BASTARD1 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 legitimate2 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.
BASTARDY3, crim. law. The offence of begetting4 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 wedlock5, and casts the onus6 probandi (q. v.) on the party wlio affirms the bastardy. Stark7. Ev. h. t.
BASTON. An old French word, which signifies a staff, or club, In some old English statutes8 the servants or officers of the wardens9 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 Bingle combat, called wager10 of battel, where, in appeals of felony, the appellee might fight with the appellant to prove his innocence12. It was also used in affairs of chivalry13 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 peculiar14 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 perjuries15 in judicial16 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 detailed17 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 justified18.
2. §1. A battery is the unlawful touching20 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 wilfully21 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 insolent22 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 Hawk23. 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 cane24 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 parental25 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 apprentice26, 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 defendant27 may lay hands upon him, and restrain him until his anger is cooled; but he cannot strike him in order to protect 'the party assailed28, as he way in self-defence. 2 Roll. Abr. 359, E, pl. 3.
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 Taunt29. 14.
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 felon11. Hale's P. C. 89.
10. - 7. It is lawful19 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 dispenses30 with it.
11. Secondly31. A battery may be justified in the exercise of an office. 1. A constable32 may freshly arrest one who, in, his view, has committed a breach33 of the peace, and carry him before a magistrate34. 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. Kielw. 41.
13. Thirdly. A battery may be justified under the process of a court of justice, or of a magistrate having competent jurisdiction35. See 16 Mass. 450; 13 Mass. 342.
14. Fourthly. A battery may be justified in aid of an authority in law. Every person is empowered to restrain breaches36 of the peace, by virtue37 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 justify38 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 warding39 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 avert40 an impending41 evil, which might otherwise overwhelm the party, and not as a punishment or retaliation42 for the injurious attempt. Str. 953. The degree of force necessary to repel43 an assault will naturally depend upon, and be proportioned to, the violence of the assailant; but with this limitation any degree is justifiable44. 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 subverting45 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.
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