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 98)

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

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

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

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

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

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

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

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

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

T. E. May, Constitutional History of England (Widdleton's edition), volume 2, pages 267-268.

See, also, DEBT: LAWS CONCERNING.

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

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

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

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

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

Henry C. Tompkins, 13 American Bar Association Report, page 255.

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

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

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

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

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

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

{1979}

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

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

The Albany Law Journal, volume 39, page 261.

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

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

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

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

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

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

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

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

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

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

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

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

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

D. M. Kerly, History of Equity, page 288.

{1980}

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

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

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

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

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

Dwight H. Olmstead, 13 American Bar Association Report, page 267.

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

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

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

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

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

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

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

{1981}

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

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

D. M. Kerly, History of Equity, page 293.

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

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

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

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

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

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

—————COMMON LAW: End—————

—————CRIMINAL LAW: Start—————

Criminal Law.

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

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

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

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

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

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

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

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

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

{1982}

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ALSO IN: W. Forsyth, Trial by Jury, page 187.

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

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

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

{1983}

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

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

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

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

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

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

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

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

American Law Review, volume 15, page 717.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

T. E. May, Constitutional History of England (Widdleton's edition), volume 2, pages 553-554.

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

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

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

CRIMINAL LAW: A. D. 1708. Torture.

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

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

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

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

American Law Review, volume 15, pages 720-722.

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

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

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

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

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

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

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

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

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

See, also, WAGER OF BATTLE.

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

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

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

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

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

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

{1986}

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

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

T. E. May, Constitutional History of England (Widdleton's edition), volume 2, pages 557-558.

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

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

T. E. May, Constitutional History of England (Widdleton's edition), volume 2, pages 113-114.

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

Statute 6 & 7 Vic., c. 96, s. 7.

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

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

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

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

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

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

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

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

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

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

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

University Law Review, volume 1, page 2.

—————CRIMINAL LAW: End—————

—————ECCLESIASTICAL LAW: Start————

{1987}

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

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

W. Blackstone, Commentaries, book 3, page 61.

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

"William I. (whose title was warmly espoused by the monasteries, which he liberally endowed, and by the foreign clergy whom he brought over in shoals from France and Italy, and planted in the best preferments of the English church), was at length prevailed upon to … separate the ecclesiastical court from the civil: whether actuated by principles of bigotry, or by those of a more refined policy, in order to discountenance the laws of King Edward, abounding with the spirit of Saxon liberty, is not altogether certain. But the latter, if not the cause, was undoubtedly the consequence, of this separation: for the Saxon laws were soon overborne by the Norman justiciaries, when the county court fell into disregard by the bishop's withdrawing his presence, in obedience to the charter of the conqueror; which prohibited any spiritual cause from being tried in the secular courts, and commanded the suitors to appear before the bishop only, whose decisions were directed to conform to the canon law."

W. Blackstone, Commentaries, book 3, pages 62-63.

"The most important ecclesiastical measure of the reign, the separation of the church jurisdiction from the secular business of the courts of law, is unfortunately, like all other charters of the time, undated. Its contents however show the influence of the ideas which under the genius of Hildebrand were forming the character of the continental churches. From henceforth the bishops and archdeacons are no longer to hold ecclesiastical pleas in the hundred-court, but to have courts of their own; to try causes by canonical, not by customary law, and allow no spiritual questions to come before laymen as judges. In case of contumacy the offender may be excommunicated and the king and sheriff will enforce the punishment. In the same way laymen are forbidden to interfere in spiritual causes. The reform is one which might very naturally recommend itself to a man like Lanfranc."

W. Stubbs, Constitutional History of England, volume 1, section 101.

ECCLESIASTICAL LAW: A. D. 1100. Reunion of Civil and Ecclesiastical Courts.

"King Henry the First, at his accession, among other restorations of the laws of King Edward the Confessor, revived this of the union of the civil and ecclesiastical courts. … This, however, was ill-relished by the popish clergy,… and, therefore, in their synod at Westminster, 3 Hen. I., they ordained that no bishop should attend the discussion of temporal causes; which soon dissolved this newly effected union."

W. Blackstone, Commentaries, book 3, page 63.

ECCLESIASTICAL LAW: A. D. 1135. Final Separation of Civil and Ecclesiastical Courts.

