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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Samson v. Davie [1886] ScotLR 24_108 (26 November 1886) URL: http://www.bailii.org/scot/cases/ScotCS/1886/24SLR0108.html Cite as: [1886] ScotLR 24_108, [1886] SLR 24_108 |
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Page: 108↓
[Sheriff of Forfar.
Held ( diss. Lord Young) that an illegitimate son is bound to support his indigent mother.
Elizabeth Lindsay or Fairweather, who was aged sixty-six, and had become unable to earn her own maintenance, applied to Charles Samson, inspector of poor, Kirriemuir, and received from him up to 29th June 1885 parochial relief to the amount of £4, 3s. He raised this action against Robert Davie, whom he alleged to be her illegitimate son, for this sum, and to have him ordained to relieve the board of all such aliment as they might find it necessary in fulfilment of their duties to afford the pauper subsequent to 29th June 1885.
The defender denied liability as not being truly the pauper's son, and also pleaded that the action was irrelevant.
The Sheriff-Substitute ( Campbell Smith) dismissed the action as irrelevant.
“ Note.—… The question whether a bastard is bound to support his pauper mother is, so far as l am aware, not settled by any clear or direct authority. It has remained a subject of interesting speculation and fascinating doubt for generations, and I am sorry to be compelled to take a step towards putting an end to its indeterminate character, and still more to decide it in a way which I think not in accordance with natural right. But for the fettering considerations of settled civil law, I should have felt inclined to hold that the obligations of parent and child to give support against want ought to be reciprocal and coextensive—that as the mother or father was bound to support the child when helpless, so the child ought to be bound to support either parent in case of ill-health, or old age or poverty, as is indeed, I believe, the usual custom in Scotland when human affections assert themselves independently of legal regulations and of civil law; but passing from natural right to civil law, I am met with the insuperable obstacle that except to one effect the civil law does not recognise the relation of parent and child as existing between illegitimate children and the persons who have produced them. A bastard is pronounced by a host of authorities to be filius nullius, that is, being interpreted, not a child at all, but a mere physiological product having no rights of any kind except the right to live and remain in the world at the expense of the temporary pair who have irregularly and improperly introduced it to life. So soon as a bastard is able to support itself, it is an alien to legal relationship—without legal father or legal mother. The bastard inherits nothing from his father whatever fortune that father may leave. The bastard may make a fortune and die unmarried and childless. His fortune will go to the Crown as ultima hœres, and if the father get any part of his deceased bastard's estate, it will only be through the generosity of the Crown. The same thing would happen with the mother of a wealthy bastard. And here I touch the principle that separates the bastard from all legal ties, except those, by marrying and otherwise, he or she may form for himself or herself. In law the defender here is nobody's son. He has no mother at all, and therefore no mother for whom he is bound to bear the burden of giving her bread when she is old and destitute. I may have doubts of the real humanity of such a bastard son, but he has at least as much humanity as the law ascribes to him, which is physiological humanity, with the right to escape from starvation in infancy and until he becomes self-supporting.”
On appeal the Sheriff ( Comrie Thomson) recalled the interlocutor, repelled the plea of irrelevancy, and remitted the case to the Sheriff-Substitute for further procedure.
“ Note.—I am of opinion that an illegitimate son is legally bound to maintain his indigent mother.”
A proof was then allowed. From the proof it appeared that the defender was truly the illegitimate son of the pauper. He was born in 1839, so that he was forty-seven years of age at the date of this action. In his youth she had neglected him. He had only seen her twice in his life; he was supported till he was able to support himself by his mother's mother, and had when she became old and feeble contributed to her support. He had risen to the position of farm overseer which he now occupied solely by his own efforts.
The Sheriff-Substitute gave decree for the £4, 3s. sued for, and reserved the pursuer's claims for future relief.
