

for litUe reward, or a share of a stolon cow, UMO wsjutk be matt 

 insolent UK! half mad witli the love of himself, and hu own lewd ilenU. 

 And M for word* to et forth much lewdm**, it is not hard fur them tu 

 give a goodly and painted show thereunto, borrowed ran from the 

 mine which are proper to virtue iUelf. A* of a most notorious thief 

 and wicked outlaw, which had lived all hi* lifetime of spoil, and 

 robberies, one of their bard* in hu praiee will *ay, that be waa none of 

 the idle milk-*opt that wm brought up by the nraaide, but that uut 

 of hj dan be spent in arm* and valiant enterpriaaii ; that he did 

 never eat hie meat before be had won it with hi* eword ; that he lay 

 not all night slugging in a cabin uudor hi* mantle, but uaod commonly 

 to keep other* waking to defend their lives, and did light hut candle at 

 the flame* of their homes, to lead him in the darkness ; that the day 

 was hi* night, and the night hi* day ; that he loved not be long wooing 

 of wenche* to yield to him, but, where he came, he took by force the 

 poil of other men'* love, and left but lamentation to their lover*; 

 that his music wa* not the harp, nor lays of love, but the cries of 

 people and "'"'"rg of armour ; and finally, that he died, not bewailed 

 of many, but made many wail when he died, that dearly bought his 

 death." Thi* song, he adds, when it was first mode and nuug to a 

 person of high degree in Ireland, WM bought (as their manner is) for 

 forty crowns. 



The Celtic Highlanders of Scotland had also their bards or anna' 

 chies, who sung the deeds of their chiefs ; but of their productions 

 there are no genuine remains, though probably portions of Macpher- 

 aon'i Oeuan may give a sort of traditional echo of some of them. 



The Germans have adopted the word as descriptive of a species of 

 devout battle-song or poem. Klopstock's ' Die Hermanns Schlacht,' 

 ' Hermann und die Fureten,' and ' Hermanns Tod,' are called / 

 He had followers, who at first imitated Oasian, and failed ; but later 

 poets, a* KreUchmanii in the epic, and Geretenberg in the lyric form, 

 Lave had better success. 



(For further information, exclusive of the works already quoted, the 

 reader may consult Evans's LUstcrtati" tit Hardis ; Jones's Musical and 

 Poetical Setia of llu Wtltk Bardt, trill, a History of the Bardi <u>d 

 Druids, 4to. Loud. 1794 ; Sir Richard Colt Hoare's OiraMus Cambrauu, 

 voL i. p. 300-819 ; and Beauford's Oriyin and Learning of tJie Irish 

 Bardt.) 



BAKEGIX. [GL.UKiN.1 



BARGAIN. Thi* word is immediately derived into the English 

 language from the French Jiargiayuer ; and perhaps ultimately from 

 the Italian argaffnare. Its etymology is quite uncertain, but it 

 appears to have been frequently- used in the middle ages to signify the 

 arrangement of the terms of a contract of purchase. (See Ducange, 

 ' Gloasar.' ad verbum Barcaniare.) In this sense it U commonly used 

 in English law ; and when a bargain and sale of goods is mentioned, 

 the bargain denotes the arrangement of the terms upon which one sells 

 and another buy* ; and the sale expresses the completion of the con- 

 tract so as to pan the property from the seller to the buyer. In such 

 caae* the seller is called the bargainer, and the buyer is termed the 

 bargainee. The two parts of the transaction taken together constitute 

 the whole contract of buying and selling personal goods so as effectually 

 to change the property. In order, however, to give validity to this 

 contract, it in essential that there should be a consideration given or 

 promised by the bargainee to the bargainer. Thus if a man verbally 

 agree* to sell me a hone, and I neither pay him nor promise him any 

 thing for it, this is what the English law, following the civil law, calls 

 tmdmm partum, a naked bargain, and not a sale, and, being wholly void, 

 will not pass the property in the horse to me. 



The term bargain and sale is now much more generally used in .1 

 more limited MOW to denote a kind of conveyance of real property, 

 which derive* it* effect from the statute 27 Hen. VIII. c. 10, commonly 

 called the Statute of Uses. For nearly two centuries before that 

 statute, it was the custom throughout England to convey lands to 

 use* : that is to say, the legal possession of them was vested in one 

 penon, while the use or beneficial interest was enjoyed by another, 

 who was called the etttttigue xte. This practice i* said to have been 

 first introduced by the monastic societies, for the purpose of evading 

 the statute* of mortmain, which, while they prohibited a direct con- 

 veyance to those corporations, did not in terms extend to alienations 

 to third persons for the use or benefit of religious houses. This defect 

 wa* afterward* remedied by the statute IS Uic. II. c. 6, which rendered 

 use* subject to the penalties imposed by the statutes of mortmain. 

 But the practice of conveying land to uses wa* found to be attended 

 with so much convenience, that it still continued with respect to estates 

 of private individuals. The court* of common law, indeed, refused to 

 acknowledge any other title than that of the person who waa actually 

 in possession of the Und. But the Court of Chancery, upon the ground 

 that the legal tenant* were bound in conscience to perform the trusts 

 tar which the land was vested in them, used to interfere to compel 

 them t account for the profit* of the land to the eatmmu use. and to 

 dispose of it according to his dire. 



This was the origin of the jurisdiction of courts of equity over 

 trust*, which ha* since assumed ao extensive and complicated a shape. 

