Chapter IV: , VII (152)

_(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.

"Sir James Fitz James Stephen, in his _History of Criminal
Law_, estimates that at the end of the sixteenth century
there were about 800 executions per year in England (volume 1,
468). Another sentence in vogue in England before that time
was to be hanged, to have the bowels burned, and to be
quartered. Beccaria describes the scene where 'amid clouds of
writhing smoke the groans of human victims, the crackling of
their bones, and the flying of their still panting bowels were
a pleasing spectacle and agreeable harmony to the frantic
multitude.' (chapter 39.) As late as the reign of Elizabeth,
… the sentence of death in England was to be hung, drawn and
quartered. Campian, the Jesuit, was tortured before trial
until his limbs were dislocated on the rack, and was carried
helpless into Westminster Hall for trial before the Chief
Justice of England, unable to raise an arm in order to plead
not guilty. He was sentenced to be hung, drawn and quartered,
which meant legally, that upon being hung he was to be cut
down while yet living, and dragged at the tail of a horse, and
then before death should release him, to be hewn in pieces,
which were to be sent dispersed to the places where the
offense was committed or known, to be exhibited in attestation
of the punishment, the head being displayed in the most
important place, as the chief object of interest. In the
process of hanging, drawing and quartering, Froude says that
due precautions were taken to prolong the agony. Campian's
case is specially interesting, as showing the intervention of
a more humane spirit to mitigate the barbarity of the law. As
they were about to cut him down alive from the gibbet, the
voice of some one in authority cried out: Hold, till the man
is dead.' This innovation was the precursor of the change in
the law so as to require the sentence to be that he be hanged
by the neck until he is dead. It is not generally known that
the words 'until he is dead' are words of mercy inserted to
protect the victim from the torture and mutilation which the
public had gathered to enjoy."

_Austin Abbott,
Address before New York Society of Medicine Journal
(The Advocate, Minn., 1889, volume 1, page 71)._

CRIMINAL LAW: A. D. 1641-1662.
No Man shall be compelled to Criminate himself.

"What … is the history of this rule? … Briefly, these
things appear: 1st. That it is not a common law rule at all,
but is wholly statutory in its authority. 2d. That the object
of the rule, until a comparatively late period of its
existence, was not to protect from answers in the king's court
of justice, but to prevent a usurpation of jurisdiction on
the part of the Court Christian (or ecclesiastical tribunals).
3d. That even as thus enforced the rule was but partial and
limited in its application. 4th. That by gradual perversion of
function the rule assumed its present form, but not earlier
than the latter half of the seventeenth century. … But
nothing can be clearer than that it was a statutory rule. …
{1984}
The first of these were 16 Car. I., c. 2 (1641) and provided
that no one should impose any penalty in ecclesiastical
matters, nor should 'tender … to any … person whatsoever
any corporal oath whereby he shall be obliged to confess or
accuse himself of any crime or any … thing whereby he shall
be exposed to any censure or penalty whatever.' This probably
applied to ecclesiastical courts alone. The second (13 Car.
II., c. 12, 1662) is more general, providing that 'no one
shall administer to any person whatsoever the oath usually
called ex officio, or any other oath, whereby such persons may
be charged or compelled to confess any criminal matter.' …
The Statute of 13 Car. II. is cited in Scurr's Case, but
otherwise neither of them seems to have been mentioned; nor do
the text-books, as a rule, take any notice of them.
Henceforward, however, no question arises in the courts as to
the validity of the privilege against self-crimination, and
the statutory exemption is recognized as applying in
common-law courts us well as in others. … This maxim, or
rather the abuse of it in the ecclesiastical courts, helps in
part to explain the shape which the general privilege now has
taken. … We notice that most of the church's religious
investigations, … were conducted by means of commissions or
inquisitions, not by ordinary trials upon proper presentment;
and thus the very rule of the canon law itself was continually
broken, and persons unsuspected and unbetrayed 'per famam'
were compelled, 'seipsum prodere,' to become their own
accusers. This, for a time, was the burden of the complaint.
… Furthermore, in rebelling against this abuse of the
canon-law rule, men were obliged to formulate their reasons
for objecting to answer the articles of inquisitions. … They
professed to be willing to answer ordinary questions, but not
to betray themselves to disgrace and ruin, especially as where
the crimes charged were, as a rule, religious offences and not
those which men generally regard as offences against social
order. In this way the rule began to be formulated and
limited, as applying to the disclosure of forfeitures and
penal offences. In the course of the struggle the aid of the
civil courts was invoked, … and towards the end of the
seventeenth century, … it found a lodgement in the practice
of the Exchequer, of Chancery, and of the other courts. There
had never been in the civil courts any complaint based on the
same lines, or any demand for such a privilege. … But the
momentum of this right, wrested from the ecclesiastical courts
after a century of continual struggle, fairly carried it over
and fixed it firmly in the common-law practice also."

