Part 645

"A glance into the pages of the _Judges of England, by Foss,_ will show with what ruthless vigour the Stuarts exercised their prerogative of dismissing Judges whose decisions were displeasing to the court. Even after the Revolution, the prerogative of dismissal, which was supposed to keep the Judges dependent on the Crown, was jealously defended. When in 1692 a Bill passed both Houses of Parliament, establishing the independence of Judges by law, and confirming their salaries, William III. withheld his Royal assent. Bishop Burnet says, with reference to this exercise of the Veto, that it was represented to the King by some of the Judges themselves, that it was not fit that they should be out of all dependence on the Court. When the Act of Settlement secured that no Judge should be dismissed from office, except in consequence of a conviction for some offence, or the address of both Houses of Parliament, the Royal jealousy of the measure is seen by the promise under which that arrangement was not to take effect till the deaths of William III. and of Anne, and the failure of their issue respectively, in other words, till the accession of the House of Hanover. It was not till the reign of George III. that the Commissions of the Judges ceased to be void on the demise of the Crown."

_J. G. S. MacNeill, Law Magazine and Review, 4th series, volume 16 (1890-91), page 202._

COMMON LAW: A. D. 1760. Stolen Bank Notes the Property of a Bona Fide Purchaser.

"The law of bills of exchange owes much of its scientific and liberal character to the wisdom of the great jurist, Lord Mansfield. Sixteen years before the American Revolution, he held that bank notes, though stolen, become the property of the person to whom they are bona fide delivered for value without knowledge of the larceny. This principle is later affirmed again and again as necessary to the preservation of the circulation of all the paper in the country, and with it all its commerce. Later there was a departure from this principle in the noted English case of Gill v. Cubitt, in which it was held that if the holder for value took it under circumstances which ought to have excited the suspicion of a prudent and careful man, he could not recover. This case annoyed courts and innocent holders for years, until it was sat upon, kicked, cuffed, and overruled, and the old doctrine of 1760 re-established, which is now the undisputed and settled law of England and this country."

_Wm. A. McClean, Negotiable Paper (The Green Bag, volume 5, page 86)._

COMMON LAW: A. D. 1768. Only one Business Corporation Chartered in this Country before the Declaration of Independence.

"Pennsylvania is entitled to the honor of having chartered the first business corporation in this country, 'The Philadelphia Contributionship for Insuring Houses from Loss by Fire.' It was a mutual insurance company, first organized in 1752, but not chartered until 1768. It was the only business corporation whose charter antedated the Declaration of Independence. The next in order of time were: 'The Bank of North America,' chartered by Congress in 1781 and, the original charter having been repealed in 1785, by Pennsylvania in 1787; 'The Massachusetts Bank,' chartered in 1784; 'The Proprietors of Charles River Bridge,' in 1785; 'The Mutual Assurance Company' (Philadelphia), in 1786; 'The Associated Manufacturing Iron Co.' (N. Y.), in 1786. These were the only joint-stock business corporations chartered in America before 1787. After that time the number rapidly increased, especially in Massachusetts. Before the close of the century there were created in that State about fifty such bodies, at least half of them turn-pike and bridge companies. In the remaining States combined, there were perhaps as many more. There was no great variety in the purposes for which these early companies were formed. Insurance, banking, turn-pike roads, toll-bridges, canals, and, to a limited extent, manufacturing were the enterprises which they carried on."

_S. Williston, History of the Law of Business Corporations before 1800 (Harvard Law Review, volume 2, pp. 165-166)._

A. D. 1776. Ultimate property in land.

"When, by the Revolution, the Colony of New York became separated from the Crown of Great Britain, and a republican government was formed, The People succeeded the King in the ownership of all lands within the State which had not already been granted away, and they became from thenceforth the source of all private titles."

