
    Goddard vs. The State.
    The affidavit of a single woman upon her examination before the committing J ustices, that the defendant is the father of her bastard child, is competent evidence of that fact; she need not be examined in open court.
    The defendant’s affidavit that he is not the father, &c. will not (under the provisions of the act of 1822, ch. 29,) entitle him to a jury to try that fact.
    The acts of Assembly authorising the court without the intervention of a jury, to make an order on the defendant to maintain the child, are not unconstitutional.
   Opinion of the court delivered bj

Judge Catron.

On the 23d of April, 1824, Betsey Hinton, a single woman, being with child, on her examination on oath by two justices of the peace for the county of Knox, charged William Goddard with being the father; upon which, process issued to bring him before the county court of Knox, to answer the said charge. Upon this process Goddard was brought into court at its October sessions, 1824; and at the said term made affidavit, thus: “ State vs. Wm. Goddard. In this cause the defendant maketh oath, that he hath been accused and charged by Betsey Hinton, to be the father of an illegitimate child begotten on her body, and that he, affiant, states he is not the father of said child, and requires that justice may be done him by having the fact tried by a jury of his country. William Goddard. Sworn to in open court, 7th October, 1824. Wm. Swann, D. C.”

The record then states, that afterwards, at the same term, came the Attorney General for the State, and (he defendant, and the issue made in this cause being tried by the court: therefore it is adjudged by the court, that the said William Goddard be the reputed father of the said Betsey Hinton’s illegitimate child, and that he stand charged with the maintenance of said child as this court may order, &c. &c.: to which the defendant by his counsel excepts, and tenders his bill of exceptions, &c. The bill of exceptions is in the following words: “ October sessions, 1824 — Be it remembered, that this day, being the fourth day of the term, William Goddard, who had been brought into court on a charge of having begot a bastard child on the body of Betsey Hinton, after making affidavit that he was not the father of said illegitimate child, which is prayed to be made a part of the record, moved the court to have the issue tried by a jury, whether the said Goddard was the father of the said illegitimate child, which the court refused: to which the defendant by his counsel excepts in law.”

The counsel for the State then proceeded, and read the warrant which authorized the apprehension of defendant, upon which he was bound to court; and the defendant refusing to produce any evidence in his behalf, without the introduction of any other proof upon- the motion of the counsel for the State to bind the defendant, the defendant was ordered tobe bound: to which the defendant by his counsel excepted. The defendant prayed an appeal in the nature of a writ of error to the circuit court, and having given.bond, &c. was granted, &c..

The circuit court of Knox county, at its January term 1825, affirmed the judgment of the county court. To which judgment of the circuit court, the defendant by his counsel excepted, and took an appeal in the nature of a writ of error to this court.

By the act of 1741, ch. 14, sec. 10, the person charged by the woman, before the justices, was tobe adjudged the reputed father; and nothing further was to be done when the proceedings were returned to the county court, but for the court to make the order for maintenance.

By the 10th section of the act of 1741, the charge of the woman was conclusive evidence of the fact that the man charged was the father of the child.

Bj the act of 1822, ch. 29, the legislature provides, |llat the affidavit of the woman shall not be conclusive upon the county court, and the reputed father cut off from all enquiry in every possible case; but upon filing his affidavit, clearly setting forth that justice requires an issue to be made to try the truth oí the charge, it shall be the duty of the court where such charge is pending, to hear ■proof and determine the matter as to right and justice may appertain. Yet this statute confirms the act of 1741, by declaring the man charged to be the reputed father of the child. It never was contemplated by the act of 1741, that the woman should be examined in court; nor is the law altered in this respect by the act of 1822. Both decency and policy forbid that she should be brought into court, and compelled to expose her own shame, it requires little knowledge of the female character, to predict that such an open exposure of the frailty and vice of the woman, would tend to tearaway the film of modesty she had left, and turn her loose upon society profligate and shameless; whereas, everyday’s experience proves, that if women thus unfortunate are abstracted from exposure to the ridicule of society for a length of time, they recover in some degree their standing, and in very many instances their virtuous habits. Hardly any situation can be conceived, better calculated to drive into desperate and abandoned profligacy a woman who has already departed from the path of virtue, than an open examination before a court and large crowd, in which she is compelled to expose her own abandonment. Furthermore, she would have almost irresistible temptations to commit perjury, in answering many of the questions that would necessarily be propounded to her. The best evidence of a return to a virtuous course, is a denial of any departure therefrom, except in the single instance which nature has undeniably established. These are some of the reasons why the woman should never be brought into open court for a second examination.-

