: From ''The present practice of a justice of the peace; and a complete library of parish law'', vol 1, pp270-302, 1790.

<table/hidden a/sidebar, b> a: b/centre: Bastard. a: b:''I. Situation of a Bastard with respect to Inheritance.'' ''II. Who shall be deemed a Bastard.'' ''III. Method of proceeding against the reputed Father.'' ''IV. Order of Filiation and Maintenance by the Justices.'' ''V. Of the Care and Precision required in executing the Laws of Bastardy.'' ''VI. Of murdering Bastard Children.'' ''VII. Settlement by Birth of Bastards.''

''I. Situation of a Bastard with respect to Inheritance.''

a: Derivation of bastard. b: BASTARD (''bastardus'', from the British ''bastaerd'', ''spurious'') is one who is born of any woman not married, so that his father is not known by the order of law; and therefore is called ''filius populi'', ''the child of the people''. The learned Spelman derives the opprobrious name of bastard from the Norman ''bas'', and Saxon ''steort'', ''rise'', or ''original''; as a person of a base and spurious birth.

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

a: He is the first of his family. b: He is the first of his family, for he has no relation of which the law takes any notice; but this must be understood as to civil purposes; therefore he cannot marry his own mother, or sister or the like. ''3 Salk. 66''.

a: He may purchase. b: A bastard is born with no reputation; but after he has obtained by time a name of reputation, he may purchase by his reputed name, to him and to his heirs, though he can have no heirs but of his own body. ''1 Inst. 3. 6 Co. 65''.

a: Bastard dying without issue. b: If the issue of a man who is a bastard purchase land, and die without issue; though the land cannot descend to any heir on the part of the father, yet to the heir on the part of the mother (being no bastard) it may; so if the bastard was attainted; for the heirs on the part of the mother make not any conveyance by the bastard. ''Noy 159.''

a: Female bastard. b: If a man, in consideration of natural affection and love, covenants to stand seised to the use of a bastard, this is not good; for he is not ''de sanguine patris''; but it is said that a woman may give lands in frank-marriage with her bastard, because he is the blood of the mother; but he has no father, except only from reputation. ''Dyer 374. Co. Litt. 123. b. 2 Roll. Abr. 785''.

a: A bastard dying intestate. b: If a bastard dies intestate, leaving neither widow nor issue, the king is entitled to the personality; and the ordinary of course grants administration to the patentee or grantee of the crown. ''3 P. Will. 33. 2 Blackst. 505''.

''II. Who shall be deemed a Bastard''.

a: Bastards are all those born out of lawful marriage. b: Lord Coke observes, that ''bastard'' is a term given to all those who are born out of lawful marraige. By the common law, if the husband be within the four seas, that is, within the jurisdiction of the king of England, if the wife has issue, no proof is to be admitted to prove the child a bastard, unless the husband has an apparent ''impossibility'' of procreation; as if the husband be but eight years old, or under the age of procreation, such issue is a bastard, though he be born within marraige. But if the issue be bore within a month, or a day, after marriage, between parties of full lawful age, the child is legitimate. ''1 Inst. 244''.

a: An apparent impossibility is necessary to bastardise a child born in wedlock. b: All persons within marriage are legitimate, unless there is an apparent ''impossibility'' that they should be generated by the husband; for there is the strongest presumption that can be that they are legitimate, because the husband has the power and dominion over his wife; and therefore may by the law keep her by force within the bounds of duty. Now the presumption thus being that it is the husband's child, it must be destroyed by contrary proof; and this negative, that it is not the husband's child, is capable of no other proof that this, that it must be shewn ''impossible'' it should be the husband's child; if therefore the husband be proved castrate, the issue are bastards. ''1 New. Abr. 310. 1 Rol. Abr. 358''.

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''.

a: Non access proved. b: ''H. 5 G. 2. Pendrel v. Pendrel''. On an issue out of Chancery, to try whether the plaintiff was the heir at law of one Thomas Pendrel, it was agreed that the plaintiff's father and mother were married, and cohabited for some months; that they parted, she staying in London, and he going into Staffordshire; that at the end of three years the plaintiff was born; and there being some doubt on the evidence, whether the husband had not been in London within the last year, it was sent to be tried here. And the plaintiff rested at first on the presumption of law in favour of legitimacy, which was encountered by strong evidence of non-access. And it was agreed by the court, that the old doctrine of being within the four seas was not to take place; but the jury were at liberty to consider the point of access; which they did, and found against the plaintiff. ''Str. 925''.

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''.

a: A wife's oath not sufficient proof. b: But in the case of ''K. and Reading, M. 8 G. 2''. the wife's oath was thought insufficient to prove the non-access of the husband. The defendant Reading was adjudged by an order of bastardy, to be the putative father of a bastard child, begotten of the wife of one Almont, of Sherborne: the said woman on the appeal, gave evidence, that the said Reading had carnal knowledge of her in or about August 1732, and several times since; and that her husband had no access to her from May 1731, to the time of her examination in that court, being the 3rd of October 1733, and that Eading was the father of the child. And the question, on removal of the same into the King's Bench, was, whether the wife, in this case, should be admitted as an evidence for or against her husband, and to bastardize her own child. Lord Hardwicke, chief justice: The wife is not a competent evidence in point of law in this case, that is to prove the ''whole fact''; though it seems she may be a competent witness, to prove the criminal conversation between the defendant and herself, by reason of the nature of the fact, which is usually carried on with such secrecy, that it will admit of no other evidence; therefore, as to the fact of the defendant's conversation with her, she may be a good witness; but this is only from the necessity of the thing. But then, in the present case, it is carried further, for the wife is the only evidence to prove the absence and want of access of her ''husband''; whereas this might be made appear by other witnesses, and therefore the ''wife'' shall not be admitted to prove it, since there is no necessity that can justify her being an evidence in this case. And the whole court were of opinion, that the wife could be a witness to no other fact but of incontinence. He likened it to the case of hue and cry, where the person robbed shall be admitted a witness of the fact of robbery, but not to any other matter relating thereto; as in what hundred the place was, and the like, because that may be proved by others. It was held to be of very dangerous consequence to lay it down, in general, that a ''wife'' should be a sufficient sole evidence to bastardize her child, and discharge the ''husband'' of the burthen of its maintenance. Cas. Temp. lord Hardwicke, 79.

