BASTARD. A word derived from bas or bast, signifying abject,
low, base; and aerd, nature. Minshew, Co. Lit. 244; a. Enfant de
bas, a child of low birth. Dupin. According to Blackstone, 1 Com.
454, a bastard in the law sense of the word, is a person not only
begotten, but born out of lawful matrimony. This definition does
not appear to be complete, inasmuch as it does not embrace the case
of a person who is the issue of an illicit connection, during the
coverture of his mother. The common law, says the Mirror, only taketh
him to be a son whom the marriage proveth to be so. Horne's Mirror,
c. 2, §7; see Glanv. lib 8, cap. 13 Bract. 63, a. b.; 2 Salk. 427;,
8 East, 204. A bastard may be perbaps defined to be one who is born
of an illicit union, and before the lawful marriage of his parents.
2. A man is a bastard if born, first) before the marriage of his parents; but
although he may have been begotten while his parents were single, yet if they
afterwards marry, and he is born during the coverture, he is legitimate. 1 Bl.
Com. 455, 6. Secondly, if born during the coverture, under circumstances which
render it impossible that the hushand of his mother can be his father. 6 Binn.
283; 1 Browne's R. Appx. xlvii.; 4 T. R. 356; Str. 940 Id. 51 8 East, 193;
Hardin's R. 479. It seems by the Gardner peerage case, reported by Dennis Le
Marebant, esquire, that strong moral improbability that the hushand is not the
father, is sufficient to bastardize the issue. Bac. Ab. tit. Bastardy, A, last
ed. Thirdly, if born beyond a competent time after the coverture has determined.
Stark. Ev. part 4, p. 221, n. a Co. Litt. 123, b, by Hargrave & Butler in
the note. See Gestation.
3. The principal right which bastard children have, is that of maintenance
from their parents. 1 Bl. Com. 458; Code Civ. of Lo. 254 to 262. To protect the
public from their support, the law compels the putative father to maintain his
bastard children. See Bastardy; Putative father.
4. Considered as nullius filius, a bastard has no inheritable blood in him,
and therefore no estate can descend. to him; but he may take by testment, if
properly described, after he has obtained a name by reputation. 1 Rop. Lew. 76,
266; Com. Dig. Descent, C, l2; Ie. Bastard, E; Co. Lit. 123, a; Id. 3, a; 1 T.
R. 96 Doug. 548 3 Dana, R. 233; 4 Pick. R. 93; 4 Desaus. 434. But this hard rule
has been somewhat mitigated in some of the states, where, by statute, various
inheritable qualities have been conferred upon bastards. See 5 Conn. 228; 1 Dev.
Eq. R. 345; 2 Root, 280; 5 Wheat.. 207; 3 H. & M. 229, n; 5 Call. 143; 3
5. Bastards can acquire the rights of legitimate children only by an act of
the legislature. 1 Bl. Com. 460; 4 Inst. 36.
6. By the laws of Louisiana, a bastard is one who is born of an illicit
union. Civ. Code of Lo. art. 27, 199. There are two sorts of illegitimate
cbildren; first, those who are born of two persons, who, at the moment such
children were conceived, might have legally contracted marriage with each other;
and, secondly, those who are born from persons, to whose marriage there existed
at the time, some legal impediment. Id. art. 200. An adulterous bastard is one
produced by an unlawful connexion between two persons, who, at the time he was
conceived, were, either of them, or both, connected by marriage with some other
person or persons. Id. art. 201. Incestuous bastards are those who are produced
by the illegal connexion of two persons who are relations within the degrees
prohibited by law. Id. art. 202.
7. Bastards, generally speaking, belong to no family, and have no relations;
accordingly they are not subject to paternal authority, even when they have been
acknowledged. See 11 East, 7, n. Nevertheless, fathers and mothers owe alimony.
to their children when they are in need. Id. art. 254, 256. Alimony is due to
bastards, though they be adulterous or incestuous, by the mother and her
ascendants. Id. art. 262.
8. 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 legitimating children is
abolished. Id. art. 217. Legitimation may even be extended to deceased children
who have left issue, and in that ease, it enures to the benefit of that issue.
