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well to a rogue and vagabond, as to an incorrigible rogue. For, if the words 6 such person being a male,” &c. which occur in the latter part of the clause, are to be referred to an incorrigible rogue only, there will be no provision made for the passing of a rogue and vagabond by the sessions after his imprisonment, which the evident intention and policy of the act require in order to prevent Vagrancy. (1)

Al commitments under the vagrant act are commit- They are com

mitments in ments in execution ; if one be for safe custody only, it is

execution. bad. (2) This seems clear from the option given to the committing magistrate as to the punishment to be inflicted; as he is either to order the party to be whipped, or to commit him till the next sessions, or for a shorter period. Now, in two of these instances (3), it is properly admitted, that there must be a conviction of the offence to warrant the sentence; and there seems to be no reason why it should not also extend to the third instance, the legislature not having made any distinction between them. And as there might exist cases in which an imprisonment beyond the next sessions is necessary, power is given to the magistrates to commit the offender to the next session, who may increase the punishment, if they think proper. (4)

A warrant, therefore, of commitment under this act, Form of commust be preceded by a conviction of the offence. It

mitment. must consequently state the party to be convicted of the offence imputed; and if it states him only to be charged with it, that is insufficient. Also, if it commits him to the

Rex v.

(1) Rex v. Patchett, 5 East, 339., and they must ascertain, in their adjudication, whether he is to serve in the land or sea service, or it will be bad.

(2) Rex v. Brooke, 2 Term Rep. 190. Rex v. Alder, ibid. Rhodes, 4 Term Rep. 220.

(3) Whipping and imprisonment for a shorter period than until the sessions. (4) Per Buller J., Rex v. Rhodes, Ibid.

or until discharged by due

next sessions, it should add,
course of law." (1)

Appeal and certiorari.

An appeal lies to the quarter sessions from any orders made by the justices out of session under the statute (2); and all such orders may be removed by certiorari into the court of king's bench. (3)

(1) Rex v. Rhodes, 4 Term Rep. 220.
(2) 17 Geo. II. c. 25. s. 6. also 5 Geo. IV. c.83. s. 14.
(3) Rex v. Patchett, ante, 275. (1).

CHAP. XXXII.

Of Bastards.

Sect. I,

Of the Statutes concerning Bastards.

Who are bastards, and the species of evidence to establish illegitimacy, are subjects which have been discussed in treating of their settlement. (1)

The present investigation respects only the methods by which the parish may be exempted from the charge of maintaining them.

The statutes by which they are enabled to do so are ; Any two jus. 18 Eliz. c.3. s.2. which recites, that bastards begotten and tices, in or next born out of lawful matrimony, are now left to be kept at where a basthe charge of the parish where they are born, to the great tard is born, burden of the same parish, and in defrauding of the relief the matter, and of the impotent and aged true poor of the same parish ; make an order

of bastardy. and enacts, That any justices of the peace (whereof one to be of the quorum in or next unto the limits where the parish church is, within which parish such bastard shall be born), upon examination of the cause and circumstance, shall and may, by their discretion, take order, as well for the punishment of the mother and reputed father of such bastard-child, as also for the better relief of every such parish, in part or in all,

Sect. 2. And the said justices shall and may likewise, The justices by like discretion, take order for the keeping of every order of mainsuch bastard child, by charging such mother or reputed tenance

(1) Ante, Vol. I. chap. xix.

father with the payment of money weekly, or other sustentation for the relief of such child, in such wise as they shall think meet and convenient.

The father or Sect. 2. If after the same order by them subscribed mother of a

under their hands, any of the said persons, viz. mother bastard child may be com

or reputed father, upon notice thereof, shall not for their mitted

for dis- part observe and perform the said order, that then, every obeying the justices

' order: such party so making default in not performing of the but the order said order to be committed to ward in the common gaol, must be in the

there to remain without bail or mainprize, except he, alternative, to give security, she, or they, shall put in sufficient surety to perform the or to appeal at said order, or else personally to appear at the next gene

ral sessions of the peace to be holden in that county where such order shall be taken ; and also, to abide such order as the said justices of the peace, or more part of them, then and there shall take in that behalf (if they then and there shall take any); and that if at the said sessions the said justices shall take no other order, then to abide and perform the order before made, as is aforesaid.

49 Geo. III. C.68.

By 49 Geo.III. c.68. s.1. after reciting that the provisions

of 18 Eliz. are inadequate to the purposes of indemnifying Charges and parishes against the charges and expences incurred by the by the father. apprehending and securing the reputed father, and also by

obtaining the order of filiation, and that it is expedient that such charges and expences should be borne by the adjudged reputed father of such bastard child or children, at the discretion of the justices by whom such adjudication shall be made, either in the court of quarter sessions or otherwise, enacts, that every person who shall thereafter be adjudged to be the reputed father of any bastard child or children, shall be chargeable with and liable to the payment of all reasonable charges and expences incident to the birth of such bastard child or children, as also to the payment of the reasonable costs of apprehending and securing such reputed father, and also to the payment of the costs of the order of filiation, such costs of apprehending and securing the father, and of the order of filiation not to exceed the sum of 101.; and all such charges, expences, and costs shall be duly ascertained before the justices of the peace, or the court of quarter sessions, making such order of filiation.

By 7 Jac. I. c. 4. s. 7. And because great charge ariseth The justices upon many places within this realm by reason of bastardy, may commit

the mother of be it enacted, that every lewd woman which shall have bastard chilany bastard, which may be chargeable to the parish, the dren to the

house of corjustices of peace shall commit such lewd woman to the rection. house of correction, there to be punished, and set on work during the term of one whole year; and if she shall eftsoons offend again, that then to be committed to the house of correction as aforesaid, and there to remain until she can put in good sureties for her good behaviour not to offend so again. (1)

By 3 Car. I. c. 4. s. 15. so much of the 18 Eliz. c. 2. as con- The sessions cerneth bastards begotten out of lawful matrimony is con

shall have the

same authority tinued; with this, that all justices of the peace within in cases of bastheir several limits and precincts, and at their several tardy, as are sessions, may do and execute all things concerning that tices of peace. part of the said statute, that by justices of the peace, in the several counties, are by the said statute limited to be done.

By 13 & 14 Car. II. c.12. s.19. And whereas the puta- Putative fative fathers and lewd mothers of bastard children run children, how

thers of bastard away out of the parish, and sometimes out of the country, to be proceedand leave the said bastard children upon the parish where ed against. they are born, although such putative father and mother have estates sufficient to discharge such parish, be it enacted, that it shall and may be lawful for the churchwardens and overseers for the poor of such parish, where any bastard child shall be born, to take and seize so much of the goods and chattels, and to receive so much of the annual rents or profits of the lands of such putative father

(1) Repealed by 50 Geo. III. c.51.

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