I. Situation of a Bastard with respect to Inheritance.

A bastard can be heir to no man. 2 Inst. 143.

II. Who shall be deemed a Bastard.

In the case of Lomax and Holmden, evidence was admitted of the inability of Caleb Lomax, esq. to procreate children; but as such evidence only went to an improbability, and not to an impossibility, it was not thought sufficient, and a verdict was given for the plaintiff. Str. 940.

In the above decision, and many others, the old doctrine of the husband's being in the four seas is exploded, where non access can be proved.

T. 10 G. 2. K. v. the inhabitants of Redall, in the county of York. An order was made on one Moor, as the putative father of two bastards, bord of the body of Elizabeth, the wife of Richard Sharpless; in which it is set forth, that for seven years before, the husband had no access to her, she never having seen or heard from him during all that time, and not knowing whether he was alive or dead, which the justices adjudge to be true, and that Moor is the father of the said two bastards, and order him to provide for them accordingly. On appeal to the sessions, the case was stated with some variation, viz. That in 1728, Elizabeth was married to R. Sharpless, then a soldier in Mullin's troop, in a barn, by a person not in the habit of a clergyman: that there had been no access for seven years: but it appearing by a certificate tfrom the commissary general's office, dated 7th of April 1737, and from the evidence of Simon Clarkson, that one Richard Sharpless, who he was told was formerly in Mullin's troop, was mustered as a private gentleman in the third troop of horse guards, from the 25th of June 1733, to the 23rd Feb. 1736, though Clarkson said he could not take on him to swear that it was the same Richard Sharpless, pretended to be married as aforesaid; on this supposition of the husband's being alive, the sessions were of the opinion the children were not bastards, and reversed the order made by the two justices. And now on debate, the order of sessions was quashed, and the order of the two justices confirmed: for it being stated in both orders, that there was no access, according to the case of Pendrel v. Pendrel, H. 5 G. 2. it was immaterial whether the husband was alive or not; but if it was material, here is no evidence to prove it, the indentity not being sworn to: or if it was sworn to, yet the evidence of his being alive was improper to have been received, and even the marriage itself doubtful. Str. 1076.

Also in the case of K. and Rooke, M. 26 g. 2. it came out in the examination of Dorothy, the wife of the reverend Mr. Henry Beard, that she had not seen or been with her husband, from Michaelmas 1750 to February 1752, and that John Rooke had carnal knowledge of her on the 30th of January 1750, and got her with child of the bastard. This case being similar to the case of K. and Reading, it was determined on that authority. 1 Wils. 340.

If the husband be under the age of fourteen years, the issue are bastards; for before the age of puberty, generation is naturally impossible. Co. Litt. 244. 1 Rol. Abr. 359.

III. Method of proceeding against the reputed Father.

In the above statute of 6 G. 2. c. 31. s. 1. it appears that the justice may commit the reputed father, unless he shall give security to indemnify the parish, or enter into recognizance, with surety, to appear at the sessions.

Where the child, under seven years of age, goes with the mother for nurture, the parish where the child is born, and not that where it resides with the mother, is bound to maintain it. This was adjudged in the case of Darlington and Hemlington. H. 17 G. 3.

And in the case of Simpson and Johnson, M. 19 G. 3. a similar case was determined in a similar manner. Douglas.

Where security has been given in one parish, and the mother removes into another before the child is born, the parish where such child was born must support it. Id.

IV. Order of Filiation and Maintenance by the Justices.

If security has not been given for the indemnification of the parish against a bastard child, the next consideration is the order of filiation and maintenance to be made by the justices.

Two justices.] A single justice may bind to the good behaviour, a person who is charged or suspected to have begotten a bastard child. Crom. 196. Dalt. 44. But the two justices cannot make any order pursuant to this statute, unless the child has been a charge to the parish. Comb. 39. Vent. 37, 363.

Next to the limits where the parish church is.] By this measuring, as it were, from the parish church, it seems that no other justices can intermeddle; and in this matter the statute of the 18 Eliz. is different from most other statutes: for generally, where power is given to two justices, the statutes express that two or more justices may do such a thing. 1 Barn 197.

One of the quorum.] Many orders have been formerly quashed, for omitting to set forth, that one of the justices was of the quorum. Dalt. c. 47. But now by the 26 G. 2. c. 27. no order shall be quashed for that defect only.

An order made by two justices was quashed, because it was made on an affidavit brought to them without the examination of any witnesses. Comb. 103.

Shall and may by their descretion.] As the time is not limited for proceeding in this matter, the order may be made at any time after the birth of the child.

