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whipping. Manslaughter was punished by forfeitCENTENNIAL LAW.
ure of goods to the State, by whipping on the naked W E have often promised ourselves to furnish our body, and branding in the hand with a hot iron the
readers a few chapters on some ancient laws letter M. Incest was punished by sitting an hour and ancient legal proceedings of this country. Als on the gallows with a rope around the neck, by though we cannot go as far back for materials as whipping with not exceeding thirty-nine stripes, our English brethren, yet we have some legal tradi- and by wearing “a capital letter I, of two inches tions of respectable age. If we cannot speak of long, and proportionable figures, cut out in cloth of magna chartu, we can refer to the blue laws of Con- a contrary color to their clothes, and sewed upon necticut, and if we have nothing exactly answering their garments on the outside of their arm, or on to the State trials, we have an almost unparalleled their back in open view." (By the way, we have history in the Salem Witchcraft trials. But just often wondered whether the number of the thirtynow the demand seems to be for things about one nine articles of the Catechism was suggested by the hundred years old. Our revolutionary battles are l punishment of thirty-nine stripes.) Adultery with being fought over by orators and local historians, a married or betrothed woman was punished by and the sites of those patriotic contests are being whipping both parties, burning on the forehead marked for posterity by enduring monuments. We with a capital A, and wearing the same letter on are well assured that our ancestors were sturdy the back of the outside garment of a different soldiers and warm patriots, and it may not be amiss color, in fair view, during their abode in the State. to inquire a little into their legal regulations and (This, we should suppose, would have tended to opinions. We find some very interesting reminis- promote emigration. The same punishment was cences on these subjects in an excellent History of denounced against polygamy. Burglary was punEastern Vermont, by Mr. Benjamin H. Hall of the ished by branding with a B in the forehead, and Troy bar. An excursion through his chapter on the nailing one of the offender's ears to a post and cutEarly Laws of Vermont may prove amusing and in- ting it off, and whipping; for the second offense structive.
there was the like branding, and nailing, and cutEvery member of the General Assembly, before ting off of the other ear; for the third offense taking his seat, was required to profess his belief in the punishment was death, the offender being God, in the inspiration of the Scriptures, and in the deemed “incorrigible.” Perhaps if he had posProtestant religion. These tests would seem more sessed more ears the capital penalty would have appropriate for the “general assembly of saints," been postponed. Counterfeiting was punished by than of earthly law-givers, and practically there cutting off the right ear, branding with C, and seems to have been some liberality of construction, perpetual imprisonment. If all the guilty were for Ethan Allen, although he refused to subscribe to branded according to law, the Vermonters must them, acted as a member from Arlington. The im- have been a finely lettered community. The rich portance of public education was early recognized. and the poor do not seem always to have been The constitution also provided that “whenever an equally dealt with. Perjury was punished by a fine office, through increase of fees or otherwise, becomes of £50 and imprisonment for six months, but if the so profitable as to occasion many to apply for it, the offender could not pay the fine, he was let off by profits ought to be lessened by the legislature.” The sitting in the pillory two hours, and having both application of such a rule in these days would be ears nailed and cut off, which shows the value of equivalent to denying any compensation to office- Vermont ears a hundred years ago. Willful lying, holders, for there is no office, however trifling its to public prejudice or private injury, or deceiving emoluments, that many patriotic souls are not yearn- or abusing the people with false news or reports, was ing to fill. The criminal system was of almost punished by fine, sitting in the stocks, and whipDraconian sternness. It recognizes nine offenses ping, the punishment being increased with each punishable by death, namely: treason, murder, ar- repetition of the offense, except that in no case was son, rape, bestiality, sodomy, perjury to cause one's the number of stripes to exceed the orthodox death, mutilation of tongue, eye, or male sexual number of thirty-nine. Theft was punished by organs, blaspheming any person of the Trinity, or compelling three-fold restitution, by fine, and by a cursing in the like manner. We strongly suspect sort of temporary slavery, the prosecutor being emthat Ethan Allen would have been fairly liable to powered to dispose of the offender in service to any the penalty for the last-named offense. Probably subject of the State for such time as he should be the Vermonters did not regard his citation of au assigned to the prosecutor by the court. - “Unseathority for demanding the surrender of Ticonderoga sonable night-walking," that is to say: after nine as exactly blasphemous, although it is very likely o'clock, was prohibited, as was also the convening that the colonel meant to swear. There seems to of persons under the government