_John H. Wigmore,
Nemo Tenetur seipsum Prodere
(Harvard Law Review,
volume 5, pages 71-88)._

CRIMINAL LAW: A. D. 1660-1820.
187 Capital Offenses added to Criminal Code in England.

"From the Restoration to the death of George III.,—a period
of 160 years,—no less than 187 capital offenses were added to
the criminal code. The legislature was able, every year, to
discover more than one heinous crime deserving of death. In
the reign of George II. thirty-three Acts were passed creating
capital offenses; in the first fifty years of George III., no
less than sixty-three. In such a multiplication of offenses
all principle was ignored; offenses wholly different in
character and degree were confounded in the indiscriminating
penalty of death. Whenever an offense was found to be
increasing, some busy senator called for new rigor, until
murder became in the eye of the law no greater crime than
picking a pocket, purloining a ribbon from a shop, or
pilfering a pewter-pot. Such law-makers were as ignorant as
they were cruel. … Dr. Johnson,—no squeamish
moralist,—exposed them; Sir W. Blackstone, in whom admiration
of our jurisprudence was almost a foible, denounced them.
Beccaria, Montesquieu, and Bentham demonstrated that certainty
of punishment was more effectual in the repression of crime,
than severity; but law-givers were still inexorable."

_T. E. May,
Constitutional History of England
(Widdleton's edition),
volume 2, pages 553-554._

CRIMINAL LAW: A. D. 1695.
Counsel allowed to Persons indicted for High Treason.

"Holland, following the early example of Spain, always
permitted a prisoner the services of a counsel; and if he was
too poor to defray the cost, one was furnished at the public
charge. In England, until after the fall of the Stuarts, this
right, except for the purposes of arguing mere questions of
law, was denied to every one placed on trial for his life. In
1695, it was finally accorded to persons indicted for high
treason. Even then it is doubtful, says Lord Campbell, whether
a bill for this purpose would have passed if Lord Ashley,
afterwards Earl of Shaftesbury and author of the
'Characteristics,' had not broken down while delivering in the
House of Commons a set speech upon it, and, being called upon
to go on, had not electrified the House by observing: 'If I,
sir, who rise only to give my opinion upon a bill now pending,
in the fate of which I have no personal interest, am so
confounded that I am unable to express the least of what I
propose to say, what must the condition of that man be, who,
without any assistance, is called to plead for his life, his
honor, and for his posterity?'"

_D. Campbell,
The Puritan in Holland, England and America,
volume 2, page 446._

CRIMINAL LAW: A. D. 1708.
Torture.

The fact that judicial torture, though not a common law power
of the courts, was used in England by command of Mary,
Elizabeth, James I and Charles I, is familiar to all. It was
sanctioned by Lord Coke and Lord Bacon, and Coke himself
conducted examinations by it. It was first made illegal in
Scotland in 1708; in Bavaria and Wurtemburg in 1806; in Baden
in 1831.

_Austin Abbott,
Address before New York Society of Medicine Journal,
(The Advocate, Minn., 1889, volume 1, page 71)._

CRIMINAL LAW: A. D. 1725.
Knowledge of Right and Wrong the test of Responsibility.

The case of Edward Arnold, in 1725, who was indicted for
shooting at Lord Onslow, seems to be the earliest case in
which the knowledge of right and wrong becomes the test of
responsibility.

_American Law Review,
volume 15, pages 720-722._

CRIMINAL LAW: A. D. 1770.
Criminal Law of Libel.

