status of legitimacy. (As to the history of the law and the period of its introduction into Scotland, see Ersk. App. No. 2, and Fraser, 32 et seq.)

291. Legitimation by subsequent marriage confers all the legal rights attaching to legitimate birth, and enables the child to take under a destination to lawful children. Ersk. i 6. 52; Bell's Prin. 1627.)

292. An important question remains open, as to the rights of children legitimated per subsequens matrimonium, in competition with those of legitimate children born of a marriage intermediate between the birth and legitimation of the others. (Fraser, 39.) This question is keenly debated; and although it would be beyond the scope of the present work to reason out the matter, it is thought that the child of the intermediate marriage would be preferred, at least as the heir in heritage.

293. Legitimation by letters from the sovereign, in imitation of the power exercised first by the Roman emperors, and subsequently by the popes, though not unknown to the law of Scotland, is very limited in its effects. It will not entitle the bastard to succeed to a relative dying intestate; but it confers on those who would have been his heirs-at-law, had he been legitimate, the right to succeed him, which, failing lawful children, would have fallen to the sovereign himself. In granting legitimation to this extent, the sovereign thus only resigns his own right, without interfering with the rights of third parties. (Ersk. iii. 10. 7.)

294. Formerly bastards could not test; and the letters of legitimation consequently contained a clause conferring this power upon them. The statute 6 Will. IV. cap. 22 removed this inability.

295. Many international questions of great nicety, into which we cannot here enter, have arisen out of our recognition of legitimation by subsequent marriage, and its rejection by our

English neighbours, and by those States in America that have followed the English law.

296. The regulating fact is the domicile of the father; but whether his domicile at the period of the marriage or of the birth of the child is to prevail, supposing them to conflict, is still an undecided point. (Fraser 45 and 1 Rurge Com, 104.) It would seem that the period o the birth ought to prevail, because, after birth, and while in the family, the father can change their domicile as often as he changes his own. (Guthrie's Savigny, p. 57.) But see Fraser, p. 52. 297. In the case of real property, the law of the country in which it is situated prevails. Thus it has been held that a child legitimated per subsequens matrimonium in Scotland cannot succeed to lands in England. (Birtwhistle v. Vardhill, 2 Clark and Finn. 571, and 7 Clark and Finn. 895.)

II. THE PATERNAL POWER.

298. The power of the father over the child is recognised, to a greater or less extent, by all systems of jurisprudence, and is generally greatest in the rudest conditions of society. Authorities differ as to the period at which, by the law of Scotland, the child passes entirely beyond the control of the father. In so far as the person is concerned, his power of constraint probably ceases at the legal age of puberty, both in males and females. (Stair, i. 5. 13; Fraser, 65.)

299. The father is entitled to the custody of the child, and may remove it from place to place, and from one country to another. He can recover its person from any one who detains it, and, after infancy at all events, even from the mother. (Fraser, 67.) 300. The father has the power of inflicting moderate chastisement; and he may lawfully compel the child to labour, when able to do so, for the subsistence of the family. (Ersk. i. 6. 53; Borthwick, Dec. 20, 1845.)

301. The powers of the father do not terminate with divorce, probably not even where he is the guilty party. (Fraser, 73; but see Harvey v. Harvey, June 15, 1860.) [Neither is his power to regulate the place of residence and education of his children in this country terminated or suspended by his own residence abroad. (Pagan, 1882, 10 R. 1072.)]

302. In the case of a daughter, the father's power, both as regards person and property, terminates with marriage, as she thereby passes under the authority of her husband.

i. 6. 56.)

(Ersk.

303. The power of the father may be controlled by the Court of Session, as the supreme court of equity in this country; but a strong case will require to be made out that it is vicious and immoral, or cruel and oppressive. (Harvey, June 15, 1860.)