"And when, upon the death of King Henry the First, the usurper Stephen was brought in and supported by the clergy, we find one article of the oath which they imposed upon him was, that ecclesiastical persons and ecclesiastical causes should be subject only to the bishop's jurisdiction. And as it was about that time that the contest and emulation began between the laws of England and those of Rome, the temporal courts adhering to the former, and the spiritual adopting the latter as their rule of proceeding, this widened the breach between them, and made a coalition afterwards impracticable; which probably would else have been effected at the general reformation of the church."

W. Blackstone, Commentaries, book 3, page 64.

ECCLESIASTICAL LAW: A. D. 1285. Temporal Courts assume Jurisdiction of Defamation.

"To the Spiritual Court appears also to have belonged the punishment of defamation until the rise of actions on the case, when the temporal courts assumed jurisdiction, though not, it seems, to the exclusion of punishment by the church. The punishment of usurers, cleric and lay, also belonged to the ecclesiastical judges, though their movables were confiscated to the king, unless the usurer 'vita comite digne poenituerit, et testamento condito quae legare decreverit a se prorsus alienaverit.' That is, it seems, the personal punishment was inflicted by the Ecclesiastical Court, but the confiscation of goods (when proper) was decreed by the King's Court."

Melville M. Bigelow, History of Procedure, page 51.

ECCLESIASTICAL LAW: A. D. 1857-1859. Ecclesiastical Courts deprived of Matrimonial and Testamentary Causes.

"Matrimonial causes, or injuries respecting the rights of marriage, are another … branch of the ecclesiastical jurisdiction. Though, if we consider marriages in the light of mere civil contracts, they do not seem to be properly of spiritual cognizance. But the Romanists having very early converted this contract into a holy sacramental ordinance, the church of course took it under her protection,' upon the division of the two jurisdictions. … One might … wonder, that the same authority, which enjoined the strictest celibacy to the priesthood, should think them the proper judges in causes between man and wife. These causes, indeed, partly from the nature of the injuries complained of, and partly from the clerical method of treating them, soon became too gross for the modesty of a lay tribunal. … Spiritual jurisdiction of testamentary causes is a peculiar constitution of this island; for in almost all other (even in popish) countries all matters testamentary are under the jurisdiction of the civil magistrate. And that this privilege is enjoyed by the clergy in England, not as a matter of ecclesiastical right, but by the special favor and indulgence of the municipal law, and as it should seem by some public act of the great council, is freely acknowledged by Lindewode, the ablest canonist of the fifteenth century. Testamentary causes, he observes, belong to the ecclesiastical courts 'de consuetudine Angliae, et super consensu regio et suorum procerum in talibus ab antiquo concesso.'"

W. Blackstone, Commentaries, book 3, pages 91-95.

{1988}

Jurisdiction in testamentary causes was taken away from the ecclesiastical courts by Statutes 20 and 21 Vic., c. 77 and 21 and 22 Vic., chapters 56 and 95, and was transferred to the court of Probate. Jurisdiction in matrimonial causes was transferred to the Divorce Court by Statute 20 and 21 Vic., 85.

—————ECCLESIASTICAL LAW: End————

—————EQUITY: Start————

Equity.

EQUITY: A. D. 449-1066. Early Masters in Chancery.

"As we approach the era of the Conquest, we find distinct traces of the Masters in Chancery, who, though in sacred orders, were well trained in jurisprudence, and assisted the chancellor in preparing writs and grants, as well as in the service of the royal chapel. They formed a sort of college of justice, of which he was the head. They all sate in the Wittenagemote, and, as 'Law Lords', are supposed to have had great weight in the deliberations of that assembly."

Lord Campbell, Lives of the Chancellors, volume 1, page 53.

EQUITY: A. D. 596. Chancellor, Keeper of the Great Seal.

"From the conversion of the Anglo-Saxons to Christianity by the preaching of St. Augustine, the King always had near his person a priest, to whom was entrusted the care of his chapel, and who was his confessor. This person, selected from the most learned and able of his order, and greatly superior in accomplishments to the unlettered laymen attending the Court, soon acted as private secretary to the King, and gained his confidence in affairs of state. The present demarcation between civil and ecclesiastical employments was then little regarded, and to this same person was assigned the business of superintending writs and grants, with the custody of the great seal."

