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CENTENNIAL LAW.

E have often promised ourselves to furnish our readers a few chapters on some ancient laws and ancient legal proceedings of this country. Although we cannot go as far back for materials as our English brethren, yet we have some legal traditions of respectable age. If we cannot speak of magna charta, we can refer to the blue laws of Connecticut, and if we have nothing exactly answering to the State trials, we have an almost unparalleled history in the Salem Witchcraft trials. But just now the demand seems to be for things about one hundred years old. Our revolutionary battles are being fought over by orators and local historians, and the sites of those patriotic contests are being marked for posterity by enduring monuments. are well assured that our ancestors were sturdy soldiers and warm patriots, and it may not be amiss to inquire a little into their legal regulations and opinions. We find some very interesting reminiscences on these subjects in an excellent History of Eastern Vermont, by Mr. Benjamin H. Hall of the Troy bar. An excursion through his chapter on the Early Laws of Vermont may prove amusing and instructive.

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Every member of the General Assembly, before taking his seat, was required to profess his belief in God, in the inspiration of the Scriptures, and in the Protestant religion. These tests would seem more appropriate for the "general assembly of saints," than of earthly law-givers, and practically there seems to have been some liberality of construction, for Ethan Allen, although he refused to subscribe to them, acted as a member from Arlington. The importance of public education was early recognized. The constitution also provided that "whenever an office, through increase of fees or otherwise, becomes so profitable as to occasion many to apply for it, the profits ought to be lessened by the legislature." The application of such a rule in these days would be equivalent to denying any compensation to officeholders, for there is no office, however trifling its emoluments, that many patriotic souls are not yearning to fill. The criminal system was of almost Draconian sternness. It recognizes nine offenses punishable by death, namely: treason, murder, arson, rape, bestiality, sodomy, perjury to cause one's death, mutilation of tongue, eye, or male sexual organs, blaspheming any person of the Trinity, or cursing in the like manner. We strongly suspect that Ethan Allen would have been fairly liable to the penalty for the last-named offense. Probably the Vermonters did not regard his citation of authority for demanding the surrender of Ticonderoga as exactly blasphemous, although it is very likely that the colonel meant to swear. There seems to have been a belief in the efficacy of stigmatizing certain offenses by branding or lettering, and of

whipping. Manslaughter was punished by forfeiture of goods to the State, by whipping on the naked body, and branding in the hand with a hot iron the letter M. Incest was punished by sitting an hour on the gallows with a rope around the neck, by whipping with not exceeding thirty-nine stripes, and by wearing "a capital letter I, of two inches long, and proportionable figures, cut out in cloth of a contrary color to their clothes, and sewed upon their garments on the outside of their arm, or on their back in open view." (By the way, we have often wondered whether the number of the thirtynine articles of the Catechism was suggested by the punishment of thirty-nine stripes.) Adultery with a married or betrothed woman was punished by whipping both parties, burning on the forehead with a capital A, and wearing the same letter on the back of the outside garment, of a different color, in fair view, during their abode in the State. (This, we should suppose, would have tended to promote emigration.) The same punishment was denounced against polygamy. Burglary was punished by branding with a B in the forehead, and nailing one of the offender's ears to a post and cutting it off, and whipping; for the second offense there was the like branding, and nailing, and cutting off of the other ear; for the third offense the punishment was death, the offender being deemed "incorrigible." Perhaps if he had possessed more ears the capital penalty would have been postponed. Counterfeiting was punished by cutting off the right ear, branding with C, and perpetual imprisonment. If all the guilty were branded according to law, the Vermonters must have been a finely lettered community. The rich and the poor do not seem always to have been equally dealt with. Perjury was punished by a fine of £50 and imprisonment for six months, but if the offender could not pay the fine, he was let off by sitting in the pillory two hours, and having both ears nailed and cut off, which shows the value of Vermont ears a hundred years ago. Willful lying, to public prejudice or private injury, or deceiving or abusing the people with false news or reports, was punished by fine, sitting in the stocks, and whipping, the punishment being increased with each repetition of the offense, except that in no case was the number of stripes to exceed the orthodox number of thirty-nine. Theft was punished by compelling three-fold restitution, by fine, and by a sort of temporary slavery, the prosecutor being empowered to dispose of the offender in service to any | subject of the State for such time as he should be assigned to the prosecutor by the court. "Unseasonable night-walking," that is to say: after nine o'clock, was prohibited, as was also the convening of persons under the government of parents, guardians, or masters, after that untimely hour. "Tavern-haunters" were punished by posting their names

