In re Murphy

23 N.J.L. 180

• Court: Supreme Court of New Jersey
• Decided: November 15, 1851
• Status: Published

Opinion

The Chief Justice

delivered the opinion of the court.

An order of filiation and maintenance was duly made, by two justices of the peace of the county of Essex against Thomas Murphy, as the putative father of a bastard child, born in the township of Orange on the 25th of March, 1851. The order bears date on the 5th of June, 1851. The putative father, having made default in not performing the order or giving security, as provided for by the first section of the act concerning .bastards, was, by the order of the said justices, committed to the common jail of the county-of Essex. An application having been made to a justice of the peace for his .discharge under the fourth section of the act, on the ground that the order of filiation and maintenance was not made within six weeks after the birth of the child, the justice refused a discharge. This court is now asked to allow a mandamus to compel the justice to grant the application, and discharge the prisoner.

The legality of the decision of the justice depends entirely upon the question, whether the putative father of a bastard child, against whom an order of filiation and maintenance has been made more than six weeks after the birth of the child, and who has been committed to jail for not performing that order, can be discharged from imprisonment under the fourth section of the act for the maintenance of bastard children. (Rev. Stat. 903.)

The provision of the fourth section is, that upon application made by any person committed to.jail by virtue of this act, &c., he shall be discharged, if no order appears to have been made within six weeks after the birth of the child. This language is broad enough to include as well persons committed under the first, as those committed under the second section of the act. What is the real intent of the enactment, will be best ascertained by considering the origin and design of the leading provisions of the law, and the particular structure of the section more immediately in question.

The first section of our act is substantially a copy of the English statute of 18 Eliz. c. 3. The second, third, and fourth sections are almost a literal transcript of the first, second, and third sections of the statute 6 Geo. 2, c. 31. As the English statutes stood, there could be no question as to their true meaning, and the doubt under our statute is created, not by any change of phraseology, but simply by embodying the two English statutes into one. So that the phrase, “ this act,” as transferred .from the statute of Geo. 2 to the fourth section of our act, is made, in terms, to apply not only to the statute of Geo. 2, as it originally did, but also to the statute of Elizabeth, embodied in the first section of our act. To express with precision the idea of the English statutes, the phraseology of the fourth section of our act would be, “ that upon application made .by any person committed to jail by virtue of the second section of this act, he shall be discharged, if no order appear to have been made pursuant to the first section of this act within six we¿ks,” &c. As it stands upon the English statute book, that section is simply a proviso, that if any person is committed to jail or the house of correction by virtue of the act 6 Geo. 2 (corresponding to the second section of our act), he shall be discharged from imprisonment, if no order of filiation and maintenance be made within six weeks after the birth of the child. Bac. Abr. tit. “Bastardy," D. 521-2-3-4.

Tim object of the entire law is to compel the father or the mother of a bastard child to support it, and thereby relieve the township from its support. The first section, which was the statute of Elizabeth, gives authority for what is familiarly termed the order of filiation and maintenance. It empowers two justices to take order for the better relief of the township and for the keeping of the bastard child, by adjudging who is the father, and what sum the mother or reputed father shall pay weekly, or at other stated times, for its support and maintenance. Upon the order being made, the party charged may either give security to perform it, or to appear at the uext Court of Quarter Sessions in the county, and abide such order as that court shall make; or if the sessions make no order, then to abide the order of the justices. If such security be not given, that is, if the party charged will neither appeal from the order, or give security to perform it, he shall then, by order of the justices, be committed to the house of correction or common jail of the county, there to remain without bail or mainprise. The order of filiation and maintenance is an adjudication in the nature of a final judgment, and, unless appealed from, is final and conclusive upon the parties. Donnelly v. Vandenbergh, 3 J. R. 27; Wallsworth v. Mead, 9 Jr. 366 ; The People v. Rappelyea, 16 J. R. 165. See also Burr. Sett. Cas. 168, 192, 276, 551.

The order of the justices committing the party charged with the maintenance to jail, is in the nature of an execution of that final judgment, designed to carry it into execution, and to enforce compliance with its mandate. And when the party can be found, this is the only mode of enforcing the judgment; though, if he absconds, his property may be seized, and appropriated to the maintenance of the child, under the provisions of the fifth section of the act. After the order of the justices committing the defendant to jail under the first section of the act, the statute contemplates no further proceedings. The judgment is rendered, and the sentence executed.