By the act of 1822, as well as the act of 1741, the accused shall be adjudged the reputed father; and this is conclusive until the affidavit of the defendant is filed, shewing that justice requires he should be heard in de-fence. After the affidavit is filed, then the charge made before the Justices is taken as true, until the defendant shall by proof in opposition to such charge, convince the court that the saméis untrue; and in doing which he has no right to examine the woman, unless she voluntarily •comes forward to give evidence contradicting her former statement.

It is insisted that the plaintiff in error was entitled to a trial by jury upon an issue to be made up under the direction of the cóurt. The subject matter of such an issue would be indecent, and unfit to be placed on the records of a court of justice. The Legislature by the act of 1822, only intended to extend a single priviledge to defendants in such cases, and that was to permit the introduction of proof contradicting the charge made by the woman; and which contradictory evidence is to be heard and adjudged of by the court, before they make the order upon the man for the maintenance of the child. It is hardly possible to prove by any other than the woman, who is the father of the child; and therefore, from necessity, her evidence is conclusive, unless the accused proves a negative, which in some instances he may be enabled to do.

It is further contended, that the court cannot consistent with our constitution, (Declaration of Rights, sec. 8,) make ,an order on this man without the judgment of his peers.

Were this doctrine sound, the magistrates .had no power to issue the warrant arresting the defendant in this case; nor could they arrest the felon, and confine him for trial, because he would be deprived of his liberty; nor could a court of chancery give a decree for property both real and personal, for this is depriving a man of his property. The English Magna Charta has the same provision, from which the framers of our constitution borrowed it; the construction of which has been settled as early as the time of Sir Edward Coke, who' in his reading upon this statute, tells us that the cases in which courts act without a trial by jury, or “peers,” are innumerable and undefined, being done “ by the lam of the land” The defendant, there-fore, having been treated by the county and circuit courts with every indulgence to which by law he is entitled, must abide by the order of maintenance made in the county court, which judgment is affirmed by this court.

Peck and Haywood concurred.

Whyte, J.

dissenting. The errors assigned are, 1st, That the court below ought to have allowed the defendant Goddard a jury trial: 2d. That the court ought to have had the mother of the illegitimate child sworn in open court, and not had her testimony substituted by affidavit: 3d. Other errors appearing on the record.

These errors are predicated upon the non-observance by the court below, of tjie provisions of the act of Assembly of 1822, ch. 29, sec. 1, which is in these words: “ Be it enacted, That when any single woman shall accuse any man of being the father of a bastard child or children, begotten of her body, such person so accused, shall file his affidavit, clearly setting forth that justice requires an issue to be made to try the truth of such charge; whereupon it shall be the duty of the court in which such charge may be pending, to hear proof and determine the matter as to right and justice may appertain.”

Whether there is error upon this record, depends upon this act, and what is its true construction. It is to be observed, that previous to the passage of this act, the filiation of illegitimate children in the case of single women, rested solely upon the provisions of the act of 1741, ch. 14.; which enacted, that when such woman shall accuse upon oath before two Justices, any man of being the father, &c. the person so accused shall be adjudged the reputed father of such child, and stand charged with the maintenance of the same, as the county court shall or der, &c.