Lord Campbell, Lives of the Chancellors, volume 1, page 27.

EQUITY: A. D. 1066. Master of the Rolls.

"The office of master, formerly called the Clerk or Keeper of the Rolls, is recognized at this early period, though at this time he appears to have been the Chancellor's deputy, not an independent officer."

Geo. Spence, Equity Jurisdiction of the Court of Chancery, volume 1, page 100.

EQUITY: A. D. 1066-1154. Chancellor as Secretary of State.

Under the Norman Kings, the Chancellor was a kind of secretary of state. His functions were political rather than judicial. He attended to the royal correspondence, kept the royal accounts, and drew up writs for the administration of justice. He was also the keeper of the seal.

Montague's Elements of Constitutional History of England, page 27.

See, also, CHANCELLOR.

A. D. 1067. First Lord Chancellor.

"The first keeper of the seals who was endowed with the title of Lord Chancellor was Maurice, who received the great seal in 1067. The incumbents of the office were for a long period ecclesiastics; and they usually enjoyed episcopal or archiepiscopal rank, and lived in the London palaces attached to their sees or provinces. The first Keeper of the seals of England was Fitzgilbert, appointed by Queen Matilda soon after her coronation, and there was no other layman appointed until the reign of Edward III."

L. J. Bigelow, Bench and Bar, page 23.

EQUITY: A. D. 1169. Uses and Trusts.

"According to the law of England, trusts may be created 'inter vivos' as well as by testament, and their history is a curious one, beginning, like that of the Roman 'fidei commissa,' with an attempt to evade the law. The Statutes of Mortmain, passed to prevent the alienation of lands to religious houses, led to the introduction of 'uses,' by which the grantor alienated his land to a friend to hold 'to the use' of a monastery, the clerical chancellors giving legal validity to the wish thus expressed. Although this particular device was put a stop to by 15 Ric. II. c. 5, 'uses' continued to be employed for other purposes, having been found more malleable than what was called, by way of contrast, 'the legal estate.' They offered indeed so many modes of escaping the rigour of the law, that, after several other statutes had been passed with a view of curtailing their advantages, the 27 Hen. VIII. c. 10 enacted that, where anyone was seised to a use, the legal estate should be deemed to be in him to whose use he was seised. The statute did not apply to trusts of personal property, nor to trusts of land where any active duty was cast upon the trustee, nor where a use was limited 'upon a use,' i. e. where the person in whose favour a use was created was himself to hold the estate to the use of some one else. There continued therefore to be a number of cases in which, in spite of the 'Statute of Uses,' the Court of Chancery was able to carry out its policy of enforcing what had otherwise been merely moral duties. The system thus arising has grown to enormous dimensions, and trusts, which, according to the definition of Lord Hardwicke, are 'such a confidence between parties that no action at law will lie, but there is merely a case for the consideration of courts of equity,' are inserted not only in wills, but also in marriage settlements, arrangements with creditors, and numberless other instruments necessary for the comfort of families and the development of commerce."

T. E. Holland, Elements of Jurisprudence, 5th edition, page 217.

EQUITY: A. D. 1253. A Lady Keeper of the Seals.

"Having occasion to cross the sea and visit Gascony, A. D. 1253, Henry III. made her [Queen Eleanor] keeper of the seal during his absence, and in that character she in her own person presided in the 'Aula Regia,' hearing causes, and, it is to be feared, forming her decisions less in accordance with justice than her own private interests. Never did judge set law and equity more fearfully at naught."

L. J. Bigelow, Bench and Bar, page 28.

EQUITY: A. D. 1258. No Writs except De Cursu.

"In the year 1258 the Provisions of Oxford were promulgated; two separate clauses of which bound the chancellor to issue no more writs except writs 'of course' without command of the King and his Council present with him. This, with the growing independence of the judiciary on the one hand, and the settlement of legal process on the other, terminated the right to issue special writs, and at last fixed the common writs in unchangeable form; most of which had by this time become developed into the final form in which for six centuries they were treated as precedents of declaration."

