No. II. 1 Geo. IV. c. 56. mon gaol or house of correction, there to be kept to hard labour for any time not exceeding three calendar months, unless such penalty costs and charges shall be sooner paid and satisfied. II. Provided always, and be it enacted, That if any male person or persons under the age of sixteen years shall offend against any of the proPunishment of visions of this Act, it shall be lawful for the justice before whom he or Male Offenders they shall have been convicted, in default of payment of the sum of money under Sixteen awarded against him or them by the said justice, together with all costs Years of Age. charges and expences attending such conviction, immediately, or within such time as the justice shall appoint at the time of conviction, to commit such offender or offenders to the house of correction, there to be corrected and imprisoned and kept to hard labour for any term not exceeding six weeks. Offenders may be apprehended and taken before a Justice without any Warrant. Form of Conviction. Power of Appeal to the Quarter Sessions. III. And for the more easy bringing of offenders against this Act to justice be it further enacted, That it shall and may be lawful to and for any constable or other peace officer, and to and for the owner or owners of any property so damaged injured or spoiled, and to and for his her or their servant or servants or other person or persons acting by or under his her or their authority, and to and for such person or persons as he she or they may call to his her or their assistance, without any warrant or other authority than by this Act, to seize apprehend and detain any person or persons who shall have actually committed or be in the act of committing any offence or offences against any of the provisions of this Act, and to take him her or them before any justice of the peace for the county city or place where the offence or offences shall be committed; and such justice is hereby empowered and required to proceed and act with respect to such offender or offenders in manner by this Act directed. IV. And for the more easy and speedy conviction of offenders against this Act be it further enacted, That every justice of the before peace whom any person or persons shall be convicted of any offence against this Act shall and may cause the conviction to be drawn up in the following form of words or in any form of words to the same effect as the case shall happen; videlicet, BE it Remembered, That on the in the year of our Lord convicted by and before me Majesty's Justices of the Peace for the county of day of A. B. is one of his [or, riding division city town or place as the case may be], for that the said mine that the said [here state the Offence and the Time and Place when and where the same was committed], contrary to the statute made in the first year of the reign of King George the Fourth, intituled An Act [here set forth the Title of this Act], and I the said Justice do hereby adjudge and detershall for his said offence forfeit and pay the sum of lawful money of Great Britain [or, of Ireland, if the same offence shall be there committed], and do order that the same shall forthwith be paid by him [here direct the Payment according to the Act.] Given under my hand and seal the day and year first above ' written.' V. And be it further enacted, That it shall and may be lawful to and for any person or persons so convicted by any justice of the peace as before mentioned of any offence or offences against this Act, to appeal to the justices of the peace assembled at the general quarter sessions or general sessions to be holden for the county riding division city town or place where such conviction shall be made next after seven days from the time of such conviction, on giving immediate notice of such appeal and of the matters thereof, and finding sufficient security to the satisfaction of such justice for prosecuting the said appeal with effect and abiding the determination of the court therein; and such justices in such general quarter sessions or general sessions shall hear and determine the matter of such appeal, and may either confirm or quash and annul the said conviction and award such costs to either party as to them the said justices shall seem just and reasonable; and the decision of the said justices therein shall be final binding and conclusive; and no proceedings to be had or taken in pursuance of this Act shall be quashed or vacated for want of form only, or be removed by certiorari or any other writ or process whatsoever into any of his Majesty's courts of record at Westminster or elsewhere, any law or statute to the contrary thereof in anywise notwithstanding; and if upon the hearing of any such appeal the judgment of the justice