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which they reside.

Persons punished under this act.

Soldier no vagrant.

Power of sessions.

May send a rogue and va

gabond to serve

by sea or land.

deemed to be actually chargeable to the parish, township, or place, in which such person shall reside; and such person shall be liable to be removed to the parish of his or her last legal settlement, by the order of two justices of the peace of the division or place in which such person shall reside.

Sect. 21. enacts, That wherever by any act or acts of parliament now in force it is directed that any person shall be punished as an idle and disorderly person, or as a rogue and vagabond, or as an incorrigible rogue, for any offence specified in such act or acts, and not hereinbefore provided for by this act, in every such case, whether such person shall or shall not have committed any offence against this act, every such person shall be punished under the provisions, powers, and directions of this act.

It has been determined, upon 17 Geo. II. c. 5. that a common soldier, separating himself from his wife and family in the discharge of his duty, and billeted elsewhere, cannot be considered as a vagrant within the act. (1)

And where a person was convicted as a rogue and vagabond, under 17 Geo.II. c. 5. by a single justice, and committed by him until the next sessions, &c. the court of quarter sessions might adjudge him to be a rogue and vagabond, and to be further imprisoned and kept to hard labour for six months, and to be publicly whipped during that time.

It was doubted whether they could also, in addition, adjudge a male, if above the age of twelve, to be employed in His Majesty's service by sea or land, it being argued that this clause applied only to incorrigible rogues. the Court were of opinion, that the words, " such person" referred to any offender against the act, and therefore, as

But

(1) The soldier's case, 1 Wils. 331.

well to a rogue and vagabond, as to an incorrigible rogue. For, if the words "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)

mitments in execution.

All commitments under the vagrant act are commit- They are comments in execution; if one be for safe custody only, it is 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)

mitment.

A warrant, therefore, of commitment under this act, Form of commust be preceded by a conviction of the offence. It must consequently state the party to be convicted of the

offence imputed; and if it

with it, that is insufficient.

states him only to be charged
Also, if it commits him to the

(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. Rhodes, 4 Term Rep. 220.

Rex v. Alder, ibid.

Rex v.

(3) Whipping and imprisonment for a shorter period than until the sessions.

(4) Per Buller J., Rex v. Rhodes, Ibid.

Appeal and certiorari.

next sessions, it should add," or until discharged by due course of law." (1)

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; 18 Eliz. c.3. s.2. which recites, that bastards begotten and born out of lawful matrimony, are now left to be kept at the charge of the parish where they are born, to the great burden of the same parish, and in defrauding of the relief of the impotent and aged true poor of the same parish 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,

Any two justices, inor next to the parish where a bas

may examine the matter, and

tard is born,

make an order of bastardy.

may make an

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.

The father or mother of a bastard child may be com.

but the order

must be in the alternative, to give security, or to appeal at

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.

Sect. 2. If after the same order by them subscribed under their hands, any of the said persons, viz. mother 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 said order to be committed to ward in the common gaol, there to remain without bail or mainprize, except he, she, or they, shall put in sufficient surety to perform the said order, or else personally to appear at the next general 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.

the sessions.

49 Geo. III. c. 68.

Charges and costs payable by the father.

By 49 Geo.III. c.68. s.1. after reciting that the provisions of 18 Eliz. are inadequate to the purposes of indemnifying parishes against the charges and expences incurred by the 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

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