If the bastard child be born in one county, and the reputed father be a resident or inhabitant of another, application must be made by an overseer of the poor of the county wherein the child was born, to a justice of the county where the father resides, for a warrant to apprehend him. In such cases the examination of the woman should be taken before a justice of the county wherein the child was born, and transmitted to some justice of the county where the father resides, together with an application from an overseer of the poor of the county wherein the child was born, for a warrant to apprehend the reputed father. It would be well to accompany these papers with a certificate from the clerk of the court, that the person applying for the warrant is duly elected and qualified as an overseer of the poor of that county.

No particular form of application seems necessary; it will be sufficient to state the fact of the birth and parentage of the bastard child, as mentioned in the examination, and to require a warrant for the apprehension of the father, in order to indemnify the county wherein the child was born; the applicant stating himself to be one of the overseers of the poor of the county.

Where the warrant issues in one county, grounded on an examination of the woman, and the application of an overseer of the poor of another, the warrant and subsequent proceedings must state that fact. If the reputed father be arrested, he may enter into a recognizance to appear at the next court.

(C) The Recognizance.

county, to wit. Memorandum, That upon this A F, of the county of

our Lord

day of in the year of labourer, A B, of the said

county, labourer, and B B, of the said county, labourer, personally appeared before me J P, a justice of the peace for the county afore said, and acknowledged that they do owe to A G, governor or chief magistrate of the commonwealth of Virginia, and his successors, to wit, the said A F, the sum of dollars, and the said A B, and B B, each severally in the sum of dollars, of lawful money of Virginia; to be levied of their respective goods and chattels, lands and tenements, to the use of the said commonwealth of Virginia, if default should be made in performance of the condition here underwritten.

The condition of this recognizance is, that whereas A M, of the County of (or of the said county, as the case may be) single wo man, hath by her examination on oath before me (or before one of the commonwealth's justices of the peace for the county of as the case may be) declared that on the

day of

last

(or

past, she was delivered of a bastard child in the county of in the county aforesaid) which is likely to become chargeable to the said county, and hath charged the above bound AF with having gotten her with child of the said bastard child: Now if the said A F shall personally appear before the commonwealth's justices of the peace, at the next court to be held for the county of and sha!! abide by and perform the order or orders of such court, as shal!

made in the premises, then this recognizance to be void, otherwise to remain in full force.

Acknowledged before me.

If the reputed father refuses to enter into a recognizance, the justice may commit him.

(D) Mittimus.

To the sheriff, or keeper of the jail of the county of

county to wit.

I herewith send you the body of A F, of this county, labourer, who was this day brought before me J P, one of the commonwealth's justices of the peace for the said county, being charged on oath by A M, of the county aforesaid, single woman, to have gotten her with child, of a bastard child, of which she hath been lately delivered within the said county, and which child is likely to become chargeable to the said county; and the said A F, labourer, having refused, before me, to find sufficient security for his appearance at the next court to be held for this county, to answer the said charge: These are, therefore, in the name of the commonwealth, to command you to receive the body of the said A F into your custody, and him safely to keep in the common jail, until he shall thence be discharged by due course of law. Herein fail not at your peril. Given under my hand and seal, &c.

III. ÇAPACITY OF A BASTARD AS TO INHERITANCE.

By the common law, a bastard could inherit nothing (1 Bl. Com. 458) but by Virginia laws (1 Rev. Code, p. 169) "Bastards shall be capable of inheriting, or of transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother."

For more concerning bastards at common law, see Co. Lit. S 6. Co. 65. 3 Salk. 66. 1 Dyer, 373. Nay, 159. 3 P. Wms, 33. 2 Bl. Com. 505.

IV. CONCEALING THE DEATH OF A BASTARD CHILD.

This was declared to be murder by 9 Annæ, (1710) chap. II. p. 59. of the edition of 1769; which law was nearly copied from the statute of England 21. Jac. I. c. 27.

