Chapter LII: Part 52

"Another point which ought not to be forgotten in relation to
the King's Court is its migratory character. The early kings
of England were the greatest landowners in the country, and
besides their landed estates they had rights over nearly every
important town in England, which could be exercised only on
the spot. They were continually travelling about from place to
place, either to consume in kind part of their revenues, or to
hunt or to fight. Wherever they went the great officers of
their court, and in particular the chancellor with his clerks,
and the various justices had to follow them. The pleas, so the
phrase went, 'followed the person of the king,' and the
machinery of justice went with them."

_Sir J. F. Stephen,
History of the Criminal Law of England,
volume 1, page 87._

COMMON LAW: A. D. 1215.
Magna Charta.

"With regard to the administration of justice, besides
prohibiting all denials or delays of it, it fixed the court of
Common Pleas at Westminster, that the suitors might no longer
be harassed with following the King's person in all his
progresses; and at the same time brought the trial of issues
borne to the very doors of the freeholders by directing
assizes to be taken in the proper counties, and establishing
annual circuits. It also corrected some abuses then incident
to the trials by wager of law and of battle; directing the
regular awarding of inquest for life or member; prohibited the
King's inferior ministers from holding pleas of the crown, or
trying any criminal charge, whereby many forfeitures might
otherwise have unjustly accrued to the exchequer: and
regulated the time and place of holding the inferior tribunals
of justice, the county court, sheriff's tourn, and court leet.
… And, lastly (which alone would have merited the title that
it bears, of the great charter,) it protected every individual
of the nation in the free enjoyment of his life, his liberty
and his property, unless declared to be forfeited by the
judgment of his peers, or the law of the land."

_Owen Flintoff,
Laws of England,
page 184._

See, also, ENGLAND: A. D. 1215.

COMMON LAW: A. D. 1216.
Distinction between Common and Statute Law now begins.

"The Chancellors, during this reign [John 1199-1216], did
nothing to be entitled to the gratitude of posterity, and were
not unworthy of the master whom they served. The guardians of
law were the feudal barons, assisted by some enlightened
churchmen, and by their efforts the doctrine of resistance to
lawless tyranny was fully established in England, and the
rights of all classes of the people were defined and
consolidated. We here reach a remarkable era in our
constitutional history: National councils had met from the
most remote times; but to the end of this reign their acts not
being preserved are supposed to form a part of the lex non
scripta, or common law. Now begins the distinction between
common and statute law, and henceforth we can distinctly trace
the changes which our juridical system has undergone. These
changes were generally introduced by the Chancellor for the
time being."

_Lord Campbell,
Lives of the Chancellors,
volume 1, page 115._

COMMON LAW: A. D. 1216-1272.
Henry de Bracton.

"It is curious that, in the most disturbed period of this
turbulent reign, when ignorance seemed to be thickening and
the human intellect to decline, there was written and given to
the world the best treatise upon law of which England could
boast, till the publication of Blackstone's Commentaries, in
the middle of the eighteenth century. It would have been very
gratifying to me if this work could have been ascribed with
certainty to any of the Chancellors whose lives have been
noticed. The author, usually styled Henry de Bracton, has gone
by the name of Brycton, Britton, Briton, Breton, and Brets;
and some have doubted whether all these names are not
imaginary. From the elegance of his style, and the familiar
knowledge he displays of the Roman law, I cannot doubt that he
was an ecclesiastic who had addicted himself to the study of
jurisprudence; and as he was likely to gain advancement from
his extraordinary proficiency, he may have been one of those
whom I have commemorated, although I must confess that he
rather speaks the language likely to come from a disappointed
practitioner rather than of a Chancellor who had been himself
in the habit of making Judges. For comprehensiveness, for
lucid arrangement, for logical precision, this author was
unrivalled during many ages. Littleton's work on Tenures,
which illustrated the reign of Edward IV., approaches Bracton;
but how barbarous are, in comparison, the commentaries of Lord
Coke, and the law treatises of Hale and of Hawkins!"

_Lord Campbell,
Lives of the Chancellors,
volume 1, page 139._

For opposite view

_See 9 American Bar Association Report, p. 193._

COMMON LAW: A. D. 1217.
Dower.

"The additional provision made in the edition of 1217 to the
provisions of the earlier issues of the Charter in respect of
widow's rights fixed the law of dower on the basis on which it
still rests. The general rule of law still is that the widow
is entitled for her life to a third part of the lands of which
her husband was seized for an estate of inheritance at any
time during the marriage. At the present day there are means
provided which are almost universally adopted, of barring or
defeating the widow's claim. The general rule of law, however,
remains the same. The history of the law of dower deserves a
short notice, which may conveniently find a place here. It
seems to be in outline as follows. Tacitus noticed the
contrast of Teutonic custom and Roman law, in that it was not
the wife who conferred a dowry on the husband, but the husband
on the wife. By early Teutonic custom, besides the
bride-price, or price paid by the intending husband to the
family of the bride, it seems to have been usual for the
husband to make gifts of lands or chattels to the bride
herself. These appear to have taken two forms. In some cases
the husband or his father executed before marriage an
instrument called 'libellum dotis,' specifying the nature and
extent of the property to be given to the wife. … Another
and apparently among the Anglo-Saxons a commoner form of dower
is the 'morning gift.' This was the gift which on the morning
following the wedding the husband gave to the wife, and might
consist either of land or chattels. … By the law as stated
by Glanvil the man was bound to endow the woman 'tempore
desponsationis ad ostium ecclesiae.' The dower might be
specified or not. If not specified it was the third part of
the freehold which the husband possessed at the time of
betrothal. If more than a third part was named, the dower was
after the husband's death cut down to a third. A gift of less
would however be a satisfaction of dower. It was sometimes
permitted to increase the dower when the freehold available at
the time of betrothal was small, by giving the wife a third
part or less of subsequent acquisitions. This however must
have been expressly granted at the time of betrothal.
{1962}
A woman could never claim more than had been granted 'ad
ostium ecclesiae.' Dower too might be granted to a woman out
of chattels personal, and in this case she would be entitled
to a third part. In process of time however, this species of
dower ceased to be regarded as legal, and was expressly denied
to be law in the time of Henry IV. A trace of it still remains
in the expression in the marriage service, 'with all my
worldly goods I thee endow.'"

