Chapter LIV: Part 54

"The framers of the Constitution of the United States, moved
chiefly by the mischiefs created by the preceding legislation
of the States, which had made serious encroachments on the
rights of property, inserted a clause in that instrument which
declared that 'no State shall pass any ex post-facto law, or
law impairing the obligation of contracts.' The first branch
of this clause had always been understood to relate to
criminal legislation, the second to legislation affecting
civil rights. But, before the case of Dartmouth College v.
Woodward occurred, there had been no judicial decisions
respecting the meaning and scope of the restraint in regard to
contracts. … The State court of New Hampshire, in deciding
this case, had assumed that the college was a public
corporation, and on that basis had rested their judgment;
which was, that between the State and its public corporations
there is no contract which the State cannot regulate, alter,
or annul at pleasure. Mr. Webster had to overthrow this
fundamental position. If he could show that this college was a
private eleemosynary corporation, and that the grant of the
right to be a corporation of this nature is a contract between
the sovereign power and those who devote their funds to the
charity, and take the incorporation for its better management,
he could bring the legislative interference within the
prohibition of the Federal Constitution. … Its important
positions, … were these: 1. That Dr. Wheelock was the
founder of this college, and as such entitled by law to be
visitor, and that he had assigned all the visitatorial powers
to the trustees. 2. That the charter created a private and not
a pubic corporation, to administer a charity, in the
administration of which the trustees had a property, which the
law recognizes as such. 3. That the grant of such a charter is
a contract between the sovereign power and its successors and
those to whom it is granted and their successors. 4. That the
legislation which took away from the trustees the right to
exercise the powers of superintendence, visitation, and
government, and transferred them to another set of trustees,
impaired the obligation of that contract. … On the
conclusion of the argument, the Chief Justice intimated that a
decision was not to be expected until the next term. It was
made in February, 1819, fully confirming the grounds on which
Mr. Webster had placed the cause. From this decision, the
principle in our constitutional jurisprudence, which regards a
charter of a private corporation as a contract, and places it
under the protection of the Constitution of the United States,
takes its date. To Mr. Webster belongs the honor of having
produced its judicial establishment."

_G. T. Curtis,
Life of Daniel Webster,
volume 1, pages 165-169 (5th edition)._

COMMON LAW: A. D. 1823.
Indian Right of Occupancy.

"The first case of importance that came before the court of
last resort with regard to the Indian question had to do with
their title to land. This was the case of Johnson v. McIntosh,
8 Wheaton, 543. In this case, Chief Justice Marshall delivered
the opinion of the court and held that discovery gave title to
the country by whose subjects or by whose authority it was
made, as against all persons but the Indians as occupants;
that this title gave a power to grant the soil and to convey a
title to the grantees, subject only to the Indian right of
occupancy; and that the Indians could grant no title to the
lands occupied by them, their right being simply that of
occupancy and not of ownership. The Chief Justice says: 'It
has never been doubted that either the United States or the
several States had a clear title to all the lands within the
boundary lines described in the treaty (of peace between
England and United States) subject only to the Indians' right
of occupancy, and that the exclusive power to extinguish that
right was vested in that government which might
constitutionally exercise it. … The United States, then,
have unequivocally acceded to that great and broad rule by
which its civilized inhabitants now hold this country. They
hold and assert in themselves the title by which it was
acquired. They maintain, as all others have maintained, that
discovery gave an exclusive right to extinguish the Indian
title of occupancy, either by purchase or by conquest; and
gave also a right to such a degree of sovereignty as the
circumstances of the people would allow them to exercise. The
power now possessed by the government of the United States to
grant lands resided, while we were colonies, in the crown or
its grantees. The validity of the title given by either has
never been questioned in our courts. It has been exercised
uniformly over territory in possession of the Indians. The
existence of this power must negative the existence of any
right which may conflict with and control it. An absolute
title to lands cannot exist, at the same time, in different
persons, or in different governments. An absolute must be an
exclusive title, or at least a title which excludes all others
not compatible with it. All our institutions recognize the
absolute title of the crown, subject only to the Indian right
of occupancy, and recognize the absolute title of the crown to
extinguish that right. This is incompatible with an absolute
and complete title in the Indians.'"

_William B. Hornblower,
14 American Bar Association Report 264-265._

COMMON LAW: A. D. 1826
Jurors from the Body of the County.

"In the time of Fortescue, who was lord chancellor in the
reign of Henry VI. [1422-61], with the exception of the
requirement of personal knowledge in the jurors derived from
near neighborhood of residence, the jury system had become in
all its essential functions similar to what now exists. …
The jury were still required to come from the neighborhood
where the fact they had to try was supposed to have happened;
and this explains the origin of the venire (vicinetum), which
appears in all indictments and declarations at the present
day. It points out the place from which the jury must be
summoned. … Now, by 6 George IV., ch. 50, the jurors need
only be good and lawful men of the body of the county."

_W. Forsyth,
Trial by Jury,
chapter 7, section 3._

{1977}

COMMON LAW: A. D. 1828.
Lord Tenterden's Act.

"Be it therefore enacted … , That in Actions of Debt or upon
the Case grounded upon any Simple Contract or Acknowledgement
or Promise by Words only shall be deemed sufficient Evidence
of a new or continuing Contract, … unless such
Acknowledgement or Promise shall be made or contained by or in
some Writing to be signed by the Party chargeable thereby."

_Statutes at Large,
volume 68, 9 George IV., c. 14._

COMMON LAW: A. D. 1833.
Wager of Law abolished, and Effect upon Detinue.