at the door of every tavern, and prohibiting the tavern-keeper from supplying them with any thing in the way of strong drink--a very tantalizing punishment. The quiet and good of the Sabbath was vigilantly protected, no clamorous discourse, shouting, halooing, screaming, running, riding, dancing, jumping, swimming, or blowing of horns, was tolerated on the Lord's day. Listening outside of the meeting-house during the time of public worship was not permitted. Secular meetings of any number of persons, in the street or elsewhere, on Saturday or Monday evening, were forbidden, under penalty of fine or stocks. Probably sitting in the stocks was not much harder than sitting in a meeting-house of that day. The attorney's oath in those days meant business. It was as follows: "You swear by the ever-living God, that you will do no falsehood, nor consent to any to be done in the court; and if you know of any to be done, you shall give knowledge thereof to the judges or justices of the court, or some of them, that it may be reformed. You shall not wittingly, or willingly, or knowingly promote, sue, or procure to be sued, any false or unlawful suit, nor give aid or consent to the same. You shall demean yourself in the office of an attorney within the court, according to the best of your learning and discretion, and with all good fidelity, as well to the court as to the client." The records of the courts show that the punishment of whipping on the naked body was often inflicted on both men and women.

Mr. Hall gives several notable instances of popular legal errors prevailing in Vermont. One notion was that if the friends of one dying in prison carried his remains beyond the boundaries of the jail yard, they were accomplices in an "escape," and liable to satisfy the judgment by virtue of which he had been confined. Another notion was that if one should bury the body of an imprisoned debtor, he thereby became administrator in his own wrong, and liable to discharge the debtor's obligations. In the case of Judge Chandler, who died while confined in jail for debt, his interment became a serious problem. His body was kept in the jail until it became so offensive as to endanger the health of the surviving prisoners. In this predicament the jailer discovered that by stretching the chain he could include within the jail liberties a small portion of the adjoining burying-ground. A grave was dug, commencing just outside the grave-yard fence, and just within the jail-yard, sloping under the fence, until a sufficient depth and obliquity was obtained. So Judge Chandler was buried after a christian fashion, and yet no "escape" was suffered.

Another instance we give in Mr. Hall's own language: "By another strange perversion of legal principles, at this early period, certain people were led to believe that whoever should marry a widow, who was administratrix upon the estate of her de

ceased husband, and should through her come in possession of any thing that had been purchased by the deceased husband, would become administrator in his own wrong, and render himself liable to answer for the goods and estate of his predecessor. The method adopted to avoid this difficulty in the marriage of Asa Averill, of Westminster, to his second wife, the widow of Major Peter Lovejoy, was very singular. By the side of the chimney in the widow's house was a recess of considerable size. Across this a blanket was stretched in such a manner as to form a small inclosure. Into this Mrs. Lovejoy passed with her attendants, who completely disrobed her, and threw her clothes into the room. She then thrust her hand through a small aperture purposely made in the blanket. The proffered member was clasped by Mr. Averill, and in this position he was married to the nude widow on the other side of the woolen curtain. He then produced a complete assortment of wedding attire, which was slipped into the recess. The new Mrs. Averill soon after appeared in full dress, ready to receive the congratulations of the company, and join in their hearty rustic festivities." That wedding was certainly nudum pactum so far as the bride was concerned.

