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Principle Civil Law Perspectives from France and Germany 1st Edition Kerry O Halloran
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Children, the Law and the Welfare Principle: Civil Law Perspectives from France and Germany 1st Edition Kerry O’Halloran
This book contrasts and compares the different applications of the law relating to the welfare interests and rights of children in France and Germany. It does so by applying the same matrix of indicators to explore jurisdictional differences between welfare interests and rights in the contexts of public family law (civil – care and protection, etc. and criminal – youth justice, etc.); private family law (matrimonial, adoption, etc.); and hybrid public/private family law (wardship, adoption from state care, etc.). By profiling the nations in accordance with the same indicators it reveals important jurisdictional differences in the extent to which welfare interests or rights determine how the law is currently applied to children in France and Germany.
This volume will be of interest to academics and researchers engaged in law, legal studies, and social policy, and also to policymakers, administrators, and professionals working within child welfare systems.
Kerry O’Halloran, a professionally qualified lawyer, social worker, and academic, has recently retired from 13 years as Adjunct Professor to the Australian Centre for Philanthropy and Nonprofit Studies at QUT, Brisbane. In Northern Ireland he served on the Social Care Tribunal and on a HSS Trust Adoption Panel, has advised the Irish government on law reform matters, and has served in a
consultancy capacity to government bodies such as Courts Services (Northern Ireland) and to the Open University in England. His 34 books include many on national and international child care matters.
Children and the Law
ThePrincipleoftheWelfareoftheChild A History
Kerry O’Halloran
Children&theLaw
Shaping the Modern Welfare Principle in the British Isles
Kerry O’Halloran
Children, theLawandtheWelfarePrinciple
Perspectives from North America
Kerry O’Halloran
Children, theLawandtheWelfarePrinciple
Perspectives from Australia & New Zealand
Kerry O’Halloran
Children, theLawandtheWelfarePrinciple
Civil Law Perspectives from France and Germany
Kerry O’Halloran
For more information about this series, please visit: Children and the Law: From Welfare to Rights - Book SeriesRoutledge & CRC Press
Children, the Law and the Welfare Principle
Civil Law Perspectives from France and Germany
Kerry O’Halloran
First published 2024 by Routledge
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Names: O’Halloran, Kerry, author.
Title: Children, the law, and the welfare principle: civil law perspectives from France and Germany / Kerry O’Halloran.
Description: Abingdon, Oxon [UK]; New York, NY: Routledge, 2024. | Series: Children and the law | Includes bibliographical references and index. | Identifiers: LCCN 2023041484 (print) | LCCN 2023041485 (ebook) | ISBN 9781032542089 (hardback) | ISBN 9781032542119 (paperback) | ISBN 9781003415688 (ebook)
LC record available at https://lccn.loc.gov/2023041484
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ISBN: 978-1-032-54208-9 (hbk)
ISBN: 978-1-032-54211-9 (pbk)
ISBN: 978-1-003-41568-8 (ebk)
DOI: 10.4324/9781003415688
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This book is dedicated with much love - as long as we are under the same sky, we shouldn’t be sad when we part ways - to my grand daughter, Morgan.
Acknowledgements
The foundations for this book were laid in earlier publications including The Welfare of the Child: The Principle and the Law,1 The Politics of Adoption,2 State Neutrality: The Sacred, the Secular and Equality Law, 3 Child Care and Protection: The Law and Practice in Northern Ireland,4 and in my earlier contributions5 to this series.6 Given the not dissimilar subject matter and related caselaw, focused on many of the same jurisdictions, there is inevitably some degree of overlap and I thank the publishers concerned for their understanding.
1 Aldershot, Arena/Ashgate Publications, (1999).
2 The Politics of Adoption: International Perspectives on Law, Policy & Practice (4th ed.), the Netherlands, Springer, (2021).
3 New York, Cambridge University Press, (2021).
4 Dublin, Thomson Round Hall, (2003).
5 See: ThePrincipleoftheWelfare oftheChild:AHistory, Routledge 2022; Children & the Law: Shaping the Modern Welfare Principle in the British Isles, Routledge 2022; Children, the Law and the Welfare Principle: Perspectives from North America, 2023; and Children, theLaw andtheWelfare Principle:Perspectives from AustraliaandNew Zealand, 2023.
6 Series, Children and the Law (forthcoming title: Child Welfare and Rights: A ContemporaryFamilyLawAnalysis,2024), Oxfordshire, Routledge, 2022–26.
A sincere debt of gratitude is owed to those who kindly made room in their busy schedules to read and offer comments on draft chapters. In particular I am most grateful to Jörg Reinhardt7 (Germany) and Blandine Malleavey8 (France). Of the many others who contributed along the way, special thanks are due to Fabio Macedo9 and Charlotte Pietri.10 Their encouragement, support, and
advice have meant a lot and this book and its author would have suffered without them.
7 Professor, Department of Applied Sciences, Hochschule München, Germany.
8 Professor of Private Law and Criminal Sciences, Child and Family Chair, Université Catholique de Lille, France.
9 Postdoctoral Fellow, University of Angers, France.
10 The CAMELEON Association, France at: www.cameleon-association.org
I am very thankful to Routledge, particularly to Siobhán Poole,11 for commissioning the book and the series. Responsibility for any mistakes, inconsistencies, or other faults, and for all views expressed, must unfortunately rest wholly with me.
11 Commissioning Editor, Routledge Law Research.
Introduction
DOI: 10.4324/9781003415688-1
‘Children are fully-fledged human rights holders’.1 This is indeed true but there is a world of difference between holding rights and using them. The capacity of a particular child, their opportunity to exercise rights, and the assistance they receive in doing so, will be crucial. If their rights remain inert – unknown to the child, unrepresented by lawyers, or unacknowledged by others – then at best the law will default to address their welfare interests.
1 Stated in the ‘Foreword’ to the Handbook on European Law Relating to theRights of the Child (2nd ed), Council of Europe, (2022), at: https://www.echr.coe.int/documents/handbook_rights_child_eng.pdf
This book, like others in the mini-series, endeavours to identify and consider the many ways in which the law now gives effect to children’s rights while balancing this with a concern for their welfare interests: it examines differences between the two. A wide range of law is involved. For present purposes, the focus remains very largely confined to the child-specific provisions of family law: the civil jurisdiction, private family law (custody, contact, etc.), and public (care and protection, etc.), together with the criminal jurisdiction (juvenile justice, etc.). However, the environmental context cannot be wholly overlooked: both the rights and the welfare interests of children can be prejudiced by social disadvantage unless this is offset by appropriate and sufficient public services.