"In this case [Case of the North Briton Junius' Letter to the
King, tried before Lord Mansfield and a special jury on the
2nd June 1770] two doctrines were maintained which excepted
libels from the general principles of the Criminal
Law—firstly, that a publisher was criminally responsible for
the acts of his servants, unless he was proved to be neither
privy nor to have assented to the publication of a libel;
secondly, that it was the province of the Court alone to judge
of the criminality of the publication complained of. The first
rule was rigidly observed in the Courts until the passing of
Lord Campbell's Libel Act in 1843 (6 and 7 Vict., c. 96). The
second prevailed only until 1792, when Fox's Libel Act (32
Geo. III, c. 60) declared it to be contrary to the Law of
England. …
{1985}
A century's experience has proved that the law, as declared by
the Legislature in 1792, has worked well, falsifying the
forebodings of the Judges of the period, who predicted 'the
confusion and destruction of the Law of England' as the result
of a change which they regarded as the subversion of a
fundamental and important principle of English Jurisprudence.
Fox's Libel Act did not complete the emancipation of the
Press. Liberty of discussion continued to be restrained by
merciless persecution. The case of Sir Francis Burdett, in
1820, deserves notice. Sir Francis had written, on the subject
of the 'Peterloo Massacre' in Manchester, a letter which was
published in a London newspaper. He was fined £2,000 and
sentenced to imprisonment for three months. The proceedings on
a motion for a new trial are of importance because of the
Judicial interpretation of the Libel Act of 1792. The view was
then stated by Best, J. (afterwards Lord Wynford), and was
adopted unanimously by the Court, that the statute of George
III. had not made the question of libel one of fact. If it
had, instead of removing an anomaly, it would have created
one. Libel, said Best, J., is a question of law, and the judge
is the judge of the law in libel as in all other cases, the
jury having the power of acting agreeably to his statement of
the law or not. All that the statute does is to prevent the
question from being left to the jury in the narrow way in
which it was left before that time. The jury were then only to
find the fact of the publication and the truth of the
innuendoes, for the judges used to tell them that the intent
was an inference of law to be drawn from the paper, with which
the jury had nothing to do. The legislature have said that
this is not so, but that the whole case is for the jury (4 B.
and A. 95). The law relating to Political Libel has not been
developed or altered in any way since the case of R. v.
Burdett. If it should ever be revived, which does not at
present appear probable, it will be found, says Sir James
Stephen, to have been insensibly modified by the law as to
defamatory libels on private persons, which has been the
subject of a great number of highly important judicial
decisions. The effect of these is, amongst other things, to
give a right to everyone to criticise fairly—that is,
honestly, even if mistakenly—the public conduct of public
men, and to comment honestly, even if mistakenly, upon the
proceedings of Parliament and the Courts of Justice. (History
of the Criminal Law, II., 376.) The unsuccessful prosecution
of Cobbett for an article in the 'Political Register,' in
1831, nearly brought to a close the long series of contests
between the Executive and the Press. From the period of the
Reform Act of 1832, the utmost latitude has been permitted to
public writings, and Press prosecutions for political libels,
like the Censorship, have lapsed."

_J. W. Ross Brown,
Law Magazine & Review,
4th ser., volume 17, page 197._

CRIMINAL LAW: A. D. 1791.
Criminals allowed Counsel.

"When the American States adopted their first constitutions,
five of them contained a provision that every person accused
of crime was to be allowed counsel for his defence. The same
right was, in 1791, granted for all America in the first
amendments to the Constitution of the United States. This
would seem to be an elementary principle of justice, but it
was not adopted in England until nearly half a century later,
and then only after a bitter struggle."

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

CRIMINAL LAW: A. D. 1818.
Last Trial by Battle.

"The last appeal of murder brought in England was the case of
Ashford v. Thornton in 1818. In that case, after Thornton had
been tried and acquitted of the murder of Mary Ashford at the
Warwick Assizes her brother charged him in the court of king's
bench with her murder, according to the forms of the ancient
procedure. The court admitted the legality of the proceedings,
and recognized the appellee's right to wage his body; but as
the appellant was not prepared to fight, the case ended upon a
plea of autrefois acquit interposed by Thornton when arraigned
on the appeal. This proceeding led to the statute of 59 Geo.
III., c. 46, by which all appeals in criminal cases were
finally abolished."

_Hannis Taylor,
Origin and Growth of the English Constitution,
part 1, page 311._

See, also, WAGER OF BATTLE.

CRIMINAL LAW: A. D: 1819.
Severity of the former Criminal Law of England.

