Part 135

"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.