Imágenes de páginas
PDF
EPUB

nies in America did not carry with them the * Taking up next the English statutes: Here laws of the land as being bound by them we find a great diversity. Professor Colby, of wherever they should settle. They left the Dartmouth, says,* ‘By English Constitutional realm to avoid the inconveniences and hard- usage acts of parliament passed after the settleships they were under, where some of these ment of any American colony were not deemed laws were in force; particularly ecclesiastical to bind it unless it was named therein. Long laws, those for the payment of tithes and others. before the Revolution public opinion in AmerHad it been understood that they were to carry ica ordained and declared that no act of parliathese laws with them, they had better have ment passed after the settlement of any Ameristayed home among their friends, unexposed to can colony ought to have force therein, even if the risks and toils of a new settlement. They applied to it in express terms, unless adopted carried with them a right to such parts of the in it, at least, by tacit consent. When, therelaws of the land as they should judge advan- fore, independence was proclaimed and State tageous or useful to them; a right to be free Constitutions were adopted, English statutes from those they thought hurtful, and a right to amendatory of the common law, only so far as make such others as they should think neces- applicable and not inconsistent with the laws sary, not infringing the general rights of Eng of the United States or the State'were delishmen; and such new laws they were to form clared to be in force in the different States. as agreeable as might be to the laws of Eng. But in this matter the original States, and later land.'

the new States, have acted with true English “The common law of England has, in thirty irregularity, and so added to the diversity of States, been expressly adopted by a statute of the American law.' the present State, the statute being adopted in “ Indiana, Illinois, the Virginias, Missouri, most cases soon after the Revolution. Thus, Arkansas, Colorado and Wyoming, adopt all in Maryland, the people are declared entitled English statutes which were enacted prior to to the common law of England by the Mary- the fourth year of James I., with certain speci. land declaration of rights. In twenty-four fied exceptions even there; while Rhode Island other States the common law of England so far and Florida adopt all statutes up to the time of as applicable and not inconsistent with the con- the Declaration of Independence; and Pennsylstitution and laws of the State, or such part of vania all which were in force on May 10 of it as is adapted to the condition and wants of the year 1776 ; and New York, on the other the people, whatever that may mean, is adopted hand, expressly denies any effect to any Eng. and declared to be in force. In five other lish statutes in New York since May 1, 1788. States such parts of the common law as were in Thus in Pennsylvania practically all English force in the colony or in the territory previous statutes enacted before May 10, 1776, are in to the adoption of the State Constitution, are force, while in the neighboring State of New declared in force if not inconsistent therewith. York none are. "This accounts for thirty out of forty-six

Nevertheless, I think that the courts of all States and territories. Only in Florida and States — including the vast majority which are Dakota there is declared to be no Common Law silent on this point - do in fact enforce those cases where the law is declared by the codes. important English statutes which have grown In the other fifteen States and territories the

to be considered as part of the common law. statute-books are silent; but I will presume

I do not believe, therefore, that there is any that in all the common law of England prevails; great cause for diversity here again. for the only States about which there will be

“ Taking up next the colonial statutes : In any doubt, namely: Texas, Louisianna, New Massachusetts there are a great many colonial Mexico and Arizona, originally French

laws which are very interesting ; especially the Spanish States, belong to the class which have collection known as the 'Body of Liberties, expressly adopted the common law.

or

and which have probably some effect on the therefore, that there is no great ground for * Address of James F. Colby before Grafton & Coos Bar Asso

ciation, January 29, 1892. diversity here.

† Blackstone, Vol. I, p. 108.

We see,

present decisions of courts in that State ; but ously enough, is not identical with the Marythe bulk of them are of interest rather from land list; but includes a greater number of the sociological point of view. It comprises statutes, although many statutes were adopted ninety-eight sections, the first of which is iden. in both. tical with the civil rights provision of the Eng

“ The only constitutional bodies of law which lish petition of right to Charles I. Twelve left any trace on our present States, were the other sections concern similar rights. Section 9 body of liberties of Massachusetts; and the regulates monopolies and patents; and section declarations or bills of rights of Virginia, 10 declares lands free of all feudal systems of Rhode Island, and Connecticut, the last of tenure. Section 11 gives power to will; and which is claimed to be the first independent there are forty other sections concerning constitution ever adopted in writing by an Eng

lish state.