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''.

a: Issue of an incestuous marriage. b: If a man marry his cousin within three degrees, or his sister, the issue of such marriage is not a bastard till there be a divorce; for, though such marriage be unlawful, yet it remains good till sentence of divorce be pronounced, and consequently the issue must be esteemed legitimate till such a dissolution. ''1 Rol. Abr. 357''.

a: Child born after the husband's death. b: The law has ascertained no certain time for the birth of legitimate issue, by the widow, after the death of her husband. ''1 Danv. 726''.

a: A child born 40 weeks and nine days after the supposed father's death, adjudged legitimate. b: But in the case of ''Alsop and Bowtrell, M. 7. Jac''. the question was, whether, if a woman be delivered of a child forty weeks and nine days after the death of her husband, such child should be deemed a bastard. It was proved upon the trial, that the father of the deceased husband had much abused her, and caused her to lie in the streets; and three physicians swore that the child came in time convenient to be the child of the party who died; and that the usual time for a woman to go with child, is nine months and ten days; to wit, ''solar'' months, at thirty days to the month, and not ''lunar'' months; and that by reason of the want of strength in the woman or the child, or by reason of ill usage, she might be a longer time, viz. to the end of ten months or more. And the physicians farther affirmed, that a perfect birth may be at seven months, according to the strength of the mother or a child, which is as long before the time of the proper birth: and, for the same reason, it may be as long deferred by accident, which is usually occasioned by infirmities of the body, or passions of the mind; and the child was adjudged to be legitimate. ''Cro. Jac. 541''.

a: Children born during a divorce. b: Where a woman is separated from her husband by a divorce ''a mensa & thora'', the children she has during the separation are bastards; for a due obedience to their sentence shall be intended, unless the contrary be shewn: but of a husband and wife, without sentence, part and live separate, the children shall be taken to be legitimate, and so deemed till the contrary be proved, for access shall be intended. But if a special verdict find the man had no access, it is a bastard. This was the opionion of lord Hale, in the case of ''Dickens and Collins. 1 Salk. 123''.

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.''

a: Upon a charge an oath, a justice may issue a warrant against the reputed father of a bastard child. b: By the 6 G. 2. c. 31. it is enacted, that if any single woman shall be delivered of a bastard child, which shall be chargeable, or likely to become chargeable to any parish or extra-parochial place, or shall declare herself to be with child, and that such child is likely to be born a bastard, and to be chargeable to any parish or extra-parochial place; and shall in either of such cases, in an examination to be taken in writing upon oath, before any one or more justice or justices of the peace, of any county, riding, division, city, liberty, or town corporate, wherein such parish or place shall lie, charge any person with having gotten her with child; it shall be lawful for such justices, &c. upon application made ot him by the overseers of the poor of such parish, or one of them, or by any substantial householder of such extra-parochial place, to issue out his warrant for the ''immediate apprehending'' such person so charged as aforesaid, and for bringing him before such justice, or before any other of his majesty's justices of the peace of such county, &c. And the justice before whom such person shall be brought, is hereby authorised and required to commit the person, so charged as aforesaid, to the common gaol or house of correction, unless he shall give security to indemnify such parish or place, or shall enter into a recognizance, with sufficient surety, upon condition to appear at the next general quarter-sessions, or general sessions of the peace to held for such county, &c. and to abide and perform such order or orders as shall be made in pursuance of an act passed in the 18th year of the reign of Elizabeth, concerning bastards begotten and born out of lawful matrimony. ''s. 1''.

a: But if the woman marries, dies, or miscarries, he shall be discharged. b: Provided that, if the woman so charging any person as aforesaid, shall happen to die or be married, before she shall be delivered, or if she shall miscarry of such child, or shall appear not to have been with child at the time of her examination, then such person shall be discharged from his recognizance at the next quarter-sessions, or immediately released out of custody, by warrant under the hand and seal of one justice residing in or near the limits where such parish or place shall be. ''s. 2''.

a: The overseers may be summoned to shew cause why he should not be discharged. b: Provided also, that upon application made by any person, who shall be so committed to any gaol or house of correction, or by any person on his behalf, to any justice residing in or near the limits where such parish or place shall lie, such justice is hereby authorised and required to summon the overseers of the poor of such parish, or one or more substantial householder or householders of such extra-parochial place, to appear before him at a time and place to be mentioned in such summons, to shew cause why such person should not be discharged. And if no order shall appear to have been made, in pursuance of the said act of the 18 of Eliz. within six weeks after such woman shall have been delivered, such justice shall discharge him from his imprisonment. ''s. 3''.

a: When the woman shall be examined. b: Provided always, that it shall not be lawful for any justice to send for any woman whatsoever, before she shall be delivered, and one month after, in order to her being examined concerning her pregnancy; or to compel any woman, before she shall be delivered, to answer any questions relating to her pregnancy. ''s. 4''.

a: Punishment for suffering the reputed father to escape. b: If the constable, having a warrant to apprehend the reputed father, shall willingly or negligently suffer him to escape, he may be bound over to the sessions, and there indicted, fined, and imprisoned; and, under the influence thereof, be compelled to make satisfaction to the prosecutors. ''1 Burn 186''.

a: A child cannot be a bastard before birth. b: That a child cannot be illegitimate before it is born, was determined in the case of ''K. and Chandler, M. 11 G''. The defendant was indicted at the general quarter-sessions of the peace for the county of Wilts, for secreting Alice Hunt, who was pregnant with an illegitimat child, so that she could not be had to give evidence about the father. The defendant demurred. And by the court, judgement must be given for the defendant; for the child cannot be illegitimate before it is born, there being always a possibility that it may be born in lawful wedlock. ''L. Raym. 1368. Str. 612''.