The act of 1822, ch. 29, recognizes and adopts the same course of filiation, subject to an amendment or variation, introduced by the two last clauses of the section above cited, in the following words: « unless such person so accused shall file his affidavit, clearly setting forth that justice requires an issue to be made to try the truth of such charge; whereupon it shall be the duty of the court in which such charge may be pending, to hear proof and determine the matter as to right and justice may appertain.” The meaning of the legislature in these two clauses, is contested by the argument, and produces the principal question agitated in the case.

It is contended on the part of the Attorney General, that the trial therein alluded to, is to be by the court; and bn the part of the defendant, that the trial is to be by a jury. ■

The first clause introduces the same amendment to the . act of 1741, producing the variation in the practice, or mode of proceeding in this class of cases; pointing out the new mode or course, and the terms on which the defendant shall be entitled to the benefit of it, and the court be authorized to grant it. An affidavit is required. The reason of this no doubt was, that the then usual course of proceeding in such cases, which had been practised for nearly a century, should not upon suggestion merely be interrupted and broken in upon, without a proper guard against its abuse. An affidavit was thex-efore required.

It was also as a further security against evasion, to be made by him who had the best means of knowing the truth, the person accused: and it was to be written and filed, that, if false, it might furnish ready and plain evidence on an indictment for perjury. These were the checks the. Legislature imposed upon the party against evasion, and constituted on his part the terms authorizing the agency of the court. This agency was, first, the judgment of the court upon the matter in the affidavit, whether sufficient or not to entitle the party defendant to the benefit of this clause; that is, to have an issue made for the purpose of trying the truth of the charge. The face of the affidavit was the sole directory to the court in this respect. This was its office: it was clearly to set forth, that justice required an issue to be made. If it accomplished this, then the further agency of the court was required to make an issue, the matter and form of which would of course be dependent upon the facts disclosed by the affidavit, guided by a view to its object; that object was, the truth or falsehood of the charge.

From this view of this clause, I am led to this construction, that the Legislature intended these two things to be done, (on the court being satisfied upon the matter contained in the affidavit, that justice required them to act further:) 1st. That an issue should be made by the court, predicated upon the matter set forth in the affidavit of the defendant: And, 2d. That this issue, the result of which is to ascertain the truth or falsehood of the fact charged, should be tried by a jury. I have been induced to adopt this construction as the true meaning of the Legislature, for the following reasons: 1st. From the natural and obvious tendency of the expression producing this result upon my mind. 2d. From the diction, or words used in this clause, having had a certain, unequivocal meaning attached to them. Thus, the word “ issue,” when it has reference to fact, has at the same time always reference to a jury trial; and the expression “issue to be made,” “issue to be joined,” and similar expressions, or diction, have the same reference: an instance of the first is to be found in the act of 1801, ch. 6, sec. 62; and of the last in the act of 1817, ch. 199, sec. 3. 3d. From the rulés laid down for the construction of statutes, suppose it to be doubtful upon the face of this clause, whether the Legislature intended the trial of the issue to be by the court or by the jury, it then becomes necessary to have recourse to those rules. In C. Ba. Abr. 323, 324, are to be found those applicable to the present point. The one cited from 11 Modern, is in these words: “In all doubtful matters, and where the expression is in general terms, statutes are to receive such a construction as may be agreeable to the rules of the common law in cases of this nature; for statutes are not presumed to make any alteration in the common law, further or otherwise than the act expressly declares.” Another rule taken from 1st Peer Wms. 252, 2 Inst. 148, 1 Saund. 240, and 10 Mod. 245, is, “The best construetion of a statute is to construe it as near to the rule and reason of the common law as may be, and by the course that observes .in other cases.” The issue in the present case, if one had been made, would have been an issue of fact, (which is not disputed.) The rule and course of the common law for its trial, is expressed with energy by the maxim, ad questionem legis respondet judex, ad questionem facti respondent juratores. This principle, that a jury is the best forum for the trial of disputed facts, is so intimately interwoven with our jurisprudence, that it prevails to a very great extent in courts of equity, though no juries are attendant there, and though it is with some inconvenience issues are transmitted from them to a court of law for trial. In a recent case, Lord Chancellor Eldon observes, that the jurisdiction in equity to try questions of fact without the aid of a jury, is to be exercised by a sound discretion; 3 Ves. and Bea. 42. If this principle prevails in those courts of equity from which we derive our knowledge of the principles and practice of equity, and when it is not supported by legislative interposition, would it not be a violence offered to the principle, to say that here it existed with less vigor in our system and courts of equity, when it has not only been recognized, but enforced by express statutory enactment? Thus,in the act of 1782, c. 11, for the establishment of a court of equity after the revolution, by section 3d it enacted, “ that all matters of fact that shall come in issue between the parties, shall be determined by a jury in the presence of the court, as in trials at law,” &c. And after the organization of the Supreme Court, in giving to it exclusive equity jurisdiction in 1811, by ch. 72, sec. 4 of that year, a provision is made for the trial of facts. In sec. 8, it is enacted, “ That when it shall be necessary to ascertain any fact in the trial of any suit in chancery, the said court of Errors and Appeals shall have the issues made up, and direct them to the circuit court, &c. &c. which circuit court shall proceed to impannel a jury for the trial of said issues of fact,” &c.