"This form of action (detinue) was also formerly subject (as
were some other of our legal remedies), to the incident of
'wager of law' ('vadiatio legis'),—a proceeding which
consisted in the defendant's discharging himself from the
claim on his own oath, bringing with him at the same time into
court eleven of his neighbors, to swear that they believed his
denial to be true. This relic of a very ancient and general
institution, which we find established not only among the
Saxons and Normans, but among almost all the northern nations
that broke in upon the Roman empire, continued to subsist
among us even till the last reign, when it was at length
abolished by 3 and 4 Will, IV. c. 42, s. 13: and as the wager
of law used to expose plaintiffs in detinue to great
disadvantage, it had the effect of throwing that action almost
entirely out of use, and introducing in its stead the action
of trover and conversion."

_Stephens,
Commentaries,
volume 3, pages 442-443 (8th edition)._

COMMON LAW: A. D. 1834.
Real Actions abolished.

"The statutes of 32 H. VIII., c. 2, and 21 Jac. I., c. 16 (so
far as the latter applied to actions for the recovery of land)
were superseded by 3 & 4 Wm. IV, c. 27. The latter statute
abolished the ancient real actions, made ejectment (with few
exceptions) the sole remedy for the recovery of land, and, for
the first time, limited directly the period within which an
ejectment might be brought. It also changed the meaning of
'right of entry,' making it signify simply the right of an
owner to the possession of land of which another person has
the actual possession, whether the owner's estate is devested
or not. In a word, it made a right of entry and a right to
maintain ejectment synonymous terms, and provided that
whenever the one ceased the other should cease also; i. e., it
provided that whenever the statute began to run against the
one right, it should begin to run against the other also, and
that, when it had run twenty years without interruption, both
rights should cease; and it also provided that the statute
should begin to run against each right the moment that the
right began to exist, i. e., the moment that the actual
possession and the right of possession became separated. The
statute, therefore, not only ignored the fact that ejectment
(notwithstanding its origin) is in substance purely in rem
(the damages recovered being only nominal), and assumed that
it was, on the contrary, in substance purely in personam, i.
e., founded upon tort, but it also assumed that every actual
possession of land, without a right of possession, is a tort."

_C. C. Langdell,
Summary of Equity Pleading,
pages 144-145._

COMMON LAW: A. D. 1836.
Exemption Laws.

"Our State legislatures commenced years ago to pass laws
exempting from execution necessary household goods and
personal apparel, the horses and implements of the farmer, the
tools and instruments of the artisan, etc. Gradually the
beneficent policy of such laws has been extended. In 1828, Mr.
Benton warmly advocated in the Senate of the United States the
policy of a national homestead law. The Republic of Texas
passed the first Homestead Act, in 1836. It was the great gift
of the infant Republic of Texas to the world. In 1849, Vermont
followed; and this policy has since been adopted in all but
eight States of the Union. By these laws a homestead (under
various restrictions as to value) for the shelter and
protection of the family is now exempt from execution or
judicial sale for debt, unless both the husband and the wife
shall expressly join in mortgaging it or otherwise expressly
subjecting it to the claims of creditors."

_J. F. Dillon,
Laws and Jurisprudence of England and America,
page 360._

COMMON LAW: A. D. 1837.
Employer's liability.

"No legal principle, with a growth of less than half a
century, has become more firmly fixed in the common law of
to-day, than the rule that an employer, if himself without
fault, is not liable to an employee injured through the
negligence of a fellow-employee engaged in the same general
employment. This exception to the well known doctrine of
'respondeat superior,' although sometimes considered an old
one, was before the courts for the first time in 1837, in the
celebrated case of Priestly v. Fowler, 3 M. & W. 1, which it
is said, has changed the current of decisions more radically
than any other reported case. … The American law, though in
harmony with the English, seems to have had an origin of its
own. In 1841 Murray v. The South Carolina Railroad Company, 1
Mc. & M. 385, decided that a railroad company was not liable
to one servant injured through the negligence of another
servant in the same employ. Although this decision came a few
years after Priestly v. Fowler, the latter case was cited by
neither counsel nor court. It is probable, therefore, that the
American Court arrived at its conclusion entirely independent
of the earlier English case,—a fact often lost sight of by
those who in criticising the rule, assert that it all sprang
from an ill-considered opinion by Lord Abinger in Priestly v.
Fowler. The leading American case, however, is Farwell v.
Boston and Worcester Railroad Company, 4 Met. 49, which,
following the South Carolina case, settled the rule in the
United States. It has been followed in nearly every
jurisdiction, both State and Federal."

_Marland C. Hobbs,
Statutory Changes in Employers Liability
(Harvard Law Review,
volume 2, pages 212-213)._

COMMON LAW: A. D. 1838.
Arrests on Mesne Process for Debt abolished, and Debtor's
Lands, for first time, taken in Satisfaction of Debt.

"The law of debtor and creditor, until a comparatively recent
period, was a scandal to a civilized country. For the smallest
claim, any man was liable to be arrested on mesne process,
before legal proof of the debt. … Many of these arrests were
wanton and vexatious; and writs were issued with a facility
and looseness which paced the liberty of every man—suddenly
and without notice—at the mercy of any one who claimed
payment of a debt. A debtor, however honest and solvent, was
liable to arrest. The demand might even be false and
fraudulent: but the pretended creditor, on making oath of the
debt, was armed with this terrible process of the law. The
wretched defendant might lie in prison for several months
before his cause was heard; when, even if the action was
discontinued or the debt disproved, he could not obtain his
discharge without further proceedings, often too costly for a
poor debtor, already deprived of his livelihood by
imprisonment.
{1978}
No longer even a debtor,—he could not shake off his bonds.
… The total abolition of arrests on mesne process was
frequently advocated, but it was not until 1888 that it was at
length accomplished. Provision was made for securing
absconding debtors; but the old process for the recovery of a
debt in ordinary cases, which had wrought so many acts of
oppression, was abolished. While this vindictive remedy was
denied, the debtor's lands were, for the first time, allowed
to be taken in satisfaction of a debt; and extended facilities
were afterwards afforded for the recovery of small claims, by
the establishment of county courts."

