CHAP. XXXIX. Chancellor. SIR! In obedience to your request, I will endeavour to lay before you some other cases, in which the laws aforesaid observe a different determination which is preferable I will not take upon me to say, but shall leave it to your own judgment. "The Civil Law" legitimates children born before matrimony, as well as after, and qualifies them to succeed in the inheritance of the parents." The Law of England does not admit children born before matrimony to take by heirship. It calls such an offspring natural, but not legitimate. In the case before us, the Civilians extol their law, because they say, that it is an encouragement to marriage, by which the sin is done away, and so the souls of both parties are preserved from damnation. They allege further, that the presumption is, that such was the intention of the parties, as it were, by way of contract, at the time of committing the act; the subsequent marriage demonstrates as much. Moreover, the Church admits and allows them for legitimate: these, I think, are the chief arguments, by which they justify and defend the Civil Law. To this the learned in our Law reply, that the sin of concubinage, in the case proposed, is not purged by the subsequent marriage, though in some measure the punishment of the parties offending may be mitigated. They urge further, that the guilty in this case are the less penitent for their offence, in proportion as they find the laws more favourable to it, upon which considera K tion they likewise become more apt to repeated acts of this kind; and so act in contradiction both to the commands of GoD, and the ordinances of the Church. So that this law not only shares in the guilt of the offender by abetting such a practice, but is quite beside the nature and definition of a good law, "which (as has been already observed) is an holy sanction commanding things which are honest, and forbidding the contrary." Now, the Civil Law, in the case before us, rather prompts on the party to do things which are dishonest. Nor is it a sufficient defence of this law, to say, that the Church admits such issue for legitimates. Since our holy mother the Church dispenses with many things which she does not allow of to be done. So the Apostle dissolved the restraint upon virgins, by way of dispensation; when, at the same time he advised the contrary, and would rather that all men were even as himself. And far be it that so good a mother should deny her compassion to her sons, whose case is so much the more deplorable, because they often fall into this sin, being betrayed by that encouragement which the Civil Law allows it: and the subsequent marriage is a good argument to the Church, of their being truly penitent for what is past, and of their resolution to contain for the future. The Law of England has a quite contrary effect: It does not give any encouragement to such a criminal action, neither does it screen the offenders, but lays a restraint upon them, threatens and inflicts a punishment, that they may not offend. The inclination is predominant enough in itself, without any other incitements, it rather wants a curb, the propensions to lust are very importunate and constant: and mankind, seeing they cannot be continued of and by themselves, naturally desire to be perpetuated in their species, which, without that, must be soon extinguished: every living creature has an inclination to be assimilated to the first cause, which is of a perpetual eternal duration: the sensation of contact, by which generation is effected, is a greater gratification than the sense of taste, which only preserves the individual. Wherefore Noah, by way of punishment to his son, who had discovered his father's nakedness, cursed Canaan his grandson, and thereby aggravated his son Ham's punishment more, than if he himself had been accursed: wherefore that law which punishes such an offspring, affects the sin with a severer penalty, than that which immediately affects the offender in his own person: now, I must leave it to you to judge, how truly and zealously the Law of England prosecutes a criminal amour. It is not content only to condemn the offspring to be illegitimate, but debars it from succeeding to the patrimony of the parents. Is not this a chaste law, a law of order, does it not more effectually discourage this sin, than the Civil Law, which remits the sin of fornication without exacting any punishment at all? CHAP. XL. BESIDES, the Civil Law says, that a natural son is the son of the people, concerning which a certain poet, Cui pater est populus, pater est sibi nullus et omnis, "He who has the people for his father seems to have no father at all, or rather every one: he who has the people for his father, has in reality no proper father." Since such an offspring, when born, had no father, how by any subsequent act he can have one, is not known in nature? A woman has by two several men two sons; one of the said men intermarries with her; which of the two sons is legitimated by such marriage? Opinion may prevail, but reason cannot decide; there was a time when both of them past in estimation for children of the people, or community; when neither knew nor had any other father: wherefore, it would seem inconsistent and unreasonable, that a son born afterwards of the same mother in lawful wedlock, whose original is confessedly known, should be debarred of his inheritance; and that either of the other two sons born out of marriage should take as heir: especially in England, where the eldest son, lawfully begotten, inherits to the lands: any indifferent a Haines v. Jeffreys, Comyns' Rep. p. 2. Case of the marriage of a bastard, within the Levitical degrees. person would judge it no less unreasonable, if a base-born child should have an equal share in the inheritance with one who is lawfully begotten. And by the Civil Law, the inheritance is divided amongst the male issue. St. Austin, in his book (de civitate dei) has it, that Abraham gave all that "he had unto Isaac, but unto the sons of the concubines which Abraham had, Abraham gave gifts." His observation is, that thereby it seems to be intimated that the inheritance of right does not belong to a spurious issue, but only a competent living. Thus St. Austin; and under the term (spurious) he includes all such children as are illegitimate, or born out of wedlock; as the holy Scriptures do likewise, which never give to any such the appellation of bastard. You see St. Austin, nay, and Abraham too, makes no small difference as to the succession of a spurious or legitimate offspring. Further, another Scripture sets a mark of infamy upon all illegitimate children in the following metaphorical expressions; "the multiplying brood of the ungodly shall not thrive nor take deep rooting from bastard-slips, nor lay any fast foundation." The Church also does the same, by not admitting them into Holy Orders; or, if it dispenses with them thus far; yet, they are never permitted to enjoy any dignity or pre-eminence in the Church. It is but fit and reasonable therefore that human laws should deprive such persons of the privilege of succession the Scriptures also, in point of birth, judge such inferior to those who are begotten in lawful marriage. Gideon, that mighty man of valour, is said to have had threescore and ten sons of his body begotten; for he had many wives, and but one son by his concubine, and yet this one son slew all his brethren, except Jotham, the youngest, who hid himself. More wickedness is found to have been in that one bastard-slip, than in threescore and nine lawfully begotten. It is an old saying, If |