before whom any appellant shall have been convicted shall be confirmed, such appellant shall forthwith pay the penalty and costs awarded to be paid by such appellant, or in default thereof shall be immediately committed by the said court to the common gaol or house of correction, there to remain for any time not exceeding six calendar months unless such penalty and costs shall be sooner paid. No.II. 1 Geo. IV. c. 56. to Persons VI. And be it further enacted, That nothing in this Act contained shall Not to affect repeal or affect any Act or Acts now in force, whereby any person or any Act as to persons may be subject to punishment for wilful and malicious acts of Punishment for trespass to any property either public or private, or shall extend to any Trespass, case of wilful or malicious mischief or trespass to private property in nor to extend which the damage claimed shall exceed the sum of five pounds, or to any claiming a case wherein it shall appear to the satisfaction of the justice or justices Right, &c. before whom the complaint is made that the party trespassing acted under a fair and reasonable supposition that he had a right to do the act to the property in respect whereof the trespass was committed or alleged to have been committed, or to do or commit the act complained of; or shall have committed such trespass in hunting, or being a qualified person and having duly obtained his certificate authorising him to kill game shall have committed the injury complained of in the pursuit of any kind of game. bar all other Suits for the VII. Provided always and be it enacted, That in case any person or Convictions unpersons shall be convicted of any offence against this Act before any der this Act to justice of the peace, on the complaint or information of any person or persons, or public or private property having been so injured damaged or spoiled, and shall have paid the penalty costs and charges under such same Offence. conviction, or shall have suffered the imprisonment awarded for nonpayment thereof, then and in every such case such conviction shall and may be pleaded in bar of any action suit or information that shall be commenced instituted or prosecuted for such and the same offence in any court whatsoever. VIII. And be it further enacted, That this Act shall be in force in England and Ireland, and not in any other part of the United Kingdom. Act to extend only to England and Ireland. PART VI. CLASS IV. Bastards. [No. I. ] 18 Eliz. c. 3.-An Act for setting the Poor 18 Eliz. c. 3. JUSTICES of peace shall order the punishment of the mother and II. Concerning bastards begotten and born out of lawful matrimony, (1.) (an offence against God's law and man's law) the said bastards being now left to be kept at the charges of the parish where they be born, to the great burden of the same parish, and in defrauding of the relief of the impotent and aged true poor of the same parish, and to the evil example and encouragement of lewd life: (2) It is ordained and enacted by the authority aforesaid, That two justices of the peace (whereof one to be of the quorum) in or next unto the limits where the parish church is, (2.) within (1.) The child of a woman divorced a mens et thoro is presumed to be a bastard: St. George's and St. Margaret's, Westminster, 1 Salk. 123. In other cases the legitimacy of a child born of a married woman, although living separately from her husband, is presumed; but non-access may be proved: and the old notion that a child cannot be a bastard, if the parents were within the four seas, is completely exploded. The wife cannot be a witness to prove the non-access; R. v. Reading, 2 sess. ca. 175: but where it was stated that it appeared on the examination of the mother, and on other proof, that the husband had no access, the order was held good; as other proof must be intended legal proof: R. v. Bedali; And. 8. But it is very objectionable to support a judgment obtained upon evidence, some part of which is legal and other part objectionable; unless it can be distinctly ascertained that the same conclusion must have been come to if the objectionable evidence had not been given; and it is in most cases manifestly impossible to distinguish the particular impression made by any particular part of the evidence adduced in support of any given fact as detached and separate from the other evidence offered for the same purpose; and in the immediate question, the single impression of the inadmissible evidence of the wife, if believed, would necessarily be more effective than that of all other witnesses (not going to remoteness of situation excluding the possibility of access) together. Where the husband, after an absence of some years, returned a fortnight before the birth of the child, the