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Sect. 4.

Provisions

is Eliz. C. 5.

tards of mar

ried women.

overseers of the poor of the parish, township, or place, on whose behalf such complaint as aforesaid was made, the said sum or sums of money so due and unpaid as aforesaid, and so from time to time, as often as such reputed father, or such mother, shall, in manner aforesaid, neglect or refuse to pay any other sum or sums of money that shall afterwards become due by virtue of and under such order, after the expiration of, or discharge from any such former imprisonment.

Sect. 4. provides that all such charges, expenses, and costs shall be wholly at the discretion of the justices or court of quarter sessions, who shall make the order of filiation, who are authorised to allow and order payment of the whole or part thereof: Provided that the costs of apprehending and securing the reputed father, and of the order of filiation shall not in any case exceed 107.; and for securing due payment of the same, after such allowance and order, all and every the powers, authorities, provisions, clauses, matters, and things contained in the 18th of Eliz. shall be respectively observed, used, and practised in the execution of this act, and shall be taken to apply as fully and effectually to all intents and purposes as if herein specially recited and re-enacted.

SECT. II.

General Objects of 18 Eliz. c. 3, &c. and to whom they apply.

It was formerly doubted whether the 18 Eliz. c.3. exextend to bas- tended to the case of a bastard begotten upon a married woman whose husband was living. For the words of the statute are," bastards begotten and born out of lawful matrimony," which do not seem to comprehend in their literal sense, the illegitimate issue of a married woman. (1) But it is now settled, that cases of this kind are within the act. (2)

(1) Rex v. Alberton, 2 Salk. 485. 1 Lord Raym. 395. Alanson r. Spence, 5 Mod. 419.

(2) Ibid. and post. Sect. iv.

Therefore where an illegitimate child is charged to have been begotten upon a married woman, the justices need not enquire whether the husband is alive or not, provided his non-access be distinctly proved. (1)

The provisions of 6th Geo.II. were likewise held to extend to the bastard children of married women, notwithstanding that the act refers only to the case of "a single woman" delivered of a bastard. For per Lord Ellenborough C. J. "This question, which arises on the wording of the statutes of Elizabeth and George II. in effect resolves itself into the question, whether the child is a bastard. For when the question is, whether this was a child born out of lawful matrimony, that is, out of the limits and rights belonging to that state, it is the same in substance as the question, whether it be a bastard. It is so for the general purposes of the act. The matrimony does not cover the child if it be in other respects (according to the rule of law applicable to this subject) a bastard. And so it seems, that a child born by adulterous intercourse, is as much within the provision of the act of George II. as one which is born of a single woman. The cases of the King v. Reading, and the King v. Bedall, were both after the statute of George II. and yet no objection was taken. It is a consequence which follows of course, from establishing the bastardy of the child, that it was born out of lawful matrimony, in the proper sense of the words, as applied to the subject matter. (2)

(1) Rex v. Bedall, 2 Str. 1076. Cas. Temp. Hard. 379. Andr. 8.S.C. and see ante, Vol. I. 352. and seq.

(2) Rex v. Luffe, 8 East, 204. The words of 55 Geo.III. c.101. s.11. enact only, that every unmarried woman, with child, shall be deemed a person actually chargeable, and removable as such to her place of settlement. But this has been likewise held to extend to the case of a married woman pregnant of a child which when born would by law be a bastard. For per Lord Ellenborough C. J., " The legislature plainly had in view that every woman pregnant of a child, which was not protected by the matrimony of its parents, but would when born be a bastard, should be removable whether married or unmarried." Rex v. Tibbenham, 9 East, 388. ante, 198. (1). The 49 Geo. III. c. 85. sect. 2. is confined in its expression to " any single woman,”

As do those
of 6 Geo. II.&

49 Geo. III.

Object of 6 Geo. II.

1. To confine proceedings to complaints by parish officers.

2. To indemify the parish.

The object of these acts, as well as the remaining statutes upon this subject, is threefold: 1. To secure the reputed father being forthcoming to answer to an order of filiation and maintenance when made upon him. 2. To exempt the parish from the burthen of maintaining the bastard by means of such an order made upon the parents. 3. For the punishment of the parents.

SECT. III.

Of securing the reputed Father previous to the Birth of the

Child.

