Page:William Blackstone, Commentaries on the Laws of England (3rd ed, 1768, vol I).djvu/471

quire that the child ſhall be begotten, yet makes it an indiſpenſable condition that it ſhall be born, after lawful wedlock. And the reaſon of our Engliſh law is ſurely much ſuperior to that of the Roman, if we conſider the principal end and deſign of eſtabliſhing the contract of marriage, taken in a civil light; abstractedly from any religious view, which has nothing to do with the legitimacy or illegitimacy of the children. The main end and deſign of marriage therefore being to aſcertain and fix upon ſome certain perſon, to whom the care, the protection, the maintenance, and the education of the children ſhould belong; this end is undoubtedly better anſwered by legitimating all iſſue born after wedlock, than by legitimating all iſſue of the ſame parties, even born before wedlock, ſo as wedlock afterwards enſues: 1. Becauſe of the very great uncertainty there will generally be, in the proof that the iſſue was really begotten by the ſame man; whereas, by confining the proof to the birth, and not to the begetting, our law has rendered it perfectly certain, what child is legitimate, and who is to take care of the child. 2. Becauſe by the Roman law a child may be continued a baſtard, or made legitimate, at the option of the father and mother, by a marriage ex poſt facto; thereby opening a door to many frauds and partialities, which by our law are prevented. 3. Becauſe by thoſe laws a man may remain a baſtard till forty years of age, and then become legitimate, by the ſubſequent marriage of his parents; whereby the main end of marriage, the protection of infants, is totally fruſtrated. 4. Becauſe this rule of the Roman law admits of no limitations as to the time, or number, of baſtards ſo to be legitimated; but a dozen of them may, twenty years after their birth, by the ſubſequent marriage of their parents, be admitted to all the privileges of legitimate children. This is plainly a great diſcouragement to the matrimonial ſtate; to which one main inducement is uſually not only the deſire of having children, but alſo the deſire of procreating lawful heirs. Whereas our conſtitutions guard againſt this indecency, and at the ſame time give ſufficient allowance to the frailties of human nature. For, if a child be begotten while the parents are ſingle, and they will endeavour to make an early re-