Part 2 — Chapter III. (These four articles abrogated by the four articles following them, 118-122.) Article 118. The Federal Constitution may at any time be amended. (continued 97)

Thomas J. Semmes, 9 American Bar Association Report, page 193.

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

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 Like functions were assigned first to the old conservators of the peace, then to the justices who superseded them, and to whose office a huge array of powers and duties of the most miscellaneous kind have been added by later statutes.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

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

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

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

J. Kent, Commentaries, part 3, lecture 21.

{1964}

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

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

New American Cyclopædia, volume 14, page 585.

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

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

W. Forsyth, Trial by Jury, pages 124 and 128.

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

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

J. Parke, History of Chancery, page 43.

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

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

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

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

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

W. Blackstone, Commentaries, book 3, page 179.

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

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

W. Blackstone, Commentaries, book 3, page 294.

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

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

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

{1965}

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

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

Lord Campbell, Lives of the Chancellors, volume I, page 272.

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

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

J. B. Thayer, Select Cases on Evidence, page 1071.

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

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

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

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

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

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

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

J. B. Thayer, Select Cases on Evidence, p. 1070.

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

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

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

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

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

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

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

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

Charles Knight, History of England, volume 2, page 200.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

{1967}

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

J. Kent, Commentaries, part 5, lecture 48.

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

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

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

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

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

J. B. Thayer, Select Cases on Evidence, page 726.

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

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

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

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

"The modern action for malicious prosecution, represented formerly by the action for conspiracy, has brought down to our own time a doctrine which is probably traceable to the practice of spreading the case fully upon the record, namely, that what is a reasonable and probable cause for a prosecution is a question for the court. That it is a question of fact is confessed, and also that other like questions in similar cases are given to the jury. Reasons of policy led the old judges to permit the defendant to state his case fully upon the record, so as to secure to the court a greater control over the jury in handling the facts, and to keep what were accounted questions of law, i. e., questions which it was thought should be decided by the judges out of the jury's hands. Gawdy, J., in such a case, in 1601-2, 'doubted whether it were a plea, because it amounts to a non culpabilis. … But the other justices held that it was a good plea, per doubt del lay gents.' Now that the mode of pleading has changed, the old rule still holds; being maintained, perhaps, chiefly by the old reasons of policy."

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 150.

COMMON LAW: A. D. 1603. Earliest reported case of Bills of Exchange.

"The origin and history of Bills of Exchange and other negotiable instruments are traced by Lord Chief Justice Cockburn in his judgment in Goodwin v. Robarts [L. R. 10 Ex., pages 346-358]. It seems that bills were first brought into use by the Florentines in the twelfth century. From Italy the use of them spread to France, and eventually they were introduced into England. The first English reported case in which they are mentioned is Martin v. Boure (Cro. Jac. 3), decided in 1603. At first the use of Bills of Exchange seems to have been confined to foreign bills between English and foreign merchants. It was afterwards extended to domestic bills between traders, and finally to bills of all persons whether traders or not. The law throughout has been based on the custom of merchants respecting them; the old form of declaration on bill used always to state that it was drawn 'secundum usum et consuetudinem mercatorum.'"

M. D. Chalmers, Bills of Exchange, page xliv., introduction.

See, also, MONEY AND BANKING, MEDIÆVAL.

{1969}

COMMON LAW: A. D. 1604. Death Inferred from Long Absence.

"It is not at all modern to infer death from a long absence; the recent thing is the fixing of a time of seven years, and putting this into a rule. The faint beginning of it, as a common-law rule, and one of general application in all questions of life and death, is found, so far as our recorded cases show, in Doe d. George v. Jesson (January, 1805). Long before this time, in 1604, the 'Bigamy Act' of James I. had exempted from the scope of its provisions, and so from the situation and punishment of a felon (1) those persons who had married a second time when the first spouse had been beyond the seas for seven years, and (2) those whose spouse had been absent for seven years, although not beyond the seas,—'the one of them not knowing the other to be living within that time.' This statute did not treat matters altogether as if the absent party were dead; it did not validate the second marriage in either case. It simply exempted a party from the statutory penalty."

J. B. Thayer, Presumptions and the Law of Evidence (Harvard Law Review, volume 3, page 151).

COMMON LAW: A. D. 1609. First Recognition of Right to Sue for Quantum Meruit.

"There seems to have been no recognition of the right to sue upon an implied 'quantum meruit' before 1609. The innkeeper was the first to profit by the innovation. Reciprocity demanded that, if the law imposed a duty upon the innkeeper to receive and keep safely, it should also imply a promise on the part of the guest to pay what was reasonable. The tailor was in the same case with the innkeeper, and his right to recover upon a quantum meruit was recognized in 1610.". [Six Carpenters' Case, 8 Rep., 147a.]

