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able them to seize so much of their goods and chattels, and receive so much of the annual rents and profits of their lands, as shall be ordered by the said justices, for or towards the discharge of the parish, and the bringing up and providing for the child.
This order must be confirmed at sessions, and thereupon the sessions are to make a further order for the overseers to dispose of the goods by sale or otherwise, or so much of them, for the purposes aforesaid, as the court shall think fit; and to receive the rents and profits, or so much of them, as shall be ordered by the sessions. (1)
An order, by which the churchwardens and overseers Order bad. were directed to seize what they themselves should think proper of the defendant's goods, to secure the parish from the maintenance of the child, was quashed as bad; because by 13& 14 Car. II. c. 12., the justices have only authority to make an order enabling the churchwardens to seize what the justices should think proper. (2)
VIII. Of Indictment.
If an order has been made, and the party disobeys, he is liable to be indicted in the same manner as for disobedience of any other order, made either in or out of sessions by magistrates possessed of competent authority. (3) And the parish are not prevented from proceeding to enforce an order by these means, although a recognizance which
(1) 13&14 Car.II. c.2. s.19. The provisions of this statute correspond with those of 5 Geo.I. c.8. which is copied from it, and it seems as if they must be construed in the same manner. For the construction of 5 Geo.I. see Stable v. Dixon, ante, 268. (1).
(2) Reg. v. Chaffey, 2 Ld. Raym. 858. See also Stable v. Dixon, ante, 268. (1).
(3) Ante, 265. and, query, whether this remedy is altered to any, and what extent by 49 Geo.III. c.68. s.3.
has been taken is forfeited, and the penalty recovered in the exchequer; for the disobedience is a crime, and as such, becomes the subject of specific punishment The recognizance is taken as a pecuniary caution from the party to ensure his obedience; but its being forfeited by an act of disobedience does not get rid of the crime. It is like the case of security taken to prevent a breach of the peace. If the party break the peace afterwards, his recognizance is forfeited, but that does not prevent his being indicted for an assault.
Of the Punishment of the Mother and reputed Father.
GETTING an illegitimate child was not punishable as a crime at common law. (1) But the 18th of Elizabeth expressly considers the producing bastards as an offence; not only the getting or bearing the child, but the leaving it to be a burthen on the parish, and defrauding the relief of the true poor of it. Therefore, the justices may order a proper punishment of the parents, and also take order for maintaining the child in relief of the parish. They may do either or both (2), but "the statute seems only to go to the punishment of the parents, for the purpose of securing an indemnity to the parish." (3)
The words of 7 Jac. I. c. 4. are, "That every lewd woman which shall have any bastard which may be chargeable to the parish, the justices of the peace may commit," &c. from which words Lord Coke infers, that "if she will dis
(1) Per Lord Mansfield, Rex v. Westmeon, Cald. 129.
(2) Per Wilmot J., Rex v. Ellen Taylor, 5 Burr, 1679. ante, 321.(4). See also Rex v. Bowen, 5 Term Rep. 156.
(3) Per Lord Mansfield, Rex v. Westmeon, ut supra.
charge the parish of the keeping of the bastard, she cannot be punished by this statute, but by that of 18 Eliz. c. 3.” (1)
c.4. first offence is that of which she
It was also held upon 7 Jac. I c..4. that the mother of a Under 7 Jac.1. bastard child should not be punished upon that statute, as for her second offence, unless she has been before questioned and punished for her first offence. She might have been is first conpunished for her first offence, either by the statute 18 Eliz. c. 3., or 7 Jac. I. c. 4.; but is not to be punished by the 7 Jac. I. c.4. s. 7. as for her second offence, unless she has been before punished for her first; but this second offence shall be now taken and deemed as her first offence, and so is to be punished for the same, according to law. (2)
It had likewise been resolved by the whole court, that in cases of bastardy "the justices have not authority to commit the woman to prison for life, for the first offence." (3)
But 50 Geo. 3. c. 51. sect. 1. repeals so much of 7 Jac. 1. 50 Geo.III. as relates to the commitment of women to the house of correction, there to be punished and set on work for having bastards who may be chargeable to the parish.
Sect. 2. empowers any two justices before whom the woman be brought to commit her to the house of correction for the district or place (4), there to be set at work for any time not exceeding twelve calendar months, nor less than six weeks.
Sect. 3. enables any two justices, at any petty session for the division in which the parish to which the bastard may
(1) 2 Inst. 753. and that the parents are not punishable under 18 Eliz. unless the child be chargeable to the parish. Lightfoot v. Pigot, 1 Roll Abr. 37. Pl. 12. Winter v. Barnard, ibid. Macksey v. Mazey, Comb.434. Per Lord Mansfield, Rex. v. Westmeon, ante, 336. (1), and see Crompt. 196. s.8. Dalt. c.11.
(2) 1 Bulst. 348.
(3) Slater's case, Cro. Car. 471.
(4) Ib. Ut videtur, within which the parish is situate. See sect. 3.
be chargeable is situate, upon their own knowledge, or certificate duly authenticated from the keeper of the house of correction, in which the woman shall have been confined not less than six weeks, of her good behaviour during her confinement, and the reasonable expectation of her reformation, by warrant under their hands and seals, to order her immediately, or at the time to be appointed in such warrant, to be released from further confinement.
Sect. 4. prohibits her commitment until she has been delivered for one calendar month.
Of Parish Apprentices.
MUCH of the law respecting apprentices has been discussed when treating of settlements gained in that capacity. (1)
The remaining question respects the binding out appren- Statutes retices by the parish, as the means of providing for their specting parish education and maintenance. It is regulated by 43 Eliz. c. 2.
s.1.5. 8&9W.3. c. 30. s. 5.
18 Geo. III. c. 47. 20 Geo. III. 42 Geo. III. c. 46. 51 Geo. III. 56 Geo. III. c. 139.
Of the Power to put out Apprentices; who may be compelled to serve, and whom.
It is in the discretion of the churchwardens and overseers (as appears by the preamble 43 Eliz.) to select for this purpose such children as they shall think their parents are unable to maintain. (2)
1. Of the condition of those who are to be bound.
Churchwardens to select.
(1) Ante, Vol. I. chap.xxi.; and particularly as to the binding of parish apprentices see ante, ibid.
(2) Per Holt C. J., Rex v. Crosse, Comb. 289. 1 Bott, 608. Pl. 842. In answer to an objection to an indictment for refusing an apprentice, "That it was not averred that the parents were not able to maintain the child."