Strictly speaking, a bastard has no surname until he has acquired one by reputation, and in the meantime he is properly called by that of his mother. The mother of an illegitimate child is entitled to its custody, although if such child, within the age of nurture, be frau dulently taken from the mother by the putative father, the order of the justices to restore it to its mother is not sufficient. The remedy is by habeas corpus in the Court of King's Bench. Lord Stowell was of opinion that the father of an ille gitimate child " had very little (if any) parental authority." (Phillimore's Burns, i. pp. Before the passing of 18 Eliz. c. 3, it is considered that the cus tody of an illegitimate child was in the hands of the parish, and after this enact, ment it was a question whether the father could take the child out of the possession of the parish.
The first English statute which pro. vides for the maintenance of illegitimate children, is the 18th of Elizabeth, cap. 3, which conferred on justices of the peace the power of requiring from one or both of the parents a weekly or other payment fur their support, and in default thereof, of committing them to jail until they found surety to make such payment, or else to ap pear at the next quarter-sessions to abide the order of the justices. The 7th James 1. c. 4, punished a woman having a bastard chargeable to the parish, with one year's imprisonment and labour in the house of correction ; and for a second offence she was to be committed to the house of correction until she could find sureties for her good behaviour. The 30th of Geo. III. c. 51, repealed this power, and enabled the justices to sen tence the woman to imprisonment for any period not less than six weeks nor more than a year. As bastards were frequently left to the charge of the parish by the parents running away, an act was passed (13 & 14 Car. II. c. 11) which enabled the overseers to indemnify themselves at the cost of the putative father. By 6th Geo. II. c. 31, and 49th Geo. III. c. 68 (which repealed the former act and then re-enacted it with some variations), on a single woman declaring herself to be pregnant, and charging any person with being the father, a justice's warrant could be ob tained for his apprehension, on the appli cation of the overseer or any substantial householder, and such person might be committed to jail, unless he agreed to indemnify the parish. The justice had no power to examine into the merits of the case, but was compelled to act upon the woman's oath, and to commit the pu tative father if the necessary surety was not provided. The man had the option of marrying the woman, contributing to the maintenance of the child, or of going to jail. Under the act of Elizabeth and later acts of parliament, down to the passing of the Poor Law Amendment Act in 1834, the usual practice was for the mother to apply for relief to the parish officers, by whom she was carried before the magistrates to be interrogated re specting the paternity of the child. An order of filiation was then made, and the reputed father was ordered to contribute a weekly payment, or was bound to in. demnify the parish against the future expenses of maintenance. " In form the proceeding was against the putative father for the indemnification of the parish ; but in substance it was a pro ceeding of the mother against the puta tive father, the benefit of which accrued to her, and to which the parish was little more than a nominal party, except when it made good the father's default. It was in truth an action of the mother against the putative father, for a contribution towards the expenses of their common child, in which, by a fiction of law, the parish was plaintiff." (On the law con cerning the maintenance of bastards, by the Poor Law Commissioners, Parl. paper, No. 31, Session 1844.) In this state of things, the Commissioners of Poor Law Inquiry (1834) recommended that the mother of a bastard should be ren dered liable for its maintenance, but that she should be exempted from punishment under 30th Geo. III. c. 51, and that all enactments charging the putative father should be repealed. The Bill for amend ing the Poor Law, brought in in 1834, contained clauses for giving effect to this recommendation ; but a clause was in troduced into the Bill in the Commons authorising the making of orders of af filiation in petty sessions. In the House of Lords the Bill was amended in the form in which it ultimately passed (4th & 5th William IV. c. 76, §§ 72-76).
The law now was, that the parish might still apply for an order upon the putative father, but this was to be done at the quarter-sessions, instead of the petty sessions ; and corroborative evidence was required ; and other difficulties and onerous conditions were thrown in the way, which increased the trouble and ex pense of all parties, and showed that " the object of the Legislature was to impede rather than encourage the applications to quarter-sessions, and by so doing to con form partially to the recommendation of the Commissioners of Inquiry, that the remedy against the supposed father should be abolished altogether." (Re port of Poor Law Commissioners to Se cretary of State, May, 1835.) The num ber of bastards affiliated in England and Wales, in the years ending respectively 25th of March, 1835 and 1836, was 12,381 and 9,686. The practice of affiliation was therefore rapidly diminish ing under the Poor Law Amendment Act, but the obstacles which it threw in the way occasioned great complaints. It was alleged that the putative father was not punished, while the consequences fell solely upon the woman. In 1839, there fore, an act was passed (2 & 3 Vict. c. 85) which transferred the power of making orders in bastardy from the quarter ses sions to any two justices in petty sessions, and facilitated instead of discouraged affiliations. The controlling power of the Poor Law Commissioners was here of use in preventing evils which might otherwise have attended a change from one principle to another of an opposite kind. Payments by putative fathers under orders in bastardy have, under 2 & 3 Vict., limited to the cost of the relief actually given ; they have been made bona fide to the parish, and there fore the parish has not been a purely formal party to the proceeding, and a mere skreen to the woman." (Report of Poor Law Commissioners, Jan. 31st, 1844.) The law respecting bastardy has been still more recently the subject of legislation, and by 7 & 8 Vict. c. 101, the principle of charging the putative father is totally different from that of any previous law on the subject. " Formerly the remedy was intended exclusively for the parish : now the mother alone can obtain it. . . . Formerly the chargeability of the child, either in fact or in prospect, was the ground of the remedy: now the actual or probable chargeability of the child is made wholly immaterial." (Offi cial Circular, No. 39, Oct. 1, 1844.) The officers of all parishes and unions are deprived of the power of applying for orders of affiliation with regard to ille gitimate children born before or after the passing of the act, and the mother alone is entitled to apply for such order ; but in case of the death or incapacity of the mother, the guardians (or if there are no guardians, the overseers) may enforce an order, although they cannot apply for one, and payments are to be made to some person appointed by the justices to have the custody of the child, and not to the parish officers; and such person is to re ceive the child on the condition that it is not to be chargeable. Parish officers are guilty of misdemeanour for endeavouring to promote the marriage of the mother of a bastard by threats or promises re specting any application to be made for maintenance. The mother of a bastard may summon the putative father before the petty sessions within twelve months after the birth of the child, or at any time on proof of money having been paid to her in respect such child. The justices may then make an order on the putative father for maintenance of the child and other costs, and enforce the same by distress and commitment; but not more than thirteen weeks' arrears can be claimed. The sum paid for main tenance is to be paid to the mother, and if she neglect or desert her offspring she may be punished under the Vagrant Act (5 Geo. IV. c. 83). The liability of the mother, while unmarried or a widow, continues until the child is sixteen. Any person having the care of a bastard child under an order of maintenance, who mal treats it, or misapplies moneys paid by the putative father fbr its support, is liable to a penalty of 10/. on conviction before two justices. The putative father may appeal to the quarter-sessions, as under the old law. All orders for the main tenance of a bastard cease after it has attained the age of thirteen, or on the marriage of the mother. Existing orders are to continue, but those made before August 14, 1834, are to cease on the lst of January, 1849.