ascertained by oath before the justices in, or out of, session, making the order. § 1. woman is not delivered, or not delivered a month, or an order has been It then proceeds to give the like powers, as had been previously given by the former statutes, to justices, to grant their warrants for the apprehension of reputed fathers, to compel them to give security for the indemnifying of their respective parishes, or to abide the order of session, but with this addition, viz. "unless one such justice shall certify in Certificate that writing to such session that it had been proved before him, upon the oath of one credible witness, that such woman had not been delivered, or had been delivered within one month previous to the day of the session; or, unless two justices of made. the county, &c. shall certify in writing to the session that an order of filiation had been already made on the person charged; or of the child being dead, or other like sufficient reason why such order is not requisite to be made. In each of which cases firstly before mentioned, it shall 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, riding, division, city, or town corporate, without requiring the personal attendance of the putative father so bound, or of that of his surety or sureties, and in either of the said two last mentioned cases, it shall be lawful for the justices, assembled as aforesaid, wholly to discharge such recognizance." § 2. formance of the tenance. Having thus provided, then, for the additional indemnity Summary reof the parish against the incidental, as well as the principal, medy for perexpenses, as also for the liberty of the reputed father, in order of mainthose cases where his appearance before the session is unnecessary, it proceeds to provide a new and summary remedy for the performance of the order, when actually made, as follows: in certain cir "If any reputed father, or any mother, of any such bas- Recognizance tard child, on whom any order of filiation or maintenance cumstances to of any such child shall have been made by the court of be discharged. quarter sessions, or which shall have been made by two justices, confirmed by the court of quarter sessions, shall neglect or refuse to pay any sum 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, by any such order, it shall be lawful for any justice of the county, riding, division, city, liberty, or town corporate, which such reputed father, or such mother, shall happen to be; and he is required, upon the complaint made to him by one of the overseers of the poor of any parish, township, or place liable to the maintenance or support of such bastard child, or where such bastard child or children shall then be, and upon proof on oath of such order for the payment of such sum of money, and of such sum 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 same county, &c. to answer such complaint; and if such reputed father, or such mother, shall not pay such sum 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 he is 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 overseers of the poor of the parish, township, or place, on whose behalf such complaint as aforesaid was made, the said sum of money so due and unpaid as aforesaid, and so from time to time, and as often as such reputed father, or such mother, shall, in manner aforesaid, neglect or refuse to pay any other sum 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 as aforesaid." § 3.* * It has been contended, and, indeed, within the author's knowledge, Eliz, extended to this act. The statute then provides that, "all such charges, ex- Powers of 18 penses, and costs, shall be wholly subject to the discretion of the justices, or court of quarter session, who shall make out such order of filiation; and the said justices, or court, are authorized, if they shall see fit, to allow, and order payment of, the whole or any part thereof; provided that they shall not, in any case, exceed the sum of ten pounds; and for securing the due payment of the same, after such allowance and order, all the powers and authorities contained in the said act, passed in the eighteenth year of the reign of Queen Elizabeth, concerning bastards, shall be observed, used, and practised in the execution of this act." § 4. admitted in practice, that as this statute peremptorily directs the commitment of the father by the warrant of a justice for his disobedience of the order, and that too toties quoties, the penalty is thereby complete, and the sureties absolved. If it be so, the statute so far from having been made, as it is recited, for the further indemnification of parishes, places them, in certain points, in a worse situation than they were under the former statutes, by exonerating the sureties in consequence of the personal punishment of the father. The statute appears to have had, in this particular section, two objects in view. First, to give the justices a power of indemnifying the onerated parish against certain expenses beyond the mere accouchement of the mother, and the maintenance of the child, which they had not by any anterior authority; secondly, to provide a summary remedy for the punishment of the offender, instead of the former circuitous one by indictment for disobedience. The sureties are not so much as mentioned, and therefore, it should seem, were designed to be left in precisely the same situation as the former statute of Elizabeth had placed them, intending to