J. B. Ames, History of Assumpsit (Harvard Law Review, volume 2, page 58).

COMMON LAW: A. D. 1623. Liability of Gratuitous Bailee to be Charged in Assumpsit, established.

"The earliest attempt to charge bailees in assumpsit were made when the bailment was gratuitous. These attempts, just before and after 1600, were unsuccessful, because the plaintiffs could not make out any consideration. The gratuitous bailment was, of course, not a benefit, but a burden to the defendant; and, on the other hand, it was not regarded as a detriment, but an advantage to the plaintiff. But in 1623 it was finally decided, not without a great straining, it must be conceded, of the doctrine of consideration, that a bailee might be charged in assumpsit on a gratuitous bailment."

J. B. Ames, History of Assumpsit (Harvard Law Review, volume 2, page 6, citing Wheatley v. Low, Palm., 281; Cro. Jac. 668).

COMMON LAW: A. D. 1625 (circa). Experiment in Legislation. Limitation in time.

"The distinction between temporary and permanent Legislation is a very old one." It was a distinction expressed at Athens; but "we have no such variety of name. All are alike Acts of Parliament. Acts in the nature of new departures in the Law of an important kind are frequently limited in time, very often with a view of gaining experience as to the practical working of a new system before the Legislature commits itself to final legislation on the subject, sometimes, no doubt, by way of compromise with the Opposition, objecting to the passing of such a measure at all. Limitation in time often occurs in old Acts. Instances are the first Act of the first Parliament of Charles I. (1 Car. 1., c. 1), forbidding certain sports and pastimes on Sunday, and permitting others. The Book of Sports of James I. had prepared the mind of the people for that more liberal observance of Sunday which had been so offensive to the Puritans of Elizabeth's reign, but it had not been down to that time acknowledged by the Legislature. This was now done in 1625, the Act was passed for the then Parliament, continued from time to time, and finally (the experiment having apparently succeeded) made perpetual in 1641. Another instance is the Music Hall Act of 1752 passed it is said on the advice of Henry Fielding, in consequence of the disorderly state of the music halls of the period, and perhaps still more on account of the Jacobite songs sometimes sung at such places. It was passed for three years, and, having apparently put an end to local disaffection, was made perpetual in 1755. Modern instances are the Ballot Act, 1872, passed originally for eight years, and now annually continued, the Regulation of Railways Act, 1873, creating a new tribunal, the Railway Commission, passed originally for five years, and annually continued until made perpetual by the Railway and Canal Traffic Act, 1888; the Employers' Liability Act, 1880, a new departure in Social Legislation, expiring on the 31st December, 1887, and since annually continued; and the Shop Hours Regulation Act, 1886, a similar departure, expiring in 1888, and continued for the present Session. … (2) Place. —It is in this respect that the Experimental method of Parliament is most conspicuous. A law is enacted binding only locally, and is sometimes extended to the whole or a part of the realm, sometimes not. The old Statute of Circumspecte Agatis (13 Edw. I., stat. 4) passed in 1285 is one of the earliest examples. The point of importance in it is that it was addressed only to the Bishop of Norwich, but afterwards seems to have been tacitly admitted as law in the case of all dioceses, having probably been found to have worked well at Norwich. It was not unlike the Rescripts of the Roman emperors, which, primarily addressed to an individual, afterwards became precedents of general law."

James William (Law Magazine & Review, London 1888-9), 4th ser., volume 14, page 306.

COMMON LAW: A. D. 1630-1641. Public Registry.

"When now we look to the United States, we find no difficulty in tracing the history of the institution on this side of the Atlantic. The first settlers of New York coming from Holland, brought it with them. In 1636, the Pilgrims of Plymouth, coming also from Holland, passed a law requiring that for the prevention of frauds, all conveyances, including mortgages and leases, should be recorded. Connecticut followed in 1639, the Puritans of Massachusetts in 1641; Penn, of course, introduced it into Pennsylvania. Subsequently every State of the Union established substantially the same system."

D. Campbell, The Puritan in Holland, England and America, volume 2, page 463.

COMMON LAW: A. D. 1650 (circa). Law regarded as a Luxury.