By these statutes a new felony was not created, but the act of concealment was made undeniable evidence of a felony; therefore the indictment need not be drawn specially, or conclude against the form of the statute. Haw. B. 2. c. 46. s. 43.

Formerly the bare attempt to conceal the death of a bastard child was held conclusive evidence of murder. Ibid. But now some kind of presumptive evidence is necessary that the child was born alive. 4 Bl. Com. 198.

Whether the legislature of Virginia intended to abolish the distinction between this offence and the common cases of murder, or whether it was a mere omission in them, it is difficult to determine, but so it is,

that these statutes have not been published in the Revised Code, printed in 1794, or 1803.

It would seem, however, from the rules of legal construction, and from the principle established by the high court of chancery in Virginia, that the act of 9 Ann. is still in force ;* not having been expressly repealed. See Wythe's Chancery Decisions, 33. Harrison and al. v. Allen.

BATTERY, see ASSAULT, &c.

BEEF, See PORK, &c.

* Since the publication of the first edition of this work, an opinion has been expressed by a learned judge, that the legislature, in 1792, may be presumed to have so far acted upon the draught of a bill containing the clauses of the act of 1710, making it murder to conceal the death of a bastard child, 'as to manifest an intention to repeal that law;' though he admits that it has been decided by judges, for whose opinions he entertains the highest respect, that the act is still in force. See 4 Tucker's Blacks. 358, note 23. "Amidst this conflict of opiniou, on a subject of so much importance, I have endeavoured to give it a careful examination, and the more I have investigated it, the more am I confirmed in my first impressions, that the act of 1710 is still in force.

At the session of 1789, an act passed providing for a new revisal of our laws. (See 2 Rev. Code. App. No. IX. p. 101.) By a resolution of the General As. sembly of the 29th of November, 1791, the committee of revisors were informed that it was the intention of the legislature, that the several laws then existing on the same subject should be consolidated into single bills, but that no new matter should be introduced into the system. (See 2 Rev. Code, App. No. IX. p. 113.) The revised bills thus consolidated, from existing laws, were reported by the committee to the executive on the 23d of June, 1792, and were laid before the General Assembly at the next session. The act in question was continued, under the title of A Bill concerning bastards; and to prevent the destroying and murdering of bastard children.' (See Revised Bill of 1792, vol. 1. p. 161.) On the third of December, 1792, a bill was brought in, under the above title, and referred to a committee of the whole house. (See Journal HD 1792, p. 159.) On the 7th of December the bill was taken up in committee of the whole house, and reported by the chairman, with several amendments, and ordered to lie on the table. (Journal H. D. p. 169) On the 15th of December, the bill was called up, the amendments reported by the committee agreed to, and the bill ordered to be engrossed and read a third time (Journal H. D. p 190) and on the 17th of December, it passed the House of Delegates, under the title of An act concerning bastards,' the title having been amended. But the bill was never returned from the Senate. It is stated, on the authority of a gentleman who held a distinguished place in the Senate, during the session of 1792, that the bill, as sent from the House of Delegates, was rejected in the Senate, with a view to get clear of the law. But surely it must have occurred to that body, that an existing law could not be repealed in that way. Had the bill, for the first time, been introduced into the House of Delegates at that session, the Senate might have prevented it from becoming a law, by rejecting it; but it being a mere repetition of an existing law, not limited in its duration, the only mode in which the Senate could have manifested an intention to repeal it, would have been by passing a law to that effect.

BIGAMY.

The term Bigamy, which, in its literal sense, means the having of two wives, at different times, and successively (3 Inst. 88.) is corruptly used for polygamy, or having a plurality of wives at once.

Com. 163.