For the most elaborate of all the * rights at law. Twenty-one sections are called 'Laws concerning liberties, more partic-colony constitutional documents, the celebrated ularly concerning freemen ;' four sections con

scheme of government drawn by John Locke

for the settlement of South Carolina, although cerning ‘liberties of children,' four 'of servants; ' four of foreigners,' while only two printed still in the first volume of that colony's consider the ‘liberties of women.'

laws, so far as any effect or trace of it now “From a general glance at the Massachus goes, has vanished from the face of the earth."

After discussing the subject with great clearsetts colonial laws, it appears that substantially

ness and conciseness, Mr. Stimson, in concluall matters now covered by statute were treated sion, writes of the laws of marriage thus: of in them, and also many other matters con

“As a result, the conference suggested the cerning which statute regulation would now be

age of eighteen in the male, and sixteen in the indefensible; for, as we all know, the Puritan

female. Undoubtedly there are climatic reacommonwealth interfered with the liberty of

sons for not making this rule the same in all the citizen to a far greater extent than we would

parts of the country; nevertheless, the difficulty suffer the State to do nowadays.

of establishing a sort of Mason-and-Dixon's “As an example of the sort of colonial statute line on the ability to marry will be obvious to which is still in force to-day, one may mention the most Aippant observer. The recommendathat statute which was universally adopted tion, as a recommendation, does no harm; but throughout the colonies providing that all con- the reader will probably think that it had betveyances of land shall be by deed, and not by ter stay a recommendation, that the several livery of seisin; and establishing the relations States, while perhaps increasing the common within which a person may not marry.

law age, should nevertheless be left to deter“ The laws of New Hampshire and Rhode mine such precise needs as their own experience Island were much like those of Massachusetts, warrants, and that in all States no marriage and are quite as bulky. The laws of Connec. should be impeached for non-age which is folticut are still more so. The laws of New York lowed by the birth of a child. One may appreare contained in statutes at large ; they are hend all seriousness that the question of bulky and not digested; but most of them marriage and divorce cannot be settled. This were, after all, mere ordinances or regulations is not saying that it is not well to agitate it and of government; not statutes affecting the com- improve the laws where we see them at faultmon law. In Maryland we find an official vol- | notably in matters of divorce; and on this ume of English statutes in force running from point the conference made the following recomthe ninth of Henry III.-the statute of dower mendations : - down to the eleventh of George III.— the 'Resolved, That it is the sense of this conference renewal of leases ; and in South Carolina we that no judgment or decree of divorce should be find an act of 1712 giving a similar list of the granted unless the defendant be domiciled within the

State in which the action is brought, or shall have statutes of the kingdom of England, or South

been domiciled therein at the time the cause of action Britain, which were in force in that colony,

arose, or unless the defendant shall have been personrunning from Magna Charta ninth Henry III., ally served with process within said State, or shall to the twelfth of William III. This list, curi- I have voluntarily appeared in such action or proceeding.

'Resolved, That where a marriage is dissolved both Situation I.-In command of a United States parties to the action shall be at liberty to marry man-of-war, cruising along the west coast of again.'

South America, you arrive in the vicinity of lhe “ This will at least prevent what is undoubt

port

of Talcahuano. When five miles off the edly the greatest abuse now, namely, the pro- coast, you discover that an American merchantcuring of divorces easily and without publicity man is being chased at that distance from the in foreign States, which have no proper juris- nearest land by a public vessel of the nationdiction, and without notice to the defendant

ality of the port.

She is arrested and taken party, who is usually, in such cases, the inno- into port, and, upon inquiry, you ascertain that cent party. But it would seem that the ques- it was for landing Chinese coolies in violation tion of marriage is one which not only varies of a local law. You follow these vessels into at a given time in different sects, in different port, and, after making inquiries concerning communities, in different civilizations, and in the matter, take up a certain line of conduct, different races, but is one upon which any one

which please state. community is not at a point of stable equilib

You find that the American vessel is foreign rium. Unquestionably this most important re-built, with a properly made out and registered lation is undergoing a change, a change at

consular certificate. Does the fact that she is least in the point of view from which it is re

not a regularly documented vessel of the United garded, if not in the statutes embodying it. States prevent any protection to which a legal Democracy, the modern view of property, the vessel of the United States would be entitled ? other modern movement which only began