order was held good, and per curiam-" Circumstances which shew a natural impossibility that the husband could be the father of the child of which (2.) Quære, Is this essential, or only directory: No. I. 18 Eliz. c. 3. which parish such bastard shall be born, (3.) upon examination of the cause and circumstance) (4.) shall and may by their discretion (5.) take order (6.) as well for the punishment of the mother and reputed father of such bastard child, as also for the better relief of every such parish in part or in all; (3) and shall and may likewise by like discretion take order for the keeping of every such bastard child, by charging such mother (7.) or A Provision for reputed father with the payment of money weekly, or other sustentation the keeping of for the relief of such child, in such wise as they shall think meet and con- Bastards. venient: (8.) (4) And if after the same order by them subscribed under their hands, any the said persons, viz. mother or reputed father, upon notice thereof, shall not for their part observe and perform the said order, that then every such party so making default in not performing of the Further Prosaid order to be committed to ward to the common gaol, (5) there to visions relating remain without bail or mainprize, except he she or they shall put in suffi- hereto. cient surety to perform the said order, or else personally to appear at the next general sessions of the peace to be holden in that county where such order shall be taken, (6) and also to abide such order as the said justices (3.) There are several cases in which the settlement of bastards is in a different place from that of their birth; and no provision has been made for any order of filiation in such cases, except in the case mentioned in Stat. 35 Geo. II. c. 101. s. 6. where the birth takes place during the suspension of an order of removal. Many orders have been made in these cases, but it seems very clear that they cannot be supported; and the subject certainly requires the assistance of the legislature. (4.) If the mother is dead, the examination before birth, under Stat. 6. Geo. III. c. 31. is evidence of the filiation; and the Court said that they had no doubt that the sessions would be of opinion that it was conclusive: R. v. Ravenstone, 5 T. R. 373. And the same was ruled as to the admissibility of the evidence in Rex v. Clayton, 3 East. 58. But why a man should be concluded as to the truth of an ex parte examination taken in his absence, upon a subject upon which there is often a great deal of falsehood, it is rather difficult to discover. Neither is it very easy to reconcile the mere admissibility of the evidence with the decisions which have taken place respecting settlements; or with the general rule, that a party shall not be affected by evidence which he had no opportunity to controvert. (5.) The order may be made after a period of fourteen years: R. v. Miles, 1 sess. ca. 77. (6.) The putative father must be summoned, unless he actually appears; but a summons by a third justice to appear before the justices making the order is sufficient : R. v. Taylor, Temp. Hard. 112. And if summoned it is not requisite that he should appear: R. v. Upton Gray, 1 Bott. 479. And it is not necessary that the summons or appearance should appear on the face of the order: R. v. Clayton, 3 E. 58. (7.) An order may be made upon the mother, notwithstanding she is married before the order is made: Ellen Taylor's case, 3 Bur. 1681. (8.) The order cannot direct security to be given for the performance thereof, but may be set aside as to that and confirmed as to the remainder: Rex v. Price, 6 T. R. 147. Rex v. Fox, cited ibid. The following points are collected by Burn, in analysing the usual form of orders of bastardy :— VOL. VII. 1. The examination must be by the two justices, as well as the ordering part: R. v. Beard, 2 Salk. 478.-2. It is not necessary that the order should appear to be made upon the complaint of the churchwardens and overseers: Rex v. Buckall, 1 Barnadist. 261.-3. The sex must be stated: R. v. England, 1 Str. 503.-4. The places of birth must expressly appear in the adjudication; and it is not sufficient that it may be collected by inference: R. v., Cash, Cas. of Se. 59. R. v. Butcher, 1 Str. 437. R. v. Childers, 1 Barnadist. 326. R. v. Stanley, Cald. 172.5. It is not necessary to state that the child is chargeable or likely to become so; that being evident of every bastard child.-6. The order must expressly adjudge that the party did beget the child; stating that he had carnal knowledge of the mother is not sufficient: R. v. Browne, 2 Str. 811; nor whereas it hath appeared to us, &c.: R. v. Pitts, Doug. 661.-7. Orders were quashed for the error, in stating that the justices doth adjudge, instead of do; Rex v. Weston, 2 Lord Raymond, 1198. Anon. ibid.