make no alteration but what is favourable to the interests of the parish, both with respect to pecuniary indemnity, and compendious prosecution. If the construction above introduced prevail, the statute, instead of being one for the further indemnity of parishes, and the punishment of fathers of bastard children, may more appropriately be entitled an "Act for the indemnity of sureties, and the punishment of parishes, by diminishing their means of indemnity." In the instance, indeed, of an original order being made by the justices in session upon a person who has not previously been bound by recognizance, with sureties, before a justice out of session, the personal punishment of the father is all that can be resorted to by the parish to compel payment under the order of maintenance; but that consideration does not bear upon the subject, where the proceedings are altogether according to the directions of the statute of Elizabeth. Appeal. Not to be heard unless the regu. An appeal is then given to the sessions, from the order of two justices, where the parties complaining shall have originally proceeded according to that mode, in the following words: "Any person who shall think himself aggrieved by any order made by such justices, under the provisions of this act, and not originating in the quarter session, may appeal to the next general quarter session of the peace, to be holden for the county where such order shall be made, on giving notice to such justices, or to one of them, and also to the churchwardens and overseers of the poor of the parish, on whose behalf such order shall have been made, or to one of them, ten clear days before such general quarter session, at which such appeal shall be made, of his intention of bringing such appeal, and of the cause and matter thereof, and entering into a recognizance within three days after such notice, before some justice for such county, with sufficient surety conditioned to try such appeal, and abide the judgment and order of, and pay such costs as shall be awarded by the justices at such quarter session, which said justices, at their said session, upon proof of such notice being given, and of entering into such recognizances as aforesaid, shall proceed in, hear, and determine the causes and matters of all such appeals, and shall give such relief and costs to the parties appealing, or appealed against, as they in their discretion shall judge proper; and such judgments and orders therein made, shall be final, and conclusive to all parties concerned." § 5. After the passing of this act, no appeal in any case relar notice has lating to bastardy, shall be brought, received, or heard at been given. the said quarter sessions, unless such notice shall have been given, and such recognizance shall have been entered into in manner aforesaid according to the provisions of this act." § 7. Grounds of re sistance to or ders of mainte nance of bas tard children. It may be useful, here, to notice the general ground on which resistance to the order of justices, by way of appeal, or even to original order of sessions, must generally, from the nature of the subject, be grounded. The mother of the bastard being the only person who can be in complete possession of all the circumstances relative to her connections with the other sex, her declaration on oath, with respect to the father of her child, must of course be deemed conclusive, unless it be rebutted by some legal inference, or by such other testimony as shows that she must necessarily either have been in an error, or have sworn a falsehood; which, generally speaking, can only be done by proof of non-access within time, which would show her at least in an error; or by other proof sufficient to throw an entire discredit upon her testimony in the particular case, which would tend to prove her guilty of wilful falsehood. It would carry us beyond all reasonable bounds, to'put every possible way in which the charge of bastardy may be proved, or resisted. A few general rules are all that can be resorted to, conformably with the design. If the person charged as the father be an eunuch,* under puberty, † or absent too long to have possibly had access within the period necessary for gestation, he cannot be the father of the child. A married, as well as a single woman, may have a bastard child, and these rules apply to both; for a married woman may have a child within the description of a bastard by the statute, if non-access of her husband within the limits of natural gestation be proved. The proof is the only question of difficulty for the court. bastard can only be admit ted to prove her own incon It has been repeatedly determined that the wife can be a Mother of a witness to no fact whatever but of incontinence, and that ex necessitate rei; but that non-access, and every other fact which may be disputed, must be proved by other witnesses, tinence. if proved at all. This is a rule of universal application, to whatever point in the particular case it tend, and whomsoever it is to charge, or to exonerate. § Having stated how proof of non-access is to be given, it is necessary next to show what is considered as proof itself of nonaccess. Actual absence of the husband beyond sea was formerly considered as the criterion with respect to a married woman; but that rule has been considerably relaxed of 2 Str. 925. 1076.-Pract. Expos. title, BASTARDY, sect. 1. § 2 Sess. Ca. 175.-6 T. R. 330.-8 East's R. 193. |