title): And you are hereby required to receive the said A O into your jail and custody, and him there safely to keep, until he shall procure sufficient surety to be bound with him in a recognizance to the governor, or chief magistrate of this commonwealth, that is to say, himself in dollars, and his surety in conditioned for his per sonal appearance at the next court to be held for the county of to do what shall then and there be enjoined him by the said court, and in the mean time to be of good behaviour. Witness my hand and seal, at &c. (D) Recognizance of the witnesses. Memorandum, That on this A W, of day of and B W, of in the year came before me, JP, a justice of the peace for the county aforesaid, and personally acknowledged that each of them is indebted to D G, governor or chief magistrate of the commonwealth of Virginia, and his successors, in dollars, lawful money, to be levied of their goods and chattels, lands and tenements, respectively; upon condition, that if they, the said A W, and B W, do personally appear before the commonwealth's justices of the peace, at the next court to be held for this county, and do then and there prefer, or cause to be preferred, a bill of indictment against A O, of labourer, for being a common barrator, wherewith he is by them charged before me, and do also then and there give evidence concerning the same to the jurors who shall inquire thereof, on behalf of the said commonwealth, and upon the trial of the said AO for the same, then this recognizance to be void, else to remain in full force. Acknowledged before me. (E) Indictment for being a common barrator. County, to wit: The jurors of the commonwealth, for the body of the county aforesaid, upon their oath do present: That A O, late of the county aforesaid, labourer, on the in the year day of and on divers other days and times, as well before as afterwards, was, and yet is, a common barrator; and that he the said A O, on the said day of and on divers other days and times, at the county aforesaid, divers quarrels, strifes, suits, and controversies, among the honest and quiet citizens of the said commonwealth, then and there did move, procure, stir up, and excite, to the evil example of all others in the like case offending, and against the peace and dignity of the commonwealth. BASTARDS. I. Who shall be deemed a bastard. II. Proceedings against the reputed father of a bastard child. III. Capacity of a bastard as to inheritance. IV. Concealing the death of a bastard child. I. WHO SHALL BE DEEMED A BASTARD. THE word bastard is derived from the Saxons, and compounded of base, ignoble, and start or steort, a rise or original. Among those of the people of England, who retain much of the ancient Saxon dialect, it is still pronounced bastart, denoting a person sprung from a vile or spurious origin; as an upstart is a person suddenly risen from a mean extraction in general. 1 Burn's Just. 179. 1. Lord Coke says, we term all bastards that are born out of lawful inarriage. (1 Inst. 244. a.) But, by the laws of Virginia, "where a man having by a woman one or more children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated. The issue also, in marriages deemed null in law, shall nevertheless be legitimate." 1 Rev. Code, p. 170. sect. 19. This act has received a very liberal construction by our supreme court of appeals. See the case of RICE V EFFORD. 3 H. & M. 225, and the cases of STONES v. KEELING, ibid. 228, note, and SLEIGHS V. STRIDER, ibid. 229, note. 2. By the old rules of the common law, if the husband were within the four seas, that is, within the jurisdiction of the country, and the wife had issue, the presumption was, that the child was the issue of the husband, and no proof could be admitted to prove the child a bastard, unless the husband had an apparent impossibility of procreation; as if the husband be but eight years old, or under the age of puberty, or having some other equally palpable defect. Co. Lit. 244. a. Jenk. Cent. p. 10, case 18. 2 Peake's Ev. 357. It is now, however, held, that this presumption may be rebutted by proof of non access, as well as of total inability of procreation by the husband; but still very strong evidence is required of these facts; if the husband ever had access to his wife, or his habit of body was only such as to make it improbable that he should beget a child, and not to render such an event wholly impossible, verdicts have generally been in favour of legitimacy. 2 Peake's Ev. 358. 4 Term Rep. 356, 2 Stra. 940. An issue was directed out of chancery, in the case of Pendrell and Pendrell, to try whether the plaintiff was heir at law to one Thomas Pendrell. It was agreed that the plaintiff's father and mother were married, and cohabited for some months; that they afterwards parted, she staying in London, and he going into Staffordshire; that at the end of three years, the plaintiff was born. And there being some doubt upon the evidence, whether the husband had not been in London within the last year, it was sent to be tried. And the plaintiff rested at first upon the presumption of law in favour of legitimacy, which was encountered by strong evidence of no access. And it was agreed by court and counsel, on the trial at Guildhall, before lord chief justice Raymond, that the old doctrine of being within the four seas was not to take place, but the jury were at liberty to consider of the point of access, which they did, and found against the plaintiff. And the court of chancery acquiesced. 2 Stra. 925. See also, on the above doctrine, the cases of the king v. inhabitants of Bedall. (2 Stra. 1076. Andr. 9. s. c.) and the king v. Abbut Alberton. 1 Ld. Raym. 395, 396. 3. But the non access of the husband ought to be proved otherwise than upon the wife's oath; as in the case of K. and Reading. The defendant, Reading, was adjudged to be the putative father of a bastard child, begotton of the wife of one Almont of Sherborne. The said woman, on the appeal, gave evidence that the said Reading had carnal knowledge of her body, in or about August, 1732, and several times since; and that her husband had no access to her from May, 1731, to the time of her examination in that court, being the third of October, 1733, and that the said Reading was the father of the said child. And the question in K B, was, whether the wife in this case should be adınitted as an evidence for or against her husband, and to bastardize her own child. And the whole court were of opinion, that the wife could be a witness to no other fact but that of incontinence, and that this she must be a witness to from the necessity of the thing, but not to the absence of her husband, which might properly be proved by other witnesses; and likened it to the case of hue and cry, where the person robbed shall be admitted a witness of the fact of robbery, but not to prove any other matter relating thereto, as in what place the robbery was committed, and the like. Ca. temp. Hardw. 