_Judge Comstock, People v. Rector, etc., of Trinity Church, 22 N. Y., 44-46._

"It is held that only such parts of the common law as, with the acts of the colony in force on April 19, 1775, formed part of the law of the Colony on that day, were adopted by the State; and only such parts of the common and statute law of England were brought by the colonists with them as suited their condition, or were applicable to their situation. Such general laws thereupon became the laws of the Colony until altered by common consent, or by legislative enactment. The principles and rules of the common law as applicable to this country are held subject to modification and change, according to the circumstances and condition of the people and government here. … By the English common law, the King was the paramount proprietor and source of all title to all land within his dominion, and it was considered to be held mediately or immediately of him. After the independence of the United States, the title to land formerly possessed by the English Crown in this country passed to the People of the different States where the land lay, by virtue of the change of nationality and of the treaties made. The allegiance formerly due, also, from the people of this country to Great Britain was transferred, by the Revolution, to the governments of the States."

_James Gerard, Titles to Real Estate (3rd edition), pages 26 and 5._

"Hence the rule naturally follows, that no person can, by any possible arrangement, become invested with the absolute ownership of land. But as that ownership must be vested somewhere, or great confusion, if not disturbance, might result, it has, therefore, become an accepted rule of public law that the absolute and ultimate right of property shall be regarded as vested in the sovereign or corporate power of the State where the land lies. This corporate power has been naturally and appropriately selected for that purpose, because it is the only one which is certain to survive the generations of men as they pass away. Wherever that sovereign power is represented by an individual, as in England, there the absolute right of property to all land in the kingdom is vested in that individual whoever succeeds to the sovereignty, succeeds to that right of property and holds it in trust for the nation. {1975} In this country, where the only sovereignty recognized in regard to real property, is represented by the State in its corporate capacity, that absolute right of property is vested in the State."

_Anson Bingham, Law of Real Property, page 3._

COMMON LAW: A. D. 1778. First Instance of Assumpsit upon a Vendor's Warranty.

"A vendor who gives a false warranty may be charged to-day, of course, in contract; but the conception of such a warranty, as a contract is quite modern. Stuart v. Wilkens [3 Doug., 18], decided in 1778, is said to have been the first instance of an action of assumpsit upon a vendor's warranty."

_J. B. Ames, History of Assumpsit (Harvard Law Review, volume 2, page 8)._

COMMON LAW: A. D. 1783. Lord Mansfield laid foundation of Law of Trade-Marks.

"The symbolism of commerce, conventionally called 'trade-marks,' is, according to Mr. Browne, in his excellent work on trade-marks, as old as commerce itself. The Egyptians, the Chinese, the Babylonians, the Greeks, the Romans, all used various marks or signs to distinguish their goods and handiwork. The right to protection in such marks has come to be recognized throughout the civilized world. It is, however, during the last seventy or eighty years that the present system of jurisprudence has been built up. In 1742 Lord Hardwick refused an injunction to restrain the use of the Great Mogul stamp on cards. In 1783 Lord Mansfield laid the foundation of the law of trade-marks as at present developed, and in 1816, in the case of Day v. Day, the defendant was enjoined from infringing the plaintiff's blacking label. From that time to the present day there have arisen a multitude of cases, and the theory of the law of trade-marks proper may be considered as pretty clearly expounded. In 1875 the Trade-marks Registration Act provided for the registration of trade-marks, and defined what could in future properly be a trade-mark. In this country the Act of 1870, corrected by the Act of 1881, provided for the registration of trade-marks. The underlying principle of the law of trade-marks is that of preventing one man from acquiring the reputation of another by fraudulent means, and of preventing fraud upon the public; in other words, the application of the broad principles of equity."

_Grafton D. Cushing, Cases Analogous to Trade-marks (Harvard Law Review, volume 4, page 321)._

COMMON LAW: A. D. 1790. Stoppage in Transitu, and Rights of Third Person under a Bill of Lading.

"Lord Loughborough's most elaborate common law judgment was in the case of Lichbarrow v. Mason, when he presided in the court of Exchequer Chamber, on a writ of error from the Court of King's Bench. The question was one of infinite importance to commerce—'Whether the right of the unpaid seller of goods to stop them while they are on their way to a purchaser who has become insolvent, is divested by an intermediate sale to a third person, through the indorsement of the bill of lading, for a valuable consideration?' He concluded by saying:—'From a review of all the cases it does not appear that there has ever been a decision against the legal right of the consignor to stop the goods in transitu before the case which we have here to consider. The rule which we are now to lay down will not disturb but settle the notions of the commercial port of this country on a point of very great importance, as it regards the security and good faith of their transactions. For these reasons we think the judgment of the Court of King's Bench ought to be reversed.' But a writ of error being brought in the House of Lords, this reversal was reversed, and the right of the intermediate purchaser as against the original seller, has ever since been established."

