THE
BREVIER LEGISLATIVE REPORTS.
FOURTEENTH VOLUME.
INDIANA LEGISLATURE.
The Bastardy Act.---Debate in Continuation.
IN SENATE.
WEDNESDAY, January 22, 1873.[Afternoon Session.]
Mr. BROWN called up the special order, being Mr. Neff's bill [No. 36,] to amend the bastardy act. The amendment provided that if any person other than the mother, shall be appointed trustee of the fund for the maintenance and education of the illegitimate child, such person shall give bonds for the faithful performance of his duty, and prohibits the dismissal of any bastardy case upon the application of the mother until the Court should have been fully advised by a written statement entered of record of the promises made for the maintenance and education of the child, and shall be satisfied that the settlement is just and sufficient.
Mr. FRIEDLEY of Lawrence. I hope this bill will not pass. I do not think this change is necessary. I believe the present act is giving satisfaction to the people of the State. And I am opposed to this change for the reason that it compels parties to go into the courts when they are unwilling to go. When a suit is commenced, however desirous the prosecuting witness may be to end the suit, the power is taken away from her, and she is scared or driven into court whether willing or not. Now it is not a light matter for a prosecuting witness to be compelled to go into court and tell her story of sorrow and distress, and misfortune to the public, and my judgment is that you would do much to degrade and debase that prosecuting witness by such a course; and that the evil will be greater than the good of this act. I am opposed to the principle of taking away from the prosecuting witness the right to settle her case whenever she sees proper to do so. I do not know why we should discriminate against women thus unfortunate and say that they are not able to decide for themselves.
Mr. O'BRIEN. I understand this bill to provide that the settlements must be made with the approval of the Circuit and Common Pleas Courts. An old bench decided that under the present law settlements could not be made before justices courts and a subsequent bench decided otherwise. The idea of the law is to protect the children themselves and make provision to keep them out of the alms house. These settlements are sometimes made for twenty-five and sometimes one hundred dollars. Many times these mothers are of a weak and feeble mind. Now if they are permitted to settle their matters out of court without any rule to govern them the result is that no provision is made for this class of citizens. I am of the opinion an amount should be fixed below which no settlement should be made. And if the mother is incapable of taking care of the infant a guardian should be appointed to take care of the child. I am in favor of this bill because I think it is an improvement on the law we now have. I wish it was a greater improvement.
page: 343[View Page 343]Mr. NEFF. I introduced this bill originally, but there has been some amendment made to it since. The bill as I introduced it provided for changing the jurisdiction also. That part of the bill the committee struck out. As a general proposition these cases before Justices of the Peace are perfect farces, and I think they should go out of Justices courts. It is not a question as far as the law is concerned, of settlement between the putative father and the mother, but between the putative father and the people of the State on relation of the mother. If the mother is allowed to defeat the operations of the law it throws the child upon the authorities of the county, and this bill is as much in the interests of the people of the county, as it is in the interest of the mother, that whatever kind of settlement is made shall be a proper one.
The Senator from Lawrence [Mr. Friedley] objects to this bill on the ground that it compels the mothers to go into court. I understand that it does not change the present principle of law one iota in that respect. She may settle the whole difficulty without even going before a Justice of the Peace. This bill would simply change the power of the mother to settle the difficulty after she has once gone into court - after the matter has passed from the jurisdiction of the Justice of the Peace, without the intervention of the court. It is generally an unfortunate class of persons who get into these difficulties, and the law ought to throw its protection around the people of the State and around the child. I think this bill commends itself to the judgment of every Senator. I see no ground for objection to it. It simply proposes to protect the mother and the child against the imposition of scoundrels.
Mr. BROWN favored the passage of the bill, and especially of the requirement that provision shall be made by the father, for not only the maintenance but the education of the child. The more stringent we make the law against the father the less likely men will be to commit the offense. He would be in favor of making the law penal, to teach men that they can not commit this crime against society with impunity.
Mr. DWIGGINS would vote to make the offense a crime, but to compel the father to provide in advance for the education of the child and if he was unable to do so to thrust him into prison he thought was going too far.