Children, the Law andthe Welfare Principle: CivilLaw Perspectives from France and Germany – the fifth book in this mini-series2 –examines and differentiates between these two countries as regards the ways in which their laws recognise and give effect to the rights and the principle of the welfare interests of the child. Unlike the previous books, this one deals with countries that are leading representatives of the civil law tradition. As a preliminary it is
therefore necessary to consider the differences between the common law and civil law traditions and explore such implications as may arise for children and their welfare interests and rights. Otherwise, the purpose of this book, like the others, is to: understand and explain how the law relates generally to children in both countries; identify characteristic jurisdictional differences; and assess their significance. It employs the template of themes previously identified to explore areas of difference and commonality in the relevant law, and the role therein of rights and the welfare principle, as applied to the lives of children in France and Germany.
2 O’Halloran, K., ThePrinciple of the Welfare of the Child: AHistory, Routledge, 2022; Children & the Law: Shaping the Modern Welfare Principle in the British Isles, Routledge, 2022; Children, theLaw andtheWelfare Principle:Perspectives from North America, Routledge, 2023; and Children, the Law and the Welfare Principle: PerspectivesfromAustraliaandNewZealand, Routledge, 2023.
Part 1 – ‘The Civil Law Context’ – begins the book with two chapters. Chapter 1 – ‘Civil Law and Common Law: Differentiating Characteristics’ – identifies and considers the characteristics of these two legal traditions and assesses the significance of differentiating attributes insofar as they impact upon the welfare and rights of children. Chapter 2 – ‘Civil Law: France and Germany’ – examines the civil law of both countries and again considers the significance of any differences as they relate to children.
Part II – ‘France’ – is in three chapters. Chapter 3 – ‘Policy, Principles, Legislation, and Courts’ – outlines the framework of legislation, courts, and regulatory bodies, both domestic and international, which define the role and functions of the principle of the welfare interests of the child. Chapter 4 – ‘The Welfare Principle in Contemporary Practice: Public Family Law – Civil and Criminal Jurisdictions’ – profiles the contemporary application of the law in that country as it relates to: public family law both civil (child protection, etc.) and criminal (juvenile justice, etc.). Chapter 5 – ‘The Welfare Principle in Contemporary Practice: Private Family Law and Hybrid Proceedings’ – deals in the same way with private family law (adoption, divorce, etc.); and with the emerging hybrid public/private sector (adoption from the public care system, surrogacy, restraining orders, etc.).
Part III – ‘Germany’ – again in three chapters (6, 7, and 8) repeats the Part II template to undertake a similar examination of the law as it relates to the welfare of children in Germany. The same chapter structure focuses the material into similar blocks to facilitate a comparative jurisdictional analysis.
Part IV – ‘Themes of Commonality and Difference’ – in one chapter, ‘Themes and a Comparative Jurisdictional Analysis’, identifies jurisdictional differences in the law and in the functions of the welfare principle: as applied generally to child welfare/rights issues in France and Germany. It conducts a comparative analysis of the significance of any jurisdictional differences.
The ‘Conclusion’ closes the book, as did its predecessor, by benchmarking the distinctive characteristics and primary jurisdictional differences against the principles established by the Convention on the Rights of the Child 1989.
Part I
The civillaw context
1 Civil law and common law
Differentiatingcharacteristics
DOI: 10.4324/9781003415688-3
Introduction
Unlike its predecessors in the mini-series, this book deals with two countries that represent the civil law tradition. It therefore seems appropriate to start by considering what that difference might mean for the welfare interests/rights of a child. Accordingly, this chapter introduces the civil law tradition,1 of which France and Germany are two of its leading exponents.
1 The term ‘civil law’ or jus civile refers to the law, rules, customs, etc. governing the citizens of a place: the person, things, and their inter-relationships. It is to be distinguished from jus gentium which refers to the law of nations: the legal rules commonly accepted as applying in and between other nations.
Beginning with a cursory overview of the civil and common law traditions, the chapter then identifies and examines their characteristic differentiating features. It then considers how both legal traditions relate to human rights law in general before focusing on their respective relationships with the rights of children. This brief chapter concludes by assessing the varying contribution of European and international bodies to bridging the gap between the two legal traditions and developing the law relating to the rights of the child.
Modern European Union law and the civil and common law traditions
The welfare interests and rights of European children have for some decades been loosely governed by the principles of the European Convention of Human Rights (ECHR) as interpreted and applied by the European Court of Human Rights (ECtHR), the jurisdiction of which expanded from the 22 countries that constituted the Council of Europe in 1989 to the 47 that did so in 2010, and currently comprises 46 countries (less Russia) with a total population of some 700 million. Other European instruments and fora have been involved, while national legislators and judiciary continue their traditional roles, but increasingly the influence of supra-national law is nudging the ECHR signatory states into a broad consensus on the benchmarks for law, policy, and practice as regards a state’s duty of care for its children.
Confluence oflegalcultures
The European Court of Human Rights sits astride two legal cultures – the British common law and the Continental civil law – the former dating back to the Courts of Chancery in England and underpinning the legal systems of some 80 countries, while the latter is most usually traced to Emperor Justinian in 600 C.E. and is to be found in twice as many countries. The European Convention of Human Rights itself is largely a product of the former having been actively promoted by the U.S. with a strong contribution from Britain.
The ECHR is linked to a common law heritage that includes the Magna Carta, the Bill of Rights of 1689, and the American Declaration of Independence, though undoubtedly it was also influenced by the French Declaration of the Rights of Man 1789. In the immediate aftermath of World War II, the leaders of both nations and others saw the ECHR as a means of binding an inherently unstable Europe to a set of principles and rights that might prevent a repetition of that war. Indeed, Norman and Oborne, perhaps overstating the British pedigree, claim that:2
2 See Norman, J. and Oborne, P., The Conservative Case for the Human Rights Act, Liberty (National Council for Civil Liberties), London, (2009), p 7, at: https://jessenorman.typepad.com/Churchills_Legacy.pdf
The truth is that the Convention was framed by British jurists, working within a common law legal tradition stretching back past the US Bill of Rights 1791 to encompass our own Bill of Rights 1689, and the Petition of Right 1628.