of parents, guardhave been a belief in the efficacy of stigmatizing | ians, or masters, after that untimely hour. “Tarcertain offenses by branding or lettering, and of 'ern-haunters" were punished by posting their names at the door of every tavern, and prohibiting the ceased husband, and should through her come in tavern-keeper from supplying them with any thing possession of any thing that had been purchased by in the way of strong drink -- a very tantalizing the deceased husband, would become administrator punishment. The quiet and good of the Sabbath in his own wrong, and render himself liable to anwas vigilantly protected, no clamorous discourse, swer for the goods and estate of his predecessor. shouting, halooing, screaming, running, riding, | The method adopted to avoid this difficulty in the dancing, jumping, swimming, or blowing of horns, marriage of Asa Averill, of Westminster, to his was tolerated on the Lord's day. Listening outside second wife, the widow of Major Peter Lovejoy, of the meeting-house during the time of public was very singular. By the side of the chimney in worship was not permitted. Secular meetings of the widow's house was a recess of considerable size. any number of persons, in the street or elsewhere, Across this a blanket was stretched in such a manon Saturday or Monday evening, were forbidden, ner as to form a small inclosure. Into this Mrs. under penalty of fine or stocks. Probably sitting Lovejoy passed with her attendants, who completely in the stocks was not much harder than sitting in disrobed her, and threw her clothes into the room. a meeting-house of that day. The attorney's oath She then thrust her hand through a small aperture in those days meant business. It was as follows: | purposely made in the blanket. The proffered " You swear by the ever-living God, that you will | member was clasped by Mr. Averill, and in this do no falsehood, nor consent to any to be done in position he was married to the nude widow on the the court; and if you know of any to be done, you other side of the woolen curtain. He then proshall give knowledge thereof to the judges or justi duced a complete assortment of wedding attire, ces of the court, or some of them, that it may be which was slipped into the recess. The new Mrs. reformed. You shall not wittingly, or willingly, or | Averill soon after appeared in full dress, ready to knowingly promote, sue, or procure to be sued, any | receive the congratulations of the company, and false or unlawful suit, nor give aid or consent to the join in their hearty rustic festivities." That wedding same. You shall demean yourself in the office of was certainly nudum pactum so far as the bride an attorney within the court, according to the best was concerned. of your learning and discretion, and with all good fidelity, as well to the court as to the client.” The
LEGAL NOTES FROM ABROAD. records of the courts show that the punishment of whipping on the naked body was often inflicted on
LONDON, October 25, 1877. both men and women.
N the 26th of September, the day upon which the Mr. Hall gives several notable instances of popu
V verdict in the “ Penge case” became known, I
wrote you an expression of opinion on the manner in lar legal errors prevailing in Vermont. One notion
which the trial was conducted. That opinion acouwas that if the friends of one dying in prison car
rately foreshadowed the conclusions of a vast majority ried his remains beyond the boundaries of the jail of the British public. The agitation, through the yard, they were accomplices in an “escape," and newspapers, and by petition and public meetings, liable to satisfy the judgment by virtue of which
which finally compelled the Home Secretary to respite
the prisoners, is an old story now, but it is worth he had been confined. Another notion was that if
while to recall it to the extent of noticing how unanonc should bury the body of an imprisoned debtor,
imously and heartily and energetically this commuhe thereby became administrator in his own wrong, nity went to work to compel the government to pause and liable to discharge the debtor's obligations on the verge of a great public wrong. Not that anyIn the case of Judge Chandler, who died while con body sympathised or does now sympathise with the fined in jail for debt, his interment became a serious
convicts; they are loathsome wretches, in any view of
the case, and are universally reprobated, but that only problem. His body was kept in the jail until it
makes the manifestation in their favor the more notebecame so offensive as to endanger the health of the
worthy. It was because the feeling was general, and surviving prisoners. In this predicament the jailer could not be escaped, that they were not fairly tried ; discovered that by stretching the chain he could in- it was this conviction that made thinking people unclude within the jail liberties a small portion of the easy at the prospect of their execution. adjoining burying-ground. A grave was dug, com
Had the four Penge prisoners been hanged, or even
the two men, it would have been well-nigh the deathmencing just outside the grave-yard fence, and just
blow to capital punishment in England. As the case within the jail-yard, sloping under the fence, until
stands, an agitation bas resulted which bids fair to rea sufficient depth and obliquity was obtained. So move the review of criminal cases from the jurisdicJudge Chandler was buried after a christian fash tion of the Home Secretary to that of a regularly orion, and yet no “escape” was suffered.