Mr. HOUGH read the present statute to show that since its enactment the courts have been empowered on conviction of the father to compel him to provide both for the maintenance and education of the child. There is no lawyer but sees the propriety of requiring by law that whenever a compromise has been effected it should be made the duty of the court to take control of that compromise and see that such provisions for the maintenance of the child are made as is contemplated by the statute. The obligation to educate and maintain a bastard child is just as strong in morals as with reference to any other child. The law should be so amended that the father shall not escape the obligations that justly rest upon him in consequence of his act. I cannot see how any man caring anything about the interests of the State can cast his vote against a bill of this character.
Mr. STEELE insisted a change was made by the bill in this regard, that, whereas, under the existing law, a settlement may be made on the basis of a provision by the putative father of the child for the maintenance of the child alone, the bill requires that the father must provide, even in a compromise, for both the maintenance and education of the child. The provision would work severely against the poor man who, unable to provide for the education of the child, would be thrown into prison.
Mr. SLEETH. I do not apprehend this bill will change the practice materially. In every case where a proper compromise has been made under this bill, should it become a law, the courts will approve it; but where a weak-minded girl is imposed upon and makes an improvident contract, the court will set it aside as he ought to. So this bill would not prevent a compromise in any case where it ought to be carried out. A young woman who has fallen into the unfortunate condition contemplated in the bill, is usually deserted by her friends, and is peculiarly subject to the influence of the father of the children. Unless, therefore, the Court is empowered to guard her interests, she is likely to be deceived and imposed upon. As between these two parties the one standing friendless and alone; the other backed by friends and perhaps wealth, the courts should see that justice is done. As it is now, all that is required of her is to come into court and say that everything has been settled to her satisfaction - what that is no one knows except the defendant and herself. I say the provisions of this bill which require the terms and conditions of the compromise to be approved by the court, are wise and just, and for that reason I propose to support this bill and vote for it.
Mr. GOODING. I think this bill has occupied as much time as the importance demands. There is one objection to the bill I should like to have remedied. Some provision should be made for the release of men who are imprisoned by reason of inability to page: 344[View Page 344] pay the judgment against them. When a man is put in prison because he is not willing to pay what is decreed against him, there is no provision made for his getting out, and I do not understand that any means are afforded by which he can make money while imprisoned. We ought not to compel Judges of courts to resort to subterfuges to avoid the law. I think that there ought to be an amendment to the bill that the time of imprisonment should not exceed one year, provided however, that such release shall not operate to extinguish the debt. If the Senate will allow such an amendment I will vote for the bill.
Mr. DITTEMORE objected and the amendment was not introduced.
Mr. WILLIAMS. Is it better to allow the parties to compromise and let the woman take what she can secure, or is it better to take the course proposed in the bill and have the whole matter spread upon the records of the court for the inspection of the present and future generations? Then, if the matter is compromised perhaps it can be done without much cost, but go into court and the first money made for the unfortunate woman, where does it go to? To the child? No, sir, the court fees must be paid, and the attorneys fees must be paid. I think the law is good enough as it is.
Mr. FRIEDLEY of Lawrence. Under this bill, should it become a law, the moment a woman puts her name to an affidavit charging any person with being the father of her bastard child she is then in the hands of the court. I need not call the attention of the attorneys to the character of trials of this class. Every Senator knows that whenever one of these cases comes up for trial we always find the court-room filled; and do gentlemen believe that the cause of humanity demands that such disgusting details shall be made public before these large audiences. And how is the court to determine what amount of money should be paid unless he hears the case? The defendant don't confer when he is compelled to go into court, what good would a confession do him?. Mr. F. contended that the bill would operate against the cause of humanity, morality and Christianity. When he had concluded -
Mr. HAWORTH demanded the previous question.
The Senate seconded the demand and under the operations of the previous question the bill failed to pass - yeas 21, nays 21 for want of the constitutional majority of 26 votes. [See middle of second column page 63.]
Pending the roll call -
Mr. ORR, when his name was called said: In explanation of my vote I wish to say that as I understand this bill it prevents an improper compromise being made between a woman and her base seducer - it gives the court the power to annul such a compromise. I think this bill makes that matter clear, and with this conviction, I vote "aye."
So the bill failed.