_Kenelm E. Digby,
History of the Law of Real Property,
pages 126-128 (4th edition)._

COMMON LAW: A. D. 1258.
Provisions of Oxford; no Writs except de Cursu.

"The writ had originally no connection whatever with the
relief sought, it had been a general direction to do right to
the plaintiff, or as the case might be, but, long before the
time now referred to, this had been changed. … It appears
that even after the writ obtained by the plaintiff had come to
be connected with the remedy sought for, … a writ to suit
each case was framed and issued, but the Provisions of Oxford
(1258) expressly forbade the Chancellor to frame new writs
without the consent of the King and his Council. It followed
that there were certain writs, each applicable to a particular
state of circumstances and leading to a particular judgment,
which could be purchased by an intending plaintiff. These
writs were described as writs 'de cursu,' and additions to
their number were made from time to time by direction of the
King, of his Council or of Parliament."

_D. M. Kerly,
History of Equity,
page 9._

COMMON LAW: A. D. 1258.
Sale of Judicial Offices.

"The Norman Kings, who were ingenious adepts in realizing
profit in every opportunity, commenced the sale of Judicial
Offices. The Plantagenets followed their example. In Madox,
chap. II., and in the 'Cottoni Posthuma, may be found
innumerable instances of the purchase of the Chancellorship,
and accurate details of the amount of the consideration
monies. … What was bought must, of course, be sold, and
justice became henceforth a marketable commodity. … The
Courts of Law became a huckster's shop; every sort of produce,
in the absence of money, was bartered for 'justice.'"

_J. Parke,
History of English Chancery,
page 23._

COMMON LAW: A. D. 1265.
Disappearance of the Office of Chief Justiciary.

"Towards the end of this reign [Henry III.] the office of
Chief Justiciary, which had often been found so dangerous to
the Crown, fell into disuse. Hugh le Despenser, in the 49th of
Henry III., was the last who bore the title. The hearing of
common actions being fixed at Westminster by Magna Charta, the
Aula Regia was gradually subdivided and certain Judges were
assigned to hear criminal cases before the King himself,
wheresoever he might be, in England. These formed the Court of
King's Bench. They were called 'Justitiarii ad placita coram
Rege,' and the one who was to preside 'Capitalis
Justiciarius.' He was inferior in rank to the Chancellor, and
had a salary of only one hundred marks a year, while the
Chancellor had generally 500. Henceforth the Chancellor, in
rank, power, and emolument, was the first magistrate under the
Crown, and looked up to as the great head of the profession of
the law."

_Lord Campbell,
Lives of the Chancellors,
volume 1, pages 139-140._

COMMON LAW: A. D. 1275.
Statute of Westminster the First;
Improvement of the Law.

"He [Robert Burnel] presided at the Parliament which met in
May, 1275, and passed the 'Statute of Westminster the First,'
deserving the name of a Code rather than an Act of Parliament.
From this chiefly, Edward I. has obtained the name of 'the
English Justinian'—absurdly enough, as the Roman Emperor
merely caused a compilation to be made of existing
laws,—whereas the object now was to correct abuses, to supply
defects, and to remodel the administration of justice. Edward
deserves infinite praise for the sanction he gave to the
undertaking; and from the observations he had made in France,
Sicily, and the East, he may, like Napoleon, have been
personally useful in the consultations for the formation of
the new Code,—but the execution of the plan must have been
left to others professionally skilled in jurisprudence, and
the chief merit of it may safely be ascribed to Lord
Chancellor Burnel, who brought it forward in Parliament. The
statute is methodically divided into fifty-one chapters. …
It provides for freedom of popular elections, then a mutter of
much moment, as sheriffs, coroners, and conservators of the
peace were still chosen by the free holders in the county
court, and attempts had been made unduly to influence the
elections of knights of the shire, almost from the time when
the order was instituted. … It amends the criminal law,
putting the crime of rape on the footing to which it has been
lately restored, as a most grievous but not a capital offence.
It embraces the subject of 'Procedure' both in civil and
criminal matters, introducing many regulations with a view to
render it cheaper, more simple, and more expeditious. … As
long as Burnel continued in office the improvement of the law
rapidly advanced,—there having been passed in the sixth year
of the King's reign the 'Statute of Gloucester;' in the
seventh year of the King's reign the 'Statute of Mortmain;' in
the thirteenth year of the King's reign the 'Statute of
Westminster the Second,' the 'Statute of Winchester,' and the
'Statute of Circumspecte agatis;' and in the eighteenth year
of the King's reign the 'Statute of Quo Warranto,' and the
'Statute of Quia Emptores.' With the exception of the
establishment of estates tail, which proved such an obstacle
to the alienation of land till defeated by the fiction of
Fines and Common Recoveries,—these laws were in a spirit of
enlightened legislation, and admirably accommodated the law to
the changed circumstances of the social system,—which ought
to be the object of every wise legislation."

_Lord Campbell,
Lives of the Chancellors,
volume 1, pages 143-146._

See, also, ENGLAND: A. D. 1275-1295, and 1279.

