For the text of the Habeas Corpus Act of 1679

See ENGLAND: A. D. 1679 (MAY).

A. D. 1683-1771.

Subsequent Birth of a Child revokes a Will.

"The first case that recognized the rule that the subsequent

birth of a child was a revocation of a will of personal

property, was decided by the court of delegates, upon appeal,

in the reign of Charles II.; and it was grounded upon the law

of the civilians [Overbury v. Overbury, 2 Show Rep., 253]. …

The rule was applied in chancery to a devise of real estate,

in Brown v. Thompson [I Ld. Raym. 441]; but it was received

with doubt by Lord Hardwicke and Lord Northington. The

distinction between a will of real and personal estate could

not well be supported; and Lord Mansfield declared, that he

saw no ground for a distinction. The great point was finally

and solemnly settled, in 1771, by the court of exchequer, in

Christopher v. Christopher [Dicken's Rep. 445], that marriage

and a child, were a revocation of a will of land."

_J. Kent,

Commentaries,

part 6, lecture 68._

{1971}

COMMON LAW: A. D. 1688.

Dividing Line between Old and New Law.

The dividing line between the ancient and the modern English

reports may, for the sake of convenient arrangement, be placed

at the revolution in the year 1688. "The distinction between

the old and new law seems then to be more distinctly marked.

The cumbersome and oppressive appendages of the feudal tenures

were abolished in the reign of Charles II., and the spirit of

modern improvement, … began then to be more sensibly felt,

and more actively diffused. The appointment of that great and

honest lawyer, Lord Holt, to the station of chief justice of

the King's Bench, gave a new tone and impulse to the vigour of

the common law."

_J. Kent,

Commentaries,

part 3, lecture 21._

COMMON LAW: A. D. 1689.

First instance of an Action sustained for Damages for a Breach

of Promise to Account.

"It is worthy of observation that while the obligation to

account is created by law, yet the privity without which such

an obligation cannot exist is, as a rule, created by the

parties to the obligation. … Such then being the facts from

which the law will raise an obligation to account, the next

question is, How can such an obligation be enforced, or, what

is the remedy upon such an obligation? It is obvious that the

only adequate remedy is specific performance, or at least

specific reparation. An action on the case to recover damages

for a breach of the obligation, even if such an action would

lie, would be clearly inadequate, as it would involve the

necessity of investigating all the items of the account for

the purpose of ascertaining the amount of the damages, and

that a jury is not competent to do. In truth, however, such an

action will not lie. If, indeed, there be an actual promise to

account, either an express or implied in fact, an action will

lie for the breach of that promise; but as such a promise is

entirely collateral to the obligation to account, and as

therefore a recovery on the promise would be no bar to an

action on the obligation, it would seem that nominal damages

only could be recovered in an action on the promise, or at the

most only such special damages as the plaintiff had suffered

by the breach of the promise. Besides the first instance in

which an action on such a promise was sustained was as late as

the time of Lord Holt [Wilkyns v. Wilkyns, Carth. 89], while

the obligation to account has existed and been recognized from

early times."

_C. C. Langdell,

A Brief Survey of Equity Jurisdiction

(Harvard Law Review,

volume 2, pages 250-251)._

COMMON LAW: A. D. 1689-1710.

Lord Holt and the Law of Bailments.

"The most celebrated case which he decided in this department

was that of Coggs v. Bernard, in which the question arose,

'whether, if a person promises without reward to take care of

goods, he is answerable if they are lost or damaged by his

negligence?' In a short compass he expounded with admirable

clearness and accuracy the whole law of bailment, or the

liability of the person to whom goods are delivered for

different purposes on behalf of the owner; availing himself of

his knowledge of the Roman civil Jaw, of which most English

lawyers were as ignorant as of the Institutes of Menu. … He

then elaborately goes over the six sorts of bailment, showing

the exact degree of care required on the part of the bailee in

each, with the corresponding degree of negligence, which will

give a right of action to the bailor. In the last he shows

that, in consideration of the trust, there is an implied

promise to take ordinary care; so that, although there be no

reward, for a loss arising from gross negligence the bailee is

liable to the bailor for the value of the goods. Sir William

Jones is contented that his own masterly 'Essay on the Law of

Bailment' shall be considered merely as a commentary upon this

judgment; and Professor Story, in his 'Commentaries on the Law

of Bailments,' represents it as 'a prodigious effort to

arrange the principles by which the subject is regulated in a

scientific order.'"

