already had
children, all those children were thereby made legitimate, and that
certainly seems the kindly and the Christian law. But the secular
barons who constituted the Parliament, in their jealousy for the
common law, took the harsher view, that any children born of parents
who are not married at the time they are born shall be illegitimate,
although their parents may marry afterward. Beaumont and Fletcher, in
one of their plays, make a punning reference to that. It seems to have
struck Beaumont and Fletcher as it does us, that it was a cruel law
for the Parliament to make; when the church for once was liberal, it
was queer that the Parliament should be illiberal; so Beaumont and
Fletcher, in one of their plays, say: "The children thou shalt get
_by this civilian_ cannot inherit by the _law_." This is interesting,
because they use all the words I have been trying to define; when they
say "the children thou shalt get by this _civilian_," they mean by
this civilian a person who is under the civil, or Roman, or church
law; that is, they mean to say, although you marry a woman who is
a church member and under the jurisdiction of the bishop, etc.,
nevertheless the church law won't help you; your children by her
cannot inherit by the _law_, and the law as used by Beaumont and
Fletcher and as used by me and as used in English books means the
_common_ law, the common _secular_ law, the law of _England_, not the
civil or canon law.[1] Beaumont and Fletcher evidently thought it was
a very illiberal statute; and our modern American States have all come
to Beaumont and Fletcher's conclusion; they have universally reversed
the old English statute and gone back to the church law, so that
throughout the United States to-day a child born before the marriage
of its parents is legitimate if its parents afterward marry. That is
true, no matter how late it is; if the man marries her even on his
death-bed, all his children are legitimized.

[Footnote 1: "And so all the earls and barons answered with one voice,
that they would not change the laws of England."]

In the same Statute of Merton there is a sentence against usury, "no
usury permitted against minors"; and there are two things to note
here. One is, that the secular legislature is also taking jurisdiction
of minors, who were claimed at that time to be solely under the
jurisdiction of the church; and the other is the reference to usury.
Mind you, usury is interest. It didn't m