Id. art. 218. Children legitimated by a subsequent marriage, have the same
rights as if born during the marriage. Id. art. 219. See, generally, Vin. Abr.
Bastards Bac. Abr. Bastard; Com. Dig. Bastard; Metc. & 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.; Bouv. Inst. Index, h. t., And Access; Bastardy; Gestation;
BASTARD EIGNE', Eng. law. Elder bastard. By the old English law, when,
a man had a bastard son, and he afterwards married the mother, and by her had a
legitimate son, the first was called a bastard eigne, or, as it is now spelled,
aine, and the second son was called puisne, or since born, or sometimes he was
called mulier puisne. See Mulier; Eigne, 2 Bl. Com. 248.
BASTARDY, crim. law. The offence of begetting a bastard child.
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 wlio affirms the bastardy. Stark.
Ev. h. t.
BASTON. An old 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
BATTEL, in French Bataille; Old English law. An ancient and barbarous
mode of trial, by Bingle 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 honor, 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.,III. c. 46.
2. This mode of trial was not peculiar to England. The emperor Otho, A. D.
983, held a diet at Verona, at which several sovereigns and great lords of
Italy, Germany and France were present. In order to put a stop to the frequent
perjuries in judicial trials, this diet substituted in all cases, even in those
which followed the course of the Roman law, proof by combat for proof by oath.
Henrion de Pansey, Auth. Judic. Introd. c. 3; and for a detailed account of this
mode of trial see Herb. Antiq. of the Inns of Court, 119-145.
BATTERY. It is proposed to consider, 1. What is a battery; 2. When a
battery, may be justified.
2. §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,
spiteful, 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 a battery. 1 Dall. 1 14 1 Ch. Pr. 37; 1 Penn. R. 380; 1 Hill's
R. 46; 4 Wash. C. C. R. 534 . 1 Baldw. R. 600.
3. - §2. A battery may be justified, 1. on the ground of the parental
relation 2. in the exercise of an office; 3. under process of a court of justice
or other legal tribunal 4. in aid of an authority in law; and lastly, as a
necessary means of defence.
4. First. As a salutary mode of correction. For example: a parent may correct
his child, a master his apprentice, a schoolmaster his scholar; 24 Edw. IV.;
Easter, 17, p. 6 and a superior officer, one under his command. Keilw. pl. 120,
p. 136 Bull. N. P. 19 Bee, 161; 1 Bay, 3; 14 John. R. 119 15 Mass. 365; and vide
Cowp. 173; 15 Mass. 347.
5. - 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 way in self-defence. 2 Roll. Abr. 359, E, pl.
6. - 3. Watchmen may arrest, and detain in prison for examination, persons
walking in the streets by might, whom there is reasonable ground to suspect of
felony, although there is no proof of a felony having been committed. 3 Taunt.
7. - 4. Any person has a right to arrest another to prevent a felony.
8. - 5. Any one may arrest another upon suspicion of felony, provided a
felony has actually been committed and there is reasonable ground for suspecting
the person arrested to be the criminal, and that the party making the arrest,
himself entertained the suspicion.
9. - 6. Any private individual may arrest a felon. Hale's P. C. 89.
10. - 7. It is lawful for every man to lay hands on another to preserve
public decorum; as to turn him out of church, and to 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.
11. 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.
12. - 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.
13. 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
14. 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.
15. Lastly. A battery may be justified as a necessary means of defence. 1.
Against the plaintiffs 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
hushand; 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 from warding off a
second stroke, or from protecting the person assailed. Care, however, must be
taken, that the battery do not exceed 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 justifiable.
Ld. Raym. 177; 2 Salk. 642.
16. - 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 force short of striking the plaintiff, as by thrusting
him off. Skinn. 228. If the plaintiff resists, the defendant may oppose force to
force. 8 T. 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 Salk. 641.
Vide Rudeness; Wantonness.
BATTURE. 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. 19, 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. The word battures, in French, signifies shoals or shallows, where
there is not water enough for a ship to float. They are otherwise called basses
or brisans. Neuman's Marine Pocket Dict.; Dict. de Trevoux.