_T. E. May,
Constitutional History of England (Widdleton's edition),
volume 2, pages 267-268._

See, also, DEBT: LAWS CONCERNING.

COMMON LAW: A. D. 1839-1848.
Emancipation of Women.

"According to the old English theory, a woman was a chattel,
all of whose property belonged to her husband. He could beat
her as he might a beast of burden, and, provided he was not
guilty of what would be cruelty to animals, the law gave no
redress. In the emancipation of women Mississippi led off, in
1839, New York following with its Married Women's Act of 1848,
which has been since so enlarged and extended, and so
generally adopted by the other states, that, for all purposes
of business, ownership of property, and claim to her
individual earnings, a married woman is to-day, in America, as
independent as a man."

_D. Campbell,
The Puritan in Holland, England and America,
volume 1, page 71._

COMMON LAW: A. D. 1842.
One who takes Commercial Paper as Collateral is a Holder for
Value.

"Take the subject of the transfer of such paper as collateral
security for, or even in the payment of, a pre-existing
indebtedness. We find some of the courts holding that one who
takes such paper as collateral security for such a debt is a
holder for value; others, that he is not, unless he extends
the time for the payment of the secured debt or surrenders
something of value, gives some new consideration; while still
others hold that one so receiving such paper cannot be a
holder for value; and some few hold that even receiving the
note in payment and extinguishment of a pre-existing debt does
not constitute one a holder for value. The question, as is
known to all lawyers, was first presented to the Supreme Court
of the United States in Swift vs. Tyson (16 Peters, 1). There,
however, the note had been taken in payment of the debt. It
was argued in that case that the highest court in New York had
decided that one so taking a note was not a holder for value,
and it was insisted in argument that the contract, being made
in New York, was to be governed by its law; but the court,
through Justice Story—Justice Catron alone
dissenting—distinctly and emphatically repudiated the
doctrine that the Federal court was to be governed on such
questions 'by the decisions of the courts of the State where
the contract was made, and held the holder a holder for
value."

_Henry C. Tompkins,
13 American Bar Association Report,
page 255._

COMMON LAW: A. D. 1845.
Interest of Disseisee transferable.

"It was not until 1845 that by statute the interest of the
disseisee of land became transferable. Similar statutes have
been enacted in many of our States. In a few jurisdictions the
same results have been obtained by judicial legislation. But
in Alabama, Connecticut, Dakota, Florida, Kentucky,
Massachusetts, New York, North Carolina, Rhode Island and
Tennessee, and presumably in Maryland and New Jersey, it is
still the law that the grantee of a disseisee cannot maintain
an action in his own name for the recovery of the land."

_J. B. Ames,
The Disseisin of Chattels
(Harvard Law Review,
volume 3, page 25)._

COMMON LAW: A. D. 1846.
Ultra vires.

"When railway companies were first created with Parliamentary
powers of a kind never before entrusted to similar bodies, it
soon became necessary to determine whether, when once called
into existence, they were to be held capable of exercising, as
nearly as possible, all the powers of a natural person, unless
expressly prohibited from doing so, or whether their acts must
be strictly limited to the furtherance of the purpose for
which they had been incorporated. The question was first
raised in 1846, with reference to the right of a railway
company to subsidise a harbour company, and Lord Langdale, in
deciding against such a right, laid down the law in the
following terms:—'Companies of this kind, possessing most
extensive powers, have so recently been introduced into this
country that neither the legislature nor the courts of law
have yet been able to understand all the different lights in
which their transactions ought properly to be viewed. … To
look upon a railway company in the light of a common
partnership, and as subject to no greater vigilance than
common partnerships are, would, I think, be greatly to mistake
the functions which they perform and the powers which they
exercise of interference not only with the public but with the
private rights of all individuals in this realm. … I am
clearly of opinion that the powers which are given by an Act
of Parliament, like that now in question, extend no further
than is expressly stated in the Act, or is necessarily and
properly required for carrying into effect the undertaking and
works which the Act has expressly sanctioned.' [Citing Coleman
v. Eastern Counties Rw. Co., 10 Beav., 18.] This view, though
it has sometimes been criticised, seems now to be settled law.
In a recent case in the House of Lords, the permission which
the Legislature gives to the promoters of a company was
paraphrased as follows:—'You may meet together and form
yourselves into a company, but in doing that you must tell all
who may be disposed to deal with you the objects for which you
have been associated. Those who are dealing with you will
trust to that memorandum of association, and they will see
that you have the power of carrying on business in such a
manner as it specifies. You must state the objects for which
you are associated, so that the persons dealing with you will
know that they are dealing with persons who can only devote
their means to a given class of objects.' [Citing Riche v.
Ashbury Carriage Co., L R., 7 E. & I., App. 684.] An act of a
corporation in excess of its powers with reference to third
persons is technically said to be ultra vires [perhaps first
in South Yorkshire Rw. Co. v. Great Northern R. Co., 9 exch.
84 (1853)]; and is void even if unanimously agreed to by all
the corporators. The same term is also, but less properly,
applied to a resolution of a majority of the members of a
corporation which being beyond the powers of the corporation
will not bind a dissentient minority of its members."