M. M. Bigelow, History of Procedure, page 197.

EQUITY: A. D. 1272-1307. The Chancellor's functions.

"In the reign of Edward I. the Chancellor begins to appear in the three characters in which we now know him; as a great political officer, as the head of a department for the issue of writs and the custody of documents in which the King's interest is concerned, as the administrator of the King's grace."

Sir William H. Anson, Law and Custom of the Constitution, part 2, page 146.

{1989}

EQUITY: A. D. 1330. Chancery stationary at Westminster.

"There was likewise introduced about this time a great improvement in the administration of justice, by rendering the Court of Chancery stationary at Westminster. The ancient kings of England were constantly migrating,—one principal reason for which was, that the same part of the country, even with the aid of purveyance and pre-emption, could not long support the court and all the royal retainers, and render in kind due to the King could be best consumed on the spot. Therefore, if he kept Christmas at Westminster, he would keep Easter at Winchester, and Pentecost at Gloucester, visiting his many palaces and manors in rotation. The Aula Regis, and afterwards the courts into which it was partitioned, were ambulatory along with him—to the great vexation of the suitors. This grievance was partly corrected by Magna Charta, which enacted that the Court of Common Pleas should be held 'in a certain place,'—a corner of Westminster Hall being fixed upon for that purpose. In point of law, the Court of King's Bench and the Court of Chancery may still be held in any county of England,—'wheresoever in England the King or the Chancellor may be.' Down to the commencement of the reign of Edward III., the King's Bench and the Chancery actually had continued to follow the King's person, the Chancellor and his officers being entitled to part of the purveyance made for the royal household. By 28 Edw. 1., c. 5, the Lord Chancellor and the Justices of the King's Bench were ordered to follow the King, so that he might have at all times near him sages of the law able to order all matters which should come to the Court. But the two Courts were now by the King's command fixed in the places where, unless on a few extraordinary occasions, they continued to be held down to our own times, at the upper end of Westminster Hall, the King's Bench on the left hand, and the Chancery on the right, both remaining open to the Hall, and a bar erected to keep off the multitude from pressing on the judges."

Lord Campbell, Lives of the Chancellors, volume 1, page 181.

EQUITY: A. D. 1348. "Matters of Grace" committed to the Chancellor.

"In the 22nd year of Edward III, matters which were of grace were definitely committed to the Chancellor for decision, and from this point there begins to develop that body of rules—supplementing the deficiencies or correcting the harshness of the Common Law—which we call Equity."

Sir W. R. Anson, Law and Custom of the Constitution, part 2, page 147.

ALSO IN: Kerly's History of the Court of Chancery, page 31.

EQUITY: A. D. 1383. Early Instance of Subpoena.

"It is said that John Waltham, Bishop of Salisbury, who was Keeper of the Rolls about the 5th of Richard II., considerably enlarged this new jurisdiction; that, to give efficacy to it, he invented, or more properly, was the first who adopted in that court, the writ of subpoena, a process which had before been used by the council, and is very plainly alluded to in the statutes of the last reign, though not under that name. This writ summoned the party to appear under a penalty, and answer such things as should be objected against him; upon this a petition was lodged, containing the articles of complaint to which he was then compelled to answer. These articles used to contain suggestions of injuries suffered, for which no remedy was to be had in the courts of common law, and therefore the complainant prayed advice and relief of the chancellor."

J. Reeves, History English Law (Finlason's edition), volume 3, page 384.

EQUITY: A. D. 1394. Chancery with its own Mode of Procedure.

"From the time of passing the stat. 17 Richard II. we may consider that the Court of Chancery was established as a distinct and permanent court, having separate jurisdiction, with its own peculiar mode of procedure similar to that which had prevailed in the Council, though perhaps it was not wholly yet separated from the Council."

George Spence, Equity Jurisdiction of the Court of Chancery, volume 1, page 345.

EQUITY: A. D. 1422. Chancery Cases appear in Year Books.

"It is beyond a doubt that this [chancery] court had begun to exercise its judicial authority in the reigns of Richard II., Henry IV. and V. … But we do not find in our books any report of cases there determined till 37 Henry VI., except only on the subject of uses; which, as has been before remarked, might give rise to the opinion, that the first equitable judicature was concerned in the support of uses."

