Sidebilder
PDF
ePub

Littleton. It has been said that by the custom of certain manors the lord had a right to lie with the bride of his tenant holding in villenage, on the first night of her marriage; and that, for this reason, the youngest son was preferred to the eldest, as being more certainly the true son of the tenant. But this supposition is, on many grounds, less satisfactory than the other. Admitting the alleged

reason, perhaps, for passing over the eldest son, but why should the second and other sons have been also superseded in favour of their youngest brother? The legitimacy of the eldest son alone could have been doubted, and upon this hypothesis, either the second son would have been his father's heir, or all the sons except the eldest would have shared the inheritance. But the existence of this barbarous usage in England is altogether denied by many (1 Stephen, Comm. 199; Rep. Real Prop. Commrs. p. 8); and even if the customary fine payable to the lord in certain manors (especially in the north of England) on the marriage of the son or daughter of his villein, be admitted to have been a composition of the lord's right of concubinage (see Du Cange, tit. "Marcheta;" Co. Lit. 117 b, 140 a; Bract. lib. 2, § 26), it does not appear that such fines are more prevalent in those places where the custom of borough-English obtains, than in other parts of the country where there are different rules of descent. (Robinson On Gavelkind, p. 387.)

cause of his younger age, may least of all his brethren helpe himself" (§ 211). When the state of society in the ancient English boroughs is considered, the reason assigned by Littleton will appear sufficient. The inhabitants supported themselves by trade; their property consisted chiefly of moveables; and their real estate was ordinarily confined to the houses in which they carried on their business, with, perhaps, a little land at-right of the lord, it would have been a tached. Such persons were rarely able to offer an independence to their children, but were satisfied to leave each son, as he grew up, to provide for himself by his own industry. To endow a son with a portion of his goods, and send him forth to seek his own fortunes, was all that a burgess thought necessary; and so constant was this practice, that the law considered the son of a burgess to be of age "so soon as he knew how to count money truly, to measure cloths, and to carry on other business of his father's of the like | nature" (Glanv. lib. 7, s. 9; Bracton, lib. 2, s. 37). In this condition of life, the youngest son would have the least chance of being provided for at his father's death, and it was, therefore, a rational custom to make provision for him out of the real estate. But as it might happen that the youngest son had been provided for, like his brothers, before the father's death, by the custom of most boroughs the father had a power of de vising his tenements by will. Such a power was unknown to the common law; for without the consent of his heir no man could leave any portion of his inheritance to a younger son, "because," says Glanville, "if this were permitted, it would frequently happen that the elder son would be disinherited, owing to the greater affection which parents often feel towards their younger children." And the freedom of testamentary devise, enjoyed under the custom of boroughEnglish, to the prejudice of heirs, was not fully conceded by the laws of England until the latter part of the seventeenth century. (12 Car. II. c. 24.)

The origin of the custom of boroughEnglish has, in later times (3 Modern Reports, Preface) been referred to another cause, instead of that assigned by

But whatever may have been the origin of the custom, it is no longer to be sup ported by any arguments in its favour. If land is to be inherited by one son alone, the eldest is undoubtedly the fittest heir; he grows up the first, and in case of his father's death succeeds at once to his estate, fulfils the duties of a landowner, and stands in loco parentis to his father's younger children, while the succession of the youngest son would always be liable to a long minority, during which the rest of the family would derive little benefit from the estate. It is also an unquestionable objection to the custom that each son in succession may conceive himself to be the heir, until he is deprived

of his inheritance by the birth of another brother.

In addition to these general objections to the custom, there are legal difficulties connected with its peculiarity of descent. In making out titles, for instance, it is much more difficult to prove that there was no younger son than that there was no elder son; and obscure questions must arise concerning the boundaries of the land subject to the custom, and respecting the limits of the custom itself in each particular place where it prevails. For these reasons the Commissioners of Real Property, in 1832, recommended the universal abolition of the custom (3rd Rep. p. 8), which, however, is still recognised by the law as an ancient rule of descent wherever it can be shown to prevail. (Glanville, lib. 7, c. 3; Co. Litt. § 165; 1st Inst. 110 b; Robinson On Gavelkind, Appendix; 7 Bacon's Abridgment, 560, tit. "Descent;" Cowell's Law Dict. tit. "Borow-English;" Du Cange, Glossarium, tit. "Marcheta" Regiam Magistatem, lib. 4, cap. 31; 2 Black. Comm. 83; 1 Stephen, Comm. 198; 3 Cruise, Digest, 388; 3 & 4 Will. IV. c. 106; 3rd Report of Real Property Commissioners.)

