James Williams

“ What would have been a capital crime at Rome under Tiberius may be no offence at all in England. It is to the advantage of both the state and the citizen that what is treason and what is not should be clearly defined, so that as little as possible discretionary power, apt to be strained in times of popular excitement, should be left to the judicial or executive authorities. The importance of this was seen by Montesquieu. Vagueness in the crime of treason, says he, is sufficient to make the government degenerate into despotism. ”

“ It now seems to be the law that in order to constitute a larceny of lost goods there must be a felonious intent at the time of finding, that is, an intent to deprive the owner of them, coupled with reasonable means at the same time of knowing the owner. The mere retention of the goods when the owner has become known to the finder does not make the retention criminal. Larceny of money may be committed when the money is paid by mistake, if the prisoner took it animo furandi. ”

“ 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 with out oath he uses threats, terror, or exhibition of torments to confound the witness. [69] If any one, to avoid grave torments, charges himself with a capital crime, he does not sin mortally. ”

“ A trust estate is subject as far as possible to the rules of law applicable to a legal estate of a corresponding nature, in pur suance of the maxim. "Equity follows the law." Thus trust pro perty is assets for payment of debts, may be taken in execution, passes to creditors in bankruptcy, and is subject to dower and curtesy, to the rules against perpetuities, and to the Statutes of Limitation. ”

“ THEFT is, in modern legal systems, universally treated as a crime, but the conception of theft as a crime is not one belonging to the earliest stage of law. To its latest period Roman law regarded theft (furtum) as a delict prima facie pursued by a civil remedy, the actio furti for a penalty, the vindicatio or condictio for the stolen property itself or its value. ”

“ The common law of larceny has been affected by numerous statutes, the main object of legislation being to bring within the law of larceny offences which were not larcenies at common law, either because they were thefts of things of which there could be no larceny at common law, e.g., beasts ferae naturae, title deeds, or choses in action, or because the common law regarded them merely as delicts for which the remedy was by civil action, e.g., fraudulent breaches of trust. ”

“ A trust is extinguished, as it is created, either by act of a party or by operation of law. An example of the former mode of extinction is a release by deed, the general means of discharge of a trustee when the purposes of the trust have been accomplished. Extinction by operation of law takes place when there is a failure of the objects of the trust: e.g., if the cestui que trust die intestate without heirs or next of kin, the trustee retains the property dis charged of the trust if it be real estate, if it be personalty it falls to the crown. ”

“ The privilege from accusations by the slave extended to the master's father, mother, wife, or tutor, and also to a former master. On the same principle a freedman could not be tortured against his patron. The privilege did not apply where the slave was joint property, and one of his masters had been murdered by the other, or where he was the property of a corporation, for in such a case he could be tortured in a charge against a member of the corporation. Slaves belonging to the inheritance could be tortured in actions concerning the inheritance. ”

“ A resulting trust is a species of implied trust, and consists of so much of the equitable interest as is undisposed of by the instrument creating the trust, which is said to result to the creator and his representatives. An example is the purchase of an estate in the name of the purchaser and others, or of others only. Here the beneficial interest is the purchaser's. An example of a constructive trust is a renewal of a lease by a trustee in his own name, where the trustee is held to be constructively a trustee for those interested in the beneficial term. ”

“ One division, and perhaps the oldest, as it rests on the authority of Bacon, is into simple and Siberia!, the first being where the trust is simply vested in a trustee and the nature of the trust left to construction of law, the second where there is an act to be performed by the trustee. Another division is into lawful and unlawful, and corresponds to Bacon's division into intents or confidences and frauds, covins, or collusions. A third division is into public and private, the former being synonymous with charitable trusts. ”

“ It is remarkable that the rules do not allow much greater efficacy to torture. They speak of it almost in the terms of Roman law as dangerous and uncertain, and depending for its effects on physical strength. [58] Torture had ceased to be inflicted before the suppression of the Inquisition, and in 1816 a papal bull decreed that torture should cease, that proceedings should be public, and that the accuser should be confronted with the accused. ”

“ It has been said that the true principle of the common law is that there is neither a merger of the civil right, nor is it a strict condition precedent to such right that there shall have been a prosecution of the felon, but that there is a duty imposed upon the injured person not to resort to the prosecution of his private suit to the neglect and exclusion of the vindication of the public law ”

“ The oath of two witnesses, or confession in open court, or refusal to plead, or peremptory challenge of more than thirty-five jurors is necessary for conviction. The witnesses must be both to the same overt act or one to one and the other to another overt act of the same treason. If two or more treasons of divers kinds are alleged in one indictment, one witness to prove one treason and another to prove another are not sufficient. No person is to be indicted unless within three years after the offence, except on a charge of attempted assassination of the king. ”

“ There are also certain trusts which are avoided by statute under particular circumstances, such as settlements in fraud of creditors (see BANKRUPTCY, SETTLEMENT) . The law cannot be evaded by attempting to constitute a secret trust for an unlawful purpose. If an estate be devised by words prima facie carrying the beneficial interest, with an understanding that the devisee will hold the estate in trust for such a purpose, he may be compelled to answer as to the secret trust, and on acknowledgment or proof of it there will be a resulting trust to the heir-at-law. ”

“ The Bankruptcy Act, 1883, enables the court to appoint a new trustee in the place of a bankrupt trustee. besides being duly created, it is necessary for the validity of the trust that it should be a lawful one. An unlawful trust is one which contravenes the policy of the law in any respect. Examples of such trusts are trusts for a corporation without licence, for a per petuity, and for purposes subversive of morality, such as trusts for illegitimate children to be hereafter born. ”