ganized court of criminal appeal. Another instance we give in Mr. Hall's own lan Lord Justice Amphlett bas resigned his position as a
Justice of Appeal on account of impaired health. Sir guage: “By another strange perversion of legal
Richard Amphlett was appointed & Baron of the principles, at this early period, certain people were
Court of Exchequer in January, 1875, in November led to believe that whoever should marry a widow, | of the same year he became a Judge of the High who was administratrix upon the estate of her de. I Court of Justice (Exchequer Division), and very striking testimony to his ability was borne when he was believe there was any fraud in the transaction, brought selected as one of the Lord Justices of Appeal. It suit on the note against the maker, and was defeated, will be a source of much regret throughout this country on the ground that the statute of this State, which rethat his restoration to health is not so complete as was quires such notes to show upon their face the fact hoped, and that he has therefore relinquished those that they were given for patent rights, had not been high functions which his great experience and attain complied with. The court below refused to charge ments so eminently qualified him to fulfill. There are that this statute was invalid, and directed the jury to many rumors about the selection of the new Lord Jus- follow its provisions. tice. I hear mentioned the name of Sir James Hannen, The statute, approved April 13, 1871, is entitled as President of the Probate, Divorce and Admiralty Di follows: “An act to regulate the execution and transvision, with Baron Huddleston to suoceed Sir James. fer of notes or other obligations given for patent But it seems more probable that Mr. Justice Lush will rights." It consists of two sections. The first secbe the new Lord Justice, in which case Sir James tion requires all notes and other negotiable or assignStephen is almost certain to be appointed in the placeable instruments, the consideration of which, in whole of Lush.
or in part, consists of the right to make, use or vend If police justices have not a reputation for childlike any patented invention, to have prominently and legiinnocence in American cities, it is certain that some of bly written or printed on its face the words: • Given them in England deserve to have such reputation. At for patent rights.” Such notes are made subject to tbe Salford Police Court, one Cunningham was the same defense in the hands of every holder as excharged with gambling on the race-course. Detective ist against the original holder; and notes without Sergeant Eyre stated that he saw prisoner and other this inscription are equally subject to such defenses men playing what was known as the "three-card when the holder knows they were given for such a trick" with playing-cards on the race-course. Mr. consideration. The second section makes it a misBennet, counsel for the defense, contended that the demeanor to take, purchase, sell or transfer any such "three-card trick" was a game of skill and not a game note, not so inscribed, knowing it to have been given of chance, because if the eye was sufficiently educated on such a consideration. to follow the player's hand the selected card could be | The general laws of Michigan concerning negotiable detected. Cases of this kind had been brought before paper correspond with the law merchant, and protect Sir J. I. Mantell, who considered that the game was all bona fide holders for value from defenses of which one of skill, and dismissed the prisoners. Some years they have no knowledge. The plain and avowed purago he (Mr. Bennet) defended a person who was pose of the statute of 1871 is to impose conditions on charged with a similar offense before Sir J. I. Mantell. the transfer of patent rights, which do not apply to At his (Mr. Bennet's) request the prisoner was brought any other kind of property, thereby interfering with out of the dock, placed near Inspector Lythgoe, and the value and enjoyment of such rights, and treatallowed to manipulate the cards. On three different ing them as a species of interests to be regarded with occasions the inspector detected the “marked " card. | disfavor. It was, therefore, decided by the stipendiary that the The subject of granting patents and regulating the game was one of skill, and he dismissed the case. Mr. | rights of patentees has been placed by the constituRadford said that in the face of recent decisions hetion of the United States in the control of Congress. should follow the course adopted by the stipendiary. It is for that body alone to determine to whom and on He thought, however, that gambling ought to be what conditions they shall be granted, and how the better defined, so that the law might reach cases of patented privileges are to be transferred or disposed of. this description. The case was therefore dismissed. Where any right or privilege is subject to the regula
I doubt if anybody in the world except a British tion of Congress, it is not competent for State laws to country magistrate would have thought such a test of impose conditions which shall interfere with the rights the innocence of the “three-card trick" satisfactory. or diminish their value. In those cases where the
congressional power is lawfully exercised, it is su
preme. In the absence of any policy to the contrary, STATE LEGISLATION AFFECTING PATENT
the transfer of such rights may follow, as it usually RIGHTS.