BOROUGH, MUNICIPAL. [MUNICIPAL CORPORATIONS.]

BOROUGH, PARLIAMENTARY. [PARLIAMENT.]

BOTTOMRY, BOTTOMREE, or BUMMAREE, is a term derived into the English maritime law from the Dutch or Low German. In Dutch the term is Bomerie or Bodemery, and in German Bodmerei. It is said to be originally derived from Boden or Bodem, which in Low German and Dutch formerly signified the bottom or keel of a ship; and according to a common process in language. the part being applied to the whole, also denoted the ship itself. The same word, differently written, has been used in a similar manner in the English language; the expression bottom having been commonly used to signify a ship, previously to the seventeenth century, and being at the present day well known in that sense as a mercantile phrase. Thus it is a familiar mode of expression among merchants to speak of "shipping goods in foreign bottoms."

The contract of bottomry in maritime law is a pledge of the ship as a security for the repayment of money advanced to an owner for the purpose of enabling him to carry on the voyage. It is understood in this contract, which is usually expressed in the form of a bond, called a Bottomry Bond, that if the ship be lost on the voyage, the lender loses the whole of his money; but if the ship and tackle reach the destined port, they become immediately liable, as well as the person of the borrower, for the money lent, and also the premium or interest stipulated to be paid upon the loan. No objection can be made on the ground of usury, though the stipulated premium exceeds the legal rate of interest, because the lender is liable to the casualties of the voyage, and is not to receive his money again at all events. In France the contract of bottomry is called Contrat à la grosse, and in Italy Cambio maritimo, and is subject to different regulations by the respective maritime laws of those countries. But money is generally raised in this way by the master of the ship when he is abroad and requires money to repair the vessel or to procure other things that are necessary to enable him to complete his voyage. If several bottomry bonds are given by the master for the same ship at different times, that which is later in point of time must be satisfied first, according to a rule derived from the Roman law (Dig. 20, tit. 4, s. 5, 6): the reason of this rule is, that a subsequent lender by his loan preserves the security of a prior lender. It is a rule of English law that there must be a real necessity to justify the master in borrowing on the security of his ship.

In taking up money upon Bottomry, the loan is made upon the security of the ship alone; but when the advance is made upon the lading, then the borrower is said to take up money at respondentia. In this distinction as to the subject matter o the security consists the only difference between Bottomry and Respondentia; the rules of English maritime law being equally applicable to both.

The practice of lending money on ships or their cargo, and sometimes on the freight was common in Athens, and in

The interest of money lent on seaadventures was called Usuræ Maritimæ. (Dig. 22, tit. 2, “De Nautico Fœnere,” Molloy, De Jure Maritimo, lib. ii. c. 11; Parke On Insurance, chap. xxi.; Benecke's System des Assecuranz und Bodmereiwesens, bd. 4.)

other Greck commercial towns. Money | sea. thus lent was sometimes called (vavrikà Xphμara) ship-money. Demosthenes (I. Against Aphobus), in making a statement of the property left him by his father, enumerates seventy minæ lent on bottomry. If the ship and cargo were lost, the lender could not recover his principal or interest; which stipulation was often expressly made in the (avyypaph) bond. (Demosthenes against Phormion, and against Dionysodorus, c. 6, 10.) The nature of the bottomry contract is shown in the Oration of Demosthenes against Dionysodorus: - 3000 drachmæ were lent on a ship, on condition of her sailing to Egypt and returning to Athens; the money was lent on the double voyage, and the borrower contracted in writing to return direct to Athens, and not dispose of his cargo of Egyptian grain at any other place. He violated his contract by selling his cargo at Rhodes, having been advised by his partner at Athens that the price of grain had fallen in that city since the departure of the vessel. The plaintiff sought to recover principal and interest, of which the borrower attempted to defraud him: damages also were claimed, conformably to the terms of the bond. As neither principal nor interest could be demanded if the vessel were lost, it was a common plea on the part of the borrower that the ship was The terms bottomry and respondentia wrecked. The rate of interest for money are also applied to contracts for the repaythus lent was of course higher than the ment of money lent merely on the hazard usual rate. The speech of Demosthenes of a voyage-for instance, a sum of money Against Lacritus contains a complete Bot-lent to a merchant to be employed in trade, tomry contract, which clearly shows the nature of these loans at Athens.