_Thomas Erskine Holland,
Elements of Jurisprudence, 5th edition, page 301.
(Compare Article by Seymour D. Thompson in American Law
Review, May-June, 1894)._

{1979}

COMMON LAW: A. D. 1848-1883.
The New York Codes and their Adoption in other Communities.

"The 'New York Mail' gives the following information as to the
extent to which our New York Codes have been adopted in other
communities. In most instances the codes have been adopted
substantially in detail, and in others in principle: 'The
first New York Code, the Code of Civil Procedure, went into
effect on the 1st of July, 1848. It was adopted in Missouri in
1849; in California in 1851; in Kentucky in 1851; in Ohio in
1853; in the four provinces of India between 1853 and 1856; in
Iowa in 1855; in Wisconsin in 1856; in Kansas in 1859; in
Nevada in 1861; in Dakota in 1862; in Oregon in 1862; in Idaho
in 1864; in Montana in 1864; in Minnesota in 1866; in Nebraska
in 1866; in Arizona in 1866; in Arkansas in 1868; in North
Carolina in 1868; in Wyoming in 1869; in Washington Territory
in 1869; in South Carolina in 1870; in Utah in 1870; in
Connecticut in 1879; in Indiana in 1881. In England and
Ireland by the Judicature Act of 1873; this Judicature Act has
been followed in many of the British Colonies; in the Consular
Courts of Japan, in Shanghai, in Hong Kong and Singapore,
between 1870 and 1874. The Code of Criminal Procedure, though
not enacted in New York till 1881, was adopted in California
in 1850; in India at the same time with the Code of Civil
Procedure; in Kentucky in 1854; in Iowa in 1858; in Kansas in
1859; in Nevada in 1861; in Dakota in 1862; in Oregon in 1864;
in Idaho in 1864; in Montana in 1864; in Washington Territory
in 1869; in Wyoming in 1869; in Arkansas in 1874; in Utah in
1876; in Arizona in 1877; in Wisconsin in 1878; in Nebraska in
1881; in Indiana in 1881; in Minnesota in 1883. The Penal
Code, though not enacted in New York until 1882, was adopted
in Dakota in 1865 and in California in 1872. The Civil Code,
not yet enacted in New York, though twice passed by the
Legislature, was adopted in Dakota in 1866 and in California
in 1872, and has been much used in the framing of substantive
laws for India. The Political Code, reported for New York but
not yet considered, was adopted in California in 1872. Thus it
will be seen that the State of New York has given laws to the
world to an extent and degree unknown since the
Roman Codes followed Roman conquests.'"

_The Albany Law Journal,
volume 39, page 261._

COMMON LAW: A. D. 1848.
Simplification of Procedure.

"In civil matters, the greatest reform of modern times has
been the simplification of procedure in the courts, and the
virtual amalgamation of law and equity. Here again America
took the lead, through the adoption by New York, in 1848, of a
Code of Practice, which has been followed by most of the other
states of the Union, and in its main features has lately been
taken up by England."

_D. Campbell,
The Puritan in Holland, England and America,
volume 1, page 70._

COMMON LAW: A. D. 1848.
Reform in the Law of Evidence.

"The earliest act of this kind in this country was passed by
the Legislature of Connecticut in 1848. It is very broad and
sweeping in its provisions. It is in these words: 'No person
shall be disqualified as a witness in any suit or proceeding
at law, or in equity, by reason of his interest in the event
of the same, as a party or otherwise, or by reason of his
conviction of a crime; but such interest or conviction may be
shown for the purpose of affecting his credit.'

_(Revised Statutes of Connecticut, 1849,
page 86, section 141.
In the margin of the page the time of the
passage of the law is given as 1848.)_

This act was drafted and its enactment secured by the
Honorable Charles J. McCurdy, a distinguished lawyer and the
Lieutenant-Governor of that State. A member of Judge McCurdy's
family, having been present at the delivery of this lecture at
New Haven in 1892, called my attention to the above fact,
claiming, and justly, for this act the credit of leading in
this country the way to such legislation. But he was mistaken
in his claim that it preceded similar legislation in England,
although its provisions are an improvement on the contemporary
enactments of the like kind in that country."

_John F. Dillon,
Laws and Jurisprudence of England and America,
page 374, notes._

COMMON LAW: A. D. 1851.
Bentham's Reforms in the Law of Evidence.

"In some respects his [Bentham's] 'Judicial Evidence,' … is
the most important of all his censorial writings on English
Law. In this work he exposed the absurdity and perniciousness
of many of the established technical rules of evidence. …
Among the rules combatted were those relating to the
competency of witnesses and the exclusion of evidence on
various grounds, including that of pecuniary interest. He
insisted that these rules frequently caused the miscarriage of
justice, and that in the interest of justice they ought to be
swept away. His reasoning fairly embraces the doctrine that
parties ought to be allowed and even required to testify. …
But Bentham had set a few men thinking. He had scattered the
seeds of truth. Though they fell on stony ground they did not
all perish. But verily reform is a plant of slow growth in the
sterile gardens of the practising and practical lawyer.
Bentham lived till 1832, and these exclusionary rules still
held sway. But in 1843, by Lord Denman's Act, interest in
actions at common law ceased, as a rule, to disqualify; and in
1846 and 1851, by Lord Brougham's Acts, parties in civil
actions were as a rule made competent and compellable to
testify. I believe I speak the universal judgment of the
profession when I say changes more beneficial in the
administration of justice have rarely taken place in our law,
and that it is a matter of profound amazement, as we look back
upon it, that these exclusionary rules ever had a place
therein, and especially that they were able to retain it until
within the last fifty years."

_J. F. Dillon,
Laws and Jurisprudence of England and America,
pages 339-341._

COMMON LAW: A. D. 1852-1854.
Reform in Procedure.