But by the 6 G. 2. c. 31. if the reputed father is in prison, and no order shal be made in six weeks after the birth of the child, he may be discharged from his imprisonment; but the order made upon him afterwards will nevertheless be good.

Reputed father.] They must adjudge him the father of the child. 1 Sid. 363. Dalt. c. 52.

Take order for the keeping.] Herein they must proceed as in all other like cases, by giving the party accused an opportunity of being heard in his defence. 1 Sess. c. 179.

E. 8 G. 2. K. v. Taylor and Neal. Motion in the King's Bench for an information against the defendants, two justices of Devonshire, for making an order on one Nicholas Mould, adjudging him to be the putative father of a bastard child, without summoning him, and also for refusing to hear his witnesses. On shewing cause, it appeared that he was summoned by a third justice, which the court held to be sufficient. And by lord Hardwicke, Ch. J. If the party, being summoned, neglect to attend himself, there is no reason the justices should hear any defence made for him; for if that were allowed, no offender of this sort would appear; therefore the justices in this case acted right. And it is but as this courty does, when orders of bastardy are removed hither by certiorari: for we never allow any exceptions to be taken to the order, unless the party attend in person, that the court may take care of him, and make him indemnify the parish, if the order is good. 2 Sess. Cas. 192. Cas. Temp. Lord Hardwicke 112.

An order that the reputed father shall pay so much till farther order, was quashed; for that farther order might be 40 years hence. 2 Shaw. 129.

An order that the reputed father should give such security as the overseers or churchwardens shall think fit, is not good; for, by such order, the justices delegate their authority to others. 2 Salk. 477. Dalt. c. 47.

An order to pay so much money a week till the child is fourteen years of age, is not good; for the justices have no power but to indemnify the parish, and that is done by obliging the father to maintain the child, as long as it may be chargeable to the parish. 1 Salk. 121.

An order that the father should pay so much weekly, without saying how long, is not good; for it should be so long as it is chargeable to the parish. 2. Keb. 575. 2 Salk. 480.

M. 1 G. 2. K. v. Street; an order was made to pay so much weekly, till the child was nine years of age, or if it should live so long. By the court: It is a good order, for we cannot intend it able to provide for itself sooner. 2 Str. 788.

With the payment of money weekly, or other sustentation for the relief of such child.] That is, to the overseers, for the use of such child.

And to the same purpose is Sherman's case, E. 24 C. 2. An order was made that the father should pay so much a week, till the child should be able to get its living by working: it was said by Twisden that this order could not be good; for perhaps the father would take it away and maintain it himself, which he may do if he pleases. 1 Ventr. 210.

But it does not seem to be a settled point that the reputed father of the bastard can take it away, notwithstanding the cases above cited, and that of Richards and Samson, T. 2 C. 2. 2 Sanders 83. For in the case of Q. and Smith, E. 11 Ann. Order to pay 1 s. a week till the child is eight years old. It was objected, that it should be as long as the child is chargeable: possibly he may gain a settlement; or a person may give to him an estate; or the father may take him. By the court: This is only a remote possibility. As the the father's taking him, he ought to have done it at first; and by suffering the order to be made, it shall be deemed a refusal in law; besides, he shall not then be suffered; he may sell him, or make away with him, as too often happens. Cas. of S. 64.

However, in the case of Newland and Osman, T. 27 G. 2. which was determined in favour of the former opinion, three of the justices argued in favour of that decision and one against it. Their opinions were formally delivered in the following words: Lee Ch. J. The right way is, to make the order, so long as the child shall be chargeable. It is not to be limited to any certain time. And the reason given in all of these cases, is that the father or mother may take it before the time. The intention of the statute of Elizabeth was, to have a provision for the bastard, and at the same time to indemnify parishes. And the law could never think of taking the care and education of children from their parents. Nor could this enter into the mind of any judge. Wright J. I never did hear before, that the care of the child devolved upon the parish, where there was any other person to take care of it. They are obliged to maintain the child, where it is in danger of starving. This court has constantly held, that the father has a right to take it away, by quashing the orders made in manner above mentioned. This is not a collateral excuse; but such an one as will save the penalty. And I cannot see that the parish as any sort of right or interest in the child. ----- Dennison J. The material objection taken to this plea is, whether or no the putative father of a bastard child can, by the law of England, take his bastard child from the parish. I never did hear this doubted before. And I think that the notion that he cannot, is not to be countenanced nor encouraged. The law does not suppose, that a man will not maintain his own child. It is said, thae next heir is not to be trusted with the guardianship. I am sorry that it was ever introduced into the law of England. It is an injurious notion of the people of England. I will rather suppose, that the parish officers will be cruel to the child, than the father. All the cases admit tacitly that the father hath such a power. And some of them say so expressly. And I am very well satisfied that the law is so. Inhabitants, churchwardens, overseers, are all the same; and every part of the condition is answered. ----- Foster J. I am not so clear in these points. I think the care of educating bastard children is not to be considered as a burden on the parish, but as a trust; and that it should not be so easy for fathers to take them out of their care and custody. The statute is express, that the justices shall order the father to contribute to the parish for the maintenance of the child. Tho' it is not to be supposed that fathers will destroy their bastard children, yet they may look upon them as a burden and a shame, and therefore either neglect them, or put them into improper hands. The resolutions and order of justices of the peace have been grounded upon this; not for requiring security till the child came to a certain age, but because the order intended the age too far. Therefore I am not so clear. The case in Saunders was only his own opinion. MS.