The defender appealed, and argued—There were two questions here—1st, Was an illegitimate son bound to support his indigent mother? 2d, Assuming the affirmative, were there not exceptional circumstances in this case which render it expedient that the obligation be not enforced? On the first question—It had arisen for the first time in the Court of Session, and must be answered in the negative. There was no authority for answering in the affirmative, and no dicta in the text-writers to that effect. Baron Hume says that “there is no obligation in a natural child to aliment his reputed father—at least it is an extremely doubtful question”—Hume's MSS. Lectures, i. 97; and the Lord President Inglis had expressed the same opinion in Corrie v. Adair, February 24, 1860, 22 D. 897. A bastard was in the eye of the law filius nullius, and there was no reciprocity of obligation between the father and the child. The French law was the same, M. D'Aguesseau le Chancelier in his Dissertations on the Roman law stating it thus—“Ces mêmes lois ne prouvoient pas qu'ily eût une liaison assez etroite entre un père et son fils bastard pour obliger ce dernier à le nourrir s'il etait en necessité.”—Ulpian's Digest, xxv. 3, 4, 4. Before the days of Constantine neither the putative father nor mother could succeed the bastard. The English law also did not recognise the obligation. The bastard could neither be heir to anyone
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nor have an heir, except one who was the issue of his body, because being filius nullius he had no ancestor from whom inheritable blood could be derived, and no collateral relations—Stephen's Comm, on Laws of England, ii., 301. In fine, in England as in America, the common law enforced no obligation on the bastard, though provision was made for its welfare by statute, which had no force in Scotland. The principle of the law was to discourage illicit connection— Horner v. Horner, May 24, 1799, 1 Hag. Rep. 351, and 357. Parents were not allowed to have for their own wrong those rights which they would have where lawful children were procreated. The burdens of parentage were laid on them, but none of its privileges. The only privilege given to a bastard was one of bare maintenance— Anderson v. Heritors and Kirk-Session of Lauder, March 11, 1848, 10 D. 960. On the second question—It was proved that the defender's mother had always neglected him since his birth, and in these circumstances, and considering that the claim was only made when he was forty-seven years old and had risen in the world through his own efforts, and had discharged the duty of a son to the woman who had acted as a mother to him, it was quite unreasonable to call upon him to pay the sum sued for. The pursuer replied—It was quite true that Baron Hume in his lectures said that the obligation of the bastard to aliment was doubtful, but he added that the obligation existed as regarded the mother. The obligation was one ex jure naturali,—Stair, i. 5, secs. 8 and 9; Bankton i. 6, sec. 20; Digest ii. 4, 4; and Institutes of Justinian, i. 10, 12. The practice under the Poor-Law Act had always been to enforce it.— Wilson v. Todds, February 1867, 3 Scot. Law Rep. 192; Inspector of Poor of lnveravon v. Raeburn (Sheriff Court of Aberdeen), 1856, 1 Sheriff Court Decisions, 192; Taylor v. Spottiswoode, ibidem, ii., 31 (Sheriff Logan); Robertson v. Robertson. November 21, 1865, 8 Poor—Law Mag. 244; Watson v. Robertson, 1868, 1 Poor—Law Mag., New Series, 172. The doctrine of filius nullius applied to the father only. It had been even held that the husband of a bastard was liable to support the indigent parents of his wife during the subsistence of the marriage— Reid v. Moir, July 13, 1866, 4 Macph. 1060.
At advising—
The defender's ability is not disputed. What is put in issue is the legal liability of the defender. The Sheriff-Substitute dismissed the action on the ground, as is explained in the note to his interlocutor, that “the defender being a bastard, he is nobody's son. He has no mother at all, and therefore no mother for whom he is bound to bear the burden of giving her bread when she is old and destitute.” The Sheriff was of a different opinion, and the result in the end was that decree was given in terms of the conclusions of the summons. Hence the present appeal.
Were it the case that a woman who has borne a bastard is in the eye of the law not the mother of the child, there would be much to urge for the conclusion at which the Sheriff-Substitute has arrived. But such a view is repugnant to common sense, and there is nothing in the way of authority by which this paradox can be supported.
The Sheriff-Substitute apparently rests his opinion on the description which has often been used that a bastard is nullius films. But these words only import that in the eye of the law a bastard is without a father. This is the substance of many texts and many dicta in the civil law and in our own law. The result is, according to the authorities, that there is in law no father to a bastard, but it is nowhere said that in law a bastard is without a mother. Upon this point there never has, so far as I know, been any controversy. The contrary is indeed implied in all the passages in the Corpus Juris Civilis and in our own institutional writers, where it is said that a bastard is without a father. Of these the following are examples—Inst. i. 10, 12, and iii. 5, 4; Dig. i. 5, 23, and ii. 4, 5. Out of our own institutional writers, Stair, iii. 3, 44, and iv. 12, 1, may be referred to. What is implied in these passages is expressed in the Institutes of Gains, book i., sec. 64, where it is said—“Ergo si quis nefarias atque incestas nuptias contraxerit, neque uxorem habere videtur neque liberos: itaque hi qui ex eo coitu nascuntur matrem quidem habere videntur, patrem vero non utique; nec ob id in potestate ejus sunt [sed tales sunt], quales sunt hi quos mater vulgo concepit: nam et hi patrem habere non intelleguntur, cum is etiam incertus sit; unde solent spurii filii appellari, vel a Græca voce quasi concepti, vel quasi sine patre filii.”