does, the State rule applicable to similar property as
to sales or inheritances. But any attempt to discrimSUPREME COURT OF MICHIGAN - OCTOBER TERM,
inate against it is a direot invasion of the authority 1877.
of the United States, and is invalid.
This doctrine is so elementary that reference to parCRANSON v. SMITH.
ticular cases seems needless. It has been applied to A State statute required every negotiable instrument given
interference with exports and imports, to navigation upon the sale of patent rights to have inscribed on its face that it was given for a patent right, and made it a laws and the instruments of commerce, to the taxamisdemeanor to knowingly take or deal with such an
tion of government instrumentalities, to discriminatinstrument not so inscribed. It also provided that such a note was subject in the hands of every holder or pur ing privileges against persons or interests protected chaser to all defenses existing against the original
by the constitution, and to numerous unclassified holder. Held, that the statute was in violation of the Federal constitution, as interfering with the value and cases involving conflicts of authority. In many inenjoyment of patent rights.
stances there may have been difficulties in determin| CTION upon a promissory note given for an interest ing whether any real conflict existed, but where it is A in a patented invention. The facts appear in the | recognized as existing, there can be no doubt as to the opinion.
immunity of the rights assured by the laws of the CAMPBELL, J. Cranson, who was a bona fide holder United States. of a promissory note given for the purchase of an in. It is unfortunately true that many frauds are comterest in a patented invention, who had notice that mitted under color of patent rights, and that the such was the consideration, but who had no reason to I patent laws are not so framed as to secure the public
ainst the original
that the statute
from being cheated by worthless inventioris. The | som v. Holland, 59 N. Y. 611; O'Neil v. N. Y. C. R. R. State may punish frauds upon its citizens committed Co., 60 id. 138. by any manner of false pretenses, but it cannot law The question, therefore, is, had the duty of the fully assume that the rights granted by the United succeeding carrier commenced when the goods were States are presumably fraudulent, nor can it punish burned. frauds committed by persons holding those privileges The liability of a carrier commences when the on any different grounds from others. Such presump goods are delivered to him or his authorized agent tions are in plain violation of every principle of jus for transportation and are accepted. Rogers v. tice and constitutional obligation. Miller v. Finley, 26 | Wheeler, 52 N. Y. 262; Grosvenor v. N. Y. C. R. R. Mich. 240.
Co., 59 id. 34. While we cannot but recognize the magnitude of an If a common carrier agrees that property intended evil which has brought patents into popular discredit, for trausportation by him may be deposited at a parand has provoked legislation in several States similar | ticular place without express notice to him, such deto that of Michigan, we cannot, on the other hand, fail posit amounts to notice and is a delivery. Merriam v. to see in these laws a plain and clear purpose to check Hartford R. R. Co., 24 Conn. 354; Converse v. N. & N. the evil by hindering parties owning patents from Y. Tr. Co., 33 id. 166. dealing with them as they may deal with their other The liability of the carrier is fixed by accepting the possessions. The constitution of the United States property to be transported, and the acceptance is comnot only allows but favors the special protection of in plete whenever the property thus comes into his posventors. The measure of that protection and its con session witb bis assent. Illinois R. R. Co. v. Smyser, ditions cannot be fixed by any power but Congress, 38 I11. 354. and the remedy for abuses or defects in the legislation If the deposit of the goods is a mere accessory to of that body must be found in its own revision of its the carriage, that is, if they are deposited for the purown laws. It is not competent for State statutes to | pose of being carried, without further orders, the redeal with them, or to revise the national policy.
sponsibility of the carrier begins from the time they We are compelled to hold the law of 1871 as a mani- | are received, but when they are subject to the further fest violation of the constitution of the United States, order of the owner, the case is otherwise. Ladere v. and therefore void. The court below erred in holding Griffith, 25 N. Y. 364; Blossom v. Griffin, 13 id. 569; otherwise. The judgment must be reversed, with costs, Wade v. Wheeler, 47 id. 658; Michigan R. R. v. Schurlz, and a new trial granted.