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.

a: Taking security. b: Doubts have arisen whether, in this case, a bond or other security ought to be made to the churchwardens and overseers, and their successors, or to their executors or administrators. It is far from being a settled point, whether the churchwardens and overseers are such a corporation as can purchase, sue, and be sued. And as bonds are things in action, it may be difficult for the successors of the churchwardens and overseers to whom they were made, to maintain an action on a bond made to their predecessors. Churchwardens indeed may maintain an action for the goods of their church; but they are not such a corporation as can take or purchase lands, or take securities for the use of their church, except in London. Instead of a bond, an order of justices is usually preferred, the suing upon the former being both tedious and expensive; but the course of carrying an order into execution is very short and easy. It is, however, to be observed, that a bond will bind a man's executors, but the order of justices is only obligatory on the man himself; consequently, when he dies, the order expires with him. ''Read. Bast. 1 Burn 187''.

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''.

a: Plaintiff on a bond to indemnify a parish against a bastard, swearing to the whole of the penalty. b: ''M. 21 G. 3. Kirk and Strickland''. It was moved for a rule to shew cause why the defendant should not be discharged, upon filing common bail. It was an action of debt upon a bond, conditioned for the indemnification of a parish against a bastard child. The penalty in the bond was 50 l. and the plaintiff, in his affidavit for holding the defendant to bail, had sworn that he was ''justly'' indebted to him in that sum. But the defendant, in the affidavit on which this motion was grounded, swore that only 3 l. and some odd shillings were ''really'' due. The court said, the conduct of the plaintiff was altogether unjustifiable, and that he was liable to an action: that, in the case of a bond conditioned for the performance of a promise of marriage, and in some other instances, the penalty is the real debt; but, in other cases, the bail could only be taken for the sum to which the plaintiff would have been entitled in damages for the breach of the condition. At first, however, they seemed to think that they could not relieve the defendant upon this summary application, it having been a uniform rule not to go into the merits upon such a motion, but to take the matter as it stood upon the affidavit to hold to a bail; but at length they granted the rule, declaring that they were persuaded the defendant would not venture to shew cause against it. ''Douglas 432''.

''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.

a: Power of two justices to punish the mother and reputed father of a bastard, &c. b: By the stat. 18 Eliz. c. 3. it is enacted, that ''two justices (one of the quorum)'', in or ''next to the limmits where the parish church is'', within which parish a bastard shall be born, ''upon examination'' of the cause and circumstances, ''shall and may by their discretion'' take order, as well for the punishment of the mother and ''reputed father'' of such bastard child, as also for the relief of every such parish, in part or in all; and shall and may also, by like discretion, take order for the keeping of every such bastard child, ''by charging such mother'', or reputed father, ''with the payment of money weekly'', ''or other'' sustentation for the relief of such child, in such wise as they shall think meet and convenient. And if, after the same order by them subscribed under their hands, the said mother, or reputed father, upon notice thereof, shall not for their part observe and perform the said order, then every such party, so making default, in not performing the said order, ''to be committed'' to ward to the common gaol, there to remain without bail or maniprise, except he or she shall put in suficient surety to perform the said order, or personally to appear at the next general county sessions of the peace to be held in that county where such order shall be taken; and also ''to abide such order'' as the said justices of the peace, or the greater part of them, then and there shall take in that behalf (if they then and there shall take any); and if at the said sessions, the said justices shall take no other order, then to abide and perform the order before made, as above said.

''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''.

a: Order quashed for a grammatical error. b: An order of two justices was quashed for the following fault: We the said justices ''doth'', instead of ''do''. ''1 Salk. 108''.

''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.

a: Father and mother should be examined. b: ''Upon examination''.] And therefore not only the mother, but also the putative father should be summoned to appear, and both parties be examined before any order is made; but this, however agreeabe it seems to natural justice, is not always practiced, the justices being apprehensive that such warning would tend to no other use than the father to keep out of the way: it had however been resolved that such summons is necessary. ''Dalt. c. 52''.

a: But it is not absolutely necessary that the putative father should be present at the examinations of the woman. b: But in the case of ''K. v. the inhabitants of Upton Grey, T. 23. G. 3''. two justices adjudge Walter Nation, of the parish of Froyle, in the county of Southampton, servant, to be the reputed father "of a female bastard child, begotten on Sarah Arundell, and that the said child was chargeable to the parish of Upton Grey in the said county; and that he should pay, &c. and allow one shilling weekly, &c." The sessions, on appeal, quashed this order, and stated as follows: Upon hearing the order (as above stated) read, and what was alledged by counsel thereupon, and ''it not appearing upon the face of the order, that the said Sarah Arundell was examined in the presence of the said Walter Nation, at the time of making the said order'', this court is of opinion and doth adjudge, that the said recited order ought to be quashed; and the same is hereby quashed accordingly. Mingay shewed cause in support of the order of sessions, and admitted that he could not, upon any general principle or authority, maintain, that it was necessary to the validity of an order of filiation, that the examination must be had in the presence of the putative father; but he contended, that the reason given by the sessions, however erroneous, would at most be considered as surplusage: that all courts, having jurisdiction over the subject upon which they had pronounced, were intitled to every intendment in their favour, and that there might have been other reasons. Lord Mansfield: They give none. The presence of the putative father is not necessary before the justices out of the sessions; and as the sessions have stated this and no other to have been the foundation of their proceeding, we cannot presume that they went on any other. Willes and Buller, justices, concurring (lord commissioner Ashhurst being absent) rule absolute. Order of sessions quashed, and original order affirmed. ''Caldcott's Rep. 308''.

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.

a: No time limited to exculpate the father. b: And in the case of ''K. and Miles, M. 1 G''. on motion to quash an order of bastardy, it was resolved, that if the father run away, and return, though fourteen years after, yet an order to fix the child on him is good; for there is no statute of limitation in these cases. There was a good reason set forth in the order, why the parish did not complain sooner, viz. that the father ran away, and could not be found sooner' and, having no estate, nothing could be done in his absence. ''10 Mod. Rep. 271''.