This order of filiation and maintenance may, by the statute of Elizabeth, be made at any time after the birth of the child, whenever it shall become chargeable to the township. ' No time is limited within which the order is to be made, so that it be made before the child is twenty-one years old. King v. Mills, 10 Mod. 271; 1 Burns’ Just. 280.

But, by the provisions of this section, the statute of Elizabeth, no step could be taken to charge, either the father or the mother, till the child was born and had actually become chargeable. King v. Nelson, Vent. 37 ; Comberback 39 ; Penn. 870 ; Grif. Tr. 356; N. Jersey Justice 162. In consequence-of which the act was often rendered inoperative by the father and mother absconding before the child had become chargeable. This led to the enactment of the statute 13 and 14 Car. 2, c. 12, § 19, (corresponding with the fifth section of our act) which authorizes the goods and the profits of the lands of the absconding parents to be seized and appropriated to the relief of the township, in bringing up and providing for the child. The law, however, was still found to be in many instances ineffectual, for the father, though of ability to maintain the child, 'might abscond before the child became chargeable, leaving no property behind him. This gave rise to the statute of 6 Geo. 2, which is embraced in the second, third, and fourth sections of our act. This statute provides, that if any woman shall be delivered of a bastard child, which shall be chargeable, or likely to become chargeable to any township, or shall declare herself to be with child, and that such child is likely to be born a bastard, and chargeable to any township, and shall, upon oath before a justice of the peace of the county, charge any person with having gotten her with child, such justice shall, upon application for that purpose by an overseer of the poor, issue his warrant for the apprehension of the person so charged; and, upon his arrest, shall commit him to the house of correction or common jail of the county, unless he either give security to indemnify the township, or enter into recognisance to appear at the next sessions, and abide such order as shall be made in pursuance of the act. The obvious design of this section is to compel the putative father to give security to indemnify the township, in the event of its becoming liable for the maintenance of the child. It authorizes the father to be arrested, and detained until an order of filiation and maintenance may be made under the provision of the first section of the act.

He is arrested and committed upon the mere charge of the woman, that he has gotten her with child. No trial can be had ; no investigation of the truth of the charge can be made before the justice; no final adjudication can be made by him. No original order can be made, even by the sessions. Their jurisdiction is appellate merely. They can only act upon an appeal from the order of the justices. Slater’s case, Cro. Car. 470 ; Rex v. England, 1 Strange 503; 1 Burns’ Just. 284; Elmer’s Forms 48 ; Elmer’s Dig. 40, note.

The party charged must therefore either give security, or go to jail, and there remain until the child be born, and an opportunity be afforded to make out an order of filiation and maintenance under the provision of the statute of Elizabeth, (the first section of our act).

But it may happen that the woman making the charge shall die, or be married before she is delivered, or she may miscarry, or may appear not to have been with child. And hence the first proviso of the statute of George 2, the third section of our act, which provides that in either of these contingencies the person charged as the father shall be, at the next sessions, immediately released out of custody.

But, again, the person is arrested and detained upon a mere charge of being the father of the child, the truth of which he has no means of repelling or investigating until an order of filiation and maintenance be made. That order cannot be made, as we have seen, till the child is born, and has become chargeable, though it may be made years after the birth. To guard, then, against an unreasonable detention of the prisoner, another proviso is added to the statute of George (contained in the fourth section of our act), which is, that the person so committed shall be discharged from imprisonment, if no order of filiation and maintenance shall be made within six weeks after the woman shall have been delivered. This discharge does not avoid the order of filiation and maintenance, if made, nor does it prevent such order from being subsequently made ; it merely relieves the person from being held longer in custody to await the making of the order. 1 Burns’ Just. 280 ; Ewing’s N. J. Justice 161.

This is the clear and unequivocal provision of the English statutes ; it is the undoubted reason, intent, and policy of ours. It has so -been understood by the elementary writers, in their commentaries upon our law. Grif. Treat. 361, 362; N. Jersey Justice 160, 161.