COMMON LAW: A. D. 1278.
Foundation of Costs at Common Law.

"The Statute of Gloucester, 6 Edw. I c. i, is the foundation
of the common law jurisdiction as to costs, and by that
statute it was enacted that in any action where the plaintiff
recovered damages, he should also recover costs. … By the
Judicature Act, 1875, O. L. V., the Legislature gave a direct
authority to all the judges of the Courts constituted under
the Judicature Act, and vested in them a discretion which was
to guide and determine them, according to the circumstances of
each case, in the disposition of costs."

_Sydney Hastings,
Treatise on Torts,
page 379._

{1963}

COMMON LAW: A. D. 1285.
Statute of Westminster II.;
Writs in Consimili Casu.

"The inadequacy of the common form writs to meet every case
was, to some extent, remedied by the 24th Chapter of the
Statute of Westminster II., which, after providing for one or
two particular cases to meet which no writ existed, provides
further that 'whensoever from henceforth it shall fortune in
Chancery that in one case a writ is found, and, in like case
falling under like law is found none, the clerks of the
Chancery shall agree in making a writ or shall adjourn the
Plaintiffs until the next Parliament, and the cases shall be
written in which they cannot agree, and be referred until the
next Parliament; and, by consent of the men learned in the Law
a writ shall be made, that it may not happen, that the King's
Court should fail in ministering justice unto Complainants.'
… The words of the statute give no power to make a
completely new departure; writs are to be framed to fit cases
similar to, but not identical with, cases falling within
existing writs, and the examples given in the statute itself
are cases of extension of remedies against a successor in
title of the raiser of a nuisance, and for the successor in
title of a person who had been disseised of his common.
Moreover the form of the writ was debated upon before, and its
sufficiency determined by the judges, not by its framers, and
they were, as English judges have always been, devoted
adherents to precedent. In the course of centuries, by taking
certain writs as starting points, and accumulating successive
variations upon them, the judges added great areas to our
common law, and many of its most famous branches, assumpsit,
and trover and conversion for instance, were developed in this
way, but the expansion of the Common Law was the work of the
15th and subsequent centuries, when, under the stress of eager
rivalry with the growing equitable jurisdiction of the
Chancery, the judges strove, not only by admitting and
developing actions upon the case, but also by the use of
fictitious actions, following the example of the Roman
Praetor, to supply the deficiencies of their system."

_D. M. Kerly,
History of Equity,
pages 10-11._

COMMON LAW: A. D. 1285.
Writ of Elegit.

The Writ of Elegit "is a judicial writ given by the statute
Westm. 2, 13 Edw. I., c. 18, either upon a judgment for a
debt, or damages; or upon the forfeiture of a recognizance
taken in the king's court. By the common law a man could only
have satisfaction of goods, chattels, and the present profits
of lands, by the … writs of 'fieri facias,' or 'levari
facias;' but not the possession of the lands themselves; which
was a natural consequence of the feudal principles, which
prohibited the alienation, and of course the encumbering of
the fief with the debts of the owner. … The statute
therefore granted this writ (called an 'elegit,' because it is
in the choice or the election of the plaintiff whether he will
sue out this writ or one of the former), by which the
defendant's goods and chattels are not sold, but only
appraised; and all of them (except oxen and beasts of the
plough) are delivered to the plaintiff, at such reasonable
appraisement and price, in part of satisfaction of his debt.
If the goods are not sufficient, then the moiety or one-half
of his freehold lands, which he had at the time of the
judgment given, whether held in his own name, or by any other
in trust for him, are also to be delivered to the plaintiff;
to hold, till out of the rents and profits thereof the debt be
levied, or till the defendant's interest be expired; as till
the death of the defendant, if he be tenant for life or in
tail."

_Wm. Blackstone,
Commentaries,
book 3, chapter 27._

COMMON LAW: A. D. 1290.
Progress of the Common Law Right of Alienation.

"The statute of Quia Emptores, 18 Edw. I., finally and
permanently established the free right of alienation by the
sub-vassal, without the lord's consent; … and it declared,
that the grantee should not hold the land of his immediate
feoffor, but of the chief lord of the fee, of whom the grantor
himself held it. … The power of involuntary alienation, by
rendering the land answerable by attachment for debt, was
created by the statute of Westm. 2, 13 Edw. I, c. 18, which
granted the elegit; and by the statutes merchant or staple, of
13 Edw. I., and 27 Edw. III., which gave the extent. These
provisions were called for by the growing commercial spirit of
the nation. To these we may add the statute of 1 Edw. III.,
taking away the forfeiture or alienation by the king's tenants
in capite, and substituting a reasonable fine in its place;
… and this gives us a condensed view of the progress of the
common law right of alienation from a state of servitude to
freedom."

_J. Kent,
Commentaries,
part 6, lecture 67._

COMMON LAW: A. D. 1292.
Fleta.

"Fleta, so called from its composition in the Fleet prison by
one of the justices imprisoned by Edward I., is believed to
have been written about the year 1292, and is nothing but an
abbreviation of Bracton, and the work called 'Britton,' which
was composed between the years 1290 and 1300, is of the same
character, except that it is written in the vernacular
language, French, while Granvil, Bracton and Fleta are written
in Latin."

_Thomas J. Semmes,
9 American Bar Association Report,
page 193._

COMMON LAW: A. D. 1300 (circa).
The King's Peace a Common Right.