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''.

a: The mother marrying. b: ''By charging such mother''.] If the mother shall marry before any order be made, it has been doubted whether the justices can then charge her, as having no effects of her own, they being vested in the husband by the marriage. As in the case of Ellen Bent, late Ellen Taylor, ''E. 5 G. 3''. she was delivered of a bastard child in the parish of Clifton; after which, and before any order made, she married one Abraham Taylor, of the parish of Middleton. The overseers of Clifton apply to the justices, who made an order of filiation, charging her with eight pence a week towards the relief of the parish. She pleaded her utter inability, and refused to pay; upon which the justices commit her to the house of correction. She was brought up by ''habeas corpus'' from Lancashire, and her counsel moved for her discharge, insisting upon the illegality of her commitment; for that, being a married woman, she was not an object of the jurisdiction of the justices, and her husband was not summoned. But, by lord Mansfied: This woman has disobeyed the order of the justices; and stat. ''18 Eliz. c. 3''. prescribes the punishment here inflicted on her. There is no need to summon the husband in a criminal prosecution against the Wife. Wilmot, Yates, and Aston, justices, concurred with the chief justice in opinion. By the court, unanimously: Let the defendant be remanded. ''Burr. Mansf. 1681''.

''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.

a: Whether father can take the bastard away. b: ''M. 21 C. 2. Burwell's case''. Two justices order the reputed father to pay so much a week to the parish till the child shall be twelve years of age. This was held by the court to be wrong; and the reason given was, because the father might take it away when he pleased; and therefore the order ought to have been, that he should pay so long as the child should be chargeable to the parish. ''1 Ventr. 48''.

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.

a: Child not to be taken from the mother till seven years of age. b: Two considerations arise, which seem to reduce the unlimited power in some of the above-mentioned cases, of the reputed father taking the child when he pleases, into a very narrow compass. The first is, that nothing is more established than a child shall not be taken from its mother, without her consent, before it is seven years of age. The other is, that an order made by the justices, and confirmed at the sessions, or not appealed against, is binding upon the reputed father; and no other justices, in or out of sessions, have the power to intermeddle. It should therefore seem, that the time for the reputed father to insist upon taking the child, cannot be till after it is seven years of age; nor even then, if an order has been made; and it is not to be supposed that the parish officers will forbear, for seven years, applying for an order, only to give the reputed father an opportunity to put in his claim. ''1 Burn 203''.

''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''.

a: Justices in sessions not to make an original order. b: ''To abide by such order.''] It seems, by the better opinions, that the justices, in their sessions, have no power to make an original order; and are only to reverse or affirm the order made by the two justices. ''Dalt. c. 48, 49. Cro. Car. 337, 341''.

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''.

a: Woman having bastards may be committed. b: By the 7 Jac. c. 4. it is enacted, that every lewd woman ''who shall have any bastard'' child ''which may be chargeable'' to the parish, the ''justices of the peace'' may commit such lewd woman to the house of correction, there to be punished and set to hard labour during the term of one whole year; and if she shall eftsoons offend again, then to be committed to the said house of correction as aforesaid, there to remain till she can put in good sureties for her good behaviour not to offend again.

a: But not till after the delivery. b: ''Who shall have a bastard''.] The woman must be ''delivered'' of such bastard child ''before'' she can be sent to the house of correction, and the child is not to be sent with her. ''Dalt. c. 48''.

''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''.

a: Mother or reputed father running away. b: By the ''13'' and ''14 C. 2. c. 12. s. 19''. Whereas the putative fathers and lewd mothers of bastard children run away out of the parish, and sometimes out of the country, and leave the said bastard children on the charge of the parish where they are born, although such putative father and mother have estates sufficient to discharge such parish: it is therefore enacted, that is shall be lawful for the churchwardens and overseers of the poor of such parish, where any bastard child shall be born, to take and seize so much of the goods and chattles, and receive so much of the annual rents or profits of the lands of such putative father, or lewd mother, as shall be ordered by any two juctices of the peace, towards the discharge of the parish, to be confirmed at the sessions, for the bringing up and providing of such bastard child; and thereupon the sessions may make an order for the churchwardens or overseers of the poor of such parish, to dispose of the goods by sale or otherwise, of so much of them, for the purposes aforesaid, as the court shall think fit, and to receive the rents and profits of the lands, or so much of them as shall be so ordered by the sessions.

''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''.

a: Difference of proceeding on the 18 Eliz. and 3 C. b: ''T. 4 Ann. Q. and Weston''. The defendant had an order made on him, by two justices of the peace, for the miantenance of a bastard child; he appealed to the sessions where the order was confirmed, and he committed for not paying the money ordered. He was brought into the King's Bench by ''habeas corpus'', and it was moved that he might be discharged; for that the justice ought not to have committed him, but to have proceeded on his recognizance. By Holt, chief justice: If they proceed on the 18 Eliz. the sessions has no power to commit, but to proceed on his recognizance; but if on the statute of 3 C. the sessions may commit as the two justices might have done; that is, unless the party put in security to perform the order, or to appear at the next sessions. ''11 Mod. Rep. 65. 1 Salk''.

a: Sessions have an original jurisdiction, by 3 C. b: In the case of K. and Greaves. E. 21 G. 3. An original order of bastardy was made at sessions, which being removed into the King's Bench by certiorari, a rule was granted to shew cause why it should not be quashed. The principal objection was, that the sessions have no original jurisdiction. In support of the order it was said, that ther are four or five cases, which have decided that the statute of 3 C. gives to the sessions an original jurisdiction; and the order was confirmed. Douglas 610.

