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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 ex- As do those tend to the bastard children of married women, notwith- of 6 Geo. II. &
49 Geo. III. standing 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 35 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.”
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 3. For the punishment of the parents.
Of securing the reputed Father previous to the Birth of the
Object of Prior to 6 Geo. II. every justice, at his discretion, might 6 Geo.II. 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 1. To confine 18 Eliz. c.3.(1) One object of 6 Geo. II., therefore, was to proceedings to restrain justices from proceeding, on the application of parish officers. 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 a more prompt remedy for securing the putative father, and better security for his future appearance to answer to an order of filiation.
2. Toindemify the parish.
(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.
Where parishes are united under 22 Geo.III. c.83. the Guardian. 1 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)
As the 49 Geo. III. c. 68. adopts the language of the Ob
49 Geo. III. 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.
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.
The mother may make this declaration at any time, When declarafter she discovers that she is with child. But she cannot made by the be compelled to answer questions relative to her pregnancy mother, under 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)
It is laid down by Dalton, that any justice may bind of secreting
the woman,&c. 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. c. 68. Rex v. Martyr, 13 East, 55.
(2) Rex v. St. Mary, Nottingham, ante, 286.(3).
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)
Proceedings It seems as if proceedings before a magistrate, under under 6 Geo. II. 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 Where reason- him. (3) This warrant is not like a writ issuing out of able grounds are stated to the civil courts, in being returnable at a certain period, shew that he after which time its authority ceases.
It continues in is likely to run force until it is fully executed and obeyed; before that is away if apprisedof the charge done, the party may be arrested under it at any time, by a previous
(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, i Str. 612. 2 Lord Raym. 1568. i Bott, 468. Pl. 583. 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, 172. Pl. 589. Lut quære whether they are not compellable to give evidence before the justices making an order of filiation.
(3) 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 quære 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.
however distant, during the magistrate's continuance in the commission by whom it was granted. Where, therefore, the putative father of a bastard had been arrested under a warrant, and agreed to give a bond of indemnity, with two sureties, but one of the parties not executing the bond, he was arrested a second time under the same warrant, it was held legal.(1)
When the reputed father is brought by warrant before Proceedings the justice, the magistrate has no power to examine into when person
charged apthe merits of the case, but is bound by the express terms pears. of the statute to commit him to the common gaol or house of correction, unless he gives security to indemnify the parish, or enters into a recognizance, with sufficient surety, to appear at the next sessions, &c. and abide and perform such order or orders as shall be made in
pursuance of the 18 Eliz. c. 3. except in certain cases provided for by 49 Geo.III. c.68. in which his appearance may be dispensed with. These are, 1. When one magistrate certifies under his hand, to such sessions, that it was proved to him, on oath of a credible witness, either that the woman was not delivered, or was so, within the month previous to the day of holding the sessions. 2, When two justices certify to the next; or if the woman shall not be delivered at the next, then to the immediately subsequent sessions, that an order of filiation has been made, or that it is unnecessary on account of the child's death, or for other like sufficient reasons; and the sessions are required, in the first cases, to respite, and in the second, to discharge the recognizance, without requiring the personal attendance of the father, or his surety. (2)
(1) Dickson v. Brown, Peake's Ni. Pri. Cas. 234.; and see Mayhew v. Parker, 8 Term Rep. 110.
(2) As to the effect of this security or recognizance and remedy thereon, see post. 317. sect. 10., and the party's appearance at sessions, under the commitment, post. VOL. II.