"By the end of the thirteenth century, a time when so much
else of our institutions was newly and strongly fashioned for
larger uses, the King's Peace had fully grown from an
occasional privilege into a common right. Much, however,
remained to be done before the king's subjects had the full
benefit of this. … A beginning of this was made as early as
1195 by the assignment of knights to take an oath of all men
in the kingdom that they would keep the King's Peace to the
best of their power. Like functions were assigned first to the
old conservators of the peace, then to the justices who
superseded them, and to whose office a huge array of powers
and duties of the most miscellaneous kind have been added by
later statutes. … Then the writ 'de securitate pacis' made
it clear beyond cavil that the king's peace was now, by the
common law, the right of every lawful man."

_F. Pollock,
The King's Peace,
(Law Quarterly Review,
volume 1, page 49)._

A. D. 1307-1509.
The Year Books.

"The oldest reports extant on the English law, are the Year
Books … , written in law French, and extend from the
beginning of the reign of Edward II, to the latter end of the
reign of Henry VIII, a period of about two hundred years. …
The Year Books were very much occupied with discussions
touching the forms of writs, and the pleadings and practice in
real actions, which have gone entirely out of use."

_J. Kent,
Commentaries,
part 3, lecture 21._

{1964}

COMMON LAW: A. D. 1316.
Election of Sheriffs abolished.

"Until the time of Edward II. the sheriff was elected by the
inhabitants of the several counties; but a statute of the 9th
year of that reign abolished election, and ever since, with
few exceptions, the sheriff has been appointed, upon
nomination by the king's councillors and the judges of certain
ranks, by the approval of the crown. … The office of sheriff
is still in England one of eminent honor, and is conferred on
the wealthiest and most notable commoners in the counties."

_New American Cyclopædia,
volume 14, page 585._

COMMON LAW: A. D. 1326-1377.
Jurors cease to be Witnesses.

"The verdict of … the assize was founded on the personal
knowledge of the jurors themselves respecting the matter in
dispute, without hearing the evidence of witnesses in court.
But there was an exception in the case of deeds which came
into controversy, and in which persons had been named as
witnessing the grant or other matter testified by the deed.
… This seems to have paved the way for the important change
whereby the jury ceasing to be witnesses themselves, gave
their verdict upon the evidence brought before them at the
trials. … Since the jurors themselves were originally mere
witnesses, there was no distinction in principle between them
and the attesting witnesses; so that it is by no means
improbable that the latter were at first associated with them
in the discharge of the same function, namely, the delivery of
a verdict, and that gradually, in the course of years, a
separation took place. This separation, at all events, existed
in the reign of Edward III.; for although we find in the Year
Books of that period the expression, 'the witnesses were
joined to the assize,' a clear distinction is,
notwithstanding, drawn between them."

_W. Forsyth,
Trial by Jury,
pages 124 and 128._

COMMON LAW: A. D. 1362.
Pleading in the English tongue.
Enrollment in Latin.

"The Statute 36 Edward III., c. 15, A. D. 1362, enacted that
in future all pleas should be 'pleaded, shewed, defended,
answered, debated, and judged in the English tongue:' the
lawyers, on the alert, appended a proviso that they should be
'entered and enrolled' in Latin, and the old customary terms
and forms retained."

_J. Parke,
History of Chancery,
page 43._

COMMON LAW: A. D. 1368.
Jury System in Civil Trials.

"As it was an essential principle of the jury trial from the
earliest times, that the jurors should be summoned from the
hundred where the cause of action arose, the court, in order
to procure their attendance, issued in the first instance a
writ called a venire facias, commanding the sheriff or other
officer to whom it was directed, to have twelve good and
lawful men for the neighborhood in court upon a day therein
specified, to try the issue joined between the parties. And
this was accordingly done, and the sheriff had his jury ready
at the place which the court had appointed for its sitting.
But when the Court of Common Pleas was severed from the Curia
Regis, and became stationary at Westminster (a change which
took place in the reign of King John, and was the subject of
one of the provisions of Magna Charta), it was found to be
very inconvenient to be obliged to take juries there from all
parts of the country. And as justices were already in the
habit of making periodical circuits for the purpose of holding
the assize in pleas of land, it was thought advisable to
substitute them for the full court in banc at Westminster, in
other cases also. The statute 13 Edw. I. c. 30, was therefore
passed, which enacted that these justices should try other
issues: 'wherein small examination was required,' or where
both parties desired it, and return the inquests into the
court above. This led to an alteration in the form of the
venire: and instead of the sheriff being simply ordered to
bring the jurors to the courts at Westminster on a day named,
he was now required to bring them there on a certain day,
'nisi prius,' that is, unless before that day the justices of
assize came into his county, in which case the statute
directed him to return the jury, not to the court, but before
the justices of assize."

_W. Forsyth,
History of Trial by Jury,
pages 139-140._

COMMON LAW: A. D. 1382.
Peaceable Entry.

"This remedy by entry must be pursued according to statute 5
Rich. II., st. I., c. 8, in a peaceable and easy manner; and
not with force or strong hand. For, if one turns or keeps
another out of possession forcibly, this is an injury of both
a civil and a criminal nature. The civil is remedied by an
immediate restitution; which puts the ancient possessor in
statu quo: the criminal injury, or public wrong, by breach of
the king's peace, is punished by fine to the King."

_W. Blackstone,
Commentaries,
book 3, page 179._

COMMON LAW: A. D. 1383-1403.
Venue to be laid in proper Counties.

"The statutes 6 Rich. II., c. 2, and 4 Hen. IV., c. 18, having
ordered all writs to be laid in their proper counties, this,
as the judges conceived, empowered them to change the venue,
if required, and not to insist rigidly on abating the writ:
which practice began in the reign of James the First. And this
power is discretionally exercised, so as to prevent, and not
to cause, a defect of justice. … And it will sometimes
remove the venue from the proper jurisdiction, … upon a
suggestion, duly supported, that a fair and impartial trial
cannot be had therein."