The point is fairly made, however, that the ECHR and the rulings of the ECtHR probably owe more to the common law than to the civil law. The latter – with its characteristic hallmarks of codification, rigid judicial application of prescriptive legislative provisions based on abstract norms – can be difficult to apply to complex ‘facts on the ground’ and arguably leaves little room for a flexible response to newly emerging social norms.
Common law features
The common law was constructed over the centuries3 from the specificity of High Court writs which eventually amalgamated with the equitable principles forged in the courts of Chancery.4 The judicial arm of the law retained its independence from its statutory counterpart, with new legislative provisions being interpreted against established judicial precedents, the latter prevailing where any ambiguity could be found.
3 See, further, O’Halloran, K., The Principle of the Welfare of the Child: A History, Routledge, London, 2022.
4 The Supreme Court of Judicature Act 1873 unified the court systems of equity and the common law.
It would, however, be a mistake to view the common law as one which is clearly defined and uniformly practised throughout the common law world; and, indeed, the same observation could be made in relation to civil law. Although, for example, the law in the U.S. and England share the same roots – retaining the same fundamental concepts, principles, and respect for precedents – their versions of the common law now differ significantly. Perhaps, most obviously, in the U.S. the Constitution presides over the workings of
the entire system, whereas in England law-making authority rests very largely (if not exclusively) with Parliament. In England there is no judicial equivalent to the U.S. Supreme Court (USSC) – with its capacity to make and change laws, a capacity open to political bias as the judicial bench is formed by political appointments – which continues to be the supreme law-making institution in the U.S. Partly, this is a natural consequence of the difference between what is still a much more centralised legal system and a federated one in which a federal and 50 other fairly independent judicial systems endeavour to achieve a level of conformity with federal legislation. This is a difference replicated, if to a lesser extent, in Australia and Canada where the same federated distribution of authority, governed by a Constitution, positions both countries closer to the U.S. than the English common law model.
JUDICIAL INTERPRETATION IS KEY
As has often been said, ‘the common law is judge made law’ meaning that the judiciary have always valued a measure of independence from government and from parliament: their capacity to look inwards at the body of accumulated jurisprudence, rather than outwards to follow the latest statutory decree, has been a hallmark of this legal tradition for centuries. Milestone decisions in English law are reported in lengthy judgments, containing carefully crafted judicial arguments for and against propositions, that draw from established sources of authority – both legal and moral philosophy – concluding with a statement of principle agreed to by a majority but also including perhaps equally lengthy statements from any dissenting members of the judicial bench which may, in due course, count for more than the majority decision.5 The freedom to interpret the law to fit – where possible – the particular configuration of facts brought before the court, and to construe new legislative provisions as far as is feasible to fit with established judicial precedent, is an essential trait of common law judicial practice. Its effect has been well illustrated by many judicial decisions in the U.K.6 It is less obvious in the U.S. where the USSC has demonstrated
a willingness to overturn established judicial authority in compliance with contemporary political exigencies.7
5 See, for example, Liversidgev. Anderson, [1942] A.S. 206, per dissenting judgment of Atkins LJ.
6 See Donoghue v. Stevenson, [1932] AC 562; Gillick v. West Norfolk & Wisbech Area HealthAuthority, [1986] AC 112; and ReA(conjoinedtwins), [2001] 2 WLR 480.
7 See, for example, Roe v. Wade, 410 U.S. 113 (1973); Dobbs v. Jackson Women’s HealthOrganization, No. 19-1392, 597 U.S. ___ (2022); and Windsorv. U.S., 570 U.S. 744 (2013).
Generally, this approach contrasts with that of the civil law judiciary who are more accustomed to applying rather than creatively interpreting the prescribed rules. Where, however, the rules are broadly stated as in some clauses in the German Civil Code8 then – in the face of legislature inertia – the judiciary have shown an aptitude for substituing their own version of the law to bridge the legislative gap and address an emerging social need.
8 See, for example, the Civil Code, Article 826: ‘Whoever causes injury to another intentionally in a manner offending good morals is bound to repair the injury’.
PRINCIPLES/DOCTRINES
Internal consistency, together with a capacity for continuity – an ability to project a coherent functionality into the future – is essential for any legal system as it is for the future of the society it serves. The common law provides this through reliance on case precedents which allow principles or doctrines that have proven effective in the past to continue to do so in the future. That the welfare interests of a child should be the priority consideration in any decision affecting his or her welfare is one example of such a principle respected through successive generations of judicial judgments, as is the principle (previously part of the ‘doctrine of parental rights’) that parental responsibility continues throughout childhood.
In particular, moral imperatives were always prominent in the common law as it related to the family: generally as regards marriage, procreation, and child rearing but particularly so in relation to matters of sexuality. The rigidity of values formed generations ago in respect of such matters continue to reverberate through the common law nations and have shaped the polarised attitudes that
now constitute the culture wars in the U.S. and elsewhere. The related moralising, initially crystallised by the pro-life/pro-choice confrontation, now extends to gay marriage, transgender matters, assisted death, genetic engineering, DNA patenting, cloning, and stem cell research – issues which contribute to the erosion of family law as a coherent and integrated body of principles and values.
PRECEDENTS
In taking decisions that determine future actions the common law judiciary will be guided by the maxim ‘like cases should be decided alike’. As noted by Richard Fitz-Nigel in the 12th century “there are cases where the course of events, and the reasons for decisions are obscure; and in these it is enough to cite precedents”.9 Although, it has to be said, there have also been strong criticisms of a system which might be viewed as weighed down by the ‘dead hand of the law’ when changes in social mores strongly indicate that continued reliance on precedent is increasingly inappropriate.
9 Fitz-Nigel, R., Dialogues de Scaccario, 1177–79; cited by Dias, RWM, Jurisprudence (5th ed.), Butterworths, London, 1985, at p 56.
Advancing the development of the law by use of analogy –extending the application of a principle proven in one context to the same effect in another – is a distinctive common law characteristic with a long history. For example, a Canadian judge in the late 20th century creatively found that contemporary free community access to the internet could be analogously justified by the same rationale that permitted free access to public highways in 17th-century England.10 Such reliance on judicial precedent has become a strong feature of ECtHR rulings which very frequently cite previous decisions of the Court as added justification for the one it has just made.