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 require 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.

a: The parish should be named. b: M. 11 Ann. Q. and Cash. The order did not set forth that the child was ‘‘born in the parish’‘; and by the statute, the justices cannot make an order to compel a man to contribute towards the maintenance of a bastard child, but in the case of that parish where the child was born; and quashed for this reason. Cas. of S. 59.

a: Inferences will not give justices jurisdiction. b: E. 3 G. 2. K. and Childers. On a rule to shew cause why an order of two justices for relief of a bastard child, and an order of sessions confirming the same, should not be quashed; it was objected, that it was not directly adjudged that the child was born in the parish (of Staplehurst); and yet the order requires the defendant to pay the sum of 45s. to the churchwardens of that parish, to reiburse them. It was answered, that it sufficiently appears in the order that the child was born there; for it adjudges that the defendant should pay this sum, for the charges the parish of Staplehurst were at, on account of the woman's lying in there. But the court said, they did not allow of inferences to give the justices jurisdiction; and quashed both the orders. 1 Barnardist. 326.

a: Where the child is born, b: And in the case of K. and Butcher, T. 7 G. an order of bastardy was quashed, because it did not set forth that the child was born in the parish to which the relief was ordered. Str. 437.

a: or baptized. b: But in the case of K. v. Moravia, E. 15 G. 2. An order of bastardy set forth that a woman was ‘‘delivered of a child, baptized’‘ in the parish of A. It was objected, that this does not import such child to have been born there, which is the only circumstance that could warrant the parish to apply for relief. The court said, that by a reasonable construction, it may be so understood, and therefore confirmed the order. Str. 1166.

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.

a: Examination of the woman must be before two justices. b: The examination of the woman, as well as the ordering part, must be by two justices; for the examination is a judicial act, and ought to be by both. It is not enough that one should examine, and make report to the otehr; but, if they are both present, and only one shall examine, it is well enough, for it is in fact the examination of both. 2 Salk. 478.

a: Where two or more justices are appointed, the cannot act separately. b: T. 15 G. 3. Billings v. Prinn and Delabere, esquires. The plaintiff brought an action of trespass and false imprisonment, for committing her to prison for refusing to filiate a bastard child. It appeared that she had been examined severally, at separate times (but in the same day)and in separate places, by the defendants, who were two justices, and the separately signed the warrant of commitment. On trial at the assize, a verdict was given for the plaintiff, with 5 l. damages. It was moved for a new trial, and argued, that it was sufficient under the statute, if the two justices ‘‘joined in’‘ and ‘‘consented to’‘ the commitment; but that they might examine and adjudge the matter, and sign the warrant, ‘‘separately’‘. Upon which it was answered, that, where ‘‘two or more’‘ are required to do any act, they must ‘‘meet together’‘; or what they resolve on is the opinion of individuals, not of the whole body. And this has always been the doctrine with respect to justices of the peace. By the court: This case is so clear, that it cannot bear an argument. There is no use in appointing two or more persons to exercise judicial powers, unless they are to act together: separate examinations, by different magistrates, may produce different facts. On which then is the adjudication to proceed? It is extreemly clear, that in case of an action thus brought to try the validity of the commitment, it cannot be supported by law. Blackst. Rep. 1017.

a: Two justices have not power to acquit or convice, but to take order for the relief of the parish, &c. b: T. 9 G. 2. K. v. Jenkin or Jenkins. An order made by two justices, setting forth that the defendant had been charged with being the father of a ‘‘bastard child’‘, and that on examination into the matter they were of opinion that he was not so, and do therefore ‘‘adjudge’‘ that he be aquitted thereof, being removed hither. The court were of the opinion, that the justices had gone too far: for their whole authority is under stat 18 Eliz. c. 3. whereby they are only empowered to take order for the relief of the parish, and the punishment of the offender, by have no power to acquit the party or convict him ‘‘finally’‘. The ‘‘sessions’‘ indeed on stat. 3. C. 4. s. 15. may make a final order; and after a man is discharged by one ‘‘sessions’‘, a subsequent ‘‘sessions’‘ cannot take it up again, as was held M. 13 G. K. v. Tennant. And it would be greatly inconvenient, that the justices should have such a power; because the parish cannot appeal: the defendant indeed may, not by virtue of the express words, but in consequece of the ‘‘clause’‘ about giving security to abide the order of ‘‘sessions’‘, if the party does not submit to the order of the two justices. And though a man may thereby be liable to be harrassed in being carried before several justices, that is a less evil than the other, this court being always open for redress, if any thin should be done to the manifest oppression of the party. The order was quashed. Str. p. 1050. Cases Temp. Lord Hardwicke, 302.

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 fathre, 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.

a: Bastard cannot be removed from the place of its birth, as being the child of a certificate person. b: H. 16 G. 2. K. v. The Inhabitants of Hilton. On a motion to quash an order of two justices for the removal of a ‘‘bastard’‘ child of a certificate woman, which had been confirmed by the sessions, the question was, whom the parish have a right to remove as children under stat. 6 & 9 W. c. 30. Lee, chief justice: I know of no case that considers ‘‘bastards’‘ as the children of ‘‘any one’‘. I think the act cannot be construed into such a meaning, and that the present removal cannot be maintained, which sends the ‘‘bastard’‘ away from the place where born, under the notion of being the child of a certificate person. Chapple, Wright, and Deniston, Justices, concurred with the chief justice. By the court: Let the rule be made absolute to quash both ‘‘orders’‘. 1. Burr. S. C. 187.

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.

a: Punishment for concealing the death of a bastard child. b: By the 21 Jac. c. 27. it is enacted, that, if any woman be delivered of any issue of her body, make or female, which being born alive, should by the laws of this realm be a bastard, and she endeavour privately, either by drowning or secret burying thereof, or any other way, either by herself or the procuring of others, so to conceal the death thereof, as that it may not come to light, whether it were born alive or not, but be concealed, she shall suffer death as in case of murder, except she can prove, by one witness, at the least, that the child was born dead.

