James Williams

“ A judge sins gravely if he does not attempt all milder means of discovering truth before resorting to torture. He sins in a criminal cause, or in one of notable infamy, if he binds the accused by oath to tell the truth before there is proof against him. It is the same if without oath he uses threats, terror or exhibition of torments to confound the witness. [71] If any one, to avoid grave torments, charges himself with a capital crime, he does not sin mortally. [72] It was a doubtful question whether he sinned gravely in such a case. ”

“ The influence of Beccaria in rendering the use of torture obsolete was undoubtedly greater than that of any other legal reformer. The great point that he makes is the unfair incidence of torture, as minds and bodies differ in strength. Moreover, it is, says he, to confound all relations to expect that a man should be both accuser and accused, and that pain should be the test of truth, as though truth resided in the muscles and fibres of a wretch under torture. The result of the torture is simply a matter of calculation. ”

“ A master knowingly taking a British ship to sea in such unseaworthy state that the life of any person is likely to be thereby endangered is guilty of a misdemeanour. In every contract of service between the owner and the master or any seaman, and in every indenture of sea apprenticeship, an obligation is implied that the owner, master and agent shall use all reasonable means to ensure the seaworthiness of the ship. By the act of 1906 many of the provisions as to sea-Worthiness was applied to foreign ships, and they may be detained in a proper case. ”

“ A private act not printed by the king's printers is proved by an examined copy of the parliament roll.
A public act binds all subjects of the realm, and need not be pleaded (except where the law from motives of policy specially provides for pleading certain acts, as in the defences of not guilty by statute, the Statute of Frauds and the Statute of Limitations) . A private act must generally be pleaded, and does not as a rule bind strangers to its provisions. Formerly an act took effect from the first day of the session in which it was passed. ”

“ It seems doubtful, however, how far in English law a tenant for years has true possession, for he is in law only a bailiff or servant of the landlord. But he certainly has possessor remedies, like the quasi-possessor in Roman law. ”

“ A general gift of the testator's lands is to include copy holds and leaseholds. A general gift of real or personal estate is to include real or personal estate over which the testator had a general power of appointment. A devise without words of limitation is to pass the fee simple. The words “die without issue,” or similar words, are to mean die without issue living at the time of the death of the person whose issue was named, not as before the act, an indefinite failure of issue, an estate tail being thus created. Trustees under an unlimited devise are to take the fee simple. ”

“ An estate may be possessed without the possessor going upon the land at all, and the possession of goods may be given by delivering the key of the warehouse in which they are stored. In international law the possession of part as giving a title to the whole has been of great importance (see INTERNATIONAL LAW) . Where goods are pledged or bailed for a specific purpose the intention of the pledgor or bailor to hold them as his own is suspended during the existence of the limited right of the pledgee or bailee, to whom a fragment of the possession has passed. ”

“ Finally, the Bill of Rights provided that cruel and unusual punishments ought not to be inflicted. The opinions of the judges have been invariably against torture in theory, however much some of them may have been led to countenance it in practice. The strongest authority is the resolution of the judges in Felton’s case (1628) , “that he ought not by the law to be tortured by the rack, for no such punishment is known or allowed by our law.” ”

“ All property, real and personal, and of whatever tenure, may be disposed of by will. If customary freeholds or copyholds be devised, the will must be entered on the court rolls. No will made by any person under the age of twenty-one is valid. Every will is to be in writing, signed at the foot or end thereof by the testator or by some person in his presence and by his direction, and such signature is to be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who are to subscribe the will in the presence of the testator. ”

“ Any advantages which a British ship has, e.g. the right of claiming protection for her flag, the non-attachment to her of a maritime lien for necessaries supplied in a British port, are not directly connected with the policy under which the Navigation Acts have become obsolete. These advantages are not secured to a British ship until she is registered. United States law agrees with British in this respect. “The United States have imitated the policy of England and other commercial nations in conferring peculiar privileges upon American-built ships and owned by our own citizens. ”