Money was also lent, under the name of pecunia trajectitia, on ships and their cargo among the Romans, and regulated by various legal provisions. But it appears that the money was merely lent on condition of being repaid if the ship made her voyage safe within a certain time, and that the creditor had no claim on the ship unless it was specifically pledged. The rate of interest was not limited by law, as in the case of other loans, for the lender ran the risk of losing all if the ship was wrecked; but this extraordinary rate of interest was only due while the vessel was actually at

It has been already stated that Bottomry, in its general sense, is the pledge of a ship as a security for money borrowed for the purpose of a voyage. It has been conjectured that the power of a master to pledge a ship in a foreign country led to the practice of an owner borrowing money at home upon the like security. But Abbott, in his treatise on Shipping, expresses a doubt on this matter, and adds that the Roman law says nothing of contracts of bottomry made by the master of a ship in that character, according to the practice which has since universally prevailed. Yet there are passages in the Digest' (20, tit. 4, s. 5, 6) which seem to imply that a master might make such a contract, for, as already observed, the ground for giving the preference to a subsequent over a prior lender is stated to be that the subsequent loan saves the prior lender's security; and we must accordingly suppose that money could be borrowed by the master when he found it necessary for the preservation of the ship or cargo.

and to be repaid with extraordinary interest if the voyage is safely performed. This is in fact the Usuræ Maritimæ of the Romans. But the stat. 7 Geo. I. c. 21, § 2, made null and void all contracts by any of his Majesty's subjects, or any person in trust for them, for or upon the loan of money by way of bottomry on any ships in the service of foreigners, and bound or designed to trade in the East Indies or places beyond the Cape of Good Hope. Another statute, 19 Geo. H c. 37, enacted that all moneys lent on bottomry or respondentia on vessels bound to or from the East Indies shall be expressly lent only on the ship or on the merchandise; that the lender shall have

the benefit of salvage; and that if the borrower has not an interest in the ship, or in the effects on board, to the value of the sum borrowed, he shall be responsible to the lender for so much of the principal as has not been laid out, with legal interest and all other charges, though the ship and merchandise be totally lost. With the exception of the cases provided for by these two statutes, money may still be lent on the hazard of a voyage. Bottomry is sometimes treated as a part of the law of insurance, whereas it is quite a different thing. For further information, see Abbott, On Shipping; Parke, System of the Law of Marine Insurance.

merous." After the publication of Adam Smith's work bounties began to be regarded with less favour, and have at length sunk into complete discredit. They are now no longer relied upon as a means of furthering the true interests of commerce. The policy of bounties was very materially connected with the opinions of a former day respecting the balance of trade. [BALANCE OF TRADE.] It was thought that they operated in turning the balance in our favour. Adam Smith remarks:-"By means of bounties our merchants and manufacturers, it is pretended, will be enabled to sell their goods as cheap or cheaper than their rivals in the foreign markets. . . . . We cannot (he adds) force foreigners to buy their goods, as we have done our own countrymen. The next best expedient, it has been thought, therefore, is to pay them for buying." Bounties in truth effect nothing more than this. The propositions maintained by Adam Smith are, that every trade is in a natural state when goods are sold for a price which replaces the whole capital employed in preparing and sending them to the market with something in addition in the shape of profit. Such a trade needs no bounties. Individual interest is sufficient to prompt men to engage in carrying it on. On the other hand, when goods are sold at a price which does not replace the cost of the raw material, the wages of labour and all the incidental expenses which have been incurred in bringing them into a state fit for the market, together with the manufacturer's profits; that is, when they are sold at a loss, the manufacturer will cease to produce an unprofitable article, and this particular branch of industry will soon become extinct. It perhaps happens that the general interests of the country are thought to be peculiarly connected with The question of bounties and their im- the species of industry in question, and policy is discussed by Adam Smith in his that it therefore behoves government to Wealth of Nations,' book iv. chap. 5; take means for preventing its falling into and the subject has also been treated in a decay. At this point commences the very complete manner by the late Mr. operation of bounties, which are devised Ricardo in his 'Principles of Political for the purpose of producing an equili Economy and Taxation. When Postle- brium between the cost of production, the thwaite published his 'Dictionary of Com-market-price, and a remunerating price, merce,' in 1774, bounties were "very nu- the last of which alone promotes the con