PRIOR to 6 Geo. II. every justice, at his discretion, might bind to his good behaviour any person charged or suspected to have begotten a bastard, that he might be forthcoming when the child should be born, and the like might be done after the child's birth, and before an order made under 18 Eliz. c.3. (1) One object of 6 Geo. II., therefore, was to restrain justices from proceeding, on the application of lewd women pretending to be with child, &c. till complaint by the churchwardens, &c. (2) The act, therefore, directs the order to be made upon application by the overseers of the poor. (3)

The second object of that statute was for more effectually indemnifying the parish from expense, &c. (4), by giving it

(1) It is thus laid down by Lambard, " and therefore it shall not be amiss at this day (in my slender opinion), to grant surety of the good abearing, [i. e. behaviour] against him that is suspected of having begotten a bastard child; to the end that he may be forthcoming when it shall be born: for otherwise there will be no putative father found, when that the two justices of peace shall, (after birth and by virtue of the statute of 18 Eliz. c.3., come to take order for his punishment).” Eiren. book 2. chap.2. p.122. S. P. Per Twisden J., assent. Cur. Rex v. Brown, 3 Keb. 108. See also Dalton, chap. xi. tit. Bastardy, Cromp. 196. (2) Per Foster J., Rex v. Fox, 1 Bott, 472. Pl. 190.

(3) Rex v. St. Mary's, Nottingham, East. 10 Geo, II. Ford's MSS. 13 East, 57.

(4) Eod. Jud., Rex v. Fox, supra, 2.

a more prompt remedy for securing the putative father, and better security for his future appearance to answer to an order of filiation.

Where parishes are united under 22 Geo.III. c.83. the Guardian. guardian thereby appointed is substituted in the overseer's place, and one who is de facto such, being so received and acknowledged by the parish, though not legally appointed, is competent to apply in that character to a justice of the peace to take the examination of a single woman pregnant with child, in order to filiate the bastard. (1)

49 Geo. III. c. 68.

As the 49 Geo. III. c. 68. adopts the language of the Object of 6 Geo. II. it seems intended in furtherance of the same purposes, and the alterations which have been made in the law by that statute, will be pointed out under the proper heads.

diction.

The jurisdiction to enquire into this complaint is con- Justices' jurisfined to the justices of the county or place within which the parish or place to which the child is likely to be chargeable is situated (2); and the mother, with the concurrence of the parish officers, may make the charge.

When declar

ation to be made by the

mother, under

The mother may make this declaration at any time, after she discovers that she is with child. But she cannot be compelled to answer questions relative to her pregnancy before delivery, nor can she be sent for against her will, and 6 Geo. II. examined by the justice, until one month after it. (3)

the woman,&c.

It is laid down by Dalton, that any justice may bind of secreting those who procure the putative father, or the mother, to run away, (so that an order cannot be made or performed,) to their good behaviour, to be forthcoming at the next

(1) That is for proceedings against the putative father under 49 Geo. III. e. 68. Rex v. Martyr, 13 East, 55.

(2) Rex v. St. Mary, Nottingham, ante, 286. (5).

(3) 6 Geo. II. c.31. s. 4. But see 35 Geo. III. c. 101.

Proceedings
under
6 Geo. II.

Where reason able grounds

are stated to shew that he

is likely to run away if apprised of the charge by a previous

summons.

general gaol delivery or quarter sessions. (1) But it is said that no other person than the mother, such as a nurse, &c. is compellable to disclose the father's name, or to give security to the parish. (2)

It seems as if proceedings before a magistrate, under 6 Geo.II. and that which now takes place under 49 Geo.III. may be altogether ex parte. No summons need issue to bring the person accused before the justice, and it appears unnecessary that he should be present at the woman's examination. They may thus resemble the power of holding to bail by affidavit in a civil action, so that if the examination be sufficient to charge the supposed father, the justice or justices should issue a warrant to apprehend him. (3) This warrant is not like a writ issuing out of the civil courts, in being returnable at a certain period, after which time its authority ceases. It continues in force until it is fully executed and obeyed; before that is done, the party may be arrested under it at any time,

(1) Quære, whether it be an offence to secrete the woman, with her own consent, in order to prevent her giving evidence about the father, for there is no power to compel her to be examined before her delivery ? Rex v. Chandler, 1 Str. 612. 2 Lord Raym. 1368. 1 Bott, 468. Pl. 585. But the ground of demurrer was an averment, that the woman was big with an illegitimate child," which cannot be, for no child is illegitimate until after the delivery, as the law contemplates that, by an intervening marriage of the parents, it may be born in lawful wedlock.

(2) Rex v. Southby, 1 Bott, 472. Pl. 589. But quære whether they are not compellable to give evidence before the justices making an order of filiation.

(5) But per Lord Ellenborough C. J., when the complaint is merely for non-payment of money, it is the general duty of magistrates to issue a summons in the first instance before they grant a warrant of apprehension, and it requires very strong words to take away the necessity of a summons. Rex v. Martyr & Fulham, 13 East, 31. If this rule is to be considered as extending to cases of original complaint under 49 Geo.III. it will in many cases defeat the object of the statute, by operating in furtherance of the putative father's escape, instead of being a means to indemnify the parish by facilitating his apprehension. But quare whether the justice should not summon the party in all cases unless he has reason to conclude that the person charged is likely to abscond. See post. 295.

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