe now confined to England alone.
There is not, perhaps, in the whole range of social arrange- ments, one in which right and expediency conflict so visibly as in 'this. Every people, Eastern as well as Western, has, we believe, been compelled to draw some distinction between legitimacy and illegitimacy, even Mohammedans accepting some rules, which, however, they rarely obey, about the mother's faith ; and yet -every such distinction is in itself, as far as the child is concerned, a patent injustice. A direct penalty is inflicted by law upon an innocent person, and by no conceivable system of casuistry can such penalty be made just. The common argument that the child suffers in order that women in general may be deterred from un- chastity by the influence of maternal affection would justify us in torturing the child of a murderess, in order that the next mother who purchased arsenic to kill an enemy, might be deterred from using it lest her child should be hurt. In all probability she would be deterred, but nobody would torture the child, for all that. Even in the worst cases, where the child is born of a double adultery, it is entirely innocent, and ought not therefore to be punished, at all events by law. Were justice the sole rule, every child would, under all circumstances, be held in law to be the legitimate child of both its parents, with as much claim to inheritance and as much right to maintenance as any other, a rule which, by the way, would put a severe check upon concubinage. On the other hand it would, no doubt, introduce almost unendurable anomalies into the family relations, and com- plications without end in the descent of property and dignities, evils which, with British lawyers, have entirely overwhelmed ths natural sense of right. No jurists have gone quite so far as they have in resisting the claims of " natural " children, have legislated with so complete an indifference to the instinctive conscience of mankind. They will not even allow adoption in any legal form, or lighten the 10 per cent, fine to be paid when a total stranger inherits a legacy by will. We cannot but think they have gone too far, and that the claim of illegitimate children ought to be at all events partially recognized, even at the risk of removing one guarantee of morals, but the feudal spirit is not yet sufficiently near its end in England to render discussion useful. We must be content for some time longer to affirm that right and expediency are in this matter at hopeless variance.
So they are in the matter of subsequent legitimatization. The English law on the subject, if judged by any known code of morals, must be pronounced, as Lord Inglis describes it, "unnatu- ral and pernicious." Estimate the fault of the parents as we like, it is still a right thing that they should be encouraged to repair it, and, indeed, all Christian churches and Christian ministers make such reparation matter of peremptory duty, while society, if it never quite pardons the woman, does allow that the man has made atone- ment. The benefit of that atonement is refused only to the child, wbo was guiltless of the sin and innocent of the breach of social order. Consider the fault as we will, from the religious, the secu- lar, or the moral point of view, and still the Scotch or rather the Roman system is the better of the two. Religion would inculcate the repentance the subsequent marriage expresses; it is a matter of secular expediency that there should be few bastards in the corn- inunity ; and strict morality would probably declare that the offenders were married already, and that the State in ignor- ing their union pronounces an unjustifiable divorce. Yet it is not to be denied that the humane and just law of Scot- land tends even there to immorality, while in England it would probably produce a serious decrease in marriage. The Commis- sioners say that in Scotland its effect is to abolish among the lowest class the distinction between marriage and concubinage, and to diminish the popular value of chastity. The women con- sider that as subsequent marriage is as good as previous marriage, previous marriage is surplusage, may be postponed, for example, while the lover seeks his fortune, and public opinion ceases to punish, content to hear, "Oh, they will be married by and by !" Those who best know the country districts of England and Wales will know best how fatally such a provision would operate there. It is hard enoughats it is, as the clergy in many districts know well, to induce labourers to marry until their brides' shame is only too apparent, and till celibacy would be as expensive as marriage ; and under this law they would not marry at all, but leave their wives in service and their children to grow up how they would. Within ten years public opinion would veer round to the point at which it stands in Scotland ; a " misfortune " would entail no shame at all, and one of the most necessary guarantees for chastity would gradually disappear. We have not in England the checks which operate in Scotland, either of tradition, or education, or far-reaching clerical discipline, and a habit of concubinage would grow up with fatal rapidity among us. It is bard enough as it is to keep it down in the factory towns, where children earn full wages at fourteen, and at sixteen set up for themselves without parental control. Any such habit is socially inconvenient, even if the couples intend to remain faithful to each other to their lives' end ; and morally dangerous as establishing a system not only of possible divorce, and not only of divorce at will, but of divorce at the will of a single party to the contract,—a system condemned even by lax moralists, —and of divorce at the will of a single party to the contract without provision for the children, a system condemned by all statesmen without exception. Even if divorce is in se right, it must at least be regulated by law, and the Scotch system tends to establish the power in its fullest degree without any regulation at all. The couples who "intend to marry" have only to quarrel, and their marriage is at an end. The change from the English system of legitimacy to the Scotch would, we fear, produce un- mitigated mischief ; and yet no religious man, or moral man, or just man, can deny that the Scotch system is right, and the English system wrong.
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