Connected with this discussion respecting natural children and legitimacy, is Mr. Wharton's high disapprobation of the English doctrine, which bastardizes all children born before wedlock, and his equally firm adhesion to the Scotch code which, following the Civil Law, looks back with favour upon the offspring born before marriage, and, upon the adoption of that rite, clothes them with legitimacy. Gibbon observes of the Roman citizens, that "if at any time they desired to legitimate their natural children, the conversion was instantly performed by the celebration of their nuptials with a partner whose fruitfulness and fidelity they had already tried."

We are not entirely prepared to second Mr. Wharton's praise and censure in this comparison between English and Scotch jurisprudence. Still less can we agree with his corollary. "True," he observes, "our law allows a man, who has begotten a child, to marry the mother before its birth, and thus render the child legitimate, by its delivery during actual wedlock; a privilege which, while it is narrow and brief, shows that the ancient doctrine was based upon no very strict rules of morality, but rather upon a distorted and corrupted idea of legal rectitude; its perpetuation being altogether and entirely attributable to our ancestors' perverse and unjustifiable inveteracy of every thing emanating from Rome, whether political, religious, or jurisprudential; an inveteracy which is even now entertained with too much intemperance and too little discrimination. Thus national hatred begets national injustice."

What relation the neglect to avail ourselves of an institution which preceded the Pandects of Justinian can have with the prejudice against Papal Rome, to which the writer obviously alludes, we are at a loss to conceive. Compared with the ancient principle above cited from Gibbon, and which the Civil Law recognised, the policy, the religion, or the jurisprudence of the Vatican (if jurisprudence it can be called), is merely modern. Nor can we imagine why we are to be castigated with the charges of intemperance or blindness, because we are not servile copyists of the civil, nor

1 P. 40.

assimilate ourselves universally to the Scotch system. If we have been inveterate against the innovations of Romanism, we have at all events enjoyed freedom of conscience; and when we look around us, we can neither perceive national hatred nor national injustice, in maintaining with severe jealousy the dearly bought prize of religious liberty. But we must not wander too far from the text. The complaint of our author seems, after all, to rest upon a fallacy. The prominent point of the discussion is, not so much the value of a retrospective recognition of children not born under the sanction of Holy Church, as the prescriptive barbarism which has prevailed to the disadvantage of unfortunates who have been imperilled by the conduct of their parents. And it will scarcely escape notice, that all were bastards, according to our ancient laws, who were not religiously united by the priesthood of the day. No scruples of conscience had any weight with Roman Catholic bigotry and ascendency. The one

true Church threatened to swallow up all the rods in the hand of its antagonists, and Rome was never backward in pronouncing against the heresy which fled from her sanctuary.

We are glad, however, to be able to agree with Mr. Wharton in his condemnation of the harshness of the Common Law. The character of our climate, the customs of Christians handed down to us from the times of the Apostles, the chaste habits of English mothers, the jealous caution of female society in this land, the domestic virtues which attach the educated classes to their homes, are guarantees in honour of marriage with one wife, which may well afford to spare sympathies on behalf of a less esteemed progeny.

Without a pledge to introduce the Scotch condonation into our code, we think that the Legislature should interfere to protect those who have not even the privilege of being children of the State. It might be inconvenient to place the illegitimate on the same footing with the well-born child. The Scotch law does not declare that an illegitimate birth shall change the incidence of its character. It only legalizes, upon marriage, the crooked agency of the past. An Act

might be framed to make provision for the bastard of an intestate, to give effect to the manifest intention of a testator, even to carve out a landed inheritance for the parvenu, without invading a policy which is censurable, more by reason of excess in applying it than from error in its principles. It is not difficult to discern and acknowledge the propriety awarding a provision to infancy that might otherwise combine destitution with misfortune; but we believe that, upon the advent of a tardy marriage, to invest the early offspring with all the claims of legitimacy would be found impolitic and incongruous, and ill in accordance with the usages of England.

The idea is captivating, it seems to have a show of justice, it may be sustained with the wiles of eloquence; it may even be suitable for those with whose institutions it is settled; but it may well consist that a rule, which has fallen in with the genius of one nation, may be attended in another of different tendencies with the fruits of laxity and improvidence.