_W. Blackstone,
Commentaries,
book 3, page 294._

COMMON LAW: A. D. 1388.
Prohibition against Citation of Roman Law
in Common-law Tribunals.

"In the reign of Edward III. the exactions of the court of
Rome had become odious to the king and the people. Edward,
supported by his Parliament, resisted the payment of the
tribute which his predecessors from the Conquest downwards,
but more particularly from the time of John, had been
accustomed to pay to the court of Rome; … the name of the
Roman Law, which in the reigns of Henry II. and III., and of
Edward I., had been in considerable favor at court, and even
… with the judges, became the object of aversion. In the
reign of Richard II. the barons protested that they would
never suffer the kingdom to be governed by the Roman law, and
the judges prohibited it from being any longer cited in the
common law tribunals."

_G. Spence,
Equity Jurisdiction of the Court of Chancery,
volume 1, page 346._

{1965}

COMMON LAW: A. D. 1436.
Act to prevent interference with Common Law Process.

"In 1436, an act was passed with the concurrence of the
Chancellor, to check the wanton filing of bills in Chancery in
disturbance of common law process. The Commons, after reciting
the prevailing grievance, prayed 'that every person from this
time forward vexed in Chancery for matter determinable by the
common law, have action against him that so vexed him, and
recover his damages.' The King answered, 'that no writ of
subpoena be granted hereafter till security be found to
satisfy the party so vexed and grieved for his damages and
expenses, if it so be that the matter may not be made good
which is contained in the bill.'"

_Lord Campbell,
Lives of the Chancellors,
volume I, page 272._

COMMON LAW: A. D. 1450 (circa).
Evidence.
Number of Witnesses.

"It is then abundantly plain that by this time [the middle of
the 15th century] witnesses could testify in open court to the
jury. That this was by no means freely done seems also plain.
Furthermore, it is pretty certain that this feature of a jury
trial, in our day so conspicuous and indispensable, was then
but little considered and of small importance."

_J. B. Thayer,
Select Cases on Evidence,
page 1071._

ALSO IN:
_J. B. Thayer,
The Jury and its Development
(Harvard Law Review,
volume 5, page 360)._

COMMON LAW: A. D. 1456.
Demurrers to Evidence.

"Very soon, as it seems, after the general practice began of
allowing witnesses to testify to the jury, an interesting
contrivance for eliminating the jury came into existence, the
demurrer upon evidence. Such demurrers, like others, were
demurrers in law; but they had the effect to withdraw from the
jury all consideration of the facts, and, in their pure form,
to submit to the court two questions, of which only the second
was, in strictness, a question of law: (1) Whether a verdict
for the party who gave the evidence could be given, as a
matter of legitimate inference and interpretation from the
evidence; (2) As a matter of law. Of this expedient, I do not
observe any mention earlier than the year 1456, and it is
interesting to notice that we do not trace the full use of
witnesses to the jury much earlier than this."

_J. B. Thayer,
Law and Fact in Jury Trials
(Harvard Law Review,
volume 4, page 162)._

ALSO IN:
_J. B. Thayer,
Select Cases on Evidence,
page 149._

COMMON LAW: A. D. 1470.
Evidence.
Competency of Witnesses.

"Fortescue (De Laud. c. 26), who has the earliest account
(about 1470) of witnesses testifying regularly to the jury,
gives no information as to any ground for challenging them.
But Coke, a century and a third later, makes certain
qualifications of the assertion of the older judges, that
'they had not seen witnesses challenged.' He mentions as
grounds of exclusion, legal infamy, being an 'infidel,' of
non-sane memory, 'not of discretion,' a party interested, 'or
the like.' And he says that 'it hath been resolved by the
justices [in 1612] that a wife cannot be produced either
against or for her husband, quia sunt duae animae in carne
una.' He also points out that 'he that challengeth a right in
the thing in demand cannot be a witness.' Here are the
outlines of the subsequent tests for the competency of
witnesses. They were much refined upon, particularly the
excluding ground of interest; and great inconveniences
resulted. At last in the fourth and fifth decades of the
present century, in England, nearly all objections to
competency were abolished, or turned into matters of
privilege."

_J. B. Thayer,
Select Cases on Evidence,
p. 1070._

COMMON LAW: A. D. 1473.
Barring Entails.
Taltarum's Case.

"The common-law judges at this time were very bold men, having
of their own authority repealed the statute De Donis, passed
in the reign of Edward I., which authorized the perpetual
entail of land,—by deciding in Taltarum's Case, that the
entail might be barred through a fictitious proceeding in the
Court of Common Pleas, called a 'Common Recovery;'—the
estate being adjudged to a sham claimant,—a sham equivalent
being given to those who ought to succeed to it,—and the
tenant in tail being enabled to dispose of it as he pleases,
in spite of the will of the donor."

_Lord Campbell,
Lives of the Chancellors,
volume 1, pages 309-310._

COMMON LAW: A. D. 1481-1505.
Development of Actions of Assumpsit.

"It is probable that the willingness of equity to give
pecuniary relief upon parol promises hastened the development
of the action of assumpsit. Fairfax, J., in 1481, advised
pleaders to pay more attention to actions on the case, and
thereby diminish the resort to chancery; and Fineux, C. J.,
remarked, in 1505, after that advice had been followed and
sanctioned by the courts, that it was no longer necessary to
sue a subpoena in such cases. Brooke, in his 'Abridgment,'
adds to this remark of Fineux, C. J.: 'But note that he shall
have only damages by this [action on the case], but by
subpoena the chancellor may compel him to execute the estate
or imprison him ut dicitur.'"