"Sir James Mackintosh in 1819, in moving in Parliament for a
committee to inquire into the conditions of the criminal law,
stated that there were then 'two hundred capital felonies on
the statute book.' Undoubtedly this apparent severity, for the
reasons stated by Sir James Stephen, is greater than the real
severity, since many of the offenses made capital were of
infrequent occurrence; and juries, moreover, often refused to
convict, and persons capitally convicted for offenses of minor
degrees of guilt were usually pardoned on condition of
transportation to the American and afterwards to the
Australian colonies. But this learned author admits that,
'after making all deductions on these grounds there can be no
doubt that the legislation of the eighteenth century in
criminal matters was severe to the highest degree, and
destitute of any sort of principle or system.'"

_J. F. Dillon,
Laws and Jurisprudence of England and America,
page 366._

CRIMINAL LAW: A. D. 1825.
"Ticket-of-leave" system established.

"The 'ticket-of-leave' system [was] established under the
English laws of penal servitude. It originated under the
authority of the governors of the penal colonies, and was the
first sanctioned by Parliament, so far as the committee are
aware, by an Act 5 Geo. IV., chapter 34. Subsequently, when
transportation for crime was abolished by the Acts 16, 17
Vict., chapter 99 (A. D. 1853) and 20, 21 Vict., chapter 3,
and system of home prisons established, the 'license' or
ticket-of-leave system was adopted by Parliament, in those
acts, as a method of rewarding convicts for good conduct
during imprisonment. By further acts passed in 1864, 1871 and
1879, the system has been brought gradually into its present
efficacy."

_Report of Committee on Judicial Administration,
and Remedial Procedure
(9 American Bar Association Report, 317)._

{1986}

CRIMINAL LAW: A. D. 1832-1860.
Revision of Criminal Code in England.

"With the reform period commenced a new era in criminal
legislation. Ministers and law officers now vied with
philanthropists, in undoing the unhallowed work of many
generations. In 1832, Lord Auckland, Master of the Mint,
secured the abolition of capital punishment for offences
connected with coinage; Mr. Attorney-general Denman exempted
forgery from the same penalty in all but two cases, to which
the Lords would not assent; and Mr. Ewart obtained the like
remission for sheep-stealing, and other similar offences. In
1833, the Criminal Law Commission was appointed, to revise the
entire code. … The commissioners recommended numerous other
remissions, which were promptly carried into effect by Lord
John Russell in 1837. Even these remissions, however, fell
short of public opinion, which found expression in an
amendment of Mr. Ewart, for limiting the punishment of death
to the single crime of murder. This proposal was then lost by
a majority of one; but has since, by successive measures, been
accepted by the legislature;—murder alone, and the
exceptional crime of treason, having been reserved for the
last penalty of the law. Great indeed, and rapid, was this
reformation of the criminal code. It was computed that, from
1810 to 1845, upwards of 1,400 persons had suffered death for
crimes, which had since ceased to be capital."

_T. E. May,
Constitutional History of England
(Widdleton's edition),
volume 2, pages 557-558._

CRIMINAL LAW: A. D. 1843.
Lord Campbell's Libel Act, and Publisher's Liability.

"In the 'Morning Advertiser' of the 19th of December, 1769,
appeared Junius's celebrated letter to the king. Inflammatory
and seditious, it could not be overlooked; and as the author
was unknown, informations were immediately filed against the
printers and publishers of the letter. But before they were
brought to trial, Almon, the bookseller, was tried for selling
the 'London Museum,' in which the libel was reprinted. His
connection with the publication proved to be so slight that he
escaped with a nominal punishment. Two doctrines, however,
were maintained in this case, which excepted libels from the
general principles of the criminal law. By the first, a
publisher was held criminally answerable for the acts of his
servants, unless proved to be neither privy nor assenting to
the publication of a libel. So long as exculpatory evidence
was admitted, this doctrine was defensible; but judges
afterwards refused to admit such evidence, holding that the
publication of a libel by a publisher's servant was proof of
his criminality. And this monstrous rule of law prevailed
until 1843, when it was condemned by Lord Campbell's Libel
Act."

_T. E. May,
Constitutional History of England
(Widdleton's edition),
volume 2, pages 113-114._

"And be it enacted, that whensoever, upon the trial of any
indictment or information for the publication of a libel,
under the plea of not guilty, evidence shall have been given
which shall establish a presumptive case of publication
against the defendant by the act of any other person by his
authority, it shall be competent to such defendant to prove
that such publication was made without his authority, consent,
or knowledge, and that the said publication did not arise from
want of due care or caution on his part."