This point has undergone various decisions and discussions. In the case of Holland against Malken and Bristow, T. 33 and 34 G. 2. In the Common Pleas (which was a suit upon a bond for indemnifying the plaintiff from the charges of a bastard child, but it went off upon an error in the pleadings). The court said, We need not in this case declare, whether the father or the mother has a right to have the child under seven years of age. And by the lord chief justice Wilmot: I give no opinion, whether the father has any power over the child, who is nullius filius: Grotius says truly, the mother is the only certain parent; and an order of justices to remove the mother always removes the child. 2 Wils. 126.

To be committed.] By this statute, till default shall be made, the justices have no power to commit, or to require sureties for perfomance of the order, or for appearing at the sessions. 3 Salk. 66. 1 Barnardist. 261.

But by the 6 G. 2. c. 31. one or more justices, either before or after birth, may commit him to the gaol or house of correction, unless he shall give security to indemnify the parish, or otherwise enter into recognizance to abide such order or orders as shall be made in pursuance of the act to the 18 Eliz.

But, upon the removal of the cause by certiorare, the court of King's Bench may either reverse the order wholly, or in part; and, though they reverse the order for irregularity, yet, will they oblige the father to give security to appear at the next sessions, to abide such further order as shall then be made. 2 Salk. 477.

Which may be chargeable.] The child must be chargeable to the parish; therefore if the father, or any other maintains it, it seems she is not to be punished by this statute. Dalt. c. 46.

Order to provide for a bastard child. Exception was taken that the order does not set forth that he is chargeable to the parish, or likely to be so: and quashed by the court. Comb. 39.

But in the case of K. and Matthews, H. 8 W. exception was taken that the order does not set forth that the child is likely to become chargeable: this exception was over-ruled, because it is self-evident that every bastard child is likely to become chargeable. 2 Salk. 475, 6.

Justices of the peace.] It must be by two justices at the least. Dalt. c. 46.

E. 2 Ann. Q. v. Chaffey. Several ordered made by the jusices of peace in Wilts against the defendant, for being the putative father of a bastard child, were removed into this court by certiorari. It was moved to quash one of them, which was made by the justices, that the churchwardens and overseers of the poor should seize on the defendant's goods, what they should judge proper, to secure the parish from the maintenace of the child, because 13 and 14 Car. 2. c. 12. they only have the authority to empower the churchwardens and overseers, &c. to seize what the justices should judge proper, and not what the churchwardens, &c. should judge proper, &c. and for this reason it was quashed. Lord Raym. 858.

By the 3 C. c. 4 (which was at first temporary, and afterwards declared to be in force until some other act of parliament should be made touching its continuance or discontinuance, which other act was never made) after mentioning the statute of the 18 Eliz. proceeds thus: "And so much of an act made in the 18th year of the reign of the late queen Elizabeth, intitled, An act for setting the poor on work, and avoiding idleness, as concerneth bastards begotten out of lawful matrimony, shall be continued: and all justices of the peace, within their several limits and precinct, and in their several sessions, may do and execute all things concerning that part of the said statute, that by justices of the peace in the severl counties are by the statutes limited to be done."