LEGAL NOTES FROM ABROAD.

LONDON, October 25, 1877. N the 26th of September, the day upon which the verdict in the ") Penge case" became known, I wrote you an expression of opinion on the manner in which the trial was conducted. That opinion accurately foreshadowed the conclusions of a vast majority of the British public. The agitation, through the newspapers, and by petition and public meetings, which finally compelled the Home Secretary to respite the prisoners, is an old story now, but it is worth while to recall it to the extent of noticing how unanimously and heartily and energetically this community went to work to compel the government to pause on the verge of a great public wrong. Not that anybody sympathised or does now sympathise with the convicts; they are loathsome wretches, in any view of the case, and are universally reprobated, but that only makes the manifestation in their favor the more noteworthy. It was because the feeling was general, and could not be escaped, that they were not fairly tried: it was this conviction that made thinking people uneasy at the prospect of their execution.

Had the four Penge prisoners been hanged, or even the two men, it would have been well-nigh the deathblow to capital punishment in England. As the case stands, an agitation has resulted which bids fair to remove the review of criminal cases from the jurisdiction of the Home Secretary to that of a regularly organized court of criminal appeal.

Lord Justice Amphlett has resigned his position as a Justice of Appeal on account of impaired health. Sir Richard Amphlett was appointed a Baron of the Court of Exchequer in January, 1875, in November of the same year he became a Judge of the High Court of Justice (Exchequer Division), and very strik

ing testimony to his ability was borne when he was selected as one of the Lord Justices of Appeal. It will be a source of much regret throughout this country that his restoration to health is not so complete as was hoped, and that he has therefore relinquished those high functions which his great experience and attainments so eminently qualified him to fulfill. There are many rumors about the selection of the new Lord Justice. I hear mentioned the name of Sir James Hannen, President of the Probate, Divorce and Admiralty Division, with Baron Huddleston to succeed Sir James. But it seems more probable that Mr. Justice Lush will be the new Lord Justice, in which case Sir James Stephen is almost certain to be appointed in the place of Lush.

If police justices have not a reputation for childlike innocence in American cities, it is certain that some of them in England deserve to have such reputation. At the Salford Police Court, one Cunningham was charged with gambling on the race-course. DetectiveSergeant Eyre stated that he saw prisoner and other men playing what was known as the "three-card trick" with playing-cards on the race-course. Mr. Bennet, counsel for the defense, contended that the "three-card trick" was a game of skill and not a game of chance, because if the eye was sufficiently educated to follow the player's hand the selected card could be detected. Cases of this kind had been brought before Sir J. I. Mantell, who considered that the game was one of skill, and dismissed the prisoners. Some years ago he (Mr. Bennet) defended a person who was charged with a similar offense before Sir J. I. Mantell. At his (Mr. Bennet's) request the prisoner was brought out of the dock, placed near Inspector Lythgoe, and allowed to manipulate the cards. On three different occasions the inspector detected the "marked" card. It was, therefore, decided by the stipendiary that the game was one of skill, and he dismissed the case. Mr. Radford said that in the face of recent decisions he should follow the course adopted by the stipendiary. He thought, however, that gambling ought to be better defined, so that the law might reach cases of this description. The case was therefore dismissed.

I doubt if anybody in the world except a British country magistrate would have thought such a test of the innocence of the "three-card trick" satisfactory.

believe there was any fraud in the transaction, brought suit on the note against the maker, and was defeated, on the ground that the statute of this State, which requires such notes to show upon their face the fact that they were given for patent rights, had not been complied with. The court below refused to charge that this statute was invalid, and directed the jury to follow its provisions.