_Lord Campbell,

Lives of the Chief Justices,

volume 2, pages 113-114._

COMMON LAW: A. D. 1703.

Implied Promises recognized.

"The value of the discovery of the implied promise in fact was

exemplified … in the case of a parol submission to an award.

If the arbitrators awarded the payment of a sum of money, the

money was recoverable in debt, since an award, after the

analogy of a judgment, created a debt. But if the award was

for the performance of a collateral act, … there was,

originally, no mode of compelling compliance with the award,

unless the parties expressly promised to abide by the decision

of the arbitrators. Tilford v. French (1663) is a case in

point. So, also, seven years later, 'it was said by Twisden,

J., [Anon., 1 Vent. 69], that if two submit to an award, this

contains not a reciprocal promise to perform; but there must

be an express promise to ground an action upon it.' This

doctrine was abandoned by the time of Lord Holt, who, …

said: 'But the contrary has been held since; for if two men

submit to the award of a third person, they do also thereby

promise expressly to abide by his determination, for agreeing

to refer is a promise in itself.'"

_J. B. Ames,

History of Assumpsit

(Harvard Law Review,

volume 2, page 62)._

COMMON LAW: A. D. 1706.

Dilatory Pleas.

"Pleas to the jurisdiction, to the disability, or in

abatement, were formerly very often used as mere dilatory

pleas, without any foundation of truth, and calculated only

for delay; but now by statute 4 and 5 Ann., c. 16, no dilatory

plea is to be admitted, without affidavit made of the truth

thereof, or some probable matter shown to the court to induce

them to believe it true."

_W. Blackstone,

Commentaries,

book 3, page 302._

COMMON LAW: A. D. 1710.

Joint Stock Companies: Bubble Act.

"The most complicated, as well as the most modern, branch of

the law of artificial persons relates to those which are

formed for purposes of trade. They are a natural accompaniment

of the extension of commerce. An ordinary partnership lacks

the coherence which is required for great undertakings. Its

partners may withdraw from it, taking their capital with them,

and the 'firm' having as such no legal recognition, a contract

made with it could be sued upon, according to the common law

of England, only in an action in which the whole list of

partners were made plaintiffs or defendants. In order to

remedy the first of these inconveniences, partnerships were

formed upon the principle of a joint-stock, the capital

invested in which must remain at a fixed amount, although the

shares into which it is divided may pass from hand to hand.

This device did not however obviate the difficulty in suing,

nor did it relieve the partners, past and present, from

liability for debts in excess of their, past or present,

shares in the concern.

{1972}

In the interest not only of the share-partners, but also of

the public with which they had dealings, it was desirable to

discourage the formation of such associations; and the

formation of joint-stock partnerships, except such as were

incorporated by royal charter, was accordingly, for a time,

prohibited in England by the 'Bubble Act,' 6 Geo. I, c. 18. An

incorporated trading company, in accordance with the ordinary

principles regulating artificial persons, consists of a

definite amount of capital to which alone creditors of the

company can look for the satisfaction of their demands,

divided into shares held by a number of individuals who,

though they participate in the profits of the concern, in

proportion to the number of shares held by each, incur no

personal liability in respect of its losses. An artificial

person of this sort is now recognized under most systems of

law. It can be formed, as a rule, only with the consent of the

sovereign power, and is described as a 'societe,' or

'compagnie,' 'anonyme,' an 'Actiengesellschaft,' or

'joint-stock company limited.' A less pure form of such a

corporation is a company the shareholders in which incur an

unlimited personal liability. There is also a form resembling

a partnership 'en commandite,' in which the liability of some

of the shareholders is limited by their shares, while that of

others is unlimited. Subject to some exceptions, any seven

partners in a trading concern may, and partners whose number

exceeds twenty must, according to English law, become

incorporated by registration under the Companies Acts, with

either limited or unlimited liability as they may determine at

the time of incorporation."