Mrs Lindsay or Fairweather and the defender are therefore in law, as well as in fact, mother and son, though all the rights and obligations of this relationship which result from the birth of a child in wedlock do not exist in the present case, where the defender is a bastard. And the question which now awaits decision is, whether the burden of his mother's support, now that she is destitute, affects the defender as a legal obligation. She was bound to support him in infancy—this being an obediential obligation based On the law of nature— Vide the case of Marjoribanks, Nov. 30, 1831, and the opinion of Lord Justice-Clerk Inglis in Reid v. Moir, July 13, 1880, 4 Macph. 1060,
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There is no contradiction to this in any other part of the Corpus Juris, nor in any of the works of any of the commentators. The question has been decided again and again in conformity with this text of the Roman law in many Sheriff Courts in the country, nor is any adverse opinion expressed on the subject by any of our own institutional writers, or by any of our Judges, while there is this passage in the lectures of Baron Hume. He says that “there is no obligation on a natural child to aliment his reputed father—at least it is an extremely doubtful question. The contrary holds with respect to the mother however, whom the child is always bound to support if she be in indigent circumstances.” Vide Fraser on Parent and Child, p. 127, for this quotation. This opinion is of great consideration, and I take it into account, though I do not rest my opinion upon its authority alone. I come to the conclusion that there is legal liability upon the ground already explained, which is supported by the rule of the civil law, and by the opinion of Baron Hume, and it nowhere meets with any contradiction or application whatever. The Lord Justice-General and Lord Cunningham, as was pointed out at the debate, have expressed an opinion that a putative father in destitution has not a legal claim for support against his bastard child. What was said on this subject in the cases ref erred to— Corrie v. Adair, 22 D. 900; and Anderson v. Kirk-Session of Lauder, 10 D. 961, was altogether obiter, and there does not appear to have been any argument on the subject addressed to the Court. But even assuming that the views of those Judges were to be applied, were the question to be submitted for judgment, my opinion with reference to the right of the mother to be supported would not be in anyway affected. In the eye of the law the woman bearing the child, and the child to which she givea birth, are mother and son, whereas the child that is born and the man who is made liable for a contribution of aliment as putative father are in law in no way related. The ground of liability in the one case therefore does not exist in the other. Lord Cowan in his opinion in the case of Reid v. Moir makes this distinction between the two cases.
On the whole matter my opinion is that the defender's appeal ought to be dismissed.
Page: 111↓
Note.—It appeared from the proof that the pauper had had at least one other illegitimate child.
a millionaire—if they die intestate I mean—not one shilling of their fortunes would their bastard son be entitled to. Nay, more, if the father or the mother died leaving any fortune you choose to mention, in the event of the failure of blood relatives the public itself would take the fortune—it would go to the Crown as ultima hœres—and it is this bastard child to whom they would give no benefit that the public are asking to protect them against the burden of supporting this old woman—a child who in this particular instance had no notice that she was his mother until the raising of the action. Now, how would the Roman law deal with such a case—the case of the father or the mother of a bastard dying and leaving a fortune but no blood relatives to take it? I do not know. Considerations of Roman law therefore I put aside. In this country I know that the child is not treated as a child at all. We have a maxim taken from the Roman law, indeed, but which we should, I suppose, have had if that law had never existed, Cujus est commodum ejus debet esse periculum—“He who has the benefit should bear the risk.” But here, if there is any commodum, to be taken from the mother, the public takes it in preference to the bastard child. So true is this that even if she leaves it to her child by will he is taxed for it at ten per cent. as a stranger. There is no single circumstance in which the public consents to treat a bastard child as the child of its father or mother except this, that they must take from the public and upon themselves the burden of supporting their child if they are able, and the child requires it. In that respect, and in that respect alone, will the public recognise the relation.
