In most countries to-day we may observe an unmistakable tendency towards the improvement of the legal position of the illegitimate child. This tendency is perceptible in those countries in which inquiry into paternity is permitted. In the Latin countries the necessity of permitting inquiry into paternity is becoming more and more widely recognised. In many countries we find, often in association with foundling hospitals, institutions for the provision of maintenance for illegitimate children.
The reforms of the immediate future, some of which, in certain countries, have actually been effected, are the following: (a) In every country the inquiry into paternity must be permitted. (b) The legal proceedings for the discovery of paternity must be initiated and pursued by the local authorities or some other official body. (c) Where the father fails to pay the necessary maintenance for his illegitimate child, vigorous measures of compulsion must be available (imprisonment, forced labour, &c.). Such measures of compulsion already exist in many countries. (d) The child’s maintenance should not be merely such as will provide what are called “bare necessaries,” but should suffice for its proper upbringing. (e) The natural father should be forced to pay, not for the child’s maintenance only, but also the mother’s expenses in childbed; he should be forced to contribute the last-named expenses, and what is necessary for the child’s maintenance shortly after birth, before the child is actually born—that is, at a time when the needs of mother and child are greatest. (f) The objections which the father is to-day able to raise in bastardy actions should be abolished.
A Radical Reform.—Marriage will best be protected by preventing the birth of illegitimate children. This can only be effected by imposing upon the father of an illegitimate child the same responsibilities that are now imposed upon the father of a legitimate child. Men would be much more careful to avoid the procreation of illegitimate children if they were unable to get off so cheaply as they can to-day. The objection that in the moment of passion no one thinks of consequences is unsound. In most cases, before the sexual act there is a period in which the man has leisure to think of the consequences of what he is going to do. The fact that in countries in which inquiry into paternity is permitted the number of illegitimate children is no smaller than in countries in which such inquiry is forbidden, proves nothing. For other circumstances besides this influence the number of illegitimate children, and in the Teutonic countries it is probable that inquiry into paternity is permitted only in order to counteract these other factors. The objection that such regulations as have been proposed would promote immorality, that they would make women far more ready than they are at present to enter into an illicit sexual relationship, and would thus lead to an increase in the number of illegitimate children, is unsound. The present system tends to render inoperative factors which might exercise a great influence on the conduct of the stronger sex. Moreover, all these objections are rendered nugatory by the fact that hitherto the most severe punishments and the most extreme moral condemnation of illegitimate sexual relationships have not sufficed to hinder these.
It is objected that the proposed reforms could only be introduced in association with the abolition of monogamy and the introduction of free love. If the legal consequences of marriage and of illegitimate sexual union were made identical, there would be no reason for entering the marriage state, for monogamy would be a legal institution without any peculiar legal consequences. But in marriage three distinct legal relationships have to be considered: the mutual relationship of husband and wife, their relationship to persons outside the family, and the relationship of the parents to their children. The fact that the children resulting from a sexual relationship are legitimised does not constitute that relationship a marriage.
In the interest of the illegitimate child the argument is often put forward that it is not right for the illegitimate child to be punished for the errors of its parents. This argument is totally false. If the interest of marriage and that of society really demanded that the legal position of the illegitimate child should be an unfavourable one, the circumstance that the child is blameless is altogether irrelevant. The interest of society is paramount, and in case of need even innocent children must be sacrificed to this interest.
[CHAPTER IV]
LIMITED POWERS OF MINORS AND GUARDIANSHIP
Limited Powers of Minors.—The legal protection of the child against the consequences of its own acts is closely associated with the questions of parental authority and of guardianship. In fact the regulation of this matter really forms part of the regulation of parental authority and of guardianship. The minor lacks the requisite degree of intellectual maturity and of business experience to enable it to act independently in legal matters without injury to its own interests; hence, in the matter of legacies, it often happens that a child is willing to enter into bargains which its maturer judgment would rightly repudiate. The law, indeed, protects everyone against usury and extortion, and gives to everyone the legal right to dispute the validity of an undertaking extracted from him by knavery or under stress of threats. But these institutions would not suffice to protect children, inasmuch as the right to repudiate an undertaking when that undertaking has already been acted upon would be of extremely questionable value. Moreover, the law of parcimony forbids that persons should enter into legal undertakings, and subsequently attempt to repudiate them.
The special legal protection conferred upon minors consists of a limitation of their powers to enter into valid business engagements, the extent and consequences of the limitation being such as to render any engagements made by minors as harmless as possible. In the majority of legal systems, this leading idea is carried into effect as follows. Two classes of undertaking are distinguished: first, those by which the minor acquires certain rights or is freed from certain obligations; and, secondly, those which effect neither the one nor the other. Inasmuch as undertakings of the first-named order are only such as are to the minor’s advantage, no guardianship is necessary in the case of these, and the minor’s powers to act are here unrestricted. But undertakings of the last-named order can be entered into by a minor only with the consent of his legal representative; thus, a disadvantageous undertaking given by a minor without the consent of his legal representative is invalid, and the validity of the undertaking is conditional upon the consent of the guardian.