"A great procedure reform was effected by the Common Law
Procedure Acts of 1852 and 1854 as the result of their
labours." The main object of the Acts was to secure that the
actual merits of every case should be brought before the
judges unobscured by accidental and artificial questions
arising upon the pleadings, but they also did something to
secure that complete adaptability of the common law courts for
finally determining every action brought within them, which
the Chancery Commissioners of 1850 had indicated as one of the
aims of the reformers. Power was given to the common law courts
to allow parties to be interrogated by their opponents, to
order discovery of documents, to direct specific delivery of
goods, to grant injunctions, and to hear interpleader actions,
and equitable pleas were allowed to be urged in defence to
common law actions."

_D. M. Kerly,
History of Equity,
page 288._

{1980}

COMMON LAW: A. D. 1854.
"Another mode" (besides common law lien).

"Another mode of creating a security is possible, by which not
merely the ownership of the thing but its possession also
remains with the debtor. This is called by the Roman lawyers
and their modern followers 'hypotheca.' Hypothecs may arise by
the direct application of a rule of law, by judicial decision,
or by agreement. Those implied by law, generally described as
'tacit hypothecs,' are probably the earliest. They are first
heard of in Roman law in connection with that right of a
landlord over the goods of his tenant, which is still well
known on the Continent and in Scotland under its old name, and
which in England takes the form of a right of Distress.
Similar rights were subsequently granted to wives, pupils,
minors, and legatees, over the property of husbands, tutors,
curators, and heirs, respectively. The action by which the
praetor Servius first enabled a landlord to claim the goods of
his defaulting tenant in order to realize his rent, even if
they had passed into the hands of third parties, was soon
extended so as to give similar rights to any creditor over
property which its owner had agreed should be held liable for
a debt. A real right was thus created by the mere consent of
the parties, without any transfer of possession, which
although opposed to the theory of Roman law, became firmly
established as applicable both to immoveable and moveable
property. Of the modern States which have adopted the law of
hypothec, Spain perhaps stands alone in adopting it to the
fullest extent. The rest have, as a rule, recognized it only
in relation to immoveables. Thus the Dutch law holds to the
maxim 'mobilia non habent sequelam,' and the French Code,
following the 'coutumes' of Paris and Normandy, lays down that
'les meubles n'ont pas de suite par hypotheque.' But by the
'Code de Commerce,' ships, though moveables, are capable of
hypothecation; and in England what is called a mortgage, but
is essentially a hypothec, of ships is recognized and
regulated by the 'Merchant Shipping Acts,' under which the
mortgage must be recorded by the registrar of the port at
which the ship itself is registered [17 and 18 Vic. c. 104].
So also in the old contract of 'bottomry,' the ship is made
security for money lent to enable it to proceed upon its
voyage."

_T. E. Holland,
Elements of Jurisprudence, 5th edition,
p. 203._

COMMON LAW: A. D. 1854-1882.
Simplification of Titles and Transfers of Land in England.

"For the past fifty years the project of simplifying the
titles and transfer of land has received great attention in
England. In the year 1854 a royal commission was created to
consider the subject. The report of this commission, made in
1857, was able and full so far as it discussed the principles
of land transfer which had been developed to that date. It
recommended a limited plan of registration of title. This
report, and the report of the special commission of the House
of Commons of 1879, have been the foundation of most of the
subsequent British legislation upon the subject. Among the
more prominent acts passed may be named Lord Westbury's Act of
1862, which attempted to establish indefeasible titles; Lord
Cairns' Land Transfer Act of 1875, which provided for
guaranteed titles upon preliminary examinations; the
Conveyancing and Law of Property Act of 1881, which
established the use of short forms of conveyances; and Lord
Cairns' Settled Land Act of 1882."

_Dwight H. Olmstead,
13 American Bar Association Report,
page 267._

COMMON LAW: A. D. 1855.
Suits against a State or Nation.

"In England the old common law methods of getting redress from
the Crown were by 'petition de droit' and 'monstrans le
droit,' in the Court of Chancery or the Court of Exchequer,
and in some cases by proceedings in Chancery against the
Attorney-General. It has recently been provided by statute [23
& 24 Vic., c. 24] that a petition of right may be entitled in
anyone of the superior Courts in which the subject-matter of
the petition would have been cognisable, if the same had been
a matter in dispute between subject and subject, and that it
shall be left with the Secretary of State for the Home
Department, for her Majesty's consideration, who, if she shall
think fit, may grant her fiat that right be done, whereupon an
answer, plea, or demurrer shall be made on behalf of the
Crown, and the subsequent proceedings be assimulated as far as
practicable to the course of an ordinary action. It is also
provided that costs shall be payable both to and by the Crown,
subject to the same rules, so far as practicable, as obtain in
proceedings between subject and subject."

_T. E. Holland,
Elements of Jurisprudence, 5th edition,
page 337._

The United States Court of Claims was established in 1855. For
State courts of claims see Note in 16 Abbott's New Cases 436
and authorities there referred to.

COMMON LAW: A. D. 1858.
The Contractual Theory of Marriage as affecting Divorce.

