
    WESTMORELAND COUNTY,
    March Term, 1794.
    Jacob Macklin v. Robert Taylor.
    
      See the case of Lea v. Little, ante p.292, and of Hufton v. Ayres, post. 1 St. L. 36, 246, 1 St. L. 604.
    The defendant, a justice of the peace, having, without the consent of the plaintiff, her father, married his daughter to Enoch Varnum; the plaintiff brought an action of debt, on the act of assembly for the penalty of 50l. The writ was returnable to March term, 1793. Written notice of the action to the justice was proved.
    
      The daughter and Varnum came to Taylor’s house, a little after midnight, on Monday morning, in December 1792, and were there married by him. She was then sixteen years and a half old, and lived in her father’s house. Taylor asked them why they had not her father’s consent. They said, they were in such circumstances, that it was not proper to have made public.
    
      Ross, for the defendant,
    offered to prove, that the girl told the justice, that she was pregnant, and that Varnum was father of the child with which she was pregnant, and that her pregnancy could no longer be concealed, and to prove, that, in such cases, the constant practice had been for justices to marry the parties.
   President.

The testimony is altogether impertinent, and ought not to be admitted. These circumstances are proper for the consideration of the father; and, no doubt, would always be duly weighed by him. But to suffer them to be given in evidence, as a justification of the justice, would be transferring to justices, that parental control over young women, which policy and nature have reserved to parents. As to the practice, it, being clearly unlawful, can be no justification.

Ross, then contended, that, by analogy to the case of suits by husbands against other men, for criminal conversation with their wives, and, a fortiori, this being a penal action, it must be proved by the prosecutor, that his daughter is legitimate, or he must be nonsuited.

Young, for the plaintiff, read 3 Bla. Comm. 139, 140. No body doubts of the marriage of the parents of this woman. But we will not offer proof, that is not necessary.

President. The analogy stated by Mr. Ross, is incomplete. There is no legal tie between a man and a woman cohabiting without marriage; and he has no more legal right to sleep with her, than any other man, who may procure her consent. Their cohabitation is an offence; and, from this offence he shall derive no rights or profit. But though the begetting of a bastard daughter be an offence, the maintenance, education, and protection of her is a duty; and the rights arising from this duty ought not to be curtailed. Common sense requires this, with a force that there is no legal distinc-

1 St. L. 247.

4 & 5, P. & M. c. 8. 4 Comm. 208. 4 Reeve 491-2

Rex v. Cornforth, et al. 2 Str. 1162.

Rex v. Hodnett, 1 T.Rep. 96.

tion to resist. And if the putative or natural father can be comprehended within the word parent, which is the word used by this act of assembly, he ought to be intitled to the penalty for this offence. We think he may be so comprehended. And I will state an analogy more accurate, and justifying our opinion. The act of parliament, to prevent the carrying away and marrying young women without consent of their parents, or those who have the keeping of them, imposes a punishment by fine or imprisonment. And on this act, the court of King’s Bench granted an information for taking away a natural daughter, under the care of her putative father. So the case of illegitimate children has been held to be within the mischiefs to be remedied by the English marriage act. We therefore hold, that it is unnecessary to prove the marriage of the parents, or the legitimacy of the daughter; but if Mr. Ross desire it, we will reserve the point, that he may, if he please, argue it again.

Ross then argued to the jury, that, when fathers withhold their consent unreasonably, juries ought to weigh the case, and might give less than 50l.

President. If parents are unreasonable, the law provides a method of marrying without their consent, viz. according to the forms of their church. If juries can give less, they may give more, than 50l.; but to give either less or more, would be making a new law, which neither courts nor juries can do. There is no doubt in this case; and the verdict must be for the plaintiff for 50l. precisely.

The jury found for the plaintiff 50l. debt with 6d damages and 6d. costs.

No motion was made to set this verdict aside; and, at another term, there was judgment on it.  