After the captured merchantman is anchored with Mary Wollstonecroft in the early part of in the port, the United States flag is hauled this century, and is known as the emancipation down from her and one of the port substituted. of women - is certainly, in its last result, not Do you object, and if so, why? going to leave the relation of the sexes where

The newly arrived American minister sends it found it. And yet, so far, there has been on

you written directions to seize the captured vesthe statute book very little change. All the

sel in port and take her to a home port. What debates of conferences such as this, while in

is your answer to this communication ? teresting, as the conversation of any intelligent

A native boatman attacks the coxswain of person must be on this subject, are neverthe

your gig while it is lying astern of the seized less entitled to little more consideration than-

merchantman. He defends himself in the perhaps not so much as—that great unconscious struggle, throwing the boatman overboard out public sentiment, which does not rise to that of the gig. The boatman goes ashore and point of conscious intellectual consideration,

secures a warrant for the arrest of your coxbut which, behind the manners and movements

swain, and the police come off to the ship unof mankind, dominates the action of humanity, der your comniand to arrest him. What do forms society, and only afterward appears in laws and statutes."

The endeavor is also made to arrest him from At Newport, there will be given this summer

your gig, when he brings you ashore next day.

He is finally arrested on liberty on shore. State a course in international law by the war college. In view of the recent international difficulties, your attitude in the latter cases. this subject has become one of interest and

Situation II. – While passing through the importance, and it is becoming more and more Straits of Magellan, in command of a small recognized that the growth and development of cruiser, you come to anchor off the Chilean well-recognized principles of international law settlement of Sandy Point. This town has no will greatly facilitate peaceful settlements of consular or diplomatic representative of the controversies between nations. The problems United States, and has no telegraphic commuwhich have been offered for solution at this nication with the civilized world. You find court are herewith given. In preparing answers to detained at anchor off Sandy Point a number these question, each person is required to furnish of merchant vessels — American, English, and authorities and precedents wherever possible. German — whose masters inform you that they

you do?

are denied a passage through the straits. This announce that they have orders, under certain prevents any mail communication with the out. contingencies, which have now arrived, to reside world,

quest your departure at once from Sandy Point The Chilean governor on shore informs you

and the straits. They regret to tell you that, that the straits are considered by his govern- if necessary to enforce this request, they will ment as exclusively territorial waters of Chile, have to use the superior force under their comand that he has, for what he deems sufficient

mand. What do you do? reasons, closed the straits to passage by merch

What instructions are likely to be sent by our antien, and that the merchantmen, having government to our representative in Santiago in refused to go back, were detained by force by regard to this matter? his order. He further states that he does not feel authorized to deny passage, however, to

The Supreme Court of the United States men-of-war. At this time no war exists, and

just before adjournment banded down a dethere are no belligerent operations in the vi- cision which establishes the principles of the cinity. What action do you take in response

right of self-defense. The decision was given to the appeal from the American merchantmen ?

on the appeal of Babe Beard from a judgment Please explain in full the situation and the of conviction and sentence of eight years' imreason for your action.

prisonment for manslaughter. The facts of After taking action toward vessels of your the case, it seems, were, that Beard had three own nationality, the masters of the English and

brothers-in-law who came to his house with the German vessels also appeal to you for similar

express determination of driving away a cow, action on their behalf. What response do you the ownership of which was in dispute between make, and why?

the parties. One of the brothers-in-law adYou deem it your duty to remain at Sandy

vanced upon Beard, who had a gun in his Point, and while there the aborigines (savages) hands, and made a motion as if to draw a rethreaten an attack and massacre. The governor volver from his pocket. Beard struck this begs you to land a force, and otherwise come brother-in-law over the head, inflicting a wound to his aid in repelling such an attack. What

from which he died. On the trial the judge do you do, and why?

instructed the jury in regard to the law of selfThere are several American citizens residing defense, and said that Beard was compelled by at Sandy Point, transacting business, and own that law to avoid danger at the hands of the ing property there as aliens. The governor person who threatened him by going away compels them to join a military company to de- from the place, that the only place where he fend the town. They question his right, and need not retreat further was his dwelling place. appeal to you. What answer do you make, Judge Harlan, in delivering the opinion of the and why?