E. 10 C. Slater's case. William Slater was charged by Elizabeth Eton, with the getting a bastard child on her body. The two next justices did not make any order in it, according to the statute of 18 Eliz. But the cause came first to be heard at the sessions, where the justices ordered that Slater should be discharged of the child, and adjudged Alexander Leigh to be the reputed father. Afterwards, on complaint to the judges of the assize, the judges ordered that two of the next justices to the parish where the child was born (naming them) should take consideration thereof, according to the statute, and settle such course therein as to such justices appertained: whereupon those two justices declared the said William Slater to be the reputed father; and, on his refusing to pay the sum ordered by them for the maintenance of the child, they committed him. Upon the removal of the proceedings into the court of the King's Bench, these two points were resolved by the whole court: 1. That, before the statute of 3 C. the sessions had no authority to meddle in the case of bastardy, till the two next justices, according to the statute of 18 Eliz. had made an order therein; and that then, and not before, on the party refusing to perform the order, and giving security to appear at the next sessions, and abide by such order as the justices then and there should make, the justices at the sessions might make a new order; otherwise not. 2. That by the statute of 3 C. the justices in sessions have power originally to make any order; and therefore that the first order made by the sessions, was, in this case, good and legal; and the second order made by the next two justices, void' and could not alter or revoke the order which was first made, with good authority. Cro. Car. 470.

Whatever might have been the primary intention of the statute, the point seems now to be settled, that the sessions have power to make an original order in case of bastardy.

But, after an order of two justices, the sessions cannot make an order, but on appeal. As in the case of K. and England, H. 8 G. two orders of bastardy were returned, one made by two justices, and another original order made at the sessions; and both were quashed. The order of the two justices becuase neither the son of the bastard, or the name of it, was mentioned; only a certain bastard child, born of the body of A; and the order of the sessions, because there being an order of two justices before, the sessions had no jurisdiction but on appeal. Str. 503.

V. Of the Care and Precision required in executing the Laws of Bastardy.

In the order of filiation and maintenance, much precision and attention is required. Many orders have been quashed, as we have already observed, for want of setting forth that one of the justices was of the quorum; but that danger no longer exists, the statute of 26 G. 2. c. 27 having provided that no order shall be quashed for that defect only.

As only the parish where the child is born is to be indemnified, if the bastard has acquired a settlement elsewhere, the father is then discharged.

T. 2 G. 2. K. and Browne. On an order of bastardy, is was stated, that the husband had been absent six years, and that, during such absence, the defendant had carnal knowledge of his wife, and therefore they adjudge him to be the putative father. But by the court, this order must be quashed; for his lying with her is not a sufficient reason to infer him the father of this child: and though the justices need not shew the grounds they go upon; yet if they do, and it apears no sufficient ground, their order will be bad. Str. 811.

M. 13 G. K. v. Tenant. Several orders of bastardy were removed into the court of King's Bench by certiorari: the first order was made by the two justices of the peace for the West-Riding or Yorkshire, on the defendant to keep a bastard child, as being the reputed father. From this order the defendant appealed to the quarter-sessions; and the justices at the quarter-sessions, on a full hearing of the merits, discharged the order of the two justices, but bound the defendant by recognizance to appear at the next quarter-sessions, as it was supposed, under apprehension, that better evidentce might be procured against him. After this the same two justices made a new order against him for keeping this bastard child. And all these orders being removed into this court, the court quashed the last order of the two justices; for they having made an order on the defendant to keep the child as reputed father, and that order being regularly discharged on appeal, on hearing the merits the defendant was legally acquitted, and cannot be drawn in question again for the same fact. 2 Raym. 1423. Str. 716.

T. 15 G. 2. The parish of Lydlynch v. The Parish of Hilton. The case of the New Windam v. White Waltham, T. 5 G. turning chiefly on the certificate being conclusive to the parish which gave it, and certified two persons, as man and wife; it now came before the court and was determined, that the bastard of a certificate person is settled where born, and is not a child to be sent back within the meaning of the statute. Str. 1168.

E. 10 G. K. c. Godfrey. An order made on the defendant to maintain a bastard child was quashed, because though in the complaint it was alledged the child was born in the parish of Hitchin, in Hertfordshire, yet there was no adjudication by the justices, nor no words of the justices from whence it could be collected in what parish the child was born. And a case was cited, The Queen v. Beddington, E. 10 Ann. where such an order was quashed for this very exception. 2 Raym. 1363.

In the case of K. and the Inhabitants of St. Peter and St. Paul in Bath, T. 22 G. 3. with regard to settlement of bastard children by birth, workhouses (where they are not situated in that parish to which they belong) are considered as part of that parish to which they belong) are considered as part of that parish whose property they are; and not of that in which they are locally situated. Caldecott's Rep. 213.

T. 9 G. St. Gile's Parish in Reading v. The Parishes of Eversley and Blackwater. By the court: Bastard children gain a settlement only prima facie, till the legal settlement is known, and no longer; and the reason is, because the children should not become vagrants. 8 Mod. Rep. 170.

If the two justices make an order, and the party appeals to the sessions, and they alter or discharge (upon the merits), or confirm that order, no other sessions can order any thing contrary thereto; for the order, upon the appeal, is final. Cro. Car. 350.