J. Reeves, History English Law (Finlason's edition), volume 3, page 553.

EQUITY: A. D. 1443. No distinction between Examination and Answer.

The earliest record of written answers is in 21 Henry VI. Before that time little, if any, distinction was made between the examination and the answer.

Kerly, History of Courts of Chancery, page 51.

EQUITY: A. D. 1461-1483. Distinction between Proceeding by Bill and by Petition.

"A written statement of the grievance being required to be filed before the issuing of the subpoena, with security to pay damages and costs,—bills now acquired form, and the distinction arose between the proceeding by bill and by petition. The same regularity was observed in the subsequent stages of the suit. Whereas formerly the defendant was generally examined viva voce when he appeared in obedience to the subpoena, the practice now was to put in a written answer, commencing with a protestation against the truth or sufficiency of the matters contained in the bill, stating the facts relied upon by the defendant, and concluding with a prayer that he may be dismissed, with his costs. There were likewise, for the purpose of introducing new facts, special replications and rejoinders, which continued till the reign of Elizabeth, but which have been rendered unnecessary by the modern practice of amending the bill and answer. Pleas and demurrers now appear. Although the pleadings were in English, the decrees on the bill continued to be in Latin down to the reign of Henry VIII. Bills to perpetuate testimony, to set out metes and bounds, and for injunctions against proceedings at law, and to stay waste, became frequent."

Lord Campbell, Lives of the Chancellors, volume 1, page 309.

{1990}

EQUITY: A. D. 1461-1483. Jurisdiction of Chancery over Trusts.

"The equitable jurisdiction of the Court of Chancery may be considered as making its greatest advances in this reign [Edw. IV.]. The point was now settled, that there being a feoffment to uses, the 'cestui que' use, or person beneficially entitled, could maintain no action at law, the Judges saying that he had neither 'jus in re' nor 'jus ad rem,' and that their forms could not be moulded so as to afford him any effectual relief, either as to the land or the profits. The Chancellors, therefore, with general applause, declared that they would proceed by subpoena against the feoffee to compel him to perform a duty which in conscience was binding upon him, and gradually extended the remedy against his heir and against his alienee with notice of the trust, although they held, as their successors have done, that the purchaser of the legal estate for valuable consideration without notice might retain the land for his own benefit. They therefore now freely made decrees requiring the trustee to convey according to the directions of the 'cestui que trust,' or person beneficially interested; and the most important branch of the equitable jurisdiction of the Court over trusts was firmly and irrevocably established."

Lord Campbell, Lives of the Chancellors, volume 1, page 309.

EQUITY: A. D. 1538. Lord Keeper of the Great Seal.

"Between the death, resignation, or removal of one chancellor, and the appointment of another, the Great Seal, instead of remaining in the personal custody of the Sovereign, was sometimes entrusted to a temporal keeper, either with limited authority (as only to seal writs), or with all the powers, though not with the rank of Chancellor. At last the practice grew up of occasionally appointing a person to hold the Great Seal with the title of 'Keeper,' where it was meant that he should permanently hold it in his own right and discharge all the duties belonging to it. Queen Elizabeth, ever sparing in the conferring of dignities, having given the Great Seal with the title of 'Keeper' to Sir Nicholas Bacon, objections were made to the legality of some of his acts,—and to obviate these, a statute was passed declaring that 'the Lord Keeper of the Great Seal for the time being shall have the same place, pre-eminence, and jurisdiction as the Lord Chancellor of England.' Since then there never have been a Chancellor and Keeper of the Great Seal concurrently, and the only difference between the two titles is, that the one is more sounding than the other, and is regarded as a higher mark of royal favor."

Lord Campbell, Lives of the Chancellors, volume 1, page 40.

ALSO IN: Sir W. R. Anson, Law and Custom of the Constitution, volume 2, page 150.

EQUITY: A. D. 1558. Increase of Business in the Court of Chancery.