The statute, approved April 13, 1871, is entitled as follows: "An act to regulate the execution and transfer of notes or other obligations given for patent rights." It consists of two sections. The first section requires all notes and other negotiable or assignable instruments, the consideration of which, in whole or in part, consists of the right to make, use or vend any patented invention, to have prominently and legibly written or printed on its face the words: "Given for patent rights." Such notes are made subject to the same defense in the hands of every holder as exist against the original holder; and notes without this inscription are equally subject to such defenses when the holder knows they were given for such a consideration. The second section makes it a misdemeanor to take, purchase, sell or transfer any such note, not so inscribed, knowing it to have been given on such a consideration.

The general laws of Michigan concerning negotiable paper correspond with the law merchant, and protect all bona fide holders for value from defenses of which they have no knowledge. The plain and avowed purpose of the statute of 1871 is to impose conditions on the transfer of patent rights, which do not apply to any other kind of property, thereby interfering with the value and enjoyment of such rights, and treating them as a species of interests to be regarded with disfavor.

The subject of granting patents and regulating the rights of patentees has been placed by the constitution of the United States in the control of Congress. It is for that body alone to determine to whom and on what conditions they shall be granted, and how the patented privileges are to be transferred or disposed of. Where any right or privilege is subject to the regulation of Congress, it is not competent for State laws to impose conditions which shall interfere with the rights or diminish their value. In those cases where the congressional power is lawfully exercised, it is supreme. In the absence of any policy to the contrary, the transfer of such rights may follow, as it usually does, the State rule applicable to similar property as to sales or inheritances. But any attempt to discriminate against it is a direct invasion of the authority of the United States, and is invalid.

This doctrine is so elementary that reference to particular cases seems needless. It has been applied to interference with exports and imports, to navigation laws and the instruments of commerce, to the taxation of government instrumentalities, to discriminating privileges against persons or interests protected by the constitution, and to numerous unclassified cases involving conflicts of authority. In many instances there may have been difficulties in determining whether any real conflict existed, but where it is recognized as existing, there can be no doubt as to the immunity of the rights assured by the laws of the United States.

It is unfortunately true that many frauds are committed under color of patent rights, and that the patent laws are not so framed as to secure the public

While we cannot but recognize the magnitude of an evil which has brought patents into popular discredit, and has provoked legislation in several States similar to that of Michigan, we cannot, on the other hand, fail to see in these laws a plain and clear purpose to check the evil by hindering parties owning patents from dealing with them as they may deal with their other possessions. The constitution of the United States not only allows but favors the special protection of inventors. The measure of that protection and its conditions cannot be fixed by any power but Congress, and the remedy for abuses or defects in the legislation of that body must be found in its own revision of its own laws. It is not competent for State statutes to deal with them, or to revise the national policy.

We are compelled to hold the law of 1871 as a manifest violation of the constitution of the United States, and therefore void. The court below erred in holding otherwise. The judgment must be reversed, with costs, and a new trial granted.

GRAVES and MARSTON, JJ., concurred.

DELIVERY BY COMMON CARRIER TO CONNECTING LINE.

SUPREME COURT OF THE UNITED STATES-OCTOBER TERM, 1877.

PRATT V. GRAND TRUNK RAILWAY COMPANY. The G. railroad company, under a contract, occupied for the unloading of goods brought by it to D. a section of a depot owned by the M. railroad company, a connecting carrier. The goods were handled by the employees of the M. company, clerks of the G. company merely keeping tally. When goods were designed for delivery to the M. company they were placed in a specified part of the section, a transcript of their description was taken by the M. company's clerk from the way-bills of the G. company, and they were thereafter cared for by the M. company. Held, to constitute delivery to the M. company, and the G. company were not thereafter liable for their loss.

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error to the Circuit Court of the United States for the Eastern District of Michigan. The facts appear in the opinion.

Mr. Justice HUNT delivered the opinion of the court.

