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rity in this behalf, is hereby authorised and required to commit the person so charged to the common gaol or house of correction of such county, &c. unless he shall give security to indemnify such parish or place, or shall enter into a recognizance with sufficient surety or sureties, upon condition to appear at the next general or quarter sessions, or general sessions of the peace, to be holden for such county, &c. to abide and perform such order or orders as shall then be made in pursuance of the 18th of Eliz., unless one such justice as aforesaid shall have certified in writing under his hand, to such general quarter sessions, or general sessions of the peace, that it had been proved before him, upon the oath of one credible witness, that such single woman had not been then delivered, or had been delivered within one month only, previous to the day on which such general quarter sessions, or general sessions of the peace, shall be holden; or, unless two justices of the peace of such county, &c. shall have certified in writing under their hands to the next; or when such woman shall not have been delivered as aforesaid, then to the immediately subsequent general quarter sessions, or general sessions of the peace, that an order of filiation had been already made on the person so charged, or that such order was not then requisite to be made on account of the death of the child born a bastard, or for other like sufficient reason: in each of which cases firstly before-mentioned it shall and may be lawful for the justices assembled at such general quarter sessions, or general sessions of the peace, to respite such recognizance to the then next general quarter sessions, or general sessions of the peace, to be holden for such county, &c. without requiring the personal attendance of the putative father so bound, or that of his surety or sureties; and in either of the two last-mentioned cases it shall be lawful for the justices assembled as aforesaid, wholly to discharge such recognizance.
Sect. 3. after reciting that parishes are put to great expense by enforcing the performance of orders of maintenance made on the filiation of bastard children, enacts,
that if any reputed father or mother of such bastard child or children, on whom any order of filiation or maintenance of such child or children shall have been made by the court of quarter sessions, or which shall have been made by two justices of the peace, and confirmed by the court of quarter sessions, or against which no appeal shall have been made to the court of quarter sessions, shall neglect or refuse to pay any sum or sums of money which he or she shall have been ordered to pay towards the maintenance or other sustentation for the relief of any such bastard child or children by any such order, it shall be lawful for any justice of the peace of the county, &c. in which such reputed father, or such mother, shall happen to be; and the said justice is hereby required, upon complaint made to him by any one of the overseers of any parish, &c. liable to the maintenance or support of such bastard child or children, or where such bastard child or children shall then be, and upon proof on oath of such order for the payment of such sum or sums of money, and of such sum or sums of money being unpaid, and of a demand of such payment having been made, and a refusal to pay the same, or that such reputed father, or such mother, hath left his or her usual place of abode, and hath avoided a demand thereof being made by such overseer to issue his warrant to apprehend such reputed father or such mother, and to bring him or her before such justice, or any other justice of the peace of the same county, &c. to answer such complaint; and if such reputed father, or such mother, shall not pay such sum or sums of money as shall appear to the said justice, before whom such reputed father, or such mother, shall be brought, to be due and unpaid, or shall not show to such justice some reasonable and sufficient cause for not so doing, it shall be lawful for such justice, and the said justice is hereby required to commit such reputed father, or such mother, to the public house of correction, or common gaol, of the said county, to be there kept to hard labour for the space of three months, unless such reputed father, or such mother, shall, before the expiration of the said three months, pay, or cause to be paid, to one of the
Provisions 18 Eliz. c. 5.
extend to bastards of married women.
overseers of the poor of the parish, township, or plate, 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.
General Objects of 18 Eliz. c. 3, &c. and to whom they apply.
It was formerly doubted whether the 18 Eliz. c.3. extended 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. 483. 1 Lord Raym. 395. Alanson v. 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. 552. 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.”
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.
Of securing the reputed Father previous to the Birth of the
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.