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.

a: Endeavouring to conceal deemed murder. b: It has also been agreed, that where a woman appears to have endeavoured to conceal the death of such child within the statute, no proof is required that the child was born alive, or that there were any signs of hurt upon the body; but it shall be undeniably taken that the child was born alive, and murdered by the mother. 2 Haw. 438.

a: But the severity of that construction is abated. b: But on account of the seeming severity of this law, it has been usual of late years, upon trials of this offence, to require some kind of presumpritve evidence that the child was born alive, before the other constrained presumption is admitted, that, because the death was concealed, it was killed by its parent. 4 Blackst. 198.

a: Confessing before hand merits a favourable contraction, b: It has been agreed that, if a woman has confessed herself with child, and is afterwards surprized and delivered, no person being with her, she is not within the statute; because there was no intent of concealment; and therefore, in such cases, it must appear by signs of hurt upon the body, or some other way, that the child was born alive. 2 Haw. 438.

a: or knocking for help. b: And it has been adjudged, that where a woman lay in a chamber by herself, and went to bed without pain, and waked in the night, and knocked for help, but could get none, and was delivered of a child, which she put into a trunk and did not discover it till the following night; yet she was not within the statute, because she knocked for help. 2 Haw. 438.

a: Procuring abortion. b: If a pregnant woman receives from another a potion to destroy the child within her, and she takes it, and its operation is so strong that it kills her, this is murder; for it was not administered to cure her of a disease, but unlawfully to destroy the child within her; therefore he who gives her a potion to this end, must abide by the consequence; and, if it kills the mother, it is murder. 1 H. H. 429, 430.

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.

a: Bastard child settled where born. b: Though a bastard child is prima facie settled where born, yet this rule admits of several exceptions; among which are the following:

a: Exceptions, b: If a bastard is born under an order of removal, and before the mother can be sent to her place of settlement, being hindered by water or otherwise; such bastard shall not be settled where so born, but at the mother's settlement. 1 Sest. C. 33.

a: Where collusion is used. b: It was also adjudged, in the case of Masters v. Child, H. 10 W. that if a woman, pregnant with a bastard child, and settled in one parish, is persuaded to go into another, and there be delivered; this fraud will make the parish chargeable where the mother was settled, though the child was not born there: but if such woman comes accidentally into one parish, and is persuaded by some of the parishioners to go into another parish, which she consents to, and is there delivered, this shall not charge the parish which persuaded her. 3 Salk. 66.

a: When delivered on the road. b: If a woman be delivered on the road in transitu, while the officers are conducting her, by virtue of an order of removal, the bastard shall go with the mother where she is going, by virtue of the order, notwithstanding the birth. Cas. of S. 66.

a: After the removal, and before the appeal. b: M. 8 W. Much-Waltham and Peram. A woman pregnant with a bastard child was removed, by order of two justices, from Much-Waltham to Peram, and, before the next sessions, she was delivered at Peram. At the sessions Peram appealed, and the justices adjudged the woman to be last settled at Much-Waltham, and ordered her to be sent back thither. After which an order was made to settle the child at Peram, which it was moved to quash, because, though regularly bastards must be maintained where born, yet, in this case, where there seems to be a contrivance, it shall not be so. The court seemed to agree to this, and a rule was made to shew cause, but none was shewed. 2 Salk. 474.

a: Born in a house of correction. b: A bastard child, born in the house of correction, shall be sent to the place of its mother's settlement. 2 Bulstr. 358.

a: Born in prison. b: In the case of Elsing, and the county gaol of Herefordshire, H. 2 G. it was resolved that a bastard, born in the county gaol, shall have a settlement with the mother. 1 Sess. C. 94.

a: Born in a state of vagrancy. b: By the 17 G. 2. c. 5. s. 25. if any woman wandering and begging shall be delivered of a child, in any parish or place to which she does not belong, and thereby becomes chargeable to the same, the churchwardens or overseers may detain her, till they can safely convey her to a justice of the peace; and if such woman shall be detained an conveyed to a justice, as aforesaid, the child of which she is delivered, if a bastard, shall not be settled in the place where so born, nor be sent thither by a vagrant pass; but the settlement of such woman shall also be deemed the settlement of such child.

a: In a lying-in hospital. b: And by the 13 G. 3. c. 82. a bastard born in a lying-in hospital shall follow the mother's settlement.

a: In an incorporated district. b: Also by 20 G. 3. c. 36. all bastard children born in the house of industry of any hundred or other district, incorporated by act of parliament for the relief and employment of the poor, shall be deemed to belong to the parish or place where the mother of such bastard child was legally settled.

a: Bastard of a certificated person settled where born. b: The bastard of a certificate person is settled in the place of his birth, as not being such an issue as will follow the settlement of his father and mother. Str. 186. The case of New Windsor and White Waltham, T. 5 G. See K. v. The Inhabitants of Hilton, section 5. of this title.

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.