_Thomas Erskine Holland,

Elements of Jurisprudence, 5th edition,

page 298._

COMMON LAW: A. D. 1711.

Voluntary Restraint of Trade.

"The judicial construction of Magna Charta is illustrated in

the great case of Mitchell v. Reynolds (1 P. W., 181), still

the leading authority upon the doctrine of voluntary restraint

of trade, though decided in 1711, when modern mercantile law

was in its infancy. The Court (Chief Justice Parker),

distinguishing between voluntary and involuntary restraints of

trade, says as to involuntary restraints: 'The first reason

why such of these, as are created by grant and charter from

the crown and by-laws generally are void, is drawn from the

encouragement which the law gives to trade and honest

industry, and that they are contrary to the liberty of the

subject. Second, another reason is drawn from Magna Charta,

which is infringed by these acts of power. That statute says:

Nullus liber homo, etc., disseizetur de libero tenemento, vel

libertatibus vel liberis consuetudinibus suis, etc.; and these

words have been always taken to extend to freedom of trade.'"

_Frederick N. Judson,

14 American Bar Association Report,

page 236._

COMMON LAW: A. D. 1730.

Special Juries.

"The first statutory recognition of their existence occurs so

late as in the Act 3 Geo. II., ch. 25. But the principle seems

to have been admitted in early times. We find in the year 1450

(29 Hen. VI.) a petition for a special jury. … The statute

of George II. speaks of special juries as already well known,

and it declares and enacts that the courts at Westminster

shall, upon motion made by any plaintiff, prosecutor, or

defendant, order and appoint a jury to be struck before the

proper officer of the court where the cause is depending, 'in

such manner as special juries have been and are usually struck

in such courts respectively upon trials at bar had in the said

courts.'"

_W. Forsyth,

Trial by Jury,

pages 143-144._

COMMON LAW: A. D. 1730.

Written Pleadings to be in English.

"There was one great improvement in law proceedings which,

while he [Lord King] held the Great Seal, he at last

accomplished. From very ancient times the written pleadings,

both in criminal and civil suits, were, or rather professed to

be, in the Latin tongue, and while the jargon employed would

have been very perplexing to a Roman of the Augustan Age, it

was wholly unintelligible to the persons whose life, property,

and fame were at stake. This absurdity had been corrected in

the time of the Commonwealth, but along with many others so

corrected, had been reintroduced at the Restoration, and had

prevailed during five succeeding reigns. The attention of the

public was now attracted to it by a petition from the

magistracy of the North Riding of the county of York,

representing the evils of the old law language being retained

in legal process and proceedings, and praying for the

substitution of the native tongue. The bill, by the

Chancellor's direction, was introduced in the House of

Commons, and it passed there without much difficulty. In the

Lords it was fully explained and ably supported by the Lord

Chancellor, but it experienced considerable opposition. …

Amidst heavy forebodings of future mischief the bill passed,

and mankind are now astonished that so obvious a reform should

have been so long deferred."

_Lord Campbell,

Lives of the Chancellors,

volume 4, page 504._

COMMON LAW: A. D. 1739-1744.

Oath according to one's Religion.