“ The amount of torture was at the discretion of the judge, but it was to be so applied as not to injure life or limb. The examination was not to begin by torture; other proofs must be exhausted first. The evidence [32] 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. ”

“ Treason against the United States cannot be inquired into by any State court, but the States may, and some of them have, their own constitutions and legislation as to treasons committed against themselves, generally following the lines of the constitution and legislation of the United States. ”

“ On an accusation of treason every one, whatever his rank, was liable to torture, for in treason the condition of all was equal. [28] The same was the case of those accused of sorcery (magi) , who were regarded as humani generis inimici. [29] A wife might be tortured (but only after her slaves had been put to the torture) if accused of poisoning her husband. In accusations of crimes other than treason or sorcery, certain persons were protected by the dignity of their position or their tender age. ”

“ Cheating is either a common-law or statutory offence. An indictment for cheating at common law is now of comparatively rare occurrence. The statutory crime of obtaining money by false pretences is the form in which the offence generally presents itself. Like embezzlement, this offence dates as a statutory crime from the last century. It now depends upon the Larceny Act. ”

“ A power of varying investments is generally implied, though not expressly given by statute, as in Scotland. The duties of trustees in the distribution of trust funds have been made less onerous by the Trustee Relief Acts of 1847 and 1849, which enabled trustees or a majority of them to pay into the Bank of England to the account of the particular trust any moneys belonging to the trust, thus bringing the property within the jurisdiction of the court, from which it can only be obtained on petition. ”

“ During the republic torture appears to have been confined to slaves in all cases, but with the empire (according to Dion Cassius under Tiberius) a free man became liable to it if accused of a crime, though not as a witness. If a Christian, of however high a condition, he was subject to torture during the period between the edict of Diocletian in 303 and the edict of toleration of Galerius in 311. This short period excepted, the liability of a free man depended upon two conditions, the nature of the accusation and the rank of the accused. ”

“ The person creating the trust is called the truster, a term unknown in England. On the other hand the term cestui que trust is unknown in Scotland. The office of trustee is prima facie gratuitous, as in England, it being considered to fall under the contract of mandate. Some of the main differences between English and Scotch law are these. There is no presumption in Scotland of a resulting trust in favour of a purchaser. A trust which lapses by the failure of a beneficiary goes to the crown as ultimus heres, not to the trustee. ”

“ In all purchases with trast money he is bound to obtain the best price, unless where an Act of Parliament, like the Housing of the Working Classes Act, 1885, specially authorizes sale at an under value. Investments by trustees demand special notice. The general rule is that a trustee must take as much care of the trust property as of his own. He is, therefore, justified in following the usual course of business adopted by prudent men in making investments, e.g., by employing a stock-broker in the ordinary way. ”

“ The gradual manner in which the beneficiary became subject to the burdens attaching to the property of which he enjoyed the benefit was a feature common to both the Roman and the English system.
Uses in Early English Law.—The use or trust [1] is said to have been the invention of ecclesiastics well acquainted with Roman law, the object being to escape the provisions of the laws against Mortmain (q.v.) by obtaining the conveyance of an estate to a friend on the understanding that they should retain the use, i.e., the actual profit and enjoyment of the estate. ”

“ The apologists of torture, even among jurists, are not numerous. In fact, theoretical objections to it are often urged by the authors of books of practice, as by Damhouder, Yon Rosbach, Von Boden, and Voet. It is worthy of note, however, as illustrative of the feeling of the time, that even Bacon [12] com pares experiment in nature to torture in civil matters as the best means of eliciting truth. Muyart de Vouglans [13] derives the origin of torture from the law of God. ”

“ TORTURE.⁠It is proposed to treat in this place not so much the innumerable modes of inflicting pain which have been from time to time devised by the perverted ingenuity of man as the subject of legal torture as it existed in the civilized nations of antiquity and of modern Europe, that is to say, torture inflicted with more or less appearance of legality by a responsible executive or judicial authority. ”

“ Were there three or five grades in torture? Julius Clarus of Alessandria was a member of the council of Philip II. [121] To a great extent he follows Farinaccius. He puts the questions for the consideration of the judge with great clear ness. They are whether (1) a crime has been committed, (2) the charge is one in which torture is admissible, (3) the fact can be proved otherwise, (4) the crime was secret or open, (5) the object of the torture is to elicit confession of crime or discovery of accomplices. ”

“ They were found valuable for the defeat of creditors, the avoiding of attainder, and the charging of portions. A use had also the advantage of being free from the incidents of feudal tenure: it could be alienated inter vivos by secret conveyance, and could be devised by will. In many cases the feoffee [2] to uses, as he was called, or the person seised to the use of another, seems to have been specially chosen on account of his rank and station, which would enable him to defy the common law and protect the estate of his cestui que use, or the person entitled to the beneficial enjoyment. ”

“ Dealing with stolen goods by persons other than the thief may affect the rights of such persons either criminally or civilly. Two varieties of crime arise from such dealings. (1) Receiving stolen goods knowing them to have been stolen, a misdemeanour at common law, is by the Larceny Act a felony punishable by penal servitude for fourteen years where the theft amounts to felony, a misdemeanour punishable by penal servitude for seven years where the theft is a misdemeanour, as in obtaining goods by false pretences. ”

“ The procedure in trials for misprision is in general the same as that followed in trials for treason, most of the Acts regulating procedure including both crimes. The punishment is loss of the profit of the lands of the offender during life, and imprisonment for life. ”