
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1803.
    The State v. Adams.
    On an indictment for bastardy under the act of 1795, the mother of the bastard is a competent witness for the prosecution, to prove that the defendant is the father.
    In an indictment for bastardy under the act of 1795, it seems, that it is not necessary to allege that the defendant refused to give the security required by the act. The question to be tried on such an indictment is, whether the defendant be the father of the bastard or not.
    The provision in the bastardy act of 1795, that the defendant shall be bound out to service, if' he do not give the security required, is not unconstitutional.
    Motion for a new trial, and in arrest of judgment. The defendant was tried in the court of sessions, in Lancaster district, before Johnson, J. upon an indictment, which set forth, “ That Elizabeth Barton, on such a day, at, &c. was delivered of a bastard child, which will become a burthen upon the district; and that the said John Adams, on. &c. at, &,c. with force and arms, diet beget the said bastard oliild. upon the body of the said Eliza-Barton, and is the father of the stone, against the tornaf of the act of the general assembly, &c.” At the trial, the mother 0f child was allowed to be a witness, although objected to on the ground of interest. Tins was the ground stated for a new trial. The grounds taken in arrest of judg. merit, were, that the matter charged i. the indictment imports no offence wilbin the meaning of any act of assembly, in fore®' in this State : and that die punishment provided by the act of as» sembly, for such as beget bastard children, is contrary to the constitution of this State and of the United States, and is in it3 nature and operation impracticable.
    By the act of assembly of 1795, the mother of a bastard child,after the birth of such child, may voluntarily give information to any magistrate, &c., or m ly he brought before such m igislr-.ite, on the information on oath of another person, that such child will become a burthen upon the district; and if she shall declare, on oath, who is the father of her child, the magistrate shall grant his •warrant, to bring such person so charged as being the father, be. fore him, to be bound with two suieties in £t>0, to pay £5,• annually, for the maintenance, &c. of such child, until it shall be twelve years old, and save harmless the district, &c. And-it the accused shall deny that he is the father, a jury shall be charged in either the court of sessions or common pleas, to try the question ; and if found against the accused, and he will not give security as the act requires, he shall be bound to servitude for auy time not exceeding four years, &c. 2 Faust, 74.
    The counsel for the defendant argued, that the mother cannof be a competent witness, as her testimony must go to obtain a maintenance for her child, and so exonerate herself. That the old bastardy act, which the present act on that subject repeals, expressly made the mother a competent witness, which the last act does not. Cited King v. Davis, 0 T. R. 177. The form of the indictment was objected to ; and it was insisted, that the indict', ment should have proceeded to set forth, that the defendant being brought before a justice of the peace, &c. lefused to give tne security required, &c. ; for that the act permits the begetting of bastards, but requires security for their maintenance : tiie punishment is provided for not entering into a bond with sureues, and not for begetting the bastard. 0 < die last giound, it was argued, lhac the legislature had no constitutional authority to pass an act. by which a freeman may he degraded to the quality and condition of a slave. That the vagrant act has been condemned for the same reason, as unconstitutional and void, so far as it goes to deprive a free citizen of his liberty, without a trial by his peers, and con. trary to the law of the land; contrary to the principles of magna sharia, and to the principles of right, and" established customsa at She timo of the adoption of our constitution.
    To this it was answered, and agreéd by the court:
    1. That the mother must be admitted as a competent witness, sn cases of this sort, ex necessitate rei; for the fact is incapable of other proof. Esp. Dig. 711, Sée 1 Loffts’ Gilh. 293, Cro. Gar. 341, 47Ó.
    2. That the indictment is properly framed, for the question to be tried, on suelt an indictment as this, is expressly mentioned in the act to be, whether the accused be the fathet, or not. If he be not the father, he must be acquitted altogether; but if he be the father, then the court shall require him to give security, &c. ; as a consequence of bringing a burthen upon the district, or rather to avoid a burihen which is probable, and éxpeeted to happen, in conosqneuce o? the immoral and disorderly conduct of the defendant. The act provides, no punishment for the immoral act, as such, but is designed to guard the community against the inconveniences which are likely to result therefrom. And therefore the court are required upon conviction, 'oí rather upon a verdict against the defendant, u'pon the trial of the question by a jury, to take bond and security from the defendant, to save the district from the impending charge; and it the defendant fails to comply with such requisition, the court are authorized to bind him to servitude.
    3. The' compelling the defendant to serve as a bondman, can-riot be considered as a total privation of liberty ; or as reducing the party to a state of absolute bondage, especially as his time of servitude is limited, and as he may liberate himself immediately, by complying with the alternative propi sed by the act. But granting it to be a total privation of liberty, yet this is no more than happens to many other offenders, who are imprisoned, and held in restraint for transgressing theLvvs, a coos< quence of conviction for an1 offence against society. It is certainly constitutional for the legislature to declare, that for any immoral or disorderly act, tending to the prejudice of the community at large, the offender shall be subject to lose his liberty for a time. The mode of restraint cannot alter the case, unless it should be uncommonly harsh ®r cruel.
   Trezjjvant, J.

