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the contrary; and, if averred onre cord, to prove her familiarity with one or more men during the said period. Neither party to the suit was examined as witnesses. Parties were heard on the concluded proofs. If the evidence amounted to what was called a semi-plena then and only then was the mother admitted to her oath in supplement. What amount of evidence made the necessary semi plena of course varied in each case. One distinguished judge (Lord President Blair, in Craig, 14 June, 1809) stated it as raising a “reasonable belief," though not complete evidence that the defender was the father. Another judge (Lord Gillies in Mc Crone, 9 June, 1831, 98 S D B 692) defined it " as less than proof, but more than suspicion.” A third judge (Lord Robertson in Hutchison 8, July 1826, 6 S D 1131) held it to be a “reasonable suspicion,” and a fourth judge (Lord Mc Kemzie in Glendinning, 17th January 1835, 18 S 270) held that it must be " the probability that the defender, and no other man, was the father.” Lord Justice Clerk (Inglis) in Bruce v. Petric 23 November 1841, 4 D 49, observed that the oath in supplement is allowed to supply defects in an otherwise inconsistent statement, not to cast the balance in a case of contradictory evidence and facts. (See Dr. Frarer on Parent and Child, (2nd Edition, p. 133.) A semi plena being found, then and only then, was the woman's oath admitted to complete the full complement, to carry up the semi to the plena. If her oath coincided with the previous roofs, that is, if the two halves dovetailed together and made one concrete or whole, she obtained judgment. If she contradicted her witnesses and destroyed the unity or cohesion, then she lost her cause. This sometimes but rarely occurred, as in McNaughton 7 July, 1837 and 9 June, 1838, 16 S 338, Greig, 28 June, 1848, Folley 10 D 1424.
The “Evidence Act of 1853,” admitting parties to be witnesses, made some exceptions, obviously because involving questions of status the inducement to perjury was great. Accordingly all cases affecting marriage, with the addition of “ Legitimacy or Bastardy, ” were excepted. At first sight it might appear that cases of paternity or affiliation fell under
this exemption, but the context has been held to imply that the cases of " bastardy” expressed were declarators of non legitimacy. The court has, even in a question of entail, where legitmacy was only incidentally referred to, refused to allow parties to be witnesses (14th February, 1855, Sandiland's 27 Jurist, 178). From parity of reason this should place cases of affiliation in the same category. It has not unfrequently occurred that actions have been brought by married women against men other than their husbands, and where the woman has been allowed to swear to her own turpitude. But the court, in such cases, whilst fixing the aliment on the stranger, has reserved the right of the child thereafter to maintain its legitimacy. The Evidence Act, to the surprise and regret of the judges, having thus swept away the very ancient law of semi plena, the consequences have been disastrous. Now almost every case of affiliation is opposed, since it has now become a wide-spread opinion in certain classes, that all the man has to do is to swear to nonconnection, and then he must be liberated from all claim. In almost every opposed case there is oath against oath, and, therefore, there exists no manner of doubt that there exists gross perjury on one side or the other, and in my experience almost always in that of the man. The matter at issue is, of course, of an occult nature, and, therefore, it is difficult to convict the man of perjury, even though, in the civil cause, he has been disbelieved. Consequently very few criminal prosecutions have been attempted, though there existed no manner of doubt of the perpetration of the crime which above every other looses the moral tie which binds man to truth and probity, and lets in every other offence. Where there exists meagre proof of familiarity between the parties, within the prescribed period, and where there is oath against oath of the parties, I have been grievously pained in absolving the man because of want of legal evidence, though satisfied morally of the truth of the mother's claim, and the deliberate perjury of the man. Such a result would not have arisen under the olden mode of procedure.