“ A free man could be tortured only where he had been inconsistent in his depositions, or where there was a suspicion that he was lying. [35] The rules as to the torture of slaves were numerous and precise. It was a maxim of Roman law that torture of slaves was the most efficacious means of obtaining truth. ”

“ A real statute is that part of the law which deals directly with property, whether movable or immovable. A personal statute has for its object a person, and deals with questions of status, such as marriage, legitimacy or infancy. A mixed statute affects both property and person, or, according to some authorities, it deals with acts and obligations. ”

“ Extent is the writ of execution issued by the crown for a crown debt of record. The sale of chattels seized under an extent takes place under a writ of venditioni exponas. A crown debtor is entitled to an extent in aid against a person indebted to him. Where a crown debtor has died a writ reciting his death, and so called diem clausit extremum, issues against his property. Fieri facias is the ordinary writ of execution on a judgment commanding the sheriff to levy the sum, interest and costs on the personal property of the party. ”

“ Rebellion was a means of enforcing obedience to the process of the court of chancery. In modern procedure attachment takes its place. Rege inconsulto commanded judges of a court not to proceed in a case which might prejudice the king until his pleasure should be known. Replevin was a survival of the most archaic law. The procedure consisted of writ on writ to an almost unlimited extent. It originally began by the issue of a writ of replevin or replegiari facias. The case might be removed from the county court to a superior court by writ of recordari facias loquelam. ”

“ In some states only a disposable portion of the property can be left, so that children cannot be disinherited without good cause, and in some children omitted in a will may still take their share. It is frequently provided that a certain amount must be left to the widow. Louisiana follows French law, by which the testator can under no circumstances alienate by will more than half his property if he leave issue or ascendants. In some states a married woman may not leave more than half her property away from her husband. ”

“ The formalities in the case of wills of personalty were not as numerous as in the case of wills of land. Up to 1838 a nuncupative or oral will was sufficient, subject, where the gift was of £30 or more, to the restrictions contained in the Statute of Frauds. The witnesses to a written will need not be “credible,” and it was specially enacted by an act of 1705 that any one who could give evidence in a court of law was a good witness to a will of personalty. A will entirely in the testator's handwriting, called a holograph will, was valid without signature. ”

“ One-third of a seaman’s wages earned up to that time is due at every port where the ship unlades and delivers her cargo before the voyage is ended. They must be fully paid in gold or its equivalent within twenty days of the discharge of the cargo. Advance notes can be made only in favour of the seaman himself or his wife or mother. There is a summary remedy for wages before a district court, a justice of the peace, or a commissioner of a district court. A shipping commissioner may act as arbitrator by written consent of the parties. Seaworthiness is an implied condition of the hiring. ”

“ It is usual for the testator and the witnesses to sign every sheet. Publication is not necessary. A will is not void on account of the incompetency of a witness. Gifts to a witness or the husband or wife of a witness are void. A creditor or executor may attest. A will is revoked (except where made in exercise of a power of appointment of a certain kind) by a later will, or by destruction with the intention of revoking, but not by presumption arising from an alteration in circumstances. Alterations in a will must be executed and attested as a will. ”

“ An example of an adverse right by crown grant is a ferry or a port. The crown, moreover, as the guardian of the realm, has jurisdiction to restrain the removal of the foreshore, the natural barrier of the sea, by its owner in case of apprehended danger to the coast. The rights established against a riparian proprietor by private persons must as a rule be based on prescription or custom, only on prescription where they are in the nature of profits à prendre. The public cannot claim such rights by prescription, still less by custom. ”

“ Service must be personal, unless where substituted service is allowed, and in special cases, such as actions to recover land and admiralty actions. Service out of the jurisdiction of a writ or notice of a writ is allowed only by leave of the court or a judge. Notice of the issue of a writ, and not the writ itself, is served on a defendant who is neither a British subject nor in British dominions. ”

“ The Provisions of Oxford in 1258 put an end to this by enacting that the chancellor should not seal anything out of course (i.e. any writ for which there was no precedent) by the will of the king, but that he should do it by the council. In 1285 the Statute of Westminster the Second re-established the power of the crown within certain limits, that is, in causes of action in a similar case falling under the same law (in consimili casu cadente sub eodem jure) as those for which precedents of writs already existed in the chancery. ”

