Imatges de pàgina
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disposition qui soit exempte de toutes sortes d'inconvéniens, mais à préférer celle qui en a le moins."* Nulla lex satis commoda omnibus est ; id modo quæritur, si majori parti, et in summam prodest.-So then the wisdom of the law will be best appreciated by its tendency to prevent litigation, as the wisdom of the judge will be by the soundness of his decisions, as the wisdom of statesmen is best evinced by their opening the widest field for the exertion of the human powers, and emanating laws which, in the highest degree, secure the happiness of the greatest number of individuals for the longest space of

time.

Now the rule laid down in the first clause of the twentyninth article, which fetters the power of the mother as the law does that of the father, so far from checking litigation, will have a tendency unavoidably to increase it by considerably augmenting those fictitious sales and exchanges, or more properly speaking, those disguised donations between parents and children, whereby parents bestow the whole of their property under the form of a sale, from the impossibility in which they are placed by the law of giving, either by will or donation, to any of their children the smallest portion of their property, without being accountable to the others.

The twenty-ninth article is as follows:

ARTICLE XXIX.

A mother, in the same manner as a father, shall not be at liberty to give, by will, to one child more than to another. Fathers and mothers may order the proportion of their married daughters to be placed in trust, and the dividend to be paid to such daughters during their coverture,-well understood that if they survive their said husbands, the capital shall be transferred to the said daughters, and that if they die before their husbands, the capital shall be transferred to their heirs, unless the said daughters should, in cases where this is allowed, have willed away the said capital.†

* D'Aguessau, Tome 9, page 412. De ses Œuvres.

+ Aucun parent ne peut désormais par acte de dernière volonté, augmenter l'hérédité d'un de ses enfans au-delà de sa légitime portion, il lui est néanmoins permis de placer la portion de la fille mariée en fidei-commis durant son mariage.

Article 29.-Mère, de même que père, ne pourra par son testament donner de ses meubles à l'un de ses enfans plus qu'à l'autre. Les pères et mères pourront ordonner que la proportion de leurs filles mariées soit placée en fidéi-commis, pour en être les dividendes payés aux dites filles pendant qu'elles seront

Before we proceed to examine the nature of the restrictions imposed by this article on the parents, it may be proper first to examine what children are here alluded to, and who by our laws are reputed legitimate children.

The children referred to in the twenty-ninth article are legitimate children, that is, all that are born in lawful marriage, or before marriage when a lawful marriage has eventually taken place between their parents, and at the time of whose birth there existed no legal impediment to such marriage, legitimation by subsequent marriage being admitted in Guernsey and throughout the Channel Islands. Incestuous or adulterous natural children cannot therefore at any time be rendered legitimate. The children are also reputed legitimate in law when born after marriage, though such marriage should have been void from any obstacle unknown to either of the contracting parties at the time of its celebration, as if one of the consorts was already married. These marriages are here known as putative marriages, that is, contracted bond fide by either of the parties, to one of whom at least the impeding obstacle must have been unknown; sufficit enim bona fides alterutrius conjugum. It is incumbent on him who alledges the bad faith of his opponent to prove it, and if he fail in doing so, the children born during the putative marriage, and during the period that the consort, who is of good faith, conceived there was no obstacle to its continuation, are treated in every respect as legitimate, that is, they inherit in the same manner as if there had never existed any obstacle to the marriage of the parents. The dower and other advantages which may have been stipulated by a marriage contract, or which arise from the law in the absence of such contract, continue in favour of the consort who is of good faith, notwithstanding that the marriage is void.* It does not, however, couvertes de mari, bien entendu que si elles survivent leurs dits maris, le capital sera transféré aux dites filles, et que si elles prédécèdent leurs maris le capital sera transféré à leurs héritiers, à moins que les filles n'aient, dans les cas permis testamenté du dit capital.

So decided by the Parlement of Rouen on the 22nd April, 1704, in re Dumont v. Masson. Jean La Gripière had, during the life time of a former wife (Anne Dumont) married one Lucy Masson; this marriage, though decreed to be void, was yet declared to have the effect of conferring on Lucy Masson a right of dower, and on her children issued from her marriage with La Gripière precisely the same right to their father's estate as the child of his lawful marriage with Dumont.-See Basnage, article 235.

appear that a putative marriage would have the effect of rendering legitimate a child born previous to its celebration, though one of its parents may have contracted such marriage in good faith, an exception which evidently shows that those born after such a marriage would be legitimate; because, as the Chancellor D'Aguessau observes: "La loi récompense l'innocence telle qu'elle se trouve dans celui qui contracte de bonne foi et par erreur de fait, un mariage défendu; mais que la loi récompense une personne qui a voulu mal faire, parce qu'elle a cru faire un moindre mal, c'est ce qui ne peut pas être écouté."* All these questions may be seen treated at length in the written pleadings in the affair of Marie Jeune,† as also the authority due to public registrations in reference to the rights conferred by acts of birth, marriage, and death, as also in what cases and how the validity of such acts may be discussed.