As I have said, I am moved by the considerations which have determined the law of England in this matter, considerations which are of equal cogency here. The Roman law, I must confess, I have difficulty in understanding. Lord Craighill was good enough to give me the reference to two texts, to which he has also himself referred. One of them, Dig. book 25, tit. iii., sec. 5, sub-sec. 4, is in these terms—“Ergo et matrem cogemus liberos, præsertim vulgo quæsitos alere, nec non ipsos earn.” Now, I put in parenthesis the words ‘præsertim vulgo quæsitos,” and the text will then run—“Ergo et matrem cogemus liberos alere, nec non ipsos eam”—“a mother, if able, must support her children, and her children must support her.” Then what is the force of “præsertim vulgo quœsitos?” Does it mean that there is a special duty of supporting his mother laid on the bastard, just as there is a special duty of supporting him laid on her, so that if she has legitimate children as well as the bastard, the “præsertim” applies to him, and he must support her in preference to her legitimate children? That does not commend itself to my mind as good sense. It appears from the proof that the father of this gardener of forty-five is also alive, and I suppose therefore that the unfortunate man will have to support his father as well his his mother—just as they were both liable to keep him off the rates if they could, so must he keep them if he can, and they need it. Then, again, in one of the cases mentioned, I think, by Lord Craighill, it was held that if a man marries the mother of a bastard child, he must support the child though not his own—he takes the mother with
Page: 112↓
I should be very sorry if the slightest doubt were thrown on the foundations of our law in this matter, and with all respect to the law of England I should be very sorry if it were supposed that the foundations of our law on this point were identical with those of that system of jurisprudence, because it denies natural obligation altogether not merely in the case of bastards, but, as I understand it, it denies all place to natural obligation between parents and their legitimate children, although of course in' speaking of the law of England we are dealing with what we have no proper knowledge of. But as far as I understand it, it is statutory only—the poor law statute, and nothing else. Now, whatever may be the virtue of that principle of the law of England, I believe it to be the only country in Europe which denies a place to natural obligation; and in the case of our own country, I can only say this, that it is certain that, from the days of Lord Stair to the present time, there is not a word in the authorities—whether institutional writers or judicial decisions—in which the slightest doubt is suggested as to the principle on which our law proceeds, or which makes any reference to the law of England as at all resembling our own; and I think we should bear this clearly in mind now, for I own that I regard the principle of natural obligation as a very valuable one. We have only to look at Stair under the head of aliment, where he discusses the whole matter, to see that he refers to the civil law, but places the subject entirely on the ground of debitum naturale, and the numerous cases in the Dictionary will be found to turn on that principle alone. I have made these observations, but except to assert the admission of the principle of natural obligation in the law of Scotland they have nothing to do with the case here in my opinion.
The other question presents some novelty for our consideration. It is not a question of public municipal law. It relates to the mutual rights and obligations of two parties—an illegitimate child and its parent. In regard to the civil law, I thought it was well understood that the law of patria potestas and of succession in the civil law formed no part of our system. They were early rejected, but, on the other hand—on the other relations of parents and children—are not indeed authorities but illustrations, and very important illustrations. Lord Young has found some difficulty in giving a fitting sense to the text from the Digest which he has quoted. I think the best way of solving such a difficulty is to consult the commentators, and on referring to Voet I find that he amplifies the text very satisfactorily, and lays it down clearly that the two obligations of parent to child and child to parent are reciprocal, whether the children be legitimate or illegitimate. I do not say that we must follow that here, but I arrive at the same conclusion. The natural obligation between mother and child is as strong whether the child be legitimate or illegitimate, and therefore as a legitimate child is under an obligation to support its mother, so also must an illegitimate child be under the same obligation. It is true that there is a paucity of authority in this matter. But there are some cases and dicta. The opinions of the Lord President and Lord Cowan in Reid v. Moir, July 13, 1866, are important, and are among the latest. The Lord President can think of no other category of law to which the bastard's claim to aliment can be referred except that of “the obediential obligations based upon the law of nature;” and Lord Cowan, while reserving his opinion on the abstract question, says that he cannot see any difference in this respect between legitimate and illegitimate children. This case was referred to in Wilson v. Todd, which was an Outer House decision by Lord Jerviswoode, whose judgment was acquiesced in. The rubric of the report in vol. iii. of the Scottish Law Reporter, p. 192, is—“ Held that an illegitimate daughter and her husband were bound during the subsistence of their marriage to aliment the indigent mother of the former.”
On these grounds I think we should dismiss the appeal and affirm the judgment.
The Court pronounced this interlocutor:—
“Find in fact (1) that Elizabeth Lindsay or Fairweather is a proper object of parochial
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Counsel for Pursuer— Pearsou— Hay. Agent—
Counsel for Defender— Kennedy. Agent— John Macpherson, W. S.