It is observed in the 'Staats-Lexicon' of Rotteck and Welcker, art. “Bodmerei," that Bodmerei "is a loan for a seavoyage, in which the ship becomes pledged. In this simplest form, at least, it is possible that this kind of transaction may have originated among the German nations. And so it is still viewed in the English law, even where the ship is not expressly pledged." This, however, is a misstatement of the English law. The same article, after some general remarks on Bottomry, which it is to be presumed apply to the German states, adds-" that, in fact, Bottomry now generally occurs only in cases when the master of a ship, during the voyage, requires money, and obtains a loan for the purpose of prosecuting it, for which he has no better security to offer than the ship itself. This transaction also differs from the usual contract of pledge in this: that the owner himself does not pledge the ship; but the captain is considered as the agent of the owner, and as doing what is necessary for his interest under the circumstances.'

BOUNTY, a sum of money paid by government to the persons engaged in certain branches of commerce, manufactures, or other branch of industry.

stant activity of every species of industry. Smith observes, "The bounty is given in order to make up this loss, and to encourage a man to continue or perhaps to begin a trade of which the expense is supposed to be greater than the returns; of which every operation eats up a part of the capital employed in it, and which is of such a nature, that if all other trades resembled it, there would soon be no capital left in the country." And he adds:-"The trades, it is to be observed, which are carried on by means of bounties are the only ones which can be carried on between two nations for any considerable time together, in such a manner as that one of them shall always and regularly lose, or sell its goods for less than they really cost. . . . . The effect of bounties, therefore, can only be to force the trade of a country into a channel much less advantageous than that in which it would naturally run of its own accord."

One of the most striking instances of the failure of the bounty system occurred about the middle of the last century in connexion with the white herring fishery. Tempted by liberal bounties persons rashly ventured into the business without a knowledge of the mode of carrying it on in the most economical and judicious manner, and in no very long space of time a joint-stock of 500,000l. was nearly all lost.

The bounty on the exportation of corn was given up in 1815 [CORN TRADE], and that on the exportation of herrings, linen, and several other articles ceased in 1830. In 1824 the sums paid as bounties for promoting fisheries, linen manufactures, &c. in the United Kingdom was 536,2281.; 273,269. in 1828; 170,999. in 1831; and in 1832 and 1833 the sums of 76,5721. and 14,7131. respectively.

Bounties are not now allowed on any article of export; but in some cases it is believed that DRAWBACKS constitute in reality a bounty, being greater than the duty which has been paid on the article. The drawback on refined sugar, for instance, has been fixed at a certain amount proportioned to the quantity of raw sugar supposed to have been used, which is calculated at 34 cwts. of raw to 20 cwts. of

[ocr errors]

refined; but by improvements in the mode of refining, a less quantity of raw sugar may be required in manufacturing 20 cwts. of refined sugar; and the drawback on the difference is in reality a bounty. BOUNTY, QUEEN ANNE'S. [BENEFICE, pp. 343, 345.]

BREAD. [ADULTERATION; ASSIZE.] BREVET, in France, denotes any warrant granted by the sovereign to an individual in order to entitle him to perform the duty to which it refers. In the British service, the term is applied to a commission conferring on an officer a degree of rank immediately above that which he holds in his particular regiment; without, however, conveying a power to receive the corresponding pay. Brevet rank does not exist in the royal navy, and in the army it neither descends lower than that of captain, nor ascends above that of lieutenant-colonel. It is given as the reward of some particular service which may not be of so important a nature as to deserve an immediate appointment to the full rank: it however qualifies the officer to succeed to that rank on a vacancy occurring, in preference to one not holding such brevet, and whose regimental rank is the same as his own.

In the fifteenth section of the Articles of War it is stated that an officer having a brevet commission, while serving on courts-martial formed of officers drawn from differrent regiments, or when in garrison, or when joined to a detachment composed of different corps, takes prece dence according to the rank given him in his brevet, or according to the date of any former commission; but while serving on courts-martial or with a detachment composed only of his own regiment, he does duty and takes rank according to the date of his commission in that regiment. Brevet rank, therefore, is to be considered effectual for every military purpose in the army generally, but of no avail in the regiment to which the officer holding it belongs, unless it be wholly or in part united for a temporary purpose with some other corps. (Samuel's Hist. Account of the British Army, p. 615.)

Something similar to the brevet rank above described must have existed in the French service under the old monarchy,

« ForrigeFortsett »