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TITLE XXV.

BASTARD.

A BASTARD is one that is not only begotten but born out 1 Bl. Com. 454, 457. of lawful wedlock, or unlawfully begotten during lawful wedlock.

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3. Of the maintenance of bastard children, and herein

of the prosecution of the putative father.

4. Of the rights and incapacities of bastards.

I. Who are bastards.

The civil and canon laws do not allow a child to remain 1 Bl. Com, 454. a bastard, if the parents afterwards intermarry: And herein they differ most materially from our law; which, though not so strict as to require that the child shall be begotten, yet makes it an indispensible condition, to make it legitimate, that it shall be born after lawful wedlock.

All children, born before matrimony, are therefore bastards by our law. And so it is of all children born so long after the death of the husband, that, by the usual course of gestation, they could not be begotten by him. But, this, being a matter of some uncertainty, the law is not exact as to a few days.

As bastards may be born before the marriage state is begun, or after it is determined, so also children born during wedlock, may, in some circumstances, be bastards. As if the husband be absent at such a distance, and for such a length of time, that no access to his wife can be presumed, her issue, during that period, shall be bastards.

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Ibid. 456.

Ibid. 457.

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1 Bl. Com. 457.

Ibid.

1785, c.69. s. 1.

Ibid.s. 2.

1784, c. 42.

Preamble of the act "to prevent the mur

But, generally, during the coverture, access of the hus band shall be presumed, unless the contrary can be shewn; which is such a negative as can only be proved by shewing him to be elsewhere; for the presumption of law is favourable to legitimacy.

In a divorce a mensa et thoro, if the wife breeds children, they are bastards; for the law will presume the husband and wife conformable to the separation, unless access be proved: But, in a voluntary separation by agreement, the law will suppose access, unless the negative be shewn. So also if there is an apparent impossibility of procreation on the part of the husband, as if he be only cight years old, or the like, there the issue of the wife shall be bastard.

So, by statute it is enacted, that the issue of all incestuous marriages shall be deemed, taken, and adjudged illegitimate, and be subjected to all the legal disabilities of such issue.

So all marriages, where either of the parties shall have a former wife or husband living at the time of such marriage, are void; and the issue thereof are illegitimate, and subject to all the legal disabilities of such issue.

II. Of the protection of bastard children.

There is a statute of this commonwealth, entitled “ an act to prevent the destroying and murdering of bastard children." The preamble of this statute is as follows, "Whereas many lewd and dissolute women, being pregdering, etc. of bastard nant with bastard children, who, regardless of natural affection, and to avoid shame and escape punishment, do conceal their pregnancy, and the birth and death of such children; by means whereof many of them perish for want of necessary and usual assistance, and it cannot be known that they are not murdered:" "Be it enacted,"

children.

Sec. 1.

&c.

The provisions of this statute are as follow,

1. If any woman shall conceal her pregnancy, and shall willingly be delivered in secret by herself of any issue of

livered in secret of a

her body, male or female, which shall, by law, be a bas Penalty for being de tard; every such woman, so offending, shall pay a fine bastard child. not exceeding the sum of FIFTY POUNDS, to the use of this commonwealth, to be recovered by information or indictment, in any court proper to try the said offence; or imprisoned, not exceeding three months; at the discretion of the court.

ing the death of a

it cannot be known

alive or not, or whe

2. If any woman shall endeavour privately, either by sec. 2. herself or the procurement of others, to conceal the death Penalty for conceal of any such issue of her body, which, if it were born bastard child, so that alive, would, by law, be a bastard, so that it may not come whether it was born to light whether it were born alive or not, or whether it was murdered or not; in every such case, the mother, so offending, shall be set on the gallows, with a rope about her neck, for the space of one hour, and be further punished by being bound to the good behaviour.

ther it was murdered

or not.

3. If the grand jury shall, in the same indictment, Sec. 3. charge any woman with the wilful murder of her infant How the jury may bastard child, as well as with either or both the offences the murder of her in

find on an indictment against a woman for

fant bastard child, for

aforesaid, and it appear to the jury of trials that she is being delivered in

secret, and for con

guilty of the murder charged; she shall be thereupon cealing its death. → convicted of murder, and suffer the pains of death, as in case of murder; but if it doth not appear to the same jury, that she is guilty of the murder charged in the indictment, but only of either or both the offences first mentioned; then the same jury may acquit her of the charge of murder, and find her guilty of the said first mentioned offences, or either of them, as the case. may be.