"Of all the reforms needed in England, that of the law was perhaps the most urgent. In the general features of its administration the system had been little changed since the days of the first Edward. As to its details, a mass of abuses had grown up which made the name of justice nothing but a mockery. Twenty thousand cases, it was said, stood for judgment in the Court of Chancery, some of them ten, twenty, thirty years old. In all the courts the judges held their positions at the pleasure of the crown. They and their clerks, the marshals, and the sheriffs exacted exorbitant fees for every service, and on their cause-list gave the preference to the suitor with the longest purse. Legal documents were written in a barbarous jargon which none but the initiated could understand. {1970} The lawyers, for centuries, had exercised their ingenuity in perfecting a system of pleading, the main object of which seems to have been to augment their charges, while burying the merits of a cause under a tangle of technicalities which would secure them from disentombment. The result was that law had become a luxury for the rich alone."

D. Campbell, The Puritan in Holland, England and America, volume 2, pages 383-384.

COMMON LAW: A. D. 1657. Perhaps the first Indebitatus Assumpsit for Money paid to Defendant by Mistake.

"One who received money from another to be applied in a particular way was bound to give an account of his stewardship. If he fulfilled his commission, a plea to that effect would be a valid discharge. If he failed for any reason to apply the money in the mode directed, the auditors would find that the amount received was due to the plaintiff, who would have a judgment for its recovery. If, for example, the money was to be applied in payment of a debt erroneously supposed to be due from the plaintiff to the defendant, … the intended application of the money being impossible, the plaintiff would recover the money in Account. Debt would also lie in such cases. … By means of a fiction of a promise implied in law 'Indebitatus Assumpsit' because concurrent with Debt, and thus was established the familiar action of Assumpsit for money had and received to recover money paid to the defendant by mistake. Bonnel v. Fowke (1657) is, perhaps, the first action of the kind."

J. B. Ames, History of Assumpsit (Harvard Law Review, volume 2, page 66).

COMMON LAW: A. D. 1670. Personal Knowledge of Jurors.

"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 venue (vicintum), which appears in all indictments and declarations at the present day. It points out the place from which the jury must be summoned. … And it was said by the Court of Common Pleas in Bushell's case (A. D. 1670), that the jury being returned from the vicinage whence the cause of action arises, the law supposes them to have sufficient knowledge to try the matters in issue, 'and so they must, though no evidence were given on either side in court';—and the case is put of an action upon a bond to which the defendant pleads solvit ad diem, but offers no proof:—where, the court said 'the jury is directed to find for the plaintiff, unless they know payment was made of their own knowledge, according to the plea.' This is the meaning of the old legal doctrine, which is at first sight somewhat startling, that the evidence in court is not binding evidence to a jury. Therefore acting upon their own knowledge, they were at liberty to give a verdict in direct opposition to the evidence, if they so thought fit."

W. Forsyth, Trial by Jury, pages 134-136.

COMMON LAW: A. D. 1678. The Statute of Frauds.

"During Lord Nottingham's period of office, and partly in consequence of his advice, the Statute of Frauds was passed. Its main provisions are directed against the enforcement of verbal contracts, the validity of verbal conveyances of interests in land, the creation of trusts of lands without writing, and the allowance of nuncupative wills. It also made equitable interests in lands subject to the owner's debts to the same extent as legal interests were. The statute carried into legislative effect principles which had, so far back as the time of Bacon's orders, been approved by the Court of Chancery, and by its operation in the common law courts it must often have obviated the necessity for equitable interference. In modern times it has not infrequently been decried, especially so far as it restricts the verbal proof of contracts, but in estimating its value and operation at the time it became a law it must be remembered that the evidence of the parties to an action at law could not then be received, and the Defendant might have been charged upon the uncorroborated statement of a single witness which he was not allowed to contradict, as Lord Eldon argued many years afterwards, when the action upon the case for fraud was introduced at law. It was therefore a most reasonable precaution, while this unreasonable rule continued, to lay down that the Defendant should be charged only upon writing signed by him."

D. M. Kerly, History of Equity, page 170.

COMMON LAW: A. D. 1680. Habeas Corpus and Personal Liberty.

"The language of the great charter is, that no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land. And many subsequent old statutes expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king or his council, unless it be by legal indictment, or the process of the common-law. By the petition of right, 3 Car. I., it is enacted, that no freeman shall be imprisoned or detained without cause shown. … By 16 Car. I., c. 10, if any person be restrained of his liberty … , he shall, upon demand of his counsel, have a writ of habeas corpus, to bring his body before the court of king's bench or common pleas, who shall determine whether the cause of his commitment be just. … And by 31 Car. II., c. 2, commonly called the habeas corpus act, the methods of obtaining this writ are so plainly pointed out and enforced, that, … no subject of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer. And, … it is declared by 1 W. and M. St. 2, c. 2, that excessive bail ought not be required."

W. Blackstone, Commentaries, I., 135.

J. Kent, Commentaries, part 4, lecture 24.

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."