The doctrine of stare decisis (‘let the decision stand’) essentially requires past case precedents of superior courts to be binding on future judicial decisions on similar matters in all courts. As was once
said in its defence, “it is better that the law should be certain than that every judge should speculate upon improvements”.11 It is a very powerful mechanism – almost exclusive to the common law as its civil counterpart gives primacy to every new statutory iteration – and one that by perpetuating the significance of a legal determination places considerable authority in the hands of the judiciary. A precedent on a point of law can only be overuled by specific legislative provision designed to have that effect or by the counter ruling of a superior court.12
12 An example might be the binding effect of the precedent established in Roe v. Wade 410 U.S. 113 (1973), coupled with the nullifying effect of Dobbs v. Jackson Women’s Health Organization No. 19-1392, 597 U.S. ___ (2022): both being rulings by the USSC.
This is not to imply that the civil law judiciary are mere functionaries, mechanically applying the law as determined by the legislature and as stated in the latest updated Article of the Civil Code. They can and do, if rarely, effect change in the law, but it is through studious reference to legal texts and academic works rather than recourse to case precedents.
Civillaw features
Generally traced back to origins in the Corpus Juris Civilis issued by the Emperor Justinian in AD 529, this ancient legal system derives from Roman law, as influenced by ecclesiastical teachings and doctrines which shaped its early beginnings during a lengthy gestation in the Romano-Germanic tradition. However, it was the influence of the Napoleonic era in continental Europe that introduced its characteristic logical taxonomy, structured into distinct codes, making a distiction between ‘private’ and ‘administrative’ law each with its own separate set of courts, and saw it firmly established in most European countries. As with the common law, it was transferred to the colonies that comprised the empires – Portuguese, Spanish, Belgian, German, Dutch, etc. – of various European rulers and consequently can now be found in many countries on the continents of Africa, the Americas, and Asia. Like the common law,
there is no single pure civil law model conforming to a uniform set of specifications; instead it is represented quite differently in various countries depending on the extent to which it has been influenced by local customs, traditions, and religion, though the same basic set of concepts, categories, and rules prevail in each. Civil law, in keeping with the common law, is now largely secularised –depending on the continuing strength of religion in the various nations – with France and Germany being particularly strong examples of the civil law tradition (see, further, Chapter 2).
JUDICIAL SYSTEM IS MORE ACCESSIBLE
Civil law systems are less centralised than their common law equivalents. Accessibility to the system and indeed to the judiciary is facilitated by a lesser degree of formality and ceremony than that generally found in common law countries; also there are simply more judges in the system. Regional appellate courts allow for swifter processes and provide an administrative supervisory layer that encourages consistency in judicial determinations. The legal system functions in much the same way as any other aspect of French bureaucracy: the judiciary are almost invariably career judges, promoted on merit through the civil service ranks; there is a sense of collective engagement with a decision-making process, with judges meeting with social workers or other relevant professionals outside the adjudicatory forum; the decision reached is unilateral and reported in a judgment that pointedly excludes any mention of dissent.
The fact that in a civil law context less attention is paid to judicial ratio decidendi is significant. Judgments, in keeping with the prescriptive nature of the codified rules, tend to be reduced to terse answers to the questions framed in relation to whether or not a particular rule was breached. In France, the rationale for a decision will be briefly stated without any exploration of the relative merits of contesting arguments and usually with no reference to previous judgments on similar issues. In Germany, there is a much greater probability of a judgment including judicial opinions with references being made to academic texts and to previous caselaw.
CODIFICATION
Generally, civil law countries have constitutions structured to recognise and authorise a set of codes that organise their national law (social codes, criminal codes, administrative and tax codes, etc.). These are continuously amended to reflect changes in circumstances and are administered by their respective courts (adminstrative courts for administrative matters, tax courts for tax issues, etc.). The judicial role is, again generally, restricted to applying rather than interpreting the code in relation to each particular set of circumstances. There is little room for judicial discretion, judges look to the codes rather than to caselaw precedents for guidance in decision-making. A civil law system is generally more prescriptive than its common law counterpart.
NO RELIANCE ON PRECEDENT
This hallmark of the common law is – or has been – almost entirely missing from civil law jurisprudence. The rulings of even superior courts have traditionally been treated as not binding on subsequent judicial decisions on the same issue. Civil law judiciary have felt bound to address the particular facts of each individual case and felt free to reverse previous decisions, even to dissent from those made by a superior court, in order to scrupulously ensure the singular justice requirements of each case were met. In recent years, however, this approach has lost a good deal of its doctrinaire attributes: earlier rulings of the Cour de Cassation and the Bundesgerichtshof, for example, now tend to be treated as a source of authority when similar issues arise.
INDUCTIVE RATHER THAN DEDUCTIVE
A cause – or perhaps an effect – of the above is that there is a distinctively different rationalising approach to judicial decisionmaking in a civil law context. Inverting the common law approach, the civil law judiciary proceed from the general – deducting from broad statements of rules in the Articles – and apply these to the particular facts of the presenting case, whereas the common law judiciary look to the particular facts first and build up logically and
inductively until the facts fit within a governing principle, which then shows the way to an appropriate decision. This may explain why the paramountcy principle is rarely if ever stated as such in the Civil Code nor referred to in judgments, but that would not preclude the judiciary from ultimately giving the welfare interests of a child the same priority weighting and coming to the same conclusion on similar facts as their common law counterparts
Human rights and the civil/common law traditions
When the states of eastern Europe together with others joined the European Union,13 doubling its membership to 27, they joined a democratic polity, largely based on the civil law, with a multi-layered framework of laws providing for equity, equality, and respect for the fundamental human rights of all citizens. This rights regime, although more extensive, was not unlike that shared by the common law nations which already had an established human rights-oriented legal tradition.
13 In May 2004, Cyprus and Malta joined the EU along with eight Central and Eastern European countries – Czechia, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, and Slovenia.
Complementarity ofthe civil/common law traditions andthe ECHR
Although the enlarged membership of the European Union (EU) necessarily increased the overwhelming majority of civil law nations that were signatory states to the ECHR, this did not mean that the tiny minority of common law members were in any way less committed to the human rights regime. The common law had always placed an emphasis on the rights and duties of the individual. This, perhaps the single most distinctive common law characteristic, grounded the ancient writ of habeas corpus. 14 It also found expression in the catchphrase ‘no writ no action’: the right came first; the petitioner had to fit his complaint within the narrowly
defined right/duty prescribed by a particular writ. In short, there was little to distinguish the two legal traditions in terms of their commitment to the rights represented by the ECHR.