If this section be construed to relieve from imprisonment a person in confinement upon execution under the first section of the act, for not obeying an order of filiation’and maintenance, it leads to the manifest subversion of the design and policy of the law. For, upon such construction, it must be insisted either that no order of filiation and maintenance is valid, if made more than six weeks after the birth of the child, or if valid, that it cannot be enforced by imprisonment. If it be void, then all that is necessary to evade the statute would be for the mother or father to prevent the child from becoming chargeable for six weeks after its birth. If the order be valid, but the imprisonment illegal, then the order is nugatory. For there is no mode of enforcing it against the will of the party but by imprisonment. Such results could never have been within the contemplation of the legislature.

I am strongly disposed to concur in the view expressed by the magistrate, that where two or more statutes, whose meaning is plain or whose construction has been long settled, are consolidated into one, without any change of phraseology, the same construction ought to be put upon the consolidated act as was given to the original statutes. But, without resting upon this point, it seems clear that a different construction ought not in such case to be adopted, if thereby the policy of the act is subverted or its material provisions defeated. The law is not to be construed by its mere letter. The intent of the legislature is to be ascertained from the context, the effects and consequence, and the reason and spirit of the law.

In what has been already said, I have considered the case as though the words of the fourth section did naturally or necessarily apply to the first section of the act. But a careful examination of the act will, 1 think, clearly demonstrate that, upon the most strict literal interpretation, the fourth section cannot be construed to relate to the first section of the act. It has already been said that the third and fourth sections are mere provisos of the second section. They were so by the statute of George. They are so by their grammatical construction and relation in our act, as clearly as if they had been included in one and the same section. The proviso of one section is designed to limit the meaning or qualify the operation of that section alone, not of the entire act.

Again, the person imprisoned is, by the provision of the fourth section, to be discharged, if no order shall appear to have been made within six weeks after such woman shall have been delivered. What woman? Obviously the woman specified in the preceding proviso, viz. the woman so charging any person as aforesaid. This, it is admitted, relates to the second section, which provides that if a woman delivered, or likely to be delivered, of a bastard child shall eharge any person with having gotten her with child. But no woman is referred to in the first section as charging any person. The contingencies provided for in the third and fourth sections are the death or marriage of the woman (making the charge specified in the second section) before her delivery or her miscarriage, or her proving not to have been with child, or no order being made -within six weeks after her delivery. In very terms the provision of the fourth section is limited in its application to the second section of the act.

Again, it is worthy of notice that the first section of the act authorizes the imprisonment both of the father and of the mother of the child. The second section anthorizes the imprisonment of the father alone. The fourth section provides for the discharge of the father alone. If designed to apply to a commitment under the first section, it would have provided for the discharge of the mother as well as the father.

Though it afford no legitimate ground to control or influence the judicial construction of the statute, it is yet interesting and satisfactory to know that there is the clearest evidence, incidentally afforded, that there was no intention in the draftsman of our act, or in the legislature that enacted it, to alter or modify the interpretation of the English statutes. The original act for revising and digesting the laws, passed on the 24th of November, 1792, (Pamph. 794) merely authorized Governor Paterson to collect and to reduce into proper form all the statutes of England and of this state which then remained in force here, and, where several laws related to the same subject matter, to reduce them into one law. By the act of the 29th of May, 1793, (Pamph. 843) he was authorized, according to his discretion, to alter and modify the criminal law; and by the act of the 19th of March, 1795, (Pamph. 1074) he was authorized, according to his discretion, to collect, alter, and modify such of the laws as he had not then reported on. The act in question, as appears by the Senate Journal, was reported by him on the seventh day of November, 1794, and became a law on the 26th of February, 1795, before the passage of the last mentioned aet. At the time the'revisor drew the act, he had no power either to alter or modify' the law, and it was clearly so understood both by himself and by the legislature. And it also appears, by the original draft of the bill in his own handwriting, that it was drawn and reported by him containing the identical provisions of the English statutes, and in the exact shape in which it now stands, except that the third proviso of the statute of George was reported as the fifth section of our aet. That section was subsequently sticken out in council. Inasmuch, then, as the revisor had no authority to alter- the law, and as he reported the act, so far as the point now under consideration is involved, in the precise words of the English statute, it is safe to conclude that no alteration was intended.

The order of the justice, refusing to discharge the prisoner, was right, and upon this ground (without intimating any opinion upon the question, whether a mandamus is the appropriate remedy) the mandamus must be denied.

Mandamus refused.

Cited in State v. Hale, 1 Dutch. 328.