73, 79. See also, Cowp. 594. 1 Wils. 340. S. P. Under what circumstance the evidence of the parents, or their declarations, they being dead, may be received, to prove the legitimacy of their children, see a valuable note to Nolan's edition of Strange, vol. 2, p. 925, note (2.) 4. The law has appointed no exact time for the birth of legitimate issue, by the widow, after the death of her husband. In the case of Alsop and Bowtrell, the question was, whether the woman being delivered of a child forty weeks and nine days after the death of her husband, such child should be deemed a bastard. It was proved that she suffered very great abuse from the father of her deceased husband, who caused her to lie in the streets; and three physicians made oath, that the child was born in convenient time to be the child of the party who died; and that the usual time for a woman to go with child is nine months and ten days; to wit, solar months, at thirty days to the month, and not lunar months; and that by reason of the want of strength in the woman or the child, or by reason of ill usage, she might be a longer time, to wit, to the end of ten months or more. And the physicians farther affirmed, that a perfect birth may be at seven months, according to the strength of the mother or child, which is as long before the time of the proper birth. And by the same reason it may be as long deferred by accident, which is commonly occasioned by infirmities of the body or passions of the mind. And the child was adjudged to be legitimate. Cro. Jac. 541. See Co. Lit. 123, b. and Hargr. notes 1 and 2. 5. If the issue be born within a month, or a day, after marriage, between parties of full lawful age, the child is legitimate. Co. Lit. 244. a. 6. If the husband and wife voluntarily separate, the issue shall be deemed legitimate, till the contrary be proved. 1 Salk, 123. II. PROCEEDINGS AGAINST THE REPUTED FATHER OF A BASTARD CHILD. If a single woman, not a servant or slave, be delivered of a bastard, which is or shall be likely to become chargeable to the county, and shall, upon examination to be taken in writing, upon oath, before any justice of the county, charge any person, not being a servant, with being the father, any justice of the county wherein the person charged may be a resident or inhabitant, may, on application of the overseers of the poor, or any one of them, of the county wherein such child shall be born, issue his warrant for apprchending and bringing the person so charged before such justice, or any other justice of the county wherein he is a resident or inhabitant; and such justice shall commit him to jail, unless he will enter into a recognizance with sufficient security (in a sum not less than fifty, nor more than two hundred dollars, (2 Rev. Code, p. 76. sect S.) conditioned to appear at the next court of the county, and abide by the orders thereof. And if the court, upon the circumstances, shall adjudge the person charged to be the father, and that the child is likely to become chargeable to the county, they may provide for its maintenance, by charging the father with the payment of such sums of money, and in such proportions as they may think proper, to continue while such child is likely to be chargeable to the county. And the father shall enter into a recognizance, with sufficient security, before the court, payable to the governor and his successors, to perform such orders of the court. And if the father shall make default in the payment of the money so charged upon him, to the overseers of the poor, the court before whom such recognizance shall be entered into shall, on the motion of the said overseers, or any one of them, and ten days previous notice, enter judgment and award execution for the money, as the same may become due, against the father, his executors or administrators. And if the father shall refuse to enter into such recognizance, he shall be committed to jail, until he comply, or discharge himself by taking the oath of an insolvent debtor, or until the overseers consent to his discharge; and the estate contained in his schedule shall, by order of the court, be applied towards indemnifying the county. 1 Rev. Code, p. 183, sect. 23. The same proceedings are authorised father of a bastard child, in corporate towns. 92, 93. against the reputed See 2 Rev. Code, p. No justice may send for a woman, before she shall be delivered, in order to her being examined concerning her pregnancy, or compel her to answer any questions relating thereto. 1 Rev. Code, p. 184, sect. 24. TICES." As to binding bastards apprentices, see title "APPREN (A) Examination of the woman. County, to wit: The examination of A M, of day of in the said county, taken upon oath before me, JP, a justice of the peace for the county aforesaid, this in the year of our Lord Jast past, at day of in who saith, that on the the county aforesaid, she, the said A M, was delivered of a (male, or female, as the case may be) bastard child, and that the said bastard child is likely to become chargeable to the said county, and that A F, of the said county, did get her with child of the said bastard child. Taken and signed, the day and year above written, before me, JP. Το (B) Warrant against the reputed father. County, to wit: or any other constable of day of county. A M. Whereas A M, of in the said county, single woman, hath by her examination taken in writing upon oath before me, J P, one of the commonwealth's justices of the peace for the county aforesaid, declared, that on the now last past, at in. the county aforesaid, she, the said A M, was delivered of a (male) bastard child, and that the said bastard child is likely to become chargeable to the said county, and hath charged A F, of in the said county, labourer, of having gotten her with child of the said bastard child: And whereas O P, one of the overseers of the poor in the county aforesaid, in order to indemnify the said county in the premises, hath applied to me to issue my warrant for apprehending the said A F: I do therefore hereby command you, immediately to apprehend the said A F, and to bring him before me, or some other justice of the peace for the said county, to find sufficient security in a sum not less than fifty nor more than two hundred dollars, for his personal appearance at the next court, to be held for the said county of and then and there to abide by and perform the order of the said court herein, in pursuance of the act of the General Assembly, entitled "An act providing for the poor, and declaring who shall be deemed vagrants." Given under my hand and seal, this in the year day of |