7 Mich. 515 GRAVES and MARSTON, JJ., concurred.
The same proposition is stated in a different form
when it is said that the liability of a carrier is disDELIV ERY BY COMMON CARRIER TO CON charged by a delivery of the goods. If he is an interNECTING LINE.
mediate carrier, this duty is performed by a delivery
to the succeeding carrier for further transportation, SUPREME COURT OF THE UNITED STATES-OCTO and an acceptance by him. Authorities supra. BER TERM, 1877.
The precise facts upon which the question here arises
are as follows: PRATT V. GRAND TRUNK RAILWAY COMPANY.
At the time the fire occurred, the defendant had no The G. railroad yompany, under a contract, occupied for
freight-room or depot at Detroit, except a single the uploading of goods brought by it to D. a section of a depot owned by the M, railroad company, a connect apartment in the freight depot of the Michigan Cening carrier. The goods were handled by the employees tral Railroad Company. Said depot was a building of the M. company, clerks of the G. company merely keeping tally. When goods were designed for delivery several hundred feet in length and some three or four to the M. company they were placed in a specified part | hundred feet in width, and was all under one roof. It of the section, a transcript of their description was taken by the M. company's clerk from the way-bills of was divided into sections or apartments, without any the G. company, and they were thereafter cared for by partition wall between them. There was a railway track the M. company. Held, to constitute delivery to the M. company, and the G. company were not thereafter lia
in the center of the building, upon which cars were ble for their loss.
run into the building to be loaded with freight. The IN error to the Circuit Court of the United States for only use which the defendant had of said section was
the Easteru District of Michigan. The facts ap for the deposit of all goods and property which came pear in the opinion.
over its road or was delivered for shipment over it. Mr. Justice HUNT delivered the opinion of the This section, in common with the rest of the buildcourt.
ing, was under the control and supervision of the The defendant is a corporation engaged as a common Michigan Central Railroad Company, as hereinafter carrier in the transportation of persons and property. mentioned. The defendant employed in this section This action seeks to recover damages for a violation two men, who checked freight which came into it. of its duty in respect to certain merchandise shipped All freight which came into the section was handled from Liverpool to St. Louis, and carried over its road exclusively by the employees of the Michigan Central from Montreal to Detroit. The goods reached the Railroad Company, for which, as well as for the use city of Detroit ou the 17th of October, 1865, and on of said section, said defendant paid said company a the night of the 18th of the same month were de fixed compensation per hundred weight. Goods which stroyed by fire.
came into the sectiou from defendant's road, destined The defendant claims to have made a complete de over the road of the Michigan Central Railroad Comlivery of the goods to the Michigan Central Railroad pany, were, at the time of unloading from defendant's Company, a succeeding carrier, and thus to have dis cars, deposited by said employees of the Michigan charged itself from liability before the occurrence of Central Railroad Company in a certain place in said the fire.
section, from which they were loaded into the cars of If the liability of the succeeding carrier had attached, said latter company by said employees when they the liability of the defendant was discharged. Ran- ' were ready to receive them; and, after they were so placed, the defendant's employees did not further boat company had a covered wharf in common, at bandle said goods. Whenever the agent of the Michi-| their common terminus, used as a depot and a wharf, gan Central Railroad Company would see any goods and it was the established usage for the steamboat deposited in the section of said freight building set | company to land goods for the railroad, on the arrival apart for the use of the defendant, destined over of its boats in the night, upon a particular place in the the line of said Central Railroad, he would call upon depot, whence they were taken by the railroad comthe agent of the defendant in said freight building, pany at its convenience for further transportation, and, from a way-bill exhibited to him by said agent, both companies having equal possession of the depot. he would take a list of said goods, and would then, There was no evidence of an actual agreement that also, for the first time, learn their ultimate place of the goods deposited were in the possession of the raildestination, together with the amount of freight road company, and the goods in question had not been charges due thereon; that, from the information | in the manual possession of the railroad company thus obtained from said way-bill in the hands of the when they were destroyed by fire on the Sunday afterdefendant's agent, a way-bill would be made out by noon following their deposit on the previous night. the Michigan Central Railroad Company for the trans It was held that there was a tacit understauding that portation of said goods over its line of railway and not the steamboat company should deposit their freight before.