"Lord Hardwick established the rule that persons, though not

Christians, if they believe in a divinity, may be sworn

according to the ceremonies of their religion, and that the

evidence given by them so sworn is admissible in courts of

justice, as if, being Christians, they had been sworn upon the

Evangelists. This subject first came before him in

Ramkissenseat v. Barker, where, in a suit for an account

against the representatives of an East India Governor, the

plea being overruled that the plaintiff was an alien infidel,

a cross bill was filed, and an objection being made that he

could only be sworn in the usual form, a motion was made that

the words in the commission, 'on the holy Evangelists,' should

be omitted, and that the commissioners should be directed to

administer an oath to him in the manner most binding on his

conscience. … The point was afterwards finally settled in

the great case of Omychund v. Barker, where a similar

commission to examine witnesses having issued, the

Commissioners certified 'That they had sworn the witnesses

examined under it in the presence of Brahmin or priest of the

Gentoo religion, and that each witness touched the hand of the

Brahmin,—this being the most solemn form in which oaths are

administered to witnesses professing the Gentoo religion.'

Objection was made that the deposition so taken could not be

read in evidence; and on account of the magnitude of the

question, the Lord Chancellor called in the assistance of the

three chiefs of the common law Courts.—After a very long,

learned, and ingenious argument, which may be perused with

pleasure, they concurred in the opinion that the depositions

were admissible."

_Lord Campbell,

Lives of the Chancellors,

volume 5, pages 69-70._

{1973}

COMMON LAW: A. D. 1750.

Dale v. Hall, I Wits., 281, understood to be the first

reported case of an action of special assumpsit sustained

against a common carrier, on his implied contract.

"Assumpsit, … was allowed, in the time of Charles I., in

competition with Detinue and Case against a bailee for

custody. At a later period Lord Holt suggested that one might

'turn an action against a common carrier into a special

assumpsit (which the law implies) in respect of his hire.'

Dale v. Hall (1750) is understood to have been the first

reported case in which that suggestion was followed."

_J. B. Ames,

History of Assumpsit

(Harvard Law Review,

volume 2, page 63)._

COMMON LAW: A. D. 1750-1800.

Demurrer to Evidence.

"Near the end of the last century demurrers upon evidence were

rendered useless in England, by the decision in the case of

Gibson v. Hunter (carrying down with it another great case,

that of Lickbarrow v. Mason, which, like the former, had come

up to the Lords upon this sort of demurrer), that the party

demurring must specify upon the record the facts which he

admits. That the rule was a new one is fairly plain from the

case of Cocksedge v. Fanshawe, ten years earlier. It was not

always followed in this country, but the fact that it was

really a novelty was sometimes not understood."

_J. B. Thayer,

Law and Fact in Jury Trials

(Harvard Law Review,

volume 4, page 147)._

ALSO IN:

_J. B. Thayer,

Select Cases on Evidence,

page 149._

COMMON LAW: A. D. 1756-1788.

Lord Mansfield and Commercial Law.