But we must not lose sight of Mr. Davis. No sooner has the female passed the line of infancy than we find the author of the Prize Essay in full ardour to protect her maidenhood and vindicate her honour. With his learned and elaborate investigations into the laws of ages long past we have no space to hold conference; his collections of ancient codes have been made with diligence, and bear evidence of a love of his subject. The names of his adjudicators are, moreover, tests of his accuracy. The practical part of his essay is that with which we are engaged. It need scarcely be remarked, that, like most inquirers of our day, he is not satisfied with the state of the law. He does not consider that a parent's interest in respect of his daughter's chastity is sufficiently recognised. He seems desirous of treating the procuration of women by fraud and falsehood as a false pretence is now visited when the object sought is money or goods. "Not so much for the purpose of assimilating the nature of the offence and the punishment in each class of cases, but that the crime may be regulated rather by the fraud and falsehood employed, than by the wisdom or simplicity of the person

2

against whom it is directed.' He speaks of seduction as (1) private or simple; and then (2) refers to the traffic in it. He would make alterations in the law regarding brothels. Mr. Davis affirms that without the recognition of the parent's legal interest in the chastity of his child, "as the foundation of legislation on this subject, no measure can be complete or satisfactory." It is undoubtedly true that the expositors of our civil code have taken a very pecuniary view of this important matter. If the father loses the benefit or profit of his daughter's services through the act of her seducer, his right to damages accrues, and a jury is directed to award him compensation for the consequential injury he has sustained. But if his daughter goes out as an apprentice, to a milliner, for example, and the husband of the mistress robs her of her virtue, and causes the loss of her health and her engagement, he has no remedy. He has sustained no injury; his child neither milked his cows nor served his table. The mother of the girl is not once thought of. Perhaps, it might be imagined that the seducer lay under some obligation to protect, instead of violate, the honour of his wife's servant. But, unfortunately, the contract of servitude was made with the wife, and however necessary it might be for the husband to be joined as a party in any action for a breach of that contract, he escapes cleverly from all legal responsibility, and clear from the consequences of his crime. We must not dwell too long upon each grievance, but this mode of dallying with every good and kind feeling had induced the Courts to say that if there existed in the daughter's breast any idea of a return home, they would still protect her, they would hold that the paternal service never ceased. Accordingly, upon the breaking out of another unhappy occurrence similar to the last, it was averred, that the girl would have returned to her father, unless she had gone to some other service. This averment was inserted for the purpose of showing the intent to maintain a hold upon home, "and so assimilating this case to those in which actions have been held to lie for the seduction of a girl while on a

1 Essay, p. 244.

2 Ibid. pp. 245, 246.

visit to a friend." "And," says Mr. Davis', "if this averment had been held to have that effect, it would have been a most important step towards getting rid of the practical inequality of the law, for the majority of contracts of domestic servitude would bear the interpretation put upon the main question by the pleader." However, there was a precedent to the contrary, an authority no less than that of the King's Bench, which decided that, although the daughter returned to her father at the hour of her calamity, and was maintained out of his earnings, the action, for want of a patent intention to come back at some definite time, would not lie. But pleaders are not dismayed. The daughter of a small farmer fell into the clutches of a master and a seducer. Her father was of sufficient ability to maintain her, and he received her. It was determined to call the poor-law in aid to vindicate the parent for the damage he had suffered. The case was a bad one, and the feelings of the jury were aroused. The verdict passed for 300l. But the master obtained a new trial by impugning the character of the girl. Nevertheless, the second jury awarded no less than 2007. Yet did this defendant again turn round, and, by a successful appeal to dry law, on the ground of the absence of the relationship of master and servant between the father and daughter, he succeeded. The Court could not find it in the bond. There was "no legal wrong to the plaintiff, - no invasion of his legal rights." We have looked through the subsequent determinations on this point, but we are unable to find any that countervail this doctrine. Indeed, the law seems to be settled: "this monstrous wrong," to quote the indignant expression of Mr. Wharton, who seems by no means behind in his appreciation of the dilemma, "thus being without a remedy." 2 . Mr. Starkie was keenly alive to the same injury. After alluding to the fiction which has been already illustrated, he calls it "a reproach to the honour of England that the right to damages should not be necessarily consequent upon the injury." And we have the additional remonstrance of the Reporter who related the case of double

1 P. 182.

2 P. 184.

3 Exposition, &c., p. 182.