« SebelumnyaLanjutkan »
lb. art. 254, 256. Alimony is due to bastards, though they be adulterous and incestuous, by the mother and her ascendants. Ib. art. 262.
Children born out of marriage, except those who are born from an incestuous or adulterous connexion, may be legitimated by the subsequent marriage of their father and mother, whenever the latter have legally acknowledged them for their children, either before the marriage or by the contract of marriage itself. Every other mode of legitimatising children is abolished. lb. art. 217. Legitimation may even be extended to deceased children who have left issue, and in that case, it inures to the benefit of that issue. lb. art. 218. Children legitimated by a subsequent marriage have the same rights as if born during the marriage. Ib. art. 219.
See generally, Vin. Abr. Bastards; Bac. Abr. Bastard; Com. Dig. Bastard; Mete. & Perk. Dig. h. t.; the various other American Digests, h. t.; Harr. Dig. h. t.; 1 Bl. Com. 454 to 460; Co. Litt. 3, b. And Access; Bastardy; Gestation; Natural children.
BASTARD EIGNE, Eng. law, is a son born before the marriage of his parents, when the latter afterwards marry and have issue; in this case the first child, or, the one before marriage, is called bastard eigne, and the first born after marriage is called malier puisne. 2 Bl. Com. 248. Vide Eigne; Mulier.
BASTARDY, crim. law. The offence of begetting a bastard child; as, such a man is guilty of fornication and bastardy.
BASTARDY, persons, the state or condition of a bastard. The law presumes every child legitimate, when born of a woman in a state of wedlock, and casts the onus probandi (q. v ) on the party who affirms the bastardy. Stark. Ev. h. t.
BASTON, ancient French word which signifies a staff, or club. In some old English statutes the servants or officers of the wardens of the Fleet are so called, because they attended the king's courts with a red staff. Vide Tipstaff.
BATTEL, in French Bataille; Old English law. An ancient and barbarous mode of trial, by single combat, called wager of battel, where, in appeals of felony, the appellee might fight with the appellant to prove his innocence. It was also used in affairs of chivalry or honour, and upon civil cases upon certain issues. Co. Litt. 294. Till lately it disgraced the English code. This mode of trial was abolished in England by stat. 59 Geo. 3, c. 46.
BATTERY. It is proposed to consider, 1, What is a battery; 2, When a battery may be justified.
§ 1. A battery is the unlawful touching the person of another by the aggressor himself, or any other substance put in motion by him. 1 Saund. 29, b. n. 1 ; Id; 13 & 14, n. 3. It must be either wilfully committed or proceed from want of due care. Str. 596; Hob. 134; Plowd. 19; 3 Wend. 391. Hence an injury, be it never so small, done to the person of another, in an angry, revengeful, rude or insolent manner, as by spitting in his face, or any way touching him in anger, or violently jostling him, are batteries in the eye of the law. 1 Hawk. P. C. 263; see 1 Selw. N. P. 33, 4. And any thing attached to the person, partakes of its inviolability; if, therefore, A strikes a cane in the hands of B, it is sufficient to justify B in beating A. 1 Dall. 114; 1 Ch. Pr. 37. 1 Penn. R. 380; 1 Hill's R. 4fi; 4 Wash. C. C. R. 534; 1 Baldw. R. 600.
§ 2. A battery may be justified, 1st, for the public good ; 2ndly in the exercise of an office; 3dly, under process of a court of justice or other legal tribunal; 4thly, in aid of an authority in law; and lastly, as a necessary means of defence.