-8. The justices have no authority to adjudge that J. S. is not the father, and therefore to discharge him; R. v. Jenkins, 2 Str. 1050.-9. A gross sum may be ordered for money laid out before: R. v. Odam, 1 Salk. 624.-10. The order should be for payment so long as the child is chargeable, and not until it shall be fourteen years of age: R. v. Barebaker, 1 Salk. 121.2 Salk. 278; or till it shall be able to get its living by working: 1 Ventr. 210. But in R. v. Street, 2 Str., an order to pay till the child was nine years old; and in R. v. Buckall, 1 Barnardist. to pay till the age of twelve years, was held good; as there could not be any reasonable intendment that bastards would have any provision until those ages.-These two last cases seem to be rather objectionable, especially the latter; for it is very possible that a child may be able to gain a subsistence before the age of twelve years. In manufacturing districts it is a matter of constant experience that they do so at a much earlier age. Q. if the case amounts to more than a dictum?—11. The justices cannot order a sum for putting out the child apprentice: Brown's case, Comb. 448. Qu. Rex v. Buckall, ub. supr. G No. L 18 Eliz. c. 3. of the peace or the more part of them then and there shall take in that behalf (if they then and there shall take any;) (7) and that if at the said sessions the said justices shall take no other order, then to abide and perform the order before made as is aforesaid. [3 Car. 1. c. 4. continued until the end of the first session of the next parliament, and farther continued by 16 Car. 1. c. 4.] (9.) (9.) The Statute 16 Charles I. continues the several Acts therein mentioned until other Acts The Punish shall be made to the contrary; or, in other words, makes them perpetual. [ No. II. ] 7 James I. c. 4.-An Act for the due Execution of divers Laws and Statutes heretofore made against Rogues, Vagabonds and sturdy Beggars, and other lewd and idle Persons.* 7 James I. c. 4. VII. AND because great charge ariseth upon many places within this realm by reason of bastardy, besides the great dishonour of 'Almighty God,' Be it therefore enacted by the authority aforesaid, That every lewd woman which after this present session of Parliament shall have any bastard which may be chargeable to the parish, the justices of peace shall commit such lewd woman to the house of correction, there to be punished and set on work during the term of one whole year; (2) and if she shall eftsoons offend again, That then to be committed to the said house of correction as aforesaid, and there to remain until she can put in good sureties for her good behaviour not to offend so again. ment of lewd Women who have Bastards. 18 Eliz. c. 3. 2 Bulstr. 348. 3 Car. 1. c. 4. sect 15. • At length, infra. . [No. III. ] 3 Charles I. c. 4.-An Act for Continuance and Repeal of divers Statutes. 3 Charles I. c. 4. 18 Eliz, c. 3. XV. BE it enacted, That interalia so much of an Act made in the eighteeth year of the reign of the said late Queen Elizabeth, intituled An Act for the setting the poor on work and avoiding idleness, as concerneth bastards begotten out of lawful matrimony: (2) With this, That all justices of the peace within their several limits and precincts 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 several counties are by the said statute limited to be done; shall continue in force until the end of the first session of the next Parliament. (1.) (1.) It is now established by several Cases, that, under the authority of this Act, the Sessions have original jurisdiction in Cases of Bastardy. 2. c. 12. Putative Fa thers of Bastard Children run ning away, how to be proceeded against. [ No. IV. ] 13 and 14 Charles II. c. 12.-An Act for the better Relief of the Poor of this Kingdom. 13&14 Char. II. XIX. AND whereas the putative fathers and lewd mothers of bastard children run away out of the parish and sometimes out of the county, and leave the said bastard children upon the charge of the parish where they are born, although such putative father and mother have estates sufficient to discharge such parish; (2) Be it therefore enacted by the authority aforesaid, That it shall and may be lawful for the churchwardens and overseers for the poor of such parish where any bastard child shall be born, to take and scize so much of the goods and chattels, 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 justices of peace as aforesaid for or towards the discharge of the parish, to be confirmed at the Sessions for the bringing up and providing for such bastard child: (3) And thereupon it shall be lawful for the sessions to make an order for the churchwardens or overseers for the poor of |