“ Writs of dower and of estrepement are still in use in some states. By the law of some states, e.g. New Jersey, writs of election are issued to supply casually occurring vacancies in the legislature. The writ of assistance, already named, has its interest in constitutional history. Before the War of Independence it was issued to revenue officers to search premises for smuggled goods. It was on this writ that it was first contended in 1761 that a colonial court had jurisdiction to examine the constitutionality of a legislative act authorizing the issue of the writ. ”

“ For most men, by patience or the severity of the torture, come so to despise the torture that the truth cannot be elicited from them; others are so impatient that they will lie in any direction rather than suffer the torture; so it happens that they depose to contradictions and accuse not only themselves but others.” Montaigne’s [6] view of torture as a part of the punishment is a most just one: “All that exceeds a simple death appears to me absolute cruelty ”

“ The writ of error bears the teste of the king “witness ourselves.” Before the issue of most writs a praecipe, or authority to the proper officer to issue the writ, is necessary. This is of course not to be confounded with the old original writ of praecipe. Writs affecting land must generally be registered in order to bind the land (see Land Registration) . A writ cannot as a rule be served on Sunday. Some of the more important modern writs (other than those of an extrajudicial nature) may be shortly noticed. Habeas corpus, mandamus, prohibition, scire facias and others are treated separately. ”

“ The adult slaves of a deceased person could be tortured where the deceased had been murdered. In a charge of adultery against a wife, her husband’s, her own and her father’s slaves could be put to the torture. A slave manumitted for the express purpose of escaping torture was regarded as still liable to it. Before putting a slave to torture without the consent of his master, security must be given to the master for his value and the oath of calumny must be taken. [37] The master of a slave tortured on a false accusation could recover double his value from the accuser. ”

“ Seneca says bitterly, “it forces even the innocent to lie.” St Augustine [4] recognizes the fallacy of torture. “If,” says he, “the accused be innocent, he will undergo for an uncertain crime a certain punishment, and that not for having committed a crime, but because it is unknown whether, he committed it.” At the same time he regards it as excused by its necessity. The words of Ulpian, in the Digest of Justinian, [5] are no less impressive: “The torture (quaestio) is not to be regarded as wholly deserving or wholly undeserving of confidence ”

“ A possessor judgment is one which entitles a person who has been in possession under a written title for seven years to continue his possession (Watson, Law Dict., s.v. “Possessory Judgment”) .
United States.—Here the law in general agrees with that of England. Possessory rights are taxed in some of the states. Louisiana follows Roman law closely. Possession of incorporeal rights (to use the unscientific language of the Code) is called quasipossession, and the division of possession into natural and civil is maintained (Civil Code, ss. 3389–3419) . ”

“ The limitations to which the right of the riparian proprietor is subject may be divided into those existing by common right, those imposed for public purposes, and those established against him by crown grant or by custom or prescription. Under the first head comes the public right of navigation, of anchorage and fishery from boats (in tidal waters) , and of taking shell-fish (and probably other fish except royal fish) on the shore of tidal waters as far as any right of several fishery does not intervene. ”

“ The evidence [39] must have advanced so far that nothing but the confession of the slave was wanting to complete it. Those of weakest frame and tenderest age were to be tortured first. Except in treason, the unsupported testimony of a single witness was not a sufficient ground for torture. The voice and manner of the accused were to be carefully observed. A spontaneous confession, or the evidence of a personal enemy, was to be received with caution. Repetition of the torture could only be ordered in case of inconsistent depositions or denial in the face of strong evidence. ”

“ The effect of the acts is thus given in the report, issued in 1896, by a Board of Trade committee on the manning of merchant ships: “Since the final repeal of the Navigation Laws, which required that the masterManning of British ships. and three-fourths of the crew of every British ship should be British subjects, and reserved the coasting trade entirely to British ships and British seamen, the whole world has been open as a recruiting ground to British shipowners, who have not been hampered in their selection by any restriction as to colour, language, qualification, age or strength. ”