First,—As a salutary mode of correction, the beating may be justified for the public good; namely, 1. A parent may correct his child, a master his servant, a schoolmaster his scholar, 24 Edw. 4; Easter, 17, page 6; and a superior officer, one under his command. Keilw.pl. 120, p. 136; Bull. N. P. 19; Bee, 161; 1 Bay, a; 14 John. R. 119; 15 Mass. 365; and vide Cowp. 173; 15 Mass. 347. —2. As a means to preserve the peace, and therefore if the plaintiff assaults or is fighting with another, the defendant may lay hands upon him, and restrain him until his anger is cooled; but he cannot strike him in order to protect the party assailed, as he may in self-defence. 2 Roll. Abr. 359, (E.) pi. 3.-3. Watchmen may arrest and detain in prison for examination, persons walking in the streets by night, whom there is reasonable ground to suspect of felony, although there is no proof of a felony having been committed. 3 Taunt. 14. —4. Any person has a right to arrest another to prevent a felony, as to prevent him from murdering his wife.—5. Any one may arrest another upon suspicion of felony, provided a felony has actually been committed, that there is reasonable ground for suspecting the person arrested to be the criminal, and that the party making the arrest, himself entertained the suspicion.—6. Any private individual may arrest a felon. Hale's P. C. 89.—7.It is lawful for every man to lay hands on another to preserve public decorum; as to turn him out of church, and prevent him from disturbing the congregation or a funeral ceremony. 1 Mod. 168; and see 1 Lev. 196; 2 Keb. 124. But a request to desist should be first made, unless the urgent necessity of the case dispenses with it.
Secondly; a battery may be justified in the exercise of an office. 1. A constable may freshly arrest one who, in his view, has committed a breach of the peace, and carry him before a magistrate. But if an offence has been committed out of the constable's sight, he cannot arrest, unless it amounts to a felony. 1 Brownl. 198; or a felony is likely to ensue. Cro. Eliz. 375.-2. A justice of the peace may generally, do all acts which a constable has authority to perform; hence he may freshly arrest one, who in his view, has broken the peace; or he may order a constable at the moment to take him up. Keilw. 41.
Thirdly; A battery may be justified under the process of a court of justice or of a magistrate having competent jurisdiction. See 16 Mass. 450; 13 Mass. 342.
Fourthly; A battery may be justified in aid of an authority in law. Every person is empowered to restrain breaches of the peace, by virtue of the authority vested in him by the law.
Lastly; A battery may be justified as a necessary means of defence. 1. Against the plaintiff's assaults in the following instances: In defence of himself, his wife, 3 Salk. 46; his child, and his servant, Ow. 150; sed vide, 1 Salk. 407. So likewise the wife may justify a battery in defending her husband, Ld. Raym. 62; the child its parent, 3 Salk. 46, and the servant his master. In these situations, the party need not wait until a blow has been given, for then he might come too late, and be disabled warding off a second stroke from his own person, or effectually protecting that of the person assailed. Care, however, must be taken that the battery transgress not the bounds of necessary defence and protection, for it is only permitted as a means to avert an impending evil which might otherwise overwhelm the party, and not as a punishment or retaliation for the injurious attempt. Str. 953. The degree of force necessary to repel an assault, will naturally depend upon, and be proportioned to, the violence of the assailant; but with this limitation, any degree is justifiaable. Ld. Raym. 177. 2 Salk. 642. —2. A battery may likewise be justified in the necessary defence of one's property; if the plaintiff is in the act of entering peaceably upon the defendant's land, or having entered, is discovered not committing violence, a request to depart is necessary in the first instance, 2 Salk. 641 ; and if the plaintiff refuses, the defendant may then, and not till then, gently lay hands upon the plaintiff to, remove him from the close; and for this purpose may use, if necessary, any degree of violence short of striking the plaintiff, as by thrusting him off; Skinn. 228. If the plaintiff resists, the defendant may oppose force to force. 8T. R. 78. But if the plaintiff is in the act of forcibly entering upon the land, or having entered, is discovered subverting the soil, cutting down a tree or the like, 2 Salk. 641, a previous request is unnecessary, and the defendant may immediately lay hands upon the plaintiff. 8 T. R. 78. A man may justify a battery in defence of his personal property, without a previous request, if another forcibly attempt to take away such property. 2 Balk. MI. Vide Rudeness; Wantonness
BATTURE, means an elevation of the bed of a river under the surface of the water; but it is sometimes used to signify the same elevation when it has risen above the surface. 6 M. R. 216. The term battures is applied, principally, to certain portions of the bed of the river Mississippi, which are left dry when the water is low, and are covered again, either in whole or in part, by the annual swells.
