State v. Roberts

• Citation: 32 N.C. 350,10 Ired. 350
• Court: North Carolina Supreme Court
• Decision Date: 31 December 1849
• Parties: THE STATE v. JAMES ROBERTS.

10 Ired. 350

32 N.C. 350

THE STATE

v.JAMES ROBERTS.

Supreme Court of North Carolina.

December Term, 1849.

Where a single woman became pregnant in the County of Brunswick, where she had always resided, and went to New Hanover County, where she was delivered of the child, and then returned with her child to Brunswick; Held, that the justices of Brunswick had the jurisdiction, under the bastardy Act, to institute proceedings to subject the reputed father to the maintenance of the child.

Appeal from the Superior Court of Law of Brunswick County, at the Fall Term 1849, his Honor Judge DICK presiding.

This is a proceeding under the bastardy Act, to subject the defendant, as the alleged father of the illegitimate child of one Zilpha Robbins, to its maintenance. The defendant and Zilpha Robbins, both lived in the County of Brunswick--the latter being a native of it--and while in that County, she proved to be with child. During her pregnancy, she went into the County of New Hanover, where the child was born. While she resided there, proceedings were had against her under the Act, and a warrant was issued against the defendant, upon the charge of being the father of the child. What was the result of these proceedings the case does not state. Subsequently, the woman returned with the child to Brunswick County, but, when, is not stated, and these proceedings were instituted. On behalf of the defendant, it was objected, that the Justices of Brunswick County had no jurisdiction of the matter, as the warrant was not issued, while the woman was pregnant, but after the birth of the child in New-Hanover. Upon this question the whole controversy turned in the County and Superior Courts, and the latter Court having overruled the defendant's objection and directed a procedendo to the County Court, he appealed to this Court.

Attorney General, for the State .

Strange, for the defendant .

NASH, J.

There is much apparent force in the objection urged by the defendant's counsel in this case. The words of the Statute, under which these proceedings take place, are, “any two Justices of the Peace, upon their own knowledge, or information made to them, that any single woman within their County, is big with child, or delivered of a child,” &c. Rev. Stat. ch. 12, sec. 1. It is insisted, that, to give the Justices of the Peace of any County authority to proceed under the Act, the warrant must be issued, either while the woman is pregnant, or, if after the birth, in the County where that takes place. We do not accede to this construction. The words “within their County” are not necessarily connected by the conjunction, or, with the words “delivered of a child.” This will be more clear, if the ellipsis after the conjunction is supplied, as it ought to be. It would then read, “or has been delivered of a child.” And if a literal adherence to the phraseology of the Act be insisted on, we do not think it would assist the defendant. The woman had been or was delivered of a child, which was likely to become burthensome to some County. This is not a penal act, but one of police regulation, and ought to receive such a construction, as will carry out the intention of the Legislature and facilitate its execution. An unfortunate being of this description, being in the eye of the law filius mullius, becomes in the eyes of humanity filius populi, and the public is bound to take care of him, at a period of his life, when he cannot, in the nature of things, provide for himself. To take this burthen from those who have not participated in the offence, and place it on him, upon whom it ought to rest, is the object of the Act. In carrying it into execution, the first enquiry is, where does the jurisdiction rest? Certainly where the law, in the first instance, casts the burthen, that is, where the mother lives. Cases of this kind are not strictly cases of settlement, yet they are strongly assimilated to them. All children, except bastards, have their primary settlement in their father's parish; the latter, in general, where born. In cases of fraud, however, where an attempt is made, illegally, to shift the burthen of maintenance, the bastard will be settled in the parish of the mother, whence she was improperly removed. As when, after pregnancy, the woman is sent in by the order of Justices, or comes as a vagrant, to a parish, to which she does not belong, and drops her child there. 1 Bl. Com. 459. In Wood's case, 1 Sal. 121, the above doctrine was affirmed. A woman big with child was removed by order of two Justices from A. to B., and was there...