_J. B. Ames,
Specific Performance of Contracts
(The Green Bag,
volume 1, page 26)._

COMMON LAW: A. D. 1484.
Statutes to be in English.

"In opening the volumes of our laws, as printed by authority
'from original records and authentic manuscripts,' we are
struck with a change upon the face of these Statutes of
Richard III., which indicates as true a regard for the liberty
of the subjects as the laws themselves. For the first time the
laws to be obeyed by the English people are enacted in the
English tongue."

_Charles Knight,
History of England,
volume 2, page 200._

COMMON LAW: A. D. 1499 (circa).
Copyright.

"From about the period of the introduction of printing into
this country, that is to say, towards the end of the fifteenth
century, English authors had, in accordance with the opinion
of the best legal authorities, a right to the Copyright in
their works, according to the Common Law of the Realm, or a
right to their 'copy' as it was anciently called, but there is
no direct evidence of the right until 1558. The Charter of the
Stationers' Company, which to this day is charged with the
Registration of Copyright, was granted by Philip and Mary in
1556. The avowed object of this corporation was to prevent the
spread of the Reformation. Then there followed the despotic
jurisdiction of the Star Chamber over the publication of
books, and the Ordinances and the Licensing Act of Charles II.
At the commencement of the 18th century there was no statutory
protection of Copyright. Unrestricted piracy was rife. The
existing remedies of a bill in equity and an action at law
were too cumbrous and expensive to protect the authors' Common
Law rights, and authors petitioned Parliament for speedier and
more effectual remedies. In consequence, the 8 Anne, c. 19,
the first English Statute providing for the protection of
Copyright, was passed in 1710. This Act gave to the author the
sole liberty of publication for 14 years, with a further term
of fourteen years, provided the author was living at the
expiration of the first term, and enacted provisions for the
forfeiture of piratical copies and for the imposition of
penalties in cases of piracy.
{1966}
But in obtaining this Act, the authors placed themselves very
much in the position of the dog in the fable, who dropped the
substance in snatching at the shadow, for, while on the one
hand they obtained the remedial measures they desired, on the
other, the Perpetual Copyright to which they were entitled at
the Common Law was reduced to the fixed maximum term already
mentioned, through the combined operation of the statute and
the judicial decisions to be presently referred to. But
notwithstanding the statute, the Courts continued for some
time to recognise the rights of authors at Common Law, and
numerous injunctions were granted to protect the Copyright in
books, in which the term of protection granted by the statute
of Anne had expired, and which injunctions therefore could
only have been granted on the basis of the Common Law right.
In 1769 judgment was pronounced in the great Copyright case of
Millar v. Taylor. The book in controversy was Thomson's
'Seasons,' in which work the period of Copyright granted by
the statute of Anne had expired, and the question was directly
raised, whether a Perpetual Copyright according to Common Law,
and independent of that statute, remained in the author after
publication. Lord Mansfield, one of the greatest lawyers of
all times, maintained in his judgment that Copyright was
founded on the Common Law, and that it had not been taken away
by the statute of Anne, which was intended merely to give for
a term of years a more complete protection. But, in 1774 this
decision was overruled by the House of Lords in the equally
celebrated pendent case of Donaldson v. Beckett, in which the
Judges consulted were equally divided on the same point, Lord
Mansfield and Sir William Blackstone being amongst those who
were of opinion that the Common Law right had not been taken
away by the statute of Anne. But owing to a point of
etiquette, namely that of being peer as well as one of the
Judges, Lord Mansfield did not express his opinion, and in
consequence, the House of Lords, influenced by a specious
oration from Lord Camden, held (contrary to the opinion of the
above-mentioned illustrious Jurists), that the statute had
taken away all Common Law rights after publication, and hence
that in a published book there was no Copyright except that
given by the statute. This judgment caused great alarm amongst
those who supposed that their Copyright was perpetual. Acts of
Parliament were applied for, and in 1775 the Universities
obtained one protecting their literary property."

_T. A. Romer,
Copyright Law Reform
(Law Magazine & Review,
4th ser., volume 12, page 231)._

COMMON LAW: A. D. 1499.
Action of Ejectment.

"The writ of 'ejectione firmæ' … , out of which the modern
action of ejectment has gradually grown into its present form,
is not of any great antiquity. … The Court of Common Pleas
had exclusive jurisdiction of real actions while ejectment
could be brought in all three of the great common law courts.
… The practitioners in the King's Bench also encouraged
ejectment, for it enabled them to share in the lucrative
practice of the Common Pleas. … In the action of 'ejectione
firmæ,' the plaintiff first only recovered damages, as in any
other action of trespass. … The courts, consequently
following, it is said, in the footsteps of the courts of
equity, … introduced into this action a species of relief
not warranted by the original writ, … viz., a judgment to
recover the term, and a writ of possession thereupon. Possibly
the change was inspired by jealousy of the chancery courts. It
cannot be stated precisely when this change took place. In
1383 it was conceded by the full court that in 'ejectione
firmæ' the plaintiff could no more recover his term than in
trespass he could recover damages for a trespass to be done.
… But in 1468 it was agreed by opposing counsel that the
term could be recovered, as well as damages. The earliest
reported decision to this effect was in 1499, and is referred
to by Mr. Reeves as the most important adjudication rendered
during the reign of Henry VII., for it changed the whole
system of remedies for the trial of controverted titles to
land, and the recovery of real property."

_Sedgwick and Wait,
Trial of Title to Land (2nd edition),
sections 12-25._

"Ejectment is the form of action now retained in use in
England under the Statute of 3 and 4 Wm. IV., c. 7, § 36,
which abolished all other forms of real actions except dower.
It is in general use in some form in this country, and by it
the plaintiff recovers, if at all, upon the strength of his
own title, and not upon the weakness of that of the tenant,
since possession is deemed conclusive evidence of title as to
all persons except such as can show a better one."