14 Mediaeval in origins and first enacted into English law by the Habeas Corpus Act 1679, which continues in effect.
Complementarity
Arguably, it would now be a mistake to assume that the common law and the civil law function in parallel as self-contained, wholly separate bodies of law. As far as human rights – particularly those of children – are concerned, they have much in common. Fundamental human rights are embedded in most common law legal systems –inherently, by statute or constitution – reinforced by Article 54 which requires the public bodies of signatory states to ensure their decisions are compliant with ECtHR rulings. Further, while the ECtHR is very much guided by precedent it does not consider itself bound by the rigidity of stare decisis and has instead vested in itself a capacity to be flexible and extend recognition to legal rights that it might previously have found unsubstantiated (e.g. rights of gay couples to marry and/or adopt). On approximately 30 occasions the ECtHR has issued a reminder that “The Court must also recall that the Convention is a living instrument which […] must be interpreted in the light of present-day conditions”.15 This is very much in keeping with the common law approach and does much to bridge the gaps between the two legal traditions and facilitate concerted action to further develop ECHR rights.
15 See, for example, Tyrerv.theU.K., Application No. 5856/72, (1978), at para 31.
THE ECHR, A CATALYST FOR CONVERGENCE
The ECHR has an important role as a stopgap for deficiencies in the domestic law of signatory nations, providing a safety net of imprescriptible fundamental legal rights to catch those victimised by the fault or default of national public bodies. It brings an added and internationally applicable dimension to the largely adjudicative role of those public bodies, which are usually limited in their practice and procedures to adducing facts and applying the prescribed remedies
as required by legislative provisions. This core body of rights crosscuts all civil and criminal law, generating principles and standards that have an equal bearing on both judicial and administrative forums. Gradually, over time, as practice across all signatory nations conforms to the stratifying effect of governing principles established by the ECHR, a level of harmonisation is being achieved between the laws of those nations. This in turn is having the knock-on effect of introducing a degree of conformity on related social policy matters.16
16 For example, ECHR rulings on the rights of the parties involved in the adoption process (e.g. entitlement of a child to family life and the rights of same gender adopters) are having significant and uniform consequences for how signatory nations define ‘family life’ and for related social policy adjustments to family support services, etc.
MORE THAN A SAFETY NET
Moreover the Convention is not just an inert safety net, activated only in response to a breach of rights. The ECHR has ruled that the public authorities of signatory nations, in keeping with the Convention ethos and principles, must also act proactively to prevent possible breaches of rights and to promote opportunities for their enjoyment. Convention awareness is generating a culture of respect for rights which transcends the initial minimalist approach that focused on responding to breaches of Articles, instead infusing a deference for rights-compliant standards throughout the social infrastrucure of public bodies such as schools, workplaces, health and social care, judicial systems, etc. A more positive developmental approach is emerging whereby public authorities are now examining their policies and procedures to Convention-proof them so as to preempt the circumstances thay may give rise to a potential breach. In short, among the consequences of Convention influence on the shaping of national law is the development or reinforcement of a preventative legal function.
For present purposes, the Convention may be seen as having a threefold functional relevance for the law relating to children. Firstly, some rights in themselves – such as to family life – carry particular implications for that law. Secondly, the differentiation in weighting
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Knights Templars, and other Orders of Knighthood.
I a former number of the Museum (p. 145) we have given an account of the order of Knights Templars, with an engraving representing their appearance. In this number we give another picture, delineating more accurately their dress and armor.
We have stated that the order of Knights Templars originated about the period of the crusaders: but other orders of knights existed long before. So early as the year 506, history tells us that knights were made in England, with great ceremony. A stage was erected in some cathedral, or spacious place near it, to which the gentleman was conducted to receive the honor of knighthood. Being seated on a chair decorated with green silk, it was demanded of him, if he were of good constitution, and able to undergo the fatigue required of a soldier; also, whether he was a man of good morals, and what credible witnesses he could produce to affirm the same.
Then the bishop, or chief prelate of the church, administered the following oath: “Sir, you that desire to receive the honor of knighthood, swear, before God and this holy book, that you will not fight against his majesty, that now bestoweth the honor of knighthood upon you; you shall also swear to maintain and defend all ladies, gentlemen, widows, and orphans; and you shall shun no adventure of your person in any way where you shall happen to be.”
The oath being taken, two lords led him to the king, who drew his sword, and laid it upon his head, saying, “God and Saint George (or whatever other saint the king pleased to name) make thee a good knight.” After this, seven ladies, dressed in white, came and girt a sword to his side, and four knights put on his spurs. These ceremonies being over, the queen took him by the right hand, and a duchess by the left, and led him to a rich seat, placed on an ascent,
where they seated him, the king sitting on his right hand, and the queen on his left. Then the lords and ladies sat down upon other seats, three descents under the king; and, being all thus seated, were entertained with a delicate collation; and so the ceremony ended.
The famous order of the Garter, which is still conferred as a badge of honor, by the kings of England, upon such as they desire to favor, was instituted in 1344. The Knights of the Bath, another famous order, also still continues: this originated in France, and took its name from the ceremony of bathing, which was practised by the knights previous to their inauguration.
The Knights of the Thistle is a Scottish order; that of the Knights of St. Patrick was instituted by George III., in 1783. There are a great multitude of other orders, and among these, that of the Bear, the Elephant, and the Death’s Head. In former times, as I have told you, knights went about in quest of adventures, or they were devoted to warlike enterprises. But in modern times, being a knight is nothing more than to have a sash, or ribbon, or star, with a few diamonds or precious stones attached to it, conferred by a king or queen, with some ceremonies of no great meaning.
A Page for Little Readers.
T .
T are some little boys, and little girls too—some with black eyes and some with blue—who remember a great deal better what their parents tell their brothers and sisters, than what is told to themselves. Once upon a time there were two boys, one named Benjamin, and the other Timothy—but called Ben and Tim—whose story will afford a good instance of what I refer to.
These were nice little boys, and about as good as children in general; and they loved their mother very much; but still, they did a good many little mischievous things, that gave her trouble. She had a neat little garden, and in it were some pretty flowers—especially some red roses, which were very beautiful.
Now these two boys picked some of these roses, and, as their mother wished to keep them, she told them both not to pick any more. Well, for a day or two they obeyed; but at last little Ben, who was the eldest, saw a beautiful little rose, and it looked so pretty, he yielded to temptation, and plucked it. Tim saw him, and he plucked one too.