BAWDY-HOUSE, crim. law. A house of ill-fame, (q. v.) kept for the
resort and unlawful commerce of lewd people of both sexes.
2. Such a house is a common nuisance, as it endangers the public peace by
drawing together dissolute and debauched persons; and tends to corrupt both
sexes by an open profession of lewdness. 1 Russ. on Cr.; 299: Bac. Ab.
Nuisances, A; Hawk. B. 1, c. 74, §1-5.
3. 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 hushand for keeping such a house. 1 Salk. 383; vide Dane's Ab. Index,
h. t. One who assists in establishing a bawdyhouse is guilty of a misdemeanor. 2
B. Monroe, 417.
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.
2. A large open water or harbor 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; also,
to give warning of the approach of an enemy. 1 Com. Dig. 259; 5 Com. Dig.
TO BEAR DATE. In the description of a paper in a declaration, to say
it bears date such a day, is to aver that such date is upon it; and if, on being
produced, it is dated at another day, the variance will be fatal. But if it be
averred it was made on such a day, and upon its production it bears date on
another day, it will not be a variance, because it might have been made one day
and dated another. 3 Burr. 904.
BEADLE. Eng. law. A messenger or apparitor of a court, who cites
persons to appear to what is alleged against them, is so called.
BEARER. One who bears or carries a thing.
2. 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.
3. 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, c. 20, limiting the jurisdiction of the circuit court. 3 Mason, R.
4. Bills payable to bearer are contra-distinguished from those payable to
order, which can be transferred only by endorsement and delivery.
5. Bills payable to fictitious payees, are considered as bills payable to,
BEARERS, Eng. crim. law. Such as bear down or oppress others;
maintainers. In Ruffhead's Statutes it is employed to translate the French word
emparnours, which signifies, according to Kelham, undertakers of suits. 4 Ed.
III. c. 11. This word is no longer used in this sense.
BEARING DATE. These words are frequently used in conveyancing and in
pleading; as, for example, a certain indenture bearing date the first day of
January, 1851, which signifies not that the indenture was made on that day, but
simply that such date has been put to it.
2. When in a declaration the plaintiff alleges that the defendant made his
promissory note on such a day, he will not be considered as having alleged it
bore date on that day, so as to cause a variance between the declaration and the
note produced bearing a different date. 2 Greenl. Ev. §1610; 2 Dowl. & L.
BEAU PLEADER, Eng. law. Fair pleading. See Stultiloquium.
2. This is the name of a writ upon the statute of Marlbridge, 52 H. III. c.
11, which enacts, that neither in the circuit of justices, nor in counties,
hundreds, or 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 it. Now Nat. Br. 596 2 Inst. 122;
Termes de la Le 2 Reeves' Hist. Eng. Law, 70 Cowel; Crabb's Hist. of the Eng.
Law, 150. The explanations given of this term are not very satisfactory.
BEDEL, Eng. law. 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.
2. Bees are considered ferae naturae 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 5 Sm. & Marsh. 333.
This agrees with the Roman law. Inst. 2 1, 14; Dig. 41, 1, 5, 2; 7 Johns. Rep.
16; 2 Bl. Com. 392 Bro. Ab. Propertie, 37; Coop. Justin. 458.
3. 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 Cowen, R. 243.
BEGGAR. One who obtains his livelihood by asking alms. The laws of
several of the states punish begging as an offence.
BEHAVIOUR. In old English, haviour without the prefix be. It is the
manner of having, holding, or keeping one's self or the carriage of one's self
with respect to propriety, morals, and the requirements of law. Surety to be of
-good behaviour is a larger requirement than surety to keep the peace. Dalton,
c. 122; 4 Burn's J. 355.
BEHOOF. As a word of discourse, Signifies need, (egestas, necessitas,
indigentia.) It comes from behoove, (Sax. behoven,) to need or have need of. In
a secondary sense, which is the law sense of the word, it signifies use,
service, profit, advantage, (interesse, opus.) It occurs in conveyances of land
in fee simple.