The defendant is a corporation engaged as a common carrier in the transportation of persons and property. This action seeks to recover damages for a violation of its duty in respect to certain merchandise shipped from Liverpool to St. Louis, and carried over its road from Montreal to Detroit. The goods reached the city of Detroit on the 17th of October, 1865, and on the night of the 18th of the same month were destroyed by fire.

The defendant claims to have made a complete delivery of the goods to the Michigan Central Railroad Company, a succeeding carrier, and thus to have discharged itself from liability before the occurrence of the fire.

If the liability of the succeeding carrier had attached, the liability of the defendant was discharged. Ran

som v. Holland, 59 N. Y. 611; O'Neil v. N. Y. C. R. R. Co., 60 id. 138.

The question, therefore, is, had the duty of the succeeding carrier commenced when the goods were burned.

The liability of a carrier commences when the goods are delivered to him or his authorized agent for transportation and are accepted. Rogers v. Wheeler, 52 N. Y. 262; Grosvenor v. N. Y. C. R. R. Co., 59 id. 34.

If a common carrier agrees that property intended for transportation by him may be deposited at a particular place without express notice to him, such deposit amounts to notice and is a delivery. Merriam v. Hartford R. R. Co., 24 Conn. 354; Converse v. N. & N. Y. Tr. Co., 33 id. 166.

The liability of the carrier is fixed by accepting the property to be transported, and the acceptance is complete whenever the property thus comes into his possession with his assent. Illinois R. R. Co. v. Smyser, 38 Ill. 354.

If the deposit of the goods is a mere accessory to the carriage, that is, if they are deposited for the purpose of being carried, without further orders, the responsibility of the carrier begins from the time they are received, but when they are subject to the further order of the owner, the case is otherwise. Ladere v. Griffith, 25 N. Y. 364; Blossom v. Griffin, 13 id. 569; Wade v. Wheeler, 47 id. 658; Michigan R. R. v. Schurlz, 7 Mich. 515

The same proposition is stated in a different form when it is said that the liability of a carrier is discharged by a delivery of the goods. If he is an intermediate carrier, this duty is performed by a delivery to the succeeding carrier for further transportation, and an acceptance by him. Authorities supra.

The precise facts upon which the question here arises are as follows:

At the time the fire occurred, the defendant had no freight-room or depot at Detroit, except a single apartment in the freight depot of the Michigan Central Railroad Company. Said depot was a building several hundred feet in length and some three or four hundred feet in width, and was all under one roof. It was divided into sections or apartments, without any partition wall between them. There was a railway track in the center of the building, upon which cars were run into the building to be loaded with freight. The only use which the defendant had of said section was for the deposit of all goods and property which came over its road or was delivered for shipment over it. This section, in common with the rest of the building, was under the control and supervision of the Michigan Central Railroad Company, as hereinafter mentioned. The defendant employed in this section two men, who checked freight which came into it. All freight which came into the section was handled exclusively by the employees of the Michigan Central Railroad Company, for which, as well as for the use of said section, said defendant paid said company a fixed compensation per hundred weight. Goods which came into the section from defendant's road, destined over the road of the Michigan Central Railroad Company, were, at the time of unloading from defendant's cars, deposited by said employees of the Michigan Central Railroad Company in a certain place in said section, from which they were loaded into the cars of said latter company by said employees when they were ready to receive them; and, after they were so

placed, the defendant's employees did not further handle said goods. Whenever the agent of the Michigan Central Railroad Company would see any goods deposited in the section of said freight building set apart for the use of the defendant, destined over the line of said Central Railroad, he would call upon the agent of the defendant in said freight building, and, from a way-bill exhibited to him by said agent, he would take a list of said goods, and would then, also, for the first time, learn their ultimate place of destination, together with the amount of freight charges due thereon; that, from the information thus obtained from said way-bill in the hands of the defendant's agent, a way-bill would be made out by the Michigan Central Railroad Company for the transportation of said goods over its line of railway and not before.

These goods were, on the 17th of October, 1865, taken from the cars and deposited in the apartment of said building used as aforesaid by the defendant, in the place assigned as aforesaid for goods so destined.