_Lord Campbell, Lives of the Chancellors, volume 6, pages 138-139._

COMMON LAW: A. D. 1792. Best-Evidence rule.

"In Grant v. Gould, 2 H. Bl. p. 104 (1792), Lord Loughborough said: 'That all common law courts ought to proceed upon the general rule, namely, the best evidence that the nature of the case will admit, I perfectly agree.' But by this time it was becoming obvious that this 'general rule' was misapplied and over-emphasized. Blackstone, indeed, repeating Gilbert, had said in 1770, in the first editions of his Commentaries (III. 368) as it was said in all the later ones: 'The one general rule that runs through all the doctrine of trials is this, that the best evidence the nature of the case will admit of shall always be required, if possible to be had; but, if not possible, then the best evidence that can be had shall be allowed. For if it be found that there is any better evidence existing than is produced, the very not producing it is a presumption that it would have detected some falsehood that at present is concealed.' But in 1794, the acute and learned Christian, in editing the twelfth edition, pointed out the difficulties of the situation: 'No rule of law,' he said, 'is more frequently cited, and more generally misconceived, than this. It is certainly true when rightly understood; but it is very limited in its extent and application. It signifies nothing more than that, if the best legal evidence cannot possibly be produced, the next best legal evidence shall be admitted.'"

_J. B. Thayer, Select Cases on Evidence, page 732._

COMMON LAW: A. D. 1794. First Trial by Jury in United States Supreme Court.

"In the first trial by jury at the bar of the Supreme Court of the United States, in 1794, Chief-Justice Jay, after remarking to the jury that fact was, for the jury and law for the court, went on to say: 'You have, nevertheless, a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.' But I am disposed to think that the common-law power of the jury in criminal cases does not indicate any right on their part; it is rather one of those manifold illogical and yet rational results, which the good sense of the English people brought about, in all parts of their public affairs, by way of easing up the rigor of a strict application of rules."

_J. B. Thayer, Law and Fact in Jury Trials (Harvard Law Review, volume 4, page 171)._

ALSO IN: _J. B. Thayer, Select Cases on Evidence, page 153._

COMMON LAW: A. D. 1813-1843. Insolvents placed under Jurisdiction of a Court, and able to claim Protection by a Surrender of Goods.

"It was not until 1813 that insolvents were placed under the jurisdiction of a court, and entitled to seek their discharge on rendering a true account of all their debts and property. A distinction was at length recognized between poverty and crime. This great remedial law restored liberty to crowds of wretched debtors. In the next thirteen years upwards of 50,000 were set free. Thirty years later, its beneficent principles were further extended, when debtors were not only released from confinement, but able to claim protection to their liberty, on giving up all their goods."

_T. E. May, Constitutional History of England (Widdleton's edition) volume 2, page 271._

See, also, DEBT, LAWS CONCERNING.

{1976}

COMMON LAW: A. D. 1819. The Dartmouth College Case.

"The framers of the Constitution of the United States, moved chiefly by the mischiefs created by the preceding legislation of the States, which had made serious encroachments on the rights of property, inserted a clause in that instrument which declared that 'no State shall pass any ex post-facto law, or law impairing the obligation of contracts.' The first branch of this clause had always been understood to relate to criminal legislation, the second to legislation affecting civil rights. But, before the case of Dartmouth College v. Woodward occurred, there had been no judicial decisions respecting the meaning and scope of the restraint in regard to contracts. … The State court of New Hampshire, in deciding this case, had assumed that the college was a public corporation, and on that basis had rested their judgment; which was, that between the State and its public corporations there is no contract which the State cannot regulate, alter, or annul at pleasure. Mr. Webster had to overthrow this fundamental position. If he could show that this college was a private eleemosynary corporation, and that the grant of the right to be a corporation of this nature is a contract between the sovereign power and those who devote their funds to the charity, and take the incorporation for its better management, he could bring the legislative interference within the prohibition of the Federal Constitution. … Its important positions, … were these: 1. That Dr. Wheelock was the founder of this college, and as such entitled by law to be visitor, and that he had assigned all the visitatorial powers to the trustees. 2. That the charter created a private and not a pubic corporation, to administer a charity, in the administration of which the trustees had a property, which the law recognizes as such. 3. That the grant of such a charter is a contract between the sovereign power and its successors and those to whom it is granted and their successors. 4. That the legislation which took away from the trustees the right to exercise the powers of superintendence, visitation, and government, and transferred them to another set of trustees, impaired the obligation of that contract. … On the conclusion of the argument, the Chief Justice intimated that a decision was not to be expected until the next term. It was made in February, 1819, fully confirming the grounds on which Mr. Webster had placed the cause. From this decision, the principle in our constitutional jurisprudence, which regards a charter of a private corporation as a contract, and places it under the protection of the Constitution of the United States, takes its date. To Mr. Webster belongs the honor of having produced its judicial establishment."

