A Philological Commentary, Philological commentary · Part B
B.
BAIL.
BAil or ballium is safe keeping or protection, andCook on Lit. l. 1. c. 10. sect. 79. What kinds of offenders may be bailed, See Cook 2 part of Instit. c. 15. Termes of Law. Dalton. thereupon we say, when a man upon surety is delievered out of prison, trad…tu… in ballium, he is delivered into bail, i. e. into their … keeping, or protection from prison, it is derived from the French word baille…, and that also cometh of the Greek foreign, they both signifie to deliver into hand, for he that is bailed, is taken out of prison, and delivered into the hands of his friends.
BAILEMENT.
Bailement, is a delivery of things, writings, goods, or stuff to another.
The Intendment of Law in Cases of Bailement is that it resteth indifferent, whether he be guilty or not untill tryal.
BAILIFF
Bailiff, This word Baille (as some say) cometh of the French word Bailiff in Latin Bailivus, butCook on Lit. l. 1. c. 10. sect. 79. Id. l. 3. c. 1. sect. 248. in truth, Bailie is an old Saxon word, and sigfieth a safe Keeper or Protector, the Sheriff that hath custodiam comitatus, is called balivus, and the County baliva sua, when he cannot find the Desendant, he returned, non est inventus in bali… mea.
BANK.
Bank, is a Saxon word, and signifieth a bench, or high seat or a Tribunal, and is properly applyed to the Justices of the Court of Common Pleas, because the Justices of that Court sit there…ook on Lit. l. 2. c. 3. sect. 96. in a certain place, and legall Records term them Iusticiarii de ban…. Another Court there is called the Kings Bench, both because the Records of that Court are stiled coram Rege, and because Kings in former times have often personally sate there.
BARGAIN.
Bargain, and sale is when a recompence is given by both the parties to the bargain. By itTermes of Law. Lands may pass without livery of S…isin, if the bargain and sale be by deed indented, sealed and in…olled.
A warranty made upon the concluding of a bargan and sale doth bind, but not if the warranty be made after the bargain concluded. If a man sell unto one certain cloth, and warrant it to be of such a length, and it is not of that length, he which buyes the cloth, may have an action of deceit against him, but if the warranty be made at some other time after the bargain, he may not have suchFitz. Nat. brev. 98. K. a Writ, unless the warranty be in writing.
The Grant or bargain and sale of the profits of Land is the Grant of the Land it self, for the profits of the Land, and the Land it self are one and the self same thing in substance, but one may lease his Park, excepting the wood and underwood,1 H. 7. 9. 6 E. 6. 71. Dy. 14 H. 8. 1. 33 H. 8. Br. Reservant. 39. and his Mannor, reserving the Warren, but the soil of the wood and Warren shall go to the L…ssee. If I lease a farm, excepting the wood, or for so much of this farm as is woodland, and may by the name of a wood be demanded in a precipe the soil it self is excepted, but otherwise it is of pasture or arrable ground, which hath wood growing upon it. Cook l. 5. Iors Case, & l. 11. Laifords Case.
BARRE.
Barre, is a word common as well to the English as to the French, of which cometh the NounCook on Lit. l. 3. c. 13. sect. 708. a Barre Barra. It signifieth legally destruction for ever, or taking away for a time of the action of him that hath right, it is called a Plea in Barre when such a Barre is pleaded.
BARRETOR.
Barretor, is a common mover and exciter orThe word is derived of Barret which signifieth a quarrell, a barretroubler, or barre-ste… der. Cook on Lit. l. 3. c. 13▪ sect. 701. maintainer of suits, quarrells or parts either in Courts or else where in the Countrey. In Courts of Record or others, as in the County, Hundred, or other inferiour Courts. In the County in three manners. 1. In disturbance of the Peace, in taking or keeping of Possessions, or Lands in controversie, not only by force, but also by subtilty. 2. And most commonly in suppression of truth and right. 3. By false inventions and sowing of cal…mniations, rumours▪ and reports, whereby discord and disq…iet may grow between neighbours.