4. Bl.

If any person or persons within this commonwealth, being married, or who shall hereafter marry, do, at any time, marry any person or persons, the former husband or wife being alive, every such offence shall be felony; and the parties so offending shall receive like proceeding, trial, &c. within this commonwealth, as if the offence had been committed in the county where such person shall be apprehended. Provided, that this act shall not extend, 1st, to any person whose husband or wife shall be continually remaining beyond the seas by the space of seven years together; or, 2dly, where the husband or wife shall absent him or herself, the one from the other, by the space of seven years, in any part within the United States of America, the one of them not knowing the other to be living within that time; or, 3dly, to such persons as are, or shall be at the time of such marriage, divorced by lawful authority; or, 4thly, to any person where the former marriage hath been, or hereafter shall be, by lawful authority, declared to be void and of no effect; or, 5thly, to persons where the marriage is between persons within the age of consent. No attainder for this offence to work corruption of blood or forfeiture of estate. 1 Rev. Code, p. 195. sect. 14. This offence being within the benefit of clergy, is now punishable by confinement in the penitentary, for a period not less than six months, nor more than two years. See 1 Rev. Code, p.

357. sect. 13.

The above act agrees substantially with the statute (1 Jac. 1. e. 11) under which it has been held that the party is not deprived of the benefit of the first exception, even if he or she have notice that the other is alive. See 1 Hale 693.

The act extends to a marriage de facto, though it be not a mar. riage de jure. 3. Inst. 88.

If either party be within the age of consent, the fifth exception extends to both. (1 Hale 694.) And the age of consent is twelve years in females, and fourteen in males. 3. Inst. 88.

The first wife shall not be admitted as a witness against her husband, because she is the true wife; but the second may, for she is indeed no wife at all; and so vice versa, of a second husband. (4 Bl. Com. 164.) In prosecutions for bigamy, it has been said, a marriage in fact must be proved. (Dictum per Lord Mans. field. 4 Burr. 2059.) But see 1 East's Cr. L. 470, Truman's case, where proof of cohabitation, and of the defendant's acknowledgment of a marriage in Scotland, backed by proceedings in a court there, for the irregularity of such marriage (it being nevertheless

good under that law) were admitted in evidence; and the above opinion of Lord Mansfield is considered a mere obiter dictum.

to wit.

(A) Warrant for Bigamy.

Whereas information hath been given to me, J P, a justice of the peace for the county aforesaid, by the oath of A I, that A O, of, &c. hath lately intermarried with E A, of, &c. he the said A O being at the same time a married man, his former wife being alive, contrary to the act of the General Assembly in that case made and provided: These are, therefore, in the name of the commonwealth, to command you to take the said A O, and bring him before me, or some other justice of the peace for the county afe esaid, to answer the said charge, and further to be dealt with according to law. Given under my hand and seal, at, &c. this day of in the year

If a light suspicion of guilt, only, fall an the party, he or she may be bailed. See BAIL. Div. III.

(B) Recognizance of Bail.

Pursue form (A) under title' RECOGNIZANCE,' then add the following condition.)

The condition of the above recognizance is such, that if the above bound AO shall personally appear before the commonwealth's justices of the peace for the county of on the day of at a court by them to be held, at the court house of the said county, for the examination of the said A O, then and there to answer such matters and things as shall be objected against him on behalf of the commonwealth, concerning his the said A O's having lately intermarried with E A, of, &c. he the said A O being at the same time a married man, his former wife being alive; and if the said A O shall not depart thence without leave of the court, then this recognizance to be void, &c.

If there be good grounds to believe the party guilty, he or she cannot be bailed. See BAIL.' Div. III.

county to wit.

(C) Mittimus.

To A C, constable, and to the keeper of the jail of the said county. Whereas E A, otherwise called E B, of, &c. hath been brought before me JP, one of the justices of the peace for the county aforesaid, charged on the oath of A I, of, &c. with having married a certain W B, of, &c. she the said E well knowing that the said W B was at the time lawfully married to another wife, and that his said wife was in full life, contrary to the act of the General Assembly in that case made and provided: These are, therefore, to command you, the said constable, to convey the said E A, otherwise called E B, forthwith to the jail of the said county of and deliver her to the keeper thereof; and you the said keeper are hereby