They said nothing about it, for a time; but the next day little Ben, who was very fond of telling tales, came out with the story, so far as Tim was concerned. “Mother,” said he, “didn’t you tell Tim not to pick any more roses?”
“Yes, I did,” said the mother.
“Well, he did pick one yesterday.”
“I didn’t!” said Tim.
“I say you did!” said little Ben.
“I say I didn’t!” said Tim.
“Oh, mother, he did, for I seed him pick it: it was a beautiful red rose; and when he’d picked it, he smelt of it; and then he pulled it all to pieces!”
Here Tim began to cry. “Well,” said he, “you picked one too!”
“Oh-o-o-o-o!” said Ben.
“I say you did pick a rose; you picked one first, and if you hadn’t picked one I shouldn’t have picked one, and so there!”
Here Ben began to snivel. “I see how it is,” said the mother. “It is too often so, my dear Ben: it is too often so. You remember very well what I tell Tim, but you forget what I tell you. Now I forbade you both to pick the roses; and it seems you were the first to disobey; and in this you were more to blame than Tim, for you led the way to disobedience, and thus, by a bad example, made Tim disobey also.
“But, what is worse than all, your love of telling tales induced you to tell of Tim, when you were more to blame yourself. Fie, for shame, Ben! This is all wrong, very wrong. You ought to remember better what I tell you, than what I tell Tim, for you are the oldest; you ought to be more ready to receive blame, than to bring it upon your little brother.”
Poor Ben was in tears, and his little heart was very sad, and he could not be comforted till his mother forgave him, and took him to her bosom, and said she hoped he would never do so again. This he promised, and then he brightened up, and the two children went to their play.
Now I suppose that Ben was really sorry for his fault, and no doubt his promise not to do so again was very sincere; but when once a child has got a bad habit, it is very hard to get rid of it. It was, therefore, a long time before he could remember what was said to him, better than what was said to Tim. He however mastered this difficulty, and at last, when his mother laid her commands upon him, he was sure to take them to heart, and obey them.
Now I recommend it to all blue-eyed, and black-eyed, and grayeyed children, to think of this little story, and see that they are sure to remember better what their parents tell them, than what they tell any one else. Let them learn the story of Ben and Tim by heart, and heed the lesson it conveys.
A Word to Correspondents.
W are obliged to defer replying to our numerous Correspondents till the next number, where the reader will find answers to the puzzles, and something more to task his Yankee faculty of guessing.
BOB O’LINKUM’S SONG TO THE MOWER.
Tinkle, Tinkle, Mister Ninkum, I am merry, Bob O’ Linkum! Prithee, tell me what’s the matter, That you’re making such a clatter Can’t you leave us, honest folks, To sing our songs and crack our jokes?
It is cruel, Mr. Ninkum, Thus to bother Bob O’Linkum I had thought the meadow mine, With its blossoms all so fine, And I made my little nest ’Neath the clover, all so blest
But you come, oh naughty Ninkum, All unheeding Bob O’Linkum And you swing your saucy blade Where my little nest is made And you cut the blooming clover, Which did wrap my young ones over
Get you gone, oh ugly Ninkum— Leave the field to Bob O’Linkum; Let him on his light wing hover O’er the summer scented clover Let him sing his merry song, And he’ll thank you all day long.
The Sense of Touch.
T sensations of smelling, tasting, hearing, and seeing, are conveyed by distinct organs, severally devoted to these objects, and all confined to the head. But the sense of touch, or feeling, extends over almost every part of the body. Though we may call every sensation feeling, yet what is properly denominated the sensation of
touch, consists of the feeling or sensation excited by bodies brought in contact with the skin, and especially the tips of the fingers.
It is by the sense of touch, that men and other animals are able to perceive certain external qualities of objects. It is by this sense that we acquire ideas of hardness, softness, roughness, smoothness, heat and cold, weight and pressure, form and distance.
The accuracy of this sense is much improved by habit. In some cases, when persons have become deaf or blind, the sense of touch has grown so acute as partially to supply the loss of the sense of seeing or hearing. Blind persons have sometimes been able to determine the qualities of objects, with wonderful accuracy, by touch, and even to distinguish the colors of cloths, by being able to discriminate between the substances used in giving these their hues.
Merry’s Adventures.
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W a heavy and doubting heart, I proceeded on my way to New York. My situation was, in every respect, gloomy and depressing. I was alone in the world, and utterly unpractised in taking care of myself. I was cast forth to work my way in the rough voyage of life. I was like a person, who, while sailing confidently upon a raft, sees it suddenly sink in the waves, leaving him no other resource than to swim for his life, and that too, without preparation or practice.
It is, however, true, that necessity is, not only the mother of invention, but of exertion also, and by degrees I began to brace myself up to the emergency in which I was placed. It is a great thing —it is, indeed, the first requisite in order to obtain success—to have the mind and feelings prepared. I saw and felt that I had no other dependence now, than myself; that even my food, my clothing, my shelter, must henceforth, be the fruit of my own toil. It was a strange and startling position; and it was necessary for me to go over the events which had recently transpired, again and again, before I could realize a state of things so utterly at variance with the whole tenor of my life, my education, and my habits of thought.
It was long before, I could bring my pride down to my humble condition; it was long before I could resolve to grapple earnestly and heartily with the burthen which a life of toil presented to my imagination. I had heard of a punishment of criminals in Holland, in which they were obliged to work at a pump incessantly, to save themselves from being drowned; if they relaxed for a moment, the fatal element would rise over their heads and they would be lost forever. In my hour of distress, I looked upon my condition as little better than this. But necessity, necessity, that stern teacher,
admonished me hour by hour, and at last its lesson was indelibly written on my heart. From that moment, fully estimating my dependence, I felt assured, and with a firmer step pushed on toward the place of my destination.
The day after my departure from Salem, as I was passing through the town of Bedford, I came to a handsome white house, the grounds of which seemed to bespeak wealth and taste on the part of its owner. It was at this moment beginning to snow, the flakes falling so thickly as to obscure the air. It was evidently setting in for a severe storm, and I was casting about for some place of shelter, when a tall, thin gentleman, of a very dignified appearance, approached me. There was that air of kindness about him, which emboldened me to inquire if he could tell me where I could get shelter till the storm was over.
“Come in with me, my friend,” said he kindly; at the same time opening the gate, and walking up the yard toward the house I have mentioned. I did not hesitate, but followed on, and soon found myself in a large room, richly carpeted, bearing every aspect of ease and luxury Being desired to take a seat, I placed myself by the cheerful fire, and waited to be addressed by the hospitable host.