_Washburn,
Real Property (5th edition),
volume 1, page 465._

COMMON LAW: A. D. 1504-1542.
Consideration in Contracts.

"To the present writer it seems impossible to refer
consideration to a single source. At the present day it is
doubtless just and expedient to resolve every consideration
into a detriment to the promisee incurred at the request of
the promisor. But this definition of consideration would not
have covered the cases of the 16th century. There were then
two distinct forms of consideration: (1) detriment; (2) a
precedent debt. Of these detriment was the more ancient,
having become established in substance, as early as 1504. On
the other hand no case has been found recognizing the validity
of a promise to pay a precedent debt before 1542. These two
species of consideration, so different in their nature, are,
as would be surmised, of distinct origin. The history of
detriment is bound up with the history of special assumpsit,
whereas the consideration based upon a precedent debt must be
studied in the development of 'indebitatus assumpsit.'"

_J. B. Ames,
History of Assumpsit
(Harvard Law Review,
volume 2, pages 1-2)._

COMMON LAW: A. D. 1520.
The Law of Parol Guaranty.

"It was decided in 1520, that one who sold goods to a third
person on the faith of the defendant's promise that the price
should be paid, might have an action on the case upon the
promise. This decision introduced the whole law of parol
guaranty. Cases in which the plaintiff gave his time or labor
were as much within the principle of the new action as those
in which he parted with property. And this fact was speedily
recognized. In Saint-Germain's book, published in 1531, the
student of law thus defines the liability of a promisor: 'If
he to whom the promise is made have a charge by reason of the
promise, … he shall have an action for that thing that was
promised, though he that made the promise have no worldly
profit by it.' From that day to this a detriment has always
been deemed a valid consideration for a promise if incurred at
the promisor's request."

_J. B. Ames,
History of Assumpsit
(Harvard Law Review,
volume 2, page 14)._

{1967}

COMMON LAW: A. D. 1535.
Statute of Uses.

"Before the passing of the Statute of Uses in the
twenty-seventh year of Henry VIII, attempts had been made to
protect by legislation the interests of creditors, of the
king, and of the lords, which were affected injuriously by
feoffments to uses. … The object of that Statute was by
joining the possession or seisen to the use and interest (or,
in other words, by providing that all the estate which would
by the common law have passed to the grantee to uses should
instantly be taken out of him and vested in 'cestui que use'),
to annihilate altogether the distinction between the legal and
beneficial ownership, to make the ostensible tenant, in every
case also the legal tenant, liable to his lord for feudal dues
and services,—wardship, marriage, and the rest. … By
converting the use into the legal interest the Statute did
away with the power of disposing of interests in lands by
will, which had been one of the most important results of the
introduction of uses. Probably these were the chief results
aimed at by the Statute of Uses. A strange combination of
circumstances—the force of usage by which practices had
arisen too strong even for legislation to do away with,
coupled with an almost superstitious adherence on the part of
the courts to the letter of the statute—produced the curious
result, that the effect of the Statute of Uses was directly
the reverse of its purpose, that by means of it secret
conveyances of the legal estate were introduced, while by a
strained interpretation of its terms the old distinction
between beneficial or equitable and legal ownership was
revived. What may be called the modern law of Real Property
and the highly technical and intricate system of conveyancing
which still prevails, dates from the legislation of Henry
VIII."

_Kenelm E. Digby,
History of the Law of Real Property (4th edition),
pages 343-345._

COMMON LAW: A. D. 1540-1542.
Testamentary Power.

"The power of disposing by will of land and goods has been of
slow growth in England. The peculiar theories of the English
land system prevented the existence of a testamentary power
over land until it was created by the Statute of Wills (32 &
34 Hen. VIII.) extended by later statutes, and although a
testamentary power over personal property is very ancient in
this country, it was limited at common law by the claims of
the testator's widow and children to their 'reasonable parts'
of his goods. The widow was entitled to one third, or if there
were no children to one half of her husband's personal estate;
and the children to one third, or if there was no widow to one
half of their father's personal estate, and the testator could
only dispose by his will of what remained. Whether the
superior claims of the widow and children existed all over
England or only in some counties by custom is doubted; but …
by Statutes of William and Mary, Will. III. and Geo. I.,
followed by the Wills Act (1 Vict. c. 26), the customs have
been abolished, and a testator's testamentary power now
extends to all his real and personal property."

_Stuart C. Macaskie,
The Law of Executors and Administrators,
page 1._

COMMON LAW: A. D. 1542.
Liability in Indebitatus Assumpsit on an Express Promise.

"The origin of indebitatus assumpsit may be explained in a few
words: Slade's case [4 Rep., 92a], decided in 1603, is
commonly thought to be the source of this action. But this is
a misapprehension. 'Indebitatus assumpsit' upon an express
promise is at least sixty years older than Slade's case. The
evidence of its existence throughout the last half of the
sixteenth century is conclusive. There is a note by Brooke,
who died in 1558, as follows: 'where one is indebted to me,
and he promises to pay before Michaelmas, I may have an action
of debt on the contract, or an action on the case on the
promise.'"

_J. B. Ames,
History of Assumpsit
(Harvard Law Review,
volume 2, page 16)._

COMMON LAW: A. D. 1557.
Statute of Uses Rendered Nugatory.

"Twenty-two years after the passing of this statute (Mich.
Term 4 & 5 Ph. & M.) the judges by a decision practically
rendered the Statute nugatory by holding that the Statute will
not execute more than one use, and that if there be a second
use declared the Statute will not operate upon it. The effect
of this was to bring again into full operation the equitable
doctrine as to uses in lands."