"The doctrine may be resolved into two propositions-(a) that a
marriage celebrated abroad cannot be dissolved but by a Court
of the foreign country; (b) that a marriage in England is
indissoluble by a foreign Court. The first proposition has
never been recognized in any decision in England. Even before
the Act of 1858 it is extremely doubtful if the English Courts
would have scrupled to decree a divorce â mensâ where the
marriage was had in a foreign country, and certainly after the
Statutes they did not hesitate to grant a divorce, though the
marriage took place abroad (Ratcliff v. Ratcliff, 1859, 1 Sw.
& Tr. 217). It is true that in cases where the foreign Courts
have dissolved a marriage celebrated in their own country
between persons domiciled in that country, these sentences
were regarded as valid here, and some credit was given to the
fact of the marriage having been celebrated there (Ryan v.
Ryan, 1816, 2 Phill. 332; Argent v. Argent, 1865, 4 Sw. & Tr.
52); but bow far it influenced the learned Judges does not
appear; the main consideration being the circumstance of
domicile. The second proposition has been generally supposed
by writers both in England and America (Story, Wharton) to
have been introduced by Lolley's Case, 1812, Ruse. & Ry. 237,
and followed in Tovey v. Lindsay, 1813, 1 Dow. 117, and
McCarthy v. De Caix, 1831, 2 Cl. & F. 568, and only to have
been abandoned in 1858 (Dicey), or in 1868 in Shaw v. Gould.
But the case of Harvey v. Farnie, 1880-1882, 5 P. D. 153; 6 P.
D. 35, 8 App. C. 48, has now shown that the Contractual theory
had no permanent hold whatever in this country, that it did
not originate with Lolley's Case and was not adopted by Lord
Eldon but that it arose from a mistaken conception of Lord
Brougham as to the point decided in the famous Resolution, and
was never seriously entertained by any other Judge in England,
and we submit this is correct."

_E. H. Monnier,
Law Magazine & Review,
12 ser., volume 17 (London, 1891-2), page 82._

{1981}

COMMON LAW: A. D. 1873.
The Judicature Acts.

"The first Judicature Act was passed in 1873 under the
auspices of Lord Selborne and Lord Cairns. It provided for the
consolidation of all the existing superior Courts into one
Supreme Court, consisting of two primary divisions, a High
Court of Justice and a Court of Appeal. … Law and Equity, it
was provided, were to be administered concurrently by every
division of the Court, in all civil matters, the same relief
being granted upon equitable claims or defences, … as would
have previously been granted in the Court of Chancery; no
proceeding in the Court was to be stayed by injunction
analogous to the old common injunction but the power for any
branch of the Court to stay proceedings before itself was of
course to be retained; and the Court was to determine the
entire controversy in every matter that came before it. By the
25th section of the Act rules upon certain of the points where
differences between Law and Equity had existed, deciding in
favour of the latter, were laid down, and it was enacted
generally that in the case of conflict, the rules of Equity
should prevail."

_D. M. Kerly,
History of Equity,
page 293._

COMMON LAW: A. D. 1882.
Experiments in Codification in England.

"The Bills of Exchange Act 1882 is, I believe, the first code
or codifying enactment which has found its way into the
English Statute Book. By a code, I mean a statement under the
authority of the legislature, and on a systematic plan, of the
whole of the general principles applicable to any given branch
of the law. A code differs from a digest inasmuch as its
language is the language of the legislature, and therefore
authoritative; while the propositions of a digest merely
express what is, in the opinion of an individual author, the
law on any given subject. In other words the words
propositions of a code are law, while the propositions of a
digest may or may not be law."

_M. D. Chalmers,
An Experiment in Codification
(Law Quarterly Review,
volume 2, page 125)._

COMMON LAW: A. D. 1889.
Passage of Block-Indexing Act.

"The history of Land Transfer Reform in the United States is
confined, almost exclusively, to matters which have occurred
in the State of New York during the past ten years, and which
culminated in the passage of the Block-Indexing Act for the
city, of New York of 1889. In January, 1882, a report was made
by a special committee of the Association of the Bar of the
city of New York, which had been appointed to consider and
report what changes, if any, should be made in the manner of
transferring title to land in the city and State. The
committee reported that by reason of the accumulated records
in the offices of the county clerk and register of deeds of
the city, 'searches practically could not be made in those
offices,' and recommended the appointment of a State
commission, which should consider and report a mode of
transferring land free from the difficulties of the present
system. The report was adopted by the association, and during
the same year like recommendations were made by the Chamber of
Commerce and by real estate and other associations of the
city."

_D. H. Olmstead,
13 American Bar Association Report,
pages 269-270._

----------COMMON LAW: End----------

----------CRIMINAL LAW: Start----------

Criminal Law.

CRIMINAL LAW: A. D. 1066-1272.
The Ordinary Criminal Courts.

"In a very few words the history of the ordinary courts is as
follows: Before the Conquest the ordinary criminal court was
the County or Hundred Court, but it was subject to the general
supervision and concurrent jurisdiction of the King's Court.
The Conqueror and his sons did not alter this state of things,
but the supervision of the King's Court and the exercise of
his concurrent jurisdiction were much increased both in
stringency and in frequency, and as time went on narrowed the
jurisdiction and diminished the importance of the local court.
In process of time the King's Court developed itself into the
Court of King's Bench and the Courts of the Justices of
Assize, Oyer and Terminer and Gaol Delivery, or to use the
common expression, the Assize Courts; and the County Court, so
far as its criminal jurisdiction was concerned, lost the
greater part of its importance. These changes took place by
degrees during the reigns which followed the Conquest, and
were complete at the accession of Edward I. In the reign of
Edward III. the Justices of the Peace were instituted, and
they, in course of time, were authorized to hold Courts for
the trial of offenders, which are the Courts of Quarter
Sessions. The County Court, however, still retained a separate
existence, till the beginning of the reign of Edward IV., when
it was virtually, though not absolutely, abolished. A vestige
of its existence is still to be traced in Courts Leet."

_Sir James F. Stephen,
History of the Criminal Law,
volume 1, pages 75-76._

CRIMINAL LAW: A. D. 1166.
Disappearance of Compurgation in Criminal Cases.