“It is a stormy day,” said the old gentleman; “have you far to travel?”
“I am on my way to New York, sir;” said I.
“Indeed! and on foot?” was his reply; “then you had better stay here till the storm is past.” He then proceeded to make some inquiries, and soon learnt my story. He had known my uncle well, and seemed on his account to take some interest in my behalf. The day passed pleasantly, and when evening came, there was quite a circle, consisting of the members of a large family, gathered around the fireside. The conversation was lively and entertaining. The host appeared to be about sixty years of age, but he had a look of calm dignity, an aspect of mingled simplicity and refinement, which made a strong impression on my mind. I had never seen any one who so much excited the feeling of reverence. I did not know his name, but I had a feeling that I was in the presence of a great man. The
deference paid him by all around, tended to heighten this impression.
About ten o’clock in the evening, the servants of the family were called in, and all kneeling, the aged man offered up a simple, but fervent prayer to heaven. It seemed like the earnest request of a child to a father; a child that felt as if he had offended a parent whom he loved, and in whom he confided. The scene to me was very striking. To see a man so revered by his fellow-men—a man of such wisdom and knowledge—kneeling in humiliation, like a very child, and pouring out his soul in tears of supplication before the Father of the Universe, affected me deeply. It was one of those things which was calculated to have a decisive and abiding effect. I had then heard little of religion, except as a matter of ridicule. I have since met with the scoffer and the unbeliever; but the scene I have just described, taught me that the truly great man may be a sincere, meek, pious Christian; it taught me that the loftiest intellect, the most just powers of reasoning, may lead to that simple faith which brings the learned and the great to the same level as the unlettered and the humble—submission to God. If, in after days, I have ever doubted the truth of the Bible; if I have ever felt contempt for the Christian, that good man’s prayer, that great man’s example, have speedily rebuked my folly. These things have led me to frequent and serious reflection, and, during the subsequent stages of my life, have induced me to remark, that the unbeliever, the scoffer, is usually a person of weak mind, or ill-balanced judgment. I have met many great men, who were Christians. I never have met a great man who was a doubter.
In the morning the storm had abated, and after breakfast, I took my leave, having offered sincere thanks for the hospitality I had shared. As I was departing, the gentleman put into my hands a letter, addressed to a friend of his in New York; and which he requested me to deliver in person, on my arrival. This I promised to do; but candor compels me to say that I did not keep my promise; and bitterly have I had occasion to repent it. It is true, I sent the letter to the gentleman, but I did not deliver it myself. I had not yet learned the importance of a precise and accurate fulfilment of duty, and performance of
promises. Had I done as I was directed, it would, no doubt, have altered the whole tenor of my life. I afterwards learned, but all too late to be of avail, that the letter was to an eminent merchant of New York, commending me warmly to him, and requesting him to take me into his counting-room; and this letter was from a man of such distinction,[12] that his request would not have been slighted. Yet, through my carelessness, I missed this excellent chance for getting forward in life.
I proceeded on my journey, but although I travelled very industriously, the snow was so deep, that at night I had made little progress. The fourth day after my departure, however, just at evening, I entered the city of New York, and took up my lodgings at a small tavern in Pearl street. Having taken supper, I went to the barroom, where were about a dozen men, drinking and smoking. One of them, rather genteely dressed, came and sat by me, and we fell into conversation. After a little while, he ordered some flip, and we drank it. I felt my heart warmed, and my tongue loosed, and I told the stranger my story. He appeared to take great interest in me and pretty soon proposed to go into another room. Here were two other persons; and we sat down—my new friend ordering more liquor, and introducing me to the strangers. The liquor was brought, and also a pack of cards. In an easy way my companion began to shuffle the pack, and handed them to me to cut; seeming to take it as a matter of course that I would play. I had not the courage to refuse, and drew up to the table. The game went on, and in a very short time, I had lost every dollar in my pocket!
“Wit that is bought, is worth twice as much as wit that is taught,” says the proverb. We have good counsels bestowed upon us, but words make a faint impression. It is only when these counsels have been despised, and we are made actually to suffer, that we obtain lessons which stick by us, and influence us. A father once warned his son against certain evil ways. “Why do you counsel me, thus?” said the boy. “Because I have tried these things and seen the folly of them,” said the parent. “Well, father,” replied the inexperienced youth, “I want to see the folly of them too!” Thus it is that we will not take the experience of others; we will not heed the warnings of
wisdom; we must needs taste of evil, and then, but not till then, do we bear in mind the bitterness that is in the cup of indulgence.
So it was with me; I had heard the dangers of gambling, but I had not seen and felt the folly of it. But now the lesson of experience had come, and it was deep and bitter. I went to bed with a heavy heart. Sleep came not to my eyelids that long, long night. My fancy was filled with real and imaginary evils. The death of my uncle; the loss of my fortune; the desolation of my condition; my visit to old Sarah’s cave; the bitter disappointment connected with the continental notes; my farewell to friends; my launching forth upon the sea of adventure; —all, came again and again to mind, each thought with oppressive force and distinctness. Ideas seemed like living images marching and countermarching in fearful procession, through the grisly shadows of the night. Nor was this all. To these realities, were added the fantasies suggested by apprehension, the painful emotions of an offended conscience, and the bitter self-distrust, which a conviction of my weakness and folly, at the very threshold of active and responsible life, forced upon me. All these came in to increase my misery. In vain did I try to close my eyes in repose; in vain did I seek to shut out the truth from my mind. The more I courted sleep, the more wakeful I became; the more I tried not to think, the more bright and vivid were my conceptions. My soul was like an illuminated house, filled with bustle and noise, when the proprietor would fain have sought the silence and repose of the pillow.
Morning at last came, and with it something like comfort. “I have learnt a lesson,” said I, “and will never gamble again.” Such was the fruit of my experience, and it was worth all it cost me; for from that time I have kept my resolution. I went to deliver the letters which had been given me by Raymond and his brother. The persons to whom they were addressed, received me kindly, and one of them, a bookseller, took me into his shop as a clerk, on trial.
It its scarcely possible for any one to conceive of a youth so poorly qualified to be useful, as I was at this time. My education was very imperfect; I had no habits of industry; I was not accustomed to obey others; I had no experience in doing the thousand little things which are to be done, and which practice alone can render easy. On
the contrary, I had grown up in idleness, or at least to work, or play, or do nothing, just as my humor might dictate.
