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the injury is complete (or in the eye of the law has even commenced) by the birth of the child ; and it is an aggravation of the offence, if it sanctions, under any circumstances, the application of lewd women pretending to be with child.
It is doubtful whether such statutes are intended to quench the blushes of ingenuous shame, or founded in the apprehension that such shame is already extinct. It is certainly a fact, which nothing but common experience would render credible, that a woman can be brought so entirely to forget the modesty of her sex, as voluntarily and without compulsion to declare upon oath “ that she is now with child, and that such child is likely to be born a bastard, and to be chargeable, and that such a man did get her with child.” It is hardly conceivable, that any man, with the feelings of a man, should have devised such a formulary, under the name of an oath, to be dictated to a woman. The most profligate debauchee has never entertained so calum. nious an opinion of the sex, as is founded in the fact that this oath is voluntarily taken. The dignity of justice has never been so degraded, as when it is required to administer an oath so disgustingly revolting ; and the solemn adjuration, So help me God! delivered with the right hand and the lip upon the Gospel of truth and holiness, so profanely prostituted, as when it is uttered in such a manner and for such an end. It is true, that the woman cannot be compelled: what then must that woman be, who comes forward voluntarily to attest her own shame ; to acknowledge a condition which a virtuous woman will not reveal, and which the repentant sinner
would perish to conceal? Or what must be the feelings of a man of honourable principle, when his official duty goads him to tamper with the woman, to make enquiry into the fact, and to induce her to make the requisite confession ? Practice and experience may blunt the feelings, and reconcile men to the most offensive offices : and the first rumour of the village gossip is made to justify the preliminary question, if it is not anticipated in a moment of irritation by a voluntary confession.
The privilege of attesting her pregnancy affords to a profligate woman a temptation to perjury, of which she does not fear, and a means of successful intrigue, of which she does not neglect, to avail herself. The very forms of law imply that she may not be in the condition which she avows upon oath, and that the event may convict her of the qualified perjury. The magistrate cannot however refuse to act upon her declaration, and to prevent the “ hardship upon parishes” by the escape of the man, he is immediately apprehended upon the information of the woman, and required to find securities to answer the charge. If he cannot find the requisite security, he is liable to be committed to prison, where he may lie for several months, awaiting the several contingencies of the birth of the child, or the woman's marriage, or miscarriage, or death ; or the accession of fortune, which enables her to maintain the child; or the proof which time affords, that she was not pregnant, and that she was guilty of perjury in respect of the
fact. To prevent the imprisonment, a treaty of · marriage is sometimes concerted between the parties, to which, as it completes the indemnity of the parish likely to be aggrieved, the overseers assent, (and contribute secretly and as far as the law will allow,) and thus all further proceedings are suspended. The child is not likely to be born a bastard, and that he is likely to be chargeable is a contingency remote from immediate consideration. But what is the marriage which is thus concerted ? All ideas of sanctity are excluded by the circumstances of the case, and the absence is compensated by the advantage of making the best reparation to the woman, and healing the wound which public and private virtue has received. But can it be called a voluntary contract, into which a man enters while he is in custody of the constable of the parish or the keeper of the bridewell, and knows that on his taking the woman to wife depends his restoration to liberty or his return to prison ? The unseemly answers, and the unseemly conduct, common to such constrained unions, have excited the indignation and disgust of many a clergyman, upon whom the chief penalty is imposed, by the indirect operation of these laws of bastardy, and who alone is sensible of the sorrow, and the shame, and the profanation, which they inflict.
It is perfectly just and right, that the man seducing or seduced should be required, if the circumstances will permit, to marry the woman whom he has debauched. It is a law of the Scriptures, which has been adopted both by Christian and by heathen legislators, and which is recommended on the authority both of reason and religion ; but it is a result which the present state of the English law is more calculated to prev: it than to promote, or at least to force than to conciliate. It is worthy of the most
serious consideration, whether the law might not be so modified, as to admit the appearance in all cases, and in some to accomplish the reality, of a voluntary contract, which it is known that the parties will frequently concert between themselves, if they are urged by the certain terrors of the law, but not precipitated by the indiscretion of the woman, or the premature interference of the overseer. In Scotland, the good effects of making the woman answerable for the maintenance of the child have been seen to produce increased circumspection on the part of unmarried women. The man also might be rendered more cautious, if he was assured that he could not debauch the virtue or take advantage of the compliance of a woman, without incurring penalties only to be avoided by marriage before the birth of issue ; and the general effect of improved energy and simplicity in the law, cooperating with the progress of religious education, and the proper consequence of that education, the renovated virtue of the people, would be the decrease of bastardy, and more prudence and deliberation in the marriages of the poor.
The improvements most immediately required in the law of bastardy are, to abolish the permissive power of examining the woman before the birth of the child ; to leave her without enquiry and without redress to the consequence of her offence; to compel the lewd mothers of bastard children, whether chargeable or not chargeable, to declare the father within a limited period after the birth ; and to subject them in all cases to a solitary imprisonment, under the regulations prescribed by the statute 50 Geo. III. c. 51. This would prevent the possibility
of the woman's perjury in respect of the fact; it would supersede the administration of the obnoxious oath and the upseemly enquiries which are at present allowed ; and it would make the woman more cautious of prostituting her virtue in the first instance, and more anxious in using her best influence to consummate the marriage before the birth of the child, which would otherwise be born in bastardy, and of which the birth would be a criminal offence, to be followed by a penal prosecution. The reviyed doctrine of the crime and the penalty might produce new apprehensions of the nature of an act, which, because it is found to be venial, is too often conceived to be innocent and inoffensive.
The circumspection of the man might also be excited, by making him also liable not only to his proper share in the maintenance of the child, but to a certain penalty, whether of fine or imprisonment, or both, which should be increased by any difficulty in apprehending him, or in procuring the necessary order of filiation in conformity with the Act 49 Geo. III. c. 68. and which should only be obviated by the marriage of the woman before the birth of the child. It is a common practice to commute the maintenance settled in the order of filiation for the payment of a certain sum indemnifying the parish : but it is here proposed to levy a fine in addition to the fixed weekly maintenance, and to regulate the amount of that fine by the circumstances of the individual, so that it should operate with equal force upon men in different conditions of life. A variable fine, paid to the parish as a penalty for the moral offence, and as a compensation for the civil injury, would remove