"In criminal cases in the king's courts, compurgation is
thought to have disappeared in consequence of what has been
called 'the implied prohibition' of the Assize of Clarendon,
in 1166. But it remained long in the local and ecclesiastical
courts. Palgrave preserves as the latest instances of
compurgation in criminal cases that can be traced, some cases
as late as 1440-1, in the Hundred Court of Winchelsea in
Sussex. They are cases of felony, and the compurgation is with
thirty-six neighbors. They show a mingling of the old and the
new procedure."

_J. B. Thayer,
The Older Modes of Trial
(Harvard Law Review., volume 5, page 59)._

CRIMINAL LAW: A. D. 1166-1215.
Jury in Criminal Cases.

"It seems to have been possible, even before the decree of the
Fourth Lateran Council, in … 1215, to apply the jury to
criminal cases when ever the accused asked for it. … The
Assize of Clarendon, in 1166, with its apparatus of an
accusing jury and a trial by ordeal is thought to have done
away in the king's courts with compurgation as a mode of trial
for crime; and now the Lateran Council, in forbidding
ecclesiastics to take part in trial by ordeal, was deemed to
have forbidden that mode of trial."

_Jas. B. Thayer,
The Jury and its Development
(Harvard Law Review, volume 5, page 265)._

{1982}

CRIMINAL LAW: A. D. 1176 (circa).
"Eyres," and Criminal Jurisdiction.

"It is enough for me to point out that, on the circuits
instituted by Henry II, and commonly distinguished as 'eyres',
by way of pre-eminence, the administration of criminal
justice, was treated, not as a thing by itself, but as one
part, perhaps the most prominent and important part, of the
general administration of the country, which was put to a
considerable extent under the superintendence of the justices
in eyre. Nor is this surprising when we consider that fines,
amercements, and forfeitures of all sorts were items of great
importance in the royal revenue. The rigorous enforcement of
all the proprietary and other profitable rights of the Crown
which the articles of eyre confided to the justices was
naturally associated with their duties as administrators of
the criminal law, in which the king was deeply interested, not
only because it protected the life and property of his
subjects, but also because it contributed to his revenue."

_Sir J. F. Stephen,
History of the Criminal Law of England,
volume 1, page 102._

CRIMINAL LAW: A. D. 1198-1199.
Trial by Ordeal.

"The earliest instance of the ordeal [see ORDEAL] in our
printed judicial records occurs in 1198-9, on an appeal of
death, by a maimed person, where two of the defendants are
adjudged to purge themselves by the hot iron. But within
twenty years or so this mode of trial came to a sudden end in
England, through the powerful agency of the Church,—an event
which was the more remarkable because Henry II., in the Assize
of Clarendon (1166) and again in that of Northampton (1176),
providing a public mode of accusation in the case of the
larger crimes, had fixed the ordeal as the mode of trial. The
old form of trial by oath was no longer recognized in such
cases in the king's courts. It was the stranger, therefore,
that such quick operation should have been allowed in England
to the decree, in November, 1215, of the Fourth Lateran
Council at Rome. That this was recognized and accepted within
about three years (1218-19) by the English crown is shown by
the well-known writs of Henry III., to the judges, dealing
with the puzzling question of what to do for a mode of trial,
'cum prohibitum sit per Ecclesiam Romanam judicium ignis et
aquae.' I find no case of trial by ordeal in our printed
records later than Trinity Term of the 15 John (1213)."

_J. B. Thayer,
The Older Modes of Trial
(Harvard Law Review,
volume 5, pages 64-65)._

CRIMINAL LAW: A. D. 1215.
Two Juries in Criminal Cases.

"The ordeal was strictly a mode of trial. What may clearly
bring this home to one of the present day is the well-known
fact that it gave place, not long after the Assize of
Clarendon, to the petit jury, when Henry III. bowed to the
decree of the fourth Lateran Council (1215) abolishing the
ordeal. It was at this point that our cumbrous, inherited
system of two juries in criminal cases had its origin."

_J. B. Thayer,
Presumptions and the Law of Evidence
(Harvard Law Review,
volume 3, page 159, note)._

CRIMINAL LAW: A. D. 1215.
Had Coroners Common Law Power as to Fires?

"Although Magna Charta took away the power of the Coroner of
holding Pleas of the Crown, that is of trying the more
important crimes, there was nothing to forbid him from
continuing to receive accusations against all offenders. This
he did, and continues to do to the present day, without
challenge, in cases of sudden or unexplained deaths. Nor is it
denied that he has done so and may do so in other matters,
such as in treasure trove, wreck of the sea and deodands. The
difficulty, of course, is to know whether the Coroner was or
was not in the habit of holding inquests on fires. There is no
evidence that he had not the power to do so. On the contrary,
we think the extracts from the ancient writers which we have
before quoted, are on the whole in favour of his having that
power. Before Magna Charta he had the power to try all serious
crimes; arson would unquestionably be one of them. Magna
Charta only took a way his power of trying them, not of making
a preliminary investigation, otherwise an inquest."

_Sherston Baker,
Law Magazine & Review (London, 1886-7),
4th ser., volume 12, page 268._

CRIMINAL LAW: A. D. 1272-1875.
King's Bench.
The Supreme Criminal Court.

"From the reign of Edward I, to the year 1875 it [the Court of
King's Bench] continued to be the Supreme Criminal Court of
the Realm, with no alterations in its powers or constitution
of sufficient importance to be mentioned except that during
the Commonwealth it was called the Upper Bench."

_Sir J. F. Stephen,
History of Criminal Law of England,
volume 1, page 94._

CRIMINAL LAW: A. D. 1276.
Coroner's Jury.