a: A certificate person cannot be removed under 8 & 9 W. c. 30 till he is actually chargeable. Therefore a probability that one of the certificated persons residing together in one family will become chargeable (as if a female be pregnant with a bastard) is no cause for removing them. Only that part of the family which are chargeable are removeable. A certificate promising to receive a pauper when requested, means when lawfully requested. Certificate being different from the common form, does not vitiate in this case. b: H. 29 G. 3. K. and The inhabitants of St. Mary Westport. Thomas Pretty, Catherine his wife, and Elizabeth and James their children, were removed by an order of two justices from Bradford to St. Mary Westport, in Malmsbury, both in the county of Wilts; on appeal the order was confirmed, subject to the opinion of this court on the following case. Edward Pretty (the grandfather of the pauper Thomas Pretty), together with his wife and family, went to reside in Bradford, under a certificate from the parish of St. Mary Westport in Malmsbury, dated June 21, 1714, acknowledging them to be legal inhabitants of St. Mary Westport, and promising for themselves and their successors, the churchwardens and overseers of the poor for the time being, that they would receive the said Edward Pretty, with his wife, and family, when they shall be thereto requested, unless they or either of them should obtain a legal settlement elsewhere. The paupers resided together in Bradford under the certificate, till removed by the present order. Thomas, the eldest son of the pauper Thomas Pretty, some years ago married, took a house in the same parish, and resided apart from his father's family. He is since dead, and has left an infant son, John, who now lives with his mother at Bradford, and is under the age of seven years. The paupers named in the order of removal never asked or received any relief from Bradford, or became personally chargeable, unless the pauper Elizabeth, under the circumstances herein after stated, can be so considered: but Thomas Pretty, the son, after the separation above-mentioned, asked and received relief from Bradford during sickness; and since his death his infant son has not been maintained by his grandfather, the pauper; but relief has been applied for by his mother for him, and occasionally granted by Bradford for his support. Thomas the grandfather knew that relief was so administered. The pauper Elizabeth at the time of her removal was pregnant with a bastard child, of which she has since been delivered in St. Mary Westport. Beaverost, Durnford, and Yorke, in support of the order of sessions, contended, first, That the parish of St. Mary Westport were estopped by their own act to say they would not receive the paupers, when required, according to the terms of their own contract; and 2ndly, That under the statute of 8 and 9 W. c. 30. the justices were warranted in removing the paupers, either on the ground or the relief which was given to the son and grandson, or of the pregnant daughter; and much learning was displayed in support of these arguments. Jekyll, contra, observed, that, as to the first point: This has been contended to be a contract between the two parishes independently of the certificate act: but whatever force such an instrument might have had before that statute, it can have none since, unless it follow the precise form prescribed by it; and if it be not valid as a certificate under the act, it cannot be supported, since the officers who signed it had no authority to bind the parish of Westport. Considering this then as a common certificate, the paupers were irremoveable, because they were not chargeable. He further observed, that as to the circumstance of the daughter's being pregnant, all cases agree that a certificate person can only be removed when he becomes actually chargeable; whereas this at the most was but a probability of her becoming so. Litchfield, on the same side, was stopped by the court. Lord Kenyon, Ch. J. Although this certificate is not in the usual form, yet, as far as it relates to the question now before us, it must be considered as a common certificate. And the single question is, whether these persons, who have been removed, can in the fair sense of the words be said to have been actually chargeable to the parish of Bradford. Now it is negatived by the case that any of these parties received relief in person. But it is contended that they were virtually relieved, because the son and grandson both received relief. But it must be observed, that at that time they were not members of the family of the pater familias now removed; they lived apart from him, and formed another family of themselves. Then it has been said that a burthen has been thrown upon the parish by the relief of the son and grandson, and therefore that the grandfather was virtually chargeable, because the 43 Eliz. requires fathers and grandfathers to support their children and grandchildren. But that proposition hastens to a conclusion too soon; for by that statute they are not in all events to maintain their grandchildren, &c. but only when they are of sufficient ability. Now the justices are the proper judges of that ability; and the grandfathers &c. are only to be called upon by an order of justices. There is another section in the certificate act which throws some light upon this subject: that directs, that every person who receives relief, ‘‘and the wife and children of such person cohabiting in the same house’‘, shall wear a badge on the shoulder: this therefore is a strong legislative interpretation of what is meant by the word "family" in that act; and it would be a very harsh construction of that law to say, that the grandfather, when his son and grandson who lived in a different house from him received relief, could have been badged, or, as mentioned in the latter part of the same clause, sent to the workhouse. So that on the fair construction of this act of parliament, none of the persons removed by this order can be said to have been chargeable. And even if we could exercise any discretion upon the subject, we should not be inclined to restrain the operation of the certificate act. The case of Walton v. Spark is very distinguishable from the present: there the condition of the bond, which was to indemnify the parish against the person therein named and his children, was broken. Then as to the circumstance of the daughter being with child, it is universally settled that that is not a sufficient ground for the removal of a certificate person. Perhaps it is rather a hard case, and with might with the law to be otherwise in some instances. But indeed it is to considered that, the the woman was pregnant, non constat that the child would be a bastard: and though it was probably, yet it was not certain, that any burthen would have fallen on the parish, for she might have been married before she was brought to bed. Ashhurst, J. No doubt arises from the particularity of this certificate; for the promise, by the certifying parish to receive the paupers when they shall be thereto requested, can only be taken to mean when they be ‘‘legally’‘ requested. Now the persons mentioned in the certificate had a right to reside in Bradford under it, till they ‘‘became chargeable’‘, when only the certifying parish could legally be ‘‘requested to receive them’‘. Then the question is, whether or not any of the persons removed actually became chargeable in such a way as to warrant the parish of Bradford in removing them: now it does not appear that any of them fall within that description. For as to the ‘‘pregnancy of the daughter’‘, it has been repeatedly determined that a certificate person cannot be removed as being likely to become chargeable, but such persom must be ‘‘actually’‘ chargeable; and in such an instance as this, the charge may be prevented by marriage. Then as to the relief which was given to the son and grandson, it seems to me that that was not a sufficient ground to remove the grandfather and his family living under a separate establishment. But it has been said that the grandfather was bound to maintain his son and grandson: this is true, under circumstances; but then he must be of sufficient ability, and called upon by an order. Now here the relief was not given on the application of the grandfather; and in order to extend the consequences of this relief to him, the parish should have fist called upon him, when, if he had refused, alledging his inability, it might have perhaps been tantamount to a relief of the grandfather. But as it appears here, we cannot say that it was a necessary act of the parish; it was a voluntary one; and perhaps the grandfather, if he had been applied to, might have relieved the son and grandson. Grose, J. The first question arises on the effect of the ‘‘certificate’‘. Although that is different from the ‘‘common form’‘, yet I have no doubt in saying that it can have no other operation than what it derives from the 8 & 9 W. c. 30. If it had, it would go a great way to defeat that statute. For that act directs that a certificate, given in the terms therein prescribed, shall oblige the parish granting it, to receive the persons therein mentioned when they shall ‘‘become chargeable’‘; and that ‘‘then’‘ they shall be removed. But this is an undertaking to receive the persons mentioned in it, ‘‘when they should be thereto requested’‘; which is directly contrary to the statute. Therefore I think this is void, unless it be considered as a certificate within the act. The next question is, Whether that, which is stated in the order of removal, be true; namely, that the paupers were ‘‘actually’‘ chargeable. Now that is negatived by the case, which states that they were ‘‘not in fact chargeable’‘, unless we can say they were so in law. Although this question has never been expressly decided, I agree with the opinion delivered by Mr. J. Aston, who was particularly conversant with this branch of the law. And notwithstanding it was extrajudicial, I cannot help in paying a great respect to the opinion of so able a judge. If the whole of a certificated family were removable because ‘‘one’‘ of them only became actually chargeable, it would be attended with great inconvenience. As for instance, if there were three or four young men in the family who were able by their industry to procure a competent maintenance, and their sister became chargeable; it would be against the spirit of the act to make that a ground for removing them all. And I think the intent of the act will be fully answered by determining, that, when any one fo the certified family becomes chargeable, ‘‘he only’‘ shall be removed: any other determination would defeat the true purposes of the act. Then as to the pregnancy of the daughter; no case has been cited to shew that a person under such circumstances can be removed, and I think she was not removeable on that account. Both orders quashed.