"In the reign of Geo. II., England had grown into the greatest

manufacturing and commercial country in the world, while her

jurisprudence had by no means been expanded or developed in

the same proportion. … Hence, when questions necessarily

arose respecting the buying and selling of goods,—respecting

the affreightment of ships,—respecting marine

insurances,—and respecting bills of exchange and promissory

notes, no one knew how they were to be determined. …

Mercantile questions were so ignorantly treated when they came

into Westminster Hall, that they were usually settled by

private arbitration among the merchants themselves. If an

action turning upon a mercantile question was brought in a

court of law, the judge submitted it to the jury, who

determined it according to their own notions of what was fair,

and no general rule was laid down which could afterwards be

referred to for the purpose of settling similar disputes. …

When he [Lord Mansfield] had ceased to preside in the Court of

King's Bench, and had retired to enjoy the retrospect of his

labors, he read the following just eulogy bestowed upon them

by Mr. Justice Buller, in giving judgment in the important

case of Lickbarrow v. Mason, respecting the effect of the

indorsement of a bill of lading:—'Within these thirty years

the commercial law of this country has taken a very different

turn from what it did before. Lord Hardwicke himself was

proceeding with great caution; not establishing any general

principle, but decreeing on all the circumstances put

together. Before that period we find that, in courts of law,

all the evidence in mercantile cases was thrown together; they

were left generally to a jury; and they produced no general

principle. From that time, we all know, the great study has

been to find some certain general principle, which shall be

known to all mankind, not only to rule the particular case

then under consideration, but to serve as a guide for the

future. Most of us have heard these principles stated,

reasoned upon, enlarged, and explained, till we have been lost

in admiration at the strength and stretch of the

understanding. And I should be very sorry to find myself under

a necessity of differing from any case upon this subject which

has been decided by Lord Mansfield, who may be truly said to

be the founder of the commercial law of this country.' …

With regard to bills of exchange and promissory notes, Lord

Mansfield first promulgated many rules that now appear to us

to be as certain as those which guide the planets in their

orbits. For example, it was till then uncertain whether the

second indorser of a bill of exchange could sue his immediate

indorser without having previously demanded payment from the

drawer. … He goes on to explain [in Heylyn v. Adamson, 2

Burr., 669], … that the maker of a promissory note is in the

same situation as the acceptor of a bill of exchange, and that

in suing the indorser of the note it is necessary to allege

and to prove a demand on the maker. … Lord Mansfield had

likewise to determine that the indorser of a bill of exchange

is discharged if he receives no notice of there having been a

refusal to accept by the drawee (Blesard v. Herst, 6 Burr.,

2670); and that reasonable time for giving notice of the

dishonor of a bill or note is to be determined by the Court as

matter of law, and is not to be left to the jury as matter of

fact, they being governed by the circumstances of each

particular case. (Tindal v. Brown, 1 Term. Rep., 167.) It

seems strange to us how the world could go on when such

questions of hourly occurrence, were unsettled. … There is

another contract of infinite importance to a maritime people.

… I mean that between ship-owners and merchants for the

hiring of ships and carriage of goods. … Till his time, the

rights and liabilities of these parties had remained undecided

upon the contingency, not unlikely to arise, of the ship being

wrecked during the voyage, and the goods being saved and

delivered to the consignee at an intermediate port. Lord

Mansfield settled that freight is due pro rata itineris—in

proportion to the part of the voyage performed. … Lord

Mansfield's familiarity with the general principles of ethics,

… availed him on all occasions when he had to determine on

the proper construction and just fulfilment of contracts. The

question having arisen, for the first time, whether the seller

of goods by auction, with the declared condition that they

shall be sold to 'the highest bidder,' may employ a

'puffer,'—an agent to raise the price by bidding,—he thus

expressed himself: [Bexwell v. Christie, Cowp., 395] '… The

basis of all dealings ought to be good faith; so more

especially in these transactions, where the public are brought

together upon a confidence that the articles set up to sale

will be disposed of to the highest real bidder. That can never

be the case if the owner may secretly enhance the price by a

person employed for that purpose. … I cannot listen to the

argument that it is a common practice, … the owner violates

his contract with the public if, by himself or his agent, he

bids upon his goods, and no subsequent bidder is bound to take

the goods at the price at which they are knocked down to

him.'"

_Lord Campbell,

Lives of the Chief Justices,

volume 2, pages 308-314._

{1974}

COMMON LAW: A. D. 1760.

Judicial Independence.

"A glance into the pages of the _Judges of England, by

Foss,_ will show with what ruthless vigour the Stuarts

exercised their prerogative of dismissing Judges whose

decisions were displeasing to the court. Even after the

Revolution, the prerogative of dismissal, which was supposed

to keep the Judges dependent on the Crown, was jealously

defended. When in 1692 a Bill passed both Houses of

Parliament, establishing the independence of Judges by law,

and confirming their salaries, William III. withheld his Royal

assent. Bishop Burnet says, with reference to this exercise of

the Veto, that it was represented to the King by some of the

Judges themselves, that it was not fit that they should be out

of all dependence on the Court. When the Act of Settlement

secured that no Judge should be dismissed from office, except

in consequence of a conviction for some offence, or the

address of both Houses of Parliament, the Royal jealousy of

the measure is seen by the promise under which that

arrangement was not to take effect till the deaths of William

III. and of Anne, and the failure of their issue respectively,

in other words, till the accession of the House of Hanover. It

was not till the reign of George III. that the Commissions of

the Judges ceased to be void on the demise of the Crown."