III. Of the maintenance of bastard children; and herein of the prosecution of the putative father.

Wright v. Wright,

In legal contemplation, a bastard is generally consider Per Parsons, C. J. in ed as the relative of no one. But to provide for his sup- 2 Mas, Rep. 109. port and education, the mother has a right to the custody and control of him, and is bound to maintain him as his natural guardian. The natural guardianship of the mo

S. C.

1785, c. 66. s. 2.

Accusation of the mother of a bastard child against the pu tative father, before

ther devolves on her husband on the marriage, in the same manner as an executorship or a guardianship deriv ed from the authority of the probate court; and the hus band's power, depending on the marriage, ceases on its dissolution. It is not like the right to the wife's chattels, which by the marriage are vested in the husband, and survive to him. The mother of a bastard child is therefore entitled to the custody of it, and shall hold it against the putative father after a marriage and divorce had.

By statute it is provided, that whenever any woman, who hath been delivered of a bastard child, or being preg. Inant with a child, which, if born alive, may be a basa justice of the peace. tard, shall accuse any man of being the father thereof, before any justice of the peace, upon examination on oath, and being put upon the discovery of the truth respecting the same accusation in the time of her travail, shall thereupon accuse the same person of being the father of the child of which she is about to be delivered, and shall The mother must be continue constant in such accusation, and shall prosecute him as the father of such child before the court of sessions * in the manner prescribed by the statute; (in

constant in such accusation.

The mother is a com- which prosecution she shall be admitted as a competent

petent witness in the

putative father.

the person accused is

to be adjudged the

reputed father of the

child, unless the jury

find him not guilty.

prosecution of the witness, and her credibility be left to the jury) he shall in such prosecution be adjudged the reputed father of such child, notwithstanding his denial, and stand charged with the mainte nance thereof, with the assistance of the mother, as the justices of the same court shall order; and shall give security to perform the said order, and to save the town or place, which might be otherwise chargeable with the maintenance of such child, free from charge for its maintenance; and may be committed to prison until he find sureties for the same, unless the pleas and proofs made and produced on the behalf of the man so accused, and other circumstances, be such as the jury, by whom the issue, whether he is guilty or not guilty, shall be tried,

*

By statute 1803, c. 154, the prosecution must be before the court of common pleas.

the person accused be

shall find him not guilty; in which case the justices of proceeding in case the said court shall acquit him thereof; and the verdict found not guilty. of the jury of the same court, whether guilty or not No appeal. guilty, shall be final respecting such issue. Provided, In what case the that no woman shall be admitted as a witness as aforesaid, who has been convicted of any crime, which would by law disqualify her from being a witness in any other

cause.

mother cannot be a witness.

on complaint of the

mother, the justice to take her examination

in writing.

And every justice of the peace, to whom complaint is made by any woman, that she hath been delivered, or is pregnant as aforesaid, and desires a prosecution against the man whom she accuses of being the father of the child; the justice shall then proceed to take her accusation and examination in writing, under oath, respecting the man so accused, and the time and place where she was begotten with child, with such other circumstances as he shall judge necessary for the discovery of the truth of such accusation; which examination shall be given in Such examination may be given in ev evidence on the trial of the issue; and, at his discretion' dence on the trial. The justice may bind may bind him that is so accused, to the next sessions, the party accused to with sufficient surety or sureties, to answer to such accusation, and abide the order of court thereon.

answer to the accusa tion.

And if the woman be not then delivered, or be unable In what case the bonds may be con personally to attend, the said court may order the con- tinued. tinuance or renewal of his and her bond, that they may be forthcoming at the next court of sessions after the birth of the child; and the continuance of such bonds aforesaid to the next court of sessions, entered thereon by order of the said court, (unless the surety or sureties shall object thereto) shall have the same force and effect. as a recognizance taken in court for the next term.

Relative to the above provisions it may be observed,

above statute.
By the court in
Brown v. Stimpson.

1. To entitle the complainant to an adjudication, the construction of the statute requires that she charge the defendant with being the father, in her travail, and that she afterwards continue 2 Mas. Rep. 443. constant in her accusation. For if it appears from the

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