"The earliest instance that occurs of any sort of preliminary
inquiry into crimes with a view to subsequent proceedings is
the case of the coroner's inquest. Coroners, according to Mr.
Stubbs, originated in the year 1194, but the first authority
of importance about their duties is to be found in Bracton. He
gives an account of their duties so full as to imply that in
his day their office was comparatively modern. The Statute de
Officio Coronatoris (4 Edward I., st. 2, A. D. 1276) is almost
a transcript of the passage in Bracton. It gives the coroner's
duty very fully, and is, to this day, the foundation of the
law on the subject."

_Sir J. F. Stephen,
History of the Criminal Law of England,
volume 1, page 217._

ALSO IN:
_W. Forsyth,
Trial by Jury,
page 187._

CRIMINAL LAW: A. D. 1285.
Courts of Oyer and Terminer.

"The first express mention of them with which I am acquainted
is in the statute 13 Edw. I., c. 29 (A. D. 1285), which taken
in connection with some subsequent authorities throws
considerable light on their nature. They were either general
or special. General when they were issued to commissioners
whose duty it was to hear and determine all matters of a
criminal nature within certain local limits, special when the
commission was confined to particular cases. Such special
commissions were frequently granted at the prayer of
particular individuals. They differed from commissions of gaol
delivery principally in the circumstance that the commission
of Oyer and Terminer was 'ad inquirendum, audiendum, et
terminandum,' whereas that of gaol delivery is 'ad gaolam
nostram castri nostri de C. de prisonibus in ea existentibus
hac vice deliberandum,' the interpretation put upon which was
that justices of Oyer and Terminer could proceed only upon
indictments taken before themselves, whereas justices of gaol
delivery had to try everyone found in the prison which they
were to deliver. On the other hand, a prisoner on bail could
not be tried before a justice of gaol delivery, because he
would not be in the gaol, whereas if he appeared before
justices of Oyer and Terminer he might be both indicted and
tried."

_Sir J. F. Stephen,
History of the Criminal Law of England,
volume 1, page 106._

{1983}

CRIMINAL LAW: A. D. 1305.
Challenging Jury for Cause.

"The prisoner was allowed to challenge peremptorily, i. e.
without showing cause, any number of jurors less than
thirty-five, or three whole juries. When or why he acquired
this right it is difficult to say. Neither Bracton nor Britton
mention it, and it is hard to reconcile it with the fact that
the jurors were witnesses. A man who might challenge
peremptorily thirty-five witnesses could always secure
impunity. It probably arose at a period when the separation
between the duties of the jury and the witnesses was coming to
be recognized. The earliest statute on the subject, 33 Edw. I,
st. 4 (A. D. 1305), enacts 'that from henceforth,
notwithstanding it be alleged by them that sue for the king
that the jurors of those inquests, or some of them, be not
indifferent for the king, yet such inquests shall not remain
untaken for that cause, but if they that sue for the king will
challenge any of those jurors, they shall assign of the
challenge a cause certain.'"

_Sir J. F. Stephen,
History of the Criminal Law of England,
volume 1, pages 301-302._

CRIMINAL LAW: A. D. 1344.
Justices of the Peace.

"In 1344 (18 Edw. Ill, st. 2, c. 2) it was enacted that 'two
or three of the best of reputation in the counties shall be
assigned keepers of the peace by the King's Commission, … to
hear and determine felonies and trespasses done against the
peace in the same counties, and to inflict punishment
reasonably.' This was the first act by which the Conservators
of the Peace obtained judicial power."

_Sir J. F. Stephen,
History of the Criminal Law of England,
volume 1, page 113._

CRIMINAL LAW: A. D. 1506.
Insanity as a Defence.

The earliest adjudication upon the legal responsibility of an
insane person occurred in the Year Book of the 21 Henry VII.

_American Law Review,
volume 15, page 717._

CRIMINAL LAW: A. D. 1547.
Two Lawful Witnesses required to Convict.

"In all cases of treason and misprision of treason,—by
statutes l Edw. VI. c. 12; 5 & 6 Edw. VI. c. 11, and 7 & 8
Will. III. c. 3,—two lawful witnesses are required to convict
a prisoner; unless he shall willingly and without violence
confess the same. And, by the last-mentioned statute, it is
declared, that both of such witnesses must be to the same
overt act of treason; or one to one overt act, and the other
to another overt act of the same species of treason, and not
of distinct heads or kinds: and that no evidence shall be
admitted to prove any overt act, not expressly laid in the
indictment."

_Sir J. F. Stephen,
Commentaries,
volume 4, page 425 (8th edition)._

CRIMINAL LAW: A. D. 1592.
Criminal Trials under Elizabeth.

"In prosecutions by the State, every barrier which the law has
ever attempted to erect for the protection of innocence was
ruthlessly cast down. Men were arrested without the order of a
magistrate, on the mere warrant of a secretary of state or
privy councillor, and thrown into prison at the pleasure of
the minister. In confinement they were subjected to torture,
for the rack rarely stood idle while Elizabeth was on the
throne. If brought to trial, they were denied the aid of a
counsel and the evidence of witnesses in their behalf. Nor
were they confronted with the witnesses against them, but
written depositions, taken out of court and in the absence of
the prisoner, were read to the jury, or rather such portions
of them as the prosecution considered advantageous to its
side. On the bench sat a judge holding office at the pleasure
of the crown, and in the jury-box twelve men, picked out by
the sheriff, who themselves were punished if they gave a
verdict of acquittal."

_D. Campbell,
The Puritan in Holland, England and America,
volume 1, page 367._

CRIMINAL LAW: A. D. 1600 (circa).
Capital Punishment.