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, thta 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 teh 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.

a: Impossibility will bastardise the issue, and they must aquire their settlement as bastards in the place of their birth. b: E. 3 G. The Parish of St. Andrew v. the Parish of St. Bride. On an order of sessions for the removal of a wife and three children from the parish of St. Andrew to the parish of St. Bride, setting forth that A. about twenty-three years since, married B. and lived with her five years in the parish of St. Bride, and had by her four children, two whereof were dead, and the other two provided for: that at the end of five years he went away from her, and married another woman, with whom he live somewhere in England; but that he never saw his first wife B. from the time of his going away. B. after the separation (having heard nothing for a long time of A.), married a second husband, by whom she had eight children in the parish of St. Andrew, who all went by the name of the second husband; five of them are dead, and the other three survive; and the sessions presuming the second marriage is void ‘‘from the beginning’‘, adjudge, that her settlement, and that of her three children, is in the parish of St. Bride, where the first husband lived, as deeming the children the legitimate issue of the first marriage. The court quashed the order as to the children, and confirmed it as the wife. First, because the second marriage, and living with the second husband in St. Andrew's, was void ‘‘from the beginning’‘; and therefore the place of her settlement was where the first husband lived. Secondly, It being adjudged that the first husband had no access to her for ‘‘seventeen years’‘, no presumption shall be admitted but that these are the children of the second marriage; and they not being born in the parish of St. Bride, nor ever inhabited there ‘‘forty days’‘, can have no settlement in St. Bride's. 1 Rol. Abr. 351. lib. 1, 8, pl. 4, 5. Bract. lib. 5. fo. 417. Co. Litt. 123. 2 Roll. Abr. 356. Cro. Jac. 541. Fleta, lib. 1. c 15, 4, 5. Bract. lib. 1. c. 9, 4. Co. Litt. 244. a. Salk. 123, 483. 7 H. 4, 9. All these cases were cited to prove, that improbability will bastardize the issue; and therefore it was argued à fortiori that impossibility, which was found in this case, would bastardize also. Str. 51.

a: Nurse-child to go with the mother. b: But where the mother and child have different settlements, as mentioned in the preceeding case, it seems that the bastard child, as well as all other children, shall go with the mother for nurture till the age of seven years, as a necessary appendage of the mother, and inseparable from her. As in the case of Skessreth and Walford, M. 3 G. 2. The order was to remove a woman to her settlement, and her bastard child, aged two years, to another parish, at a distance from the mother, being the place of its birth. It was objected, that a nurse child cannot be separated form the mother, by reason of the care thatwas necessary in the nurture of so young an infant, which none can be supposed so fit to administer as the mother of it; and therefore is should have been sent with her to the place of her settlement. And it was quashed by the court for that reason. 2 Sess. Cas. 90.

a: Child to be supported by its proper parish. b: But whilst the child thus continues with its mother, and is not removable to its place of settlement, the parish where it has proper settlement shall maintain it in the other parish; and in the case of Darlington and Hemlington, H. 17 G. 3. Douglas 9. Caldecot's Rep. 6.

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.

a: A child may be basterdised without the evidence of the mother. b: Evidence of bastardy may be given after the death of the mother; as in the case of St. Peter's and Old Swinford, H. 8 G. The father, Joseph Heighington, gave evidence in court, that for seven years together he lived and cohabited with Hannah Aske, as man and wife; that he was never married to her, though it did not appear that their marriage was ever questioned; and that, during such cohabitation, she was delivered of three children: that Joseph, one of the said children, was born in the parish of Old Swinford. It was objected that this man could not be a proper witness in the case; for nobody can be adjudged a bastard without the evidence of the woman. But by lord Hardwicke, Ch. J. It is an apparent fact that this man and this woman were never married: and what is there to make the man an incompetant witness? He does not swear to discharge himself: for whether he be the legitimate or only the natural father of the child, he is equally bound to maintain it. Burr. Sett. Cas. 25.

a: An impotent bastard may be relieved as other poor. b: H. 5 Ann. The Parish of Budworth and the Township of Dumply, in Lancashire. On an order made thirty years ago, on the parish of Budwith, for the maintenance of a bastard child, born in the township of Nether Dumply, within that parish; which order was removed before the court of King's Bench by certiorari; it was held, First, That an order made on the overseers of any parish by two justices, for raising a sum towards the maintenance of a bastard or poor person, does not determine the settlement of that person in that parish; for the right of settlement is not contested, but presumed. Secondly, That the clause in statute 13 and 14 C. 2. c. 12, which provides, thath distinct townships of large parishes in the nornther counties shall respectively proved for their poor, under the penalty mentioned in 43 Eliz. c. 2. must be understood with respect to poor and impotent persons, and not with respect to bastards who are provided for by other statutes: but if the bastard be grown up, and by accident grows impotent, he may be relieved as a poor person within that statute. Salk. 123. ----