_Statute 6 & 7 Vic., c. 96, s. 7._

CRIMINAL LAW: A. D. 1848.
The English Court of Criminal Appeal.

"England has not yet got her court of Criminal Appeal,
although the Council of Judges, in their belated scheme of
legal reform, recommend the legislature to create one.
Questions whether an action should be dismissed as 'frivolous
or vexatious,' disputes about' security for costs,' and the
'sufficiency of interrogatories' or 'particulars,' and all
manner of trivial causes affecting property or status, are
deemed by the law of England sufficiently important to entitle
the parties to them, if dissatisfied with the finding of a
court of first instance, to submit it to the touchstone of an
appeal. But the lives and liberties of British subjects
charged with the commission of criminal offences are in
general disposed of irrevocably by the verdict of a jury,
guided by the directions of a trial judge. To this rule,
however, there are two leading exceptions. In the first place,
any convicted prisoner may petition the sovereign for a
pardon, or for the commutation of his sentence; and the royal
prerogative of mercy is exercised through, and on the advice
of the Secretary of State for the Home Department. In the
second place, the English machine juridical notwithstanding
its lack of a properly constituted Court of Criminal Appeal,
is furnished with a kind of 'mechanical equivalent' therefor,
in the 'Court for Crown Cases Reserved,' which was established
by act of Parliament in 1848 (11 & 12 Vict. c. 78)."

_The English Court of Criminal Appeal
(The Green Bag, volume 5, page 345)._

CRIMINAL LAW: A. D. 1854.
Conflict between United States Constitution and a Treaty.

"About 1854, M. Dillon, French consul at San Francisco,
refused to appear and testify in a criminal case. The
Constitution of the United States (Amendment VI.), in criminal
cases grants accused persons compulsory process for obtaining
witnesses, while our treaties of 1853, with France (Art. II.)
says that consuls 'shall never be compelled to appear as
witnesses before the courts.' Thus there was a conflict
between the Constitution and the treaty, and it was held that
the treaty was void. After a long correspondence the French
Consuls were directed to obey a subpoena in future."

_Theodore D. Woolsey,
Introduction to the Study of International Law
[6th edition],
page 157, note._

CRIMINAL LAW: A. D. 1877.
"Indeterminate Sentences."

"This practice, so far as the committee can ascertain, has
been adopted in the states of New York and Ohio only. … The
Ohio statute has been taken mainly from that which was adopted
in New York, April 12, 1877."

_Report of Committee on Judicial Administrations, and
Remedial Procedure
(9 American Bar Association Report, page 313)._

CRIMINAL LAW: A. D. 1893.
Criminal Jurisdiction of Federal Courts.

"The Supreme Court of the United States, in United States v.
Rodgers, … 150 U. S., … in declaring that the term 'high
seas' in the criminal law of the United States is applicable
as well to the open waters of the great lakes as to the open
waters of the ocean, may be said, in a just sense, not to have
changed the law, but to have asserted the law to be in force
upon a vast domain over which its jurisdiction was heretofore
in doubt. The opinion of Justice Field will take its place in
our jurisprudence in company with the great cases of the
Genesee Chief, 12 How. (U. S.), 443, and its successors, and
with them marks the self adapting capacity of the judicial
power to meet the great exigencies of justice and good
government."

_University Law Review,
volume 1, page 2._

----------CRIMINAL LAW: End----------

----------ECCLESIASTICAL LAW: Start--------

{1987}

ECCLESIASTICAL LAW: A. D. 449-1066.
No distinction between Lay and Ecclesiastical Jurisdiction.

"In the time of our Saxon ancestors, there was no sort of
distinction between the lay and the ecclesiastical
jurisdiction: the county court was as much a spiritual as a
temporal tribunal; the rights of the church were ascertained
and asserted at the same time, and by the same judges, as the
rights of the laity. For this purpose the bishop of the
diocese, and the alderman, or, in his absence, the sheriff of
the county, used to sit together in the county court, and had
there the cognizance of all causes, as well ecclesiastical as
civil: a superior deference being paid to the bishop's opinion
in spiritual matters, and to that of the lay judges in temporal.

_W. Blackstone,
Commentaries,
book 3, page 61._

ECCLESIASTICAL LAW: A. D. 1066-1087.
Separation of Ecclesiastical from Civil Courts.