court, says that the charge was defective in Finally a large military detachment arrives i point of law on several grounds, and in disfrom Chile, convoyed by the Arturo Prat and cussing this question in his opinion, he says : two fast protected cruisers. The trouble with “ The court, several times in its charge, the Indians and the danger from revolt on the raised or suggested the inquiry whether Beard part of the convicts at large, being imminent was in the lawful pursuit of his business, that and serious, the governor, who is also senior is, doing what he had a right to do, when, after military officer, declares martial law, and, returning home in the afternoon, he went from among other things, proceeds to seize the prop- his dwelling house to a part of his premises erty of the American residents for military pur- near the orchard fence, just outside of which poses. Upon their violent resistance to this his wife and the Jones' brothers were engaged action, they are arrested, tried, and punished in a dispute — the former endeavoring to preby a military commission, the civil courts being vent the cow from being taken away, the latter suspended. What action do you take as to trying to drive it off the premises. Was he not this?

doing what he had the legal right to do, when, Finally, the military and naval commanders keeping within his own premises and near his

re

dwelling, he joined his wife, who was in dis of the rent which will become due under the pute with others, one of whom, as he had been lease. In deciding the case, Mr. Justice informed, had already threatened to take the Williams says : cow away or kill him? We have no hesitation

“What is a lessor's right of proof in respect in answering this question in tlie affirmative of an unexpired term of years at the date of

In our opinion, the court below the commencement of the liquidation ? If the erred in holding that the accused, while on his lease is still subsisting, how can he prove immepremises, outside of his dwelling house, was diately? He cannot have both the rent and under a legal duty to get out of the way, if he possession. What right can he have to could, of his assailant, who according to one

enter and have the premises again? There view of the evidence, had threatened to kill the must be a surrender or an accepted repudiation defendant, in execution of that purpose had of the lease. Then it would be the same thing armed himself with a deadly weapon, with that

as in bankruptcy. In fact, unless there is a weapon concealed upon his person, went to the disclaimer, I do not see how Hardy v. Fotherdefendant's premises, despite the warning of

gill can apply. As the liquidator will not the latter to keep away, and by word and act

accept the terms offered by the land company, indicated his purpose to attack the accused.

I cannot make him do so. I must, therefore, “ The defendant was where he had the right deal with the matter on the basis of there being to be when the deceased advanced upon him

a subsisting lease. The land company's rights in a threatening manner and with a deadly will be those under the old cases,which are rightly weapon; and if the accused did not provoke contended to be good law. I cannot make the assault and had at the time reasonable the bank say they will give up the premises at grounds to believe, and in good faith believed, the end of the seven years. All that I can do that the deceased intended to take his life or

is to allow a proof for breaches of the lease up to do him great bodily harm, he was not

to the present time. According to my view, if obliged to retreat, nor to consider whether he the company in liquidation remain in beneficial could safely retreat, but was entitled to stand occupation of the lease and premises, that is, if his ground and meet any attack made upon they are occupying and get the benefit of the him with a deadly weapon, in such way and lease, or get the rents and thus get the benefit with such force as, under all the circumstances, of the lease, I shall do my very best to make he, at the moment, honestly believed, and had them pay rent and not a dividend. If the reasonable grounds to believe, was necessary people get the benefit of premises after the to save his own life or to protect himself from liquidation has commenced they must pay the great bodily injury.

In my opinion, the principle of Re HayAs the proceedings below were not con- tor Granite Company and Horsey's Claim ducted in accordance with these principles, applies to this case, but if the bank are in the judgment must be reversed and the cause beneficial occupation. I go further and say remanded, with directions to grant a new trial.” that the land company can enter a claim for

the full rent. The reasonable thing is that the In England in the case of The Hong Kong bank should surrender the lease at once and Land Investment and Agency Company a de- allow the land company to prove for the rent cision has been reached in regard to the rights on the basis of that snrrender. As, however, of a lessor of property where the lessee is the land company decline to accept a surrender winding-up the business of the corporation. of the lease, I direct that they shall be at The court holds that where at the date of liberty to prove for the rent actually due and the winding-up of the company the corporation to enter a contingent claim for the present is the lessee of premises for an unexpired term value of the future rent and obligations in the of years, the lessor is entitled to prove in the lease, following the cases of Re Haytor Granite winding-up for the amount of the rent then Company and Re London and Colonial Comdue, and to enter a claim for the full amount | pany; Horsey's Claim."

rent.

« AnteriorContinuar »