It has been
remarked that in general the woman is in the right. She has already suffered in her character and has the permanent burden of the child, and must, whatever be the issue, continue to bear the one half of the cost of its support. The man has his character as well as his purse at stake, and by perjury he seeks to liberate himself at once from the stain of guilt and any contribution for the child. The temptation to false swearing is, therefore, of double force on the man. Another side issue is often raised in these cases. The defender avers that othermen, one or more, have had access to the pursuer during the legal period. He produces these men, who now can safely swear to their guilt because that the woman has fixed, on oath, the paternity on another, and these scapegoats may roam at large in safety. The only ground of 'suspicion against the woman is where the action is directed against a person of some wealth, and, in defence, one of comparative poverty is alleged as the true father. This seldom, in my lengthy experience, has occurred, for generally the parties who are set up as likely, parents are of the same class, and that of the labouring ranks. It is quite possible that with women of very loose habits (but who rarely become mothers) there may be a difficulty on the mother definitely selecting the true author of her pregnancy. But my conviction is that she seldom, if ever, fixes on a man who at least might not have been the father of her child. A point in evidence is well worthy of notice. In both countries physical likeness of the child to the putative father is now never admitted, as considered too loose and capricious. (See 20th June, 1810, and 19th May, 1812, Routledge v. Carruthers. House of Lords.) But there is no doubting the fact that such similitude does exist, and is often very marked. In one case which was known to the writer, a defender escaped, on proof by medical men that the child was the offspring of a coloured man, which the defender was not. He has also known cases of peculiarity in the formation of some of the bodily members which were similar to the same on the defender. Yet such evidence
could not be received. It would never be asked to decide on such mere similarity, but it may surely be allowed as an element in corroboration of other evidence of intimacy and familiarities where direct proof can never be expected. An analogous point exists in evidence in cases of insanity. It is an ascertained fact that insanity is hereditary. Yet, in our courts, criminal and civil, in both countries such evidence is excluded. Where the tendency now is to admit to the very utmost all degrees of light, it is not easy to perceive why the likeness of the child to its supposed father and the hereditary mental taint should not be admitted in both instances, merely as elements in the body of evidence.
In order to bring these observations to the test of fact, I have made out a table of cases of affiliation brought in the Court in which I have for nearly half a century acted as resident sheriff. This table extends from the year 1860 to 1872, and shews the number of claims brought each year, the number undefended, and on which decrees in absence or in default proceeded, the number opposed, and the result in decrees either condemnatory or absolvitory.
Decrees in Decrees agst. Defender Year. Actions brought. Absence. Defender. Assoilzied. 1860 ... 60
6 1871 ...
From this table it appears that during these twelve years there have been 735 claims made by mothers, of these 295, or nearly three-fourths, were opposed on denial of intercourse. Whilst the mother made good her claim in 229 instances, notwithstanding the defender's negative oath, the defender escaped in no fewer than 66 cases, notwithstanding the pursuer's affirmative oath. It follows that in 295 instances direct and gross perjury must necessarily have been perpetrated on one side or other, but far the greater proportion being by the defender. An illustration of the increasing amount of this burden is shewn in the last Report (1873) of the Board of Supervision for Scotland. In a northern district, where the registered poor were in round numbers 10,000, in 1872 and 1873, there were of that number, in the first named year, 176 women and 292 illegitimate children, and in the second year the number had increased to 187 women with 306 illegitimate children. (Appendix A, p. 2). From this it appears that several of the women had more than one child. Indeed, by a curious rule adopted in some parishes, relief is refused to the mother of a unit, but if she qualifies herself by a multiple, relief is readily granted. I also find a most variable practice in the length of time for which relief is given. Some parishes only afford relief for nine months or a year whilst the child is nursing. Others extend it to one, two, and more years. In further illustration of the increase of bastardy and the heavy burdens imposed on the poor law funds, greatly owing to the faulty mode of procedure in cases of affiliation, I have obtained statistics from some of the principal centres of population in Scotland. 1. In the half-year ending ist February, 1874, there were admitted in the Glasgow, (City) Poor House 155 mothers with 185 illegitimate children. 2. In the Glasgow Barony, in November, 1874, there were on the Relief List 55 mothers with 168 bastards. 3. In the Govan (Glasgow) combination, at same date there were receiving relief, 56 mothers with 102 illegitimate children. 4. In Dundee, on 9th November, there were in the Poors