BAWDY HOUSE, crim. law, is a house of ill-fame, (q. v.) kept for the resort and unlawful commerce of lewd people of both sexes. Such a house is a common nuisance, as it endangers the public peace by drawing together dissolute and debauched persons; and it has also an apparent tendency to corrupt the manners of both sexes, by such an open profession of lewdness. 1 Russ. on Cr. 299; Bac. Ab. Nuisances, A; Hawk. B. 1, c. 74, § 1-5. The keeper of such a house may be indicted for the nuisance; and a married woman, because such houses are generally kept by the female sex, may be indicted with her husband for keeping such a house. 1 Salk. 383; vide Dane's Ab. Index, h. t.
BAY. Is an enclosure to keep in the water for the supply of a mill or other contrivance, so that the water may be able to drive the wheels of such mill. Stat. 27 Eliz. c. 19. A large open water or harbour where ships may ride, is also called a bay; as, the Chesapeake Bay, the Bay of New York.
BEACH, the sea shore, (q. v.)
BEACON. A signal erected as a sea mark for the use of mariners, and to give warning of the approach of an enemy. 1 Com. Dig. 259; 5 Com. Dig. 173. Since the invention of the telegraph, the beacon has been but little used.
BEARER, one who bears or carries a thing. If a bill or note be made payable to bearer, it will pass by delivery only, without endorsement; and whoever fairly acquires a right to it, may maintain an action against the drawer or acceptor. It has been decided that the bearer of a bank note, payable to bearer, is not an assignee of a chose in action within the 11th section of the judiciary act of 1789, ch. 20, limiting the jurisdiction of the circuit court. 3 Mason, R. 308. Bills payable to bearer are contra-distinguished to those payable to order, which can be transferred only by endorsement and delivery. Bills payable to fictitious payees, are considered as bills payable to bearer.
BEARERS Eng. crim. law, are such as bear down or oppress others; maintainers. This word is nearly obsolete.
BEAU PLEADER, Eng. law. Fair pleading. This is the name of a writ upon the statute of Marlbridge, 52 H. 3, c. 11, which enacts, that neither in the circuit of justices, nor in counties, hundreds, courts-baron, any fines shall be taken for fair pleading; namely, for not pleading fairly or aptly to the purpose. Upon this statute this writ was ordained, directed to the sheriff, bailiff, or him who shall demand the fine; and it is a prohibition or command not to do if. New Nat. Br. 596; 2 Inst. 122.
BEDEL, Eng. law, is a cryer or messenger of a court, who cites men to appear and answer. There are also inferior officers of a parish or liberty who bear this name.
BEE. The name of a well known insect. Bees are considered fera natural while unreclaimed; and they are not more subjects of property while in their natural state, than the birds which have their nests on the tree of an individual. 3 Binn. R. 546. This agrees with the Roman law. Inst. 2, 1, 14; Dig. 41, 1, 5, 2. In New York, it has been decided that bees in a tree belong to the owner of the soil, while unreclaimed; when they have been reclaimed, and the owner can identify them, they belong to him, and not to the owner of the soil. 15 Wend. R. 550. See 1 Cowcn, R. 243.
BEHAVIOUR. Vide Good Behaninur.
BELIEF, is the conviction of the mind, arising from evidence received, or from information derived, not from actual perception by our senses,
but from the relation or information of others who have had the means of acquiring actual knowledge of the facts, and whose qualifications for acquiring that knowledge, and retaining it, and afterwards in communicating it, we can place confidence. "Without recurring to the books of metaphysicians," says Chief Justice Tilghman, 4 Serg. & Rawle, 137, "let any man of plain common sense, examine the operations of his own mind, he will assuredly find that on different subjects his belief is different. I have a firm belief that the moon revolves round the earth. I may believe, too, that there are mountains and valleys in the moon; but this belief is not so strong, because the evidence is weaker." Vide 1 Stark. Ev. 41; 2 Pow. Mortg. 555; 1 Ves. 95; 12 Ves. 80; 1 P. A. Browne's R. 258; 1 Stark. Ev. 127; Dyer, 53; 2 Hawk. c. 46, s. 167; 3 Wills. 427; 2 Bl. R. 881; Leach, 270; 8 Watts, R. 406.