At the time the goods in question were forwarded from Montreal, in accordance with the usage in such cases, a way-bill was then made out in duplicate, on which was entered a list of said goods, the names of the consignees, the place to which the goods were consigned, and the amount of charges against them from Liverpool to Detroit. One of these way bills was given to the conductor who had charge of the train containing the goods, and the other was forwarded to the agent of the defendant in Detroit. On arrival of the goods at Detroit, the conductor delivered his copy of said way-bill to the checking-clerk of defendant in said section, from which said clerk checked said goods from the cars into said section. It was the practice of the Michigan Central Railroad Company, before forwarding such goods, to take from said way-bill in the custody of said checking-clerk, in the manner aforesaid, the place of destination and a list of said goods and the amount of accumulated charges, and to collect the same, together with its own charges, of the connecting carrier.

We are all of the opinion that these acts constituted a complete delivery of the goods to the Michigan Central Company, by which the liability of the Grand Trunk Company was terminated.

1. They were placed within the control of the agents of the Michigan Company.

2. They were deposited by the one party and received by the other for transportation, the deposit being an accessory merely to such transportation.

3. No further orders or directions from the Grand Trunk Company were expected by the receiving party. Except for the occurrence of the fire the goods would have been loaded into the cars of the Michigan Central Company, and forwarded, without further action of the Grand Trunk Company.

4. Under the arrangement between the parties the presence of the goods in the precise locality agreed upon, and the marks upon them, "P. & F., St. Louis," were sufficient notice that they were there for transportation over the Michigan road toward the city of St. Louis, and such was the understanding of both parties.

The cases heretofore cited in 20th Conn. 354, and 33 id. 166, are strong authorities upon the point last

stated.

In the latter case a railroad company and a steam

boat company had a covered wharf in common, at their common terminus, used as a depot and a wharf, and it was the established usage for the steamboat company to land goods for the railroad, on the arrival of its boats in the night, upon a particular place in the depot, whence they were taken by the railroad company at its convenience for further transportation, both companies having equal possession of the depot. There was no evidence of an actual agreement that the goods deposited were in the possession of the railroad company, and the goods in question had not been in the manual possession of the railroad company when they were destroyed by fire on the Sunday afternoon following their deposit on the previous night. It was held that there was a tacit understanding that the steamboat company should deposit their freight at that particular spot and that the railroad should take it thence at their convenience. The delivery to the succeeding carrier was held to be complete, and a recovery against the first carrier for the loss of the goods was reversed.

In Merriam v. Hartford R. R. Co., 20 Conn. 354, it was held that if a common carrier agree that property intended for transportation by him may be deposited at a particular place without express notice to him, such deposit alone is a sufficient delivery; and that such an agreement may be shown by a constant practice and usage so to receive property without special notice.

The plaintiff contends that the goods were not in the custody and under the control of the Michigan road, for the reason that the case states that they "are in a section of the freight depot set apart for the use of the defendant." This is not an accurate statement of the position. The expression quoted is used incidentally in stating that when the agent of the Michigan road saw "goods deposited in the section of the freight building set apart for the use of the defendant, destined on the line of said Central Railroad, he would call upon the agent of defendant and from a way-bill" obtain a list of the goods, and their destination. Just how and in what manner it was thus set apart appears from the facts already recited. It was a portion of the freight house of the Michigan company, in which a precise spot was selected or set apart, where the defendant might deposit goods brought on its road and intended for transportation over the Michigan road, and which, by usage and practice and the expectation of the parties, were then under the control of the Michigan company and to be loaded on to its cars at its convenience, without further orders from the defendant.

We are of the opinion that the ruling and direction of the circuit judge, that upon the facts stated, the defendant was entitled to a verdict and judgment in its favor, was correct, and the judgment should be affirmed. It is ordered accordingly.