Now those children who have had the guidance of parents, and who have been taught habits of industry and obedience, ought to be very thankful—for they will find it easy to get along in life; but, alas, I had grown up almost to manhood, and had been educated to none of these things; and now I was to reap the bitter fruits of my own neglect and the misfortune of having no parent and no friend, save a too indulgent uncle. How much I suffered, from these sources, I cannot express; but my experience may warn all children and youth against the foolish desire of being indulged in their wishes and humors. ’T is far better that they should learn to perform their duties, to help themselves, to be industrious, and to obey those in whose charge they are placed.
The bookseller with whom I was now placed, was named Cooke —a large man, with red hair standing out like bristles, and staring, fiery eyes. When he first spoke to me, he was soft as cream in his tones, but I soon learnt that when roused, he was hot as a volcano. For two or three days he was, indeed, very gentle, and I fancied that I should get along very well. But soon the fair sky was overcast with clouds, and a terrible tempest followed.
[12] I suppose that Robert Merry here refers to John Jay, one of the greatest and best men who ever lived; for about this period he dwelt in the town of Bedford, and was such a person as is described. He had filled many important offices; had been a member of congress, governor of New York, ambassador to Spain and England, and chief justice of the United States. At the period of Merry’s journey from Salem to New York, he had retired to private life, devoting himself to religious and philosophical inquiries. In 1798, he negotiated a famous treaty with England, which was the subject of much discussion. There is a simple anecdote which shows the excitement on this subject, and exhibits Governor Jay in a pleasing light One day being at market, the butcher said to him, “There is a great pother about this treaty of yours, governor; pray what sort of a treaty is it?” “Well, my friend,” said Mr Jay, “there is some good and
some bad in it; but, on the whole, I think it a pretty good treaty: it is much like your beef there’s a streak of fat and a streak of lean but it’s very good beef after all ”
I .—A soldier in an Irish corps observed to his comrade that a corporal was to be drummed out of the regiment. “By my faith,” said he, “I hope it’s the corporal that is so troublesome to our company.” “Pray, what’s his name?” enquired the soldier. “Why, Corporal Punishment, to be sure, Pat!”
M I C —An invitation to a party or feast in China is sent several days before, on a crimson colored ticket to the person expected, on which is written the time appointed, and the guest is entreated to bestow the “illumination of his presence.”
Uncas and Miantonimo.
Sketches of the Manners, Customs, &c., of the Indians of America.
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Dutch settlement in New York.—Indian account of the matter.— Uncas, chief of the Mohicans.—His war with the Narragansets.— Philip.—His wars and death.—Present state of the Indians in New England.
T country around the mouth of the Hudson, and the island on which the great city of New York is situated, were first settled by the Dutch. They found the land occupied by a powerful tribe of Indians, descended from the Delawares, called the Mohicans, by whom they were received with the greatest kindness and respect. The natives give an amusing account of the first arrival of these strangers.
“A great many years ago,” say they, “when men with a white skin had never been seen in this land, some Indians, who were out a fishing at a place where the sea widens, espied at a distance something remarkably large floating on the water, and such as they had never seen before. These Indians, immediately returning to the shore, apprized their countrymen of what they had observed, and pressed them to discover what it might be. They hurried out together, and saw with astonishment the phenomenon which now appeared to their sight, but could not agree upon what it was: some believed it to be an uncommonly large fish or animal, while others were of opinion that it must be a very big house, floating on the water.
“Runners were sent off in every direction with the wonderful intelligence, and the people crowded to the shore to view the strange appearance. They concluded that the Manito, or Great Spirit, himself was coming to visit them, in this huge vessel. All the idols and temples were put in order, and a grand dance and feast was prepared to entertain him. While in this situation, fresh runners arrived, declaring it to be positively a large house, crowded with beings of quite a different color from that of the Indians, and clothed differently from them; that, in particular, one of them was dressed entirely in red, who must be the Manito himself.
“The house, or as some say, large canoe, at last stops, and a canoe of smaller size comes on shore, with the man in red, and some others in it; some stay with the canoe to guard it. The chiefs and wise men form a circle, towards which the man in red clothes advances with two others. He salutes them with a friendly countenance, and they return the salute after their manner; they are lost in admiration at the dress, the manners, and the whole appearance of the unknown strangers; but they are particularly struck with him who wore the red coat, all glittering with gold lace, which they could in no manner account for. He surely must be the great Manito, but why should he have a white skin?
“Meanwhile a large bottle is brought by one of his servants, from which he pours out an unknown liquid into a small cup or glass, and drinks:—he then fills it again, and hands it to the chief nearest him, who only smells of it, and passes it to the next, who does the same;
and the glass is about to be returned to the red-clothed Manito, untasted, when one of the Indians, a brave man and a great warrior, suddenly jumps up and harangues the assembly on the impropriety of refusing the request of Manito, and not drinking the liquor, when he had set them the example. For himself, he declared, that rather than provoke the wrath of the Great Spirit by this conduct, he would, if necessary, devote himself to death for the good of the nation.
“He then took the glass, and bidding the whole assembly a solemn farewell, drank up its whole contents: he soon began to stagger, and at last fell prostrate to the ground. His companions now bemoan his fate, thinking that he has expired; suddenly he wakes, jumps up, and declares that he has enjoyed the most delicious sensations from drinking the liquor, and asks for more. The whole assembly imitate him, and all become intoxicated.
“After they had recovered from the effects of this scene, the strangers distributed among them presents of beads, axes, hoes, &c., and then departed. In about a year they returned, and concluded to settle there: for this purpose, they only asked for as much land as the hide of a bullock, which was then spread before them, would take in. The Indians readily granted this slight request; but the whites then took a knife, and cut the hide into a long strip of rope, not thicker than a child’s finger, with which they were able to encompass a large piece of ground. The Indians were surprised at the superior wit of the whites, but did not care to dispute about a little land, as they had still enough for themselves; and they lived for some time contentedly with their new neighbors.” The Dutch, however, did not long keep possession of the country, which they had thus unfairly gained; about fifty years afterwards, it was taken from them by the English, who called it New York.
The first grand chief, or sachem, of the Mohicans known to the English, was called Uncas: he was a crafty and ambitious chieftain, brave and cunning in war, and cruel to his conquered enemies. He was always a firm friend to the English, probably because he saw that it was for his interest to be so; for he was generally at war with the Six Nations on the north, and the Narragansets, a numerous