Thus we see that the trial of disputed facts, by the jury, and not by the could, is not only congenial to proceedings in equity as well as to proceedings at law, and enforced and secured by statutory provisions, excluding the official capacity of a court for that purpose, but we have instances in our statute book, of the same sedulous care by the legislature, of preserving the proper functions entire, separate and apart between court and jury, even in particular jurisdictions enacted by special acts of Assembly, and when the court is directed to proceed in a summary way, without pleadings in writing, still the intervention of a jury is made necessary for the finding of facts, as in caveat cases, by the acts of 1806 and 1807. In addition to the above, may be noticed the 5th sec. of the 5th article of the constitution, which is in these words, “the judges of the superior and inferior courts shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.” This ingrafts the principle on the constitution, and both establishes and exhibits it a directory, not to be transgressed, either by the legislature in making laws, or by the judges in expounding them.

Having now stated my reasons for the construction of this act of Assembly, which I entertain, I will next proceed to show why, in my opinion, the construction contended for on the part of the attorney general, could not be the meaning of the legislature. The clause following the one observed upon, is cited on the part of the attorney general, and by the counsel on argument relied on in support of that construction. It is in these words, “whereupon it shall be the duty of the court in which such charge may be pending, to hear proof, and determine the matter as to right and justice may appertain.” This clause, it is insisted, gives the trial exclusively to the justices on the bench. My opinion is, that taking the two clauses together, which is necessary in forming a correct estimate of the import of the latter, the term court, in the latter clause, will be found not to be used by the legislature in its more limited and restricted sense, and designating the justices of the court only, a part of the tribunal; but in its more general and more enlarged sense of court, comprehending within its purport, both the justices and jury, both being component parts oí the tribunal or court, by its constitution. So the circuit court in like manner, means the judge of the court, or in its more enlarged sense, both the judge and the jury, according to the context or cause of the subject matter in reference to which it is used. So here, in this act of 1822, the prior clause has directed an issue to be made, to try the truth of such charge; and the latter clause having directed the court to bear the proof, and determine, as to right and justice may appertain, the term, court, is to be taken in the sense adapted to the context or subject matter, to wit, m its general and more enlarged sense, and applying singula singulis, or each part to its proper functionary, the whole of the act is consistent, agreeable to the analogies of law, and in unison with the spirit of our constitution, and our acts of Assembly.