"The business of the Court of Chancery had now so much increased that to dispose of it satisfactorily required a Judge regularly trained to the profession of the law, and willing to devote to it all his energy and industry. The Statute of Wills, the Statute of Uses, the new modes of conveyancing introduced for avoiding transmutation of possession, the questions which arose respecting the property of the dissolved monasteries, and the great increase of commerce and wealth in the nation, brought such a number of important suits into the Court of Chancery, that the holder of the Great Seal could no longer satisfy the public by occasionally stealing a few hours from his political occupations, to dispose of bills and petitions, and not only was his daily attendance demanded in Westminster Hall during term time, but it was necessary that he should sit, for a portion of each vacation, either at his own house, or in some convenient place appointed by him for clearing off his arrears."

Lord Campbell, Lives of the Chancellors, volume 2, page 95.

EQUITY: A. D. 1567-1632. Actions of Assumpsit in Equity.

"The late development of the implied contract to pay 'quantum meruit,' and to indemnify a surety, would be the more surprising, but for the fact that Equity gave relief to tailors and the like, and to sureties long before the common law held them. Spence, although at a loss to account for the jurisdiction, mentions a suit brought in Chancery, in 1567, by a tailor, to recover the amount due for clothes furnished. The suit was referred to the Queen's tailor, to ascertain the amount due, and upon his report a decree was made. The learned writer adds that 'there were suits for wages and many others of like nature.' A surety who had no counter-bond filed a bill against his principal in 1632, in a case which would seem to have been one of the earliest of the kind, for the reporter, after stating that there was a decree for the plaintiff, adds 'quod nota.'"

J. B. Ames, History of Assumpsit (Harvard Law Review, volume 2, pages 59-60).

EQUITY: A. D. 1592. All Chancellors, save one, Lawyers.

"No regular judicial system at that time prevailed in the court; but the suitor when he thought himself aggrieved, found a desultory and uncertain remedy, according to the private opinion of the chancellor, who was generally an ecclesiastic, or sometimes (though rarely) a statesman: no lawyer having sat in the court of chancery from the times of the chief justices Thorpe and Knyvet, successively chancellors to King Edward III. in 1372 and 1373, to the promotion of Sir Thomas More by King Henry VIII., in 1530. After which the great seal was indiscriminately committed to the custody of lawyers or courtiers, or churchmen, according as the convenience of the times and the disposition of the prince required, till Sargeant Puckering was made lord keeper in 1592; from which time to the present the court of chancery has always been filled by a lawyer, excepting the interval from 1621 to 1625, when the seal was entrusted to Dr. Williams, then dean of Westminster, but afterwards bishop of Lincoln; who had been chaplain to Lord Ellesmere when chancellor."

W. Blackstone, Commentaries, book 3, chapter 4.

EQUITY: A. D. 1595. Injunctions against Suits at Law. Opposition of common law courts.

"The strongest inclination was shown to maintain this opposition to the court of equity, not only by the courts, but by the legislature. The stat. 27 Elizabeth, c, l., which, in very general words, restrains all application to other jurisdictions to impeach or impede the execution of judgments given in the king's courts, under penalty of a praemunire, has been interpreted, as well as stat. Richard II., c. 5, not only as imposing a restraint upon popish claims of judicature, but also of the equitable jurisdiction in Chancery; and in the thirty-first and thirty-second years of this reign, a counsellor-at-law was indicted in the King's Bench on the statute of praemunire, for exhibiting a bill in Chancery after judgment had gone against his client in the King's Bench. Under this and the like control, the Court of Chancery still continued to extend its authority, supported, in some degree, by the momentum it acquired in the time of Cardinal Wolsey."

J. Reeves, History English Law (Finlason's edition.), volume 5, pages 386-387.

{1991}

EQUITY: A. D. 1596. Lord Ellesmere and his Decisions.

Kerly says the earliest chancellors' decisions that have come down to us are those of Lord Ellesmere. He was the first chancellor to establish equity upon the basis of precedents. But compare Reeves (Finlason's), History English Law, volume 3, page 553, who mentions decisions in the Year Books.

Kerly, History of the Court of Chancery, page 98.

EQUITY: A. D. 1601. Cy Pres Doctrine.