A common Barretor, or Barre offender, is a common quareller, mover, or maintainer of quarrels, either in the Court or Countrey. Some derive it of the French word Barrateur which signifiethCook 8. Rep. Barrets Case. p. 37. He causeth men to be troubled at the Barre, Minsh. a deceiver, others of the Latin word Baratro, which signifieth a vile knave or unthrift, some of two legall words Barra, which signifieth the Barre in Courts, where causes are debated, and rettum, which signifieth a crime or offence. He is seminator litium, & pacis Domini Regis perturbatur.
BASTARD.
Bastard, is he that is born of any woman not ma…ied, so that his father is not known by theVitilitigator quasi vitiose litigator. order of the Law, and therefore by the Law he is sometimes called filius nullius, the son of no man, sometimes filius populi the sonne of every man. Cui Pater est populus, Pater est sibi nullus & omnis.Either from the French Bastard, as Cowelin instit. or from foreign Meretrix quia procreatur ex mretrice. Cook on Lit. Cook 8 Rep. Letchfords Case. Stat. 20. H. 3. 9. Cook preface to his 4 Rep.
Cui Pater est populus, non habet ille patrem.
The civil Law doth legitimate the Child born before matrimony, as well as that which is born after: and giveth unto it succession in the Parents inheritance. But to the Child born out of matrimony, the Law of England alloweth no succession The Civilians say, Matrimonium subsequens tollit peccatum prius; matrimonium subsequens legitimos sacit quoad sacerdotium; (because they are legitimate by the Canon Law) non quoad successionem, propter consuetudinem regni, quae se habet in contrarium.
The Bishops were instant with the Lords, that they would consent, That all such as were born asore matrimony should be legitimate, as well as they that be born within matrimony, as to the succession of imheritance; because the Church accepteth such for legitimate. Et omnes Comites & Barones una voce responderunt, Nolumus leges Angliae mutare, quae huc usque usitatae sunt & approbatae: And all the Earls and Barons with one voice answered, That they would not change the Laws of the Realm, which hitherto had been used and approved.
If a man take a wise, which is great with childSmiths Commonwealth of England. Terms of Law. by another, which was not her husband; and after the child is born within the Espousals, then it shall be said the child of her husband, though it were but one day after the Espousals solemnized, according to that, Pater est quem nuptiae demonstrant, for whose the Cow is (as it is commonly said) his is the Calf also.
There was an Act made ann. 21. Iacobi Regis, to prevent the destroying and murthering of Bastard children, and it was continued. 3. Caroli c. 4. If any women be delivered of any issue, whichTo the end of the first Session of next Parliament. by the Laws of this Realm should have been a Bastard, and shall endeavour by drowning, or secret burying, or any other way by her self or others to conceal the death thereof, whether it were born alive or not, the Mother so offending shall suffer death as in case of murder, except …he can prove by one witness at least, that the same child was born dead.
A Bastard killeth his Mother, this seemeth p…yDalton. treason, for the Mother is certainly known, but a Bastard shall not be bound, though the Father were a bondslave, for the Law doth not acknowledg any Father in this case.
A Bastard having gotten a name by reputation,Cook on Lit. l. 1. c. 1. sect. 1. may purchase by his reputed or known name to him and his heirs, although he can have no heir, unless it be the issue of his body.
A man makes a Lease to B. for life, remainder to the eldest issue male of B. and the h…i… males of his body, B. hath issue a Bastard son, he shallId. ib. not take the remainder, because in the Law he is not his issue, for qui ex damnato …i… nascuntur int…r liberos non comput…ntur. The …ust…ces ofSeptimo Jacobi c. 4. and for the second offence to be committed to the house of Correction, till, &c. Peace shall commit …ewd women which have Bastards to the house of Correction, there to be punished and set on work, during the term of one whole year, there to remain till she can put in good Sureties for her good behaviour not to offend so again.
BATTERY.
Battery, is the wrongfull beating of one; But if a man will take away my goods, I may lay my hands upon him and disturb him, and if he will not leave, I may beat him, rather then he shall carry them away, for that is no wrongfull beating Menacing beginneth the breach of peace,Daltons Iust. of P. assaulting increaseth it, and battery accomplisheth it.