_J. G. S. MacNeill,

Law Magazine and Review, 4th series,

volume 16 (1890-91), page 202._

COMMON LAW: A. D. 1760.

Stolen Bank Notes the Property of a Bona Fide Purchaser.

"The law of bills of exchange owes much of its scientific and

liberal character to the wisdom of the great jurist, Lord

Mansfield. Sixteen years before the American Revolution, he

held that bank notes, though stolen, become the property of

the person to whom they are bona fide delivered for value

without knowledge of the larceny. This principle is later

affirmed again and again as necessary to the preservation of

the circulation of all the paper in the country, and with it

all its commerce. Later there was a departure from this

principle in the noted English case of Gill v. Cubitt, in

which it was held that if the holder for value took it under

circumstances which ought to have excited the suspicion of a

prudent and careful man, he could not recover. This case

annoyed courts and innocent holders for years, until it was

sat upon, kicked, cuffed, and overruled, and the old doctrine

of 1760 re-established, which is now the undisputed and

settled law of England and this country."

_Wm. A. McClean,

Negotiable Paper

(The Green Bag, volume 5, page 86)._

COMMON LAW: A. D. 1768.

Only one Business Corporation Chartered in this Country before

the Declaration of Independence.

"Pennsylvania is entitled to the honor of having chartered the

first business corporation in this country, 'The Philadelphia

Contributionship for Insuring Houses from Loss by Fire.' It

was a mutual insurance company, first organized in 1752, but

not chartered until 1768. It was the only business corporation

whose charter antedated the Declaration of Independence. The

next in order of time were: 'The Bank of North America,'

chartered by Congress in 1781 and, the original charter having

been repealed in 1785, by Pennsylvania in 1787; 'The

Massachusetts Bank,' chartered in 1784; 'The Proprietors of

Charles River Bridge,' in 1785; 'The Mutual Assurance Company'

(Philadelphia), in 1786; 'The Associated Manufacturing Iron

Co.' (N. Y.), in 1786. These were the only joint-stock

business corporations chartered in America before 1787. After

that time the number rapidly increased, especially in

Massachusetts. Before the close of the century there were

created in that State about fifty such bodies, at least half

of them turn-pike and bridge companies. In the remaining

States combined, there were perhaps as many more. There was no

great variety in the purposes for which these early companies

were formed. Insurance, banking, turn-pike roads,

toll-bridges, canals, and, to a limited extent, manufacturing

were the enterprises which they carried on."

_S. Williston,

History of the Law of Business Corporations before 1800

(Harvard Law Review,

volume 2, pp. 165-166)._

A. D. 1776.

Ultimate property in land.

"When, by the Revolution, the Colony of New York became

separated from the Crown of Great Britain, and a republican

government was formed, The People succeeded the King in the

ownership of all lands within the State which had not already

been granted away, and they became from thenceforth the source

of all private titles."