(After stari; s the case, and the exceptions taken in arrest of judgment.) Upon these grounds-of objection, mv opinion is, (hat the indictment sta'es the offence with sufficient certainty, in the wordí by which it charges the begetting of the' child, and that it will become a burthen to the mstricr. The law only requires the offence to he alleged ‘ with convenient certainty.” And as to the pu -ishment, it is not unconstitutional, nor is it new, the old bastardy act having directed a certain description of white men to he punished in a similor manner, when guilty of this offeree under the circumstances therein mentioned ; and that act was passed long before the constitution of this State or of the United States. It will not he denied, that any white man may indent himself for a term of years, ahhough he cannot, sell .himself asa slave: it must therefore follow, that the legislature may, for certain offences, direct the eidp-it to be bound for ;> form of years, although they cannot constitutionally order or direst, that he. should be sold as a slave.

Bruvaro, J.

It is urged fn arrest of judgment in this case,-1. That the indictment is not properly framed according to the act of assembly :" and 3. That the punishment ptovided by the act is unconstitutional', and cannot he carried into execution^ With respect to the first exception, I am of opinion, that the indictment is properly framed, and so as to try and decide the pritv cipal question, which the act requires shall be tried by a jury. The object of the act of assu&bly of 1795 is, to oblige the fathers' of bastard children, who are likely to become burthensome to the-community,- to provide for their m..uitenauce ; and enacts, that if any person accused as the father, shall deny that he is so, a jury shall be charged, either in the court of sessions or common pleas, to try the question-. The indictment was framed with aviewto try th>s question in the court of sessious, and I think it is properly drawn, according to the true intent of the act. As to the other exception, that the punishment provided by the act is unconstitutional, and incapable of being fully executed-, Í am-of opinion, that it is not unconstitutional. The courts are bound-to carry it into execution as far as they can, with propriety and consistency. The legislature may consté utioually declare, that •for any particular immoral or disorderly act, or any act product, ive of injurious consequences or inconvenience to society, the person committing the same shall be subject to a temporary privation of his persona! liberty. The mode by which this restraint shall be imposed, can make no difference, unless the same should be unusually harsh or cruel. The compelling a citizen to serve as a boiidnm.i, or apprentice, for a term cot exceedin'! four years, cannot he a more severe regid; ti-m, than to compel a prisoner to labor in a penitentiary house for a given lime ; and is very different from a state of slavery for life. B <th exceptions, I think, should be over ruled.

Falconer, and Mathis, for the defendant. Mr. Solicitor Wilds, for the Siam.

Present, Grimke, Waties. Johnson, Trezevant, and Brevard, Justices ; Bay, J. absent.

Mofio.i discharged.

Note. In Í ngland, it has been held on the Stat. Fliz. that the mother of a bastard child ;s an adtni.-sib'e witness to prove the reputed father; and that jier evidence is conclusive, un ess she charges two persons. See 1 Loffts’ Xjrilb. 293. The rep" red mother was held a competent witness to prove the illegitimacy of her children. 6 T. R. 330. The King v Inhab. Bramley.  