_G. T. Curtis, Life of Daniel Webster, volume 1, pages 165-169 (5th edition)._

COMMON LAW: A. D. 1823. Indian Right of Occupancy.

"The first case of importance that came before the court of last resort with regard to the Indian question had to do with their title to land. This was the case of Johnson v. McIntosh, 8 Wheaton, 543. In this case, Chief Justice Marshall delivered the opinion of the court and held that discovery gave title to the country by whose subjects or by whose authority it was made, as against all persons but the Indians as occupants; that this title gave a power to grant the soil and to convey a title to the grantees, subject only to the Indian right of occupancy; and that the Indians could grant no title to the lands occupied by them, their right being simply that of occupancy and not of ownership. The Chief Justice says: 'It has never been doubted that either the United States or the several States had a clear title to all the lands within the boundary lines described in the treaty (of peace between England and United States) subject only to the Indians' right of occupancy, and that the exclusive power to extinguish that right was vested in that government which might constitutionally exercise it. … The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold and assert in themselves the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise. The power now possessed by the government of the United States to grant lands resided, while we were colonies, in the crown or its grantees. The validity of the title given by either has never been questioned in our courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy, and recognize the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.'"

_William B. Hornblower, 14 American Bar Association Report 264-265._

COMMON LAW: A. D. 1826 Jurors from the Body of the County.

"In the time of Fortescue, who was lord chancellor in the reign of Henry VI. [1422-61], with the exception of the requirement of personal knowledge in the jurors derived from near neighborhood of residence, the jury system had become in all its essential functions similar to what now exists. … The jury were still required to come from the neighborhood where the fact they had to try was supposed to have happened; and this explains the origin of the venire (vicinetum), which appears in all indictments and declarations at the present day. It points out the place from which the jury must be summoned. … Now, by 6 George IV., ch. 50, the jurors need only be good and lawful men of the body of the county."

_W. Forsyth, Trial by Jury, chapter 7, section 3._

{1977}

COMMON LAW: A. D. 1828. Lord Tenterden's Act.

"Be it therefore enacted … , That in Actions of Debt or upon the Case grounded upon any Simple Contract or Acknowledgement or Promise by Words only shall be deemed sufficient Evidence of a new or continuing Contract, … unless such Acknowledgement or Promise shall be made or contained by or in some Writing to be signed by the Party chargeable thereby."

_Statutes at Large, volume 68, 9 George IV., c. 14._

COMMON LAW: A. D. 1833. Wager of Law abolished, and Effect upon Detinue.

"This form of action (detinue) was also formerly subject (as were some other of our legal remedies), to the incident of 'wager of law' ('vadiatio legis'),—a proceeding which consisted in the defendant's discharging himself from the claim on his own oath, bringing with him at the same time into court eleven of his neighbors, to swear that they believed his denial to be true. This relic of a very ancient and general institution, which we find established not only among the Saxons and Normans, but among almost all the northern nations that broke in upon the Roman empire, continued to subsist among us even till the last reign, when it was at length abolished by 3 and 4 Will, IV. c. 42, s. 13: and as the wager of law used to expose plaintiffs in detinue to great disadvantage, it had the effect of throwing that action almost entirely out of use, and introducing in its stead the action of trover and conversion."

_Stephens, Commentaries, volume 3, pages 442-443 (8th edition)._

COMMON LAW: A. D. 1834. Real Actions abolished.