_Judge Comstock,

People v. Rector, etc., of Trinity Church,

22 N. Y., 44-46._

"It is held that only such parts of the common law as, with

the acts of the colony in force on April 19, 1775, formed part

of the law of the Colony on that day, were adopted by the

State; and only such parts of the common and statute law of

England were brought by the colonists with them as suited

their condition, or were applicable to their situation. Such

general laws thereupon became the laws of the Colony until

altered by common consent, or by legislative enactment. The

principles and rules of the common law as applicable to this

country are held subject to modification and change, according

to the circumstances and condition of the people and

government here. … By the English common law, the King was

the paramount proprietor and source of all title to all land

within his dominion, and it was considered to be held

mediately or immediately of him. After the independence of the

United States, the title to land formerly possessed by the

English Crown in this country passed to the People of the

different States where the land lay, by virtue of the change

of nationality and of the treaties made. The allegiance

formerly due, also, from the people of this country to Great

Britain was transferred, by the Revolution, to the governments

of the States."

_James Gerard,

Titles to Real Estate (3rd edition),

pages 26 and 5._

"Hence the rule naturally follows, that no person can, by any

possible arrangement, become invested with the absolute

ownership of land. But as that ownership must be vested

somewhere, or great confusion, if not disturbance, might

result, it has, therefore, become an accepted rule of public

law that the absolute and ultimate right of property shall be

regarded as vested in the sovereign or corporate power of the

State where the land lies. This corporate power has been

naturally and appropriately selected for that purpose, because

it is the only one which is certain to survive the generations

of men as they pass away. Wherever that sovereign power is

represented by an individual, as in England, there the

absolute right of property to all land in the kingdom is

vested in that individual whoever succeeds to the sovereignty,

succeeds to that right of property and holds it in trust for

the nation.

{1975}

In this country, where the only sovereignty recognized in

regard to real property, is represented by the State in its

corporate capacity, that absolute right of property is vested

in the State."

_Anson Bingham,

Law of Real Property,

page 3._

COMMON LAW: A. D. 1778.

First Instance of Assumpsit upon a Vendor's Warranty.

"A vendor who gives a false warranty may be charged to-day, of

course, in contract; but the conception of such a warranty, as

a contract is quite modern. Stuart v. Wilkens [3 Doug., 18],

decided in 1778, is said to have been the first instance of an

action of assumpsit upon a vendor's warranty."

_J. B. Ames,

History of Assumpsit

(Harvard Law Review,

volume 2, page 8)._

COMMON LAW: A. D. 1783.

Lord Mansfield laid foundation of Law of Trade-Marks.

"The symbolism of commerce, conventionally called

'trade-marks,' is, according to Mr. Browne, in his excellent

work on trade-marks, as old as commerce itself. The Egyptians,

the Chinese, the Babylonians, the Greeks, the Romans, all used

various marks or signs to distinguish their goods and

handiwork. The right to protection in such marks has come to

be recognized throughout the civilized world. It is, however,

during the last seventy or eighty years that the present

system of jurisprudence has been built up. In 1742 Lord

Hardwick refused an injunction to restrain the use of the

Great Mogul stamp on cards. In 1783 Lord Mansfield laid the

foundation of the law of trade-marks as at present developed,

and in 1816, in the case of Day v. Day, the defendant was

enjoined from infringing the plaintiff's blacking label. From

that time to the present day there have arisen a multitude of

cases, and the theory of the law of trade-marks proper may be

considered as pretty clearly expounded. In 1875 the

Trade-marks Registration Act provided for the registration of

trade-marks, and defined what could in future properly be a

trade-mark. In this country the Act of 1870, corrected by the

Act of 1881, provided for the registration of trade-marks. The

underlying principle of the law of trade-marks is that of

preventing one man from acquiring the reputation of another by

fraudulent means, and of preventing fraud upon the public; in

other words, the application of the broad principles of

equity."

_Grafton D. Cushing,

Cases Analogous to Trade-marks

(Harvard Law Review,

volume 4, page 321)._

COMMON LAW: A. D. 1790.

Stoppage in Transitu, and Rights of Third Person

under a Bill of Lading.

