Part 642

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

_J. Parke, History of Chancery, page 43._

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

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

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

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

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

_W. Blackstone, Commentaries, book 3, page 179._

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

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

_W. Blackstone, Commentaries, book 3, page 294._

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

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

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

{1965}

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

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

_Lord Campbell, Lives of the Chancellors, volume I, page 272._

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

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

_J. B. Thayer, Select Cases on Evidence, page 1071._

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

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

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

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

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

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

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

_J. B. Thayer, Select Cases on Evidence, p. 1070._

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

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

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

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

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

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

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

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

_Charles Knight, History of England, volume 2, page 200._

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

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

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

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

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

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

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

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

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

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

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

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

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

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

{1967}

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

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

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

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

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

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

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

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

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

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