VI. Of murdering Bastard Children.

It has been adjudged that, to convict a woman upon this statute, the indictment need not be drawn specially, nor conclude against the form of the statute; for the statute does not make a new offence, but only makes such concealment an undeniable evidence of murder. 2 Haw. 438.

But, if a woman great with child shall take, or another giver her any potion to procure an abortion, or if a person strikes her whereby the child within her is killed, though the crime is great, it is not murder or manslaughter by the law of England, because it is not yet in rerum natura, nor can it be legally known whether it were killed or not. 1 H. H. 433.

However, should the child be born alive, and afterwards die of the poison or wounds it received in the womb, it is murder in those who administered or gave them. 1 Haw. 80. 4 Blackst. 198.

And if a person shall procure a pregnant woman to destroy her infant when born, and the child is born, and the woman in pursuance of that procurement kills the infant; this is murder in the mother, and the procurer is accessary. 1 H. H. 433.

VII. Settlement by Birth of Bastards.

But in the case of New Windsor and White Waltham, the point turned chiefly upon the certificate's being conclusive. The court said it stood entirely on the 8 and 9 W. which, for the encouragement of labour and industry, gave powers of removing persons by certificate; which certificate obliges the parish to whom given to receive and continue them in that parish, till they became actually chargeable, and then such person is to be removed, together with his or her family; and, in another place, with his or her children, to the place from whence the certificate was brought. The question is, Whether the bastard is included under the words family, or children? And we take it he is not: for the law takes no notice of bastard children; they are filii nullius, filii populi, and are prima facie settled where born. Str. 1168. Burr. Scitl. Cas. 187.

T. 19 & 20 G. 2. K. v. The inhabitants of Wyke. On a motion to quash an order of two justices made to remove John Cotton, his wife, and children, in which order the wife was stated to be pregnant with a bastard child, and the certificate expressly undertakes to provide for her and her child. Lee, chief justice, and Wright, justice, agreed that they must take the child referred to by the certificate to be a legitimate child then in being. Foster, justice, observed (which the other two justices agreed to), that it did not appear that the parish which gave the certificate knew that the woman was then with child; and he added, that there were many instances where women were near their time, without being known to be so. By the court: Let the rule be made absolute; whereby the order of sessions was quashed, and the original order was affirmed, adjudging the settlement to be at Hipperholme, where the pauper was born. Burr. Settl. Cas. 264.

But where a certificate expressly acknowledges the child in ventre sa mere, and contains an engagement to receice, relieve, and provide for that, as well as the mother, when requested, it has been determined otherwise; as in the case of Ipsley and Studley, M. 10 G. 3. Anne Causier, then pregnant with a bastard child, came into the parish of Ipsely, with a certificate from Studley, in the words following: "To the churchwardens and overseers of the poor of the parish of Ipsley; We the churchwardens and overseers of the poor of the parish of Studley do hereby certify, own, and acknowledge Anne Causier, spinster, and the child or children that she now goeth with, to be our inhabitants legally settled with us in our said parish of Studley; and if at any time hereafter the said Anne Causier, or her child or children which she now goeth with, shall become chargeable to and ask relief of your said parish of Ipsley, we the said churchwardens and overseers of the poor of our said parish of Studley do hereby promise, for ourselves and successors, that we wil, when requested by any of you, receive, relieve, and provide for them, as our inhabitants, according to the law in that case requires." The child was born at Ipsely, in about a month after she camme to reside there under the certificate. It was argued, that the certificate, in this case, could not operate as to the unborn child, but that it was notwithstanding settled in the place where it was born, that this is not a certificate within the act of 8 & 9 W. c. 30. The undertaking relates to a non-entity, an embrio. An unborn child cannot be personally certified. It is no part of the parent's family. And the act obliges only the certifying parish to provide for the pauper mentioned in the certificate, together with his or her family; and a bastard in the sense of the act is part of no person's family. But the court were clearly of the opinion, that the parish of Studley was bound by this certificate, which takes notice of the woman's being then unmarried and with child, and acknowledges the child she then went with to be legally settled with them in their parish: and lord Mansfield observed, that the woman was very big with child, and was understood by both parishes to be so; and Studley expressly promised to provide fo the infant she then went with; therefore they ought to be bound by their certificate. An infant in ventre sa mere may be, to a variety of purposes, considered as born. Burr. Settle. Cas. 650.

It seems, however, that if the mother shall voluntarily desert her child, it may be sent to its place of settlement, as the cause of nurture then ceases. 3 Burn 363.