"Lord Loughborough's most elaborate common law judgment was in

the case of Lichbarrow v. Mason, when he presided in the court

of Exchequer Chamber, on a writ of error from the Court of

King's Bench. The question was one of infinite importance to

commerce—'Whether the right of the unpaid seller of goods to

stop them while they are on their way to a purchaser who has

become insolvent, is divested by an intermediate sale to a

third person, through the indorsement of the bill of lading,

for a valuable consideration?' He concluded by saying:—'From

a review of all the cases it does not appear that there has

ever been a decision against the legal right of the consignor

to stop the goods in transitu before the case which we have

here to consider. The rule which we are now to lay down will

not disturb but settle the notions of the commercial port of

this country on a point of very great importance, as it

regards the security and good faith of their transactions. For

these reasons we think the judgment of the Court of King's Bench

ought to be reversed.' But a writ of error being brought in

the House of Lords, this reversal was reversed, and the right

of the intermediate purchaser as against the original seller,

has ever since been established."

_Lord Campbell,

Lives of the Chancellors,

volume 6, pages 138-139._

COMMON LAW: A. D. 1792.

Best-Evidence rule.

"In Grant v. Gould, 2 H. Bl. p. 104 (1792), Lord Loughborough

said: 'That all common law courts ought to proceed upon the

general rule, namely, the best evidence that the nature of the

case will admit, I perfectly agree.' But by this time it was

becoming obvious that this 'general rule' was misapplied and

over-emphasized. Blackstone, indeed, repeating Gilbert, had

said in 1770, in the first editions of his Commentaries (III.

368) as it was said in all the later ones: 'The one general

rule that runs through all the doctrine of trials is this,

that the best evidence the nature of the case will admit of

shall always be required, if possible to be had; but, if not

possible, then the best evidence that can be had shall be

allowed. For if it be found that there is any better evidence

existing than is produced, the very not producing it is a

presumption that it would have detected some falsehood that at

present is concealed.' But in 1794, the acute and learned

Christian, in editing the twelfth edition, pointed out the

difficulties of the situation: 'No rule of law,' he said, 'is

more frequently cited, and more generally misconceived, than

this. It is certainly true when rightly understood; but it is

very limited in its extent and application. It signifies

nothing more than that, if the best legal evidence cannot

possibly be produced, the next best legal evidence shall be

admitted.'"

_J. B. Thayer,

Select Cases on Evidence,

page 732._

COMMON LAW: A. D. 1794.

First Trial by Jury in United States Supreme Court.

"In the first trial by jury at the bar of the Supreme Court of

the United States, in 1794, Chief-Justice Jay, after remarking

to the jury that fact was, for the jury and law for the court,

went on to say: 'You have, nevertheless, a right to take upon

yourselves to judge of both, and to determine the law as well

as the fact in controversy.' But I am disposed to think that

the common-law power of the jury in criminal cases does not

indicate any right on their part; it is rather one of those

manifold illogical and yet rational results, which the good

sense of the English people brought about, in all parts of

their public affairs, by way of easing up the rigor of a

strict application of rules."

_J. B. Thayer,

Law and Fact in Jury Trials

(Harvard Law Review,

volume 4, page 171)._

ALSO IN:

_J. B. Thayer,

Select Cases on Evidence,

page 153._

COMMON LAW: A. D. 1813-1843.

Insolvents placed under Jurisdiction of a Court, and able to

claim Protection by a Surrender of Goods.

"It was not until 1813 that insolvents were placed under the

jurisdiction of a court, and entitled to seek their discharge

on rendering a true account of all their debts and property. A

distinction was at length recognized between poverty and crime.

This great remedial law restored liberty to crowds of wretched

debtors. In the next thirteen years upwards of 50,000 were set

free. Thirty years later, its beneficent principles were

further extended, when debtors were not only released from

confinement, but able to claim protection to their liberty, on

giving up all their goods."

_T. E. May,

Constitutional History of England

(Widdleton's edition)

volume 2, page 271._

See, also, DEBT, LAWS CONCERNING.

{1976}

COMMON LAW: A. D. 1819.

The Dartmouth College Case.

"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.

"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.