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from the woman the temptation of taking advantage of a wealthy seducer, and from the man of gratifying his passions at the small expence which is incurred in the maintenance of the child. i se
While bastardy would thus return to its criminal character, the proposed arrangements would not be liable to the objection of removing the necessary indemnity required for the civil injury sustained by parishes, which could hardly fail to be relieved by any revision of the law of bastardy. It is common to complain, and there is but too much reason to complain, of the increase of bastardy, and of the heavy burthen which it imposes upon parishes. The present expences of apprehending the man, and of the subsequent order of filiation ; the possibility that the man may from various causes be incapable of making the stipulated payments ; the poor compensation which arises from his commitment in discharge of the debt; the frequent loss of the orders of filiation; and the manifold evils which arise from involuntary marriages; are such as, compared with the chances of the infant's life, leave so little for the remuneration of the parish, as to render it very doubtful, whether on the average of cases entire forbearance might not in a pecuniary view be the more profitable course. The parochial injury, however, is the lowest point of consideration; the permanent and perpetuated mischief and misery of forced and imprudent marriages exceed the casual evils of bastardy: and it is apprehended, that if the burden of parochial rates, which in the same degree that it oppresses the rich degrades the poor, shall ever be lightened, the effect must be produced by enact
ments devised in a very different spirit from the laws of bastardy, and calculated to renovate the moral energies of the people, and to restore them to a state of self respect, and to a proud independence of all resources but the just reward of virtue, honesty, industry, temperance, and frugality.
Entire forbearance might however be neither morally just nor politically expedient; and if any doubt should be thrown on the expedience of the penal fine, it is obvious to answer, without insisting on the sin or the crime of incontinence, which includes the offence of bastardy even before the birth of the child, that bastardy is already and under the existing law of a criminal character, an offence in the too obsolete language of the Statute, contrary to God's law or man's law; and that, as a crime recognized by the older laws, it calls for punishment, and is liable to punishment', although the offence is chiefly suspended on the civil injury. The wrong done to the parish is not however to be compared with the injury to the mother, who suffers all the accumulated evils of seduction; or to the child, who is born
.!“Rex v. Bowen. 5 T. R. 157. W. Bowen, being a private soldier in actual service, was committed on a charge of bastardy, for refusing to give security to indemnify the parish. .... The Quarter Sessions ordered him to be committed to custody, and they stated a case upon the preceding circumstances for the opinion of the court of K. B.... The court decided that a private soldier might be committed upon such a charge, and that the charge itself was of a criminal nature.” Burn's Justice. See also the Term Reports: the substance of the case may be thus stated: Bastardy not merely a civil offence, but a criminal, and before the birth of the child, for it is incontinence. This was the ground of Lord Kenyon's judgment.
either chargeable or not chargeable: in the one case he is incapable of inheritance, the child of no one, born to, suspicion and dishonour which he has not deserved, and often through life excluded from con, nexions, which he has the merit to adorn; in the other case he is born a degraded pauperk, sustained from his very birth at the expence of the parish, educated in a workhouse or an hospital, disowned and rejected from his natural family, often abandoned by his mother, destitute of a friend in whom he may confide, or from whom he may expect to receive control, protection, and advice, and born like the half-castes of India, to the inheritance of “anguish and ignominy, for which the gift of life is no recompence.” There is an offence in giving birth to such a child, which should not be followed with impunity, of which humanity and justice demand the penalty, and which every motive of hope, and of fear should be employed to restrain..
The evils of bastardy are hardly seen in the busy scenes of the metropolis ; in the manufacturing dis
k“ St. Nicholas Leicester, appellants, and All Saints', Derby, respondents. This was a case of appeal at the Sessions for Derbyshire: when the court confirmed the order subject to the opinion of the King's Bench upon a special case. The court quashed the order. The question arose upon the removal of an illegitimate child, born in the Black Friars, Leicester, an extraparocbial place, to the settlement of the mother: and the effect of the decision is to establish, that illegitimate children, born in extra-parochial places, are irremovable to the settlement of their mothers, and consequently having no settlement of their own, must be maintained as casual poor by the parishes in which they may happen to be from time to time resident." Public Prints, June, 1824.
tricts the burthen is oppressively felt ; but it is in the supposed simplicity of rural life, that there is leisure to contemplate the moral wrong and the legal abuse, and to point out the relief which is required. Magistrates and clergymen in the country have too frequent proof of the offence, and of the necessity of an improved system of control. It is hoped that there is already an improved disposition to make the best reparation for the offence by a voluntary marriage, without the interference of the overseer, and that there is less frequent occasion for the significant presence of the constable, as the witness of a marriage by licence, which is restricted by the Canon to the use of " such persons only as be of good estate and quality," and the fraudulent purchase of which may subject the parties to an action. If there be a progress to jinprovement, it is desirable that it should be accelerated and confirmed by the introduction of a more efficient and more simple system. The system which has been recommended is grounded in the Scriptural law of seduction, that a man should marry the woman whom he has debauched, or pay a penalty for the offence. When it is known that the only alternative is marriage or punishment, there will be a strong motive to avoid the offence or prevent the penalty; and thus the dignity of marriage may be restored from the degradation of a forced and involuntary contract; and the crime and mischief of bastardy will be restrained.
To the discussion of the principal and most important questions relating to the doctrine and law of marriage, adultery, and divorce, it is only neces. sary to annex a very brief recapitulation of the course of argument which has been pursued ; and it is hoped, that if the investigation shall result in the exhibition of a clear, consistent, and harmonious doctrine, it must be founded in principles that are true, and certain, and worthy to be maintained.
The principle on which the whole theory is constructed, is, that marriage is a divine institution, and this principle is maintained not only on the common assertion of the primitive writers, and the constant tradition of the Church, but on the combined authority of the Old and the New Testaments, and it is proved by the providential care which has watched over the preservation of marriage, and made provision for its perpetual use in the conveyance of good to mankind. This doctrine is not liable to any imputation of superstition, nor does it involve the inference of a sacramental character. The merely civil contract of marriage, for which some writers have contended in preference to the divine institution, has been shewn not to be held without limitations in the law of England ; to be inconsistent with the circumstances under which marriage originated and became the parent not the child of civil society; to place the rights of marriage in subjection to certain restrictions ; to weaken its obligations; to make