304. Refusal to aliment or educate his children might amount to such a dereliction of paternal duty as to be regarded by the Court as involving a forfeiture of paternal power. The case of a father in this respect, however, differs essentially from that of tutors, where the Court will compel them to educate the pupil in a manner suitable to the rank, status, and property he will enjoy on arriving at manhood. (Fraser, 80.) Of the proper amount of education beyond what may be necessary to enable the child to obtain a subsistence, the father is the absolute judge; and it is doubtful if he can be compelled to apprentice his child to a trade, or make him acquainted with any kind of skilled labour.

305. None of the powers of the father belong to the mother, in the case of legitimate children; but she will be preferred to the custody of illegitimate children, under seven years if males, and ten if females. (Smith's Digest of the Poor-Law, p. 136.) An offer by the father of an illegitimate child, seven years of age, to bring it up in his own family, is an answer to a demand for aliment by its mother. (Corrie v. Adair, Feb. 24, 1860; Harvey, June 15, 1860.)

III. DUTY OF THE FATHER TO ALIMENT THE CHILD.

306. So decidedly do the laws of this country recognise the obligation which nature has laid on the father to aliment the family which he has gathered around him, that refusal to comply with it, if either wife or child shall in consequence become chargeable to the parish, is punishable by fine and imprisonment as a crime, under the Poor-Law statute (8 and 9 Vict. c. 83, sec. 80).

307. But when the period of childhood is past, the obligation which lay on the father is held to be transferred to the children; and thus, if an indigent person has both a father and a son alive, the burden of his maintenance will fall, in the first instance, on the son. (Brown, 1710; M. 448; Fraser, 85; Muirhead v. Muirhead, July 7, 1849, and Dec. 15, 1849.)

308. In the event of the descendants of a party being unable to aliment him, the obligation falls on the father, as the nearest ascendant, then on the mother, and after her on the paternal ascendants in the order of their proximity. When the paternal ascendants are exhausted, it would seem that a claim exists against maternal ascendants. (Dunlop, Poor-Law, sec. 36.)

309. Collaterals are not bound to aliment each other; the only apparent exception being that of an elder brother who has succeeded to his father's estate. In this case, however, it is not as the brother, but as the father's representative, that he is bound to fulfil the obligation which lay upon him of providing for the subsistence of the younger members of his family. (Drummond v. Swane, Jan. 25, 1834.)

310. The amount of aliment which the law will enforce is merely "support beyond want, and all beyond that is left to parental affection." (House of Lords, in Maule v. Maule, June 1, 1825.)

311. The only case in which a separate aliment will be

decreed to the child, is where the parent offering to receive him into family has formerly maltreated him, or where his person or morals are in danger. (Ersk. i. 6. 56.)

312. The rule is different where a descendant offers to take an ascendant-e.g. a grandfather-into family; and the Court will not enforce such an arrangement. (Jackson, Nov. 17, 1825; White, March 10, 1829; Dunlop, sec. 41.)

313. A father, being bound to aliment his child, is held to have given authority to the latter to contract for necessaries, and thus to found an action against him to that extent, where he has not otherwise fulfilled the parental obligation. (Ersk. i. 6. 57; Fraser, 95.)

314. The father is not liable for the child's crimes, or even for his quasi-delicts. He is not bound to pay a fine imposed upon him, nor would he be liable for damages should the child break his neighbour's windows, demolish his trees, or slander him, unless by manifest negligence he connected himself with the wrong done. (Haddan v. Stainhouse, 1 Br. Supp. 237. See also, by way of illustration, Fleming v. Orr, House of Lords, April 3, 1855.)

315. If the child be working at a trade or profession, by which he is able to earn as much as will support him, he cannot demand aliment from his father. (Stair, i. 5. 7; Ersk. i. 6. 58.)

316. In the higher ranks, where children are educated to liberal professions in which employment is precarious, the mere name of a profession, such as advocate, or doctor of medicine, without practice, is not enough. The principle on which the Court in this case hold the father liable in aliment is, that by training his child to such a profession he tacitly becomes bound to maintain him till he receives employment. (Ayton v. Colvil, M. 390; Maule v. Maule, ut supra.) If the failure of the son has arisen from his dissipated and irregular habits, the Court will not interfere. (A. B., March 9, 1848.)

317. When the child has been trained to no profession or