This is my judicial construction of the clause in question, relied on by the counsel on the part of the State; but there is a legislative construction also pf this kind of expression substantially the same, and indeed of nearly the very same words. This legislative construction may be adverted to, for the purpose, at least, oí showing consistency in the legislature with itself, and that it has not at one time, used expressions substantially the same, in a different sense, from what it has at another time, because the order of the parts of that expression in the sentence is somewhat changed or transposed. I shall cite the act - of 1807, ch. 17, sec. 1, as an instance of this. That act says, “it shall be the duty of said superior court, to proceed to determine the right of the cause in a summary way.” It may be asked here, by what means are they to determine? The question is answered by the legislature itself in what follows, “ without pleadings in writing, by empanneling and swearing a jury, for the finding of such facts as are material to the cause,” &c. Here the legislature show, that the expression, making it the duty of the court to proceed to determine the right of the cause in 3 summary way, does not mean determination by a trial by the court alone, to the exclusion of the jury; and it is a much stronger expression in favor of the attorney general’s argument, than the expression of 1822, ch. 29. Let us compare it with the act of 1822, ch. 29, sec. 1. This last says, “whereupon, it shall be the duty of the court in which such charge may be pending, to hear proof and determine the matter as to right and justice might appertain.” Here it may be also asked, by what means are they to determine? The same question is also here answered by the legislature, in what has preceded, and is referred to and annexed to the part now cited, by the word whereupon, and is this, “by an issue to be made to try the truth of such charge,” which, in our law, invariably means trial by jury. Thus we see, that by inverting the order of expression in a sentence, the act of 1822, ch. 29, sec. 1, becomes on this point as plain as the act of 1807, ch. 17, sec. 1, and that trial by jury is the meaning of the legislature in the former.

I am of opinion therefore, with the 'plaintiff in error, on his first error assigned.

On the second error assigned, that the mother of the child should have been sworn in court, and her testimony not substituted by the affidavit, I concur with the opinion of my brethren. An issue if one had been made in this case, and predicated on the affidavit of the defendant below, must have been in direct opposition to her oath of filiation. The law in such case would not tolerate her, as its tendency and effect must necessarily be, to crimin-inate herself by shewing she was guilty of perjury.

But upon the face of this record there is another error, which although not noticed by the argument, yet, being matter of substance, the court is bound to notice; that is, that no issue was made in the case. The bill of exceptions states that the defendant moved the court to have the issue tried by a jury “ whether the said Goddard was the father of the illegitimate child,” which the court refused. The record shows, that this issue was not only not tried by a jury, but that it was not made, or that issue to the same purport was made, or that any issue predicated on the import of the affidavit filed, was made, which should have been done. It may be asked, why should it be made and so appear to be, on the record, as it is implied that the court passed on the subject matter, though not set down on the record, and the defendant had the benefit of it, which is an equivalent.

It is answered, that an issue should be made, and the record what that issue is, as a matter absolutely necessary for the safety of the defendant, and for affording him that protection which the law intended to give him in such case. It should be made, that the parties may know how to direct their evidence to it, and know what evidence would be admissible, and what not. For neither the act of the Assembly, nor the reason of the thing, point to a singleness of matter for its foundation, that does not admit of variance. The matter of the issue is made by the act, dependent on the matter of the affidavit, which must clearly set forth that justice requires an issue to be made, to try the truth of the charge. This is a general requisition, and we can readily see without specifying particulars, that facts of a very distinct nature and kind, may show the falsity of the charge; facts having no connection whatever, or no relation to each other, except that of tending to the same result. I will simply hint at two classes of facts; those to prove an alibi, and those to prove impotence. A general issue, whether the father or not, could give no notice on the side of the Attorney General of the facts intended to be proved by the defendant; and yet the result in either would show the falsity of the charge, by showing the impossibility of its truth.

An issue, therefore, ought to be made, as well for the benefit of the other side, as. for the benefit of the defendant, and a day given for the trial, which must of course be dependent on circumstances. Again, an issue ought to be made to give either party the benefit of the laws of his country, one of which is, the review of a revising court for the correction of the court below. And this objection lies as well to the case, where the trial is to be made by the court alone, as by the court and jury. The admission of improper testimony, or the rejection of pro-deprives the party of the benefit of the law: how is this error to be seen by the revising tribunal, without the issue actually made, and appearing totidem verbis on the record.

I think, therefore, the circuit court erred in not reversing the judgment of the county court, and that this court proceeding, &c. &c. ought to reverse the judgment of the circuit court, and give such judgment as the circuit court ought to have given, &c.  