at that particular spot and that the railroad should These goods were, on the 17th of October, 1865, take it thence at their convenience. The delivery to taken from the cars and deposited in the apartment | the succeeding carrier was held to be complete, and a of said building used as aforesaid by the defendant, recovery against the first carrier for the loss of the in the place assigned as aforesaid for goods so des- goods was reversed. tined.
In Merriam v. Hartford R. R. Co., 20 Conn. 354, it At the time the goods in question were forwarded was held that if a commou carrier agree that property from Montreal, in accordance with the usage in such intended for transportation by him may be deposited cases, a way-bill was then made out in duplicate, on at a particular place without express notice to him, which was entered a list of said goods, the names of such deposit alone is a sufficient delivery; and that the consignees, the place to which the goods were con such an agreement may be shown by a constant pracsigned, and the amount of charges against them from tice and usage so to receive property without special Liverpool to Detroit. One of these way-bills was notice. given to the conductor who had charge of the train The plaintiff contends that the goods were not in containing the goods, and the other was forwarded to the custody and under the control of the Michigan the agent of the defendant in Detroit. On arrival of road, for the reason that the case states that they the goods at Detroit, the conductor delivered his copy "are in a section of the freight depot set apart for the of said way-bill to the checking-clerk of defendant in use of the defendant." This is not an accurate statesaid section, from which said clerk checked said goods ment of the position. The expression quoted is used from the cars into said section. It was the practice incidentally in stating that when the agent of the of the Michigan Central Railroad Company, before Michigan road saw "goods deposited in the section of forwarding such goods, to take from said way-bill in the freight building set apart for the use of the dethe custody of said checking-clerk, in the manner fendant, destined on the line of said Central Railaforesaid, the place of destination and a list of said road, he would call upon the agent of defendant and goods and the amount of accumulated charges, and to from a way-bill” obtain a list of the goods, and their collect the same, together with its own charges, of the destination. Just how and in what manner it was connecting carrier.
thus set apart appears from the facts already recited. We are all of the opinion that these acts constituted
It was a portion of the freight house of the Michigan a complete delivery of the goods to the Michigan Cen
company, in which a precise spot was selected or set tral Company, by which the liability of the Grand apart, where the defendant might deposit goods Trunk Company was terminated.
brought on its road and intended for transportation 1. They were placed within the control of the agents
over the Michigan road, and which, by usage and of the Michigan Company.
practice and the expectation of the parties, were theu 2. They were deposited by the one party and re under the control of the Michigan company and to be ceived by the other for transportation, the deposit
loaded on to its cars at its convenience, without further being an accessory merely to such transportation. orders from the defendant. 3. No further orders or directions from the Grand
We are of the opinion that the ruling and direction Trunk Company were expected by the receiving party.
of the circuit judge, that upon the facts stated, the Except for the occurrence of the fire the goods would
defendant was entitled to a verdict and judgment in have been loaded into the cars of the Michigan Cen
| its favor, was correct, and the judgment should be tral Company, and forwarded, without further action
affirmed. of the Grand Trunk Company.
. It is ordered accordingly. 4. Under the arrangement between the parties the presence of the goods in the precise locality agreed LIABILITY OF PRINCIPAL FOR ACTS OF upon, and the marks upon them, “P. & F., St. Louis,"
AGENT AFTER REVOCATION were sufficient notice that they were there for
OF AGENCY transportation over the Michigan road toward the I n the case of Hatch, plaintiff in error, v. Codding. city of St. Louis, and such was the understanding of 1 ton, just decided by the Supreme Court of the both parties.
United States, one Rice, who was the president of $ The cases heretofore cited in 20th Conn, 354, and railroad corporation, was authorized in behalf of the 33 id. 166, are strong authorities upon the point last corporation to sell or hypothecate certain mortgage stated.
bonds of the company, to negotiate loans at suca In the latter case a railroad company and a steam. I rates of interest as he should think proper, and to buy