The twenty-ninth article contains two very distinct propositions, the first in reference to children in general, and the second in reference to married daughters, whose portions during marriage may be put in trust by their parents. With regard to the first, that no mother any more than a father can bestow any greater portion of her property on one child than on another, it is preposterous, as if all were born with the same faculties, enjoyed through life the same advantages, and treated their parents in a manner to deserve and possess equal claims on their bounty and affections, The second clause, by which parents may, in certain cases, exercise a discretionary power over their married daughters, by placing the portion of their inheritance in trust beyond the controul of their husbands, is by no means sufficient to controul the evils arising in consequence of the power of which they have been deprived by the former clause, though even this, as far as it goes, may be considered an amendment to the law by which a parent has no other means whatever of rescuing his daughter's portion from the grasp of her spendthrift, over-speculative, or improvident husband, than by imposing similar fetters on all his other children, or in other terms, condemning them all to a punishment which only one may have deserved, and to whom alone it should be restricted. On calmly reviewing the Guernsey Records, anno 1830.

* Tome 4 de ses Euvres, p. 277,

nature of such restrictions one would almost suppose that our forefathers, and some of their descendants, had been legislating for barbarians, and not for a civilized community. As to the idea that some fathers-in-law may be tempted to take advantage of this power to impose unnecessary restrictions on their sons-in-law, it may be fairly ranked among the overcautious preventives of those who would absolutely deprive man of the power of willing, because some of his fellows turn it to a bad purpose. In fact, the great correction of most evils of this description rests in investing the parental authority with an absolute power of distributing a certain portion of his property among children. Nor can any sound reason be alledged why parents should not possess this power of absolute disposal over one third of their property, so as to bequeath it to their children as they may to strangers. In persisting to deprive them of all power in this respect, we again find revived the spirit of those barbarous laws which treated parents as convicts, by debarring them from all participation in their offspring's inheritance.* It is on beholding such legislative enactments, and the source whence they sprang, that we are forcibly reminded of the great truth proclaimed by Fenelon, that authority seldom takes either religion or laws into its keeping but to disfigure them, an idea which has been thus elucidated by the eloquent Channing, and is perhaps the happiest lesson that can be administered to rulers of small communities: "Government," says he, " confers little positive benefit. Its office is, not to confer happiness, but to give men opportunity to work out happiness for themselves. Government resembles the wall which surrounds our lands; a needful protection, but rearing no harvests, ripening no fruits. It is the individual who must chose whether the enclosure shall be a paradise or a waste. How little positive good can government confer! It does not till our fields, build our houses, weave the ties which bind us to our families, give disinterestedness to the heart, or energy to the intellect and will. All our great interests are left to ourselves; and governments, when they have interfered with them, have obstructed, much more than advanced them. For example, they have * Vide the thirteenth article, and Appendix, letter A, p. 6, and letter C, p. 40.

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taken religion into their keeping only to disfigure it. So education, in their hands, has generally become a propagator of servile maxims, and an upholder of antiquated errors. In like manner they have paralysed trade by their nursing care, and multiplied poverty by expedients for its relief. Government has always been a barrier against which intellect has had to struggle; and society has made its chief progress by the minds of private individuals, who have outstripped their rulers, and gradually shamed them into truth and wisdom."* .. But the law having passed and its decrees being imperative, it must be followed, and its inconveniences, however great, must be endured until it is constitutionally repealed, hoc quidem perquam durum est, sed ita lex scripta est. But, however much individual cases of hardship of this nature may excite sympathy for them who succumb, it must never be forgotten that they ever constitute the great harbingers of all reform; it is by their instrumentality that private individuals are prompted to exertion, and enlisting their services in the cause of justice, at last obtain from rulers redress for their wrongs.

Hence the source of those disgraceful suits which so frequently at the death of parents arise among their issue,—to annul contracts the former have voluntarily entered into during their life time with those who were chiefly indebted to them for their welfare,-so far from being exhausted, will, on the contrary, considerably revive with the additional restrictions imposed by the above article, which now fetter the mother in the same degree as the father, and the pernicious consequences arising from which have been greater than have followed from any other unprincipled features of the ancient law.

What reasons can be assigned to subject parents, who enter into engagements with their children with regard to their property, to be brought to an account by the latter, whose unjustifiable power to annoy renders them, during life, a still greater scourge to their parents than even the thoughts of the unjust lawsuits which will ensue among them at their death? It would indeed be difficult to imagine a curse which in a greater degree disturbs the peace of families, foments litigation, and destroys parental authority, than these unnatural restrictions. Nor does this law in any way secure the

* On the Life of Napoleon, pp. 69 and 70.

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