 The interest in the use, being a creation of courts of equity, was of 

 own** **fc* to to* modification* imposed by those court*, i 

 they parmttUd use* to pan* by the will of cc*t*iqe use at a time when 

 land Heelf was not devisable except by particulnr custom. Again, uses 



BABOAIK. M 



were not subject to aid*, relief*, wardship, marriage, escheat, or any 

 other feudal incident, nor liable for the debt* of mtuitjue use. 



The use being, in contemplation of equity, thus separated from the 

 rnenesinn of the land, it followed that the alienation of the one might 

 be max)* without |rting with the other. Thus, if a person, I 



of an estate in fee-simple, made a bargain with another that the 

 should be his, but retained posawaion of the property, the Court of 

 Chancery (provided the bargain was grounded upon a sufficieu 

 sideration) looked upon the bargainer as holding the estate to the use 

 of the person from whom the consideration proceeded, and who was, 

 according to the dictate* of good conscience, to be treated as the real 

 owner of the estate. Equity, however, following the rule of the civil 

 law, not to enforce a NIKUUN pactum, refused to compel the performance 

 of any agreement* except such a* were founded either on good or 

 ralanhlr consideration. These two classes of contract* gave rise ' 

 new kinds of conveyance, which, though disregarded by the courts of 

 .-..in nmn law, became operative in equity. The first, namely a con- 

 veyance on nyood consideration, was where the < m-: i the . 

 consideration of an intended marriage, or of the love \\1 

 hi* actual wife, child, or other blood relation, agreed by deed t 

 the estate for the use of such wife, child, or other blood relation. 

 This wag called a covenant to stand seised, from the word ' seisin/ 

 in. h in English law signifies possession of a freehold estate. The 

 ..'In-!- \\.i- v. li.-r, the contract was founded on a raluaUe consideration; 

 namely, one consisting of money or money's worth (as rent, or service* 

 iin -iili-iit to feudal tenure), and was called a bargain and sale. It was 

 originally a mere contract for sole ; but in process of time it became a 

 mode of settlement of land, in which case the courts of equity - 

 imniiiv into the <IUIIIM< of the consideration, provid. 

 according to the technical meaning of the term. 



In process of time, the inconvenience of separating the real from the 

 ostensible ownership of the land was found to counterbalance any 

 advantages that might have been accidentally derived from the system. 

 The departure from the principles of the common law of England, in 

 permitting secret alienations to have the same effect as the open and 

 notorious conveyances of former times, opened a wide door to fraud. 

 The feudal lords, in particular, suffered by the system of uses to such 

 an extent, that several legislative enactments were from time to time 

 introduced in order to remedy the evil. [Uses.] At length the legis- 

 lature, in the 27th year of the reign of Hen. VIII., l>y n bold enact- 

 ment abolished the distinction between ownership of the laud and 

 ownership ui the use, by transferring uses into possession, that is to 

 xiy. liy giving to the person who had formerly only an interest in the 

 use, a perfect, indefeasible, legal estate in the land. 



So that where a person before the statute (having a freehold estate 

 in lauds) had agreed, for good or valuable consideration, that the 

 such lands should belong to another, the statute divested the bargainer 

 of all interest in the Und, and conferred upon the person with wlmm 

 the contract was made (or, in legal language, the bargainee) the same 

 estate in the land that he formerly had in the use. But it is tu I* 

 observed, that if the bargainor hod an estate less than freehold in tin- 

 laud (as an estate for a term of years), the statute, which provides 

 only for cases where persons ore seised *to the use of others, was held 

 not to apply. Therefore, in that case the bargainee was left to his 

 remedy in equity as before. But in conveyances of freehold estates, 

 the statute gives such a title to the bargainee as he can < 

 court of law without having recurrence to equity. The opera t 

 the conveyance has been well described to be of such a nature, that 

 the bargain first vest* the use, and then the statute vests the possession 

 in the bargainee. The words of the statute extend to every species of 

 real property (except copyhold estates), whether corporeal or incor- 

 poreal, whether in possession, reversion, or remainder. Therefore, all 

 such property (if actually in existence at the time of the creation of the 

 use) may be the subject of conveyance by bargain and sale. (Sanders 

 ' On Uses and Trusts,' vol. i. p. 107 ; and vol. ii. p. 51.) 



The legislature having thus given a legal effect to this equitable 

 mode of transfer of property, proceeded in the same session to provide 

 against its being turned into an instrument of fraud. The secret 

 nature of uses had been mentioned in the preamble of '27 11. n \ III. 

 c. 10, as one of the principal reasons for their abolition. To prevent 

 the same objection from arising to the conveyance by bargain and sole 

 under the statute, the statute 27 Hen. VIII. c. 16, provided that no 

 bargain and sale should operate to pan an estate of freehold, unless 

 made by writing indented, sealed, and enrolled in one of the king's 

 court* of record at Westminster, or with the custo* rotulomm, and 

 two justices of the peace, and the clerk of the peace of the county or 

 .-.unities where the lands bargained and sold lay, or two of them at the 

 least, whereof the clerk of the peace was to be one : the enrolment to 

 be made within six months after the date of the writing. The act 

 contains an exception of lands lying within cities, boroughs, or towns 

 corporate, where the mayors or other officer* have authority, or have 

 lawfully used to enrol any evidences, deed*, or other writing*. A 

 bargain and sale, therefore, of such lauds, operates to all intents and 

 purposes, from the date of the conveyance. The writing required by 

 this statute must be a deed ; that is, must be delivered as well a* 

 sealed, as the requisition that it be indented implies ; for the indented 

 edge of the parchment is a symbol of a duplicate of the writing 

 in the hand* of another contracting party : but actual indentation it 