_A. H. Marsh,
History of the Court of Chancery,
pages 122-123._

COMMON LAW: A. D. 1580.
Equal Distribution of Property.

"In Holland, all property, both real and personal, of persons
dying intestate, except land held by feudal tenure, was
equally divided among the children, under the provisions of an
act passed by the States in 1580. This act also contained a
further enlightened provision, copied from Rome, and since
adopted in other Continental Countries, which prohibited
parents from disinheriting their children except for certain
specified offences. Under this legal system, it became
customary for parents to divide their property by will equally
among their children, just as the custom of leaving all the
property to the eldest son grew up under the laws of England.
The Puritans who settled New England adopted the idea of the
equal distribution of property, in case there was no
will—giving to the eldest son, however, in some of the
colonies a double portion, according to the Old Testament
injunction,—and thence it has spread over the whole United
States."

_D. Campbell,
The Puritan in Holland, England and America,
volume 2, page 452._

COMMON LAW: A. D. 1589.
Earliest notice of Contract of Insurance.

"The first notice of the contract of insurance that appears in
the English reports, is a case cited in Coke's Reports [6
Coke's Rep., 47b], and decided in the 31st of Elizabeth; and
the commercial spirit of that age gave birth to the statute of
43rd Elizabeth, passed to give facility to the contract, and
which created the court of policies of assurance, and shows by
its preamble that the business of marine insurance had been in
immemorial use, and actively followed. But the law of
insurance received very little study and cultivation for ages
afterwards; and Mr. Park informs us that there were not forty
cases upon matters of insurance prior to the year 1756, and
even those cases were generally loose nisi prius notes,
containing very little information or claim to authority."

_J. Kent,
Commentaries,
part 5, lecture 48._

COMMON LAW: A. D. 1592.
A Highwayman as a Chief-Justice.

"In 1592, Elizabeth appointed to the office of Chief-Justice
of England a lawyer, John Popham, who is said to have
occasionally been a highwayman until the age of thirty. At
first blush this seems incredible, but only because such false
notions generally prevail regarding the character of the time.
The fact is that neither piracy nor robbery was considered
particularly discreditable at the court of Elizabeth.
{1968}
The queen knighted Francis Drake for his exploits as a pirate,
and a law on the statute-books, passed in the middle of the
century, gave benefit of clergy to peers of the realm when
convicted of highway robbery. Men may doubt, if they choose,
the stories about Popham, but the testimony of this statute
cannot be disputed."

_D. Campbell,
The Puritan in Holland, England and America,
volume 1. page 366._

COMMON LAW: A. D. 1650-1700.
Evidence.
"Best Evidence Rule."

"This phrase is an old one. During the latter part of the
seventeenth century and the whole of the eighteenth, while
rules of evidence were forming, the judges and text writers
were in the habit of laying down two principles; namely, (1)
that one must bring the best evidence that he can, and (2)
that if he does this, it is enough. These principles were the
beginning, in the endeavor to give consistency to the system
of evidence before juries. They were never literally
enforced,—they were principles and not exact rules; but for a
long time they afforded a valuable test. As rules of evidence
and exceptions to the rules became more definite, the field
for the application of the general principle of the 'Best
Evidence' was narrower. But it was often resorted to as a
definite rule and test in a manner which was very misleading.
This is still occasionally done, as when we are told in
McKinnon v. Bliss, 21 N. Y, p. 218, that 'it is a universal
rule founded on necessity, that the best evidence of which the
nature of the case admits is always receivable.' Greenleaf's
treatment of this topic (followed by Taylor) is perplexing and
antiquated. A juster conception of it is found in Best, Evid.
s. 88. Always the chief example of the 'Best Evidence'
principle was the rule about proving the contents of a
writing. But the origin of this rule about writings was older
than the 'Best Evidence' principle; and that principle may
well have been a generalization from this rule, which appears
to be traceable to the doctrine of profert. That doctrine
required the actual production of the instrument which was set
up in pleading. In like manner, it was said, in dealing with
the jury, that a jury could not specifically find the contents
of a deed unless it had been exhibited to them in evidence.
And afterwards when the jury came to hear testimony from
witnesses, it was said that witnesses could not undertake to
speak to the contents of a deed without the production of the
deed itself. … Our earliest records show the practice of
exhibiting charters and other writings to the jury."

_J. B. Thayer,
Select Cases on Evidence,
page 726._

COMMON LAW: A. D. 1600.
Mortgagee's Right to Possession.

"When this country was colonized, about A. D. 1600, the law of
mortgage was perfectly well settled in England. It was
established there that a mortgage, whether by deed upon
condition, by trust deed, or by deed and defeasance, vested
the fee, at law, in the mortgagee, and that the mortgagee,
unless the deed reserved possession to the mortgagor, was
entitled to immediate possession. Theoretically our ancestors
brought this law to America with them. Things ran on until the
Revolution. Mortgages were given in the English form, by deed
on condition, by deed and defeasance, or by trust deed. It was
not customary in Plymouth or Massachusetts Bay, and it is
probable that it was not customary elsewhere, to insert a
provision that the mortgagor, until default in payment, should
retain possession. Theoretically, during the one hundred and
fifty years from the first settlement to the Revolution, the
English rules of law governed all these transactions, and, as
matter of book law, every mortgagee of a house or a farm was
the owner of it, and had the absolute right to take possession
upon the delivery of the deed. But the curious thing about
this is, that the people generally never dreamed that such was
the law."

_H. W. Chaplin,
The Story of Mortgage Law
(Harvard Law Review,
volume 4, page 12)._

COMMON LAW: A. D. 1601-1602.
Malicious Prosecution.