BUGGERY.
Buggery, committed with manking or beast isThere are two Statutes for it, 25 H. 8. revived, 3 Eliz. 17. Fitz. Nat. brev. 269. …. Dalton. selon… without benefit of Clergy, it being a sin against God, Nature, and the Law, and in antient times such offenders were to be burned by the Common Law.
One describeth this offence to be carnalis c…upula cont…a …, & haec vel per confusionem sp…ci…um, sc. a man or a woman with a bru…t beast, vel …, sc. a man with a man, a woman with a woman, See Levit. 18. 22, 23.
BURGAGE.
Burgage, in Latin Burgagium, is derived of Burgus Cook on L…. l. 2. c. 10. sect. 16.a Town, and it is called a Burgh or Borough because it sendeth Burgesses to Parliament. The termination of this word burgagium signifieth the service, whereby the Burgh is holden.
BURGLARY.
Burglary, is usually desined the night-breakingIt is derived of burgh a house, and …aron a thief. Cook 4 Rep. as if one break down a window to book out any thing. Cooks Case of Appeal and Indictments. 4th Rep. of a house, with an intent to steal or kill, though none be killed, nor any thing stolen, and so it is of a Stable, pa…cell of a house, but not of breaking ones Close to kill him, nor ones House, if it be but to beat him, nor though it may be to kill him, if it be in the day time. It may be Burglary if one enter into a house and break it not, as if he come in at the chimney, or by a false key, and if he break the house, though he enter not.
Richard Vaux brings an appeal of Burglary, against Thomas Bro…k, and declares that the Defendant domum mansionalem praedictam Richardi Vaux felonice & burgaliter fregi…, the Declaration was found insufficient because of this word burgaliter, but it ought to be burgulariter, or burguraliter, and the offence is called Burglary or burgulary, and not Burgale, burglariter est vox artis, as sel…nice, m…r…ravit, rapuit ex ambium, wa…rantizare, and divers others, which cannot be expressed by any Periphra…i▪ or circumlocution.
If a man have a mansion house, and he and all his family upon some accident are forth of the house part of the night, and at the same time, one come and breaks the house to commit …, this is Burglary, although no man be there, for this is domus mansionalis.
So if a man have two house…, and inhabit sometimesId. ubi supra. in one, and sometimes in another, and ha…h sevants in both, and in the night when his servants are forth, the house is broke by Thieves, this is burglary.
All Indictments of burglary are quòd … Stamford.fregit, and the night to this purpose begins at Sun setting, and continueth to the Sun rising.Dalton. 18 Eli. c. 6.
Burglar shall not have his Clergy.
BURGH ENGLISH.
Burgh English, or Borough English, is a customLit. Te…. l. 2. c. 1…. So called, beecause this custom was first (as some hold) in England. Cook on Lit. p. 11…. B. Cook on Lit. l. 2. c. 10, sect. 165. in some antient Borough, that if a man have issue divers Sonnes, the youngest Sonne shall inherit, and have all the Lands and Tenements that were his Fathers within the Borough: The reason of this (as Littleton saith) is because the youngest is presumed in Law to be least able to shift for himself.
If the Lands of the nature of Borough English be let to a man and his Heirs during the life of I. S. and the Lessee dieth, the youngest Sonne shall enjoy it.
A man seized in see of Lands in Burgh English, after the Stature of 27. … 8. makes a feofment to divers persons in fee, to the use of himself and the He…rs males of his body begotten, Secundum cursum communis legis, and after dieth seizedL. Dy. term. Pasch. in 2. Reg. Eliz. according, ha…ing issue two Sons, the eldest enters and holds out the younger; yet the youngest shall have it by descent, notwithstanding the words before.
Of Land in Borough English, or Gavel▪kind,Cook 6 Rep. Gorges case the Son cannot endow his wife ex assensu Patris, because by possibility, he shall not continue Heir: the Father shall not have the Ward of his Son and H…ir apparant of such Lands holden by Knights service, because by possibility he shall not continue Heir.