"There is no trace of the doctrine being put into practice in England before the Reformation, although in the earliest reported cases where it has been applied it is treated as a well recognized rule, and as one owing its origin to the traditional favour with which charities had always been regarded. Much of the obscurity which covers the introduction of the doctrine into our Law may perhaps be explained by the fact that, in the earliest times, purely charitable gifts, as they would now be understood, were almost unknown. The piety of donors was most generally displayed in gifts to religious houses, and the application of the subject matter of such gifts was exclusively in the Superiors of the different Orders, and entirely exempt from secular control. From the religious houses the administration of charitable gifts passed to the Chancellor, as keeper of the King's conscience, the latter having as 'parens patriae' the general superintendence of all infants, idiots, lunatics and charities. And it was not until some time later that this jurisdiction became gradually merged, and then only in cases where trusts were interposed, in the general jurisdiction of the Chancery Courts. It is not necessary to go into the long vexed question as to when that actually took place. It is enough to say that it is now pretty conclusively established that the jurisdiction of the Chancery Courts over charitable trusts existed anterior to, and independently of, the Statute of Charitable Uses, 43 Eliz., c. 4. As charitable gifts generally involved the existence of a trust reposed in some one, it was natural that the Chancery Court, which assumed jurisdiction over trusts, should have gradually extended that jurisdiction over charities generally; but the origin of the power, that it was one delegated by the Crown to the Chancellor, must not be lost sight of, as in this way, probably, can be best explained the curious distinct jurisdictions vested in the Crown and the Chancery Courts respectively to apply gifts Cy pres, the limits of which, though long uncertain, were finally determined by Lord Eldon in the celebrated case of Moggridge v. Thackwell, 7 ves. 69. If we remember that the original jurisdiction in all charitable matters was in the Crown, and that even after the Chancery Courts acquired a jurisdiction over trusts, there was still a class of cases untouched by such jurisdiction, we shall better understand how the prerogative of the Crown still remained in a certain class of cases, as we shall see hereafter. However this may be, there is no doubt that when the Chancery Courts obtained the jurisdiction over the charities, which they have never lost, the liberal principles of the Civil or Canon Law as to the carrying out of such gifts were the sources and inspirations of their decisions. And hence the Cy pres doctrine became gradually well recognised, though the mode of its application has varied from time to time. Perhaps the most striking instances of this liberal construction are to be found in the series of cases which, by a very strained interpretation of the Statute of Elizabeth with regard to charitable uses, decided that gifts to such uses in favour of corporations, which could not take by devise under the old Wills Act, 32 Hen. VIII., c. 1, were good as operating in the nature of an appointment of the trust in equity, and that the intendment of the statute being in favour of charitable gifts, all deficiencies of assurance were to be supplied by the Courts. Although, historically, there may be no connection between the power of the King over the administration of charities, and the dispensing power reserved to him by the earlier Mortmain Acts, the one being, as we have seen, a right of Prerogative, the other a Feudal right in his capacity as ultimate Lord of the fee, it is perhaps not wholly out of place to allude shortly to the latter, particularly as the two appear not to have been kept distinct in later times. By the earlier Mortmain Acts, the dispensing power of the King, as Lord Paramount, to waive forfeitures under these Acts was recognised, and gifts of land to religious or charitable corporations were made not 'ipso facto' void, but only voidable at the instance of the immediate Lord, or, on his default, of the King and after the statute 'quia emptores,' which practically abolished mesne seignories, the Royal license became in most cases sufficient to secure the validity of the gift. The power of suspending statutes being declared illegal at the Revolution, it was deemed prudent, seeing that the grant of licenses in Mortmain imported an exercise of such suspending power, to give these licenses a Parliamentary sanction; and accordingly, by 7 and 8 William III., c. 37, it was declared that the King might grant licenses to aliens in Mortmain, and also to purchase, acquire, and hold lands in Mortmain in perpetuity without pain of forfeiture. The right of the mesne lord was thus passed over, and the dispensing power of the Crown, from being originally a Feudal right, became converted practically into one of Prerogative. The celebrated Statute of 1 Edward VI., c. 14, against superstitious uses, which is perhaps the earliest statutory recognition of the Cy pres doctrine, points also strongly to the original jurisdiction in these matters being in the King." The author proceeds to trace at some length the subsequent developments of the doctrine both judicial and statutory. The doctrine is not generally recognised in the United States.