BELOW. Undermost. The court below is an inferior court, whose proceedings may be examined on error by a superior court, which is called the court above. Bail below is that given to the sheriff in bailable actions, which is so called to distinguish it from bail to the action, which is called bail above. See Abore ; Bail above; Bail below.
BENCH, a seat of justice. Figuratively, the office of a judge, as the bench and the bar. One of the superior courts in England, is called the Court of the King's Bench. The King's Bench prison is a prison belonging and connected with that court.
BENCH WARRANT, crim. law,. The name of a process sometimes given to an attachment issued by order of a criminal court, against an individual for some contempt, or for the purpose of arresting a person accused; the latter is seldom granted unless when a true bill has been found.
BENEFICE, eccles. law, is in its most extended sense, any ecclesiastical preferment or dignity; but in its more limited sense, it is applied only to rectories and vicarages.
BENEFICIARY. This term is frequently used as synonymous with the technical phrase cestui que trust, (q. v.)
BENEFICIO PRIMO ECCLESIASTICO HABENDO, Eng. eccl. law. A writ directed from the king to the chancellor, commanding him to bestow the benefice which shall first fall in the king's gift, above or under a certain value, upon a particular and certain person.
BENEFIT. This word is used in the same sense as gain (q. v.) and profits, (q. v.) 20 f oull. n. 199.
BENEFIT OF CESSION, civil law. The release of a debtor which the law operates in his favour, upon the surrender of his property for the benefit of his creditors, from future imprisonment for his debts. Poth. Proced. Civ. 5eme part., c. 2, § I. This was something like a discharge under the insolvent laws, which releases the person of the debtor, but not the goods he may acquire afterwards. See Bankrupt; Cessio Bonorum; Insolvent.
BENEFIT OF CLERGY, Eng lish law, is an exemption of the punishment of death which the laws impose on the commission of certain crimes, on the culprit demanding it; by modern statutes, benefit of clergy was rather a substitution of a more mild punishment for the punishment of death. It was lately granted not only to the clergy, as was formerly the case, but to all persons. The benefit of clergy seems never to have been extended to the crime of high treason, nor to have embraced misdemeanors inferior to felony. Vide 1 Chit. Cr. Law, 667 to 668; 4 Bl.
Com. ch. 28. But this infamous privilege given originally to the clergy because they had more learning than others, is now abolished by stat. 7 Geo. 4, c. 28, s. 6. By the act of congress of April 30,1790, it is provided, § 30, that the benefit of clergy shall not be used or allowed, upon conviction of any crime, for which, by any statute of the United States, the punishment is, or shall be declared to be, death.
BENEFIT OF INVENTORY, civil law. The benefit of inventory is the privilege which the heir obtains of being liable for the charges and debts of the succession, only to the value of the effects of the succession, in causing an inventory of these effects within the time and manner prescribed by law. Civil Code of Louis. art. 1025. Vide Poth. Traito des Successions, c. 3, s. 3, a. 2.
BENEVOLENCE, English law, was an aid given by the subjects to the king under a pretended gratuity, but in reality it was an extortion and imposition.
BEQUEST. A gift by last will or testament; a legacy, (q. v.) This word is sometimes, though improperly used, as synonymous with devise. There is however a distinction between them. A bequest is applied, more properly, to a gift by will of a legacy, that is, of personal property; devise is properly a gift by testament of real property. Vide Devise.
BESAILE or BESAYLE, do. mestic relations. The great grandfather, proavus. 1 Bl. Com. 186; vide Aile.
BETTER EQUITY. In Eng. land this term has lately been adopted. In the case of Foster v. Blackstone, the master of the rolls said, he could no where find in the authorities what in terms was a better eqttity, but on a reference to all the cases, he considered it might be thus defined: If a prior incumbrancer did